Opinions Released March 29, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, MARCH 29, 2002

 

Baldwin County v. Palmtree Penthouses, Ltd.,

No. 1001066 (Ala. Mar. 29, 2002)
(ripeness; justiciable controversy; zoning; Palmtree Penthouses, Ltd., owns approximately 6.6 acres of land in Fort Morgan; in 1984, Palmtree recorded a map of the land in the probate office of Baldwin County, and on the map the 6.6 acres were divided into a 98-lot subdivision; each lot was 16 feet x 60 feet; the recorded map contains "Certificate[s] of Approval" signed by the county engineer, an officer from the county health department, and the chairman of the planning commission, indicating that Palmtree had received approval from those persons and agencies for the proposed division of the property into 98 lots; although Palmtree initially planned to develop multifamily housing on the land, it never did so; in 1993, Baldwin County adopted a zoning ordinance that zoned Palmtree's property as "R-1" or single-family residential; in 1994, Palmtree applied to the Baldwin County Commission, requesting that its property be rezoned to allow multifamily housing; the Baldwin County Commission denied Palmtree's request, but stated that Palmtree's subdivision plat came within the "grandfather" clause in the 1993 zoning ordinance; Palmtree did not appeal this ruling; Palmtree alleges that in 1997, Frank Santa Cruz, the Baldwin County building official, and Kevin Cowper, the Baldwin County zoning administrator, told an appraiser and potential purchasers of Palmtree's property that the property was subject to the 1993 zoning ordinance and that no building permits would be issued for the development of the property until the land was replatted in accordance with the 1993 zoning ordinance; Palmtree sued Frank Santa Cruz and Kevin Cowper, in their official capacities, and Baldwin County, requesting a writ of mandamus or declaratory relief that would allow Palmtree to obtain a building permit and to develop its land as it was platted and approved in 1984; Palmtree amended its complaint to add allegations of breach of express and implied contracts, inverse condemnation, and due-process violations under the Alabama Constitution, and alleging that it was entitled to relief under the doctrines of promissory and equitable estoppel; the trial court dismissed Palmtree's inverse-condemnation claims;  the defendants moved for summary judgment, and the trial court entered a summary judgment for the defendants as to Palmtree's first count requesting a writ of mandamus or declaratory relief but denied that motion as to the other claims; the defendants took a permissive interlocutory appeal; HOLDING:  the Supreme Court held that Palmtree's claims are not yet ripe for adjudication because Palmtree has not requested and been denied the right to build its proposed project on the land as it was platted in 1984, and Cowper, in his deposition testimony, denied that he told anyone that building permits would not be issued for Palmtree's subdivision unless the land was replatted; the Court held that Palmtree's action against the defendants is not ripe for adjudication because there is presently no live justiciable controversy that would give the courts jurisdiction over this case; accordingly, the Court dismissed the appeal)
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Booker v. Election Comm'n of the City of Birmingham,

No. 1001265 (Ala. Mar. 29, 2002)
(appeal dismissed as moot, on the authority of Water Works & Sewer Board of the City of Birmingham v. Petitioners Alliance, No. 1001092 (Ala. Dec. 14, 2001))
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City of Birmingham v. Sutherland,

No. 1001327 & 1001458 (Ala. Mar. 29, 2002)
(discretionary-function immunity; Ala. Code §6-5-338; claims of false imprisonment, negligence, "public ridicule," defamation, assault, and battery arising out of an incident at Colonial Bank in which the plaintiff, Sutherland, was accused by the bank's manager, Mark Renda, of passing counterfeit checks; Sutherland left the bank, and then returned to discuss the matter with Renda, but when he arrived back at the bank, Renda was reporting his suspicion to the University of Alabama at Birmingham (UAB) police department; the UAB police sent a radio dispatch to the City of Birmingham police department stating that there was a forgery suspect at the bank; a "plain-clothes" police officer, Michael Wooten, arrived at the bank and arrested Sutherland, based on Renta's identification, by drawing a handgun and pointing it at Sutherland; after being taken to the Birmingham police headquarters and questioned, Sutherland was released within an hour; no charges were ever filed against him; Sutherland sued the City, the City moved for summary judgment, and the trial court granted it as to all claims except as to Sutherland's negligence claims; at trial, the City moved for judgment as a matter of law (JML) at the conclusion of Sutherland's case-in-chief, and the trial court denied that motion; the City renewed its JML motion at the close of the evidence, and the trial court granted it as to the false imprisonment claim;  the jury returned a verdict for Sutherland in the amount of $115,000; those damages were reduced by $50,000, the amount of a pro tanto settlement paid by Colonial Bank and Renda; the City filed a renewed JML motion or, in the alternative, a motion for new trial; the trial court denied that motion; the City appealed, and Sutherland cross-appealed; HOLDING:  the Supreme Court concluded that Officer Wooten had probable cause to believe that a felony had been committed and that Sutherland had committed it; thus, the Court held that Officer Wooten was performing a discretionary function when he chose to make a warrantless arrest and a discretionary function when he chose the manner in which he would effect the arrest; the Court held that Sutherland further failed to specifically allege, or to present any evidence tending to prove, that Officer Wooten's actions were taken in bad faith, or that his conduct was willful or malicious; therefore, the Court held that the City was entitled to immunity under Ala. Code §6-5-338, and that the trial court erred in granting the City's motion for JML; as to the City's appeal, the judgment is reversed, and as to Sutherland's cross-appeal the judgment is affirmed)
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Worthy v. Cyberworks Technologies, Inc.,

No. 1001636 (Ala. Mar. 29, 2002)
(personal jurisdiction; the Worthys sued Soho Technologies, Inc., Cyberworks, Cornerstone International ("Cornerstone"), and Nathaniel R. Kinsella, vice president of operations for Cornerstone, alleging fraud, violation of the "Alabama Telemarketing Act,"  Ala. Code §8-19A-1 et seq., and violation of Alabama's "Deceptive Trade Practices Act," Ala. Code §8-19-1 et seq.; Cyberworks filed a motion to dismiss, arguing that the trial court lacked jurisdiction over it; Cyberworks alleged (1) that Cyberworks was incorporated in Utah, with its principal place of business in Salt Lake City, Utah, (2) that Cyberworks had had no contacts with the State of Alabama, and (3) that Cyberworks did not transact business in the State of Alabama and had made no contacts with the Worthys; the affidavit of Scott Alexander, the president of Cyberworks, was submitted in support of the motion to dismiss; the Worthys alleged that Kinsella was an officer, employee, or agent of Cyberworks; the Worthys contended that while Kinsella never directly mentioned Cyberworks to them, they gave Kinsella several credit card numbers so that they could pay for a web page and other alleged services to be performed, and when the Worthys received their bill they noticed a charge from Cyberworks; the Worthys also submitted a letter, dated March 30, 1999, from Cyberworks' employee Shawn Crumley to the Worthys' attorney and a copy of a check written on a Cyberworks' account to Cornerstone in the amount of $24,684.68, with a commission sheet showing most of the amount of the check represented a commission from a purchase made by the Worthys; the Worthys also submitted a copy of a long-distance telephone bill of Cyberworks that showed that it had made two calls to the Worthys, the transcribed deposition of Alexander, and several copies of completed "Scholarship Guarantee and Agreement" forms as evidence that Cyberworks had conducted Internet marketing workshops in several states, although Alabama was not one of those states; the trial court granted Cyberworks' motion to dismiss stating that fact that Cornerstone did business with Cyberworks is not a sufficient reason for the Plaintiff to sue Cyberworks in Alabama; HOLDING:  the Supreme Court held that Cyberworks' contacts with Alabama do not support an exercise of general jurisdiction by an Alabama court because its contacts were not continuous and systematic; the Court also held that Cyberworks' two telephone calls to the Worthys, standing alone, are not contacts sufficient to invoke specific in personam jurisdiction because they do not provide a clear, firm nexus between the acts of the defendants and the consequences complained of; the Court held that the Worthys failed to produce substantial evidence that Cyberworks had a right of control over Cornerstone or Kinsella and, therefore, failed to meet their burden of proving that an agency relationship existed between Cyberworks and Cornerstone or between Cyberworks and Kinsella; thus, the Court concluded that the trial court did not err in granting Cyberworks' motion to dismiss because Cyberworks' actions cannot be said to have been "purposefully directed" toward Alabama; the Court affirmed the dismissal by the trial court)
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Opinions Released March 22, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, MARCH 22, 2002

 

Ryan v. Hayes,

Nos. 1001578, 1001630 & 1001631 (Ala. Mar. 22, 2002)
(state-agent immunity; action by victims of a post-escape rampage by Scourterrious Lofton, an inmate at the Limestone Correctional Facility, against several prison officials; Lofton, who was serving three consecutive life sentences, escaped from a chain gang, which he was assigned to because of disciplinary problems; Lofton had already been reclassified to "maximum security," but apparently because of a secretarial vacancy, the notification of the reclassification was placed in the wrong stack of documents and did not get immediate attention; Lofton escaped while wearing  a particular brand of "leg irons" or "leg shackles" that were notoriously ineffective and easily removed; the trial court entered summary judgment in favor of the defendants on grounds of state-agent immunity in reliance on Ex parte Donahoo, 479 So.2d 1188 (Ala. 1985); HOLDING:  the Supreme Court extensively analyzed the Donahoo decision, including the original record in that case, and held that Donahoo's holding as to the duty of state officials was limited to parole officials only; as such, the Court overruled Donahoo to the extent that it announced a rule of duty that comprehensively and indiscriminately embraced all State officials, rather than just parole officials, the special class of State officials to which its rationale was directed; the Court remanded this case for further consideration and directed the trial court on remand to address the duty issue and/or the immunity issue, as it sees fit and in the order it sees fit, because both issues are factually ripe for determination; however, the Court held that generally the defense of state or state-agent immunity should be determined as a threshold issue because one of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit)
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Williams v. Burgett,

No. 1001999 (Ala. Mar. 22, 2002)
(action to recover certain property alleged to be a portion of the estate of the remaindermen after the death of the life tenant; Lacy Williams was the husband of Hattie Williams, and Lacy died with a will stating, "I will, give, devise and bequeath all of my property, both real, personal and mixed, wheresoever situated and wheresoever located and in which I may have any interest at my death to my beloved wife, Hattie E. Williams, for and during the term of her natural life, with the absolute power of disposition of all or any part thereof, and upon her death any part of my said estate then remaining shall go [to  designated descendants, with the rest and residue to children then living or their survivors, sharing equally in fee simple absolute] ...."; Hattie Williams sold timber from the real estate that had passed to her through her husband's will, and with the proceeds of the timber sale, she purchased certificates of deposit ("the CDs"); the CDs were issued in the names of Hattie Williams and her daughter, Faye W. Burgett, jointly, with right of survivorship; Hattie Williams died testate, and Burgett subsequently redeemed the CDs; Hattie Williams's son, Dewey Williams, as executor of her estate and as one of the remaindermen, filed in the Walker County Probate Court a "Petition for Determination of Estate Ownership Interest in Certain Assets" that sought a declaration that the proceeds of the CDs were part of the remainder estate created in Lacy Williams's will; the probate court held that "the proceeds from the disposition of [the timber] held in certificates of deposit with joint ownership with right of survivorship" were not part of the life estate of Hattie E. Williams, and, consequently, that the proceeds from the CDs passed to Burgett, "as the surviving joint tenant" of the CDs; HOLDING: the Supreme Court held that the probate court erred; the Court held that upon the death of a life tenant, the remaindermen are entitled to the traceable proceeds of a sale of assets of the estate by, and during the lifetime of, the life tenant, who had an absolute power of disposition as to the estate; the Court held that the proceeds remaining under the power and control of Hattie Williams, as life tenant, namely, the CDs, were a part of the life estate created in Lacy Williams's will, which passed to the remaindermen at the death of the life tenant, and that any other construction would unquestionably ignore and defeat the clear design of the testator; the Court noted that while the probate court's ruling was correct under the common law, the common-law rule "often resulted in a clear defeat of the testator's real and evident intention," and was modified by the legislature in a statute codified at Ala. Code §35-4-292(a); the Court held that this issue was squarely addressed nearly 100 years ago in Smith v. Cain, 187 Ala. 174, 65 So. 367 (1914))
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Cimarron Mortgage Co. v.  Wright, 

No. 1002020 (Ala. Mar. 22, 2002)
(interpleader; declaratory judgment; the Wrights filed an action asserting claims against the holder of a mortgage on their property, Cimarron Mortgage Co., and against their homeowners insurance carrier, Alfa Mutual Insurance Co., after their house was damaged or destroyed by a fire; Alfa Mutual filed an "Answer and Interpleader" stating that the Wrights and Cimarron had conflicting claims, and it tendered the policy limits to the clerk; Cimarron filed a motion for summary judgment; instead of filing an evidentiary response to Cimarron's summary judgment motion, the Wrights filed a motion asking the court to require Cimarron to file a counterclaim or have the interpleaded funds deemed abandoned by Cimarron; the trial court granted the Wrights' motion and ordered Cimarron to file a counterclaim for the interpleaded funds or its claims to the funds would be considered abandoned; the trial court also dismissed Alfa Mutual and discharged it from further liability; thereafter, the trial court ordered the funds paid to the Wrights and held that Cimarron had waived any claim to the funds by not asserting a counterclaim against the Wrights; HOLDING:  the Supreme Court held that the trial court erred in dismissing the action and in awarding the interpleaded funds to the Wrights; the Court held that Alabama law does not require one interpleader claimant to counterclaim against another claimant in order to preserve its right to the stake; the Court held that Cimarron fully and effectively joined issue with the Wrights by filing its summary-judgment motion; the Court reversed the trial court's judgment and remanded the case)
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Ex parte Smith,

No. 1010903 (Ala. Mar. 22, 2002)
(denying the petition for the writ of certiorari without opinion, but stating that 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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Opinions Released March 15, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, MARCH 15, 2002

 

Federal Ins. Co. v. I. Kruger, Inc.,

No. 1001096 (Ala. Mar. 15, 2002) (on application for rehearing; withdrawing and substituting no-opinion affirmance released Dec. 7, 2001)
(dispute over contract to upgrade a wastewater treatment plant; Ala. Code §39-1-1 (the "little Miller Act"); action by subcontractor  (Kruger) against contractor (Harbert) and surety on a payment bond (Federal); the trial court entered a summary judgment in favor of Kruger against both Harbert and Federal; HOLDING: the Supreme Court held that four elements must be proven before a supplier or a subcontractor is entitled to recover under a payment bond issued pursuant to the little Miller Act: (1) that materials or labor were supplied for work on the public project at issue; (2) that the supplier was not paid for the materials or labor supplied; (3) that the supplier had a good faith belief that the materials furnished were for the project in question; and (4) that the jurisdictional requisites had been met; the Court held that the record establishes, that Kruger met these four elements in supporting its motion for a summary judgment against both Harbert and Federal; the Court held that Kruger, through no fault of its own, was prevented from completing the requirements of its subcontract with Harbert; the Court held that, therefore, Kruger is excused from any further performance under the subcontract, and Kruger has a claim against Harbert under that subcontract; the Court held that the pay-when-paid clause did not create a condition precedent to payment but was rather merely a timing mechanism for the final payment under the subcontract; the Court held that Kruger established that it had complied with the terms of the payment bond and established the elements necessary to recover under the little Miller Act; the Court also noted that Kruger's claim against Federal is premised upon the terms of the payment bond, rather than on the terms of the Harbert-Kruger subcontract, and that  the payment bond does not condition payment to Kruger on the Water Board's making a final payment to Harbert; the Court affirmed the trial court's summary judgment)
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--(the original no-opinion affirmance and dissent released on Dec. 7, 2001, in Federal Ins. Co. is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

Ex parte Lucas,

No. 1001508 (Ala. Mar. 15, 2002)
(criminal; ineffective assistance of counsel; Rule 32, Ala.R.Crim.P., petition for postconviction relief; sentencing; habitual offender; proof of past felony convictions; Lucas, who was convicted of burglary, rape, and sodomy, claimed that his trial counsel had rendered ineffective assistance at his sentence hearing in failing to object to the introduction of allegedly uncertified copies of prior felony convictions, resulting in the mandatory enhancement to life imprisonment without parole of each of his three sentences; the trial court summarily dismissed Lucas's Rule 32 petition; HOLDING: the Supreme Court held that the trial court erred in holding that the grounds raised by the Rule 32 petition were precluded because Lucas was represented by the same counsel at trial and on appeal and a claim of ineffective assistance of trial counsel is not precluded by the application of Rule 32.2(a)(3) or (5) when the same counsel has appeared on behalf of the defendant both at trial and on appeal; the Supreme Court held that Lucas's challenge to his Navy court-martial convictions on the basis that the records of those convictions were not properly certified and his derivative claim of ineffective assistance of counsel for failure to object to admission of those records at the sentence hearing, is refuted by  the content of the records which were attached to the petition; however, the Court held that the third conviction upon which the trial court relied in sentencing Lucas -- a May 16, 1985, conviction in the Circuit Court of Jefferson County for burglary in the third degree -- did not appear on its face to have any sort of certification, and while the State argued that the absence of certification was due to the fact that the copy attached to Lucas's petition was a photocopy of the front and the certification would have been on the back in accordance with local practice, the Court noted that there was nothing in the record to substantiate any reverse side certification in this case, or any general practice of that procedure, or the trial judge's knowledge of any such practice; thus, the Court remanded the case for the trial court to review the record of the sentence hearing to ascertain the status of the reverse sides of the case action summary pages in question and to certify its findings in its order on return to remand, within 21 days from its receipt of the remand order)
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National Ins. Ass'n v. Sockwell,

