• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  MARCH 28, 2003

 
• Ex parte Ocwen Federal Bank, FSB,

No. 1002225 (Ala. Mar. 28, 2003)
(discovery; pattern and practice discovery; trade secrets; mandamus/adequate remedy on appeal; Lee Dowdle and Kimberly Dowdle executed a promissory note, secured by a mortgage on their home, to Johnson & Associates Mortgage Company, Inc. ("Johnson").  The truth-in-lending disclosure statement they received in connection with the execution of the note provided that a penalty would not be assessed if they paid the loan off before its maturity date.  Aurora Loan Services, Inc. ("Aurora"), began to service the Dowdles' loan.  The Dowdles decided to refinance their loan with a different lender.  In order to refinance, the Dowdles had to pay off their original note before its maturity date.  When the Dowdles received the payoff balance from Aurora, it included a prepayment penalty.  The Dowdles sent a check to Aurora for the payoff balance after deducting an amount for the prepayment penalty.  Aurora returned the check to the Dowdles because, it stated, the amount of the check was insufficient to pay off their loan.  The Dowdles sent the check to Aurora again.  This time, Aurora accepted it but stated that it would continue to seek collection of the prepayment penalty.  The Dowdles sued Aurora, Johnson, and others.  As amended, the Dowdles' complaint alleges misrepresentation; suppression; breach of contract; breach of fiduciary duty; negligence; wantonness; intentional infliction of emotional distress; violations of Alabama's Mini-Code, Ala. Code §5-19-1 et seq.; conspiracy; money paid by mistake; conversion; and defamation.  The Dowdles also sought to certify a class.  After Ocwen Federal Bank, FSB ("Ocwen") replaced Aurora as the servicer of the Dowdles' loan, the Dowdles began receiving statements from Ocwen.  The first statement the Dowdles received from Ocwen showed that they owed $3,948.63;  that amount included interest in the amount of $933.49.  After receiving the statement, the Dowdles contacted Ocwen to inform it that the debt was the subject of a legal action and that they were represented in that action by legal counsel.  The Dowdles' attorney sent a letter to Ocwen, explaining that the debt it was attempting to collect from the Dowdles was disputed and was the subject of pending litigation.  Nonetheless, Ocwen continued to send the Dowdles monthly statements, increasing the past-due amount by $1,091.49 each month and assessing the Dowdles a late charge.  Ocwen also contacted certain credit agencies to inform them that the Dowdles were delinquent in paying the amounts they owed it.  The Dowdles amended their complaint to add Ocwen as a defendant.  The Dowdles submitted interrogatories and document requests to all the defendants.  Ocwen moved for a protective order to stay discovery; the trial court conditionally granted the order on September 11, 2000, pending receipt of discovery from the remaining defendants.  The trial court lifted the stay on February 6, 2001.  On March 19, 2001, the trial court entered a discovery scheduling order, requiring the completion within 120 days of all discovery concerning the merits of the Dowdles' claims and the certification of the purported class.  On May 14, 2001, Ocwen filed a response to the Dowdles' June 2, 2000, discovery request.  That response contained a general objection to each of the Dowdles' requests.  On May 21, 2001, Ocwen moved for a protective order to stay discovery until the trial court decided whether to certify the purported class.  On May 31, 2001, the Dowdles moved to compel Ocwen to respond to the outstanding discovery request.  On August 14, 2001, the trial court denied Ocwen's motion for a protective order and granted, with limitations, the Dowdles' motion to compel.  On September 26, 2001, Ocwen petitioned the Supreme Court for the writ of mandamus.  HOLDING:  The Supreme Court denied the petition for writ of mandamus because Ocwen dod not demonstrate that an appeal would not afford it a full and adequate remedy.  The Court also held that the trial court's order -- that restricted to five years the period as to which the Dowdles' were entitled to discovery and limited the scope of their discovery to Ocwen's customers who lived in Alabama or whose collateral was located in Alabama -- was not overly burdensome or oppressive.  The Court noted that mere recitation that certain information is a trade secret does not automatically bestow immunity from disclosure and that the person or entity attempting to exercise the privilege must show that the information sought to be protected satisfies the definition of a trade secret.  The Court held that Ocwen failed to demonstrate that it was entitled to trade-secret protection.)
*Download or view PDF version of opinion*
 
• Tipler v. Alabama State Bar,

No. 1011865 (Ala. Mar. 28, 2003)
(professional conduct of attorneys; bar discipline; referral fee agreement; On December 10, 1993, Charles Bentley, a client of Francis "Sonny" James, who was a principal in James & James, a law firm in Andalusia ("the James firm"), entered into a contract with the firm to represent him in a medical-malpractice/wrongful-death case arising out of the death of his wife.  On December 13, 1993, James referred Bentley's case to Frank Tipler, James Harvey Tipler's father, of the Andalusia law firm of Tipler & Tipler.  Pursuant to the referral letter sent to Frank Tipler by James, Tipler & Tipler would be entitled to 60% of any legal fees but it would be obligated to pay all costs associated with the litigation.  Subsequently, James Harvey Tipler became the lawyer responsible for Bentley's case.  On April 13, 1994, Bentley signed a "retainer agreement" prepared by Tipler & Tipler, which established a 50% attorney fee in the event there was any recovery on Bentley's claims.  James Harvey Tipler  ("Tipler") filed a complaint on behalf of Bentley; James was designated in the complaint as being "of counsel."  In 1997, Tipler tried the Bentley case before a jury in the Covington County Circuit Court, obtaining a verdict for the plaintiff of $2 million.  The trial court's judgment entered on that verdict was appealed, and was affirmed by the Supreme Court in McKowan v. Bentley, 773 So.2d 990 (Ala. 1999).  The total judgment amount ultimately due, calculating interest that had accrued during the appeal, was $2,438,574.06.  At the conclusion of the appeal, with Tipler's knowledge and approval, $659,261.20 of that judgment was transmitted by counsel for the defendant directly to the Internal Revenue Service and the Alabama State Revenue Department to satisfy tax liens filed against Tipler's property.  The remaining $1,779,312.36 was then remitted to Tipler.  On September 22, 1999, he deposited that amount into his attorney trust account.  The day before that deposit, the balance in the trust account was only $12,210.27.  According to the bank records relating to the trust account, shortly after the $1,779,312.36 deposit, Tipler wrote a check out of the trust account for $50,000 payable to the Tipler Law Firm, which was deposited into the firm's operating account.  Also soon after September 22, Tipler sent a check drawn on the trust account in the amount of $279,731.08 to the "Destin Bank," for payment on a line of credit he had with that bank.  That check cleared the trust account October 4, 1999.  At points between October 7 and 13, 1999, Tipler made disbursements to, or on behalf of, Charles Bentley and David Bentley, Charles's son who was entitled to share equally in the net recovery, totaling $1,194,380.29.  That amount represented the balance remaining of their $1,219,287.03  (50% of the $2,438,574.06 total recovery), after Tipler deducted expenses of litigation aggregating $24,906.74.  There is no dispute that the Bentleys received all of the proceeds to which they were entitled under their attorney fee agreement with the Tipler Law Firm.  However, there is equally no dispute that the payments of the tax liens, the payment to the Tipler Law Firm's operating account, and the payment to the Destin Bank -- totaling $988,992.28 -- used up all but $230,294.75 of the proceeds allocable to attorney fees.  On October 7, 1999, Tipler faxed a letter to James, essentially advising him that Tipler believed there was an ethical problem with the referral fee.  He explained that he had met with Dana Matthews, an attorney who practiced law in Florida and who had handled a prior "bar matter" for Tipler, at a restaurant in Florida on either October 6 or 7, and that at that time Tipler made "the final decision" not to pay the referral fee; shortly thereafter he transmitted the October 7 letter to James.  Tipler knew, and had acknowledged to James, before October 7, 1999, that the James firm was entitled to a portion of the proceeds from the Bentley case under a referral agreement between it and the Tipler Law Firm.  Furthermore, both before and after a dispute had arisen as to James's entitlement to that referral fee, Tipler used the bulk of the moneys in dispute to satisfy personal obligations rather than holding the portion of that money in dispute until the referral-fee dispute was resolved.  In the process, the funds were all but completely depleted.  The general counsel of the Alabama State Bar ("the Bar") filed formal charges against Tipler . The Bar's complaint presented five charges, alleging violations of the following Alabama Rules of Professional Conduct: Rule 1.15(a), Rule 1.15(b), Rule 1.15(c), Rule 8.4(c), and Rule 8.4(g), based on allegations that Tipler failed to satisfy a $487,714.80 referral fee agreement entered into between his firm and James, the referring attorney.  Tipler denied the allegations.  The Disciplinary Board issued a "Report and Order," finding Tipler guilty of the charge that he had violated Rule 1.15(c), Ala.R.Prof.Conduct, and not guilty as to the other charges.  Tipler was suspended from the practice of law for 91 days, upon the condition that the suspension would be reduced to 30 days if within 30 days of the date of the Report and Order Tipler deposited a certain sum of money into the trust account of either the attorney representing him in the disciplinary proceeding or the attorney representing him in a civil action filed by James.  Tipler was also assessed for all costs incurred as a result of the proceedings.  Thereafter, Tipler filed a motion to extend the time within which he would be required to deposit the required funds into the trust account of either of his attorneys; that motion was denied.  Tipler filed a "notice of appeal" to the Board of Disciplinary Appeals ("the Board of Appeals") of the Alabama State Bar.  The Board of Appeals issued a "final order" on June 19, 2002, affirming the decision of the Disciplinary Board.  Tipler thereafter timely appealed to the Supreme Court.  HOLDING:  The Supreme Court held that when Tipler became aware of a dispute as to the referral fee, he was required by Rule 1.15(c), Ala.R.Prof.Conduct, to keep the $487,714.80 in dispute in a separate account until the dispute was resolved.   Thus, the Court stated that it could not conclude with "definite and firm conviction," that the Disciplinary Board erred in its factual finding that Tipler violated Rule 1.15(c).  The Court concluded that the Disciplinary Board's 91-day suspension of Tipler from the practice of law was not manifestly excessive.  The Court affirmed the decision of the Disciplinary Board.)
*Download or view PDF version of opinion*
 
• Ex parte Estate of Inez Harris,

No. 1011881 (Ala. Mar. 28, 2003)
(The Supreme court quashed the writ of certiorari without opinion, but stated that the action in quashing the writ should not be taken as an expression of approval regarding the reasoning in the Court of Civil Appeals' opinion.)
*Download or view PDF version of opinion*
 
• Southern Pine Electric Cooperative v. Burch,

No. 1020066 (Ala. Mar. 28, 2003)
(wrongful termination of electricity service; remittitur; Christopher Burch sued Southern Pine Electric Cooperative alleging wrongful termination of his electric service.  A jury awarded Burch $20,000 in compensatory damages and $75,000 in punitive damages.  Southern Pine Electric Cooperative filed a motion for a remittitur, which the trial court orally denied, without stating its reasons for doing so.  Southern Pine Electric Cooperative appealed. HOLDING:  The Supreme Court held that the trial court erred in denying Southern Pine Electric Cooperative's motion for a remittitur without providing a written statement of the reasons for the denial.  The Court remanded the case for the trial court to enter an order in compliance with Hammond v. City of Gadsden, 493 So.2d 1374 (Ala. 1986), stating its reasons supporting the denial of the motion.)
*Download or view PDF version of opinion*
 
• Ex parte Harrington,

No. 1020679 (Ala. Mar. 28, 2003)
(criminal; The Supreme Court denied the petition for writ of certiorari without opinion, but the Court stated that in denying the petition for the writ of certiorari, it did not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion.)
*Download or view PDF version of opinion*

Back to top

Opinions Released March 21, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  MARCH 21, 2003

 
• Ex parte Deramus,

No. 1012372 (Ala. Mar. 21, 2003)
(criminal; habeas corpus; Christopher Deramus was convicted of murder in 1988 and was sentenced to 45 years' imprisonment.  In 1994, Deramus was granted work-release status.  In 1995, Deramus began participating in the "PDL" work-release program, and he continued in the program for approximately five years.  On June 23, 2000, Deramus was removed from work-release status and returned to Kilby Correctional Facility.  Following his removal from the program, the Alabama Department of Corrections ("DOC") notified Deramus that he had been reclassified as a "heinous offender" and that he was permanently ineligible to participate in the work-release program.  On February 12, 2001, Deramus filed a "petition for writ of certiorari" in the Limestone Circuit Court.  The petition alleged that DOC had improperly classified him as a "heinous offender."  The circuit court restyled the petition as one for a writ of habeas corpus and, after conducting a hearing, denied the petition.  Deramus appealed.  The Court of Criminal Appeals did not address the merits of Deramus's argument; instead the court affirmed the judgment of the circuit court because Deramus had mislabeled his petition -- Deramus's petition was styled as a "petition for writ of certiorari," rather than a "petition for writ of habeas corpus."  The Supreme Court concluded that the Court of Criminal Appeals had erred, holding that because it was clear on the face of Deramus's petition that he was requesting relief regarding the change in his custody classification, the Court of Criminal Appeals should have treated Deramus's petition as a petition for a writ of habeas corpus and considered the merits of his claims.  On remand, the Court of Criminal Appeals again affirmed the trial court's dismissal of Deramus's petition on the ground that Deramus had not complied with the statutory pleading requirements set forth in Ala. Code §15-21-4.  The Court of Criminal Appeals based this determination on the fact that Deramus did not attach documents to his petition showing that he had a liberty interest in remaining on work release, showing that he had been removed from work release without due process, and showing that DOC had inconsistently and arbitrarily applied the policy.  In support of its holding, the Court of Criminal Appeals cited its decision in Conners v. State, No. CR-00-1074 (Ala. Crim. App. Nov. 30, 2001). HOLDING:  The Supreme Court declined to follow Conners and overruled it to the extent it conflicts with this decision.  The Court concluded that Deramus's petition complied with the requirements of Ala. Code §15-21-4.  The Court reversed the judgment of the Court of Criminal Appeals and remand the case.)
*Download or view PDF version of opinion*
 
• Ex parte F.P.,

No. 1002146 (Ala. Mar. 21, 2003) (on application for rehearing; withdrawing and substituting the opinion released on February 22, 2002)
(termination of parental rights; adoption; vested rights; retroactivity; 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.  On rehearing, the Court addressed the amendments to the Alabama Adoption Code, Ala. Code §26-10A-1 et seq.,  passed by the Legislature effective April 17, 2002.  See Act No. 2002-417, Ala. Acts 2002.  Section 2 of Act No. 2002-417 states: "This act shall have retroactive effect to January 1, 1997."  On rehearing, the biological father challenged the constitutionality of those amendments to § 26-10A-9 in Section 1 of Act No. 2002-417 and the retroactivity provision in Section 2.  The first amendment to § 26-10A-9(a)(1) that recognized the concept of prebirth abandonment became effective on June 11, 1999, approximately 25 days before the birth of the child.  The Court concluded that the prebirth-abandonment provision cannot apply to this case unless that portion of Act No. 2002-417 giving retroactive effect to January 1, 1997, to the amended statutes requires otherwise.  The Court then concluded that to hold that the father fulfilled the requirement for a 6-month prebirth abandonment pursuant to a statute that became effective only 25 days before the birth of the child would "create a new obligation, impose a new duty, or attach a new disability, in respect to [a] transaction[] ... already past."  Ex parte Buckley, 53 Ala. 43, 55 (1875).  The Court held that the Legislature was prohibited by Art. IV, § 95, Ala. Const., from taking away the father's rights by enacting Act No. 2002-417.  The Court did not address the arguments concerning the constitutionality of the substantive provisions of the Act in proceedings where § 95 is not at issue.  Finally, the Court held that the father did not abandon the child, either before or after its birth; therefore, the Court concluded that he did not impliedly consent to the child's adoption.)
*Download or view PDF version of opinion*
 
• Ex parte Woodward,

No. 1010187 (Ala. Mar. 21, 2003)
(immunity; In 1998, Jim Woodward and Mike Hale were competing candidates for the office of sheriff of Jefferson County.  After the election, Mike Hale was installed as the sheriff; after an election contest, the Supreme Court held that Woodward was the rightful winner in that election.  After Woodward was sworn into office, he terminated Allen Farley and demoted Jim Roberson, both of whom were Jefferson County deputy sheriffs.  Farley and Roberson sued Woodward and the Jefferson County Personnel Board ("the personnel board") for wrongful termination and sought reinstatement.  The personnel board was realigned as a plaintiff, because the personnel board's position was the same as Farley's and Roberson's.  Roberson and Farley sought to recover from Woodward back pay; costs of litigation, including reasonable attorney fees; and appropriate monetary damages, both compensatory and punitive.  Woodward moved for a partial summary judgment, seeking a dismissal of the claims "to the extent they sought damage relief against him in his individual capacity." The trial court denied his motion.  Woodward petitioned the Supreme Court for a writ of mandamus to direct the trial court to dismiss the claims asserted against him in his individual capacity.  HOLDING:  The Supreme Court granted the writ of mandamus to the extent that Roberson and Farley, and the personnel board, seek monetary damages against Woodward, individually.  The Court directed the trial court to dismiss the claims against Woodward in his individual capacity.)
*Download or view PDF version of opinion*
(Note:  The successful petitioner in this case was represented by Albert L. Jordan and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C.)
 
• Ex parte Heflin,

No. 1011506 (Ala. Mar. 21, 2003)
(criminal; DUI; working condition of an "Intoxylizer 5000"; The Supreme Court quashed the writ of certiorari without opinion.  Justices Johnstone and Stuart wrote concurring opinions.)
*Download or view PDF version of opinion*
 
• Parker v. Bozian,

No. 1012252 (Ala. Mar. 21, 2003)
(estates; wills; Effie Roney Wilson died on April 20, 2001.  Sara Parker, a niece, was appointed the executrix of Wilson's will, which was executed by Wilson on April 27, 1995.  Wilson, in "Item Two" of her will, made specific devises of sums of money to several individuals and to a church, and in "Item Four" she gave "[a]ll the rest, residue and remainder of my estate ... to Sara Parker."  The dispute between the parties revolves around the construction of "Item Three" of her will, which reads as follows: "I give, devise and bequeath to Marguerite W. Bazian [sic], my CD Account #005-0001274 with the First Bank of Dothan, Dothan, Alabama."  Because a dispute arose between Parker, as executrix, and Bozian, the legatee, regarding the interpretation of Item Three,  Bozian filed an action against Parker seeking a  declaration that the funds in the two certificate-of-deposit accounts were given to her under Wilson's will.  She asked the trial court to order Parker to transfer the funds in those certificate-of-deposit accounts to her.  In her complaint she alleged that Wilson, on March 16, 1992, deposited $69,646.50 with First Bank, and received a six-month certificate of deposit, with automatic renewal provisions, and that First Bank designated the account as CD 1274.  She further alleged that on the last maturity date of CD 1274, March 16, 2000, Wilson "transferred, swapped, or rolled the matured existing funds (identified as CD 1274) into another account or contract ... for the purpose of increasing the rate of interest from 4.5% to 7%."  In her declaratory-judgment action, Bozian further alleged that "[a]t the time of the swap, roll over, or transfer, the funds on deposit with the Bank were divided into two accounts, one being designated as CD account number 2843 (CD 2843) in the amount of $49,594.98, and the other being designated as CD account number 2844 in the amount of $49,594.97," and that "[t]he new CD accounts were derived solely and fully from the existing CD 1274."  On March 16, 2000, the maturity date for CD 1274, Wilson was taken to First Bank by Shelby Parker, Parker's husband.  The evidence is uncontradicted that on that date the CD 1274 account was the only account Wilson had at First Bank; it is also undisputed that at that time First Bank was paying interest at the rate of 4.5% on CD 1274, but was paying an interest rate of 7% on a 24-month certificate of deposit.  Lisa Merritt, the bank officer who assisted Wilson, testified at the trial.  Although she testified that she could not recall the specific transaction, she did testify that Wilson did not add any money to, or subtract any money from, the CD 1274 account, which at that time amounted to $99,189.95.  Wilson transferred the entire amount in CD 1274 into two separate 24-month certificates of deposit, CD 2843 and CD 2844, the interest on which was 7%.  Merritt testified that the bank numbered the two certificates of deposit as 2843, in the amount of $49,594.98, and 2844, in the amount of $49,594.97.  Merritt testified that even though the two new certificates of deposit had different numbers than did the original certificate of deposit, the moneys in the two accounts represented by the certificates of deposit remained under the same portfolio number with the bank, and were the "same money."  At the time of Wilson's death, Parker refused to give Bozian the funds in the two certificates of deposit, because she was of the opinion that the certificate of deposit enumerated in the will had been closed out and the gift to Bozian had adeemed.  The trial judge, in a bench trial, heard conflicting ore tenus evidence.  The evidence was conflicting regarding the reason for the testatrix's dividing the proceeds of CD 1274 and opening two certificate-of-deposit accounts, of approximately equal value.  Parker, who is the legatee of the sizable residuary estate, contends that the testatrix took this action because Bozian was talking about putting the testatrix in a nursing home.  Bozian argues that the testatrix took the action she took with regard to CD 1274 because she wanted to deposit the money for a longer term and to get a higher rate of interest.  Bozian also argues that the testatrix took similar action at other banks where she had certificate-of-deposit accounts, in order to get a higher rate of interest.  The trial judge found in favor of Bozian, and Parker appealed.  HOLDING:  The Supreme Court affirmed.  The Court held that the specific legacy of the certificate of deposit did not adeem simply because the account designated by a specific number in the will did not exist at the time of the testatrix's death because the testatrix had transferred the funds from that account into two certificate-of-deposit accounts.)
*Download or view PDF version of opinion*

Back to top

Opinions Released March 14, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  MARCH 14, 2003

 
• Ex parte Smith,

No. 1010267 (Ala. Mar. 14, 2003)
(criminal; capital murder; death penalty; mitigation evidence; mental retardation; HOLDING:  The Supreme Court held that the defendant, who had been sentenced to death, was improperly restricted in presenting mitigation evidence of the impact of his allegedly dysfunctional family on his development.  The Court held that the defendant was not mentally retarded even under the broadest definition of mental retardation.)
*Download or view PDF version of opinion*

Ex  parte Hodges,
No. 1010619 (Ala. Mar. 14, 2003)
(criminal; capital murder; judicial override of jury recommendation for life sentence; evidence of mitigating circumstances; The defendant was convicted of murder made capital because it was committed during the course of a robbery in the first degree.  By a vote of 8-4, the jury recommended a life sentence.  The trial judge overrode the jury and sentenced the defendant to death. HOLDING:  The Supreme Court held that the judicial override was not unconstitutional in this case in light of Apprendi v. New Jersey, 503 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), because the findings reflected in the jury's verdict of the aggravating circumstance of the murder during a first-degree robbery exposed the defendant to a range of punishment that included the death penalty.  The Court rejected the defendant's argument that he was unfairly restricted in presenting mitigation evidence.)
*Download or view PDF version of opinion*
 

• Ex parte Coleman,

No. 1010644 (Ala. Mar. 14, 2003)
(oral modification of agreement; conversion; Beginning in 1999, Jesse W. Coleman and Vera F. Coleman together and then Vera singly entered into a series of pawn transactions with The Money Tree.  The Colemans initially borrowed $500 and pawned the title to their 1995 Cadillac.  In June 1999, the Colemans borrowed an additional $500 (for a total borrowed principal of $1,000) and repawned the title to their Cadillac.  Thereafter, the Colemans together and then Vera singly repawned their car each month, with the agreement of The Money Tree, by paying the interest accrued for the particular month and by signing a new pawn ticket containing the terms of the pawn transaction.  Each pawn ticket provided that the "length of the pawn transaction is 30 days and it can only be repawned with the agreement of both parties and only for 30 day incremental periods," that "pawn transaction has a grace period of 30 calendar days following the maturity date of the transaction," and that "[v]erbal agreements for additional days are not binding."  On November 4, 1999, with the agreement of The Money Tree, Vera again repawned the Colemans' car in writing.  The maturity date of that pawn ticket, as expressly entered in writing on that pawn ticket, was December 5, 1999.  The Colemans claimed that they entered into an oral agreement with the Money Tree to extend the maturity date by 30 days.  They claimed that when they tried to get their car back on January 4, they were told that the car had already been repossesed and had already been sold.  The Colemans sued The Money Tree, Moore, and Jerry Higginbotham (another employee of The Money Tree) for conversion, fraud, conspiracy, breach of contract, and the tort of outrage.  The Colemans alleged that The Money Tree wrongfully took possession of their 1995 Cadillac automobile, which the Colemans had pawned to The Money Tree.  The Colemans asserted that the defendants had, by oral agreement, extended for 30 more days the December 5, 1999 maturity date of the last pawn ticket entered between The Money Tree and Vera and that the defendants had prematurely and wrongfully taken possession of the car before the expiration of that extended maturity date, January 4, 2000.  The defendants moved for summary judgment on the ground, among others, that the pawn ticket specifically prohibited oral agreements to extend the maturity date of the pawn.  The defendants also argued, without submitting any proof, that they did not make any oral agreement to extend the maturity date of Vera's last pawn.  The trial court entered summary judgment in favor of the defendants.  The Court of Civil Appeals affirmed.   HOLDING:  The Supreme Court held that even if a written agreement provides that all changes to an agreement must be in writing, a subsequent oral modification may still be enforced.  Thus, the Court held that the trial court erred in granting summary judgment on the breach of contract claim, and the Court of Civil Appeals erred in affirming that summary judgment.  The Court held that the Colemans presented substantial evidence that the defendants wrongfully took the Colemans' car, or wrongfully interfered with the Colemans' car, during the 30-day extended term of their pawn transaction with The Money Tree.  Therefore, the Court held that the trial court erred in entering summary judgment in favor of the defendants on the Colemans' conversion claim and that the Court of Civil Appeals erred in affirming the summary judgment on the Colemans' conversion claim.  The Court held that the Court of Civil Appeals correctly affirmed the judgment on the Colemans' fraud and tort-of-outrage claims.)
*Download or view PDF version of opinion*
 
• Lyles v. Pioneer Housing Sys., Inc.,

No. 1010908 (Ala. Mar. 14, 2003)
(arbitration; nonsignatory plaintiffs; Debra and Derrick Lyles bought a new mobile home from a dealer located in Clanton.  The home was manufactured by Pioneer.  After the mobile home was delivered to the Lyleses in Wetumpka, they began to experience various problems with the home.  The Lyleses sued Pioneer, alleging  breach of contract, breach of implied and express warranties, violation of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, negligence, and fraud.  After a hearing on Pioneer's motion to compel arbitration, the court granted that motion.  Three days later, the Lyleses voluntarily dismissed their Magnuson-Moss Act claim against Pioneer.  Pioneer filed a notice, purporting to consent to the voluntary dismissal of the express-warranty and Magnuson-Moss Act claims.  The Lyleses filed a motion to vacate the order compelling arbitration, and the trial court scheduled a hearing.  When the Lyleses and their counsel failed to appear at the hearing because of scheduling conflicts, the trial court denied the motion to vacate.  HOLDING:  A plurality of the Court held that even though the Lyleses never signed the arbitration agreement, by accepting benefits under Pioneer's written warranty, they agreed to arbitrate their claims against Pioneer.  However, a majority of the Court held that the trial court erred in requiring the Lyleses to arbitrate all of their claims because the warranty only requires that "warranty disputes" be submitted to arbitration.)
*Download or view PDF version of opinion*
 
