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