No. 1001627 (Ala. Mar. 15, 2002)
(insurance; bad faith failure to investigate and pay an insurance claim for underinsured-motorist ("UIM") benefits; excessiveness of punitive damages; excessiveness of damages for mental anguish; Betty Sockwell suffered serious bodily injuries when the vehicle in which she was a passenger was rear-ended by driver Keith Etheridge Dodd; Sockwell's primary injury was to her spinal cord and neck, and she was rendered totally disabled; at the time of this accident, Sockwell was working within the line and scope of her employment as a licensed practical nurse ("LPN"), and she filed a claim for workers' compensation benefits; Sockwell was also insured under two automobile insurance policies issued by National Insurance Association, and policy carried UIM coverage in the amount of $20,000, which could be "stacked" for a total of $40,000 UIM coverage; within two months of the accident, Sockwell's attorney notified National of Sockwell's injuries and that she had been rendered totally disabled, that the coverage available to Sockwell from the responsible driver and other available insurance was inadequate, and that Sockwell would be seeking UIM benefits under her National policies; in October 1997, after not hearing from Sockwell's attorney since June 1997, National's adjuster closed the file; in April 1998, Sockwell's attorney called about the UIM coverage, and National denied the claim, stating in a letter that the "coverage excludes injury which occurs during the course of employment if workers' compensation benefits are required or available for the bodily injury" and that the "Uninsured Motorist coverage is just that, payable only if the party who causes the accident is uninsured.  It is not Underinsured Motorist coverage.";  in July 1998, Sockwell's attorney notified National's adjuster that her denial of UIM benefits under National's policy was incorrect; in September 1998, National again denied coverage, contending that the "National policy 'excludes payment for any loss covered under any worker[s'] compensation law'"; Sockwell sued National for bad faith and breach of contract; after the complaint was served on National, it was forwarded to a senior claims analyst, and she testified that, immediately upon reviewing the file, she knew the claim was ripe for payment; the jury returned a verdict in favor of Sockwell and awarded her $201,000 in compensatory damages and $600,000 in punitive damages; the trial court denied National's posttrial motions for a judgment as a matter of law, a new trial, or a remittitur; HOLDING: the Supreme Court affirmed the judgment of the trial court; the Court held that Sockwell's claims of bad faith were properly presented to the jury; the Court rejected National's argument that it was entitled to judgment as a matter of law on grounds that Sockwell was not yet entitled to any benefits under her insurance policies because she had not yet settled with another carrier (which National discovered just before trial), stating that National did not deny Sockwell's claim because her claim for UIM benefits had not yet ripened that National never even inquired as to whether Sockwell had settled her claims with the other insurance carriers involved, and that it is the insurer's duty to marshal all of the facts pertinent to its denial -- before denying the claim -- if the insurer wishes to rely upon those facts as a defense to a claim of bad faith; the Court also noted that National, through its senior claims analyst, admitted at trial that the medical records and other documentation submitted to its claims adjuster, before the September 1998 denial, established that Sockwell's claim was due to be paid and that after this lawsuit was filed, National paid Sockwell the UIM limits available under her insurance policies; the Court rejected National's argument that it was entitled to a postverdict judgment as a matter of law on grounds that Sockwell failed to establish that National acted with bad-faith intent because, it held, the jury heard ample evidence upon which it could have found that National acted in bad faith; the Court held that the damages for mental anguish were not excessive because, at the time National acted wrongfully Sockwell was already suffering from some degree of physical pain, and the testimony established that Sockwell suffered both physical pain and mental anguish as a result of National's wrongdoing in that the stress caused her pain to worsen; the Court explained that the strict-scrutiny rule established in Kmart Corp. v. Kyles, 723 So.2d 572, 578 (Ala. 1998), is inapplicable in a case where the plaintiff suffers physical injury or pain in conjunction with emotional distress; after analyzing the BMW and Hammond/Green Oil factors, the Court concluded that the $600,000 punitive-damages award was reasonable and of a sufficient amount to punish National, without compromising its due-process rights; the Court rejected National's contentions that the tort of bad faith is unconstitutional and that it should not be available in the context of uninsured/underinsured motorist coverage)
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Alfa Mut. Ins. Co. v. Small,

No. 1001819 (Ala. Mar. 15, 2002)
(insurance coverage; automobile policy; declaratory judgment; dispute over whether the insured's vehicle was being driven with the "express permission" of the insured at the time of the accident; the automobile policy defined a "covered persons" to include "[a]ny other person while using the covered car with the express permission of you or a family member"; the insured, Sandra Young, cohabitated with her boyfriend, David Barclift; the covered car was Young's 1979 Chevrolet Corvette automobile; David Barclift had driven the Corvette on a couple of occasions, each time with the express permission of Saundra Young and with her as a passenger, but Young had told Barclift that he could not drive her Corvette without specific permission; on the day of the accident, Barclift took the automobile without permission and drove the Corvette automobile to Opelika; while in Opelika, Barclift called Saundra Young and told her that he had her automobile; Young said to Barclift at that time, "You better get your ass in that car and drive my car home"; while driving the Corvette back from Opelika, Barclift was involved in an automobile accident in the Corvette and collided with a vehicle occupied by Plaintiff Gladys Small; the trial court held that the accident was covered by the policy because when Barclift called Young from Opelika, she gave him express permission to drive it back; HOLDING:  the Supreme Court affirmed the judgment of the trial court; the Court noted that although Barclift initially did not have Young's express permission when he drove her vehicle from their home to Opelika, that trip was a separate occurrence, and had the accident occurred while Barclift was en route to Opelika, Alfa would have a strong argument that it was not required to provide coverage under the terms of the policy; the Court held, however, that once Barclift telephoned Young and told her that he had her vehicle, she clearly and unmistakably ordered that he get in the vehicle and return it to their home, and that this constituted a change in circumstances because, as the trial court found, Young easily could have ordered Barclift to leave her vehicle parked)
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Ex parte Cole,

No. 1010079 (Ala. Mar. 15, 2002)
(criminal; jurisdiction; sufficiency of indictment for first-degree robbery when the defendant pleas guilty to second-degree robbery; Larry Darnell Cole was indicted for first-degree robbery; Cole entered a plea of guilty to second-degree robbery; Cole contends that the trial court did not have jurisdiction to accept his plea of guilty to second-degree robbery when he had been indicted for first-degree robbery because second-degree robbery requires proof of an element not required for first-degree robbery -- i.e., the defendant must have been aided by another person actually present; HOLDING: the Supreme Court held that a defendant charged with first-degree robbery by an indictment that describes the defendant's conduct as occurring in the presence of another aiding him could plead guilty to second-degree robbery as a lesser-included offense, because robbery in the second degree requires the use of force or the threatened use of force while the defendant is "aided by another person actually present"; however, the Court held that where, as in the present case, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant -- an  essential element of the offense of second-degree robbery -- the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea; the Court held that to treat the proceedings in this case as if the original indictment included that additional fact just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment to an indictment; the Court reversed the conviction for second-degree robbery, but noted that the State could reindict Cole)
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Lyons v. Norris,

Nos. 1961601, 1961602, 1961603, 1961604 & 1961642 (Ala. Mar. 15, 2002)
(on application for rehearing; withdrawing and substituting the opinion of Nov. 30, 2001)
(expenses of attorneys who represented indigent criminal defendants; the attorneys filed a declaratory-judgment action in Montgomery Circuit Court against the finance director and the comptroller for the State of Alabama (collectively referred to as "the state officials") seeking a determination as to how the state officials were to comply with, and implement, the decision of the Court of Criminal Appeals in May v. State, 672 So.2d 1307 (Ala. Crim. App. 1993); the attorneys also filed in the trial court a petition for a writ of mandamus, asking the court to compel the state officials to retroactively reimburse the attorneys for overhead expenses they had "incurred" in representing indigent criminal defendants; one of the attorneys sued the comptroller in his individual capacity for negligence and wantonness, while another one of the attorneys sought certification of a putative class consisting of all attorneys appointed pursuant to Ala. Code §15-12-21 to represent indigent criminal defendants; the trial court issued a writ of mandamus, instructing the state officials to "approve all Attorney Fee Declarations that include Orders approving 'office overhead expenses' filed prior to or contemporaneously with the Attorney Fee Declaration"; the trial court also denied class certification with respect to a class of "all attorneys licensed and practicing in the State of Alabama since September 3, 1993, who accepted the representation of indigent criminal defendants ... and who submitted fee and expense vouchers [containing] court approved sums for 'office overhead expenses' pursuant to ... May"; in May the Court of Criminal Appeals held that office overhead expenses are by law encompassed in the term "expenses reasonably incurred" as that term is used in Ala. Code §15-12-21(d), and in Ex parte Smith, 698 So.2d 219, 224 (Ala. 1997), the Supreme Court agreed with the Court of Criminal Appeals that §15-12-21 authorizes payment to a court-appointed attorney for overhead expenses reasonably incurred in the defense of an indigent defendant but noted that, as expressed in both §15-12-21 and May, before counsel is entitled to be reimbursed for those expenses, the trial court must approve the expenses in advance; HOLDING:  the Supreme Court held that the plain language of §15-12-21(d) indicates that an order approving the expense must be entered before the expense is incurred; the Court held that the plain language of the statute states that before the comptroller can issue any warrant on the state treasury, the comptroller must determine that the claim is funded, correct, and legal, and if it is not, he cannot issue the warrant; the Court held that the attorneys do not have a clear legal right to reimbursement of their overhead expenses under the circumstances presented here; the Court held that because the state officials were acting within the scope of their authority in auditing and disallowing payments not approved in the manner set forth in §15-12-21(d), the trial court's judgment in favor of the attorneys is reversed; the Court affirmed the denial of class certification)
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--(the original withdrawn opinion released on Nov. 30, 2001, in Lyons is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--

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Opinions Released March 8, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, MARCH 8, 2002

 

Lathan Roof America, Inc. v. Hairston,

No. 1001162 (Ala. Mar. 8, 2002)
(Employer's Liability Act, Ala. Code §§25-6-1 to -4; The Lathan Company, a commercial / industrial roofing company, is one of two companies owned by Jerry Lathan; the other company is Lathan Roof America ("Roof America"), which handles smaller, residential roofing projects; in early August 1997, The Lathan Company hired Frederic Hairston as a superintendent to supervise its construction of an office building; on August 28, 1997, Roof America entered into a contract with the Dauphin Surf Club ("the Surf Club") to reroof part of the Surf Club's condominium complex; after Roof America's only employee quit, Roof America began to use The Lathan Company employees in order to continue servicing Roof America projects, including the Surf Club project, and Roof America reimbursed The Lathan Company for any time its employees spent working on a Roof America project; Hairston began performing various tasks at the Surf Club; while attempting to fix a leak in the roof at the Surf Club in the rain by himself in October 1997, Hairston slipped, fell off the roof, and suffered severe damage to one of his feet, as well as various related complications; Hairston sued Roof America and The Lathan Company asserting claims against all defendants under both the Employer's Liability Act (alleging negligence and wantonness) and under the Alabama Workers' Compensation Act, Ala. Code §§25-5-1 et seq.; the trial court dismissed all claims against The Lathan Company, as well as the workers' compensation claim against Roof America; the case went to trial on the negligence and wantonness claims against Roof America brought under the Employer's Liability Act; the trial court denied Roof America's motion for a judgment as a matter of law submitted at the end of Hairston's case-in-chief and granted Roof America's similar motion filed at the close of all of the evidence as to Hairston's claim alleging wantonness under the Employer's Liability Act; the trial court allowed the case to go to the jury on the remaining negligence claim against Roof America under the Employer's Liability Act; the jury returned a verdict in favor of Hairston for $500,000, and the trial court denied Roof America's postverdict motion for a judgment as a matter of law, or in the alternative, for a new trial; HOLDING:  the Supreme Court held that there was "substantial evidence" before the jury to create a question of fact as to Hairston's employment status with Roof America; the Court held that Ala. Code §25-5-32 removes the defenses of contributory negligence and assumption of the risk, and that these defenses are therefore not available with regard to claims under the Employer's Liability Act; thus, the Court held that the trial court did not err when it refused to instruct the jury on the defenses of contributory negligence and assumption of the risk; the Court affirmed the judgment of the trial court)
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Bassie v. Obstetrics & Gynecology Assocs. of NW Ala., P.C.,

No. 1001685 (Ala. Mar. 8, 2002)
(survival of unfiled tort claims; brain death; Deborah Bassie was admitted to Eliza Coffee Memorial Hospital for the delivery of her child; she suffered complications during the delivery and died; there is no dispute that she was "brain dead," as that condition is defined by former Ala. Code §22-31-1, before personal-injury claims were filed on her behalf on April 14, 2000; mechanical ventilation and cardiac support were removed on April 21, 2000; Deborah Bassie's cardiac and respiratory functions then ceased; in the April 14, 2000, action, Timothy Bassie ("Bassie"), as Deborah's husband and next friend, alleged that the defendants had been negligent and/or wanton, and that their negligence and/or wantonness had caused Deborah's personal injuries that ultimately led to her death; on December 8, 2000, Bassie amended his complaint to add a claim for wrongful-death; ruling on a motion for summary judgment by the defendants, the trial court ruled that the plaintiff had died for legal purposes prior to the filing of the suit for the personal injury claims, and it entered a partial summary judgment in favor of the defendants with respect to the personal injury claims of Deborah Bassie; the trial court certified the judgment as final under Ala.R.Civ.P. 54(b); HOLDING:  the Supreme Court reached the same result the trial court reached; the Court held that Ala. Code §6-5-462 does not permit the filing of a personal-injury claim on behalf of a person after he or she is dead, and Ala. Code §22-31-1 as it read at all times pertinent to this action plainly stated that, even "when respiratory and cardiac function are maintained by artificial means," a person is "medically and legally dead if ... there is total and irreversible cessation of brain function"; thus, the Court held that the personal-injury claims do not survive, because they were filed after Deborah's "death")
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Ex parte Walter,

No. 1001757 (Ala. Mar. 8, 2002)
(criminal; free speech; commercial speech; violation of municipal ordinances prohibiting doing business before obtaining the required business license and prohibiting commercial advertising businesses on navigable waters; Walter was operating a commercial advertising business using the electronic sign on a vessel (the "Sign Bote") in the coastal waters of Alabama, approximately 500 yards south of the city limits of Gulf Shores; Walter applied for a business license after being invited to do so by the city attorney, and the city council, at its meeting on June 22, 1998, denied the application; after it denied the application, the council suspended its rules to allow for immediate consideration of §8-45, an amendment to municipal ordinance no. 754, which is the only ordinance for the City of Gulf Shores that specifically prohibits a form of commercial activity within the "navigable waters of the City"; after the passage of the amendment to the ordinance, and on the following days -- June 23, 1998, through June 30, 1998 -- Walter was cited eight times for the aforementioned violations; it was undisputed that Walter possessed an occupational license from the State of Alabama, and a general services license from the City of Gulf Shores and that the Sign Bote was registered with the Coast Guard, as a vessel regularly moored in Orange Beach, rather than Gulf Shores, Alabama; it was undisputed that the vessel traveled more than 500 yards from shore and that it always stayed seaward from the swimming areas; additionally it was undisputed that the vessel did not exhibit lewd or obscene advertising, but it did use the words "adult novelties" and "sexy swimwear" in advertising for a store located and licensed in Gulf Shores; there was evidence presented that at least one council member voted against the license because he had received complaints that some of the advertising, promoting "adult toys," was considered offensive by some residents; the trial court dismissed three violations due to confusion regarding the dates of the alleged violations, and Walter was convicted on five of the cited violations; Walter argues that his convictions violated his constitutional rights because, he says, the City acted unreasonably, arbitrarily, and capriciously by adopting the ordinance banning commercial advertising, which, he argues, restricts commercial speech; HOLDING:  the Supreme Court held that the objective of aesthetic improvement undoubtedly qualifies as a substantial governmental interest, and that the aesthetic value of preserving the natural beauty of that Gulf of Mexico coastline for a city heavily dependent on tourism cannot be overstated; the Court held that barring waterborne signage to avoid creating "a carnival-type atmosphere" is a permissible exercise of the City's police power; the Court said that it is difficult to envision a narrower ban on waterfront advertising that would effectively avoid the creation of the conduct condemned by the city as a "public nuisance"; the Court held that in passing ordinance no. 754 to prohibit commercial advertising on its navigable waterways, Gulf Shores has remained within constitutional limits; thus the Court affirmed the convictions) 
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Ex parte Cox,

No. 1001829 (Ala. Mar. 8, 2002)
(arbitration; enforcement by a nonsignatory defendant; the Coxes purchased a mobile home from Blue Ribbon Homes Super Center of Tuscaloosa, Inc. ("Blue Ribbon"); Franklin Homes manufactured the home, but it was not a party to any of the documents executed at the time of the sale; at the time of the purchase, the Coxes and a representative of Blue Ribbon executed a sales contract, which  contained an arbitration clause; at the time they signed the sales contract, the Coxes also signed a separate arbitration agreement; the Coxes, dissatisfied with the condition of their mobile home, sued Franklin Homes, the manufacturer of the home, and James W. Powell, who installed the home; Franklin Homes moved to compel arbitration based upon the sales contract and the arbitration agreement the Coxes signed when they purchased their mobile home from Blue Ribbon, even though, as previously noted, Franklin Homes was not a party to either of those documents; the trial court entered an order compelling arbitration; HOLDING:  the Supreme Court held that because Franklin Homes was not a signatory to either the sales contract or the separate arbitration agreement, Franklin Homes is not entitled to compel arbitration)
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Phillips v. Randolph,

No. 1001992 (Ala. Mar. 8, 2002)
(motion to set aside a default judgment; Ophelia Randolph was a widow when her 26-year-old daughter, Aldean Austin, unexpectedly died; Austin was unmarried and had no children, and she had purchased various life insurance policies naming her mother as the beneficiary; Austin left her mother, including the life-insurance proceeds and other property, over $322,000; Randolph's sister and brother asked Reverend Walter Phillips, Randolph's pastor, to check on her and help her out, because they knew she was upset; Randolph alleged that Phillips was supposed to help her see after her daughter's business; Randolph alleged that Phillips agreed to help her and that she agreed to pay him for his services, although the amount of the actual compensation was never discussed; Randolph executed a general power of attorney in his favor, dated December 11, 1997; the proceeds from the various life insurance policies and other assets were deposited into checking and savings accounts bearing the names of both Phillips and Randolph in the CB&T Bank of Russell County; after Phillips refused to buy Randolph a riding lawn mower, and after Phillips told Randolph's nephew, Jimmy Rowell, that he had had Randolph declared incompetent, Randolph then executed a power of attorney in favor of Rowell and her niece, who promptly closed the accounts Randolph held jointly with Phillips and withdrew the remaining $75,857 from those accounts; Randolph sued Phillips, alleging breach of fiduciary duty, fraud, conversion, conspiracy, and the tort of outrage; Phillips was served with the complaint by certified mail on October 23, 2000; Phillips did not file an answer, and on December 21, 2000, Randolph moved for a default judgment; the trial court entered a default judgment on January 5, 2001, and set a hearing for March 5, 2001, to determine damages; at the hearing on March 5, 2001, Phillips appeared pro se; evidence admitted without objection at the damages hearing on the default judgment indicated that Phillips had used Randolph's money to obtain thousands of dollars worth of goods and services for himself; the trial court then awarded Randolph $244,000 in compensatory damages and $250,000 in punitive damages; Phillips, now represented by counsel, filed a  motion to set aside the default judgment, or in the alternative, for a new trial; the motion was not verified by Phillips, nor was there any accompanying affidavits or proof submitted to rebut the evidence offered and admitted by the court at the hearing on damages; the trial court denied the motion; HOLDING: the Supreme Court noted that merely stating that one has a meritorious defense is simply not enough and that a party seeking to establish a meritorious defense may do so in an answer or in a motion to set aside the default judgment and its supporting affidavits or by some other means to warrant submission of the case to the jury; the Court held that no such showing was made in this case; the Court also held that Phillips has not cited any facts in the record that would support his claim that Randolph would not be unfairly prejudiced if his motion is granted; the Court held that when a party files a motion to set aside a default judgment, the movant has the initial burden of making a prima facie showing that the plaintiff will not be unfairly prejudiced if the default judgment is set aside, that if the movant makes a prima facie showing that the plaintiff will not be unfairly prejudiced, the burden then shifts to the plaintiff to present facts showing that the plaintiff will be unfairly prejudiced if the default judgment is set aside; the Court held that the trial judge did not err in denying Phillips's motion to set aside the default judgment; the Court held that the trial court did not abuse its discretion in refusing to set aside the default judgment based on its determination of Phillips's culpability; the Court held that because Phillips did not request that the trial court conduct a hearing on the issue of whether the punitive damages were excessive, the trial court did not err in not granting a hearing on the issue)
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Creola Land Development, Inc. v. Bentbrooke Housing, L.L.C.,