• Ex parte Hudson,

No. 1011148 (Ala. Mar. 14, 2003)
(immunity; In 1994, Russell Hudson was the purchasing foreman in the Mobile County School System's renovations department.  In March 1994, the Mobile County School System solicited bids for the delivery and installation of bleachers in the gym at C.F. Vigor High School.  The bleachers were not to be stationary; they were to pull out when necessary for seating and to close against the wall when more floor space was needed in the gym.  The school system ultimately contracted with Garner & Associates, Inc., to deliver and  install bleachers manufactured by Interkal, Inc. Once the school system had received bids from vendors, Hudson checked to ensure that the bids complied with the bid specifications and then made a recommendation to the school board as to which bid should be accepted.  The school board made its decision, and once Hudson, or someone in his office, issued the purchase orders relating to the bleacher project, Hudson's work on the project ended.  Hudson did not supervise the actual installation or maintenance of the bleachers at Vigor High School.  Garner & Associates claims that in October 1994, in connection with the Vigor bleacher project, it sent Hudson a bleacher maintenance manual.  Hudson stated in his deposition that he did not recall having received the manual, but that if he had received it, he would have passed it on to the project site foreman, Clayton Haggett.  Hudson stated that, though no one has ever told him that it was part of his job to forward maintenance manuals to job sites, if he received a manual or other similar documentation relating to a project, he usually would pass it along to the site foreman as part of his job.  On December 12, 1997, at the request of their gym teacher, Duane Haston and two other Vigor High School students tried to close the bleachers by pushing them towards the wall.  The bleachers slipped off track and fell onto Haston, breaking his back.  Haston, by and through his father and next friend Duane Haston, Sr., sued Russell Hudson and others alleging, among other claims, that Hudson had negligently inspected and maintained the bleachers at Vigor High School.  Hudson and the other individual-school-system-employee defendants moved for a summary judgment on the ground that they were protected by State-agent immunity.  The trial court entered a summary judgment in favor of all of the individual-school-system-employee defendants except Hudson.  HOLDING:  The Supreme Court held that Hudson's activities are comparable to the activities referred to in Ex parte Cranman as a state agent's "exercising his or her judgment ... [in] ... allocating resources [or] negotiating contracts."  The Court concluded that Hudson is entitled to State-agent immunity as to the claims that Hudson failed to properly evaluate the bids for the bleachers and failed to inspect the bleachers.  The Court held that Hudson was not entitled to immunity on the claim that Hudson's job included passing along the maintenance manual he received from Garner & Associates for the bleachers to the project foreman, that doing so was a ministerial duty, and that Hudson's failure to carry out this duty is negligent or wanton behavior. 
*Download or view PDF version of opinion*
 
• Custer v. Homeside Lending, Inc.,

No. 1011409 (Ala. Mar. 14, 2003)
(force-place flood insurance; Raymond Custer and his wife, Elizabeth, own a residence in Birmingham, Alabama, which they purchased in 1970.  The mortgage did not require the Custers to maintain flood insurance on the mortgaged property, but did provide that the Mortgagor "will keep the improvements now existing or hereafter erected on the mortgaged property, insured as may be required  from time to time by the Mortgagee against loss by fire and other hazards, casualties and contingencies in such amounts and for such periods as may be required by the Mortgagee."  The mortgage also provided that "If the Mortgagor fails to insure said property as hereinabove provided ... the Mortgagee may, at its option, insure said property ...."  The Custer loan was transferred several times to various mortgage-loan-servicing companies over the course of its life; it was transferred to Homeside Lending, Inc. in 1989.   WNC Insurance Services, Inc. ("WNC") had entered into a "Policy of Insurance Contract" with Homeside whereby WNC would "force-place" flood insurance for certain Homeside borrowers.   Pursuant to this agreement, WNC agreed to bind coverage on properties encumbered by Homeside mortgages, and, if needed, to force-place flood insurance with certain underwriters.  WNC had also entered into a "Servicing Agreement" with Homeside pursuant to which  WNC agreed to provide flood audit services and Homeside agreed to purchase from WNC flood insurance Homeside forced-placed on the mortgages it serviced.  Between 1993 and 2000, WNC issued approximately 6,000 force-placed flood-insurance policies on properties encumbered by mortgages serviced by Homeside.  After receiving a series of letters concerning flood insurance and being notified that Homeside was force-placing flood insurance on their home, the Custers decided to pay off the outstanding balance of their mortgage loan.  In July 1999, they calculated the remaining balance and submitted to Homeside a check in the amount of $1,700.32.  The complaint filed by the Custers in this action states that after receiving the Custers' check, Homeside responded by letter, stating that in order to pay off the loan balance, the Custers would have to pay an additional $938.22 for hazard disbursement, which included $667 as the annual premium for flood insurance.   The complaint also states that in "late July 1999," the Custers made a "regular" payment in the amount of $205.67 on the loan.  Several weeks later, as also indicated by the complaint, the Custers received a letter from Homeside stating that the amount necessary to satisfy the loan would be $197.98, which included earned premiums to date on the force-placed flood-insurance policy.  In an August 4, 1999, notice from WNC, the Custers were informed that the force-placed insurance had been in effect on their property from April 21, 1999, to July 20, 1999, and that premiums of $214.02 had accrued on the policy.  Thereafter, the Custers mailed a cashier's check, on or about September 27, 1999, to Homeside in the amount of $213, which, the Custers assert in their complaint, paid the loan in full.  Homeside filed a motion for a summary judgment as to all claims with supporting evidentiary materials.  The Custers sued, and the Custers' complaint, as amended, sought compensatory and punitive damages on claims of breach of contract, unjust enrichment, breach of duty of good faith and fair dealing, negligence, fraud by suppression, breach of a duty to a third-party beneficiary, and breach of an implied contract.  Homeside filed a motion for a summary judgment as to all claims with supporting evidentiary materials.  The trial court entered a partial summary judgment in favor of Homeside on all claims except the Custers' breach-of-express-contract claim and third-party-beneficiary claim, without stating its reasons for denying the summary-judgment motion as to those claims.  Subsequently, the trial court reconsidered Homeside's summary-judgment motion and, again without stating a rationale, entered a summary judgment on the case action summary sheet in favor of Homeside as to those claims as well.  The trial court also denied class certification of the Custers' claims.  The Custers then appealed.  HOLDING: The Supreme Court held that because the outstanding principal on the Custers' loan at the time Homeside force-placed flood insurance on the mortgaged property was approximately $2000, the minimum amount of flood insurance that Homeside could have force-placed on the Custers' property was $2000.  The Court held that in force-placing flood insurance in the amount of $79,000, Homeside satisfied the minimum force-placement requirements of the National Flood Insurance Act, 42 U.S.C. § 4001 et seq. ("the NFIA").  The Court held that contractually, Homeside was given the right to force-place a higher amount, under the provisions of the mortgage authorizing it to force-place insurance against loss "in such amounts" as it might choose to require.  The Court concluded that Homeside did not breach the terms of the mortgage agreement between it and the Custers by force-placing flood insurance in an amount that exceeded the outstanding principal on the Custers' loan.  The Court affirmed the summary judgment in favor of Homeside, and therefore held that it need not address the issue of class certification.)
*Download or view PDF version of opinion*
 
• Jackson v. Alexander, Corder, Plunk & Baker, P.C.,

No. 1011604 (Ala. Mar. 14, 2003)
(attorneys' fees; breach of contract; The Court affirmed the judgment of the trial court without opinion.  Chief Justice Moore wrote an opinion concurring in part and dissenting in part, stating that he would reduce the amount of the judgment.)
*Download or view PDF version of opinion*
(Note:  The successful appellees were represented by Albert L. Jordan and Michael L. Jackson of the law firm of Wallace, Jordan, Ratliff & Brandt, L.L.C.)
 
• Lee v. YES of Russellville, Inc.,

No. 1011691 (Ala. Mar. 14, 2003)
(construction; voidness of contract with unlicensed contractor;  A complaint was filed by YES of Russellville, Inc. ("YES") and  Narendra Sheth against "Joseph Hemingway, individually, and d/b/a American Quality Service" ("AQS") (case no. CV-99-224) and a  complaint was filed by "Joseph Hemingway, d/b/a American Quality Service," against YES and Sheth "to establish a lien" on property owned by YES and/or Sheth and seeking to recover $852,000 "for work and improvements done on the property of the defendant[s]," in counts for breach of contract and money "due on open account" (case no. CV-99-240).  Community Spirit Bank ("the Bank") intervened.  The actions were treated as though they were consolidated.  YES and Sheth filed a joint motion for a summary judgment, arguing that Hemingway had failed to comply with the licensing requirements of Ala. Code §34-8-1 et seq., relating to general contractors, and, consequently, that the construction contract was unenforceable.  Helen Lee moved to amend the complaint to substitute herself as plaintiff.  She contended that AQS was a trade name under which she operated a sole proprietorship and that Hemingway had acted as her agent in dealing with YES and Sheth.  It is undisputed that at all relevant times, Lee possessed a valid general contractor's license.  The trial court granted Lee's motion to substitute herself as plaintiff and denied the summary-judgment motion.   The trial court found "that Joseph Hemingway acted as the 'principal' and [was] in fact that individual acting as the general contractor responsible for the construction of the hotel in question in Russellville, Alabama."  Consequently, the court held that the contract between YES/Sheth and AQS was void.  The court entered a judgment in favor of YES, Sheth, and the Bank (the "Owners") and made the judgment final, pursuant to Ala.R.Civ.P. 54(b). HOLDING:  The Supreme Court held that the record amply supports the finding that Joseph Hemingway was doing business as American Quality Service in the construction of the hotel.  Thus, the Court affirmed the judgment.)
*Download or view PDF version of opinion*
 
• Lyons v. River Road Construction, Inc.,

No. 1012092 (Ala. Mar. 14, 2003)
(immunity; Ala. Const. art. I, §14; The Alabama State Port Authority contracted with Ben Radcliff Contractor, Inc. ("Radcliff") to construct a liquid-bulk terminal at the Theodore Ship Turning Basin located at the Port of Mobile.  Radcliff entered into a subcontract with River Road Construction, Inc.  ("River Road"), for the dredging portion of the project.  River Road alleges that in developing its bid to Radcliff for the dredging it relied upon the soil-boring data in a report prepared by Southern Earth Sciences, Inc.  The report was commissioned by the port authority, and it indicated that the material involved in the dredging work consisted of sand and clay.   However, after River Road began dredging, it encountered a substantial presence of rock, which made the dredging work more difficult and more expensive.  River Road alleges that when it became aware of the presence of rock in the area to be dredged it gave notice of the unforeseen conditions to Radcliff and the port authority.  River Road completed the dredging work; it alleges that it incurred additional expenses of $1,108,944 in dredging the unanticipated rock.  The port authority refused to pay River Road the additional expenses.  River Road filed a complaint against the port authority with the State Board of Adjustment ("the Board") demanding payment of its additional expenses.  The port authority filed with the Board a motion to dismiss the complaint for lack of jurisdiction.  In its response to the port authority's motion to dismiss, River Road acknowledged that its action against the port authority could not be submitted to a court because it was constitutionally barred by the doctrine of State immunity.  While its claim before the Board was pending, River Road sued James K. Lyons, in his official capacity as director of the port authority.  River Road requested a declaration of its rights and further requested the court to compel Lyons to perform his "legal duty" to pay River Road for the additional expenses of $1,108,944.  The Board subsequently dismissed River Road's claim against the port authority on the basis that it lacked jurisdiction of the claim.  Lyons filed a motion in the circuit court to dismiss the complaint against him, arguing that River Road's action was barred by the doctrine of State immunity.  The trial court entered an order denying Lyons's motion to dismiss.  HOLDING: The Supreme Court held that River Road's action is precluded by the doctrine of State immunity.  Thus, the Court reversed the trial court's order denying Lyons's motion to dismiss.)
*Download or view PDF version of opinion*
 
• Ex parte Barnett,

No. 1012094 (Ala. Mar. 14, 2003)
(criminal; Timothy Barnett was convicted of capital murder and was sentenced to life imprisonment without the possibility of parole.  Barnett filed a petition for a writ of mandamus in the Court of Criminal Appeals, alleging that the trial judge had "abused his discretion by failing to rule on [his] Rule 32 petition."  On July 15, 2002, the respondent trial judge answered, stating: "The records of the Circuit Court of Autauga County have been diligently searched and the Rule 32 Petition that Mr. Barnett alleges to have filed on April 30, 2001, does not exist."  The Court of Criminal Appeals dismissed Barnett's petition.  Barnett filed a petition for writ of mandamus with the Supreme Court of Alabama.  Barnett did not include a copy of the alleged petition with his petition for writ of mandamus.  Barnett asked the Court to order the trial judge to allow him to file his Rule 32 petition nunc pro tunc as though it was filed on April 30, 2001. HOLDING:  The Supreme Court denied the petition for writ of mandamus.  The Court noted that Barnett offered no evidence indicating that he has refiled, or has even attempted to refile, the Rule 32 petition with the circuit court, and therefore, the Court cannot grant Barnett's requested relief -- at this time -- because there is no pending Rule 32 petition for the Court to direct the circuit court to treat as having been filed on April 30, 2001.)
*Download or view PDF version of opinion*
 
• Dixon v. Board of Water & Sewer Comm'rs,

No. 1012131 (Ala. Mar. 14, 2003)
(negligence; summary judgment; On November 21, 2000, raw sewage from a sewer system operated by the Board of Water & Sewer Commissioners of the City of Mobile ("the Board") was discharged through plumbing fixtures in Janice Dixon's home, flooding the house, running out the front door, and forcing her to evacuate the premises. Consequently, on March 9, 2001, Dixon sued the Board, alleging, among other things, that the Board was negligent in the design, maintenance, and operation of its sewage system, including a "lift station adjacent to [her home], so as to  allow ... raw ... sewage to escape from the ... sewer system" and flood her home.  The Board filed a motion for a summary judgment, and the trial court entered a summary judgment in favor of the Board.   HOLDING:  The Supreme Court reversed the summary judgment.  The Court conclude that Dixon presented substantial evidence in support of her theory that the backup was caused by a sewer-system malfunction at the lift station rather than a grease blockage as claimed by the Board.)
*Download or view PDF version of opinion*
 
• Ex parte Emerald Mountain Expressway Bridge, L.L.C.,

No. 1012135 (Ala. Mar. 14, 2003)
(taxation; ad valorem taxes; Emerald Mountain Expressway Bridge, L.L.C., Alabama River Parkway, L.L.C., and Black Warrior Parkway, L.L.C. (hereinafter referred to collectively as "the taxpayers") operate toll bridges in Elmore, Montgomery, and Tuscaloosa Counties and own real property used in connection with the operation of the toll bridges.  The taxpayers are licensed to operate the toll bridges pursuant to Ala. Code §23-1-81, which authorizes the county commission of each county in the State or the Alabama  Department of Transportation to issue licenses to private individuals or entities to operate toll bridges and toll roads.  The dispute in this case involves the interpretation of §23-1-81(d), specifically whether the statute provides the taxpayers an exemption from ad valorem taxes.  The trial court entered a summary judgment in favor of the taxpayers and stated that the language of § 23-1-81(d) was clear and unambiguous.  The trial court concluded that the language "manifest[ed] the Legislature's intention to encourage the establishment and operation of private toll bridges by exempting them from further tax."  The trial court held that because the Legislature chose to use the language, "further license, tax, or fee," it did not intend to limit the tax exemption to new or additional license taxes as the revenue commissioners argued.  The trial court ordered the revenue commissioners to refund the taxes paid for the previous tax year, prorated from April 11, 2000, the effective date of § 23-1-81(d).  The revenue commissioners appealed to the Court of Civil Appeals; that court reversed the trial court's judgment, holding that § 23-1-81(d) did not provide the taxpayers with an exemption from ad valorem taxation.  The Court of Civil Appeals agreed with the revenue commissioners that § 23-1-81(d) "does not express a clear intention by the Legislature to exempt the taxpayers' real property from ad valorem taxation." HOLDING:  The Supreme Court held that the text of §23-1-81(d) does not clearly express the Legislature's intent to exempt operators of toll roads and toll bridges from ad valorem taxes.  The Court held that the provision in § 23-1-81(d) that no further tax can be imposed upon a private toll road or toll bridge after it is licensed applies only to taxes dealing with the actual licensing of those who establish or operate private toll roads and toll bridges.  The Court affirmed the Court of Civil Appeals and reversed the trial court.)
*Download or view PDF version of opinion*
 
• Ex parte N.L.R.,

No. 1012330 (Ala. Mar. 14, 2003)
(child custody; C.A.D. and N.L.R. are the natural mother and natural father, respectively, of two teenage sons, W.D.D. and B.H.D.  The trial court allowed F.G. to intervene in the litigation and to file a petition for custody of W.D.D. and B.H.D.  N.L.R. filed a petition for custody, alleging that "he is the father of the minor children ... and is the most fit and suitable person to have ... custody of [them]."  After a hearing, the trial court awarded temporary custody of the two minors to F.G., the children's maternal grandmother, despite finding that the maternal grandmother's evidence against the father falls short of proving that he is unfit.  N.L.R., the children's natural father, appealed to the Court of Civil Appeals, which affirmed the judgment of the trial court, without an opinion. HOLDING: The Supreme Court reversed and held that the trial court's finding the father, N.L.R., fit to have custody of his children precluded it, as a matter of law, from awarding custody to F.G., the maternal grandmother.)
*Download or view PDF version of opinion*
 
• Ex parte Liberty Nat'l Life Ins. Co.,

No. 1020057 (Ala. Mar. 14, 2003)
(amendment of pleadings; waiver; affirmative defenses; Thomas Deas purchased a $5,000 whole- life policy from Liberty National.  According to Deas, the policy was to be "paid up" in 20 years.  Deas also alleges that on or about May 15, 1978, he received notice that his policy was in fact "paid up."  On December 22, 1978, a $3,000 loan was taken against the policy.  Deas claims that he had nothing to do with the loan, and that he never received either the check Liberty National issued in his name or the $3,000.  The check was cashed or deposited in December 1978.  Deas alleges that he first learned in March 1999 that in 1978 a loan had been taken against his policy for $3,000 and had not been repaid, leaving only a small amount of value in the policy.  Deas sued Liberty National in the Clarke Circuit Court on February 13, 2001, alleging fraud, negligence, wantonness, and conversion.  Each of Deas's claims is based upon allegedly wrongful actions of Liberty National that occurred on or before December 1978.  Liberty National filed an answer; that answer did not include the rule of repose as an affirmative defense.  On January 18, 2002, the Supreme Court released its decision in Ex parte Liberty Nat'l Life Ins. Co., 825 So. 2d 758 (Ala. 2002), which clarified the law on the rule of repose.  On February 22, 2002, Liberty National filed a motion for a summary judgment, asserting for the first time the rule of repose as a defense to Deas's claims.  Deas filed a response, arguing that, because the rule of repose is an affirmative defense, it was deemed waived when Liberty National did not assert it in its answer.  At a March 20, 2002, hearing on the motion, Liberty National was granted a continuance so that it could reply to Deas's waiver argument.  The next day, however, Liberty National filed a motion for leave to amend its answer to add the rule of repose as an affirmative defense.  The trial court denied this motion.  Liberty National filed a petition for writ of mandamus. HOLDING:  The Supreme Court granted the writ of mandamus directing the trial court to allow the amendment to the answer.  The Court noted that, typically, if a party fails to plead an affirmative defense, that defense is deemed to have been waived, but an affirmative defense can be revived if a party is allowed to amend his pleading to add the defense.  The Court held that Liberty National had good cause for not initially asserting the rule-of-repose defense because of the state of the law before the clarification in Ex parte Liberty National.)
*Download or view PDF version of opinion*
 
• Ex parte Athens-Limestone Hosp.,

No. 1020246 (Ala. Mar. 14, 2003)
(third-party claim; Stacia Lynn P. Wilson sued Athens-Limestone Hospital ("the Hospital") and Dr. Bibi Teng, a pediatrician who was employed by the Hospital, in 1996 alleging medical malpractice, wrongful death, and emotional distress resulting from the death of her minor child, Starsha L. Wilson.  On July 29, 2002, shortly before trial in the case was scheduled to begin, the trial court entered a summary judgment for the Hospital on all claims except the medical-malpractice claim based on the acts or omissions of Dr. Teng.  On August 5, 2002, the first day of trial, Wilson moved for Dr. Teng to be dismissed as a party, without prejudice.  The trial court granted the motion.  The Hospital then immediately served on Dr. Teng's counsel a third-party complaint against Dr. Teng seeking indemnification and filed a motion with the trial court for leave to file the third-party complaint.  Dr. Teng's counsel accepted service of the complaint and informed the trial court that Dr. Teng was prepared for trial.  Wilson objected to the third-party complaint, and the trial court continued the trial in order to consider whether the Hospital's third-party complaint against Dr. Teng should be allowed.  The trial court granted the Hospital leave to file the third-party complaint against Dr. Teng, but severed the indemnity claim from Wilson's vicarious-liability claim against the Hospital.  On August 23, 2002, the Hospital filed a motion to vacate the order severing its third-party claim.  The trial court denied the motion, and the Hospital and Dr. Teng petitioned the Supreme Court for a writ of mandamus directing the trial court to vacate its order severing the Hospital's third-party indemnity claim.  HOLDING:  The Supreme Court granted the writ of mandamus and held that the trial court erred in severing the Hospital's third-party claim against Dr. Teng from Wilson's claim against the Hospital because the evidence Wilson would be required to adduce in order to prove liability on the part of the Hospital is the same evidence the Hospital would be required to present in its third-party indemnity claim against Dr. Teng.)
*Download or view PDF version of opinion*
 
• Neal v. Neal,

No. 1991439 (Ala. Mar. 14, 2003) (on application for rehearing)
(The Supreme Court overruled the application for rehearing without opinion.  Justice See wrote a dissenting opinion stating that the original opinion erroneously construes the word "mistake" in the last sentence of Ala. Code §19-3-5 to mean only a "mistake of fact.")
*Download or view PDF version of opinion*

--(The original opinion released on September 6, 2002, in Neal is also available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--


Back to top

Opinions Released March 7, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  MARCH 7, 2003

 
• Ex parte Coulliette,

No. 1001380 (Ala. Mar. 7, 2003)
(criminal; preservation of issue for appeal; The defendant Huston Waymor Coulliette was charged with the misdemeanor offenses of driving on the wrong side of the road and driving under the influence of alcohol.  The Shelby County District Court found Coulliette guilty of the charged offenses.  Coulliette appealed to the Shelby County Circuit Court for a trial de novo, by jury.  Before trial, Coulliette moved to suppress the blood-alcohol test results from Intoxilyzer 5000 ("I-5000") tests administered to Coulliette after his arrest.  The test results were .24 and .25.  At the hearing, the evidence presented tended to prove that the Department of Forensic Sciences and the Department of Public Safety intentionally prevented information about malfunctions and errors in I-5000 machines from being disclosed in the logbooks kept for those machines.  The trial court denied the motion to suppress and, likewise, at trial, denied several oral motions by Coulliette to exclude the test results. A jury found Coulliette guilty of the charged offenses, and the trial court adjudged him guilty.  The defendant appealed on the issue of whether he proved the lack of "scientific acceptability" in the record (history) keeping process of the 'logs' to cause the trial court to commit error in admission of test results and  cited Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to the Court of Criminal Appeals in support of this issue.  The Court of Criminal Appeals affirmed Coulliette's convictions and sentences, holding that Coulliette had not preserved this issue for review.  HOLDING:  The Supreme Court affirmed the  Court of Criminal Appeals because it found that in the proceedings before the trial court on the motion to suppress, Coulliette did not in any words or in any way argue the issue of scientific acceptability or the law of either Daubert or Frye, the threshold issue and law he later presented to the Court of Criminal Appeals for review.)
*Download or view PDF version of opinion*
 
• Kennedy v. Western Sizzlin Corp.,

Nos. 1010804, 1010805, 1011210 (Ala. Mar. 7, 2003)
(vicarious tort liability; sexual harassment; negligence; agency; summary judgment; Bryan Kogut and Robert Lambert are the sole stockholders of Lambert Restaurant Company, Inc. ("LRC").  In January 1998, Kogut and Lambert, in their individual capacities and on behalf of LRC, entered into an agreement with The Western Sizzlin Corporation ("WSC") pursuant to which LRC obtained a franchise to operate a Western Sizzlin restaurant in Monroeville.  Lambert has a history of sexual misconduct and sexual harassment in the workplace, including a criminal conviction for attempted sexual abuse.  Ronda Kennedy, Lisa Pate, Eloise Webb, Rebecca Frye, Hope Daniels Cassidy, Emma Diane Foley, Wyonia Lipscomb, and Jeanette Lassiter are all former employees of the Western Sizzlin restaurant in Monroeville.  On August 1, 1998, Webb contacted Kogut after several employees reported that Lambert had sexually harassed them.  Kogut spoke to Lambert about those allegations and instructed him that he should not return to the restaurant.  Lambert did not return to the restaurant until some time in late November 1998.  Kogut called Jerry Plunkett, director of franchise operations at WSC, to inform him of the sexual- harassment allegations the employees had made against Lambert.  Kogut also asked Plunkett whether, in light of those allegations, there was anything he could do to terminate the franchise agreement as to Lambert.  Plunkett responded that legally WSC could do nothing under the franchise agreement unless and until Lambert was arrested or criminally charged.  On November 23, 1998, despite Kogut's pleas that he stay away, Lambert returned to the restaurant to resume the general management of the restaurant.  Sales began to fall, causing LRC to fall severely behind in its debt obligations. WSC terminated its franchise agreement with LRC because of LRC's financial troubles.  Webb, Frye, Cassidy, Foley, Lipscomb, and Lassiter (case no. 1011210) (hereinafter referred to collectively as "Webb") sued WSC, asserting claims of negligent hiring, training, and supervision; assault; battery; invasion of privacy; intentional infliction of emotional distress; breach of contract; and fraud.  They also sued Lambert and LRC, asserting similar claims.  On June 2, 2000, Kennedy (case no. 1010804) and Pate (case no. 1010805) sued WSC, asserting claims of assault and battery; invasion of privacy; negligent or wanton hiring, supervision, and/or retention of employment; and the tort of outrage.  Kennedy and Pate also sued Lambert and LRC on claims of assault and battery, invasion of privacy, and the tort of outrage.  Webb, Kennedy, and Pate each amended their complaint to assert a direct-negligence claim against WSC.  WSC moved for a summary judgment as to each claim brought against it by Kennedy and Pate, arguing that no agency relationship existed between Lambert and WSC, or, alternatively, that it never authorized or ratified Lambert's conduct and that the alleged acts were outside the scope of Lambert's employment.  The trial court entered a summary judgment for WSC on all claims in each of the three cases.  HOLDING:  The Supreme Court held that an agency relationship did not exist between WSC and its franchisee and, therefore, that summary judgments for WSC on the claims alleging vicarious liability and negligent or wanton hiring, training, supervision, and retention were proper.  However, the Court also held that WSC did not meet its burden of proof when moving for a summary judgment on the direct-negligence claims brought by Kennedy and Pate, and, therefore, that summary judgments on those claims were improper.)
*Download or view PDF version of opinion*
 
• Ex parte Bertram,

No. 1010892 (Ala. Mar. 7, 2003)
(criminal; felony DUI; out-of-state prior convictions; The defendant Patricia Norman Bertram was convicted of violating Subsections (a)(2) and (h) of Section 32-5A-191, Ala. Code 1975, "felony driving under the influence."  The defendant admitted that she was under the influence of alcohol while she was driving on September 22, 2000.  The State then proffered three prior convictions for driving under the influence of alcohol.  The defendant challenged only one of them.  Her ground was that the challenged prior conviction was not an Alabama conviction for violating Section 32-5A-191 but was, rather, a Florida conviction for violating a Florida driving-under-the-influence-of-alcohol statute and therefore was not a conviction within the meaning of Subsection (h) of Section 32-5A-191, defining the felony charged against her.  The trial court rejected the defendant's challenge, counted the Florida conviction, and convicted the defendant of the Subsection (h) felony. HOLDING:  The Supreme Court reversed.  The Court held that prior out-of-state convictions for driving under the influence of alcohol do not count toward the total of convictions necessary to constitute the felony defined by subsection (h) of Ala. Code §32-5A-191 because traditional rules of statutory construction do not allow that interpretation.)
*Download or view PDF version of opinion*
 
