Opinions Released March 26, 2004

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

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

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

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

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

• Ex parte Carter,

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

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

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

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

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

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

 
• Richardson v. Terry,

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

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

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

• George v. Sims,

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

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

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

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

 
• Ex parte Anonymous,

No. 1030860 (Ala. Mar. 16, 2004)
(abortion; minors; judicial by-pass of parental consent; The Supreme Court denied the petition for writ of certiorari without opinion.  Justice Johnstone wrote a dissenting opinion stating that the appellate courts of this state "continue to flout the abortion rights of minors.")
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Opinions Released March 12, 2004

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

 
• Taylor v. Smith,

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

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

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

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

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

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

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

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

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

 
• Walls v. Alpharma USPD, Inc.,

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

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

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

No. 1020899 (Ala. Mar. 5, 2004)
(criminal; murder; search and seizure; harmless error; A passerby found Jonathon Davis's body lying in some bushes.  Davis had been shot in the head.  The passerby flagged down Officer Colletta Shepard, who was patrolling in the area.  Officer Shepard followed the passerby to where Davis's body was lying.  Officer Shepard then "called dispatch and told them to notify" the evidence technician, the sergeant on duty, additional officers, the lieutenant, and the emergency medical technician that a body had been discovered.  Officer Shepard waited at the scene until several other officers arrived.  Officer Shepard and three other officers went to the house closest to where Davis's body was found; it was across the street from where the body was found and was shared by Roland Edwin Harris and Davis.  The officers saw what appeared to be blood on the front lawn and sidewalk in front of the house and on the stairway and front porch of the house.  It also appeared that the body had been dragged across the front lawn.  Officer Shepard knocked on the door; when no one answered, she and the three other officers entered the house.  The officers went through all of the other rooms in the house before they found Harris in a  bedroom, asleep on the bed, with a rifle propped next to the bed.  There was also a .38-caliber Smith & Wesson Special revolver on top of a cooler in the bedroom; the revolver had four live rounds and one spent round in it.  Officer Shepard took Harris outside and placed him in the back of a police car.  A neighbor told the officers that Harris and Davis had had an argument.  Officer Shepard placed Harris under arrest.  Police officers, including an evidence technician, then reentered the house, searched it, and seized evidence.  Harris moved to suppress the evidence seized as a result of the warrantless search of his house and to suppress statements he made to police officers after they arrested him.  The trial court denied Harris's motions.  A jury found Harris guilty of murder.  Harris appealed his conviction.  The Court of Criminal Appeals affirmed Harris's conviction, without an opinion.    HOLDING:   The Supreme Court affirmed.  The Court concluded that any error by the trial court in admitting the evidence seized during the warrantless search of Harris's house was harmless error under Chapman v. California, 386 U.S. 18 (1967).)
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• Ex parte McNabb,

No. 1021364 (Ala. Mar. 5, 2004)
(criminal; capital murder; bifurcated jury instructions; aggravating and mitigating circumstances; unanimity; plain error; sentencing; Torrey Twane McNabb was convicted on January 8, 1999, in the Montgomery Circuit Court on two counts of capital murder for the murder of Montgomery Police Officer Anderson Gordon.  By a vote of 10 to 2, the jury recommended a sentence of death.  The trial court accepted the jury's recommendation, and sentenced McNabb to death.  The Court of Criminal Appeals affirmed the convictions and sentence.  McNabb challenges the jury instructions given during the sentencing phase of his trial.  The court bifurcated the jury charge at the sentencing phase, giving instructions both before the presentation of evidence and after closing arguments.  McNabb did not object to the timing or the content of the instructions.  HOLDING:  The Supreme Court affirmed.  The Court held that because McNabb did not object to the instructions, they are reviewed for "plain error," that is, an error that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings."  Although the trial court did not specifically instruct the jury what to do if it found the mitigating and aggravating circumstances equally balanced, the Supreme Court stated that it could not conclude, considering the charge in its entirety, that the error seriously affected the fairness, integrity or public reputation of these judicial proceedings, so as to require a reversal of the sentence.  The Court held that the jury's unanimous finding of one aggravating circumstance is sufficient to satisfy Ring v. Arizona, 536 U.S. 584 (2002).  Consequently, the Court held that the trial court's instruction as to the unanimity required for a finding of aggravating circumstances does not constitute plain error.  The Court held that Ala. Code §13A-5-46(d) does not prohibit a bifurcation, that is, the giving of a charge both before and after the presentation of evidence and closing arguments.  Moreover, the Court noted that Ala.R.Crim.P. 21.1, as amended effective March 1, 2001, provides, in part, "the court may, in its discretion, instruct the jury at the beginning of the proceeding" and it shall not be required to instruct the jury again after the arguments are completed, but it may if the court believes the interest of justice so requires."  Thus, the Court held that the trial court did not commit plain error in bifurcating its instructions during the sentencing phase of McNabb's trial.)
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• Ex parte Newton,