No. 1002153 (Ala. Mar. 8, 2002)
(justiciable controversy; declaratory judgment; dismissal for failure to state a claim upon which relief can be granted; Creola filed an action seeking a judgment declaring a second mortgage void and enjoining Bentbrooke from foreclosing on the encumbered property and requiring Bentbrooke to cancel the mortgage; the complaint alleged that a cloud on the title to property owned by Creola currently exists as the result of an invalid mortgage encumbrance; the complaint further alleged that Bentbrooke, the mortgagee, has sought to foreclose on the second mortgage by selling Creola's property;  Bentbrooke moved, under Ala.R.Civ.P. 12(b)(6), to dismiss the complaint, arguing that Creola has not pleaded any facts to the court which demonstrate that its right to lawful possession of the mortgaged property has in any way been affected; the trial court granted the motion and dismissed the complaint; HOLDING:  the Supreme Court held the allegations of the complaint, taken as true, state a justiciable controversy, and that, therefore, the trial court erred in dismissing the complaint; the Court held that, accepting the allegations of the complaint as true, substantial rights of the parties are currently affected and that the complaint invokes jurisdiction under the Declaratory Judgment Act)
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Kenworth of Birmingham, Inc. v. Langley,

No. 1010077 (Ala. Mar. 8, 2002)
(arbitration; interstate commerce; Langley purchased a used Kenworth tractor-trailer from Kenworth of Birmingham, Inc. in 1997; as part of the purchase, Langley applied for and obtained credit from Green Tree Financial Corp., a  St. Paul, Minnesota, corporation; the "Buyers Order" indicated that Green Tree is the lienholder of the tractor-trailer, and the installment sales contract and the security agreement executed in conjunction with the purchase indicated that Green Tree would be the assignee; Langley also executed two different arbitration agreements in connection with the sale and financing of the tractor-trailer; Langley sued Kenworth and Randy Hall, claiming that they misrepresented to him that the tractor-trailer had not previously sustained any damage other than damage to the sleeper and claiming that the tractor-trailer had, in fact, previously sustained other damage and that it had been repaired; Kenworth and Hall filed a motion to compel arbitration; the trial court denied the motion; HOLDING: the Supreme Court held that Kenworth and Hall met their burden of showing that the transaction had a "substantial effect" on interstate commerce under 5-factor test used in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala. 2000), because (a) Langley applied for and obtained credit for the purchase through Green Tree, a Minnesota corporation and (b) the "Buyers Order" indicates that Green Tree would be the lienholder of the tractor-trailer and that the installment sales contract would be assigned to it; the Court reversed the order denying the motion to compel arbitration)
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Vann v. First Community Credit Corp.,

No. 1010113 (Ala. Mar. 8, 2002)
(arbitration; unconscionability; the Vanns executed a note, along with an arbitration agreement, with First Community to purchase a 1995 Pontiac Grand Prix from an automobile dealer; the Vanns also purchased property insurance on the vehicle and credit-life insurance from First Community; the premiums for the policies for that insurance were included in the total amount due on the note and consequently on the monthly payments the Vanns were to make on the note; the Vanns sued First Community, claiming that First Community made several fraudulent misrepresentations; First Community moved the trial court to compel arbitration, and the trial court granted that motion; HOLDING:  the Supreme Court noted that the Vanns presented no evidence indicating that they were unable to find an alternate lender or that the dealer required them to use First Community and that the Vanns' lack of education does not relieve them of their contractual obligations; the Court held that the Vanns did not put forth substantial evidence demonstrating that the terms of the agreement are grossly favorable to First Community or that First Community had overwhelming bargaining power; thus, the Court held that the trial court did not err in failing to hold that the agreement was unconscionable)
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Ex parte State of Alabama ex rel. C.M. ,

No. 1010228 (Ala. Mar. 8, 2002)
(venue; Alabama Uniform Parentage Act; paternity and child support; petition for a writ of mandamus directing a judge of the Jefferson Circuit Court to vacate his order transferring this action from Jefferson County to Marengo County; the State of Alabama, on behalf of a minor, C.M. (hereinafter "the child"), filed this action in the Family Court of Jefferson County on December 23, 1996, against the respondent, C.H., the alleged father of the child, seeking a paternity determination and an order for support; the child and the child's mother, A.M., resided in Jefferson County when the complaint was filed, and they continue to reside there; C.H. resides in Marengo County; C.H. contended in the Family Court of Jefferson County that the action was barred by the doctrines of res judicata and collateral estoppel, based upon a previous paternity action litigated in Marengo County in 1984, in which the court found that C.H. was not the father of the child; the Jefferson Family Court determined that the action was not barred by the doctrines of res judicata or collateral estoppel, and, after a hearing, the family court found that C.H. was the father of C.M. and ordered him to pay child support; C.H. appealed to the Jefferson Circuit Court; in that court, C.H. filed a motion for a change of venue, arguing that the action should be transferred to Marengo County because, he argued, venue in that county was appropriate in this case; the trial court granted the motion to transfer because the defendant resided in Marengo County in 1984, the defendant still lives in Marengo County, the alleged conception was in Marengo County, and the companion case brought by the mother was tried in Marengo County in 1984; HOLDING: the Supreme Court held that Ala. Code §26-17-10(f) controls venue in actions filed under the Alabama Uniform Parentage Act; the Court held that §26-17-10(f) allows the filing (i.e., the commencement) of an action in the county in which the defendant resides or the county where the child resides, such that venue may be appropriate in two counties; the Court held venue in this case is proper in both Jefferson County, as the county where the child resides, and Marengo County, as the county where the defendant resides; because the trial court's order did not indicate that the case was transferred pursuant to §6-3-21.1(a) (forum non conveniens), the Supreme Court directed the trial court to vacate its order transferring the action to the Marengo Circuit Court)
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McInnis v. Hampton Cove Owners Ass'n, Inc.,

No. 1010274 (Ala. Mar. 8, 2002)
(the Supreme Court affirmed, without opinion, a summary judgment declaring that the Hampton Cove Owners Association can assume the maintenance of McInnis's lot and assess her for the costs of such maintenance based on restrictive covenants governing her lot; dissenting opinion by Justice Johnstone, joined by Justice Brown)
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Ex parte Ramsay,

Nos. 1990758 & 1000454 (Ala. Mar. 8, 2002)
(contract claims; summary judgment; affirmative defenses; statute of frauds; the Grove Hill Memorial Hospital Auxiliary (the "Auxiliary"), an unincorporated association that promotes the welfare of the Clarke County Health Care Authority d/b/a Grove Hill Memorial Hospital (the "Hospital"), sued Dr. Steve Ramsay for repayment of "scholarship" monies it had paid him while he was a medical resident on the condition, violated by Dr. Ramsay, that he practice medicine at the Grove Hill Memorial Clinic (the "Clinic"), a professional corporation that supplies doctors to the Hospital, for a minimum of three years; the trial court entered a summary judgment in favor of the Auxiliary for recovery of all of the scholarship monies plus interest, and the Court of Civil Appeals affirmed the summary judgment; after the Auxiliary sued Dr. Ramsay, he sued the Hospital by filing a third-party claim against it; Dr. Ramsay alleged that the Hospital had breached an oral contract (distinct from the scholarship contract between Dr. Ramsay and the Auxiliary) to repay his medical school student loans; the Hospital moved for a summary judgment, grounded on the Statute of Frauds, on Dr. Ramsay's claim against the Hospital; the trial court entered a summary judgment in favor of the Hospital, and the Court of Civil Appeals affirmed it without an opinion; HOLDING: the Supreme Court affirmed both summary judgments; the Court affirmed the summary judgment in favor of the Auxiliary on the ground that the record lacks substantial evidence that the nonpayment of Dr. Ramsay's student loans prevented completion of his three-year obligation to work at the Clinic; with regard to the summary judgment in favor of the Hospital, the Court held that subsection (1) of Ala. Code §8-9-2, which applies to "[e]very agreement which, by its terms, is not to be performed within one year from the making thereof," voids the alleged oral contract and legitimizes the summary judgment entered by the trial court; the Court also noted that record does not contain substantial evidence that Dr. Ramsay did, in fact, fully perform the obligation he himself testified he owed the Hospital in return for its promise to pay his student loans)
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Opinion of the Justices, No. 375 (Ala. Mar. 8, 2002)

(the Governor requested an advisory opinion on the effect of the changes made by the Legislature in 1999 to that portion of Ala. Code §15-12-21(d) dealing with the reimbursement of expenses to attorneys who represent indigent defendants; specifically, the Governor requested "the Court's opinion as to whether the Legislature eliminated the reimbursement for office overhead expenses for appointed attorneys in criminal matters when it passed Act 99-427"; HOLDING: the Justice held that the Justices normally decline to answer questions that do not relate to the constitutionality of "proposed legislation," which has been defined "as a bill introduced and pending in the Legislature" and that they are not authorized to answer solely legal questions in advisory opinions to the legislature or governor; thus the Justices noted that the subject matter of the request is inappropriate for resolution by an advisory opinion and declined to answer the questions posed)
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Opinions Released March 1, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, MARCH 1, 2002

 

Ex parte Legal Envtl. Assistance Found., Inc.,

No. 1000563 (Ala. Mar. 1, 2002)
(agency rulemaking; environmental law; the Alabama Department of Environmental Management ("ADEM") promulgated certain procedures regulating the discharge of pollutants into Alabama waterways; the Legal Environmental Assistance Foundation, Inc. ("LEAF") sued ADEM alleging that the Implementation Procedures for Tier 2 of the Antidegradation Policy ("Implementation Procedures"), Ala. Admin. Code (ADEM) Rule 335-6-10-.04(03), constitute "rules" as defined in the Alabama Administrative Procedure Act ("AAPA"), Ala. Code §41-22-3(9), and that ADEM did not fulfill the requirements of the AAPA or of the Alabama Environmental Management Act ("AEMA")  for promulgating new rules; ADEM moved for a summary judgment relying on Alabama Dep't of Transp. v. Blue Ridge Sand & Gravel, Inc., 718 So.2d 27 (Ala. 1998); likewise relying on Blue Ridge, the trial court entered the summary judgment in favor of ADEM; the Court of Civil Appeals affirmed without an opinion; HOLDING: the Supreme Court held that the Implementation Procedures are "rules" as defined in Ala. Cod §41-22-3(9), which ADEM could not legally adopt without complying with the rulemaking provisions of the AAPA and the rulemaking provisions of the AEMA in Ala. Code §22-22A-8; the Court rejected the argument that because the EPA required the adoption of the particular forms and procedures in the Implementation Procedures, the Implementation Procedures are an exception to the definition of "rules," as explained by the Court in Blue Ridge, because while the Federal Antidegradation Policy does impose minimum requirements or, stated another way, maximum pollution levels, the federal policy does not, and the EPA did not, mandate specific policies, forms, methods, or procedures that Alabama must adopt; the Court distinguished this case from Blue Ridge)
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CSX Transp., Inc. v. Matweld, Inc.,

Nos. 1001700 & 1001701 (Ala. Mar. 1, 2002)
(product liability; indemnification and contribution; Florida law; third-party claim for indemnification and contribution under the Florida apparent-manufacturer's-liability doctrine; CSX Transportation, Inc. ("CSX"), is a railroad company that owns and maintains the track over which its trains run; CSX employees pack, or tamp, crushed stone under the tracks to keep the rails level; tampers -- hydraulic machines that operate much like a jackhammer -- are used to pack the stone; two CSX employees were injured (one in 1996 and one in 1998) in Florida using tampers purchased in 1990 from Matweld, Inc. and manufactured by a Danish company, Lifton A.S.; CSX settled with the employees, and its third-party claim against Matweld went to trial in Jefferson County Circuit Court; the trial court held that there was no evidence that CSX notified Matweld that there was any problem with the equipment before the injuries occurred, that the machines had reached their service limits and were worn out, and that neither the latch nor the bit on the machines was defective; the trial court also held that trial court found that Matweld could not be held liable for purposes of indemnifying CSX because the evidence at trial did not show that CSX was without fault or that Matweld did or failed to do something that resulted in the employees' injuries; the trial court further held that Matweld could not be found negligent in a products-liability action because (1) the product (the tamper) was not defective, but merely worn out through prolonged hard use, and (2) even if the cause of the accidents was a defect in the product caused by Matweld, Matweld had no knowledge of the alleged defect; HOLDING: the Supreme Court held that Florida's apparent-manufacturer's-liability doctrine did not apply to Matweld because Matweld was not an apparent manufacturer, that is, it was not "an assembler of a product which includes a component part manufactured by another who sells the completed product as its own" but was, instead, a seller of a product manufactured by another; the Court held that the trial court's findings of fact are supported by the evidence in the record and are not palpably wrong or  manifestly unjust; the Court affirmed the trial court's holding that Matweld has no liability for indemnity or contribution to CSX under Florida law)
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Mathis v. Harrell Co.,

No. 1001816 (Ala. Mar. 1, 2002) (plurality opinion with three Justices concurring, five Justices concurring in the result, and one Justice dissenting)
(product liability; negligence; Alabama's Extended Manufacturers' Liability Doctrine ("AEMLD"); Kenneth Mathis claimed that he was injured by a defectively designed piece of farm machinery; the case involves a piece of farm machinery called a Super Packer Cotton Module Builder ("Super Packer") used to pack cotton into a module or bundle; the trial court entered summary judgment in favor of the defendants and held that Mathis was guilty of contributory negligence because although there were prominently displayed signs warning the operator not to attempt to unlock the tramper cylinder latch while the tramper was in the raised position, Mathis attempted to do so using a steel bar which impaled Mathis's arm; HOLDING: the plurality opinion held that Mathis presented substantial evidence indicating that the Super Packer was, in fact, defective and that he did not appreciate the danger presented by the Super Packer; the plurality opinion held that defendant Brooks AG could not escape liability on the defense that it was merely the supplier of the Super Packer because it was "in the business" of selling items of the kind in question; the plurality opinion held that a jury question was presented as to whether Mathis's employer was negligent within the meaning of the Employer's Liability Act, and whether the employer's alleged negligence proximately caused Mathis's injuries and damages; the plurality opinion also held that a jury question was presented as to whether Mathis was contributorily negligent, within the meaning of the Employer's Liability Act; the plurality opinion held that a jury question was presented as to whether Mathis "negligently put himself in a dangerous situation, that he appreciated the danger or that he was in position to appreciate it, and that the appreciation of the danger would have been a conscious appreciation of it when the accident occurred," as the trial court found; the Court reversed the summary judgment for the defendants)
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Brannan & Guy, P.C. v. City of Montgomery,,

No. 1002092 (Ala. Mar. 1, 2002)
(dispute over legal fees; quantum meruit; authority to contract for the City; preservation of arguments and issues for appeal; the City's complaint alleged that the City had retained the defendants before April 2000 to perform legal services at a rate of $95 per hour for out-of-court work and $120 per hour for in-court work, that in April 2000 the defendants began submitting bills to the City reflecting an hourly rate of $175, and that the City did not discover that it had been overcharged by the defendants until approximately September 2000; the defendants claimed that the city attorney had agreed to the $175 rate; the trial court entered a summary judgment for the City and held that only the Mayor had the authority to set the rates for attorneys who were performing services for the City and for agents and employees of the City for whom the City was providing a legal defense and that the Mayor at no time approved, verbally or in writing, the defendants' hourly charge of $175 an hour; HOLDING: the Supreme Court held that the record did not reflect that the defendants had argued the city attorney had actual authority to agree to the rate change, so the defendants were precluded on appeal from asserting that argument; the Court rejected the defendants' quantum meruit argument, but stated that even if it accepted the defendants' argument that they are entitled to a recovery under a theory of quantum meruit, it would still, based on the record, conclude that the amounts of $90 and $120 per hour represented the reasonable value of the services rendered; the Court also noted that the trial court could have, on the record before it, determined that an express unilateral contract existed between the City and the defendants based upon the defendants' receipt of the letter setting the hourly rates the City would pay for legal services, which could be considered an express offer of payment in exchange for the performance of services, and that the defendants' subsequent performance of services constituted an acceptance, thereby precluding the quantum meruit argument because when an express contract exists, an argument based on a quantum meruit recovery in regard to an implied contract fails; the Court held that the defendants were precluded from arguing that a unilateral contract existed between the defendants and the City because they failed to raise this argument in the trial court; the Court rejected the defendants' assertion that they were justified in the belief that the city attorney had the apparent authority to accept the defendants' purported "offer" to perform legal services at an increased rate; the Court affirmed the judgment of the trial court)
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Ex parte LFI Pierce, Inc.,

No. 1010693 (Ala. Mar. 1, 2002)
(denying the petition for the writ of certiorari without opinion, but stating that the Court 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 February 22, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, FEBRUARY 22, 2002

 