• Preskitt v. Lyons,

No. 1011575 (Ala. Mar. 7, 2003)
(cause of action for extortion and attempted extortion; abuse of process; In a previous lawsuit, Professional Staffing, Inc. ("Staffing") , represented by attorney Brantley Lyons, sued Mr. Install, Inc. and Kathy Preskitt (hereinafter jointly referred to as "Preskitt") on a breach-of-contract claim.  The trial court entered a default judgment in favor of Staffing.  Preskitt's attorney paid the judgment from his own funds, and on January 24, 2001, the trial court entered an order stating that the judgment was satisfied.  Preskitt appealed the trial court's order refusing to set aside the default judgment, and the order was affirmed.  After the appeal, Lyons, on behalf of his client Staffing, mailed a letter to Preskitt stating that the unsuccessful appeal had cost additional monies to his client and "[b]ecause of these extra costs my client desires that I record the judgment for recording purposes even though the same had been paid."  Lyons telephoned Mike Preskitt's office and offered "to have the judgment removed from Kathy's name for the payment of an additional $35,000.00." Later, according to Mike Preskitt's affidavit, Lyons telephoned him and reiterated that if they paid an additional $35,000, Lyons "would not represent any further claimants" against Kathy Preskitt.  Two days after the second action was filed, Lyons sent a second letter, this time to Preskitt's attorneys, which stated, "[t]his letter serves as confirmation that neither I or Professional Staffing, Inc. intend to record a judgment against Kathy Preskitt or Mr. Install.  There is no record of the judgment filed with the Probate Court."  Preskitt filed the present action against Staffing and Lyons asserting claims of extortion, attempted extortion, and abuse of process.  The trial court dismissed Preskitt's case with prejudice.  HOLDING:  The Supreme Court treated this appeal as being from a summary judgment because the trial court was presented with matters outside the pleadings, and it did not expressly exclude them.  The Court affirmed the dismissal.  The Court held that no Alabama case recognizes a civil cause of action for extortion or attempted extortion based upon the common law under the facts alleged by Preskitt, and the Court noted that other jurisdictions have declined to recognize a civil cause of action for extortion or attempted extortion.  The Court further held that the plaintiff could not proceed under Ala. Code §6-5-370 for a violation of the criminal extortion statute at Ala. Code §§13A-8-1 et seq., because (1) the facts of Preskitt's case do not constitute the criminal offense of extortion because she has never alleged that Staffing and Lyons obtained control over any of her property, (2) an attempted extortion in the second degree would constitute only a Class A misdemeanor, and (3) the plaintiff is barred from pursuing a civil attempted extortion claim without prior criminal prosecution of the same claim.  The Court also held that the plaintiff's abuse-of-process claim based on the threat made by Staffing and Lyons to record the fully paid default judgment did not constitute the tort of abuse of process because  Staffing and Lyons never actually recorded the default judgment.)
*Download or view PDF version of opinion*
 
• Crutcher v. Wendy's of N. Ala,., Inc.,

No. 1011648 (Ala. Mar. 7, 2003)
(claims of false imprisonment, slander, and invasion of privacy arising out of employment relationship; Davida Crutcher, a 16-year-old, worked part-time as a cashier at a Wendy's restaurant in Huntsville ("the restaurant") owned by Wendy's of North Alabama, Inc. ("Wendy's").  On Sunday, July 25, 1999,  she began work at 11:00 a.m. at the cash register for the drive-through window.  Also working the drive-through window that day was Genora Gordon, Crutcher's co-employee and her aunt.  Tiffany Erskine, an assistant shift manager, was also working the 11:00 a.m. shift on that date.  Her duties as assistant shift manager included counting the money from the cash registers.  At approximately 2:00 p.m. that day, Erskine removed the money from the drive-through-window cash register and took it to the office and proceeded to count it.  After counting the money, Erskine thought that the cash register from the drive-through window was $50 short.  As the assistant shift manager, it was Erskine's duty to conduct an "investigation" into the apparently missing money.  After failing to find the missing money, Erskine notified the employees present that she was telephoning the police to report the missing money, which she then proceeded to do.  While on the telephone with the police operator, Erskine asked what the police could do to help locate the missing money.  Erskine was told by the operator that, with the employees' approval, the officers could search the employees to determine if any one of them had the missing $50.  Erskine notified the police despite the fact that she knew Wendy's policy was that the police were not to be called unless there was a fire or robbery at a restaurant.  Erskine testified that she was aware of that policy because she had been told by Michelle Robinson, the restaurant manager, about the circumstances under which the police were to be called to the restaurant.  Erskine further testified that such policy was ordered by Clyde Newman, the president of Wendy's and a shareholder.  After Erskine's telephone call to the police, three Huntsville police officers arrived at the restaurant.  Crutcher stated that Erskine also told the police officers that Crutcher, Gordon, and she were the only employees who had gone into the restaurant office that day.  Crutcher initially testified in her deposition that the officers then "asked" her to go into the office to be searched.  However, later in her deposition, Crutcher stated that she was "told" by the officers to go into the office to be searched.  At any rate, she complied and accompanied a female officer into the office.  During the course of the search, with only Crutcher and the female officer present, the officer searched under various articles of Crutcher's clothing. Crutcher was the only employee to be searched in this manner by the police.  The record indicates that only Crutcher and Erskine were searched because Gordon refused.  Erskine testified that during her search she was ordered by the officer conducting the search to pull up her shirt, but the officer searched only under her bra.  The officer also searched her socks and pockets.  While Crutcher was being searched, Gordon telephoned Crutcher's grandmother, Rebecca Gaines, who drove to the restaurant.  Crutcher left the restaurant with Mrs. Gaines and never returned to work there.  The $50 was never found.  Crutcher, proceeding by and through her next friends Leon Gaines and Rebecca Gaines, her grandparents, sued  Wendy's for false imprisonment, slander, and invasion of privacy arising out of her employment.   Wendy's filed a motion for a summary judgment.  The trial court entered a summary judgment in favor of Wendy's on all of Crutcher's claims.  In its order, the trial court found that "Erskine was acting outside the line and scope of her employment when she called the police."  HOLDING:  The Supreme Court affirmed the summary judgment.  The Court held that, in light of Erskine's duties as assistant shift manager, a genuine issue of material fact exists as to whether she was acting within the scope of her employment in telephoning the police.  Thus, the Court concluded that Wendy's could be liable as a result of Erksine's actions.  As to the false-imprisonment claim, the Court held that a genuine issue of material fact exists as to whether Crutcher was unlawfully detained, arising from her testimony that she was "told" by the officers to accompany them for the search and that she believed she was required to obey them because of their authority as police officers, but because under Alabama law an employer will not be held liable for false imprisonment for the acts of its employees in providing information to the police, which causes someone to be detained, if the employee's communications to the police were made in good faith, and because there is no evidence of bad faith on the part of Erskine, the trial court did not err by entering a summary judgment in favor of Wendy's as to Crutcher's false-imprisonment claim.  As to the slander claim, the Court found that no genuine issue of fact has been shown to exist regarding whether the statements Crutcher relies on as defamatory -- Erskine's expressions of her beliefs to the police and her identification of her, Gordon, and Crutcher as persons having access to the missing money -- were in fact true, as far as they went.  Thus, the Court concluded that the analogy between the elements of Crutcher's false-imprisonment claim and the elements of her invasion-of-privacy claim calls for similar resolution in both instances.)
*Download or view PDF version of opinion*
 
• Orkin Exterminating Co. v. Larkin,

No. 1012181 (Ala. Mar. 7, 2003)
(arbitration; scope of the Federal Arbitration Act (FAA); Willie D. Larkin and Vivian M. Larkin ("the Larkins") purchased a residence located at 779 Moores Mill Drive in Auburn from Rodney G. Allison and Leigh Allison ("the Allisons").  The Allisons had a preexisting contract with Orkin Exterminating Co., Inc. ("Orkin"), entitled "Lifetime Subterranean Termite Retreatment Agreement" ("the termite agreement"), which provided for the treatment and eradication of subterranean termites for the residence. As part of the residential real estate sales contract entered into between the Allisons and the Larkins, the Larkins received an "Official Alabama Wood Infestation Inspection and Report," commonly referred to as a "termite letter," from Orkin.  John Mosley, an Orkin employee, conducted the inspection and prepared the termite letter.  The termite letter stated that the termite agreement between Orkin and the Allisons was transferable to the Larkins and that the residence was free from any evidence of active infestation of the five specified wood-destroying organisms, including subterranean termites.  The termite letter also showed the location of previous termite infestation in the residence.  The Larkins allege that they purchased the residence in reliance upon the guarantees provided by the Orkin defendants in the termite letter. On November 23, 1999, September 13, 2000, and on August 15, 2001, Willie Larkin paid the annual fee to renew the termite agreement previously entered into between Orkin and the Allisons. The termite agreement included an arbitration provision.  At some point after the residence was purchased, the Larkins claimed that the residence was infested with active termites, that the Orkin defendants withheld that fact from them, and that they would not have purchased the residence had the Orkin defendants been truthful in the termite letter about the condition of the residence.  The Larkins sued Orkin for its actions related to the termite letter, alleging breach of contract, fraud, fraudulent suppression, negligence, and fraudulent misrepresentation.  The Larkins also sued Mosley, alleging fraudulent misrepresentation and fraudulent suppression.  The Orkin defendants filed a motion to compel arbitration, claiming that the arbitration clause in the termite agreement that it had originally entered into with the Allisons and that had been renewed by Willie Larkin was sufficiently broad to encompass the Larkins' claims and that the "transaction at issue" involved interstate commerce.  The trial court denied the motion to compel arbitration. HOLDING:  The Supreme Court affirmed the denial of arbitration.  The Court held that it cannot conclude that a controversy existed when the termite agreement was first assumed and was then subsequently renewed; therefore, it cannot assume coverage under the FAA, which at 9 U.S.C. § 2 requires enforcement of a "written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of [the contract containing the provision for arbitration]."  In other words, because the Larkins' claims do not involve a future controversy arising out of the termite agreement, and because the Orkin defendants have not shown that there was a controversy existing when the termite agreement was assumed and later renewed, §2 of the FAA does not require arbitration.  The Court emphasized that its holding should not be interpreted as overruling its prior decisions dealing with the scope of an arbitration agreement in a setting where coverage under the FAA was not addressed.)
*Download or view PDF version of opinion*
 
• Singleton v. Protective Life Ins. Co.,

No. 1012405 (Ala. Mar. 7, 2003) (plurality opinion)
(credit-life insurance; consumer finance; fraud; Cyndi and Steven Singleton sued AmSouth Bank ("AmSouth") and Protective Life Insurance Company ("Protective") alleging that they were sold more credit-life insurance than they needed and seeking to represent a class of similar borrowers charged for alleged excessive credit-life insurance.  The complaint also contained counts alleging negligent hiring and supervision and sought to have the Singletons named as class representatives of a putative class action on behalf of other borrowers who were "charged for excessive credit life insurance of the type involved in this transaction."  In their complaint, the Singletons made clear that their claims were based on the allegation that they were sold excessive credit-life insurance because, they say, the amount of insurance was based on the total face amount of the loan rather than on the remaining unpaid balance of the loan.  The Singletons also alleged that Kathy Cook, an AmSouth employee, made misrepresentations to them about the credit-life insurance.  The applicable State Banking Department regulation in force at the time of the loans to the Singletons provided that the maximum rate for "single premium decreasing term credit life insurance shall not exceed" 80 cents per hundred dollars per annum and that "[r]ates for premiums payable on other than single premium basis shall not exceed the actuarial equivalent" of the maximum rate for single premium decreasing term credit life insurance.  The evidence showed that each loan agreement executed by the Singletons contained an explanation that while an estimated premium was reflected in the note, "the actual credit the actual credit life insurance premium is calculated on the actual unpaid balance of principal and accrued interest due under this note from time to time, and may vary depending on whether you make your payments early or late."  The loan agreement further provided that "the credit life insurance premium ... is not a part of the Amount Financed, and you agree to pay a premium for credit life coverage, payable whenever interest is due, computed at the rate of $.0043836 per day for one insured or $.0065753 for two insureds (or any lesser sum for either number of insured that we may charge from time to time instead) for each $100 of the unpaid balance of principal and accrued interest due under this note from day to day. "  Mrs. Singleton's deposition testimony acknowledged that she understood that the premiums charged on the loan she had jointly with Mr. Singleton were not charged on the total face amount of the loan plus precomputed interest (or "total of payment"), but were charged, instead, on the "balance of principal and accrued interest."  In response to AmSouth's and Protective's motions for a summary judgment, the Singletons, without amending their complaint, made a new allegation: that they were charged "excessive insurance premiums for credit life insurance."  In response to the Singletons' new allegation, AmSouth and Protective produced the affidavit of an independent actuary, Steven L. Ostlund, and the affidavit of James Whitehead, a supervisor with the Bureau of Loans of the State Banking Department.  Mr. Ostlund's affidavit calculated the actuarial equivalent of the single premium rate of 80 cents per $100 per annum specified in Regulation 4(c)(1) and determined that the actuarial equivalent of that rate was $1.23 per $1,000 per month.  Mr. Ostlund testified that, after reviewing the loan documents, he was of the opinion that the credit-life insurance rates applied to the Singleton loans were less than the actuarial equivalent of $.80 per $100 per annum and were therefore in compliance with Regulation 4(c).  The trial court granted summary judgment in favor of the defendants.  HOLDING:  The Supreme Court affirmed the summary judgment.  The plurality opinion noted that by the time AmSouth and Protective filed their separate motions for a summary judgment in August 2000, it was clear that the Singletons' claims were without merit and were not supported by any evidence before the trial court.    The plurality opinion noted that AmSouth's and Protective's factual submissions showed that they were entitled to a summary judgment on the claims set forth in the Singletons' complaint, because they established that the Singletons were not sold excessive insurance and that there was no evidence that any misrepresentations had been made to them in regard to the insurance.  The plurality opinion noted that the Singletons did not dispute any of the evidence submitted by AmSouth and Protective.  The plurality opinion concluded that the Singletons' claims are not supported by substantial evidence, and it further expressed that it was troubled by the fact that there never seemed to be any evidence of a wrong or an injury to the Singletons and that the Singletons should have dismissed their appeal.)
*Download or view PDF version of opinion*
 
• Morguson v. 3M Co.,

No. 1012406 (Ala. Mar. 7, 2003) (plurality opinion)
(wrongful death; Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"); learned-intermediary doctrine; duty to warn; Douglas W. Morguson (hereinafter sometimes referred to as the "decedent") was admitted to Druid City Hospital ("DCH") to undergo quintuple coronary artery bypass graft and cardiopulmonary bypass surgery, commonly known as "bypass surgery." Because this is  open-heart surgery, it requires the use of a heart-lung machine and related equipment; the machine and equipment together are known as a perfusion system and the perfusion system is operated by a medical technician known as a perfusionist. Essentially, the perfusion system consists of a series of pumps and tubes that act as the patient's heart and lungs while the heart is stopped during surgery. The pumps transport blood and medications through the tubes to and from various other pumps, as well as to and from the patient.  The pumps used during Mr. Morguson's surgery were manufactured by 3M Company f/k/a Minnesota Mining & Manufacturing Company ("3M"); the tubes were manufactured by Baxter Healthcare Corporation n/k/a Edward Lifesciences Corporation ("Baxter").  The left vent tubing contains a one-way safety valve, a safety device that, when the tube is inserted in the patient, is located approximately 12 inches from the heart. The one-way safety valve ensures that blood and air in the vent tubing flow only away from the heart; it prevents the flow of any blood or air back to the heart. Arrows on the one-way safety valve indicate the direction in which the blood should flow.  Phillip Smith ("Smith"), a DCH employee, was the assigned perfusionist.  Before the surgery, Smith, whose primary responsibility was to operate the heart-lung machine, assembled the perfusion system.  In assembling the perfusion system, Smith failed to loop the left vent tubing through the left vent pump correctly; instead, Smith assembled it so that the direction of blood flow through the left vent tubing was toward Mr. Morguson's heart rather than away from it. Pursuant to DCH protocol, after Smith assembled the perfusion system, he was required to perform a "pre-bypass safety checklist" in preparation for Mr. Morguson's surgery. As part of this checklist, Smith was required to determine whether the direction of the vent tubing was correct. Despite this requirement, Smith did not check the tubing direction in the pumps, and he falsified the safety checklist to indicate that he had.  Shortly after Mr. Morguson's surgery began, Dr. Ferguson, the cardiothoracic surgeon performing Mr. Morguson's bypass surgery, detected a problem; blood was not coming out of Mr. Morguson's heart and through the left vent tubing even though the left vent pump was on. Dr. Ferguson told Smith to figure out what was causing the problem. Without checking, Smith informed Dr. Ferguson that the tubing direction was correct; it was not.  Based on Smith's falsely reporting that the left vent tubing was installed so that the blood flow was in the correct direction, Dr. Ferguson reasoned that the one-way safety valve was defective and decided to remove it. The left vent pump was stopped and the left vent tubing was disconnected. Because the one-way safety valve was built into the tubing, its removal required the surgical team to cut out that part of the tubing containing the valve and then splice the tubing. After the one-way safety valve had been removed, the left vent tubing was reconnected and the left vent pump was restarted. At this point, air was pumped into Mr. Morguson's heart; he died 20 days after the surgery.  Sara Morguson ("Morguson"), as executrix of the estate of Douglas W. Morguson, deceased, filed a wrongful-death action against DCH, Smith, 3M, and Baxter arising out of the death of her husband.  Morguson, DCH, and Smith entered into a pro tanto settlement for $975,000.  3M and Baxter moved for summary judgment.  The trial court granted 3M's and Baxter's motions for a summary judgment.  This appeal involves only the product-liability claims Morguson asserted against 3M and Baxter.  HOLDING:  The Supreme Court affirmed the summary judgment in favor of 3M and Baxter.  The plurality opinion assumed, for the sake of argument, that air was introduced into Mr. Morguson's heart during surgery and that that air created an embolus, which damaged Mr. Morguson's brain to be damaged and which in turn caused his other organs to fail and ultimately his death.  The plurality opinion held that the errors, omissions, and misrepresentations made by Smith and Dr. Ferguson during the decedent's surgery were independent and superseding causes that broke the causal chain between the allegedly defective left vent pump and left vent tubing and the decedent's death.  The plurality opinion held that the actions taken by Smith and the surgical team during the surgery were not foreseeable by 3M and Baxter.  More specifically, the plurality opinion concluded that it is clearly not foreseeable 1) that the perfusionist would not check the vent tubing direction during the pre-bypass safety checklist; 2) that the perfusionist would falsify the safety checklist to state that he had checked the direction of the vent tubing; 3) that the perfusionist would lie to the surgeon about having checked the direction of the vent tubing after being asked directly to do so; and 4) that the surgical team would cut the one-way safety valve out of the vent tubing.  Additionally, the plurality opinion held that when the surgical team removed the one-way safety valve from the vent tubing, it made a material alteration to the vent tubing.  The plurality opinion also held that pursuant to the learned-intermediary doctrine, Baxter had no duty to provide warnings to Mr. Morguson; rather, Baxter's duty was to warn the physicians and perfusionists at DCH who used the vent tubing.  The plurality opinion held that Baxter's warnings to the physicians and perfusionists who would be using the vent tubing were adequate.)
*Download or view PDF version of opinion*
 
• Ex parte Fulton Performance Prods., Inc.,

No. 1020298 (Ala. Mar. 7, 2003)
(The Supreme Court denied the petition for writ of mandamus without opinion.  Justice Houston wrote a concurring opinion.)
*Download or view PDF version of opinion*

Back to top

Opinions Released February 26 & 28, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  FEBRUARY 28, 2003

 
• DECISION ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON WEDNESDAY,  FEBRUARY 26, 2003

 
• Bowen v. Security Pest Control, Inc.,

No. 1010783 (Ala. Feb. 28, 2003)
(arbitration; interstate commerce; Michael Bowen entered into a termite control agreement ("the contract") with Security Pest Control, Inc. ("SPC") pursuant to which SPC agreed to treat the Bowens' house for termites.  The contract indicated that the cost of the treatment was $1,490, and it contained an arbitration provision.  In June 2000, the Bowens discovered that termites had damaged their house.  Specifically, they allege that termites had destroyed approximately 33 1/3% of the entire structure of their house, and that it will cost $50,000 to repair the damage.  In May 2001, the Bowens brought this action against SPC, asserting numerous claims, including breach of contract, negligence, and fraud.  In August 2001, SPC moved the trial court to compel arbitration.  The trial court granted SPC's motion.  HOLDING:  The Supreme Court reversed and held that SPC did not demonstrate that this transaction had a substantial impact on interstate commerce.)
*Download or view PDF version of opinion*
 
• Johnson v. Stewart,

No. 1011114 (Ala. Feb. 28, 2003)
(opinion overruling application for rehearing) (appellate procedure; duty to include material facts in brief; purpose of rehearing; The Supreme Court, in response to the Stewarts' position and the Chief Justice's statement in dissent that the Court "overlooked" facts in reaching its decision, noted that it is fundamental that the parties have the duty to include in their briefs a statement of all facts relevant to the issues presented for the Court's review.  The Court noted that the facts the Stewarts accused the Court of "fail[ing] to consider" were only properly brought to the Court, for the first time, in their application for rehearing.  The Court noted that the purpose of an application for rehearing is not to cure deficiencies in a party's earlier brief.)
*Download or view PDF version of opinion*

--(The original opinion released on October 18, 2002, in Johnson is also available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Morgan v. Farmers & Merchants Bank,

No. 1011290 (Ala. Feb. 28, 2003)
(Certified Question from the United States Bankruptcy Court for the Northern District of Alabama, Western Division; commercial code; security interests/secured transactions; negotiable instruments; Crimson Industries, Inc. (debtor), a former mobile home manufacturer of Bear Creek, Alabama, executed four promissory notes/security agreements granting to Farmers & Merchants Bank (bank) of Waterloo, Alabama, security interest in documents captioned 'Money Market Certificate (Non-negotiable).'  The debtor also executed documents captioned 'Assignment of Certificate of Deposit' which transferred and assigned to the bank the same certificates as security for the loans.  The debtor executed one loan agreement, a renewal of a prior indebtedness, May 9, 2000, pledging five certificates as collateral.  Three of the certificates had been issued on October 22, 1990; one, on August 5, 1992; and one, on August 25, 1992.  Each of these certificates, by their terms, [was] automatically renewable.  A document styled Assignment of Certificate of Deposit listing these five certificates was signed by the debtor June 24, 1997.  It provided a continuing assignment effective for any renewals of the loan.  Crimson Industries executed the second of these promissory note/security agreements May 28, 2000, pledging eight certificates issued from May 28, 1994 to July 22, 1995 as collateral.  Each of these certificates was automatically renewable pursuant to [its] terms.  The debtor executed a document captioned Assignment of Certificate of Deposit describing these certificates on June 24, 1997.  In late June 1997, Crimson Industries and the bank entered two security agreements whereby the debtor granted the bank a security interest in two certificates to collateralize payment of two letters of credit the bank had issued on behalf of the debtor.  These security agreements pledged two certificates dated October 17, 1995 and September 11, 1996 respectively.  On June 23, 1997, the debtor again executed a document captioned Assignment of Certificate of Deposit assigning these two certificates to the bank.  The security agreements executed by the debtor and bank were sufficient for the bank's security interest to attach to the various certificates.  The bank took possession of all of the certificates at the time of their assignment and has maintained sole possession since that time.  Farmers & Merchants' vice president testified that there was a dual hold on each of the certificates.  In other words, neither the debtor nor the bank nor any other party could withdraw the funds represented by the certificates without the bank's permission.  The bank took no other action to perfect its liens in the subject certificates.  The debtor filed a bankruptcy petition September 25, 2000.  It is undisputed that the debtor was in default on obligations to the bank at that point.  The bank asserts that its possession of the documents and the funds they control is sufficient to perfect its security interest against intervening third-parties under Alabama law.  On the other hand, the debtor's bankruptcy trustee asserts that the bank did not perfect its security interest under Alabama law.  His position is that the bank could not perfect a security interest by possession; and therefore, his right as an intervening third-party creditor as of September 25, 2000, is superior to the bank's unperfected security interest.  CERTIFIED QUESTION: Whether, based on these facts, Farmers & Merchants Bank's security interest in Crimson Industries, Inc.'s funds denoted by 'Money Market Certificates (Non-negotiable)' and the accompanying assignments, is perfected against the rights of intervening third parties under the law of Alabama?  HOLDING:  The Supreme Court held that this case is governed by the previous version of Article 9 of the commercial code, not the version that became effective on January 1, 2002.  The Court concluded that, under the facts certified to it, the certificate could qualify as a §7-1-105(1)(i) "any other writing" if under the "realities of the marketplace," i.e., the "current usage of the marketplace," the certificate is "of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment."  In that regard, the Court limited its opinion to the particular circumstance of a certificate marked "nonnegotiable" but which has no express limitations on transferability.  The Court ventured no opinion as to the proper resolution of the fact-based issue whether the certificate qualifies as a §7-9-105(1)(i) "other-writing" type of "instrument.")
*Download or view PDF version of opinion*
 
• Ex parte Monsanto Co.,

No. 1011393 (Ala. Feb. 26, 2003)
(recusal/judicial disqualification; This petition for the writ of mandamus is the third mandamus petition to arise out of a toxic-tort case pending against Monsanto Company, Pharmacia Corporation, and Solutia, Inc. (hereinafter referred to collectively as "Monsanto"), in the Etowah Circuit Court.  Monsanto asks this Court to direct the trial judge, Joel Laird, to recuse himself from this case because, it argues, Judge Laird's conduct and public remarks about Monsanto would lead a reasonable person to question whether Judge Laird was biased against Monsanto or lacked impartiality.  Monsanto argues that Judge Laird's comments and actions both in and out of the courtroom demonstrate an appearance of bias against Monsanto.  In its petition, Monsanto alleges that Judge Laird has demonstrated an appearance of bias in two ways: (1) in comments made in orders and in courtroom exchanges throughout the course of the proceedings, particularly during the March 12, 2002, settlement conference, and (2) in comments made during interviews with television and newspaper journalists.  HOLDING:  The Supreme Court denied the petition for writ of mandamus.  The Court held that Judge Laird's conduct and remarks in conjunction with the March 12 settlement conference do not constitute grounds for his recusal.  The Court held that Monsanto has not demonstrated a clear legal right to Judge Laird's recusal based on Judge Laird's judicial remarks and actions.  The Court noted that it has no reliable means of knowing whether the quotations attributed to Judge Laird in the newspaper articles accurately reflect his words or whether newspaper interviews attributed to Judge Laird actually even took place.  The Court noted that it lacked sufficient indicia of reliability to take from the newspaper articles anything more than the fact that the articles speak about Judge Laird.  The Court noted that while on their face, videotapes of television news interviews would appear to possess greater indicia of reliability than do newspaper accounts – because the viewer can see Judge Laird speaking in the videos – the Court can reasonably conclude from viewing the videotapes only that Judge Laird spoke with television reporters.  The Court noted that television news packages are edited accounts of Judge Laird's remarks, and because the edited segments may not present Judge Laird's remarks in their proper context, those television accounts are not a sufficiently reliable basis for concluding what specific statements Judge Laird may have made.  The Court noted, moreover, that Monsanto did not submit the original broadcast tapes from the television stations as an exhibit with its petition; Monsanto, instead, submitted as an exhibit copies of unknown provenance that purport to be television news stories broadcast on specific dates.  The Court held that because the television accounts are videotapes made, and conceivably even edited, from the edited remarks originally broadcast by the television stations, they present a reliability problem and a hearsay problem as to any specific remarks that Judge Laird may have made.  The Court held, therefore, that Monsanto has not demonstrated a clear legal right to have Judge Laird recuse himself based on comments attributed to Judge Laird in press accounts of the trial.  Furthermore, the Court agreed with the plaintiffs that even if the remarks attributed to Judge Laird by the press reflect what Judge Laird actually said, they either explained factual and procedural aspects of the case or were based on what Judge Laird had observed in court during the course of this litigation.  The Court concluded that Monsanto's petition in this case is devoid of evidence indicating that Judge Laird has done anything in media interviews but repeat statements he has made on the record in court or describe the procedures being used in the litigation.)
*Download or view PDF version of opinion*
 
• Alabama Alcoholic Beverage Control Bd. v. City of Pelham,

Nos. 1011803 & 1011804 (Ala. Feb. 28, 2003)
(immunity; distribution of profits of ABC Board; attorney fees; §§ 95 and 213 of the Alabama Constitution; The City of Pelham ("the City") challenges the distribution of net profits from the Alabama Alcoholic Beverage Control Board ("the ABC Board"). The City alleges that it has been deprived of earmarked funds in violation of the formula provided in Ala. Code §28-3-74.  The named defendants are the ABC Board, the State of Alabama, Don Siegelman in his official capacity as then Governor, and Robert Childree in his official capacity as state comptroller (hereinafter referred to collectively as the "State defendants").  The City argued that despite the unambiguous language of §28-3-74, the defendants consistently refused to distribute net profits of the ABC Board pursuant to the statute and instead made special allocations on an "arbitrary or random basis."  The complaint also sought a certification of a class of other designated beneficiaries under §28-3-74, injunctive relief, and retroactive damages based on the allegedly improperly diverted revenues.  The City filed a motion for a summary judgment seeking to have the distributions of revenue to the State general fund in contravention of § 28-3-74 declared illegal and to have the diverted funds restored to the designated beneficiaries.  The City argued that since 1988 the Legislature, through the aforementioned annual appropriation acts, had mandated transfers totaling $76,000,000 of what the City considered to be earmarked funds, in violation of §28-3-74 and §213 of the Alabama Constitution.  On September 14, 2001, while this action was pending, Act No. 2001-891, Ala. Acts 2001 ("the 2001 Act"), became effective.  The 2001 Act purportedly operated retrospectively to cure the alleged improper distributions by validating and confirming the distributions for the fiscal years 1990 through 2002 and prospectively changed the allocation of revenues in excess of $2,200,000 for each fiscal year beginning October 1, 2002.   The State defendants filed a motion for a summary judgment.  The State defendants acknowledged that the Legislature, in its annual appropriation acts, directed that specific amounts be transferred from the ABC Board's operating funds to the State general fund and to various other agencies.  The State defendants did not concede that the distributions made pursuant to the appropriation acts were invalid; however, they claimed that the 2001 Act cured any alleged improper distributions.  The State defendants argued that retroactive legislation is presumptively valid unless it impairs a vested right and that the City had no vested right in an appropriation.  the trial court entered a summary judgment in favor of the City and held that the City had presented substantial evidence indicating that it had been deprived of statutorily earmarked funds by the improper distribution of revenue in violation of § 28-3-74.  However, the trial court held that the City was not entitled to monetary relief because its claims were barred by the State defendants' State immunity.  The trial court took judicial notice of the 2001 Act and found that the Legislature, by referring to the present action in §3 of the 2001 Act, had recognized that the City's claims had substantial merit.  Finally, the trial court awarded the City attorney fees in the amount of $185,000 under a common-benefit or common-fund theory.  Both parties appealed.  HOLDING:  The Supreme Court affirmed the judgment insofar as it denies monetary relief and reversed it insofar as it awards attorney fees.  The Court held that the 2001 Act validly changed the earmarking formula of § 28-3-74; that it prohibited future transfers from the ABC Board's operating funds to the general fund; and that it validated the distributions made in the prior years referenced in the 2001 Act.  The Court held that, therefore, the City's argument that the distributions in prior years were invalid is moot because any arguable defects in the distributions were cured by the 2001 Act.  The Court held that the alleged defects were the result of the Legislature's failure to follow the proper procedure in the prior years, that the Legislature had the power to divert the funds, and that it could have accomplished this diversion by amending §28-3-74 to permanently change or eliminate the earmarking formula or by altering the distribution for a single year by an appropriation act that complied with the formalities of §§ 45 and 71 of the State constitution.  The Court held that the 2001 Act is not unconstitutional.  The Court affirmed the trial court's judgment insofar as it denied monetary relief to the City based upon the validity of the 2001 Act.  The Court agreed with the City that this litigation precipitated the 2001 Act, but although the 2001 Act prohibited future transfers made in general appropriation acts, it reduced the percentage available to the City and increased the percentage allocated to the State general fund.  Thus, the Court did find any benefit to the general public to support an award of attorneys' fees under the "common-benefit" theory.  Therefore, the Court reversed the trial court's judgment insofar as it awards attorney fees under the common-benefit theory.)
*Download or view PDF version of opinion*

Back to top

Opinions Released February 21, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  FEBRUARY 21, 2003

 
• Ex parte Webb,

No. 1000651 (Ala. Feb.21, 2003)
(arbitration; employment; interstate commerce; David Webb signed an application for employment with Bill Penney Motor Company, Inc.  That application contained an arbitration provision.  As a condition of employment with Bill Penney Motor Company, Webb signed a separate document entitled "ALTERNATIVE DISPUTE RESOLUTION AGREEMENT BY BINDING ARBITRATION."  Bill Penney Motor Company employed Webb in its "cleanup shop."  On April 27, 2000, Penney, the president of Bill Penney Motor Company, allegedly struck Webb in the face when Webb refused to clean Penney's personal automobile.  On August 16, 2000, Webb sued Penney for assault and battery and for the tort of outrage.  Relying on the separate arbitration agreement and the arbitration provision in the employment application signed by Webb, Penney moved to compel Webb to arbitrate his claims against Penney.  The trial judge granted motion and stayed the case "pending the completion of the arbitration process." HOLDING:  The Supreme Court reversed the trial court's order compelling arbitration.  The Court held that the facts that Bill Penney Motor Company "purchases new and used vehicles and automobile parts for resale from out-of-state suppliers and vendors," "sells new and used vehicles to persons and other entities residing outside of the State of Alabama," "sells [automotive] parts to persons and entities residing outside of the State of Alabama," "advertises for potential customers outside of the State of Alabama," and "maintains a web site on the World Wide Web" for the use of "customers throughout the United States" do not impart to Webb's contract or transaction a substantial effect on interstate commerce.  The Court held that these contracts or transactions are distinct and separate from Webb's employment contract and the transactions it evidences.  The Court held that Bill Penney Motor Company did not submit any evidence that Webb's employment or chores substantially, or even detectably, affected any of the contracts or transactions between Bill Penney Motor Company and persons or entities outside Alabama.)
*Download or view PDF version of opinion*
 
• Ex parte Stonebrook Development, L.L.C.,

No. 1010722 (Ala. Feb. 21, 2003)
(construction; statute of limitations for actions against professional architects, contained in Ala. Code §6-5-221; third-party indemnity claim; breach-of-warranty claim; Stonebrook Development, L.L.C. is a corporation that was formed by Bill N. Sanford for the purpose of establishing a new residential neighborhood.  Sanford and Sanford, Bell & Associates, Inc. ("SBA") prepared a set of blueprints or plans for the construction of the project.  Matthews Brothers Construction used those plans to prepare its bid for the construction of roadways and other improvements for Stonebrook's new residential-neighborhood project.  Stonebrook awarded Matthews Brothers the contract and the two parties signed a contract dated June 1, 1994.  Matthews Brothers' performance of its part of the construction of Stonebrook's residential neighborhood was delayed.  Matthews Brothers completed its performance of the contract sometime in December 1994 and Stonebrook paid Matthews Brothers the contract amount in January 1995.  In November 1995, Matthews Brothers performed additional work at the Stonebrook residential neighborhood in order to repair some portions of the roads it had constructed.  Stonebrook argued that that work was 'warranty work' related to the original contract.  Matthews Brothers considered the additional work necessary because of faulty road design by Sanford and SBA and other factors, and maintained that it was due an additional $42,049.96 for the additional work.  Matthews Brothers filed an action seeking damages from Stonebrook, alleging open account, account stated, and work and labor done.  Stonebrook answered and denied liability.  Stonebrook also filed a counterclaim, alleging counts of breach of contract and breach of warranty.  Matthews Brothers claiming negligent design of the roadway specifications and seeking indemnification later moved to add both Sanford and SBA as third-party defendants; the trial court granted that motion.  Sanford and SBA moved to dismiss Matthews Brothers' claims against them.  The trial court granted that motion and entered an order dismissing Sanford and SBA.  Stonebrook moved for a partial summary judgment on its counterclaim alleging breach of contract.  The trial court also granted that motion, entered a partial summary judgment in favor of Stonebrook, and awarded Stonebrook damages of $155,966.73.  The remaining claims were then tried before the trial court.  After receiving evidence ore tenus, the trial court entered a judgment finding in favor of Stonebrook on Matthews Brothers' claims.  In that judgment, the trial court also found in favor of Stonebrook on its remaining counterclaim of breach of warranty against Matthews Brothers, and it awarded Stonebrook $27,604.50 as damages.  Matthews Brothers appealed.  The Court of Civil Appeals reversed the dismissal of Matthews Brothers' indemnity claim against Sanford and SBA, the partial summary judgment in favor of Stonebrook on its breach-of-contract (liquidated-damages) claim, and the trial court's judgment in favor of Stonebrook on its breach-of-warranty claim.  HOLDING:  The Supreme Court affirmed the trial court with regard to the third-party indemnity claim and held that it was not time-barred.  The Court held that the trial court's factual findings relating to the breach-of-warranty claim were against the great weight of the evidence presented at trial because the great weight of the evidence at trial demonstrated that the deficiencies in Matthews Brothers' work were the result of defects in the design specifications provided by Sanford and SBA.  )
*Download or view PDF version of opinion*
 
• Simon v. Jackson,

No. 1011278 (Ala. Feb. 21, 2003)
(default judgment; appeal of interlocutory ruling denying motion to dismiss for failure to state a claim; Thomas Simon originally sued Anthony Jackson and Carol Jackson to evict them from certain premises they were occupying.  The Jacksons countersued Simon for money damages on two theories.  One was that he fraudulently misrepresented his title to the same property in negotiating a contract with the Jacksons for their purchase of the property.  The other theory was that Simon negligently or wantonly failed to obtain good title to convey to the Jacksons.  After the Jacksons vacated the property, Simon's eviction claim was dismissed as moot.  Simon's first response to the Jacksons' counterclaim was a motion to dismiss grounded on the failure of the counterclaim "to state a claim upon which relief can be granted."  The trial court denied this motion to dismiss.  Simon then filed his answer to the Jacksons' counterclaim.   Simon's answer did not include as a defense the failure of the Jacksons' counterclaim to state a claim on which relief could  be granted.  Simon then failed to appear at the trial.  After moving for entry of a default judgment against Simon, the Jacksons, by oral testimony, proved their damages.  The Jacksons also introduced some evidence on some of the other elements of their theories.  Thereupon, on October 18, 2001, the trial court entered judgment for $107,600 in compensatory damages against Simon and in favor of the Jacksons on their counterclaim.  While the case action summary and the separate judgment document, see Ala.R.Civ.P. 58(a)(2), do not characterize the judgment as a default judgment, the parties and the trial judge have invariably treated it as a default judgment.  Simon filed a postjudgment motion for judgment as a matter of law or, alternatively, to alter, to amend, or to vacate the judgment.  The motion was not denominated as a motion to set aside a default judgment.  Simon's original postjudgment motion contained two grounds:  (1) the evidence presented at trial is insufficient to support the judgment, and (2) Simon did not receive notice of the setting of the counterclaim for trial.  The postjudgment motion did not assert that the counterclaim failed to state a claim upon which relief could be granted.  Nor did the postjudgment motion originally assert in any way or words that Simon had a meritorious defense.  HOLDING:  The Supreme Court held that because judgment has been entered upon a trial on the merits, the pretrial interlocutory ruling itself on Simon's motion to dismiss — that is, the denial of the motion — is moot.  The Court held that because Simon did not argue the sufficiency of the evidence to the trial court in his postjudgment motion, that ground was waived. The Court held that it cannot hold that the trial judge in this case abused his discretion by disregarding a showing of a meritorious defense not filed until 73 days after the Rule 55(c) deadline.  Because the defaulting party's showing of a meritorious defense is one of the prerequisites to an order setting aside a default judgment, the Court held that it likewise cannot hold that the trial judge abused his discretion by denying Simon's postjudgment motion.)
*Download or view PDF version of opinion*
 
• Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C.,

No. 1011586 (Ala. Feb. 21, 2003)
(personal jurisdiction; This dispute arose out of failed investment plans developed by some or all of 11 developers.  Of those 11 Developers, only one -- James Norton -- was an Alabama resident.  The investment plans envisioned raising funds through the sale of securities for reinvestment in companies owned by Richard Homa and Michael Gause.  Through those companies, which included C4T, Inc. ("C4T"), and Sunset Financial Services, L.L.C. ("Sunset"), Homa and Gause operated a number of stores, known as "Cash 4 Titles."  The Developers formed Bellwether Holdings, L.L.C. ("Bellwether"), a Colorado limited-liability company, through which they -- as "managing marketers" -- proposed to issue 270-day promissory notes to potential investors throughout the United States.  The Developers also formed Southwestern Holdings, L.L.C. ("Southwestern"), to loan money to Sunset, a foreign entity with its principal place of business in Georgia.  Through Southwestern, they proposed to issue seven-year bonds to investors throughout the United States.  Dill, Dill, Carr, Stonbraker & Hutchings, P.C. ("Dill") Dill was retained, among other things, to draft offering documents for Southwestern's seven-year bonds and to ensure that the bond offering complied with the securities laws of the United States and of the states in which the bonds were to be sold.  It is undisputed that Fay Matsukage was the Dill attorney responsible for providing those services. In that connection, she prepared and mailed to the securities commissions of various states -- including Alabama -- an instrument, styled "Form D Notice of Sale of Securities Pursuant to Regulation D, Section 4(6), and/or Uniform Limited Offering Exemption" (the "Form-D notice").  Accompanying the Form-D notice was a "Form U-2 Uniform Consent to Service of Process" (the "consent form"), by which Southwestern appointed the secretary of state as its attorney to receive process.  Also on that form was a request that a copy of any notice, process or pleading served hereunder be mailed to:  Fay M. Matsukage, Esq." at a Denver, Colorado, address.  The Form-D notice and the consent form to the Alabama Securities Commission are collectively referred to as the "blue-sky filing."  From March 1999 through June 10, 1999, Southwestern sold bonds and loaned the proceeds from the sale to Sunset.  Nineteen Alabama residents invested $2,539,000 in the Southwestern offering.  Southwestern and Bellwether investors received their interest payments until October 1, 1999.  By that time, an investigation of Homa and Gause by the United States Securities and Exchange Commission ("the SEC") had revealed that Homa and Gause were involved in what the Developers describe as a "Ponzi" scheme.  The SEC eventually included in its investigation some of the Developers, including Alabama resident James Norton.  Indeed, Norton retained Dill in October 1999 to represent him in the SEC investigation.  Norton's representation was undertaken by attorney John A. Hutchings.  On April 27, 2001, Bellwether, Southwestern, 8 of the Developers, and 19 other individuals or entities residing in 7 states, who had invested in Bellwether or Southwestern, commenced case CV-01-430 in the Shelby Circuit Court against, among others not material to this proceeding, Dill, Hutchings, and Matsukage.  On May 11, 2001, a complaint was filed in case CV-01-430 by Mary Champion and others, which  amended or "superseded" the original complaint.  The amended complaint contained the claims of approximately 135 plaintiffs, in addition to the claims of the plaintiffs in the original complaint (that case is hereinafter referred to as "Champion").  In all, Champion involved the claims of plaintiffs from 17 states in which the Bellwether and Southwestern securities were sold.  The claims against Dill and Matsukage were set forth in 22 counts.  Of those counts, 17 alleged violations of the securities laws of 17 states in which Bellwether and Southwestern securities were sold.  The remaining counts alleged (1) breach of contract, (2) common-law fraud, (3) breach of fiduciary duty, (4) professional malpractice, and (5) negligent supervision.  Allen Austin, an Alabama resident, and a second group of plaintiffs, who had invested in Bellwether, Southwestern, or both, commenced case CV-01-971 in the Shelby Circuit Court (that case is hereinafter referred to as "Austin").  The complaint in Austin contained claims against Dill and Matsukage, alleging violations of the securities laws of 11 states, including 2 states not alleged in Champion.  Neither Austin nor Champion alleged violations of the securities laws of the United States.  Dill and Matsukage filed a motion to dismiss, challenging the exercise of personal jurisdiction over them in both cases.  The trial court denied the motion.  Dill and Matsukage seek a writ of mandamus directing the trial court to dismiss the claims against them. HOLDING:  The Supreme Court held that the exercise of in personam jurisdiction over Dill and Matsukage is not authorized by Ala.R.Civ.P. 4.2(a), Alabama's "long-arm" rule, and offends the due-process guarantees of the United States Constitution.  The Court noted that Dill and Matsukage's single relevant contact with Alabama was the blue-sky filing.  The Court noted that they neither represented, nor dealt directly with, any Alabama resident.  The Court noted that Dill and Matsukage performed all services for Bellwether and Southwestern from Colorado. Thus, the Court granted the writ of mandamus.)
*Download or view PDF version of opinion*
 
• American Automotive Acceptance Co. v. New South Federal Savings Bank,

No. 1011657 (Ala. Feb. 21, 2003)
(appellate procedure; timeliness of appeal; American Automotive Acceptance Company and New South Federal Savings Bank entered into a floor-plan loan agreement in which New South agreed to extend American Automotive a line of credit in the amount of $300,000 for a term extending from January 29, 1999, through January 15, 2000.  American Automotive used the money to purchase automobiles for sale at an automobile dealership it owned and operated.  American Automotive alleges that on November 10, 1999, contrary to the terms of the loan agreement, New South unilaterally reduced the credit line from $300,000 to $250,000, and began to interfere with the business operations of American Automotive's dealership by ordering American Automotive to liquidate its inventory to reduce the principal balance of the credit line below $250,000.  American Automotive did not liquidate its inventory, and on November 30, 1999, New South gave American Automotive written notice that it had defaulted on the loan agreement and that New South was repossessing American Automotive's automobile inventory as of that date.  American Automotive sued New South and one of its loan officers, Steve Thomas, on October 16, 2000, alleging breach of contract, tortious interference with business relationships, fraudulent misrepresentation, wrongful repossession and/or conversion, and breach of fiduciary duty.  New South and Thomas moved for a summary judgment as to all claims asserted by American Automotive.  American Automotive filed a response to New South and Thomas's motion and after a hearing on the motion, the trial court, on January 16, 2002, entered a summary judgment in favor of New South and Thomas as to all claims.  However, because new counsel for American Automotive had filed a notice of appearance in the case on January 9, the trial court also, in its summary-judgment order, allowed American Automotive to conduct additional discovery and ordered American Automotive to file, within 70 days of the order, a "motion for reconsideration."  On March 27, 2002, American Automotive filed a motion to alter, amend, or vacate that judgment; on April 9, 2002, the trial court denied that motion and purported, at that time, to make the summary judgment final.  American Automotive appealed.  American Automotive filed its notice of appeal on May 21, 2002, 42 days after the denial of the motion  to alter, amend, or vacate, but 125 days after the entry of the summary judgment.  New South moved to dismiss the appeal as untimely.   HOLDING:  The Supreme Court held that the January 16 summary judgment was a final judgment, even though it stated that it was not a final order.  The Court noted that an order that disposes of all pending issues as to all parties, so that by the general rules of procedure it is final and appealable, will not be made nonfinal by the trial court's calling it nonfinal.  The Court held that the trial court's order allowing American Automotive 70 days in which to file a "motion for reconsideration" or a Rule 59(e) motion was a nullity because a Rule 59 motion must be filed within 30 days of the judgment.  The Court held that since the "motion for reconsideration" was not filed within 30 days of the entry of the summary judgment, it did not extend the 42-day period for filing an appeal, and the appeal was untimely.  Thus, the Court dismissed the appeal.)
*Download or view PDF version of opinion*
 
• Smith v. Yanmar Diesel Engine Co.,

No. 1011699 (Ala. Feb. 21, 2003)
(personal jurisdiction; wrongful death; product liability/Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"); negligence; wantonness; breach of warranty; This dispute arises out of an accident on January 1, 2000, in which Lee Smith was fatally injured by the rollover of a tractor manufactured and initially sold in Japan by Yanmar Diesel Engine Company, Ltd.  At some point in time after its initial sale and use in Japan, according to Yanmar, the tractor came into the possession of defendant Sanko Industries ('Sanko'), an exporter of used Japanese tractors, having no affiliation with Yanmar.  The used tractor was then sold to Gordon E. Maynard Tractor and Farm Equipment ('Maynard') in Brownsboro, Alabama, in 1999.  Linda Smith sued Yanmar, Maynard, Sanko Industries, and others, seeking damages for the wrongful death of her husband.  Yanmar challenged the Madison Circuit Court's exercise of in personam jurisdiction over it.  Yanmar moved for a summary judgment on the sole ground that its contacts with Alabama were insufficient to subject it to the jurisdiction of the courts of this state.  More specifically, it alleged that the tractor on which Smith was killed was a "gray-market" product, which has been defined as a product that is "imported without the knowledge or approval of a manufacturer into a market that the manufacturer serves, at a greatly reduced price."  Thus, Yanmar argued that it did not "purposefully avail" itself of the Alabama market with respect to tractors designed for the domestic market in Japan and that the unilateral actions of Sanko and Maynard in bringing the subject tractor into Alabama cannot create the "minimum contacts" between Yanmar and Alabama necessary for jurisdiction.  At the untranscribed hearing on Yanmar's motion for a summary judgment, Yanmar admittedly stipulated (1) that "[a]t the time of the subject accident, [Yanmar] was aware of the fact that used Yanmar tractors (including the tractor sub judice) were being sold in Alabama"; and (2) that Yanmar "sold and continues to sell genuine Yanmar parts in Alabama through authorized Yanmar dealers in Alabama for those used, 'gray market' tractors."  The trial court granted the summary-judgment motion and certified it as a final judgment. HOLDING:  The Supreme Court held that Yanmar's stipulation that it "sold and continues to sell genuine Yanmar parts in Alabama through authorized Yanmar dealers in Alabama" is a broad, general assertion that suggests the possibility, at least, of substantial contacts with Alabama.  In other words, the stipulation essentially conceded the existence of a genuine issue of material fact, making a summary judgment inappropriate.  Therefore, the Court held that the trial court erred in entering the summary judgment for Yanmar and reversed the judgment.)
*Download or view PDF version of opinion*
 
• Ex parte Troutman Sanders, LLP,

No. 1011812 (Ala. Feb. 21, 2003)
(timeliness of petition for writ of mandamus; time for filing mandamus challenging interlocutory order denying motion to dismiss for forum non conveniens; Ala.R.Civ.P. 59; This petition for writ of mandamus arises out of the same litigation that precipitated Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., No. 1011586  (Ala. Feb. 21, 2003), released the same day as this decision, which involves two cases, one filed by Mary Champion and others, CV-01-430 ("Champion"), and the other filed by Allen Austin and others, CV-01-971 ("Austin").  Troutman Sanders, LLP ("Troutman") is one of several defendants in those cases.  Troutman, pursuant to  Ala. Code §6-5-430, moved in each case to dismiss the claims of the nonresident plaintiffs against it on the ground of forum non conveniens.  The trial court denied the motion in Austin on April 9, 2002.  On April 29, 2002, Troutman filed in each case a "motion to reconsider" the denial of its motion to dismiss the foreign plaintiffs.  On May 13, 2002, the trial court denied Troutman's motion to dismiss in Champion.  On May 24, 2002, the trial court denied Troutman's "motion to  reconsider" in Austin.  On June 27, 2002, Troutman petitioned the Supreme Court for a writ of mandamus, directing the trial court to "vacate [its] orders of April 9, May 13, and May 24, 2002, and ... to enter an order dismissing the 230 foreign plaintiffs from this suit, without prejudice."  In other words, the petition was filed 79 days after the denial of the motion to dismiss in Austin, and 45 days after the denial in Champion.  Citing Ala.R.App.P. 21(a), the respondents moved to dismiss the petition as untimely. HOLDING:  The Supreme Court held that a "motion to reconsider" does not toll the time for filing a petition for writ of mandamus from an interlocutory order.  The Court reasoned that Rule 59(e) applies only where there is a "judgment," which is specifically defined in Ala.R.Civ.P. 54(a), as "a decree and any order from which an appeal lies."  The Court held that Rule 59 does not apply to interlocutory orders and that, therefore, the tolling effect of Rule 59 is not involved with respect to motions to "reconsider" interlocutory orders.  Thus, the Court granted the motion to dismiss the petition for writ of mandamus as untimely.)
*Download or view PDF version of opinion*
 
• Nelson v. Estate of Burton J. Frederick,

No. 1012107 (Ala. Feb. 21, 2003)
(statute of limitations for claims against an estate; Troy Nelson and Burton J. Frederick were involved in an automobile accident on March 1, 2000.  On March 13, 2001, Frederick died from causes unrelated to the accident.  On March 1, 2002, Nelson sued Frederick, seeking damages for personal injuries arising out of the accident.  An answer was filed on behalf of Frederick  denying the essential allegations of the complaint and asserting numerous defenses, including that Nelson's complaint failed to state a claim upon which relief could be granted and that the complaint was filed more than six months after Frederick's death, which the estate argued was beyond the statutory limitations period.  Nelson's workers compensation carrier filed a motion to intervene because, as Nelson's workers' compensation carrier, it had paid medical benefits to Nelson.  The trial court issued an order treating the motion to dismiss as a motion for a summary judgment because it presented matters outside of the pleadings, specifically Frederick's death certificate.  The trial court found that because Frederick had died before Nelson filed his action, no valid action was pending at the time the statutory limitations period expired.  The trial court entered a summary judgment in favor of Frederick's estate.  Nelson appealed on August 12, 2002, and on August 22, 2002, petitioned the probate court to appoint an administrator for Frederick's estate.  On August 29, 2002, the circuit court appointed an administrator ad litem, based upon a motion filed by Nelson's workers' compensation carrier, and found that the carrier had a valid claim against Frederick's estate.  On September 13, 2002, the trial court revised its June 18, 2002, summary-judgment order and certified it as final pursuant to Rule 54(b).  This ruling disposed of all issues between Nelson and Frederick's estate.  However, the workers' compensation carrier's claim remained and the proceedings on that claim were stayed pending the outcome of Nelson's appeal. On September 18, 2002, the trial court amended its August 29, 2002, order, again finding that the carrier had a valid claim against Frederick's estate and appointing an administrator ad litem to represent Frederick's interest.  HOLDING:  The Supreme Court concluded that Nelson's claim was valid when it was filed and that the statutory limitations period on Nelson's cause of action did not expire until September 1, 2002.  The Court held that when a tortfeasor dies, the time between his death and the granting of letters of administration, not to exceed six months, is not to be used in computing the statutory period of limitations by or against the executor or administrator.  The Court also concluded that the circuit court erred in failing to appoint an administrator ad litem upon Nelson's request in his opposition to the defendant's motion to dismiss. Therefore, the Court held that the circuit court erred in entering a summary judgment in favor of Frederick's estate.)
*Download or view PDF version of opinion*
 