Lloyd Noland Foundation, Inc. v. City of Fairfield Healthcare Auth.,

No. 1000889 (Ala. Feb. 22, 2002)
(certificate of need ("CON"); declaratory-judgment action by the City of Fairfield Healthcare Authority ("Fairfield") seeking a a judgment declaring that the statutes and rules applicable to CONs prohibited the issuance of CONs to one owning only an option to purchase hospital beds, and that the option of the Lloyd Noland Foundation, Inc. ("the Foundation") to repurchase certain beds under a "Stock Purchase Agreement" ("SPA") was void and unenforceable; the complaint also sought a temporary restraining order, enjoining SHPDA from issuing the CONs sought by the Foundation and from further considering the Foundation's CON applications; the trial court denied  Fairfield's request for a temporary restraining order; the Foundation filed a counterclaim against Fairfield alleging that the Fairfield had, through its execution of  an "Asset Sale Agreement" ("ASA"), expressly assumed the obligations of the contracts between Tenet HealthSystem Medical, Inc. ("Tenet") and the Foundation, namely, the obligations of the Lease Agreement, and of ¶ 15.4 of the SPA; the Foundation further alleged that Fairfield had breached its obligations by "engag[ing] in a plan or scheme to deprive [the Foundation] of its rights under the [ASA] and the [Lease Agreement]," including "the institution of this litigation," and the "attempt to intervene in the Certificate of Need proceeding pending before SHPDA"; SHPDA filed an "Answer, Counterclaim, Crossclaim and Request for Declaratory Relief"; thereafter, SHPDA issued a CON to Select Specialty Hospitals, Inc. ("Select"), which sought to lease and to operate 38 long-term-care hospital beds located at the facilities of Birmingham Baptist Medical Center-Montclair ("Baptist") and had been part of a contested CON hearing involving the Foundation; Select was never made a party to this action; the parties filed cross motions for summary judgment; the trial court granted Fairfield's motion, holding that the Foundation lacked standing to "file the applications seeking to reclassify and in part relocate acute-care hospital beds of which it was not the owner"; HOLDING: the Supreme Court held that in clear and unambiguous terms, both the Legislature and SHPDA have prohibited the acquisition of a "new institutional health service," or of "major medical equipment" before obtaining a CON and that, therefore, far from requiring the procedure Fairfield advocates, the applicable authority prohibits it; thus, the Court held that the Foundation had standing unilaterally to apply for the CONs in its own name, and the Court reversed the trial court's denial of the Foundation's motion for summary judgment on that issue; the Court held that no ground on which to consider parol evidence in this case and that because Fairfield assumed the obligations of Amendment Two of the SPA, Fairfield was contractually bound to, among other things, "cooperate with [the Foundation] in having the Option Beds relicensed, recertified or relocated for long term acute care purposes at the Hospital or at other sites," so that the Foundation could, following the issuance of the CONs, purchase up to 120 beds from Fairfield; thus, the Court held that Fairfield breached its obligations to cooperate as a matter of law by commencing this action and by attempting intervene in the contested case to oppose the Foundation's CON applications; the Court held as a matter of law that Fairfield assumed the obligations under the Lease Agreement and that the Lease Agreement was enforceable; the Court held, however, that there was no evidence of a breach of the Lease Agreement; the Court held that Select was a necessary party to the relief sought by the Foundation of a declaration that (1) SHPDA's decision to issue the March 3, 2000, CON to Select, while withholding CONs from the Foundation, was arbitrary, capricious and without reasonable justification, and (2) an order requiring SHPDA to issue the two CONs to the Foundation, or in the alternative, rescinding the CON issued to Select)
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Jones v. Johnson,

No. 1001117 (Ala. Feb. 22, 2002)
(dispute concerning the ownership and use of a strip of land; more specifically, this case concerns the right of Johnson to use and maintain a driveway that crosses over property owned by the Joneses; the trial court entered a judgment  holding that the Joneses owned the disputed strip in fee simple, but it also held that Johnson had acquired, and was entitled to, a permanent access easement over and across that portion of the strip where a concrete driveway is located; the trial court's order did not state by what method Johnson had obtained an easement across the strip of land; HOLDING:  the Supreme Court held that because Johnson's claims to the land do not fulfill the requirements for an easement by statutory adverse possession or the requirements for a prescriptive easement, the trial court abused its discretion in finding that Johnson had obtained a permanent easement across Garrett's land; therefore, the Court reversed the trial court's judgment)
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Cincinnati Ins. Co. v. Tuscaloosa County Parking & Transit Auth.,

No. 1001329 (Ala. Feb. 22, 2002)
(declaratory-judgment action involving the interpretation of an insurance policy; the plaintiff, Tuscaloosa County Parking and Transit Authority (hereinafter "the Authority"), is a public organization created by the Legislature to receive federal funding for operating a public transportation agency in Tuscaloosa and is governed by a board of directors (hereinafter "the Board"), the members of which serve on a volunteer basis; Cecil Rhodes and Jackie Headley were employed by the Authority as the executive director and assistant director, respectively, and over the four years they were employed by the Authority, they, through different schemes, embezzled funds totaling over $300,000; one of the schemes involved including additional funds in their paychecks; during the time Rhodes and Headley were employed by the Authority and embezzling funds from it, the Authority was insured under a fidelity insurance policy issued by Cincinnati Insurance Company that provided coverage for losses resulting from employee dishonesty; the policy defined "employee dishonesty" as "dishonest acts committed by an identified 'employee' acting alone or in collusion with other persons, except you or a partner, with the manifest intent to: (1)  Cause you to sustain loss; and also (2) Obtain financial benefit (other than salaries, commissions, fees, bonuses, promotions, awards, profit sharing, pensions or other employee benefits earned in the normal course of employment) for: (a)  the 'employee'; or (b) Any person or organization intended by the 'employee' to  receive that benefit"; Cincinnati paid a portion of the claim for the losses the Authority suffered from Rhodes and Headley's dishonest acts; however, Cincinnati refused to pay those funds  the employees received under the guise of salaries, alleging that the definition of "employee dishonesty" excluded from coverage any salaries; the trial court granted the Authority's summary-judgment motion, holding that the loss in the form of sums taken in excess of salaries was covered under the insurance policy, and awarded the Authority $149,544.15; HOLDING:  the Supreme Court held that the language of the provision at issue is not ambiguous and that the embezzled funds were not salaries; the Court held that the trial judge's interpretation of the policy is correct and that the summary judgment was properly entered in favor of the Authority)
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Ex parte Dozier,

No. 1001448 (Ala. Feb. 22, 2002)
(criminal; petition for a writ of mandamus directing the Calhoun Circuit Court to allow the petitioner to proceed in forma pauperis on a petition he filed pursuant to Rule 32, Ala.R.Crim.P.; Dozier filed a Rule 32 petition in the Calhoun Circuit Court, challenging his 1993 robbery conviction; Dozier sought leave to waive the docket fee and requested that he be allowed to proceed on his petition in forma pauperis; Dozier submitted a certificate executed by an authorized officer of the correctional facility in which he was incarcerated, which stated that Dozier had a zero balance in his prison account at the time he filed his Rule 32 petition; the circuit court issued an order denying Dozier's request to be allowed to proceed in forma pauperis, not based on Dozier's financial status, but rather it denied the request based on its findings that Dozier's Rule 32 petition was successive, that it contained claims that could have been, but were not, raised at trial and on direct appeal, and that no material issue of fact or law existed that entitled Dozier to relief under Rule 32; HOLDING: the Supreme Court held that the circuit court abused its discretion in denying the petitioners request, and it therefore granted the petition and issued the writ)
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Ex parte Casey,

No. 1001555 (Ala. Feb. 22, 2002)
(criminal; Habitual Felony Offender Act; pardon; Casey was convicted of first-degree robbery and was sentenced as a habitual offender to life imprisonment without parole; his sentence was enhanced upon application of the Habitual Felony Offender Act because he had six prior convictions for forgery; Casey argued that the Alabama Board of Pardons and Paroles had granted him a "full and unconditional pardon" as to his six forgery convictions, and he argued that that pardon prevented the use of those convictions for sentence-enhancement purposes under the Habitual Felony Offender Act;  HOLDING: the Supreme Court held that convictions as to which a full pardon has been given cannot be used for sentence-enhancement purposes under the Habitual Felony Offender Act)
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Ex parte Scott Bridge Co.,

No. 1001558 (Ala. Feb. 22, 2002)
(venue; workers' compensation; retaliatory-discharge claim; Tim Bond worked for Scott Bridge Company, a bridge construction company with its principal office in Lee County; Bond filed his claim in Chambers County, and Scott Bridge moved for a change of venue to Lee County; the trial judge denied the motion to transfer; HOLDING:  the Supreme Court held that Scott Bridge's spending of more than $50,000 per year in Chambers County on materials necessary to bridge construction is sufficient to constitute "doing business" in Chambers County; the Court held that the the trial court did not abuse its discretion in denying the motion for a change of venue from Chambers County to Lee County, because Scott Bridge did not carry its burden of proving that venue in Chambers County was improper)
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Vinson Guard Serv., Inc. v. Retirement Systems of Alabama,

No. 1001561 (Ala. Feb. 22, 2002)
(action alleging violations of the competitive bid law; the Retirement Systems of Alabama ("RSA") posted "Invitation to Bid No. 00-012," seeking bids for "Security Guard Services" ("the invitation"); the invitation solicited bids for the provision of security services at properties owned by RSA which were were described on a form styled "Schedule A"; Schedule A included blanks, requesting from the bidders a separate bid for "monthly hours," a "monthly charge," and an "annual charge by facility," for each property or location listed on the schedule, and also included a blank requesting a bid for the "total annual charge for all facilities"; although it illustrated guard schedules for each location for which RSA required security services, Schedule A did not contain the total annual hours for which security services were to be provided; none of the candidates who responded to the invitation calculated the same number of total annual hours; initially, RSA notified Murray Guard, Inc. ("Murray") that it would be awarded the contract, but after Vinson Guard Service, Inc. ("Vinson") requested a review of RSA's decision and objected to the proposed award, RSA suspended its decision; subsequently, RSA proposed to reject all the bids and to rebid the contract, on the ground that the invitation contained "multiple errors" and "bad information"; Vinson filed a "Complaint for Declaratory and Injunctive Relief" against RSA alleging that Vinson was the "lowest responsible bidder in compliance with the complete terms and specifications of the [invitation], so that the contract should be awarded to [it]"; Vinson sought a judgment enjoining RSA from rebidding the contract, declaring Vinson the winning bidder, and compelling RSA to award the contract to Vinson; the trial court entered a judgment denying Vinson's requested relief; HOLDING:  the Supreme Court held that the Alabama Competitive Bid Law does not authorize an order compelling RSA to award Vinson the contract; the Court held that it follows that Vinson was not entitled to an injunction prohibiting RSA from rebidding; the Court affirmed the judgment of the trial court)
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Ex parte Moffitt,

No. 1001739 (Ala. Feb. 22, 2002)
(criminal; unlawful possession of a controlled substance (cocaine); search and seizure; Officer Watkins was sent to the Johnson Homes apartment complex, where gunshots were reported to have been fired, but there is no evidence to indicate that he was given any information concerning the identity of the reported shooter;  when he arrived at the apartment complex, the officer saw four people, who appeared to be arguing, standing behind the apartments; the people yelled for the officer to stop, and when the officer stopped, Moffitt, who was standing in the group, began to run; as Moffitt ran from the group, a male in the group told the officer that Moffitt had a gun, but there is no evidence indicating that anyone told the officer that Moffitt had fired a gun; the officer then ran after Moffitt, following him into an apartment; when asked why he entered the apartment, the officer stated "[he] figured ... [Moffitt] would probably be pretty dangerous if he was out there shooting"; while searching the apartment for Moffitt, the officer saw in plain view the cocaine that Moffitt sought to suppress; HOLDING:  the Supreme Court held that when the officer entered the apartment, the facts available to him were not sufficient to support a reasonable belief that Moffitt had committed any crime; therefore, the Court held that the trial court erred in denying Moffitt's motion to suppress the cocaine evidence; the Court reversed Moffitt's conviction and remanded)
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Donoghue v. American Nat'l Ins. Co.,

No. 1001926 (Ala. Feb. 22, 2002) (opinion withdrawn on application for rehearing)
(ripeness; George Donoghue III purchased, through agent Harold Knotts Jr., a universal life insurance policy from American National Insurance Company ("American National"); Donoghue filed this action in the Mobile County Circuit Court against American National and Knotts, alleging fraud, breach of contract, negligence, and conspiracy, all based on the alleged misrepresentation by American National and Knotts that the "universal life insurance policy would meet his stated needs in that monies would be available at retirement"; American National filed a motion to dismiss (which Knotts adopted) pursuant to Ala.R.Civ.P. 12(b)(6), arguing, among other things, that Donoghue's claims were not ripe for adjudication and citing in support of its argument this Court's decisions in Williamson v. Indianapolis Life Ins. Co., 741 So.2d 1057 (Ala. 1999), and Stringfellow v. State Farm Life Ins. Co., 743 So.2d 439 (Ala. 1999); the trial court granted the motion to dismiss, holding that Donoghue's claims were not ripe; HOLDING: the Supreme Court held that because the only benefit Donoghue alleges he is due (from which an injury might arise if that benefit is denied) is that he would receive $125,000 when he reaches age 65,  the mere payment of money from American National to Donoghue is essentially all that has been promised and is all that can be expected, and American National could perform that alleged obligation in any number of ways when Donoghue turns 65; thus, the Court held that Donoghue's claims are not ripe for adjudication and that the trial court appropriately dismissed the complaint)
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--(the substituted opinion released on June 14, 2002, on rehearing in Donoghue is also available at the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

Ex parte City of Haleyville,

No. 1001960 (Ala. Feb. 22, 2002)
(venue; Kimberly Linne Myers sued the City of Haleyville ("the City") in the Marion County Circuit Court as the result of a fall she suffered in the area of the Downtown Mall of the City; the City moved to transfer the action to Winston County, claiming that venue is proper as to an action against the City only in Winston County, where the seat of municipal government is located;  the Downtown Mall, where the alleged injury took place, is located in Winston County, but the City straddles both Marion County and Winston County; the trial court denied the motion to transfer; HOLDING:  the Supreme Court held that Ala. Code §6-3-11 now controls the venue for actions against municipalities and that because the statute provides that venue is appropriate in "the county within which the municipality is located," if the municipality is physically located in two or more counties, venue is appropriate in all such counties; the Court held that the trial court properly denied the motion to transfer)
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Ex parte F.P.,

No. 1002146 (Ala. Feb. 22, 2002)
(termination of parental rights; F.P., the biological father ("the father"), and R.P., the paternal grandmother (sometimes hereinafter called "the grandmother"), appealed from a judgment entered by the trial court in favor of J.K.M. and S.L.M. ("the adoptive parents"); the child, a boy, was born on July 6, 1999; the adoptive parents took the child home from the hospital; the biological parents of the minor child were both 17 years old when the child was born; the father petitioned the juvenile court on July 1, 1999, for a determination of a "father and child relationship"; the father said that he petitioned the court before the child was born because he thought the child was born on June 29, 1999; the mother testified that after she became pregnant, her mother told her she had to leave home and that she and the father "stopped having contact," but that she maintained contact with his mother (i.e., the grandmother); the father, who has never seen the child, testified that he was presently attending college and was working part-time, that he spends weekends at his mother's home, that if he obtains custody of the child his mother would keep the child during the week while he is at school, that he had never consented to the adoption, that the mother had told him she was pressured into consenting to the adoption because the child is biracial, and that he wants the child to be with his biological family; the father and the grandmother tried to see the baby shortly after it was born, but were told they could not see the child without the mother's permission; the father testified that he did not provide support for the mother during her pregnancy because, he says, she did not ask for it; the father testified that he has not provided any support to the adoptive parents because they have not requested it; the father made one attempt to contact the adoptive parents by telephone before the hearing in this case, but he reached a relative of the adoptive parents who was babysitting and was told he could not see the child; the father has another child by his current 16-year-old girlfriend, and he testified that he provides financial and emotional support for that mother and child; the trial court held that the father had abandoned the child and that, therefore, he had impliedly consented to the adoption of the child; the Court of Civil Appeals affirmed; HOLDING: the Supreme Court held that evidence does not support a finding that the father gave implied consent to the adoption or that his actions amounted to an abandonment of the child; the Court held that the evidence supports a finding that the father has vigilantly pursued his legal rights to establish a relationship with the child and has sought legal and physical custody of the child)
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Opinions Released February 15, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, FEBRUARY 15, 2002

 

Ex parte Kampis,

No. 1000099 (Ala. Feb. 15, 2002) (on application for rehearing; withdrawing and substituting opinion released Sept. 21, 2001, on denial of rehearing)
(arbitration; interstate commerce; residential construction contract; the Supreme Court granted the writ of mandamus and ordered the trial court to vacate its order compelling arbitration on the ground that the defendant failed to establish the interstate commerce criterion for the application of the Federal Arbitration Act ("FAA") because the defendant did not state in his affidavit that he purchased any of the materials or equipment outside the State of Alabama and because the plaintiff did not obtain financing outside the State of Alabama)
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--(the original opinion released on Sept. 21, 2001, in Kampis is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

Bank of Brewton, Inc. v. International Fidelity Ins. Co.,

Nos. 1000387 & 1000855 (Ala. Feb. 15, 2002)
(dispute over performance and payment bond on a construction contract; surety; indemnity; the Bank of Brewton ("the Bank") hired Akers Group International, Inc. ("Akers"), to renovate the Bank's main office in Brewton, Alabama; Akers enlisted International Fidelity Insurance Company ("IFIC") to issue a performance and payment bond on its behalf; the language in the bond was the standard language used by the American Institute of Architects in performance bonds; the Bank president, Jerry M. Kelly, Sr., wrote to Akers and IFIC that the Bank was considering declaring a contractor default because he believed that Akers had failed to comply with certain provisions of the project management agreement; in the letter, Kelley called a meeting of the Bank, Akers, and IFIC, within 15 days, as provided in paragraph 3.1 of the performance bond; the meeting among representatives of the Bank, Akers, and Tatum Bonding & Insurance, Inc. (as a representative of IFIC), took place on June 25, 1992; in August 1992, the Bank began withholding payments from Akers; in October 1992, the Bank wrote IFIC that it still believed that it was not being provided with the quality of work and material and the furnishings specified in the construction documents and that the contractor was in default; however, on November 11, 1992, the Bank allowed the project architect to certify that the work under the contract was substantially complete; on November 15, 1996, the Bank sued Akers, G.A. West & Co., Inc. (an Alabama company that was one of Akers's subcontractors), and IFIC in the Escambia Circuit Court, seeking damages for breach of contract; the Escambia Circuit Court granted IFIC's motion for a summary judgment and certified that judgment as a final appealable judgment pursuant to Rule 54(b), Ala.R.Civ.P.; the trial court also entered a partial summary judgment in favor of the Bank as to Akers's punitive-damages and attorney-fee claim, the libel and slander claims, and the conversion claim, and entered a summary judgment in favor of Kelly on Akers's claim of conversion; HOLDING: the Supreme Court held that the Bank never terminated Akers's right to finish the project, thereby triggering IFIC's responsibility as surety to act to complete the project; the Court held that the Bank did not substantially comply with the performance bond and that, therefore, the trial court did not err in entering a summary judgment for IFIC; the Court held that because the materials in support of the Bank's and Kelly's motion for summary judgment less than 10 days before the scheduled hearing, it was an abuse of discretion for the trial court to enter a partial summary judgment for the Bank and a summary judgment for Kelly; the Court affirmed the summary judgment for IFIC and reversed the partial summary judgment against Akers and in favor of the Bank and Kelly)
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Birmingham Hockey Club, Inc. v. National Council of Compensation Ins., Inc.,