• Ex parte Dowdell,

No. 1012178 (Ala. Feb. 21, 2003)
(criminal; The Court denied the petition for writ of certiorari without opinion.  Justices See and Brown each wrote a concurring opinion)
*Download or view PDF version of opinion*
 
• Lilya v. The Greater Gulf State Fair, Inc.,

No. 1012313 (Ala. Feb. 21, 2003)
(premises liability; open and obvious dangers; While attending a fair on premises owned by Gulf State Fair in Mobile County, John Lilya came upon a mechanical bull ride owned and operated by Tracy Torres, who was doing business as "Rolling Thunder & Company."  As Lilya approached the ride, which was enclosed in a small corral fence and was surrounded by a crowd of people, he could see a person riding the mechanical bull.  Above the mechanical bull was a large banner that read "Rolling Thunder."  As a friend of Lilya's walked up to a table located on one side of the corral area to pay for a ride on the mechanical bull, Lilya noticed that the rider who had been on the mechanical bull had fallen off. After Lilya's friend paid for his ride on the bull and walked into the corral, Lilya decided that he would also try to ride the mechanical bull.  After Lilya approached the table and paid the $5  admission fee to Torres, who was operating the mechanical bull, Lilya noticed that his friend had fallen off the bull.  Torres told Lilya that Lilya had to sign a document entitled "PARTICIPANT AGREEMENT, RELEASE, AND
ACKNOWLEDGMENT OF RISK" before he would be allowed to ride the mechanical bull.  After signing the document, Lilya stepped into the corral area, the floor of which was covered with a mat approximately 12 to 18 inches thick, which Lilya described as "soft and forgiving."  Lilya's impression of the mat was that if he fell from the bull the mat would protect him from injury.  With Torres's help, Lilya got up on the mechanical bull and began to ride.  However, after just a few seconds, and while the bull was still moving slowly, Lilya fell off.  Torres then instructed Lilya on how to ride the bull and helped Lilya back onto the bull.  The bull ride began again, and it became progressively faster, spinning and bucking to the left and to the right, until Lilya again fell off of the bull.  Lilya claims that it was this second fall that caused his injury; he landed on his head and shoulders and suffered a fractured neck.  Lilya brought this action against, among others, Gulf State Fair, asserting 1) that Gulf State Fair negligently and/or wantonly operated its place of entertainment in that it breached its duty to keep and maintain the fairgrounds in a reasonably safe condition, and 2) that Gulf State Fair breached an implied-in-fact contract with Lilya to provide reasonably safe exhibits for Lilya's entertainment.  Gulf State Fair filed a motion for a summary judgment, which the trial court granted.   HOLDING:  The Supreme Court held that any tort claims by Lilya would be governed by premises-liability principles and would be evaluated in light of the duty owed by a landowner to an invitee.  The Court held that the danger stemming from the mechanical bull ride is the most open and obvious  characteristic of the ride: the possibility of falling off the mechanical bull.   The Court held that Lilya understood the risks and rode voluntarily.  Therefore, the Court held that Gulf State Fair owed no duty to warn Lilya of the possible harm involved in riding the mechanical bull.  Furthermore, the Court held that there is no evidence indicating that the mechanical bull did not work exactly as it was supposed to work, and that, therefore, there was no "defect" that Gulf State Fair should have discovered through inspection.  Therefore, because Lilya can show no breach of the implied contract between him and Gulf State Fair, the Court held that the summary judgment in favor of Gulf State Fair on Lilya's contract claim was appropriate.)
*Download or view PDF version of opinion*
 
• Ex parte State Farm Mutual Automobile Ins. Co.,

No. 1020040 (Ala. Feb. 21, 2003)
(The Court denied the petition for writ of certiorari without opinion.  Justice Harwood wrote a concurring opinion.)
*Download or view PDF version of opinion*
 
• Caton v. City of Thorsby,

No. 1020216 (Ala. Feb. 21, 2003)
(zoning; standing; real party in interest; The circuit court granted a motion for summary judgment filed by the City of Thorsby and the City of Thorsby Zoning Commission ("the zoning commission") on the grounds that the plaintiff, Ronnie Earl Caton, was not the real party in interest and that he lacked standing, because he never received a formal adverse ruling from the zoning commission. HOLDING:  The Supreme Court affirmed the summary judgment, holding that Caton did not have standing to bring an action against the City of Thorsby and the City's zoning commission challenging an alleged zoning decision affecting property he owned when he made a rezoning request but had sold before the formal meeting of the zoning commission at which his request was to be considered.)
*Download or view PDF version of opinion*
 
• Johnson Mobile Homes of Ala., Inc. v. Hathcock,

No. 1992310 (Ala. Feb. 21, 2003)
(arbitration; On July 23, 1997, Michael Hathcock purchased a mobile home from Johnson Mobile Homes ("JMH").  In connection with this purchase, Michael Hathcock signed a contract for the sale of the mobile home ("the sale contract"), a freestanding arbitration agreement, and an "Installment Note, Security Agreement, and Disclosure Statement."  The Hathcocks lived in the mobile home until October 27, 1997, when a fire destroyed the home and the Hathcocks' personal possessions inside the home.  The Hathcocks recovered $84,784.12 from their insurance company to compensate them for their loss.  On July 30, 1999, the Hathcocks sued JMH, alleging (1) that JMH had represented to them that the mobile home they had purchased was new, when, in fact, it was not and (2) that an improperly installed and/or manufactured electrical box caused the fire in their home.  On September 3, 1999, JMH moved to dismiss, or, alternatively, to compel arbitration.  The trial court issued an order denying the motion on August 3, 2000, finding "that the underlying [sale] contract was void ab initio in that it violated the Alabama Deceptive Trade Practices Act."  In addition, it found that Patsy Hathcock was not a signatory to the contract and, therefore, was not subject to the arbitration agreement signed by Michael Hathcock.  HOLDING:  The Supreme Court held that the trial court erred in denying JMH's motion to compel arbitration on the basis that the sale contract violated Alabama's Deceptive Trade Practices Act.  The Court held that there is no fraud claim that goes to the "making" of the arbitration agreement itself and that claims as to fraud in the inducement of the contract generally are subject to arbitration.  The Court held that to the extent that Patsy Hathcock's claims are not based on the underlying sale contract, the trial court did not err in finding that Patsy Hathcock is not required to arbitrate her claims, if she has any.)
*Download or view PDF version of opinion*

Back to top

Opinions Released February 14, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  FEBRUARY 14, 2003

 
• Alabama Dep't of Corrections v. Thompson,

No. 1001191 (Ala. Feb. 14, 2003)
(sovereign immunity; state-agent immunity; duty to protect another from criminal acts of a third party; Helen Thompson sued the Alabama Department of Corrections for its negligence in causing or allowing the escape of inmate Jessie Bennett from the J.F. Ingram Technical College (the "College") at the Frank Lee Youth Center.  Thompson alleged that, after Bennett escaped, he broke into her home, assaulted her, rendered her unconscious, and stole her automobile.  She demanded compensatory and punitive damages. Thompson amended her complaint to add Edwin Henry, the warden of the Frank Lee Youth Center; and Deborah Haynes and Christopher Thomas,  correctional officers at the Frank Lee Youth Center.  Thompson alleged that Henry, Haynes, and Thomas negligently or wantonly "allowed Jessie Bennett to escape from confinement at [the] College."  She alleged also that Henry and Haynes negligently or wantonly selected Bennett "to receive training at [the] College."  Thompson further alleged that Henry, Haynes, and Thomas negligently or recklessly failed "to properly train and/or supervise the Department of Corrections employees assigned to guard and detain state prisoners at [the] College."  The defendants asserted various affirmative defenses including state-agent immunity and absolute immunity.  They asserted also that they "owed no special duty to [Thompson] or maintain[ed] [no] special relationship to her."  These defendants then moved for summary judgment on the grounds of absolute immunity, state-agent immunity, and absence of any duty to Thompson to protect her from the criminal acts of Bennett.  They asserted also that Thompson failed to "allege sufficient facts to establish proximate cause between any act of the Defendants and any resulting injury or damage[] to [Thompson]."  The trial court denied the summary judgment motion and certified the case as appropriate for a permissive appeal.  HOLDING:  The Supreme Court reversed the trial court and held that the trial court erred in denying the defendants' summary judgment motion.  The Court held that the Department of Corrections, as an agency of the State, is immune under Ala. Const. art. I, §14.  The Court held that state correctional officers owe a general duty to the public, not a duty to a specific person, to maintain custody of inmates.  The Court held that the plaintiff did not establish the alternative for liability under Finley v. Patterson, 705 So.2d 826, 828 (Ala. 1997), that a special relation exists between the actors (Henry, Haynes, or Thomas) and the third person (Bennett) which imposed a duty upon the actors (Henry, Haynes, or Thomas) to control the third person's conduct.  The Court held that the plaintiff did not allege or prove that Henry, Haynes, or Thomas knew of the plaintiff individually or particularly or knew of any threats against her by Bennett before Bennett escaped and victimized her.  The Court held that the plaintiff did not allege or prove that Henry, Haynes, or Thomas knew or should have known that Bennett intended to escape, to break into a house, to assault the resident, and to steal the resident's automobile.  Consequently, the Court held that the plaintiff failed to establish the other alternative special relationship under Finley v. Patterson or the special circumstances under Saccuzzo v. Krystal Co., 646 So.2d 595, 596 (Ala. 1994), that could have imposed a duty on Henry, Haynes, or Thomas to protect the plaintiff from the criminal acts of Bennett.  Accordingly, the Court held that Warden Henry and correctional officers Haynes and Thomas were and are due a judgment grounded on the absence of a duty to Thompson.)
*Download or view PDF version of opinion*
 
• Sessions v. Espy,

No. 1010329 (Ala. Feb. 14, 2003) (on application for rehearing)
(legal malpractice; necessary party; bankruptcy; The Court overruled the application for rehearing without opinion.  Justice Johnstone issued an opinion concurring in the overruling of the application for rehearing.)
*Download or view PDF version of opinion*

--(The original opinion released on October 4, 2002, in Sessions is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

• Ex parte Centobie,

No. 1010462 (Ala. Feb. 14, 2003) (on rehearing ex mero motu)
(criminal; The Court denied the petition for writ of certiorari without opinion, but stated that the denial of the writ should not be construed as approval of the Court of Criminal Appeals' articulation of the cumulative-error rule in Part XVII of the opinion of that court.)
*Download or view PDF version of opinion*
 
• Waverlee Homes, Inc. v. McMichael,

No. 1010966 (Ala. Feb. 14, 2003)
(arbitration; bias of arbitrator; Chris McMichael and Brenda McMichael, purchasers of a mobile home and residents of Alabama, sued Causey & Graves d/b/a Holly Brook Homes, L.L.C. (hereinafter "Holly Brook"), a Mississippi entity and the seller of the home, as well as Waverlee Homes, Inc. (hereinafter "Waverlee"), an Alabama corporation and the manufacturer of the home, in the Choctaw County Circuit Court.  The trial court stayed the case pursuant to an arbitration provision contained in a "Manufactured Home Retail Installment Contract and Security Agreement" ("the retail installment contract") executed by the McMichaels and Holly Brook during the purchase of the mobile home, Waverlee and Holly Brook filed motions to compel arbitration.  On August 28, 2001, Spencer Walker, the arbitrator, an attorney from Grove Hill, issued an order requesting all parties to divide the $2,756.25 arbitration costs equally.  On September 19, 2001, Holly Brook settled pro tanto with the McMichaels for $5,000.  On Friday, September 21, 2001, Walker filed his "Report and Award of Arbitrator" with the clerk of the Choctaw Circuit Court, finding in favor of the McMichaels and awarding them damages in the amount of $490,000.  The arbitrator's award also assessed Waverlee $3,000, which represented the entire cost of the arbitration.  The trial court entered a judgment on the arbitrator's award on Monday, September 24, 2001.  On October 1, 2001, Waverlee filed a notice in the trial court to depose Robert C. Black, Jr., a Montgomery attorney, concerning a "deal" allegedly proposed by the McMichaels' attorney, Jeff Utsey, in an arbitration proceeding in another similar case.  The McMichaels filed a "Motion for Protective Order and/or in the Alternative, Motion to Quash," which the trial judge granted.  Waverlee then filed a postjudgment "Motion to Vacate Judgment and Arbitration Award and/or Petition to Vacate, Modify and Correct Arbitration Award and Judgment and for Other Relief," pursuant to Rule 59(e), Ala.R.Civ.P., seeking to vacate the judgment entered on the arbitration award.  In support of the motion, Waverlee  referenced the proposed deposition of Black, made an offer of proof regarding the alleged deal Utsey proposed to Black, and submitted the affidavit of Joel Williams, its attorney.  In the motion, Waverlee requested that the court, among other things, "vacate the arbitration award and the judgment of this Court entering the arbitration award rendered against Waverlee and in favor of the plaintiffs ...." Williams stated that on September 26, 2001, five days after Walker filed the arbitration award in favor of the McMichaels, Williams learned of certain circumstances relating to Walker and Utsey, including a letter authored by Utsey and sent to the Alabama State Bar on February 11, 1999, relating to another arbitration proceeding. Utsey's letter to the Bar asked whether he could "make an agreement with the seller that I will argue him out of this case or in the event a verdict is returned against them, either through a jury trial or an arbitration, I will never try and collect the judgment from his client" and in return "I would be given the right to select his arbitrator."  An assistant general counsel for the Bar wrote back stating that "there is nothing unethical in proceeding in the manner you have described in your letter."  Williams attested that, upon learning of this exchange of letters, he formed the belief that Utsey, rather than Holly Brook, had actually selected Walker as the arbitrator.  Williams further attested that he also learned of court records in Choctaw and Clarke Counties showing that Walker had served as plaintiffs' counsel in actions against Southern Energy Homes ("Southern Energy"), a mobile-home manufacturer, before Walker served as the arbitrator in this case.  Williams stated that in 2000, in the case of Vera Smith v. Cedar Ridge Homes, Inc. (case no. CV-2000-114-C) in the Circuit Court of Choctaw County, counsel for the defendant mobile-home  manufacturer, during the process of selecting an arbitrator, had asked Walker if he had ever served as a plaintiff's attorney in any mobile-home cases, and Walker had responded that he had not.  The record as compiled by Waverlee purports to reveal that in 2000 Walker served as arbitrator in two other actions asserting claims factually similar to those in the present case and involving mobile homes; Utsey was counsel for the plaintiffs in those cases.  The cases were in Wilcox County, Clowers v. Grand Manor, Inc. (case no. CV-00-76), and in Choctaw County, McGrew v. Harold Allen's Mobile Home Factory Outlet (case no. CV-2000-141-M).  In each of those cases, and in the Smith case and in the case at hand, Walker as arbitrator found in favor of the plaintiff against the defendant mobile-home manufacturer, even though the dealer was also a defendant.  Likewise, in those three cases and in the present case the arbitrator made similar findings of fact as to the nature and extent of the plaintiffs' damage.  Walker also awarded substantial damages to the plaintiffs in each of the cases.  As noted, the award in this case was $490,000.  In Clowers, the plaintiff was awarded $590,000; in McGrew, the plaintiff was awarded $550,000; and in Smith, the plaintiff was awarded $360,000.  The record further shows that in each of those cases, as in this case, the mobile-home manufacturer was taxed with a $3,000 arbitrator's fee as the entire cost of the arbitration.  The record also shows that the awards in McGrew, Smith, and the instant case were all issued on September 21, 2001, and the award in Clowers was issued on September 24, 2001.  Williams asserted further in his affidavit that he discovered, after the arbitration award was entered in this case, that Utsey had attempted to reach an agreement identical to the one described in the letter to the Alabama State Bar, with attorney Robert Black, Jr., defense counsel for a mobile-home dealer in another action in which Utsey was counsel for the plaintiffs.   The largest estimate of damage expressed by any of the experts in this case was that stated in a report issued by inspector Larry Reynolds, an expert for the McMichaels, who estimated the total cost of repairs to the mobile home, including labor and materials, to be between $4,500 and $5,500.  However, Walker awarded the McMichaels $490,000 for emotional and financial damage based on their breach-of-warranty claims.  The award does not purport to include punitive damages.  The trial court never ruled on Waverlee's postjudgment motion to vacate the judgment entered on the arbitration award, and on January 9, 2002, that motion was denied by operation of law pursuant to Rule 59.1.  On January 17, 2002, the trial court entered an  "Order of Partial Dismissal"; that order dismissed Holly Brook from the action as a result of the pro tanto settlement.  Waverlee appealed to this Court on February 11, 2002, challenging the trial court's adoption of the arbitration award. HOLDING:  The Supreme Court held that the evidence submitted by Waverlee, when taken in its entirety, raises a threshold inference of possible bias based on Walker's alleged failure to disclose any interest or bias that might affect his judgment, including any relationships between him and Utsey.   The Court noted that the McMichaels did not submit any evidence to contradict Waverlee's assertions of arbitrator bias, and there were therefore no material facts in dispute that would justify a finding by the trial court that Waverlee's contentions were false.  Thus, the Court concluded that Waverlee's evidentiary showing in support of its postjudgment motion was sufficient, at that initial stage, to warrant a hearing for the purpose of determining whether adequate evidence exists to grant Waverlee's request to set aside the judgment of confirmation. The Court held that because it is the province of the trial court to assess the admissibility and weight of Waverlee's evidence, and likewise that of any rebuttal evidence from the McMichaels, it would not comment on the merits of Waverlee's allegations; rather, the Court concluded only that an evidentiary hearing is warranted.  The Court also discussed the legal principles that should govern the trial court's consideration of the facts pertaining to Waverlee's assertion that the arbitrator's award was flawed by bias and partiality, because this case presents the unexplored issue in this State of what is required to show arbitrator bias as a basis for challenging an arbitration award.  The Court stated that on remand, the trial court  should consider the law pertaining to claims of arbitrator bias asserted under the FAA.   The Court reversed the judgment of the trial court and remanded for further proceedings.)
*Download or view PDF version of opinion*
 
• Alfa Life Ins. Corp. v. Johnson,

No. 1011408 (Ala. Feb. 14, 2003)
(class action; class certification; breach of contract; unjust enrichment; This is the second time this case has been before the Alabama Supreme Court. SeeAlfa Life Ins. Corp. v. Johnson, 822 So.2d 400 (Ala. 2001).  Pauline Johnson and Earlene Winters purchased several life insurance policies from Alfa no later than 1991, several of which were an interest-sensitive policy known as the ISP601.  Alfa also issued another interest-sensitive policy,  the ISP611.  For purposes of this appeal, the parties agree that the ISP611 is identical to the ISP601.  Premiums paid on the interest-sensitive policies are placed into a policy-accumulation fund. The value of the accumulation fund is known as the "Accumulation Value," which is defined in the policy.  The plaintiffs and other Alfa policyholders may choose to pay their premiums monthly, quarterly, semiannually, or annually.  Alfa charges an additional fee when a policyholder chooses to pay his or her premiums on a more frequent basis than annually.  Although this fee is not expressly defined or referred to by name in the policy, Alfa refers to it in its briefs to this Court as a "mode-of-payment" fee.  The amount of the mode-of-payment fee charged by Alfa depends upon how frequently the policyholder pays the premium.  Alfa considers mode-of-payment fees to be "premiums for ... benefits" and properly included in the risk charge.  This risk charge is then deducted from the policy's accumulation fund.  Johnson and Winters have paid premiums more frequently than annually on their interest-sensitive policies, and Alfa has collected mode-of-payment fees from them; thus, Alfa has deducted mode-of-payment fees from the accumulation values of the plaintiffs' policies.  This action was filed on April 16, 1997.  The plaintiffs initially contended that Alfa had breached the terms of the interest-sensitive life insurance policies by charging mode-of-payment fees.  After several amendments to their pleadings, the plaintiffs no longer contend that Alfa breached the terms of the policies by charging the mode-of-payment fees, but  they allege that Alfa breached the terms of the life insurance policies by deducting the mode-of-payment fees from the policyholders' accumulation fund.  The plaintiffs also allege that Alfa has been unjustly enriched as a result of this practice.  The plaintiffs sought certification of the class asserting those claims.  On October 11, 2000, the trial court entered an order certifying this case as a class action under Rule 23(b)(3), Ala.R.Civ.P., and certifying the following class:  "All those individuals who (a) are citizens of the State of Alabama and (b) who, from April 16, 1991, up until the time of final judgment in this action, have been insured under or paid premiums pursuant to an Alfa 601 or 611 interest sensitive policy and (c) who paid premiums on a mode more frequently than on an annual basis."  Alfa appealed the October 11, 2000, class-certification order.  In that appeal, the Supreme Court concluded that the trial court had abused its discretion by certifying the class without first deciding whether the Alfa policy was ambiguous and, if so, what effect that ambiguity would have on the class certification.  On remand, after receiving briefs and hearing arguments on the ambiguity issues, the trial court concluded that the term "benefits" was not ambiguous and that its meaning within the context of the Alfa policy was "the payment, or waiver of payment, provided to a policyholder for a covered death or loss."  The trial court also held that this determination would not affect the class as previously certified. On March 26, 2002, the trial court granted the plaintiffs' motion to recertify the class.  HOLDING:  The Supreme Court affirmed the class-certification order.  The Court held that the term "benefits," as used in the Alfa policies, is not ambiguous and that it refers to the proceeds payable to the beneficiary of the policy upon the happening of a covered loss or event.  The Court held that the question whether Alfa's defenses would be applicable to every member of the class has not been sufficiently developed.)
*Download or view PDF version of opinion*
 
• Bean Dredging, L.L.C. v. Alabama Dep't of Revenue,

No. 1011664 (Ala. Feb. 14, 2003)
(sales taxes; interstate commerce; Bean Dredging, L.L.C., and Midstream Fuel Services, Inc. assert that they are entitled to a refund of $58,863 for State sales taxes paid on fuel and supplies during the period from March 1995 through September 1997 because, they say, Bean's dredges are exempt from sales taxes on fuel and supplies under Ala. Code §40-23-4(a)(10).  Bean is headquartered in New Orleans, Louisiana, and Midstream is located in Mobile, Alabama.  In its normal course of business, Bean contracts with the United States Army Corps of Engineers ("the Corps") to dredge ports, rivers, and harbors throughout the United States.  Bean contracted with the Corps to dredge Mobile Bay and the Mobile River during the audit period in issue (March 1995-December 1997).  During the contract and audit period, Bean purchased fuel and supplies from Midstream in Mobile, Alabama.  Those supplies and fuel were used on the vessels performing the dredging.  Bean paid Alabama sales tax on the fuel and supplies; it is from this payment of sales tax that Bean and Midstream jointly petitioned for a refund.  An administrative law judge with the Department of Revenue denied Bean and Midstream's petition for a refund of the sales taxes.  The administrative law judge therefore found that the statute, when read narrowly, does not apply to dredges.  The Montgomery Circuit Court affirmed the administrative law judge's decision.  HOLDING:  The Supreme Court concluded that dredges  working to maintain navigable waterways so that those waterways may be used for commerce are engaged in interstate commerce and thus are eligible for the sales-tax exemption provided by § 40-23-4(a)(10).  Thus, the Court reversed the decision of the Montgomery Circuit Court affirming the order issued by an administrative law judge of the Department of Revenue dismissing Bean's and Midstream's case.)
*Download or view PDF version of opinion*
 
• Elliott v. Winston County,

No. 1011910 (Ala. Feb. 14, 2003)
(real estate; road access; easement; The Supreme Court affirmed without opinion.  Justice See issued a dissenting opinion.)
*Download or view PDF version of opinion*
 
• Ex parte Collins,

No. 1020115 (Ala. Feb. 14, 2003)
(domestic relations; criminal contempt; attorney fees; After Larry Collins allegedly violated the trial court's divorce judgment, Julie Collins filed a verified petition for contempt.  The trial court adjudged Larry Collins in criminal contempt of court and, as part of its judgment, the court awarded Julie an attorney fee of $1,350.  HOLDING:  The Supreme Court found no error as to the criminal-contempt conviction and affirmed that part of the judgment.  However, the Court reversed the Court of Civil Appeals' judgment insofar as it relates to the award of attorney fees.  The Court held that the award of attorney fees directly conflicts with its opinion in In re State ex rel. Payne v. Empire Life Insurance Co. of America, 351 So.2d 538, 545 (Ala. 1977), wherein the Court stated that, in a criminal-contempt action, "the award of attorney's fees is not proper" and that part of the trial court's order purporting to award an attorney fee "must be considered as mere surplusage and severed from the judgment decree.")
*Download or view PDF version of opinion*

Back to top

 Opinions Released February 7, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  FEBRUARY 7, 2003

 
• Ex parte Third Generation, Inc.,

No. 1000471 (Ala. Feb. 7, 2003)
(finality of judgments; void judgments; Ala.R.Civ.P. 60(b0(4); change in the law; This is the third time this case has been before the Supreme Court of Alabama, and it is the third time the Court has ruled in favor of Third Generation, Inc. ("TGI").   In 1993, a jury returned a verdict in favor of TGI in the amount of $0 compensatory damages and $125,000 in punitive damages.  The trial court entered a judgment on that verdict but then granted Wilson's motion for new trial.  TGI appealed, and the Supreme Court reversed and ordered that the judgment on the jury's verdict be reinstated. Third Generation, Inc. v. Wilson, 668 So. 2d 518 (Ala. 1995).  On remand, the trial court entered a judgment on the verdict.  In 1998, the Supreme Court decided in a separate case, Life Insurance Co. of Georgia v. Smith, 719 So. 2d 797 (Ala. 1998), that in order to be consistent with due process, "a jury's verdict [must] specifically award either compensatory damages or nominal damages in order for an award of punitive damages to be upheld."  The Supreme Court later granted TGI's petition for a writ of mandamus and directed the trial court to set aside its November 8, 2000, order granting Wilson's Rule 60(b)(3), Ala.R.Civ.P., motion and compelling TGI to accept worthless inventory as partial satisfaction of its judgment against Wilson. Ex parte Third Generation, Inc., 820 So. 2d 89 (Ala. 2001).  The trial court then issued two orders dated March 8, 2002, and May 13, 2002.  The March 8 order limited TGI's postjudgment interest to approximately 19 months.  However, the May 13, 2002, order, granted in response to Wilson's April 8, 2002, Rule 60(b)(4), Ala.R.Civ.P., motion, set aside the 1993 judgment on the grounds that it was "void" and ordered a new trial based on the punitive award but no compensatory award to TGI.   TGI petitioned for a writ of mandamus.  HOLDING:  The Supreme Court granted the writ of mandamus and directed the trial court to vacate its May 13 new-trial order and to reinstate the June 15, 1993, original judgment on the jury's verdict with postjudgment interest to be awarded at the statutory rate from June 15, 1993, to the time the judgment is paid.  The Court noted that at the time the judgment was entered on the jury's verdict in this case an award of punitive damages with zero compensatory damages was acceptable.  The Court held that the term "due process," in the context of providing a foundation for declaring a judgment void, refers to procedural, rather than substantive, due process.  Because the Court's decision in Smith -- changing the law to bar punitive damage awards when no compensatory damages were awarded -- was based on substantive due-process grounds, the Smith rationale may not be used as a ground for declaring a judgment void under Rule 60(b)(4).  Therefore, the Court held that the original judgment entered on the jury's verdict was not void and that the trial court erred in granting Wilson's Rule 60(b)(4) motion.)
*Download or view PDF version of opinion*
(Note:  The prevailing petitioner, Third Generation, Inc., was represented in this case by Michael L. Jackson, Jay H. Clark, and William A. Ratliff of Wallace, Jordan, Ratliff & Brandt, L.L.C.) 
 
• Finebaum v. Coulter,

No. 1000676 (Ala. Feb. 7, 2003)
(defamation; the tort of outrage; invasion of privacy; public figure; Plaintiff Richard Matthew Coulter, a sports journalist who hosted his own radio talk program, sued Paul Finebaum, also a sports journalist who hosted his own radio talk program, and Capstar Operating Corporation d/b/a WERC AM/FM Radio ("WERC").  The gravamen of each theory was a comment by Finebaum about Coulter during Finebaum's December 15, 1998 radio talk show.  Specifically, Coulter complained that, by comparing a conversation on Coulter's own radio program between Coulter and another male participant with "oral sex,"  Finebaum had, on his program, implied that Coulter "is a homosexual."  Finebaum and WERC moved for a summary judgment.  The trial court granted summary judgment in favor of Finebaum and WERC on Coulter's conspiracy claim, but denied summary judgment on Coulter's other claims.  Finebaum and WERC petitioned this Court for permission to appeal a trial court order denying in part their motion for a summary judgment.  HOLDING:  The Supreme Court reversed and held that Finebaum and WERC were entitled to summary judgment.  The Court noted that the First Amendment protects mere rhetorical hyperbole or statements that cannot reasonably be interpreted as representing actual facts.  The Court concluded that Finebaum's comment about Coulter was not a statement that can reasonably be interpreted as stating actual facts about Coulter.  The Court concluded that Coulter did not present clear and convincing evidence that Finebaum intended to imply that Coulter is a homosexual.  Finally, the Court concluded that Coulter did not present clear and convincing evidence that Finebaum made the statement with actual malice.)
*Download or view PDF version of opinion*
 
• Leonard v. Terminix Int'l Co.,

No. 1010555 (Ala. Feb. 7, 2003) (on application for rehearing)
(arbitration; On rehearing, Terminix argues that this Court erred on original submission in failing to consider that Walter Leonard, Jr., and Evalina Leonard's claim would be subject to the American Arbitration Association's Supplementary Procedures for Consumer-Related Disputes, which Terminix says were effective March 1, 2002 ("the AAA consumer rules").  Those rules, Terminix says, would allow the Leonards to bring their claim in small-claims court or to have their claim arbitrated at a greatly reduced cost, thus providing them with a remedy other than a class-action proceeding.  HOLDING:  The Supreme Court denied the application for rehearing.  The Court pointed out that Terminix has not properly placed the AAA consumer rules before the Court.  The Court held that even if the AAA consumer rules were properly presented, it did not agree with Terminix that those rules would entirely resolve the questions presented by this case.)
*Download or view PDF version of opinion*
 
• Parkway Dodge, Inc. v. Hawkins,

No. 1010898 (Ala. Feb. 7, 2003)
(arbitration; interstate commerce; Ernest Hawkins purchased a used 1996 Chrysler Sebring automobile from Parkway Dodge in Birmingham.  Hawkins financed the purchase of the car through America's First Federal Credit Union, a company organized and headquartered in Alabama.  Hawkins alleges that, in an effort to entice him to buy the car, Gerry Grant, a salesman for Parkway Dodge, told Hawkins that the car was a "fine automobile"; that it had been previously owned by the daughter of the owner of Parkway Dodge; and that if he purchased it he "wouldn't go wrong."  In addition, Hawkins alleges that Parkway Dodge's accountant, Mike Copeland, also assured Hawkins that the car was a "really good car" and that it had been previously owned by the owner's daughter.  In conjunction with the purchase of the vehicle, Hawkins executed a retail buyer's order.  The retail buyer's order contained an arbitration agreement.  In addition, as part of the sale transaction, Hawkins purchased a service contract from Chrysler Corporation, a foreign corporation, and a credit-life insurance policy provided by Resource Life, an Illinois corporation, the premium for which was also financed as part of the purchase of the automobile. Hawkins alleges that after the purchase he experienced continued mechanical problems with the car and upon investigation he discovered that the previous owner of the car was Dollar Systems, Inc., a car rental agency.  Hawkins sued Parkway Dodge and Gerry Grant in the Jefferson Circuit Court, alleging suppression and misrepresentation.  Parkway Dodge filed a motion to compel Hawkins to submit the dispute to binding arbitration.  The trial court entered an order denying the motion to compel arbitration, finding that the "evidence d[id] not establish that the sale of the vehicle in Alabama substantially affected interstate commerce."  HOLDING:  The Supreme Court held that because Hawkins purchased the service contract and credit-life insurance from out-of-state corporations concurrently with his purchase of the vehicle and because Hawkins financed the purchase of his credit-life insurance as part of the purchase of the vehicle, the transaction in this case substantially affected interstate commerce so as to invoke the application of the Federal Arbitration Act.  Thus, the Court reversed the trial court.)
*Download or view PDF version of opinion*
 
• Ex parte Rymer,

No. 1010936 (Ala. Feb. 7, 2003)
(venue; forum-selection clauses; Collette Rymer was an account representative for BellSouth Advertising & Publishing Corporation ("BAPCO"), a corporation whose headquarters are in Georgia.  Patrick P. Hughes, an attorney, and Rymer executed an order form ("the contract"), pursuant to which Hughes was to purchase an advertisement in a telephone directory published by BAPCO.  The contract provided: "Any litigation arising hereunder shall be filed in either the Federal District Court for the Northern District of Georgia or the Superior Court of DeKalb County, Georgia, and you agree to consent to the jurisdiction of such courts."  Hughes sued Rymer and BAPCO in the Calhoun County, Alabama, Circuit Court alleging breach of contract, fraud, misrepresentation, the tort of outrage, conversion, and negligence. Rymer and BAPCO filed a motion to dismiss pursuant to Rule 12(b)(3), Ala.R.Civ.P., alleging that venue in the Calhoun Circuit Court was improper based on the "outbound" forum-selection clause contained in the contract.  The trial court denied Rymer and BAPCO's motion to dismiss, finding that enforcement of the outbound forum-selection clause would be unfair on the basis of "fraud, undue influence, and Defendants' bargaining power and that enforcement would be unreasonable on the basis that the chosen forum would be inconvenient for the trial of this action." HOLDING:  The Supreme Court held that Hughes failed to demonstrate that the contract was affected by fraud and failed to demonstrate that the contract was affected by undue influence or overweening bargaining power.  The Court noted that in his first affidavit, Hughes does not mention fraud, but instead contends that he did not read the contract before he signed it.  The Court also held that there was no clear indication that a trial in the chosen forum would be so difficult and inconvenient that it would effectively deprive Hughes of his day in court.  The Court granted the petition for writ of mandamus and directed the direct the trial court to dismiss this case, without prejudice, pursuant to Rule 12(b)(3).)
*Download or view PDF version of opinion*
 
• Eskridge v. Allstate Ins. Co.,

No. 1011176 (Ala. Feb. 7, 2003)
(mandate of appellate court; amendment to complaint on remand; This is the second appeal in this case.  The first appeal, Allstate Insurance Co. v. Eskridge, 823 So. 2d 1254 (Ala. 2001), was brought by Allstate Insurance Company (hereinafter "Allstate") from a judgment entered on a jury verdict awarding David W. Eskridge compensatory damages on his claim of fraud.  Eskridge's claim of breach of contract had also been submitted to the jury, but the jury returned a verdict in favor of Allstate as to that claim.  Although Allstate appealed the judgment on the fraud claim, Eskridge did not cross-appeal as to the adverse judgment on the breach-of-contract claim.  The Alabama Supreme Court issued an opinion in the case on September 14, 2001.  That opinion determined that the trial court had "erred in denying Allstate's motion for a judgment as a matter of law as to [the] fraud claim," and declared that "[a]ccordingly, the judgment of the trial court must be reversed, and the cause remanded for the entry of a judgment consistent with this opinion."  On January 15, 2002, Eskridge served on Allstate's attorneys via United States mail his "Motion for Leave to Amend Complaint."  Allstate filed its "Motion to Strike Plaintiff's Motion for Leave to Amend Complaint" and its "Motion for an Order of Entry of Judgment."  On January 31, 2002, the trial judge, in response to this Court's opinion and mandate, entered an order stating: "Pursuant to mandate of the Supreme Court of Alabama ... judgment is due to be and is hereby rendered in favor of defendant Allstate Insurance Company."  Eskridge appealed. HOLDING:  The Supreme Court affirmed.  The Court concluded that, in light of its mandate attending the original opinion in this case that "the judgment of the trial court must be reversed, and the cause remanded for the entry of a judgment consistent with this opinion," 823 So. 2d at 1265,  the trial judge did not err in interpreting that mandate so as to enter a judgment on remand in favor of Allstate.  The Court overruled Christian Benevolent Burial Ass'n, Inc. v. Thornton, 241 Ala. 13, 1 So. 2d 8 ( 1941), to the extent it is inconsistent with this opinion.)
*Download or view PDF version of opinion*
 
• Ex parte Connors,

Nos. 1011608 & 1012111 (Ala. Feb. 7, 2003)
(elections; mootness; Steve Flowers filed a motion for a temporary restraining order ("TRO motion") against Jim Bennett, in his capacity as the Secretary of State of Alabama, as well as against the probate judges and circuit clerks of the counties composing state senate district 14.  Flowers was seeking to maintain his candidacy in the June 4, 2002, Republican Party primary election for the office of state senator for district 14, having been certified by the Republican Party as a candidate on April 10, 2002.  Flowers was one of four candidates so certified.  As the result of a challenge to Flowers's qualifications for candidacy, the Alabama Republican Executive Committee (the "Committee") had determined that Flowers did not satisfy certain residency requirements and had requested that Secretary Bennett omit Flowers's name from the primary-election ballot.  In the TRO motion, Flowers sought to enjoin Bennett "from failing to take all necessary actions that would result in the name of Petitioner Steve Flowers being placed upon the ballot for the June 4, 2002, Republican primary election for the office of state senator, district 14."  On April 23, 2002, the trial court entered an order enjoining Bennett from removing Flowers's name from the primary ballot and scheduling a final hearing on the matter for June 26, 2002.  On April 30, 2002, Marty Connors, as chairman of the  Committee, filed a "Motion to Intervene and Complaint for Temporary Restraining Order and Injunctive Relief."  In addition to an order allowing him to intervene, Connors sought injunctive relief directly opposite to the relief granted in the April 23 order.  On May 1, 2002, the trial court granted Connor's motion to intervene and scheduled a hearing on his requested injunctive relief on June 26, 2002.  On May 2, 2002, Connors filed a "Notice of Withdrawal and/or Dismissal," in which he purported to "withdraw[] and/or dismiss [the] Motion to Intervene and Complaint for Temporary Restraining Order and Injunctive Relief."  On May 24, 2002, the trial court purported to deny the "Withdrawal and/or Dismissal."  Connors filed a petition for a writ of mandamus (case no. 1011608) directing the trial court (1) to "honor the 'Notice of Withdrawal and/or Dismissal' filed by Connors and [to] expressly release Connors from its jurisdiction and the ... action"; and (2) to desist from "maintaining jurisdiction over ... the issue of Steve Flowers'[s] residency and disqualification as a candidate in State Senate District 14" (the "first petition").  The Republican primary election for senate district 14 proceeded as scheduled on June 4, 2002; Flowers's name was on the ballot.  Flowers finished third.  On June 26, 2002, the Montgomery Circuit Court conducted the previously scheduled hearing.  On that date, the trial court entered an order finding the issues in the case moot and dismissing the action.  Connors filed in case no. 1011608 a "Supplemental Petition for Writ of Mandamus" (the "second petition").  The second petition sought -- in addition to the relief requested in the first petition -- an order directing the trial court to "vacate that portion of its June 26, 2002, Order purporting to find that Steve Flowers was a legal resident of, and qualified candidate in, State Senate District 14."  Connors filed a notice of appeal from the June 26, 2002, judgment of dismissal (case no. 1012111) (the "appeal").  In the appeal, Connors asked this Court to "nullify the June 26, 2002, Order of Dismissal ... to the extent that order relates to [him] or opines on [the issue of Flowers's residency] and [to] dismiss this action." HOLDING:  The Supreme Court held that "the case is patently moot."  The Court stated that the question of whether Flowers's name should have appeared on the ballots has been mooted by the election results.  The Court held that when Flowers lost the primary election on June 4, 2002, the validity of his candidacy no longer presented a justiciable controversy, the question becoming at that point purely academic, and subsequently the action was due to be dismissed, ex mero motu if necessary, either by the Supreme Court or by the trial court.  The Court denied the petitions for writ of mandamus and affirmed the trial court's dismissal.)
*Download or view PDF version of opinion*
 
• Ex parte General Nutrition Corp.,

Nos. 1011760, 1011861 & 1011882 (Ala. Feb. 7, 2003)
(venue; forum non conveniens; General Nutrition Corporation ("GNC"), Phoenix Laboratories, Inc. ("Phoenix"), and Cytodyne Technologies, Inc. ("Cytodyne"), are defendants in a wrongful-death action filed in the Circuit Court of Butler County, Alabama.  The action was filed on November 29, 2001, by Richard Gregory, individually and as the administrator of the estate of his deceased wife, Shannon Gregory, pursuant to the wrongful-death statute of the state of Virginia.  Shannon died on April 4, 2001, while exercising at a high school running track in Newport News, Virginia.  The autopsy report stated, among other things, that "[h]er death is consistent with a sudden cardiac death."  Before her death, Shannon had been taking the dietary supplement Xenadrine RFA-1, which contains ephedra.  Xenadrine RFA-1 is manufactured by both Cytodyne and Phoenix and was allegedly purchased by Shannon at a GNC retail store located in Newport News.  After Shannon's death, Richard received a military hardship transfer from the United States Air Force, his employer, and moved his family back to Greenville, Alabama, in Butler County, where both Richard and Shannon were reared.  GNC, Phoenix, and Cytodyne are foreign corporations with their principal places of business located in Pennsylvania, New York, and New Jersey, respectively.  The defendants responded to Gregory's action by filing a joint motion to dismiss, based upon improper venue, arguing that the doctrine of forum non conveniens, codified in Ala. Code 1975, § 6-5-430, required that the trial court dismiss the case so that it could be refiled in Virginia.  In the joint motion the defendants consented to the jurisdiction of the Circuit Court in Newport News, Virginia, and committed to waive assertion of a statute-of-limitations defense if Gregory refiled the action in Virginia within 60 days of the trial court's entry of an order of dismissal.  The trial court denied the motion.  HOLDING:  The Supreme Court denied the petition for writ of mandamus.  The Court held that it was unable to conclude that the inconvenience posed to the defendants' witnesses is so great that the convenience of the witnesses requires that this action be dismissed.  The Court held that the defendants did not show that the interests of justice mandate a dismissal of this case.)
*Download or view PDF version of opinion*
 
• Ex parte Marlowe,

No. 1012174 (Ala. Feb. 7, 2003)
(criminal; robbery in the first degree; The defendant, John Steven Marlowe, was convicted of robbery in the first degree.  Marlowe argued that the State had not produced sufficient evidence indicating that the victim had suffered a "serious physical injury," an element of §13A-8-41.  The evidence at trial revealed that Marlowe struck the 75-year-old victim in the head and robbed him of the contents of his wallet.  The blow to the victim's head rendered him unconscious; he also suffered a laceration to the head requiring closure with metal staples.  Two witnesses testified that they saw blood flowing from an open wound on the victim's head.  Dr. David Keddy, the emergency-room physician who treated the victim, testified that he suffered from an eight centimeter laceration to the head.  The victim was given a CAT scan, and the results showed that the brain was within "normal and acceptable limits."  The wound was closed with metal staples; the victim was hospitalized and remained under observation for three days following the incident.  Dr. Keddy testified that this type of injury could cause serious harm or death, but that he did not consider the victim's injuries to be life threatening. Dr. Keddy testified that although he did not think the injuries created a substantial risk of death, it would have been possible for the victim to have died if he had not received medical treatment, and that the injuries caused a serious and permanent disfigurement of the victim's head, but that he could not say whether they would cause him protracted or long-term health problems. Some five months after the attack, the victim testified that he still suffered from headaches, sharp pain, dizziness, blurred vision, and some memory loss as a result of the blow to his head.  He also stated that he suffered some back problems from the fall.  Additionally, the victim testified that he did not return to his office for over a month following the attack.  The Alabama Court of Criminal Appeals affirmed Marlowe's conviction. HOLDING: The Supreme Court affirmed the conviction.  The Court held that given the victim's age, together with his testimony of his continued medical problems, the evidence was sufficient to create a jury question as to whether the victim suffered 'serious physical injury' as defined in §13A-1-2(9).  The Court held that to the extent that the Court of Criminal Appeals' opinion signals a shift in the application of Ala. Code §13A-1-2(9), it adopted that shift.)
*Download or view PDF version of opinion*
 
• Ex parte D.S.M., Jr.,

No. 1012220 (Ala. Feb. 7, 2003)
(The Supreme Court quashed the writ of certiorari without opinion, but stated that the quashing of the writ of certiorari in this case should not be taken as an expression of approval regarding the reasoning in the Court of Civil Appeals' opinion.)
*Download or view PDF version of opinion*
 
• Ex parte Owen,

No. 1012262 (Ala. Feb. 7, 2003) (opinion withdrawn on application for rehearing on April 11, 2003)
(The plaintiff, William Brian Collins, filed a medical-malpractice action against Marc Michelson, M.D., Carraway Methodist Health Systems ("Carraway"),  John Owen, M.D., and Norwood Clinic, Inc.  Owen and Norwood are collectively referred to as the "petitioners."  The action was based on corrective laser eye surgery the petitioners performed on Collins at a Carraway facility, with Dr. Michelson acting as a consultant. After a status conference, the trial court ordered Collins to identify his expert witnesses by July 15, 2001. Collins failed to identify those witnesses.  Carraway and Dr. Michelson separately filed motions for a summary judgment. Both motions were granted.   The petitioners filed a motion for a summary judgment.  The trial court issued an order purporting to enter a "nonfinal" summary judgment in favor of the petitioners, allowing Collins 60 days to disclose the required information regarding expert witnesses, after which, if he did not disclose the information, the order would become final. Collins never provided the requested information and on April 29, 2002, the trial court entered a summary judgment for the petitioners.  On May 28, 2002, Collins filed a "Motion To Set Aside Dismissal and for Reinstatement," under Ala.R.Civ.P. 59(e) stating that "this is a meritorious action with issues that need to be completely and totally adjudicated" and that "[t]hrough inadvertence, oversight, excusable neglect, or other actions, no response to the Motion for Summary Judgment was filed timely but, nevertheless little [or] no discovery has proceeded in the case so that to reinstate this action would be in the best interest of justice for all parties."  Collins provided no evidence of "excusable neglect" in support of his motion, nor did he attach the information regarding his experts that had been requested on several occasions.  On August 6, 2002, after a hearing, the trial court entered an order granting Collins's Rule 59(e) motion, set aside the dismissal, and reinstated the case. The trial court's order stated that the motion was "well taken" and that it was being granted "for good cause shown."  The August 6, 2002, order allowed Collins 30 more days to provide the names of his expert witnesses against the petitioners, giving Collins, in all, an almost 14-month extension to the original deadline to provide the expert-witness evidence.  The petitioners petitioned the Supreme Court for a writ of mandamus directing the trial court to vacate its August 6, 2002, order granting the plaintiff's motion to set aside the dismissal of the underlying action and to reinstate the case. HOLDING:  The Supreme Court granted the petition for writ of mandamus.  The Court concluded that the trial court abused its discretion in granting the relief Collins requested because his Rule 59(e) motion did not offer any explanation for his failure to submit the requested expert testimony.)
*Download or view PDF version of opinion*

--(The substituted opinion released on April 11, 2003, in Owen is available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

• Ex parte Bergob,

No. 1012329 (Ala. Feb. 7, 2003)
(contributory negligence; The Supreme Court denied the petition for writ of certiorari without opinion. Chief Justice Moore wrote a dissenting opinion.) 
*Download or view PDF version of opinion*
 
• Ex parte McNish,

No. 1991233 (Ala. Feb. 7, 2003)
(criminal; preservation of error for appeal; The defendant Rosalyn McNish, her brother Demetrius McNish, and their loving mother Doris McNish (a/k/a the McNish Crime Family) were tried together on various theft and conspiracy charges for their alleged involvement in taking money from two residents of Pike County, a married couple who had won fourteen million dollars in a Florida lottery.  At the close of the State's case, Rosalyn said: "I make a motion for a judgment of acquittal on the grounds that the State has not proven the case beyond a reasonable doubt ...."  The trial court denied the motion. At the close of all the evidence, Rosalyn filed in open court a written motion for a judgment of acquittal stating, "as grounds for said motion would show unto the court the evidence is insufficient to support a finding of guilt beyond a reasonable doubt to the charged offenses."  The trial court again denied the motion.  A jury found Rosalyn guilty of two counts of first-degree theft of property and two counts of conspiracy to commit first-degree theft of property. The trial court sentenced Rosalyn to five years in prison for each conviction and ordered the sentences for the conspiracy convictions to run concurrently with the sentences for the theft convictions.  Rosalyn appealed, and the Court of Criminal Appeals affirmed the judgment of the trial court.  The Court of Criminal Appeals held that Rosalyn had not preserved for appellate review her challenge to the sufficiency of the evidence to support her convictions.  HOLDING:  The Supreme Court held that Rosalyn has preserved for appellate review her claim that the evidence was insufficient to support her convictions.  The Court held that the Court of Criminal Appeals erred in holding that Rosalyn did not preserve her challenge to the State's evidence and erred in not addressing the merits of Rosalyn's claim.  The Court reversed the judgment of the Court of Criminal Appeals affirming Rosalyn's convictions, and it remanded the case for that court to address the merits of Rosalyn's claim that the evidence was insufficient to support her convictions.)
*Download or view PDF version of opinion*

Back to top

Opinions Released January 31, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JANUARY  31, 2003

 
• Smith v. Muchia,

No. 1011701 (Ala. Jan. 31, 2003)
(wills and estates; C.M. Smith ("the decedent") died on February 5, 1996.  His wife, Iva J. Smith, who was named as executrix in the decedent's will, died soon after on February 19, 1996.  On February 5, 1998, Ann Muchia, who was named as successor executrix to Iva Smith, filed a petition to admit the decedent's will to probate.  On July 14, 1999, Muchia petitioned for the sale of the real property.  In the petition, Muchia alleged that there were insufficient funds in the estate to pay the "claims, debts and costs of administration of the estate," and that it was in the best interest of the estate that the property be sold to pay those claims, debts, and costs and that the proceeds remaining after the claims, debts, and costs of administration of the estate were paid should be distributed equally among the "joint owners of the real property."  Muchia testified that the only assets of the estate were a tract of real estate of approximately 20 acres, on which was situated a 1969 mobile home with a detached garage, and approximately $1,375, which she realized from the sale of the decedent's automobile.  Muchia also testified that the decedent did not have any debts at the time of his death and that the only debts of the estate at the time of the hearing were for the costs and expenses for the administration of the estate.  Muchia further testified that of the six brothers and sisters named in the will, only she and Gordy Smith were still living.  On December 10, 1999, the heirs of Carl Smith, a specific devisee in the will (hereinafter referred to as "the heirs of Carl Smith") answered the petition and objected to the sale of the land.  In addition, the heirs of Carl Smith filed a counterclaim seeking a judgment declaring that under the will they are entitled to have the five acres of land on which the mobile home and outbuildings lie set aside for them.  On March 21, 2000, Marguerete Williams, a descendant of Lena Caten and a niece of the decedent's, filed an answer to Muchia's petition for the sale of the real property.   In her answer, Williams alleged that the language of the will concerning the property was "inexact and subject to interpretation."  Williams filed a  "response to petition for sale of real property," alleging that the estate did not have adequate cash to pay its obligations and that the real property could not be equitably divided and that the "only equitable means by which this Court can follow the intention of C.M. Smith is to order the sale of the only asset of the Estate, payment of expenses and division of the proceeds."  She offered to purchase the real property for $60,000, and she requested that Muchia file an inventory of the estate.  After a trial, the trial court concluded that "it is in the best interest of the Estate and the beneficiaries under the Will of the decedent that the entire twenty (20) acre tract should be sold as hereinafter ordered."  The trial court ordered that "should there be any balance remaining of the sale proceeds after the payment of the claims, debts, costs and expenses of administration it should be divided equally between the decedent's six brothers and sisters, or their decedents." HOLDING:  The Supreme Court concluded that it is apparent that the testator clearly intended to leave his real property to his brothers and sisters.   The Court held that the trial court erred when it held that "[t]his directive [to give Carl Smith and Myrtie Mills five acres each] by the Testator is unclear and is in conflict with the clear and unequivocal terms of the Testator's Will," and that "this directive by the Testator as to how this twenty (20) acres is to be divided between the Testator's six brothers and sisters cannot in equity and fairness to the beneficiaries be followed."  The Court held that the language of the will was sufficient to set aside a five-acre parcel for Carl Smith and that the trial judge erred in finding otherwise.  The Court held that the trial judge is authorized to order the sale of the remaining approximately 15 acres and divide the proceeds among C.M. Smith's remaining 5 brothers and sisters, or their heirs, per stirpes.  The Court held that the heirs of Carl Smith must pay their pro rata share of the expenses of the administration of the estate, to be determined by the ratio the value of the five-acre tract bears to the value of the entire tract devised under the will.)
*Download or view PDF version of opinion*
 
• Ex parte Fontaine Trailer Co.,

No. 1011767 & 1011814 (Ala. Jan. 31, 2003)
(venue; Freddie Curry ("Curry") was killed in a vehicular collision that occurred in Orange County, Texas.  At the time of his death he was a resident of Wilcox County, Alabama, and was driving a tractor-trailer truck for his employer, Hornady Truck Line, Inc. ("Hornady"), an Alabama corporation.  Hornady was the owner of the tractor-trailer unit.  The other vehicle involved in the collision was another tractor-trailer truck operated by Charles Thomas Parker ("Parker"), who was likewise an employee of Hornady.   International Truck and Engine Corporation ("International") had manufactured the truck-tractor driven by Curry, and Fontaine Trailer Company ("Fontaine") had manufactured the trailer component.  On July 2, 2001, an action was filed in the Wilcox Circuit Court "pursuant to the Wrongful Death Statute and the Survival Statute of Texas."  The defendants were Parker, Hornady, International, and Fontaine.  Parker is a resident of Georgia; Hornady is an Alabama corporation, with its home office located in Monroeville, Alabama; International is a Delaware corporation having its principal place of business in Illinois; and Fontaine is also a Delaware corporation, but its principal place of business is in Haleyville in Winston County, Alabama.  The plaintiffs asserted various claims of negligence and wantonness against Parker and Hornady and product-liability claims against International and Fontaine.  The plaintiffs also made a claim on behalf of Freddie Curry, Jr., against "the defendants" for workers' compensation benefits.  That latter claim was subsequently focused so as to target only Hornady.  International and Fontaine sought a change of venue from the Wilcox Circuit Court to the Winston Circuit Court, where Fontaine had its principal place of business.  They contend that venue is improper as to them in Wilcox County under the controlling venue statute, Ala. Code §6-3-7. HOLDING:  The Supreme Court denied the petitions for writs of mandamus.  The Court, finding no evidence that Defendant Hornady Truck Line did not do business by agent in Wilcox County, presumed that venue was proper as to Hornady in Wilcox County.  The Court concluded that International and Fontaine did prove that they did not do business in Wilcox County, but because there was no proof submitted to the trial court as to whether Hornady did, or did not, do business in that county, International and Fontaine failed to carry their burden of proof in that regard, and the burden never shifted to the plaintiffs.  The Court held that because venue was presumed proper (or not proven improper) as to Hornady, venue was proper as to the other corporate defendants under Ala.R.Civ.P. 82(c).  The Court held that nothing in the language of §6-3-7 as rewritten by the Legislature in 1999 suggests that the Legislature was attempting to change the well-established principle that venue as to domestic corporations was subject to the application of Rule 82(c).  The Court explained that when §6-3-7 was rewritten in 1999, eliminating the mandatory proviso in its predecessor, but preserving the concepts that venue as to a domestic corporation (and a foreign corporation) would be proper in the county where the injury occurred or in the county where the plaintiff resided if the corporation did business by agent in that county and that a corporation might be sued in any county in which it did business by agent at the time the cause of action arose, there existed an unbroken line of cases allowing domestic corporations to be sued in any county where venue was proper as to a codefendant.  Amendment No. 473 to §232, Ala. Const. of 1901, eliminated the disparate treatment of foreign and domestic corporations for venue purposes, providing that foreign corporations could be sued in any county "where such suit would be allowed if the said foreign corporation were a domestic corporation."  When Amendment No. 473 was proposed in 1987 and ratified in 1988, actions against a domestic corporation were allowed in any county where venue was proper as to a codefendant pursuant to Rule 82(c).  Section 6-3-7 carried forward the constitutional revamping pursuant to which all corporations would be subject to the venue rules applicable to domestic corporations.  The Court held that nothing in the text of §6-3-7 as revised indicates any intent on the part of the Legislature to change the practice established by Ala.R.Civ.P. 82(c).  The Court held venue was proper as to Hornady and, pursuant to the pendent venue provision of Rule 82(c), proper as to International and Fontaine, the same as if they were domestic corporations.  Accordingly, the Court denied the petitions for a writ of mandamus ordering the trial court to transfer the case to Winston County.)
*Download or view PDF version of opinion*
 