No. 1000658 (Ala. Feb. 15, 2002)
(dispute over workers' compensation insurance premiums; doctrine of primary jurisdiction; the Birmingham Hockey Club, Inc., d/b/a Birmingham Bulls ("BHC"), employed primarily hockey players; because of the hockey players' relatively high risk for future workers' compensation claims, BHC was not able to purchase insurance on the voluntary market, and it sought insurance coverage in the residual market and was assigned Continental Casualty Insurance Company as its servicing carrier from 1992-94, and assigned a new servicing carrier, Liberty Mutual, in 1994; Liberty Mutual was a member of the National Workers Compensation Reinsurance Pool ("National Pool"), along with other service carriers Hartford Accident & Insurance Company ("Hartford"), Employers Insurance of Wausau ("Wausau"), and Travelers Indemnity Company ("Travelers"); National Council of Compensation Insurance, Inc. ("NCCI") is a licenced rating organization in Alabama and was the pool administrator for National Pool; NCCI is responsible for filing with the Alabama Department of Insurance on behalf of National Pool and its servicing carriers the proposed rates used to determine premiums, and the Department then either approves or rejects the proposed rates; Liberty Mutual quoted BHC an estimated annual premium of $78,754 to provide workers' compensation and employers' liability insurance for one year, and BHC paid the estimated premium; at the end of the year, Liberty Mutual audited BHC's payroll expenses, determined that BHC had underreported the amount of remuneration it had paid its employees by neglecting to report as remuneration payments made to hockey players in the form of per diem living allowances, travel expenses, and payments made by BHC directly to apartment complexes for apartments for its employees; Liberty Mutual adjusted its premium to reflect the actual remuneration paid to the players, and this adjustment caused the premium to increase by $85,220; BHC refused to pay the increase in the premium; BHC sued Liberty Mutual and others alleging fraud, deceit, suppression, and negligence and making various class-action averments claiming that the brokers and their employer had represented to BHC that BHC was purchasing a workers' compensation policy and an employers' liability policy from Liberty Mutual, that the employers' liability policy was unnecessary because, it said, the policy provided no protection beyond what they received under the workers' compensation policy, that NCCI had arbitrarily increased rates for workers' compensation and employers' liability policies, and that Liberty Mutual wrongly charged the increased rates; BHC made no attempts to bring these allegations before the insurance commissioner before it filed this action; Liberty Mutual filed a counterclaim against BHC for the unpaid balance on the insurance premium; the trial court issued an order dismissing BHC's claims against all defendants except Liberty Mutual and dismissed all of BHC's class-action claims; Liberty Mutual moved to dismiss its counterclaim against BHC, stating as its reason that BHC was insolvent and that it was no longer possible to collect the unpaid portion of the premium from BHC; the trial court granted Liberty Mutual's motion to voluntarily dismiss its claim and then dismissed BHC's claims against Liberty Mutual; HOLDING:  the Supreme Court held BHC waived the issue of whether the trial court erred in applying a two-year statute of limitations to its unjust enrichment claim instead of a six-year statute of limitation because BHC failed to raise it in the trial court; the Court held that because BHC's claim as stated in its complaint is cognizable in the first instance in the circuit court, the claim is barred by neither the doctrine of exclusive jurisdiction nor by the filed-rate doctrine, but that the issues that have developed in the litigation --  issues whether BHC was affected by the altered DERF, whether the DERF is a bureau-loss cost or a rate filing, whether the insurance commissioner approved the 19% increase in premium rates after conducting a hearing is a matter concerning the operations of the Department of Insurance, and whether the 19% increase was reflected in BHC's premium rates are questions that require specialized knowledge to answer -- clearly come within the jurisdiction of the Department of Insurance and should have been addressed in the first instance by the commissioner; the Court held that an administrative determination by the Department of Insurance of the issues now before the Court will ensure uniformity, will assist this Court, and may alleviate entirely the need for resort to judicial relief in this case; the Court held that because BHC's claims against NCCI were properly  brought in the circuit court and because issues have arisen requiring resolution by the insurance commissioner, it would apply the doctrine of primary jurisdiction; the Court held that because a dismissal might unfairly disadvantage BHC, it was vacating the trial court's judgment of dismissal as it pertains to BHC's claims that NCCI wrongly increased premium rates in 1993 and 1994 above those approved by the insurance commissioner and remanding this case to the trial court so that it may enter a stay pending the resolution of issues discussed in this portion of the opinion insofar as they pertain to NCCI)
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Lincoln Log Home Enterprises, Inc. v. Autrey,

No. 1000787 (Ala. Feb. 15, 2002)
(dispute over construction contract; agency; Tony Autrey contracted with Lincoln Log Homes of the South ("Lincoln") to build a log house for Autrey; Lincoln purchases log-home kits from Lincoln Log Home Enterprises, Inc. ("Enterprises"), a North Carolina company, and then hires a contractor to construct the log house on the customer's land and in accordance with Enterprises' instruction manuals; before the house was completed, Autrey had the house inspected; the inspectors pronounced it substandard, and Autrey ordered Lincoln to stop work on the house; Autrey had made a partial payment on the house prior to the inspection, and when he refused to pay the balance of the contract price, Lincoln sued, alleging breach of contract and conversion; Autrey counterclaimed against both Lincoln and Enterprises, alleging breach of contract, breach of implied warranty, negligence, and fraud; the jury ruled against Lincoln and Enterprises on all counts and awarded Autrey compensatory damages of $505,000 and punitive damages of $600,000l; the trial court issued a judgment on the jury verdict and Enterprises alone appeals; HOLDING:  the Supreme Court held that Autrey did not present substantial evidence that Lincoln constructed Autrey's log house as Enterprises' agent and that fair-minded persons could not reasonably infer the existence of an agency relationship extending to the construction of the log-kit houses; therefore, the Court held that Enterprises' motion for a judgment as a matter of law on the ground that it had no agency relationship with Lincoln should have been granted;   the Court reversed the trial court's judgment and remanded the case)
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Bay Lines, Inc. v. Stoughton Trailers, Inc.,

No. 1001163 (Ala. Feb. 15, 2002)
(claims of breach of express warranty, breach of implied warranty, negligent or wanton manufacture, Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), breach of a third-party contract, and revocation of acceptance, all arising out of leases and purchases of freight trailers; Bay Lines, Inc., a trucking company, leased and then subsequently purchased a number of freight trailers from a dealer who sold trailers built by Stoughton Trailers, Inc.; Stoughton built each trailer using fiberglass reinforced polycore side panels manufactured by Crane Co., through Crane's Dyrotech Industries, Inc., division, which was doing business as Cor Tec Company; Bay Lines alleged that in late 1998 the fiberglass panels on the trailers delaminated, and that it notified Stoughton of the failure at that time; Bay Lines sued Stoughton and Crane in January 2000; Stoughton filed a Rule 12(c), Ala.R.Civ.P., motion for a judgment on the pleadings, which the trial court granted; Crane moved to dismiss under Rule 12(b)(6), Ala. R. Civ. P., alleging that Bay Lines had failed to state a claim on which relief could be granted, and the trial court granted Crane's motion; Bay Lines amended its complaint, again asserting claims against Crane and Stoughton, and also asserting claims against Dyrotech; Stoughton again moved under Rule 12(c), Ala.R.Civ.P., for a judgment on the pleadings as to all claims asserted against it in the amended complaint and that motion was granted; Crane moved to strike the claims against it asserted in the amended complaint on the ground that comparable claims had already been dismissed, and because, it argued,  the amended complaint was time-barred; Dyrotech moved to dismiss the claims asserted against it in the amended complaint under Rule 12(b)(6), Ala.R.Civ.P.; the trial court granted Crane's motion to strike and Dyrotech's motion to dismiss, and dismissed the action in its entirety as to both Crane and Dyrotech; HOLDING:  the Supreme Court held that because Crane undisputedly issued the warranty to Stoughton, the trial court correctly determined that under the plain meaning of the term "original equipment purchaser," Stoughton -- not Bay Lines -- was the original equipment purchaser of the Clad-Tuff panels and that Bay Lines, therefore, cannot assert a claim under Crane's Clad-Tuff warranty; the Court held that for similar reasons Bay Lines cannot rely on the invoice warranty as the basis for its claims against Crane; the Court held that because one cannot recover in tort for negligent manufacture of a product where the only injury is to the product itself, trial court's dismissal of all the tort claims asserted against Stoughton, Crane, and Dyrotech was proper; the Court held that it was proper to to dismiss the third-party breach-of-contract claims because claims were filed more than six years after the dates of the completion of the contracts and were therefore time-barred; the Court affirmed the trial court)
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Baker v. J&J Customs, Inc.,

No. 1001302 (Ala. Feb. 15, 2002)
(affirmed without opinion; opinion concurring in part and dissenting in part by Justice Johnstone)
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Ex parte Harris,

No. 1001788 (Ala. Feb. 15, 2002)
(action for contribution among co-guarantors of a loan; waiver; integration rule; Leroy Harris, Esther E. Harris, Phillip W. Lovell, Leah C. Lovell ("the Harris-Lovell group") and Steven Shelton and Julie Stapp Shelton ("the Sheltons") were coguarantors of several loans owed by The Milling Company Enterprises, Inc. ("the Milling Company") to First Commercial Bank ("the Bank"); the Harris-Lovell group sued  the Sheltons, seeking contribution for the payment of the debt owed by the Milling Company and guaranteed by the Harris-Lovell group and the Sheltons; the Sheltons filed a motion for a summary judgment, arguing that the Harris-Lovell group had waived their right to contribution; the trial court entered a summary judgment in favor of the Sheltons, and the Court of Civil Appeals affirmed the summary judgment; the Supreme Court granted certiorari review to determine: 1) whether the right of contribution between guarantors may be waived by separate agreements between the lender and the principal debtor, in the absence of a single agreement to which all guarantors are signatories, by application of the integration rule, 2) if the integration rule does apply, whether the Court of Civil Appeals erred in rejecting antecedent oral understandings as sufficient to establish an intent contrary to an intent to apply the rule of integration, and 3) whether the waiver provision in one of the guaranty agreements was ambiguous; HOLDING:  the Supreme Court held that the integration rule can operate so as to bind coguarantors pursuant to separately executed agreements dealing with their rights of contribution, that on the facts here presented parol evidence is necessary to determine whether the integration rule apples, and that the waiver provision in the guaranty agreements is ambiguous; the Court reversed and remanded)
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Morrow v. Gibson,

No. 1001837 (Ala. Feb. 15, 2002)
(Alabama Litigation Accountability Act; Janet Diane Averette ("Diane") was represented by Dan M. Gibson, a Tuscaloosa attorney, in a wrongful-death action based on the death of her husband, Kenny, in an automobile accident in 1984; in December 1984, Kenny's mother, Irene, and Diane entered into an agreement pursuant to which Irene agreed to dismiss her petition for letters of administration – thus clearing the way for Diane to be appointed administratrix of Kenny's estate – in exchange for Diane's agreement that "all sums recovered as a result of any litigation or settlement of [a wrongful-death action filed as a result of Kenny's death], less and except reasonable expenses, shall be placed in a trust for the use and benefit of [Kenny and Diane's 4-year-old daughter] April Michelle Averette"; the wrongful-death action was settled in 1987 in which the defendant, Allstate, agreed to pay an initial lump sum of $125,000 and agreed to make structured payments until December 1, 2012; Diane made an initial deposit of $50,000 into the trust, but made no other deposits; April and Irene maintain that they never learned of the settlement of the wrongful-death action until December 18, 1997, when April was 18 years old; around September 1, 1998, April and Irene discovered that Diane had failed to honor her agreement with Irene and that she had not deposited into the trust the balance of the initial payment, after attorney fees and expenses had been deducted, or any subsequently received structured-settlement proceeds payable to her in her individual capacity; April and Irene retained an attorney, Mark D. Morrow, in an effort to recover the missing settlement proceeds; Morrow, without requesting an accounting or consulting another attorney, filed an action on behalf of April and Irene against Gibson, Diane, and Allstate Insurance Company, which was responsible for making the settlement payments; Gibson moved for dismissal of the action against him, arguing that it is barred by the statute of limitations under the Alabama Legal Services Liability Act; the trial court granted the motion to dismiss, April and Irene appealed, and the Supreme Court affirmed, without an opinion; after the trial court's dismissal, Gibson filed a motion for relief pursuant to the Alabama Litigation Accountability Act ("ALAA"); after the Supreme Court affirmed the dismissal of the action against Gibson, the trial court entered a judgment for Gibson in the amount of $7,000 against Morrow; HOLDING: the Supreme Court held that the trial court's failure to use the phrase "without substantial justification" is not in and of itself error, and that by making findings as to each applicable factor and assigning a basis for its conclusion, followed by a specific reason (e.g., "Morrow should have known that the two-year statute of limitations would preclude the claims"), the trial court has furnished this Court ample information upon which to review its order; the Court noted that no case before this action has specifically dealt with the question whether an action filed against an attorney by a nonclient and arising out of that attorney's rendition of legal services to a third party was subject to the ALSLA; the Court noted that Morrow must have been more than "simply legally incorrect" to justify an award of attorney fees pursuant to the ALAA; the Court concluded that upholding an award of attorney fees pursuant to the ALSLA in this case impermissibly crosses the line between discouraging groundless lawsuits and chilling attorney creativity in making good-faith arguments; the Court held that the award of attorney fees is therefore due to be reversed)
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Ex parte Majors,

No. 1001965 (Ala. Feb. 15, 2002)
(arbitration; forged signature; fraud; the plaintiff, Major, asserts that he did not sign documents relating to a 1999 promissory note, including the note itself, and he further asserts that if he did sign certain documents relating to a 1998 home-equity line of credit, he did so only through his wife's misrepresenting them as being mere credit applications; the trial court entered an order compelling arbitration; HOLDING: the Supreme Court said that it cannot determine from the order entered by the trial court if it made any initial findings as to whether the underlying contracts were valid or whether Majors's claims were arbitrable; the Court concluded that the trial court should have made specific findings of fact as to whether the plaintiff's purported signatures appearing on the December 10, 1999, promissory-note documents were forgeries, because that is an issue to be determined by the trial court, not by an arbitrator; the Court held that in regard to Majors's claim that he was fraudulently induced to sign certain documents relating to the home-equity-line-of-credit transaction, that claim is more appropriately treated as a claim of fraud in the factum; the Court concluded that Majors has a clear legal right for the trial court (1) to make findings as to whether the December 10, 1999, promissory-note documents are valid (including whether his signature was forged to certain of those documents, as he contends) and whether this claim is arbitrable, and (2) to make findings as to whether Majors has proven by substantial evidence that he reasonably relied on his wife's alleged misrepresentations that certain documents he signed in relation to the April 13, 1998, home-equity-line-of-credit transaction were only credit applications and were signed without his knowing their true nature or contents, before it might properly order these claims to arbitration; therefore, the Court granted the petition for writ of mandamus and ordered the trial court to vacate its order granting the defendants' motion to compel arbitration)
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Ex parte J.F.C.,

No. 1002039 (Ala. Feb. 15, 2002)
(criminal; criminal surveillance; Baldwin County Deputy Sheriff Jimmy Milton was serving as an off-duty 'courtesy officer' at Lake Forest Apartments, in Daphne when, sometime after 10:00p.m., while securing the grounds for the night, Milton saw J.F.C. and another male crouched or 'stooped' below the window of a ground-floor apartment in building 13 of the apartment complex, appearing to peer into the window; when Milton identified himself as a law enforcement officer and instructed the two men to stand up and turn around, they fled in different directions; Milton was familar with J.F.C., who lived at the apartments, and recognized him; Milton testified that the apartment where he saw J.F.C. peering into the window was occupied at the time of the incident, but he acknowledged that he did not knock on the door of the apartment after the incident to see if anyone was in the apartment at that time; J.F.C. was convicted in the Daphne Municipal Court of criminal surveillance, a violation of Daphne City Ordinance No. 1987-8, adopting Ala. Code §13A-11-32; HOLDING:  the Supreme Court held that because there was no evidence that anyone was in the apartment when J.F.C. peered inside and because "surveillance" is defined in Ala. Code §3A-11-30(3) as the "[s]ecret observation of the activities of another person for the purpose of spying upon and invading the privacy of the person observed," the evidence was not sufficient to support J.F.C.'s conviction for criminal surveillance; however, the Court remanded the case to the Court of Criminal Appeals to determine whether J.F.C. should be adjudicated guilty of attempted criminal surveillance)
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Ex parte H.H.,

No. 1002045 (Ala. Feb. 15, 2002)
(child custody; custody dispute between a heterosexual father and a homosexual mother; the mother and father were divorced in November 1992 in California, and they were awarded joint legal custody of their three minor children, with the mother receiving primary physical custody; in 1996, after the mother had begun a homosexual relationship, she petitioned a California court for a custody modification, asking that the father, who had since moved to Alabama, be awarded physical custody of the children; the California court granted the mother's petition, and the children moved to Alabama; in February 1999, the mother filed in a California court another petition to modify custody, requesting that physical custody of the children be returned to her, but the father filed a complaint in the Circuit Court of Jefferson County, Alabama, requesting that the case be transferred to Alabama; the Jefferson Circuit Court transferred the case and jurisdiction was vested in Alabama, the current home state of all three children; the children were 13, 15, and 16 years old at the time of the hearing; the trial court entered an order denying the mother's request for a modification of custody; the trial court found that the mother had failed to prove a material change in circumstances or otherwise to meet the requirements of Ex parte McLendon, 455 So.2d 863, 865 (Ala. 1984); the Court of Civil Appeals reversed the judgment of the trial court, holding that the mother had presented substantial evidence indicating that a change in custody would materially promote the children's best interest and welfare, stated that the father's disciplinary actions amounted to physical abuse, stated that the mother could provide a better home because she was now sober, and stated that there was no evidence indicating her homosexual relationship would have a detrimental effect on the well-being of the children; HOLDING:  the Supreme Court held that the Court of Civil Appeals impermissibly reweighed the evidence in this case; the Court noted that while there was some testimony, standing alone, that might suggest abuse, this evidence was disputed at trial and that the trial judge, who was in a better position to evaluate the credibility of the testimony and who observed the demeanor of the witnesses, found that, although the father's disciplinary actions may occasionally be excessive, no abuse had occurred; the Court held that the Court of Civil Appeals adopted the mother's arguments without acknowledging the existence of contradictory testimony that supported the trial court's holding; the Court reversed the Court of Civil Appeals) (NOTE: Chief Justice Moore wrote a special concurring opinion more than 30 pages long supporting his position that that the homosexual conduct of a parent –– conduct involving a sexual relationship between two persons of the same gender –– creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others)
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Ex parte Jackson,

No. 1981723 (Ala. Feb. 15, 2002) (on return to remand)
(criminal; capital murder; the defendant, Jackson, contends that the trial court erred in denying his motion to suppress a statement he made to a law-enforcement officer because, he says, the officer tricked him into making the statement; the case had been remanded for the trial court to conduct a hearing outside the presence of the jury to determine the admissibility of Jackson's inculpatory statement; the trial court held that the statement was voluntarily made and was admissible because, while the police officer made misrepresentations to the defendant concerning the existance of fingerprints on a cup, the deception or misrepresentation was only used in order to establish whether or not a relationship existed between the defendant and codefendants and did not lead to a confession to the actual crime; HOLDING:  the Supreme Court held that the State met its burden in proving that Jackson voluntarily and knowingly waived his Miranda rights and that he made his statement voluntarily; the Court also held that the trial court did not err in granting the State's motion in limine which prevented Jackson from presenting evidence that the motive for the murder was retaliation for a drug deal that had gone "bad," not robbery as the State alleged; the Court also held that the trial court did not err in overriding the jury recommendation of life imprisonment without the possibility of parole, which was unanimous, and sentencing Jackson to death)
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--(the original opinion released on May 18, 2001, in Jackson is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--