• National Auction Group, Inc. v. Hammett,

No. 1012145 (Ala. Jan. 31, 2003)
(arbitration; existence of agreement to arbitrate; scope of arbitration agreement; National Auction Group and Ralph Pinson, as president of Grande Ventures Development Co., L.L.C., entered into an "Exclusive Right to Sell Listing Agreement for Real Estate" (hereinafter referred to as the "listing agreement").  The listing agreement gave National Auction Group the exclusive right to sell numerous condominium units at the Perdido Grande Condominiums in Orange Beach, Alabama, which units were purportedly owned by Grande Ventures.  National Auction Group was to sell the condominiums by absolute auction to be held on December 9, 2000.  Attached to the listing agreement was a separate arbitration agreement.  That arbitration agreement provided, in part, that "Arbitration shall apply to ANY dispute between the parties concerning questions of law or fact or both arising out of or relating to this agreement, its performance, or its alleged breach, which is not disposed of by agreement of the parties within Thirty (30) days."  National Auction Group conducted the auction as scheduled on December 9, 2000.  Donald D. Hammett's bid was the highest bid for condominium unit 302; the owner of that condominium unit had the use of boat slip 48.  Hammett and Ralph Pinson and Julie Pinson (Ralph Pinson and Julie Pinson are hereinafter sometimes referred to as "the Pinsons") entered into, on that same date, a "Real Estate Purchase and Sale Agreement" (hereinafter referred to as "the purchase agreement").  Pursuant to the terms of the purchase agreement, the Pinsons were to convey to Hammett by warranty deed condominium unit 302 for the sum of $253,600.  As required by the purchase agreement, Hammett deposited with the escrow agent the amount of $25,360, representing 10% of the total purchase price.  The purchase agreement expressly mentioned National Auction Group and acknowledged that National Auction Group was involved in the transaction.  The purchase agreement provided that, in the event Hammett defaulted, National Auction Group would be entitled to retain 50 percent of Hammett's deposit.   Hammett sued the Pinsons and National Auction Group.  Hammett alleged in his complaint that, after entering into the purchase agreement, he learned that the Pinsons did not own unit 302 in the Perdido Grande Condominiums.  He alleged that the true owner of unit 302 had no connection with the Pinsons and that the Pinsons had no authority to include unit 302 in the auction conducted on December 9, 2000.  Hammett also alleged that both the Pinsons and National Auction Group knew or should have known before December 9, 2000, the date Hammett placed his bid on the condominium and entered into the purchase agreement, that the Pinsons did not own unit 302.  Hammett alleged that the Pinsons were liable on theories of fraud, suppression, conspiracy, and breach of the purchase agreement.  Against National Auction Group, Hammett alleged breach of the purchase agreement, fraud, suppression, negligence, deceit, and conspiracy.  National Auction Group filed a "Motion to Stay Proceedings and to Compel Arbitration," asserting that Hammett was bound by the arbitration agreement signed by National Auction Group in conjunction with the listing agreement.  The trial court denied that motion.  National Auction Group appealed, claiming that Hammett's breach-of-contract claim against it had to be under the listing agreement, that Hammett was a third-party beneficiary of the listing agreement, and was therefore bound by the arbitration agreement. HOLDING:  The Supreme Court affirmed.  The Court held that Hammett was not attempting to "accept the benefits of the Listing Agreement without being bound by all of its terms," as National Auction Group alleges.  The Court noted that Hammett's complaint attempts to state claims based only upon National Auction Group's advertisement of the property to be auctioned, the events surrounding the December 9, 2000, auction, and the relationships and contracts resulting from Hammett's bid at the auction.  The Court further noted that  the listing agreement is not referenced in the complaint and that the complaint specifically identifies the purchase agreement as the contract made the basis of Hammett's breach-of-contract claim.  The Court held that the narrow scope of the arbitration agreement attached to the listing agreement also serves as an independent basis for affirming the trial court's order denying National Auction Group's motion to compel arbitration, because that arbitration agreement is limited to disputes between the parties to the listing agreement concerning questions of law or fact, or both, arising out of or relating to the listing agreement, the parties' performance under that agreement, or an alleged breach of that agreement.)
*Download or view PDF version of opinion*
(Note:  The prevailing appellee, Donald Hammett, was represented in this case
by Michael L. Jackson and Michael J. Velezis of Wallace, Jordan, Ratliff & Brandt, L.L.C.) 

Back to top

Opinions Released January 24, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JANUARY  24, 2003

 
• Bruce v. Cole,

No. 1000080 (Ala. Jan. 24, 2003)
(breach of contract; specific performance; claim of promissory fraud supported by an oral promise unenforceable under the Statute of Frauds; enforceability of an oral agreement for the sale of securities; On November 2, 1998, Harry Cole, Jr. owned all of the 1,000 shares of stock issued by Medical Holdings, Inc.  That same day, Cole sold Michael David Bruce 490 of those shares for the sum of $50,000.  As part of the sale, Bruce and Cole signed a Restrictive Stock Transfer Agreement which provided that in the event a shareholder voluntarily or involuntarily terminated his employment with the corporation, he would be obligated to sell his stock to the corporation in accordance with the terms of the agreement.  Cole and Bruce, as shareholders of all of the stock of Medical Holdings, elected Bruce a director, to serve with Cole, the only other director; and Cole and Bruce, as such directors, elected Cole as the president and Bruce as the secretary and the treasurer of the corporation.  Bruce claimed that two weeks after he and Cole signed the Restrictive Stock Transfer Agreement, Cole orally broached the subject of a "put-call" agreement.  According to Bruce, the "put-call" proposal by Cole was that, if either of them offered to purchase all of the other's shares in Medical Holdings for a stated price, the offeree could decline to sell his shares and could demand to buy all of the offeror's shares for that same stated price per share.  Bruce claimed that he orally accepted Cole's "put-call" proposal, and that, in reliance on this alleged oral "put-call" agreement, Bruce purchased his home.  Cole denied ever discussing a "put-call" arrangement.  On August 2, 1999, Cole verbally terminated Bruce from  two related entities.  In that same month, Cole demanded that Bruce sell Cole all of Bruce's stock in Medical Holdings for $50,000 pursuant to the Restrictive Stock Transfer Agreement, and Bruce demanded that Cole sell Bruce all of Cole's stock in Medical Holdings for the same price pursuant to the alleged oral put-call agreement.  On September 8, 1999, Cole sued Bruce for specific performance of the Restrictive Stock Transfer Agreement, and on January 10, 2000, Bruce countersued Cole for specific performance of the oral put-call agreement and for promissory fraud in entering the put-call agreement without intending to honor it.  Thereafter, Cole voted his 510 shares of stock to terminate Bruce as a director of Medical Holdings.   Cole was left as the only remaining director.  Cole then voted his 510-share majority of stock to decrease the number of corporate directors from two to one.  Cole terminated Bruce as secretary and as treasurer of Medical Holdings.  Cole then authorized Medical Holdings to redeem Bruce's stock in accordance with the Restrictive Stock Transfer Agreement.  In accordance with the Restrictive Stock Transfer Agreement, Medical Holdings demanded to redeem all of Bruce's stock for $100 per share.  Cole amended his complaint and added Medical Holdings as a plaintiff seeking specific performance of the stock redemption provisions of the Restrictive Stock Transfer Agreement.  Cole and Medical Holdings filed a motion for a summary judgment.  Bruce moved for a partial summary judgment on Cole's claim for specific performance.  The trial court entered a summary judgment in favor Cole and Medical Holdings and ordered Bruce to convey his stock to Medical Holdings within 30 days for the sum of $49,000 ($100 per share).  Bruce appealed.  HOLDING:  The Supreme Court affirmed.  The Court noted that while the trial court purported to grant summary judgment in favor of both Cole and Medical Holdings on these claims against Bruce, the trial court granted only the specific performance sought by Medical Holdings  -- that is, the trial court ordered only that Bruce sell his stock to Medical Holdings as distinguished from Cole.  The Court held that Bruce was a Medical Holdings employee to whom the term "employment" could be attributed.  The Court also held that Bruce was effectively removed as a director.  The Court held that Bruce's discharge from his corporate offices was within the meaning of the expression "involuntarily ... terminate his employment with the corporation" found in the Restrictive Stock Transfer Agreement.  The Court held that the tender by Medical Holdings to redeem the stock was adequate.  The Court held that the trial court correctly entered a summary judgment in favor of Medical Holdings on the issue of specific performance.  The Court held that the alleged oral put-call agreement was void and unenforceable.  The Court held that an oral promise that is void by operation of the Statute of Frauds will not support an action against the promisor for promissory fraud.  Accordingly, the Court held that trial court did not err in entering a summary judgment against  Bruce on his promissory fraud claim.)
*Download or view PDF version of opinion*
 
• Ex parte Hurricane Freddy's, Inc.,

No. 1010643 (Ala. Jan. 24, 2003) (on application for rehearing)
(application for rehearing overruled without opinion; dissenting opinions by Justice Houston and Justice Johnstone relating to calculation of damages; In the original opinion, the Supreme Court held that the plaintiffs were entitled to recover only those damages, including expenses, that naturally and proximately resulted from the closing of the restaurant, and not the operating income of the restaurant or its operating expenses.)
*Download or view PDF version of opinion*

--(The original opinion released by the Supreme Court of Alabama on Sept. 27, 2002, in Hurricane Freddy's is also available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Ex parte Fitch,

No. 1010683 (Ala. Jan. 24, 2003)
(criminal; The Supreme Court denied the petition for writ of certiorari without opinion, but noted that it not wish to be understood as approving all the language, reasoning, and statements of law in the opinion of the Court of Criminal Appeals.  The Court noted that the denial of the petition for the writ of certiorari is not an endorsement of the opinion of the lower appellate court.)
*Download or view PDF version of opinion*
 
• Ex parte Miller,

No. 1011787 (Ala. Jan. 24, 2003)
(domestic relations; division of marital assets; trusts; Lily Heart Sol and Richard Ernest Miller, Jr., were married in 1988.  In 1993, Lily inherited more than $500,000, which was placed in the Sol/Miller Revocable Living Trust ("the trust"), which had been created in 1992.  Later, Richard placed his own funds into the trust, and Lily and he placed several marital properties, including their residence and two condominiums in Colorado, into the trust.  There is no dispute that the property of the trust was used for the common benefit of the parties during the marriage.  On February 28, 2000, Richard signed an agreement entitled "Release and Renunciation of Beneficial Interest in Trust."  On March 24, 2000, Lily sued Richard for a divorce.  The trial court, in its divorce judgment, awarded Richard one trust asset, a condominium in Colorado.  Lily appealed.  A majority of the Court of Civil Appeals agreed that by signing the release, Richard had relinquished his right to any distribution of the trust assets, including a distribution pursuant to a divorce judgment, and that, "[t]herefore, the trial court erred by awarding [Richard] any assets from the trust." HOLDING:  The Supreme Court reversed the Court of Civil Appeals as to its ruling on the award of a trust asset to Richard.  The  Court noted that the release signed by Richard was limited to Richard's rights as a beneficiary of the trust and makes no mention of, and has no effect upon, his rights upon divorce.  Thus, the Court held that the trial court did not err by awarding Richard an asset from the trust.)
*Download or view PDF version of opinion*
 
• Baldwin County v. Bay Minette,

No. 1011840 (Ala. Jan. 24, 2003)
(declaratory judgment; justiciable controversy; zoning and planning; building codes and permits;  Baldwin County commenced this action on October 3, 2001, by filing a complaint against municipalities in the County (hereinafter referred to collectively as "the Cities").   The County sought a judgment declaring that it has the exclusive right to issue building permits and to conduct its "inspection process commensurate therewith" within the police jurisdictions of the Cities; it also sought an order enjoining the Cities from issuing building permits within their police jurisdictions.  Seven municipalities -- Spanish Fort, Daphne, Silverhill, Robertsdale, Summerdale, Elberta, and Orange Beach -- moved to dismiss the complaint for failure to state a claim.  Fairhope, Foley, and Gulf Shores moved for a judgment on the pleadings.  On May 28, 2002, the trial court granted the Cities' motions.  Additionally, it dismissed ex mero motu the complaints against Bay Minette and Loxley.  The court concluded that "[t]here is no statutory support for divesting municipalities of what has been a clearly recognized authority to exercise their police powers within their police jurisdictions."  It further concluded that "the most recent legislative enactment on the matter ... divests counties, not municipalities, of building permitting power within the police jurisdiction of any municipality which chooses to exercise its jurisdiction." HOLDING:  The Supreme Court held that is evident on the face of the complaint that no actual justiciable controversy exists between the County and eight of the Cities -- Spanish Fort, Daphne, Silverhill, Summerdale, Elberta, Orange Beach, Bay Minette, and Loxley -- because it is undisputed that those eight cities have never purported to exercise such authority, nor have they expressed any inclination to do so.  Thus, the Court affirmed the trial court's dismissal as to those eight Cities.  The Court held that the action against  Fairhope, Foley, Gulf Shores, and Robertsdale purports to exist in a factual vacuum because the County does not describe an existing dispute that is "definite and concrete," or "real and substantial."  Thus, the Court held that the complaint does not present a justiciable controversy as to those Cities.  Because the trial court granted those four Cities' motion for judgment on the pleadings, it entered a judgment without jurisdiction.  Thus, the Court held that the trial court's judgment on the pleadings in favor of Fairhope, Foley, Gulf Shores, and Robertsdale was a void judgment and dismissed the appeal.)
*Download or view PDF version of opinion*
 
• Omega Leasing Corp. v. Movie Gallery, Inc.,

No. 1012102 (Ala. Jan. 24, 2003)
(personal jurisdiction; full faith and credit; domestication of a foreign judgment; The trial court refused to domesticate a default judgment in favor of Omega Leasing Corp. obtained in a Virginia trial court -- and upheld by the Virginia Supreme Court -- against Movie Gallery, Inc. ("Movie Gallery").  The trial court   held that the issue of personal jurisdiction was not "fully and fairly litigated" in Virginia.  HOLDING:  The Supreme Court reversed.  The Court noted that Movie Gallery filed a petition for appeal in the Virginia Supreme Court in which it specifically raised, among other things, the issue whether the trial court had erred "in 'implicitly' ruling that Movie Gallery is subject to personal jurisdiction in Virginia."  The Court noted that the Virginia Supreme Court refused to grant an appeal, stating in its order that it was of the opinion "there is no reversible error in the judgment complained of."  Thus, the Court held that the issue whether the Virginia Circuit Court had personal jurisdiction over Movie Gallery was "fully and fairly litigated and finally decided" in Virginia.)
*Download or view PDF version of opinion*
 
• Alabama Dep't of Transportation v. Price,

No. 1012132 (Ala. Jan. 24, 2003)
(res judicata; In Reynolds v. Roberts, No. 85-00665-CV-T-N, a class-action race-discrimination case that has been pending in the United States District Court for the Middle District of Alabama since 1985, the plaintiffs allege that the defendants, including ALDOT, discriminated against them in their employment.  In November 1993, the parties reached a partial settlement of that case and presented a proposed consent decree to the court.  Reynolds v. Roberts, 202 F.3d 1303, 1307 (11th Cir. 2000) ("Reynolds I").  In January 1994, before the scheduled fairness hearing, a group of nonblack ALDOT employees (the "Adams intervenors") moved to intervene on behalf of themselves and all ALDOT employees who were not part of the plaintiff classes.  The Adams intervenors filed objections to certain race-conscious provisions of the consent decree, such as the quota requirement for all ALDOT job classifications, claiming that those provisions would adversely affect their interests and would discriminate against them on the basis of race.  The district court granted the motion to intervene in February 1994 and subsequently certified the Adams intervenors as a class. Reynolds v. Roberts, 207 F.3d 1288, 1293 (11th Cir. 2000) ("Reynolds II")  Phillip Earl Price is a member of the Adams intervenor class.  Because of objections to the proposed consent decree, the parties divided the proposed consent decree into three decrees -- Consent Decree I, Consent Decree II, and Consent Decree III.  Consent Decree I contained the provisions that all sides agreed provided only race-neutral prospective relief.  In March 1994, following a fairness hearing, the district court approved and adopted Consent Decree I.  Among other things, Consent Decree I required ALDOT to develop a grievance procedure for its employees.  ALDOT developed the grievance procedure required by Consent Decree I, and the federal district court approved the procedure on August 9, 1995.  Price's grievance was filed pursuant to this grievance procedure.  On December 13, 1996, Price filed a grievance alleging that he was performing out-of-classification duties and seeking back pay and/or a provisional appointment to the higher classification, the work of which he says he was performing.  By that time, more than 100 such grievances had been filed by black and white ALDOT employees.  In late 1996, ALDOT attempted to resolve grievances filed by three other white employees.  On February 27, 1997, however, the federal district court issued a temporary restraining order, at the request of the black plaintiff classes, enjoining ALDOT from implementing the grievance resolutions for the three white employees.  On March 3, 1998, the federal district court issued a judgment declaring that ALDOT's implementation of the grievance resolutions for use by the three white grievants would violate Consent Decree I.   The nonblack Adams intervenor class, of which Price is a member, appealed the March 3 order to the United States Court of Appeals for the Eleventh Circuit.  Two years later, on March 29, 2000, the Eleventh Circuit vacated the district court's March 3, 1998, order, ruling that the grievance procedure was race-neutral and that it could be used by nonblack employees.  In April 2001, the parties presented to the federal district court a settlement agreement for the Adams intervenor class.  The settlement agreement recited that the defendants (including ALDOT) were paying $1.45 million "in settlement of ... [a]ll of the individual grievances seeking backpay or promotions, as listed in [Exhibit] A hereto."  It further provided that "all grievances seeking backpay or promotions, as listed on Exhibit A, shall be dismissed."  Exhibit A to the settlement agreement is a list of the 290 pending grievances filed by members of the Adams intervenor class.  Price's grievance is included on this list of grievances that have been dismissed.  After a fairness hearing and the revision of the settlement agreement, the federal district court issued an order finally approving the settlement agreement on September 26, 2001.  The settlement agreement and the order did not permit members of the Adams intervenors to opt out of the settlement.  Price filed a motion in the federal district court in March 2002 to set aside the settlement.  That motion was denied without prejudice by agreement of the parties, and no appeal was taken either from the approval of the settlement or from the denial of Price's motion to set aside the settlement.   Price filed the petition for the writ of mandamus in the present case in the Montgomery Circuit Court on January 15, 1998, before the settlement was reached with Price's class.  Price sought a writ of mandamus directing ALDOT to appoint a hearing officer to hear Price's December 1996 grievance.  ALDOT removed this case to the federal district court.  The district court remanded the case, however, on the grounds (a) that Price "seeks to invoke only state-law issues" and (b) that the United States Court of Appeals for the Eleventh Circuit had held in Reynolds II that the grievance procedure under Consent Decree I did not "implicate federal law concerns."  Thereafter, Price's grievance was settled through the court-approved settlement agreement.  On July 3, 2002, the Montgomery Circuit Court entered an order granting the petition and requiring ALDOT "to take any and all necessary steps to have Price's grievance proceed to and through the final step of the grievance procedure."  Although recognizing that the "evidence before the Court as to the partial settlement in the Reynolds case is undisputed," the order did not address the res judicata effect of the settlement.  This appeal is from the July 3, 2002, order.  HOLDING: The Supreme Court reversed the trial court and held that it was clearly barred by the doctrine of res judicata.)
*Download or view PDF version of opinion*
 
• Ex parte Goodyear Tire & Rubber Co.,

No. 1012180 (Ala. Jan. 24, 2003)
(The Supreme Court denied the petition for writ of certiorari without opinion.  Justice Houston wrote a concurring opinion.)
*Download or view PDF version of opinion*

Back to top

Opinions Released January 17, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JANUARY  17, 2003

 
• Lee v. Baldwin County Electric Membership Corp.,

Nos. 1010008, 1010338 & 1010537 (Ala. Jan. 17, 2003)
(attorneys' fees; Defendant Baldwin County Electric Membership Corporation ("BCEMC") appealed the attorneys' fees awarded plaintiffs Aubury L. Fuller and J. Thomas Bradley, Jr. ("Fuller-Bradley").  BCEMC members John Lee, A.B. Hankins, Jr., and Randy Grant ("Lee-Hankins-Grant") sued BCEMC, the secretary of BCEMC, and the president of BCEMC alleging that the defendants had breached their duty to issue a notice of the special meeting  demanded in a petition signed by ten percent of the membership of BCEMC.  Pursuant to Ala. Code §37-6-9(b), a majority of the BCEMC board of trustees adopted a resolution amending the bylaws of BCEMC to authorize the membership to vote by mail on proposed amendments to the bylaws.  Lee-Hankins-Grant challenged the validity of the July 15, 1999 vote-by-mail resolution adopted by the majority of the BCEMC board of trustees.  Fuller-Bradley, who were members and trustees of BCEMC, filed a separate "Complaint For Declaratory Judgment" to determine the legality of the July 15, 1999 vote-by-mail resolution.  Fuller-Bradley "request[ed] reimbursement of the costs and fees incurred in bringing this action for the benefit of the Corporation and its members."  Fuller-Bradley moved for a summary judgment, which BCEMC opposed.  BCEMC moved for a summary judgment and submitted a brief in support of its motion.  BCEMC contended that §37-6-9(b) authorized its board of trustees to amend the bylaws to authorize voting by mail on amendments to the bylaws.  BCEMC contended also that §37-6-9(b) was constitutional.  On August 16, 2001, in Fuller-Bradley's action, the trial court entered an order "declin[ing] to grant the relief requested by Petitioners," and granting the defendant's motion for summary judgment.  Fuller-Bradley moved for an award of attorneys' fees.  On September 14, 2001, Lee-Hankins-Grant purported to appeal the August 16, 2001 judgment in Fuller-Bradley's action.   The trial court held that Fuller-Bradley "conferred a substantial benefit upon [BCEMC], its trustees, and members," and awarded Fuller-Bradley attorneys' fees.  BCEMC appealed that award of fees.  BCEMC moved the Alabama Supreme Court to dismiss Lee-Hankins-Grant's appeal on the ground that, because Lee-Hankins-Grant were not parties to Fuller-Bradley's action, Lee-Hankins-Grant lacked standing to appeal the August 16, 2001 judgment entered in Fuller-Bradley's action.  HOLDING:  The Supreme Court of Alabama reversed the award of attorneys' fees to Fuller-Bradley. The Court held that because Fuller-Bradley did not receive a favorable ruling on their only requested relief and because Fuller-Bradley's action did not create a common fund or benefit the general public, Fuller-Bradley were not entitled to attorneys' fees.  The Court also held that Fuller-Bradley were not entitled to fees under Ala. Code §37-6-3(16)a because that statute only provides that the BCEMC had discretion to reimburse Fuller-Bradley for fees and did not allow a court to require it to pay them fees.  The Court dismissed the appeal of Lee-Hankins-Grant, holding that they did not have standing to appeal because they were not parties to Fuller-Bradley's action.)
*Download or view PDF version of opinion*
 
• Ex parte Parker,

No. 1010487 (Ala. Jan. 17, 2003)
(criminal; search and seizure; Charlie Mae Parker pleaded guilty to unlawful possession of marijuana in the first degree.  Before pleading guilty, Parker preserved her right to appeal the denial of her motion to suppress marijuana seized at her residence pursuant to a search warrant.  The ground of her motion to suppress was that the search warrant was based on a deficient affidavit.  On May 10, 1999, Investigator Van Jackson of the Lee County Sheriff's Department obtained a warrant to search  Parker's and Hutchinson's residence.  This search warrant was not executed.  On May 18, 1999, Investigator Jackson obtained a second warrant to search this residence.  To obtain this  second search warrant, Investigator Jackson submitted his affidavit stating:  "Within the past 72 hours, undercover Officer Jimmy Martin purchased approximately $100.00 in crack cocaine from Tabitha Hutchinson at her residence. ... Undercover Officer Martin has purchased crack cocaine from several different subjects and Hutchinson while at/or near this residence.  Officer Martin was able to purchase crack cocaine approximately seven different times from Hutchinson and/or someone near her residence."  At the suppression hearing, Investigator Jackson admitted that the last controlled buy made by police at Parker's residence was on May 7, 1999 and was not "within the past 72 hours" of  his application for the May 18, 1999 search warrant.  He said that the "within the past 72 hours" language was an "administrative error." HOLDING:  The Supreme Court reversed the conviction.  The Court held that the falsehood in the affidavit precipitated the issuance of a warrant not supported by probable cause to believe that cocaine was still located in the house on May 18, when the second affidavit was sworn and presented and the second search warrant was issued.  The Court further noted that the affidavit does not establish a pattern of cocaine sales from the house occupied by Hutchinson and Parker that would support the conclusion that the cocaine that was there on May 7, 1999, was still there on May 18, 1999, when Investigator Jackson applied for the second search warrant and submitted the second affidavit.  The Court noted that Investigator Jackson's affidavit testimony that Officer Martin had purchased crack from "Hutchinson while at/or near this residence" is not evidence that Officer Martin had purchased crack at this residence.  Likewise, the Court noted that Jackson's statement that Officer Martin purchased "crack cocaine approximately seven different times from Hutchinson and/or someone near her residence" is not evidence that he purchased crack from Hutchinson at all.  The Court also held that statements of unattributed hearsay in the affidavit did not contribute to a showing of probable cause.)
*Download or view PDF version of opinion*
 
• General Motors Corp. v. Stokes, 

No. 1010773 (Ala. Jan. 17, 2003)
(opinion modified on denial of application for rehearing)
(arbitration; Stokes Chevrolet, Inc. ("the Stokes dealership"), operates a dealership in Clanton that, in addition to the Chevrolet line of the Chevrolet Motors Division of General Motors Corporation ("GM"), sold Chrysler, Plymouth, Dodge, and Jeep vehicles (Stokes's non-GM lines are hereinafter referred to as "the Chrysler assets").  Rick Bush Motors ("Bush") was a GM dealer that also operated in Clanton and that had the authority to sell Buick, Oldsmobile, and Pontiac vehicles, and the GMC line of GM.  The Stokes dealership was interested in acquiring from Bush assets to be used in the operation of an Oldsmobile, Pontiac, and Buick dealership.  Bush's dealership agreement with GM required GM's approval of the sale of its assets to the Stokes dealership.  The Stokes dealership obtained GM's approval and purchased Bush's assets; however, a condition of the approval was the Stokes dealership's agreement to relocate the Chrysler assets to another site in Clanton.  Bush and the Stokes dealership consummated their asset purchase agreement on April 6, 1999, and on April 8, 1999, the Stokes dealership and GM consummated a "Relocation Agreement and Business Plan" ("the relocation agreement").  This action arises out of the Stokes dealership's purchase of 63 new GM vehicles from Bush's inventory.  The Stokes dealership claims that GM promised that the 63 vehicles would be "reinvoiced" to it if it would agree to sell the vehicles.  The Stokes dealership further claims that GM promised that it would receive the three percent "dealer-holdback" credit, the advertising credit, and other interest credits on those vehicles.  GM denied making any such promises.  Kirk A. Stokes, James H. Stokes, and the Stokes dealership (hereinafter sometimes referred to collectively as "the Stokeses") sued GM and its area market manager, Robert T. Feeley, Jr., alleging fraud, suppression, conversion, negligence, wantonness, and the tort of outrage.  GM's dealership agreement with the Stokes dealership does not contain an arbitration clause.  The arbitration clause provides that claims arising under or relating to the negotiation, execution, administration, modification, extension, or enforcement of the relocation agreement fall within its sweep.  GM and Feeley filed motions to compel arbitration.  The trial court denied GM's motion to compel arbitration.  GM appealed. HOLDING: The Supreme Court held that the claims made the basis of this action are subject to arbitration pursuant to the arbitration clause in the relocation agreement.  The Court reasoned that  because additional payments from GM not covered by the written terms of the agreement were orally promised during the negotiations concerning the transaction, those promises were a discrete event related to the Stokes dealership's acquisition of the Oldsmobile, Buick, and Pontiac franchises and, therefore, a claim based on those promises constitutes a claim "arising under or relating to" the "negotiation" of the relocation agreement.  The Court also held that the transaction substantially affects interstate commerce.)
*Download or view PDF version of opinion*
 
• Cottingham v. Citizens Bank,

No. 1011286 (Ala. Jan. 17, 2003)
(summary judgment; real estate; mortgages; Carolyn Cottingham ("Carolyn") sued The Citizens Bank ("the Bank") and Wayne Gentry, alleging that the defendants, fraudulently and in bad faith, had foreclosed on a mortgage given by her and her husband to the Bank, had defamed her character, had harassed her, and had damaged her expectation of good credit.  The Bank and Gentry filed a joint motion for a summary judgment.  The mortgage did not contain a future-advance clause.  The Bank and Gentry asserted to the trial court that, "[o]n December 21, 1992, the loan secured by the mortgage on Donald and Carolyn Cottingham's residence was renewed along with another loan into a new loan for a total amount of $300,000.00."  The trial court granted the motion for summary judgment.  HOLDING:  The Supreme Court reversed.  The Court noted that a mortgage for a specific debt cannot be used to secure any subsequent advances in the absence of an express provision securing future indebtedness.  The Court held that an issue of material fact existed as to whether the mortgage was satisfied.)
*Download or view PDF version of opinion*
 
• Ex parte Central Ala. Conference, African Methodist Episcopal Zion Church in Am.,

No. 1011946 (Ala. Jan. 17, 2003)
(property dispute; summary judgment; This appeal involves a property dispute between the Central Alabama Conference, African Methodist Episcopal Zion Church in America ("Central Alabama Conference") and the congregation of Franklin Church, located in Macon County.  Franklin Church, which has maintained a place of worship in Macon County for more than 130 years, has long been affiliated with the African Methodist Episcopal Zion Church ("the AME Zion Church").  In the late 1860's, J.A. Chapman conveyed two acres of land to Franklin Church. The original deed was lost; it was replaced by a deed dated July 17, 1920, which shows the conveyance of the property from Chapman to the "Trustees of Franklin Church." On April 12, 1947, the trustees of Franklin Church deeded the property to the "Trustees of the Franklin AME Zion Church." The preamble to the 1947 deed stated that the 1920 deed should have stated that the property was deeded to the "Trustees of the Franklin AME Zion Church." The final deed, dated November 14, 1999, conveyed the property from the "Trustees of Franklin AME Zion Church" back to the "Trustees of Franklin Church." Two weeks after the final deed was executed, Franklin Church notified the Central Alabama Conference that it was no longer an AME Zion member church.  Shortly thereafter, the trustees and members of Franklin Church sought injunctive relief to prevent representatives of the Central Alabama Conference from using or entering the property on which Franklin Church is located. The Central Alabama Conference filed a counterclaim seeking a judgment declaring that the Central Alabama Conference owns the property on which Franklin Church is situated.  Franklin Church filed a motion for a summary judgment; the trial court granted the motion, after determining that Franklin Church owns the property at issue.  The Central Alabama Conference appealed. HOLDING:  The Supreme Court reversed the summary judgment in favor of Franklin Church. The Court held that there were material issues of fact in dispute as to the effect and interpretation of the deeds conveying the property because the deeds are ambiguous and allow for differing interpretations as to the ownership of the property.  The Court held that a dispute exists as to the intent of the initial grantors of the property: whether they intended to convey the property to the Franklin Church to the exclusion of any national church or whether they intended to convey the property to the AME Zion Church.  The Court also held that the "trust clause" in the Book of Discipline, as it relates to the 1947 deed deeding the property to the "Trustees of the Franklin AME Zion Church," creates a genuine issue of material fact as to who is the true property owner.)
*Download or view PDF version of opinion*
 
• Ex parte African Methodist Episcopal Zion Church,

No. 1011947 (Ala. Jan. 17, 2003)
(property dispute; This appeal involves a property dispute in an action brought by the African Methodist Episcopal Zion Church ("AME Zion Church") against the congregation of Simmons Chapel Church, which is located in Macon County.  In February 1975, Simmons Chapel was incorporated as "Simmons Chapel AME Zion Church, Inc."  The 1975 certificate of incorporation referred to the church as the "Simmons Chapel AME Zion Church" and indicated that it was in the church's best interest for the trustees of Simmons Chapel to convey the property to the corporation.  There is no evidence indicating that a deed conveying the property to Simmons Chapel AME Zion Church, Inc., was ever recorded.  However, on August 18, 1999, after Simmons Chapel's congregation voted to withdraw from the AME Zion Church, the property was deeded from "Simmons Chapel AME Zion Church, Inc.," back to the "Trustees of Simmons Chapel Church."  One week later, the church corporation was dissolved.  The AME Zion Church filed an action in the Macon Circuit Court seeking a declaration that the property on which the Simmons Chapel church building is located is owned by the AME Zion Church. Simmons Chapel filed a motion to dismiss for failure to state a claim.  The trial court granted Simmons Chapel's motion to dismiss, determining that the property was owned by Simmons Chapel and not by the AME Zion Church. HOLDING:  The Supreme Court reversed the dismissal. The Court noted that there are several relevant conveyances and events concerning the church property: the 1939 and 1944 deeds conveying the church property to the trustees of Simmons Chapel; the 1975 incorporation of "Simmons Chapel AME Zion Church, Inc.," and the fact that the certificate of incorporation states that after that incorporation the church property would be conveyed to "Simmons Chapel AME Zion Church, Inc."; and the 1999 deed conveying the church property from "Simmons Chapel AME Zion Church, Inc.," back to the "Trustees of Simmons Chapel Church." The Court held that these events create ambiguity and allow for differing interpretations as to the ownership of the property.  Thus, the Court held that the AME Zion Church could prove facts entitling it to be deemed the owner of the church property and held that the trial court erred in granting Simmons Chapel's motion for a dismissal.)
*Download or view PDF version of opinion*
 
• Ex parte Haralson,

No. 1012071 (Ala. Jan. 17, 2003)
(immunity; Lubie W. Griffith sued Rufus Haralson, a Lowndes County deputy sheriff, and the Lowndes County Sheriff's Department  ("the sheriff's department") on theories of negligence and wantonness stemming from a motor-vehicle accident. Griffith alleges in her complaint that the accident occurred on June 30, 1999, on an unnamed public thoroughfare near Interstate 65 and U.S. Highway 31 in Montgomery County, when the vehicle being driven by Deputy Haralson collided with her vehicle.  The vehicle driven by Deputy Haralson at the time of the accident is allegedly owned by the sheriff's department.  Griffith seeks compensatory and punitive damages.  Deputy Haralson and the sheriff's department filed a motion to dismiss the complaint, arguing (1) that Griffith's claims against the sheriff's department are barred because, it says, the department is not a legal entity, and, therefore, is not subject to being sued, (2) that the claims against Deputy Haralson are barred by the doctrine of sovereign immunity, now referred to as State immunity, (3) that the claims are barred because Griffith was contributorily  negligent, and (4) that punitive damages are not recoverable because, they say, Griffith's claims are, in essence, claims against the State.  The trial court denied the motion, and the defendants petitioned this Court for a writ of mandamus directing the trial court to dismiss Griffith's claims against them.  HOLDING:  The Supreme Court granted the writ of mandamus as to the claims against the Lowndes County Sheriff's Department, because it is clear under Alabama law that the sheriff's department is not a legal entity subject to suit.  The Court denied the writ of mandamus as to Deputy Haralson.  The Court said that it could not conclude, at this early stage of the proceedings, without evidence showing that at the time of the accident he was acting within the line and scope of his employment, that Deputy Haralson is entitled to immunity.  The Court noted that no State officer, such as a deputy sheriff, can avoid tort liability simply by claiming that his "'mere status as a [S]tate official cloaks him with the [S]tate's constitutional immunity.'"  The Court noted that it is conceivable that Griffith could prove facts that would show that at the time of the accident Deputy Haralson was on a personal errand or otherwise had departed from the line and scope of his employment.  If so, Griffith "may possible prevail" on her claims.)
*Download or view PDF version of opinion*
 
• City of Daphne v. City of Spanish Fort,

No. 1012088 (Ala. Jan. 17, 2003)
(annexation; The City of Daphne and the City of  Spanish Fort have been in disagreement over the purported annexations of the disputed parcels in Baldwin County since 1988. The disputed parcels consist of property referred to as ("the mall property" and and several separate parcels referred to as "the causeway property."  Daphne filed its first action against Spanish Fort ("Dispute I") after the voters of Spanish Fort approved the annexation of certain property pursuant to a local act of the Legislature authorizing such a referendum. Daphne had previously annexed parcels of the same property pursuant to the landowner-consent method of Ala. Code §§11-42-20 to -24.  The trial court concluded that the mall property and the causeway property were validly annexed into Daphne, and that the Spanish Fort annexation was invalid because the property advertised for the proposed annexation by referendum was approximately twice the size of the area ultimately subject to the annexation after the amendment of Act No. 98-634, Ala. Acts 1998 ("the 1998 Act").  The property annexed by Spanish Fort differed materially from the property described in the advertisement, and the trial court held that such a discrepancy violated  Ala. Const. of 1901, Art. IV, § 106, which provides that no local law can be passed without notice of the proposed law in the county where the subject matter  affected by the law is located.  Dispute I was appealed to the Supreme Court of Alabama.  See City of Spanish Fort v. City of Daphne, 774 So.2d 567 (Ala. 2000).  The Supreme Court affirmed that aspect of the trial court's judgment holding that the 1998 Act violated Article IV, § 106, of the Alabama Constitution and also affirmed the trial court's judgment insofar as it related to the mall property.  However, the Supreme Court reversed the trial court's judgment as to the causeway property because Daphne's purported annexation of the causeway property did not meet the requirement of contiguity contained in Ala. Code §11-42-21.  Before the trial court entered its judgment in Dispute I, the mayor of Spanish Fort, several members of the Legislature, and the attorney for Spanish Fort discussed introducing a new bill to annex the disputed parcels to Spanish Fort.  The new bill was introduced to the Legislature on May 20, 1999, only one day before the trial court entered its judgment in Dispute I in favor of Daphne as to all the disputed parcels. The Legislature passed the new bill, Act No. 99-547, Ala. Acts 1999 ("the 1999 Act"), and it became effective on June 18, 1999.  The Daphne plaintiffs filed their complaint in the present action on June 29, 1999, seeking a judgment declaring that the 1999 Act was unconstitutional and enjoining Spanish Fort from exercising jurisdiction over the mall property and the causeway property.  Spanish Fort filed a motion for a summary judgment.  The trial court dismissed the claim for monetary relief under the theories of conspiracy and intentional interference with business relations.  The parties dismissed the alleged violation of § 11-42-6 by joint resolution.  The trial court dismissed the claims of money had and received, detinue, trover, and conversion as to Daphne. The trial court entered a summary judgment in favor of Spanish Fort. HOLDING:  The Supreme Court affirmed.  The Court held that the 1999 Act did not violate the separation-of-powers doctrine of § 43, Ala. Const. 1901.  The Court held that the 1999 Act did not reverse the trial court's judgment in Dispute I, did not direct any court on how to rule in Dispute I, did not make the annexation into Spanish Fort retroactive to the effective date of the 1998 Act, and did not retroactively change any law under which Dispute I was decided.  The Court noted that Article IV, § 104, expressly provides that the Legislature has the power to alter or rearrange by local law the boundaries of a municipality.  The Court also held that the 1999 Act does not violate § 95, Ala. Const. 1901.  The Court held that the 1999 Act did not take away the Daphne plaintiffs' cause of action, nor did it destroy a defense available to the Daphne plaintiffs in Dispute I.  The Court held that the 1999 Act did not grant the same relief that was pending before the court in Dispute I, in violation of Art. IV, § 105, Ala. Const. of 1901.  The Court noted that the courts were limited in Dispute I to addressing only the question of the validity of the 1998 Act and the validity of Daphne's purported annexations under the landowner-consent method.  The Court concluded that the 1999 Act is valid in its entirety and that it effectively annexes the disputed parcels of the mall property and the causeway property into Spanish Fort.)
*Download or view PDF version of opinion*

Back to top

Opinions Released January 10, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JANUARY  10, 2003

 
• Eastside Development, Inc. v. Medical Plaza East, POB, LLC,

No. 1010342 (Ala. Jan. 10, 2003) (on application for rehearing)
(application for rehearing overruled without opinion; Justices Lyons and Johnstone issued a dissenting opinion stating that they dissent from overruling the application for rehearing insofar as it asks the Court to revisit the affirmance of the trial court in its denying the removed general partner Eastside Development, Inc., a distributive share of the partnership assets.  The original decision by the Supreme Court in this case was a no-opinion affirmance on September 20, 2002.)
*Download or view PDF version of opinion*

--(The special opinions concurring in part and dissenting in part by Justices Lyons and Johnstone on issuance of the no-opinion affirmance on September 20, 2002, are also available at the Wallace, Jordan, Ratliff & Brandt, L.L.C. website)--
 

• DaimlerChrysler Motors Corp. v. Susan Schein Chrysler, Plymouth, Dodge, Inc.,

Nos. 1011496 & 1011497 (Ala. Jan. 10, 2003)
(attorneys' fees; Motor Vehicle Franchise Act, Ala. Code § 8-20-1 et seq.; DaimlerChrysler Motors Corporation ("DaimlerChrysler") gave written notice to  Susan Schein Chrysler, Plymouth, Dodge, Inc. ("Schein"), "pursuant to Alabama Code § 8-20-4," informing Schein  of its intent to establish a Dodge automobile dealership in Hoover, Alabama; Thomas Acheson was the franchisee.  Schein objected to this proposal because the new dealership would have been within Schein's "relevant market area," as that term is defined in § 8-20-3.  Schein sued DaimlerChrysler and Acheson "under the provisions of The Motor Vehicle Franchise Act.  Schein sought preliminary and permanent injunctions enjoining DaimlerChrysler "from appointing an additional dealer or awarding an additional franchise as hereinabove stated" and enjoining Acheson from opening the proposed Hoover dealership.  Schein also requested attorney fees and costs pursuant to § 8-20-11.  Acheson filed a motion to dismiss.  After more than a year, during which substantial discovery was conducted, DaimlerChrysler withdrew its notice of intent to establish an automobile dealership with Acheson as the franchisee, because Acheson had lost his option on the property on which DaimlerChrysler had intended to establish the franchise.  Accordingly, DaimlerChrysler filed a motion to dismiss "for lack of justiciable controversy."  The trial court dismissed all claims "with exceptions of claims for attorney fees."  The trial court gave no express reason for dismissing the other claims.  After a hearing, the trial court entered an order awarding attorneys fees to Schein in the amount of $60,973.25 plus costs of  $11,828.41 against DaimlerChrysler Motors Corporation and Thomas Acheson.  The trial court made no findings of fact or liability under the Act.  HOLDING:  The Supreme Court held that Ala. Code §8-20-11 did not permit the award of attorney fees, or any other relief permitted thereunder, in this case, because §8-20-11 permits relief under that section only to "any person who is injured in his business or property by a violation of this chapter," and Schein was not injured because its complaint alleged only the possibility of future injury and because that alleged future injury never materialized due to the withdrawal of the letter of intent.  The Court reversed the trial court's order awarding attorney fees to Schein.)
*Download or view PDF version of opinion*
 
• Mitchell v. Folmar & Associates, LLP,

No. 1011572 (Ala. Jan. 10, 2003)
(malicious prosecution;  Folmar & Associates, LLP ("Folmar") is a partnership primarily engaged in developing and managing shopping centers.  William M. Cagle, Jr., was one of three partners in Folmar before his death on September 25, 1997. Folmar advanced Cagle moneys against future distributions for many years before his death; as a result, at the time of his death Cagle owed Folmar a substantial sum of money.  Folmar filed a claim against Cagle's estate for $407,688.01 on April 24, 1998.  The claim was satisfied by Folmar's withholding the necessary amounts from Cagle's estate's share of distributions made to the partners of Folmar.  Approximately nine months after the claim had been satisfied, S. Felton Mitchell, Jr., who had then been appointed as administrator of Cagle's estate, filed an objection to Folmar's claim and filed two counterclaims against Folmar.  Counterclaim number two sought an accounting by Folmar, which Mitchell later conceded that he knew he, as administrator of Cagle's estate, was entitled to as a matter of law.  Counterclaim number one ("counterclaim one") alleged that Folmar had acted in combination with other persons to fraudulently obtain, or to obtain without valuable consideration, before Cagle's death, Cagle's signature on an amendment to the partnership agreement.  Mitchell alleged that the amendment substantially diminished or damaged Cagle's interest –- and consequently his estate's interest –- in Folmar.  Mitchell pursued that counterclaim in the Probate Court of Mobile County for at least 18 months before he voluntarily dismissed it.  Folmar filed this malicious-prosecution action against Mitchell.  After a jury trial, the jury awarded $51,918.40 in compensatory damages, which was the exact amount of the attorney fees and costs Folmar expended in defending against Mitchell's first counterclaim (the gravamen of Folmar's malicious-prosecution action), and $103,836.80 in punitive damages, which is two times the amount of the compensatory damages.  HOLDING:  The Supreme Court affirmed the judgment.  The Court held there was evidence to support the finding that when Mitchell filed counterclaim one -- or at any time during the 18 months that elapsed between the filing of the counterclaim and the voluntary dismissal of the claim by Mitchell -- Mitchell had no evidence to substantiate his allegation that Folmar had fraudulently obtained Cagle's signature on an amendment to the partnership agreement during Cagle's incapacity and final illness.  The Court held that the jury could have found that Mitchell acted with malice in pursuing the counterclaim and that there was a  complete absence of evidence of probable cause to support a fraud action against Folmar.  The Court held that the trial court did not err in determining that it was for the jury to decide whether there was clear and convincing evidence that Mitchell consciously and deliberately acted with malice and to award punitive damages.)
*Download or view PDF version of opinion*
 
• Ex parte Pettibone,

No. 1011802 (Ala. Jan. 10, 2003)
(criminal; right to counsel; Norman Pettibone was convicted of third-degree robbery and was sentenced to 99 years' imprisonment as an habitual felony offender.  Pettibone appealed to the Court of Criminal Appeals, which affirmed his conviction and sentence.  Pettibone filed a postconviction petition in accordance with Ala.R.Crim.P. 32.  The trial court granted the petition, vacated Pettibone's conviction, and restored Pettibone's robbery case to the court's docket.  Pettibone had a second jury trial on the charge of third-degree robbery.  In cross-examining a defense witness, the prosecutor twice referred to Pettibone's conviction in the first trial for the offense for which he was being tried.  Pettibone's attorney objected.  The trial court sustained the objection and instructed the jury to disregard the two questions.  Pettibone's attorney then moved for a mistrial; the trial court denied the motion.  The jury found Pettibone guilty of third-degree robbery. The trial court again sentenced him to 99 years in prison and ordered him to pay several fines.  Pettibone appealed.  On appeal, Pettibone's lawyer filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967).  In his Anders brief, Pettibone's former attorney stated that two issues had been preserved for review; one of those issues was whether the trial court had erred in not granting Pettibone's motion for a mistrial after the prosecutor twice referred to Pettibone's prior conviction in a previous trial for the same offense.  Instead of arguing that the prejudicial effect of the prosecutor's references was ineradicable, Pettibone's attorney concluded that the issue was "arguably cured by the trial court during the trial" and stated that "counsel can find no meritorious issue" to present for appeal.  The Supreme Court granted certiorari in this case to determine whether the Court of Criminal Appeals erred in refusing to appoint new appellate counsel for Pettibone after his lawyer filed a brief pursuant to Anders. HOLDING:  The Supreme Court concluded that at least one issue in this case--whether Pettibone was entitled to a mistrial based upon the prosecutor's references in this trial to Pettibone's prior conviction in a previous trial for the same offense--is arguable on its merits and warrants further briefing.  Therefore, the Court reversed the judgment of the Court of Criminal Appeals and remand the case for the Court of Criminal Appeals to instruct the trial court to appoint new appellate counsel to represent Pettibone.
*Download or view PDF version of opinion*
 
• McDonald v. H & S Homes, L.L.C.,

No. 1011805 (Ala. Jan. 10, 2003)
(arbitration; Christina L. McDonald contracted to purchase a manufactured home from H & S Homes, L.L.C.  McDonald signed a "retail installment contract and security agreement" ("the installment contract").  The installment contract named Greenpoint Credit, L.L.C., as the assignee.  The installment contract contained an arbitration provision.  Simultaneously with the signing of the installment contract, McDonald executed a purchase contract with H & S; the purchase contract referenced and incorporated a separate "stand-alone" arbitration agreement.  McDonald filed this action against H & S and Russ D'Olympio, the general manager of H & S.  In her complaint, McDonald alleged fraud, suppression, misrepresentation, deceit, negligence, wantonness, and conversion arising out of her purchase transaction.  H & S and D'Olympio filed motions to compel arbitration.  The trial court granted H & S and D'Olympio's motions to compel arbitration, ordering McDonald to arbitrate her claims.  McDonald filed with the trial court a motion for clarification.  In her motion, McDonald pointed out that she had signed two arbitration provisions in connection with her purchase of the mobile home and that the parties could not agree which provision controlled this dispute.  McDonald asked the trial court for guidance as to which arbitration provision governed.  The trial court issued its order finding that the stand-alone arbitration agreement and the installment contract containing an arbitration provision had been executed on the same date, were part of a continuing transaction, and should be read and construed "as if in one form."  The trial court concluded its order by stating, "[I]t is hereby ORDERED that [McDonald] shall comply with the provisions contained in the Retail Installment Contract."  Neither McDonald, H & S, nor D'Olympio appealed from this order.  Sometime after that order was entered, McDonald's counsel contacted the attorney for Greenpoint Credit, the assignee of the installment contract.  Without providing notice to H & S or D'Olympio, the attorneys for McDonald and Greenpoint Credit mutually agreed that attorney Kenneth Mendelsohn would be the arbitrator for this dispute.  Upon receiving notice that Mendelsohn had been appointed as arbitrator, H & S and D'Olympio objected, asserting that he had not been appointed pursuant to the procedures specified in the installment contract.  H & S moved the trial court to set aside as invalid McDonald and Greenpoint's selection of Mendelsohn as the arbitrator.  The trial court entered an order requiring Christina McDonald and H & S Homes, L.L.C. to "select an arbitrator in accordance with the Rules of [the] American Arbitration Association" and that "the selection of an arbitrator by the assignee is due to be and is hereby set aside."  McDonald appealed from the trial court's order setting aside the selection of Kenneth Mendelsohn as the arbitrator.  HOLDING: The Supreme Court reversed.  The Court noted that the agreement between the parties provided, "All disputes, claims, or controversies arising from or relating to the Contract or the relationships which result from the Contract, or the validity of this arbitration clause or the entire Contract, shall be resolved by binding arbitration by one arbitrator selected by Assignee with consent of Buyer(s)."  Because Mendelsohn was appointed pursuant to that agreed-upon method, the Court found that McDonald complied with the trial court's clarifying order.  The Court held that the subsequent order directs  the parties to select an arbitrator in a manner that is inconsistent with the terms of the parties' agreement to arbitrate.)
*Download or view PDF version of opinion*
 
• Ex parte Judd,

No. 1012274 (Ala. Jan. 10, 2003)
(costs; offer of judgment under Ala.R.Civ.P. 68; petition for writ of certiorari denied without opinion; concurring opinion by Justice Houston, joined by Justice Lyons) 
*Download or view PDF version of opinion*
 
• Ex parte McGhee,

No. 1012369 (Ala. Jan. 10, 2003)
(child custody; petition for writ of certiorari denied without opinion; dissenting opinion by Chief Justice Moore)
*Download or view PDF version of opinion*

Back to top

---

Disclaimer and note regarding opinion formats:   The Supreme Court of Alabama opinions are now being released by the Court electronically in HTML (.htm) format as well as in WordPerfect® 5.1 format (with a .rel extension).  Before February 8, 2001, both the HTML and WordPerfect® formats were made available on this web site.  After February 8, 2001, we are converting the WordPerfect® files into Portable Document Format (PDF) and posting the HTML and PDF files.  We believe that the PDF files will be more user friendly.  The PDF files can be viewed using Adobe® Acrobat® Reader™.  If you don't have Adobe® Acrobat® Reader™, you can download it free at www.adobe.com/products/acrobat/readstep2.html. The link to the PDF version of the opinion will be at the end of the summary as "*Download or view PDF version of opinion*."  While these files contain the text of the slip opinions released electronically by the Court, please note that these may differ from the hard copy slip opinions in several respects.  Some, but not necessarily all, of these differences are that in some of the electronic file formats the footnote numbers may be in brackets, the text of the footnotes may be at the end of each opinion, the pagination may not necessarily be the same, section and other symbols may not appear correctly, and these opinions may not reflect some italicized, bolded, underlined, or otherwise emphasized text that appears in the opinions issued on paper.  These opinions are released to the public by the Court and are provided here as a convenience to visitors of our web site.  These opinions do not constitute legal advice.  By making these opinions available over the Internet, we by no means imply, nor should anyone infer, that we have any connection with any governmental agency or court.  Please read the notice that appears at the top of each opinion.  We recommend obtaining from the Court a paper copy of any slip opinion before citing to it in any document submitted to any governmental entity for legal purposes.  If you have any questions or comments about our posting of these opinions, please contact the web administrator:  webadmin@wallacejordan.com

Back to top