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Opinions Released February 8, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, FEBRUARY 8, 2002

 

Ex parte Punturo,

No. 1000115 (Ala. Feb. 8, 2002)
(subject-matter jurisdiction; domestic relations; proceedings in the courts of different states; the father and the mother were divorced in 1993 by the Circuit Court of the County of Grand Traverse, Michigan; the court awarded the parties joint custody of the two children, but awarded the mother primary physical custody of the children and awarded the father reasonable visitation; the Michigan court expressly "retain[ed] jurisdiction over the parties of this action until the minor children reach the age of 18 years, or graduate from high school, whichever shall later occur"; in January 1999, in the Circuit Court of the County of Grand Traverse, Michigan, the father requested "a review of the parenting time; on January 19, 1999, the mother petitioned the Tuscaloosa County, Alabama, Circuit Court to modify the Michigan divorce judgment by, among other things, increasing the father's child support obligation and ordering  the father to contribute to the children's future college expenses; on February 2, 1999, the Circuit Court of the County of Grand Traverse "conducted a conference concerning the review o[f] parenting time" with the mother responded in writing and neither appearing in person; in an order issued on February 16, 1999, the Tuscaloosa County Circuit Court held that Alabama was the home state of the children and that, therefore, the Tuscaloosa County Circuit Court had the power to modify the Michigan divorce judgment; on February 22, 1999, the Michigan judge sent the Alabama judge a letter stating that the Michigan judge had refused to dismiss the Michigan action "based on our long-standing jurisdiction and our parenting time review being in progress when the motion was filed in your court"; on February 25, 1999, the father, a resident of Michigan, specially appeared in the Alabama action by a motion to dismiss the mother's petition to modify on grounds that the Alabama court lacked subject-matter jurisdiction and lacked personal jurisdiction over him; on February 25, 1999, the Michigan judge issued an order stating that Michigan had continuing jurisdiction over the parties and the children, and that Alabama was not a more convenient forum; also on February 25, 1999, in the Tuscaloosa County Circuit Court, the father moved to dismiss the Alabama action on the ground that the Parental Kidnapping Prevention Act ("PKPA"), 28 U.S.C. §1738A, foreclosed subject-matter jurisdiction over the mother's action in the Alabama courts; subsequently, the Tuscaloosa County Circuit Court entered an order denying the father's motion and specifying the dates for the father's summer visitation with the children; the father appealed, and the Court of Civil Appeals dismissed the father's appeal on the ground that he had appealed a nonfinal order; on September 22, 1999, the mother moved the Alabama judge to clarify the father's visitation with the children during the Christmas holidays, and the Alabama court entered an order modifying the visitation provision of the Michigan divorce judgment; the father appealed, and the Court of Civil Appeals held that, because the Alabama judge did not address the issues of child support and post-minority educational support, the March 25, 1999 order was not final and not appealable; the Court of Civil Appeals therefore dismissed the father's appeal; HOLDING:  the  Supreme Court held that because the father lives in Michigan and the Michigan Court was exercising continuing jurisdiction over the parties and was conducting "a review of parenting time" when the mother filed her modification petition in the Tuscaloosa County Circuit Court, the PKPA and the UCCJA foreclosed the Tuscaloosa County Circuit Court from exercising jurisdiction over the parties and the issues; the Court held that the orders of the Tuscaloosa County Circuit Court are void for lack of subject-matter jurisdiction; the Court held that the Court of Civil Appeals should have treated the father's appeal as a petition for a writ of mandamus and that it should have issued a writ directing the Tuscaloosa County Circuit Court to vacate its orders and to dismiss the mother's action for want of subject-matter jurisdiction, and the Supreme Court treated the father's petition for a writ of certiorari as a petition for a writ of mandamus; the Court granted a writ of mandamus)
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Ex parte Learakos,

No. 1000244 (Ala. Feb. 8, 2002) (additional opinion on denial of application for rehearing)
(arbitration; on rehearing, the defendant, ERA Class.Com, Inc. ("Class.Com"), contends that Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265 (1995), is factually similar to this case and is controlling on the issue of whether the Learakos purchase agreement evidenced a transaction substantially affecting interstate commerce and thereby incurred the governance of the Federal Arbitration Act ("FAA"); HOLDING:  the Supreme Court stated that the Allied-Bruce case differs significantly from the present case in that after the decision of Allied-Bruce, the United States Supreme Court decided United States v. Lopez, 514 U.S. 549 (1995), and there considered the extent of interstate involvement necessary for the FAA to apply to the transaction, and that Class.Com has not recited any facts or legal arguments establishing that the Court improperly applied the law in present case)
(the original opinion in this case concerned:  arbitration; interstate commerce; claims of breach of fiduciary duty, fraudulent misrepresentation, fraudulent suppression, conspiracy to defraud, and negligence or wantonness; HOLDING:  the Supreme Court held that where a preexisting and separate franchise agreement between Class.Com and its franchiser ERA, headquartered in New Jersey, obligated Class.Com to pay ERA 8% of the $7,696 sales commission Class.Com received from the sale of the house and the plaintiff wrote a check for the $1,000 earnest money drawn on his bank account in Marengo County, Illinois, there was not a sufficient effect on interstate commerce for the application of the Federal Arbitration Act (FAA) because the preexisting franchise agreement and any such payment, if made, between Class.Com and its franchiser are entirely collateral to the contract between the plaintiff and Class.Com, because the plaintiff's $1,000 earnest money payment from the drawee bank in Illinois to the Alabama payee of the check does not establish a substantial effect of this real estate sale and purchase on interstate commerce, and because the $615.68 (8% of $7,696) paid or to be paid by Class.Com to ERA and the $1,000 ostensibly transferred from the Illinois bank to Alabama are de minimis in that they aggregate less than 2% of the $109,900 price for the purchase of the house, the transaction Class.Com seeks to govern with the FAA; the Court held that the trial court erred in granting the motion of Class.Com to compel arbitration of Learakos's claims; the Court issued a writ of mandamus directing the trial court to vacate its order compelling arbitration in this case)
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--(the original opinion released on July 13, 2001, in Learakos is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

Liberty Nat'l Life Ins. Co. v. Douglas,

No. 1000683 (Ala. Feb. 8, 2002)
(arbitration; interstate commerce; employment; workers' compensation; retaliatory discharge; the trial court heard oral argument on Liberty National's motion to stay and, on its own motion, raised the issue whether Douglas's at-will employment as an insurance agent with Liberty National sufficiently involved interstate commerce so as to invoke the FAA; the trial court denied Liberty National's motion to stay the retaliatory-discharge proceedings, concluding that Liberty National had "failed to meet its burden of showing that either Plaintiff's claim of wrongful termination or its original contract of hire with Plaintiff had or has a substantial effect on interstate commerce"; HOLDING:  the Supreme Court concluded that Liberty National did not meet its burden of showing a substantial effect on interstate commerce, and it affirmed the trial court; the Court held that Liberty National cannot rely upon the ripple effect on interstate commerce of the payment of insurance premiums by Alabama insureds to an Alabama insurer as support for a conclusion that the employment agreement between Douglas and Liberty National had a substantial effect upon interstate commerce; the Court held that the fact that Douglas purchased gasoline to operate her vehicle, without quantification of the relation of that fact to her activities under the contract, does not, alone, tip the scale toward a finding that the employment agreement had a substantial effect on interstate commerce)
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Ex parte Homes of Legend, Inc.,

No. 1001193 (Ala. Feb. 8, 2002)
(arbitration; appellate procedure; Magnuson-Moss Warranty Act; petition for a writ of mandamus directing the trial court to vacate its order establishing a nonbinding arbitration procedure that incorporates certain requirements and provisions of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act ("the Magnuson-Moss Act") and the Federal Trade Commission ("FTC") regulations promulgated under the Magnuson-Moss Act; the trial court entered an order establishing a procedure for nonbinding arbitration proposed by Homes of Legend, but in accordance with a motion filed by Brown, the trial court later vacated that order and entered an order purporting to establish a nonbinding arbitration procedure "as provided by part 703 of title 16 of the Code of Federal Regulations"; HOLDING: the Supreme Court held that Homes of Legend is not entitled to mandamus relief because if, as Home of Legend argues, the trial court established an "informal dispute settlement mechanism" ("IDSM") under the Magnuson-Moss Act, which is a  procedure wholly distinct from an arbitration procedure, and therefore denied Homes of Legend's motion to compel arbitration, Homes of Legend's proper remedy would be a direct appeal, not mandamus; the Supreme Court held that even if Homes of Legend argued that the trial court granted arbitration, but failed to compel arbitration in strict accordance with the terms of the arbitration agreement as Homes of Legend construes that agreement, mandamus relief would be appropriate if Homes of Legend were correct, but the trial court's order was proper under the Court's decision in Homes of Legend, Inc. v. McCollough, 776 So.2d 741 (Ala. 2000); see also Ex parte Brown, 781 So.2d 178 (Ala. 2000))
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Ex parte D.W.,

No. 1001467 (Ala. Feb. 8, 2002)
(grandparent visitation statute, Ala. Code §26-10A-30; the statute allows the "natural grandparents of the adoptee" to petition for "post-adoption visitation rights" in the context of intrafamily adoptions and clearly abrogates, under certain circumstances, the common-law rule, which did not allow grandparents a legal right of visitation; the trial court granted the petitioner grandparents visitation rights; the Court of Civil Appeals, relying on Troxel v. Granville, 530 U.S. 57 (2000), reversed the judgment of the trial court, holding that §26-10A-30 unconstitutionally infringes upon the adoptive parents' fundamental right to parent; HOLDING:  the Supreme Court reversed the decision of the Court of Civil Appeals; the Court noted that Troxel involved the rights of a natural mother, while this case involves the rights of adopting parents in the limited context of intrafamily adoptions, and the Court held that the Court of Civil Appeals erred in overlooking this significant distinction; the Court held that the Legislature had the power to qualify the rights of adopting parents by enacting §26-10A-30 because the right of adoption is purely statutory) 
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Hayes v. Apperson,

No. 1001605 (Ala. Feb. 8, 2002)
(will contest and action challenging a deed; undue influence; the trial court found for Gordon Apperson, and held that both the will and the deed were valid, finding that Louise Apperson was competent to execute the will and the deed and that Gordon had not exerted undue influence over Louise to get her to execute the will and the deed; HOLDING:  the Supreme Court affirmed the trial court's holding that Louise was competent when she executed the will and the deed; however, the Court held that the trial court's finding that Louise's execution of the deed and the will was not the product of Gordon's undue influence is against the great weight of the evidence, and it reversed the trial court's judgment on that issue)
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Ex parte Thomas,

No. 1002029 (Ala. Feb. 8, 2002)
(conservatorship; appellate procedure; John Thomas (the "decedent") was incapacitated and suffering from a terminal illness when Lynda Flowers was appointed as conservator by the Houston County Probate Court; Flowers took into the conservatorship joint checking accounts and certificates of deposit totaling approximately $806,606 held with the right of survivorship in the names of John Thomas and his brother Monroe Thomas, seized $277,705.22 from a revocable trust established by the decedent and naming Monroe Thomas the beneficiary on the death of the decedent, and took into the conservatorship certificates of deposit in the decedent's name alone totaling $300,000; Flowers also wrote herself a check in the amount of $34,607.78 from the conservatorship funds as an anticipated fee for serving as conservator; the decedent died intestate on October 11, 2000, just one week after Flowers had been appointed conservator; Flowers then petitioned for final settlement of the conservatorship; Monroe Thomas ("Thomas") objected to this final settlement, claiming ownership of the joint accounts and certificates of deposit by right of survivorship; the probate court terminated the conservatorship and ordered a final settlement; two hours later, Thomas filed a motion in the probate court purporting to "transfer" the conservatorship to the circuit court; eight days later, the probate court denied Thomas's "motion to transfer" the conservatorship to the circuit court "for failure to properly file"; three days later, Thomas filed a sworn petition in the circuit court, seeking to have the conservatorship removed to the Houston Circuit Court and contending that only a court with equity jurisdiction could properly dispose of the matter; while this removal petition was pending in the circuit court, the probate court entered an "Order of Final Termination of Conservatorship" ordering compensation for the decedent's caretaker in the amount of $20,875, ordering compensation for Flowers as conservator in the amount of $36,000, and ordering compensation for Howard Green, Thomas's guardian ad litem, in the amount of $1,008.75; four days later, the circuit court entered an order removing the final settlement to the circuit court; two days later, the probate court ordered Flowers to deliver all funds from the conservatorship to the probate court for immediate transfer into the intestate estate of the decedent; after the conservator and the guardian ad litem objected to the removal of the conservatorship proceeding, the circuit court, without a hearing, rescinded the removal on the grounds of "untimely and improper filing"; Thomas appealed both the circuit court's rescission of the removal and the probate court's order terminating the conservatorship; Flowers filed in the Court of Civil Appeals a motion to dismiss, claiming that the appeal to that court was an appeal from the same final judgment of the probate court and concerned the same issues as Thomas's appeal to the Houston Circuit Court from the probate court's final termination of the conservatorship; the Court of Civil Appeals dismissed the appeal without an opinion; HOLDING: the Supreme Court reversed the Court of Civil Appeals, holding that an appeal is the proper method by which to seek review of a circuit court's order rescinding its order of removal)
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Ex parte State (In re: Ash v. State),

No. 1991018 (Ala. Feb. 8, 2002)
(criminal; Rule 32 petition for post-conviction relief; Ash was convicted of one count of first-degree robbery and was sentenced to 25 years' imprisonment; Ash filed the instant Rule 32 petition more than 2 years after affirmance of his conviction claiming that the trial court lacked jurisdiction to render judgment or to impose sentence because the trial court, in its instructions to the jury, over Ash's objections, amended the indictment; the indictment, containing only a single count, charged conjunctively that Ash robbed both Christopher Rashon Love and Eric Lashun Alexander; over Ash's objections, however, the trial court instructed the jury that it could convict Ash if the evidence proved beyond a reasonable doubt that Ash robbed either Love or Alexander or both; Ash's co-defendant, Fredrick Eugene Williams, tried and convicted like Ash in the same proceedings, duly challenged this jury instruction in his direct appeal and won a reversal; the trial court summarily denied Ash's Rule 32 petition; the summary denial, however, was reversed by the Court of Criminal Appeals on the rationale that "the trial court's instruction created a fatal variance and the trial court was without jurisdiction to render judgment or to impose sentence ..."; HOLDING: the Supreme Court held that the jury instruction did not deprive the trial court of jurisdiction to render judgment or to impose sentence and that, therefore, Rule 32.2(c) and Rule 32.2(a)(5) did indeed preclude this Rule 32 petition; the Court held that while the jury instruction constituted an amendment to the indictment, the amendment did not deprive the trial court of jurisdiction because the amendment did not materially change the allegations of a robbery committed against Love and likewise did not materially change the allegations of a robbery committed against Alexander)
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Ex parte First Community Bank,

No. 1992362 (Ala. Feb. 8, 2002)
(denying the petition for writ of certiorari without opinion but stating that the Court 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 February 1, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, FEBRUARY 1, 2002

 

Ex parte Alapati,

No. 1001881 (Ala. Feb. 1, 2002)
(discovery; waiver; action on a loan contract; petition for a writ of mandamus directing the trial court judge to vacate his protective order providing that the plaintiff, the Healthcare Authority of the City of Huntsville d/b/a Huntsville Hospital ("the Hospital"), is not required to answer interrogatories or to produce documents relating to agreements it has entered into with physicians other than the defendant, Dr. Alapati, under its medical staff development assistance program; the Hospital sued Dr. Alapati, alleging that he had failed to make payments in accordance with the terms of a loan agreement; the Hospital claimed the requested discovery of other loan contracts was not relevant; Dr. Alapati claimed that a waiver which may or may not have existed between Huntsville Hospital and another physician would create a waiver for him or that Huntsville Hospital is equitably estopped from seeking to collect on his agreement because, in theory, Huntsville Hospital may have potentially waived collection of amounts owed pursuant to contracts with other physicians; specifically, Dr. Alapati claimed that the Hospital has not sought to enforce similar agreements it has with other physicians if those physicians refer sufficient numbers of patients to the Hospital and that this is in violation of 42 U.S.C. § 1395nn; HOLDING:  the Supreme Court denied the petition for writ of mandamus because it agreed with the trial court that the information Dr. Alapati seeks is not calculated to lead to the discovery of information that is relevant to the subject matter of this action -- the agreement entered into between him and the Hospital; the Court noted that it was aware of no authority that would support the legal conclusion that the Hospital's violation of federal law in regard to its agreements with other physicians is relevant to whether the particular contract between Dr. Alapati and the Hospital is illegal on its face or as enforced)
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Ex parte City of Dothan Personnel Bd.,

No. 1001978 (Ala. Feb. 1, 2002)
(judicial disqualification; recusal; the City of Dothan Personnel Board ("the Board") filed a petition for a writ of mandamus ordering Judge Denny L. Holloway ("the trial judge") to recuse himself from presiding over Stanley E. DeVane's appeal of the Board's decision to affirm the termination of DeVane's employment by the Dothan Police Department; the Board asserted that the trial judge is disqualified from sitting in DeVane's appeal because, at the time of his appeal, one of the attorneys representing DeVane, Jere Segrest, was also representing the trial judge personally in a divorce proceeding; DeVane argued that any disqualification of the trial judge that might initially have arisen from the fact that he was represented in the divorce by Segrest, was neutralized and "cured" by Segrest's withdrawal from DeVane's case immediately after the Board raised the issue of disqualification, and, additionally, by the full and complete termination of the trial judge's divorce proceeding approximately a month after Segrest withdrew; HOLDING:  the Supreme Court concluded that the trial judge in this case was disqualified under Canon 3.C.(1) no later than July 12, 2001, and was therefore under a duty at that point to recuse himself, but, consistent with the views expressed by the Judicial Inquiry Commission (JIC) in its various advisory opinions, that such a disqualification can be removed where the judge's attorney withdraws from the case pending before the judge and another member of the same firm, who has had no involvement in the judge's case, takes over the handling of the case, or when the litigation involving the judge concludes or the representation of the judge in that litigation by the lawyer in question otherwise ceases; the Court noted that the "totality of the circumstances" must be looked to, for the purpose of determining whether, despite the withdrawal by Segrest from representation of DeVane and the termination of the trial judge's separate lawsuit, "extraordinary circumstances" nonetheless existed that so clearly established a continuing disqualification of the trial judge that there was "an imperative duty" for him to recuse; the Court concluded that the trial judge did not abuse his discretion in deciding that Segrest's withdrawal removed the preexisting disqualification and obviated the necessity for his recusal, and noted that the trial judge's position in that regard has only been reinforced by the subsequent termination of his personal lawsuit and of Segrest's representation of him in it)
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Water Works & Sewer Bd. of the City of Selma v. Randolph,

No. 1002182 (Ala. Feb. 1, 2002)
(Sunshine Law, Ala. Code §13A-14-2; the Mayor of the City of Selma was appointed superintendent of the water works and sewer system for the City of Selma ("the system") at a regular meeting of the Board; about six weeks later, the Mayor came to the Board's office accompanied by two bodyguards and two members of the city council, and informed Hicks, the Board's chairman, and Melton, the Board's secretary, that he was taking over the Board, locking the water works building, and changing the security system; Board members Hicks, Melton, Tucker, and Sexton, and two attorneys, Pitts and Kelly, met two days later on Sunday night, and Randolph, the only other Board member, did not attend the meeting; the next day, Hicks contacted Board counsel and requested that counsel draft a resolution to be adopted by the Board dismissing the mayor as superintendent of the system; at the regularly scheduled Board meeting that same day, copies of the resolution were distributed and, by a vote of 4 to 1, the Mayor was dismissed as superintendent, with Randolph cast the lone dissenting vote; that same day, Hicks and others filed an action against the Mayor seeking a declaratory judgment as to the authority of the Board to dismiss the mayor as superintendent; two days later, Randolph filed an action against the Board, the four other members of the Board (Hicks, Melton, Sexton, and Tucker), and attorneys Pitts and Kelly, alleging that the defendants had held a secret meeting of the Board without notice to the public or to him, in violation of Ala. Code §13A-14-2, known as "the Sunshine Law," and alleging that the Mayor actually had been terminated at the Sunday night meeting, sought a judgment declaring void the actions of the defendants terminating the Mayor as superintendent of the system; the trial court issued an ex parte temporary restraining order blocking the defendants from enforcing the decision to terminate the mayor as superintendent of the system; the trial court later entered a "final order" holding that the Board was subject to the Sunshine Law, that the Sunday night meeting violated the Sunshine Law, and that the actions taken at that meeting were void; HOLDING:  the Supreme Court noted that whether the Sunshine Law is applicable to water boards incorporated as public corporations pursuant to Ala. Code §§11-50-310 et seq. appears to be a question of first impression; the Court held that because neither a public corporation nor a water board is expressly enumerated as a body subject to the prohibitions of the Sunshine Law, it would only be subject to the Sunshine Law if it was within the catchall phrases, "any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality," or "board, body or commission to which is delegated any legislative or judicial function" of  §13A-14-2(a); the Court concluded that the Sunshine Law does not apply to a public corporation organized under §§11-50-310 et seq., such as the Water Works and Sewer Board of the City of Selma; the Court reversed the trial court and rendered a judgment for the Board)
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--(an additional opinion released on April 19, 2002, on rehearing in Randolph is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--

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Opinions Released January 25, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, JANUARY 25, 2002

 

Ex parte Tindle,

No. 1001974 (Ala. Jan. 25, 2002)
(quashing the writ of certiorari without opinion, but stating that the Court 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 Allen,

No. 1002028 (Ala. Jan. 25, 2002)
(criminal; appellate procedure; timely filing by an incarcerated petitioner of a motion to amend an Ala.R.Crim.P. 32 petition that has no deadline for filing other than that it must be filed before the entry of a final judgment; Allen filed a Rule 32 petition in the Limestone Circuit Court, seeking postconviction relief, and on October 31, 2000, the State filed a motion to dismiss; on November 13, 2000, at 1:24 p.m., the circuit court summarily denied Allen's Rule 32 petition, stating that his claims were precluded because they should have been raised on a direct appeal, which Allen chose not to take; that same day, at 1:50 p.m., Allen's response to the State's motion to dismiss and a motion to amend his Rule 32 petition to add additional claims were stamped "filed" by the clerk of the circuit court; the certificate of service attached to Allen's motions was dated November 7, 2000, six days before the circuit court's final order dismissing his petition; the circuit court did not rule on Allen's motion to amend his petition, so on November 29, 2000, Allen filed a motion styled "Motion to Amend the Court's Finding and Judgment," arguing that the circuit court erred in not granting his motion to amend his petition; the circuit court, on December 4, 2000, denied Allen's motion; HOLDING:  the Court declined to extend the mailbox rule, which applies to a notice of appeal by an incarcerated appellant, to motions to amend Rule 32 petitions and affirmed the trial court)
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Womack v. The Estate of Mabel Womack,

No. 1002049 (Ala. Jan. 25, 2002)
(appeal from probate court to circuit court in case concerning two estates; posting of supersedeas bond; Howard Eugene Womack, originally named as a co-personal representative of the estates of his parents, failed to post a supersedeas bond or to file an affidavit of substantial hardship in support of his motion to proceed without filing a supersedeas bond; the circuit court dismissed his appeal; the circuit court held a hearing three and a half months after the appeal was filed, determined that a supersedeas bond was required, and  gave Womack time to obtain the bond; instead of filing the supersedeas bond, Womack filed a motion to proceed without a supersedeas bond, stating that he could not obtain one; six weeks later, the court held another hearing, at which time it dismissed the appeal.  HOLDING:  the Supreme Court concluded:  (1) that the circuit court did not abuse its discretion in finding that Womack was not indigent and that he was not entitled to a stay of execution on the probate court's judgment based on his indigence; and (2) that the circuit court did not err in denying Womack's motion for a trial by a jury; consequently, the Court affirmed the circuit court's judgment insofar as it denied Womack's motion for a trial by a jury, insofar as it found that Womack is not indigent, and insofar as it held that Womack is not entitled to a stay of execution on the probate court's judgment unless he posts a supersedeas bond; the Court reversed the judgment of the circuit court insofar as it dismissed Womack's appeal because he did not post a supersedeas bond, and it remanded the case to the circuit court for further proceedings)
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Mobile Eye Center, P.C. v. Van Buren Partnership,

No. 1010116 (Ala. Jan. 25, 2002)
(lease dispute; declaratory-judgment action asking for a declaration that a renewal option in a 1994 lease agreement between the Van Buren Partnership and the Mobile Eye Center required that the Center give notice that it would not renew the lease 120 days before the expiration of the lease term, and that, because notice of non-renewal was not given, the lease was automatically renewed for a five-year term; Van Buren and the Center entered into a commercial lease agreement which ran from September 1, 1995, to August 31, 2000; two pertinent clauses in the lease are the holdover clause and the renewal clause; the holdover clause provides that "Should the Lessee continue to occupy the premises after the expiration of said term or after a forfeiture incurred, then, except as otherwise provided for in this paragraph, the Lessee shall continue as a tenant under the terms of this lease (except as to duration) from year to year, and each holding over period annually thereafter shall in like manner create and cause a similar extension of this lease from year to year"; the renewal clause provides "With the mutual consent of the parties this lease may be renewed for an additional five (5) year period, at a rental price term to be negotiated by the parties, subject to the same terms and conditions contained herein, excepting the requirement herein to negotiate the rental price term.  Lessee shall give Lessor 120 days written notice if it does not intend to renew said lease."; the trial court entered a judgment declaring that it was undisputed that the Center did not give written notice that it did not intend to renew the lease, and, therefore, that, under the renewal provision of the lease, the lease was automatically renewed for an additional five years; the trial court also declared that because the Center had continued to occupy the leased premises and to pay rent, it had ratified the renewal provision; HOLDING:  the Supreme Court held that because Robert Merritt, a principal partner in Van Buren, testified at trial that the Center never agreed to an additional five-year lease, when the Center remained on the leased premises, it was holding over, as provided by the holdover provision in the written lease agreement; the Court held that the Center is not bound by a five-year renewal of the lease agreement, but, pursuant to the holdover clause, the Center was required to lease the premises for one year after the expiration of the original term of the lease; the Court reversed the trial court and rendered a judgment)
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Ex parte Key,

No. 1010493 (Ala. Jan. 25, 2002)
(denying the petition for writ of certiorari without opinion, but stating that the Court 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 January 18, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, JANUARY 18, 2002

 

Guarisco v. City of Daphne,

No. 1000263 (Ala. Jan. 18, 2002)
(municipal financing; revenue warrants; Ala. Const. §94, as amended by Ala, Const. amend. 112; the City of Daphne’s city council a development agreement ("the Agreement") between the City and AIG Baker Development, L.L.C. ("AIG") which provided that AIG would develop a commercial shopping center and that the City would purchase from AIG approximately 19 acres of that land, which would be used as a parking facility for the shopping center; to finance the acquisition of the 19 acres and to pay for the construction of the parking lot, the City proposed to issue a revenue warrant; the City, the city council, and the mayor filed a petition in the Circuit Court of Baldwin County, seeking to validate a $5,700,000 limited obligation revenue warrant ("the Warrant"); John David Whetstone, Baldwin County’s district attorney, filed an answer on behalf of the taxpayers and citizens of the City, opposing the issuance of the Warrant; Alfred Guarisco, Jim Ward, and Edgar Shulby ("the Citizens") also filed an answer opposing the issuance of the Warrant; the trial court concluded that the issuance of the Warrant did not violate § 94 because, it reasoned, the Agreement constituted an ordinary commercial contract and because the purchase of the land for, and the construction of, the parking lot was for a public purpose; HOLDING:  the Supreme Court affirmed the trial court and adopted its order in its entirety)
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Telfare v. City of Huntsville,

No. 1000357 (Ala. Jan. 18, 2002)
(discretionary-function immunity; Ala. Code §6-5-338; state and federal claims against the City of Huntsville and a city police officer for allegedly using excessive force to effectuate an allegedly unlawful arrest; the trial court granted the City’s motion to dismiss; HOLDING: the Supreme Court held that because the Plaintiff, Telfare, presented a sworn statement in opposition to the City's motion to dismiss and the trial court considered the statement, the City's motion must be considered to be a motion for summary judgment; the Court concluded that, viewing the evidence in a light most favorable to Telfare as the nonmovant, Officer McCarver arrested Telfare for various misdemeanors, none of which was committed in Officer McCarver's presence, and, except for limited exceptions, Alabama law does not allow law-enforcement officers the discretion to arrest alleged wrongdoers for misdemeanors not committed in the presence of the arresting officer; therefore, the Court concluded that because there is no evidence in the record tending to show that Officer McCarver was pursuing a discretionary function, i.e., was effectuating a lawful arrest, the City has failed to demonstrate that it is entitled to immunity, and held that the trial court erred in dismissing Telfare’s state-law claims against the City; the Court held that Telfare's complaint does not even hint that his treatment was the result of any official policy of the City, so the trial court did not err in dismissing the 42 U.S.C. §1983 claim against the City based on a theory of vicarious liability)
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--(Click here for an additional opinion released on overruling of application for rehearing on June 14, 2002, in Telfare)--
 

Jim Burke Automotive, Inc. v. McGrue,

Nos. 1000831, 1000877, 1000972, 1000973, 1000980, 1000981 (Ala. Jan. 18, 2002) (on application for rehearing; withdrawing and substituting opinion of Oct. 5, 2002)
(arbitration; interstate commerce; nonsignatories; claims of conspiracy, violation of right to trial by jury under the Alabama Constitution, and antitrust violations against Jim Burke Automotive, from which the plaintiff purchased a used automobile and with which she entered an arbitration agreement, and against 21 other Birmingham-area automobile dealers; the plaintiff claimed that none of the defendants would make a trade concerning her vehicle without requiring an arbitration agreement; HOLDING: the Supreme Court held that the defendants demonstrated that the purchase of the used vehicle by the plaintiff was a transaction involving interstate commerce, because the record shows that Southwest Tex Leasing Company, a company located in San Antonio, Texas, purchased the vehicle from the manufacturer, then sold the vehicle to American Sales & Leasing, a company located in Orlando, Florida, which then sold the vehicle to Jim Burke, which sold the vehicle to the plaintiff, and because the financing of the purchases involving this vehicle involved two out-of-state financial corporations; the Court held that the plaintiff's claims as to Jim Burke were due to be arbitrated; the Court held that the other 21 dealerships were not entitled to compel arbitration because they were not signatories to any arbitration agreement with the plaintiff and the arbitration agreements with Jim Burke were limited to the plaintiff and Jim Burke; the Court held that the other 21 dealerships were not entitled to have the issue of arbitrability decided by an arbitrator; the Court held that the trial court erred when it held that the plaintiff's claims against Jim Burke were not arbitrable and that the issue of arbitrability must be decided by an arbitrator; the Court overruled the decision in Southern Energy Homes, Inc. v. Gary, 774 So.2d 521 (Ala. 2000), to the extent that it conflicts with this decision)
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--(the original withdrawn opinion released on October 5, 2001, in McGrue is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

Alabama Dep't of Envtl. Management v. Coosa River Basin Initiative, Inc.,

Nos. 1000841, 1000846 & 1000853 (Ala. Jan. 18, 2002)
(environmental permits; permit to incinerate chemical weapons; ADEM issued hazardous-waste facility permit number AL3 210 020 027, authorizing the United States Department of the Army, Anniston Army Depot; the United States Department of the Army, program manager for chemical demilitarization; and Westinghouse to incinerate the chemical weapons located at the Anniston Army Depot; one condition to the issuance of the permit is that the Army conduct a human-health-risk assessment, using a written guidance published by the United States Environmental Protection Agency (the "EPA Guidance");  the trial court entered a summary judgment in favor of the Coosa River Basin Initiative, Inc. ("CRBI"), finding that, in issuing a permit to incinerate chemical weapons to the Army and to Westinghouse, ADEM had failed to comply with the Alabama Administrative Procedure Act ("AAPA"), Ala. Code §41-22-1 et seq., but the trial court reserved judgment on what relief, if any, to grant CRBI and certified the order for an interlocutory appeal; HOLDING: the Supreme Court held that the trial court had jurisdiction to address the merits of the dispute and concluded that the trial court's holding was in error; for the same reasons stated by the Court of Civil Appeals in the related case of Families Concerned About Nerve Gas Incineration v. Alabama Department of Environmental Management, No. 2000595 (Ala. Civ. App. Jan. 11, 2002), the Court held that ADEM's inclusion of a cancer-risk screening level in the permit issued to the Army and Westinghouse and ADEM's requirement that the Army and Westinghouse update, at regular intervals and in a site-specific manner, the testing methods and test data necessary to determine the appropriate screening level to be used at the Anniston incineration site did not create a "binding norm under which all future chemical-incineration permits are to be judged"; accordingly, the Court held that ADEM's inclusion of the cancer-risk screening level in the permit issued to the Army and Westinghouse did not constitute the adoption of a "rule," subject to the AAPA's formal notice-and-comment provisions; the Court held that the Legislature, in adopting the AAPA, did not intend to limit declaratory-judgment actions; the Court held that the trial court properly exercised jurisdiction over this action under Ala. Code §41-22-10 and §6-6-222)
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Willis v. University of N. Ala.,

No. 1001007 (Ala. Jan. 18, 2002) (on application for rehearing; granting application for rehearing; withdrawing and substituting the opinion of July 13, 2001)
(taking of property without just compensation; inverse condemnation; the plaintiff claimed that when UNA built a parking deck across the street from his house and thereby caused his property to decrease in value, UNA "injured" his property, without providing him just compensation, and thus violated §235 of the Alabama Constitution; the plaintiff also claimed that UNA violated §23 of the Alabama Constitution by taking his property without just compensation; HOLDING:  the Supreme Court held that §23 does not apply to this case because UNA did not physically take Willis's property or apply Willis's property to public use during the construction of the parking deck; the Court held that UNA was not subject to §235 because that constitutional provision does not apply to the State and, because UNA is an agency of the State, does not apply to UNA; the Court affirmed the trial court and held that it did not err in granting summary judgment for UNA)
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--(the original withdrawn opinion released on July 13, 2001, in Willis is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

General Motors Acceptance Corp. v. Dubose,

No. 1001060 (Ala. Jan. 18, 2002) (opinion modified on application for rehearing on May 3, 2002)
(class actions; the plaintiff claimed that he had been improperly charged a rental tax that the State of Alabama imposes on the lessors of automobiles, and he asserted claims of breach of contract, suppression, misrepresentation, "quasi-contract and unjust enrichment," and theft by deception; the trial court certified two classes, the Yerby Chevrolet Class and the GMAC Class; HOLDING:  the Supreme Court held that the lease agreement was ambiguous, which prevents the plaintiff from satisfying the "commonality" requirement of Rule 23(a)(2) and forecloses the conclusion that "common issues predominate"; thus, the Court held that the trial judge abused his discretion in certifying the two classes in this case)
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--(the modified opinion released on May 3, 2002, in Dubose is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

Keck v. Dryvit Systems, Inc.,

No. 1001175 (Ala. Jan. 18, 2002)
(construction; claims of breach of express and implied warranties, negligent design, negligent supervision, negligent installation, negligent failure to warn, breach of contract, fraud, suppression, and violations of the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"); the Kecks sought to recover for damage allegedly caused by the application of an exterior insulation finishing system ("EIFS") to the Kecks' home; the EIFS was manufactured by Defendants Dryvit Systems, distributed by Apache Products Co., and installed by Dillard Plastering Co. referred to collectively as the "Dryvit defendants"); the Kecks are the second owners of the residence they allege was damaged by the EIFS; the trial court entered a summary judgment in favor of the Dryvit defendants, holding 1) that the doctrine of caveat emptor barred the Kecks' claims for damages based upon breach of the implied warranty pursuant to Boackle v. Bedwell Constr. Co., 770 So. 2d 1076 (Ala. 2000), 2) that the EIFS is not a "product" for purposes of the AEMLD because once applied it becomes the exterior wall of the building, 3) that the Dryvit defendants owed no duty of disclosure to the Kecks and that there was no evidence indicating that the Dryvit defendants had made any representations directly to the Kecks, and 4) that the Kecks' negligence claims were barred because, the trial court held, the Kecks failed to present substantial evidence of personal injury necessary to avoid the application of the doctrine of caveat emptor; HOLDING:  the Supreme Court held that the trial court did not err in entering a summary judgment in favor of the Dryvit defendants and affirmed the trial court's judgment; the Court held that the question of whether an item attached to realty may be considered a product for purposes of the AEMLD must be based on the underlying policies of product-liability law in Alabama, not on the law of fixtures, and that whether an item that is incorporated into real property may be considered a "product" for purposes of the AEMLD is determined by whether the item is a part of the structural integrity of the house or building that is reasonably expected to last for the useful life of the house or building -- if it is, then the item cannot be considered a "product" for purposes of the AEMLD; applying this test, the Court held that the EIFS cannot be considered a "product" for purposes of the AEMLD; the Court held that because removal of the EIFS would unquestionably result in material harm to the Kecks' home, the EIFS cannot be considered a "good" within the meaning of the UCC; the Court held that lack of privity between the Kecks and the Dryvit defendants forecloses negligence claims because the Kecks are not the initial purchasers of the house, and even if the law of privity were inapplicable to this case, the Kecks' negligence claims would nevertheless fail, because the Kecks have failed to prove that the Dryvit defendants owed them a duty; the Court held that because the Dryvit defendants had no contract with the Kecks, no knowledge that the Kecks owned a house clad with the EIFS, and no contact with the Kecks before this lawsuit, no confidential relationship existed between them and the Kecks requiring disclosure, and the Kecks could not maintain a fraudulent suppression claim)
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American Liberty Ins. Co. v. AmSouth Bank,

No. 1001641 (Ala. Jan. 18, 2002)
(suretyship; this case involves the right of a surety of an estate (American Liberty Insurance Co. ("ALIC")) to sue to recover funds from a bank that paid a check made out to the estate and endorsed by the person who was appointed conservator of the estate before that person’s appointment as conservator; the trial court entered summary judgment against ALIC and in favor of AmSouth Bank; HOLDING:  the Supreme Court affirmed the trial court's summary judgment; the Court held that ALIC is subrogated to all of the rights and remedies of the Sumrall estate, so that ALIC may pursue an action against the conservator to recover the amounts paid by ALIC as a result of  the conservator's misappropriation; the Court held that ALIC can pursue an action against AmSouth because a surety who pays the debt of his principal "stands in the shoes" of the payee and may enforce the payee's rights in order to seek reimbursement; thus, the Court held that hold that ALIC is subrogated to all of the rights and remedies of the Sumrall estate against not only the conservator, but also against AmSouth for conversion of the check; however, the Court held that the summary judgment in AmSouth's favor was nonetheless properly entered because ALIC cannot maintain its conversion claim under either former Ala. Code §7-3-419(1)(c) or the common law of conversion)
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Ex parte Monsanto Co.,

No. 1001766, 1001767, 1001916 & 1001917 (Ala. Jan. 18, 2002) (plurality opinion)
(enforcement of a forum-selection clause; the plaintiffs are Alabama cotton farmers who sued the petitioners, Monsanto Company ("Monsanto"), Delta and Pine Land Company, Helena Chemical Company, Arnold Woodham, Terra International, Agro Distributions, L.L.C., John Brooks, Bruce Henderson, and Central Alabama Farmers Co-Op; the plaintiffs claimed that they suffered damage as a result of purchasing and planting cottonseed that contained patented gene technology developed by Monsanto; included in each of the Technology Agreements executed in the underlying lawsuits is a provision which states that the "parties consent to the exclusive jurisdiction of the U.S. District Court for the Eastern District of Missouri, Eastern Division, and the Circuit Court of the County of St. Louis, State of Missouri, for all disputes arising under this agreement"; the trial judge found that the forum-selection clause, based on the particular facts and circumstances in these cases, was unfair and unreasonable and should not be enforced; HOLDING:  the Supreme Court held that the trial judge abused his discretion in refusing to enforce the forum-selection clause in these cases; the Court held that the plaintiffs failed to carry their burden of showing that it would be unfair or unreasonable to hold the parties to their bargain)
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Harold Allen’s Mobile Home Factory Outlet, Inc. v. Butler,

No. 1002000 (Ala. Jan. 18, 2002)
(arbitration; unconscionability; a provision in the arbitration agreement between the buyer and the seller of a mobile home authorized the seller of the mobile home to select the arbitrator, except that the arbitrator could not be someone who had previously provided legal services to the seller; the trial court compelled arbitration but declined to enforce the provision permitting the seller to select the arbitrator and instead chose an arbitrator for the arbitration;  HOLDING: the Supreme Court held that the arbitration agreement allowing the mobile home dealer to select the arbitrator is unconscionable; the Court held that trial court's appointment of an arbitrator as a result of its holding "that the clause in the arbitration contract as to the selection of the arbitrator is unconscionable" is a lapse that triggers its authority to appoint an arbitrator under 9 U.S.C. §5; the Court held that the petition for the writ of mandamus is due to be denied)
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Ex parte Liberty Nat'l Life Ins. Co.,

No. 1002041 (Ala. Jan. 18, 2002)
(appellate procedure; mandamus review of denial of motion to dismiss; rule of repose; the plaintiffs assert claims of Hudsons allege breach of contract, conversion, negligence, wantonness, fraud, breach of fiduciary duty, and the tort of outrage, all stemming from their purchase of industrial-insurance policies; the plaintiffs (the "Hudsons") base their claims, to a large extent, on Liberty National’s alleged past practices (i.e., practices alleged to have begun in the 1940s) of selling industrial-insurance policies to African-Americans at rates different from the rates it charged white policyholders for the same policies; Liberty National moved to dismiss and argued, among other things, that the Hudsons' claims were absolutely barred by Alabama's 20-year rule of repose; the trial court, treating the motion as a motion to dismiss under Rule 12(b)(6), summarily denied the motion and ordered the parties to proceed with discovery; the trial court denied Liberty National's request to certify the ruling for interlocutory appeal under Rule 5, Ala. R. App. P., as well as Liberty National's request to stay the proceedings pending appellate review; HOLDING:  the Supreme Court held that because the relief Liberty National seeks in its mandamus petition can be adequately attained by an appeal, Liberty National is not entitled to a writ of mandamus to review the denial of its motion; the Court held that the trial judge did not abuse his discretion in refusing to certify for appeal his ruling on Liberty National's motion, because he expressly ruled only on Liberty National's motion to dismiss under Rule 12(b)(6), and he expressly refused to consider at that time Liberty National's motion for a summary judgment or any materials related to that motion; the Court noted that there is some confusion concerning the application of Alabama's rule of repose and clarified the law)
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Ex parte Taylor,

No. 1990940 (Ala. Jan. 18, 2002)
(criminal; capital murder; admission of DNA evidence; the trial court admitted evidence of DNA matching over the defendant's objection that the State had failed to prove the scientific reliability of the method or technique used by the DNA analyst to declare that certain DNA samples matched and that certain others did not match; the method or technique not only included the use of polymerase chain reactions ("PCRs") to amplify, or to copy, certain DNA alleles but also included other biochemical manipulations of the DNA before and after the PCRs; the defendant is not challenging the scientific theory of amplifying DNA alleles by polymerase chain reaction for the purpose of obtaining enough of the alleles to visualize for identification and typing; rather, the defendant is challenging, as he did before and at trial, the failure of the State to prove the scientific reliability of the kits, supplied by Perkin-Elmer Company, which contained and constituted the method or technique the DNA analyst used to choose and to find the alleles to be amplified, to effectuate PCRs, and to visualize, to identify, and to type the DNA alleles after they had been amplified by PCRs; at trial a forensic biologist specializing in DNA typing ("the DNA analyst") -- over the defendant's objections -- testified that the respective alleles at certain loci on the DNA in a spot of blood on the defendant's tennis shoe matched the respective alleles at the corresponding loci on DNA taken directly from the victim; the DNA analyst testified further, also over defense objections, that only one in every 500,000 Caucasians or one in every 1.4 million black persons would share this combination of alleles; also over the defendant's objections, the DNA analyst testified that the alleles at certain loci on the DNA of a cigarette butt found outside the victim's house matched the alleles at the corresponding loci on DNA taken directly from the defendant; over further defense objections, the DNA analyst testified that only one in 218,000,000 black men or one in 16.5 billion Caucasians would share this combination of alleles; the DNA analyst testified that his DNA testing excluded Taylor as a contributor of blood on Taylor's companion's knife but did not exclude either the companion or the victim as contributors; the DNA analyst's testimony tended to prove, that, as a practical matter, the Perkin-Elmer kits produced accurate results; HOLDING: the Supreme Court held that the trial court was not authorized to take judicial notice of the reliability of the Perkin-Elmer kits; however, the Court held that the State factually proved the reliability of the kits; thus, the Court affirmed the trial court and the Court of Criminal Appeals)
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Ex parte Grayson,

No. 1991310 (Ala. Jan. 18, 2002) (on application for rehearing)
(additional opinion on denial of application for rehearing addressing the previously unasserted argument by the petitioner claiming that the trial court erred to reversal by selecting alternate jurors at random at the conclusion of the trial, in violation of Ala.R.Crim.P. 18.4(g); HOLDING:  the Supreme Court held that Grayson correctly points out that the trial court's procedure for selecting the alternate jurors was inconsistent with the procedure provided in Rule 18.4(g); the Court reviewed the issue under the plain-error standard because this matter was not objected to at trial; the Court held that the petitioner failed to demonstrate that the fairness or integrity of the judicial proceedings was seriously affected by the error, and therefore, the Court held there was no plain error)
(the original opinion concerned: 
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--(the original opinion released on May 11, 2001, in Grayson is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--

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DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, JANUARY 11, 2002

 

Ex parte Thicklin,

No. 1000224 (Ala. Jan. 11, 2002) (on application for rehearing)
(arbitration; interstate commerce; Magnuson-Moss Warranty - Federal Trade Commission Improvement Act; contract precluding punitive damages; unconscionability; claims of breach of express and implied warranties, violation of the Magnuson-Moss Warranty - Federal Trade Commission Improvement Act ("the Magnuson-Moss Act"), fraud, and negligent or wanton construction, set up, and repair of a mobile home; HOLDING: the Supreme Court held that defendants Fantasy Mobile Homes and Riverchase Homes presented evidence concerning the effect on interstate commerce of Thicklin's purchase of her mobile home in that Fantasy purchases manufactured homes for resale from at least one foreign corporation that ships their products into Alabama from out-of-state locations, Fantasy frequently orders home decorations from a Georgia company to be shipped and delivered to Fantasy's location in Alabama, Riverchase Homes is a division of Delaware corporation Cavalier Manufacturing, Inc., each home built by Riverchase Homes contains component parts transported by interstate commerce, the mobile home purchased by Ms. Thicklin was financed by an entity located out-of-state, Bombadier Capital, whose lienholder address is in Cincinnati, Ohio, Fantasy sent Thicklin's finance paperwork to Bombadier Capital's Jacksonville, Florida office, and Riverchase Homes manufactures homes in Marion County, Alabama; the Court held that the Federal Arbitration Act (FAA) applies to claims arising under the Magnuson-Moss Act; the Court held that Riverchase's failure to disclose in the warranty the requirement that Thicklin arbitrate her claims against it violates the disclosure requirements of the Magnuson-Moss Act, and therefore, the trial court abused its discretion in compelling Thicklin to arbitrate her express-warranty claim and her claims alleging Magnuson-Moss Act violations; the Court held that that it violates public policy for a party to contract away its liability for punitive damages, regardless whether the provision doing so was intended to operate in an arbitral or judicial forum; the Court held, therefore, that the provision precluding an award of punitive damages by the arbitrator violates public policy, and its enforcement would be unconscionable; the Court held that because the arbitration agreement has a severability clause, only the provision prohibiting the award of punitive damages is void, not the entire arbitration agreement; the Court held that because Thicklin does not provide any evidence, such as her income, her family's expenses, or the estimated costs of the arbitration procedure, that would support an argument that the use of the Commercial Rules of the American Arbitration Association renders the arbitration clause unconscionable from a financial standpoint, the risk that she will be saddled with prohibitive costs is too speculative to justify the invalidation of the arbitration agreement; the Court granted the writ of mandamus as to Thicklin's express-warranty claim and her Magnuson-Moss Act violation claims, but denied it as to the remainder of Thicklin's claims; the Court also concluded that the provision in the arbitration clause prohibiting the arbitrator from awarding punitive damages is void, and granted Thicklin's petition to the extent that it severs that provision from the arbitration clause)
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--(the original withdrawn opinion released on Oct. 12, 2001, in Thicklin is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

Reynolds Metals Co. v. Hill,

No. 1000714 (Ala. Jan. 11, 2002)
(class action; claims of fraud, breach of contract, and unjust enrichment by employees arising out of an alleged oral promise at a meeting of employees to pay certain benefits upon the sale or closure of the plant; the trial court certified the class as to all three claims; HOLDING:  the Supreme Court held that the trial court erred in certifying the class because individual issues predominated)
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Royal Ins. Co. v. Whitaker Contracting Corp.,

No. 1000944 (Ala. Jan. 11, 2002)
(indemnity; road construction; certified question from the United States Court of Appeals for the Eleventh Circuit: "Must an indemnity agreement specifically state that an indemnitor will indemnify the indemnitee for a nondelegable duty to which the indemnitee is subject under state law to require indemnification for the failure to execute such nondelegable duty, which results in the underlying cause of action for which indemnification is sought?"; HOLDING:  the Supreme Court answered the question in the negative because "if the parties knowingly, evenhandedly, and for valid consideration, intelligently entered into an agreement" whereby one party agreed to indemnify the other for its negligent acts and omissions, and the agreement is expressed in "clear and unequivocal language," then that agreement is enforceable under Alabama law)
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General Motors Acceptance Corp. v. City of Red Bay,

No. 1000970 (Ala. Jan. 11, 2002)
(class action; sales and lease taxes; claims by municipal and county taxing jurisdictions with no lease taxes asserting that GMAC was required to collect or pay sales taxes on consumer leases transactions in which GMAC purchased the leased vehicle from the dealer; the trial court certified the class; HOLDING:  the Supreme Court held that the trial court erred in certifying the class because the trial court failed to conduct the rigorous analysis required by Ala. Code §6-5-641(e) because it failed to consider an evidentiary submission by GMAC that it had specifically permitted GMAC to submit and entered a class certification order submitted by the plaintiffs without giving GMAC an opportunity to review and comment on it; the Court also concluded that the evidence presented by the plaintiffs was not sufficient to allow a trial court to make a determination as to predominance of common questions of law or the superiority of class-action treatment)
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Green Tree Fin. Corp. v. Channell,

No. 1001112 (Ala. Jan. 11, 2002)
(arbitration; interstate commerce; assignment; the trial court held that Green Tree, as assignee of Johnson Mobile Homes under an installment agreement, could not compel arbitration because the court had already determined that Johnson Mobile Homes was not entitled to compel arbitration under a free-standing arbitration; HOLDING:  the Supreme Court held that the transaction substantially affected interstate commerce; the Court reversed the trial court 's denial of arbitration, stating that Green Tree holds the same rights as Johnson Mobile Homes under the installment agreement, and no judicial determination had ever been made concerning Johnson's right to compel arbitration under the installment agreement)
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Elliot v. Van Kleef,

No. 1001395 (Ala. Jan. 11, 2002) (opinion withdrawn on denial of rehearing on April 12, 2002)
(personal jurisdiction; claim under the Alabama Legal Services Liability Act; plaintiff sued attorney John Van Kleef and the law firm of Bullock & Van Kleef (the "Van Kleef defendants") located in Arkansas for legal malpractice alleged to have been committed in Arkansas; plaintiff also sued Alabama attorney John Kizer Jr. and John Kizer LLC; Kizer hired Van Kleef to be local counsel for the plaintiff's Arkansas action; the trial court granted the Van Kleef defendants' motion to dismiss for lack of personal jurisdiction; HOLDING:  the Supreme Court affirmed the dismissal for lack of personal jurisdiction, finding that Van Kleef did not purposefully avail himself of the jurisdiction in Alabama)
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--(the substituted opinion released on January 11, 2002, in Elliott is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

Ex parte Tony's Towing, Inc.,

No. 1002022 (Ala. Jan. 11, 2002)
(arbitration; nonsignatory; plaintiff sued mobile home manufacturer (Redman Homes), the mobile home dealer (Emerald Homes), the company hired to deliver the mobile home (Williams Mobile Home Service), and the company called to assist in removing the mobile home from a ditch that it ended up in during delivery (Tony's Towing); the sales agreement between the plaintiff and Emerald Homes contained an arbitration agreement; Redman Homes, Emerald Homes, and Williams Mobile Home Service moved to compel arbitration, but Tony's Towing did not; the trial court ordered all defendants, including Tony's Towing, to arbitrate; Tony's Towing sought a writ of mandamus seeking to vacate the trial court's order so that the plaintiff's claims against it could proceed in the trial court; HOLDING:  the Supreme Court reversed, holding that a nonsignatory defendant trying to avoid arbitration cannot be compelled to arbitrate by the other defendants)
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Allstate Ins. Co. v. Ware,

No. 1991539 (Ala. Jan. 11, 2002)
(class action; claims of fraud, suppression, breach of contract, wantonness, negligence, unjust enrichment, and other statutory violations in connection with the sale and issuance of homeowners' insurance policies; the trial court certified two classes; HOLDING:  the Supreme Court reversed, holding that the named plaintiffs could not be adequate representatives because they had read the policy and the policy plainly states that it did not cover land -- the fact that the plaintiffs claimed was suppressed or misrepresented; the Court also held that their claims would not be typical)
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Porter v. Colonial Life & Accident Ins. Co.,

No. 1991600 (Ala. Jan. 11, 2002)
(arbitration; the trial court ordered the plaintiff to arbitrate his claims and dismissed his claims without prejudice; on appeal, the plaintiff contended that the trial court should have stayed rather than dismissed his claims; HOLDING:  the Supreme Court noted that there was a potential for injustice if a court dismissed rather than stayed an action when granting a motion to compel arbitration, but the Court affirmed the trial court and declined to decide the issue because the plaintiff did not raise the issue in the trial court)
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Ex parte MacEwan,

No. 1992219 (Ala. Jan. 11, 2002) (on application for rehearing)
(criminal; ineffective assistance of counsel; petition for postconviction relief under Rule 32, Ala.R.Crim.P.; underlying offense was capital murder -- for killing a child under the age of 14 years; the trial court sentenced the petitioner to life imprisonment without the possibility of parole; the petitioner argued that her representation at trial was ineffective because her attorneys declined to present an insanity defense on her behalf; the trial court held that the petitioner had not met her burden of proof in alleging her claim of ineffective assistance of counsel, and it dismissed the petition without holding an evidentiary hearing; HOLDING: the Supreme Court reversed the trial court, holding that the defendant claimed she was not served with the State's motion to dismiss her Rule 32 petition and that this failure to serve the motion to dismiss was significant because it had attached to it an affidavit from the defendant's trial counsel defending his effectiveness in conducting her defense; the Court also noted that because the trial court did not state its reasons for dismissing the petition, the Court could not determine what prejudice the failure to serve the defendant might have caused)
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--(the original withdrawn opinion released on July 20, 2001, in MacEwan is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--

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Opinions Released January 9, 2002

Opinion of the Justices, No 374 (Ala. Jan. 9, 2002),

(relating to House Bill 51 and Senate Bill 50 which impose state and county privilege license taxes on "persons engaged in the business of operating bona fide coin-operated amusement machines"; the Justices declined to answer the question because they may not issue an advisory opinion regarding an issue that does not concern pending legislation, and House Bill 51 and Senate Bill 50 were not enacted before the conclusion of the 2001 Fourth Special Session)

 

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There Were No Opinions Released January 4, 2002

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