No. 1021368 (Ala. Mar. 5, 2004)
(workers' compensation; co-employee-liability action; Ala. Code § 25-5-11(c); willful conduct; removal of a "safety device"; substantial certainty of injury; Wright Pre-Cast Concrete manufactured concrete septic tanks. Robert H. Newton, Sr., an employee of Wright Pre-Cast Concrete, had duties that included operating a wire machine, which straightened rolls of the wire mesh used to reinforce the concrete septic tanks.  On October 27, 1998, while operating the wire machine, Newton suffered serious injuries to his hands.  The wire machine on which Newton was injured had three rollers: (1) the upper roll (the "pinch roll"), (2) the lower roll (the "power roll"), and (3) the rear lower roll (the "pressure roll").  Coiled wire mesh had to be hand-fed between the pinch roll and the power roll; the mesh was pulled into the machine, where it was straightened as it passed over the pressure roll.  As originally manufactured and installed at the plant, the wire machine had an upper-roll-release lever located on the material-entry side.  When the lever was pulled, the pinch roll and the power roll separated immediately, eliminating the nip point where they met.  Before Newton's accident, the wire machine had begun to malfunction.  Specifically, the upper-roll-release lever began to pop out of position, causing the pinch roll and the power roll to separate, which prevented the wire mesh from being pulled into the machine.  This problem first occurred after the employer welded metal beads to the surfaces of the pinch roll and the power roll to increase the pressure between those rolls.  In order to keep the upper-roll-release lever from moving, the lever was welded shut.  At some point after the lever was welded shut, and "years" before Newton's accident, an operator was injured while he was feeding wire mesh into the machine.  The operator was wearing gloves to protect his hands from the wire mesh.  One of his gloves became caught in the wire mesh, causing his hand to be pulled into the nip point between the pinch roll and the power roll.  As the result of the accident, the operator suffered the amputation of a finger.  Newton sued three co-employees -- George Wright, the owner of the company; Georgette Wright, the manager; and Guy Wright, a supervisor (hereinafter referred to collectively as "the Wrights").  Newton made two claims against the Wrights, both alleging that they had engaged in willful conduct that resulted in his injuries.  First, he claimed, under Ala. Code §25-5-11(c)(1), that they had willfully failed to provide him a safe workplace.  Second, he claimed, under §25-5-11(c)(2), that the Wrights had removed a "safety device," by welding the device shut.  The trial court entered a summary judgment in favor of the Wrights on both claims.  Robert T. Tolbert, a mechanical engineer, explained by affidavit that the upper-roll-release lever served two purposes:  (1) a functional purpose of removing products from the slip roll when formed into a cylindrical or otherwise impractical to remove shape., thereby   allowing an operator the ability to form cylinders and remove them without having to cause deformation of the work piece, and (2) a safety function of removing, or extricating, materials or personnel during an upset condition, or an emergency situation.  One example of the safety function would be in the unfortunate situation that personnel begin to become pulled into the in-running nip point between the pinch roll and the power roll.  The upper roll release provides virtually instantaneous release of pressure between the rolls, allowing personnel to extricate themselves.  In the application at Wright Pre-Cast Concrete, since they did not form cylinders with this machine, the lever served no functional purpose whatsoever.  It neither facilitated nor expedited any work at Wright Pre-Cast. HOLDING:  The Supreme Court held that Newton has offered no evidence indicating that they were "substantially certain" that injury would occur if employees, including Newton, continued to operate the wire machine in its known condition.  Thus, the Court affirmed the summary judgment for the Wrights on Newton's claim under §25-5-11(c)(1).  However, the Court reversed the summary judgment for the Wrights on Newton's claim under § 25-5-11(c)(2).  The Court held that Newton presented substantial evidence creating a genuine issue of material fact as to this claim by presenting evidence that the Wrights failed to maintain or repair a safety device provided with the machine as originally designed and manufactured, and this failure to maintain and repair the safety device directly caused the amputation of Newton's hands by the machine because had it not been welded shut, Newton's injuries could have been avoided or greatly reduced.)
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• Ex parte Casey,

No. 1021603 (Ala. Mar. 5, 2004)
(criminal; evidence; prior bad acts; general exclusionary rule of Rule 404(b), Ala.R.Evid.;  Quintus Bernard Casey was indicted and tried for three counts of first-degree receiving stolen property, ten counts of second-degree receiving stolen property, and five counts of illegal possession of a credit or debit card.  The State presented evidence that, in December 2000, police officers found stolen tools, stereo equipment, and compact discs in Casey's girlfriend's apartment, where Casey often stayed, and in Casey's girlfriend's car, which Casey often drove. As his defense, Casey argued that he did not have control of the apartment or the car and that he did not have knowledge of the stolen items therein or knowledge of their stolen character.  For the declared purpose of proving identity and criminal intent and knowledge, the State offered a case action summary of convictions Casey received in 1995 for theft of property and unauthorized use of a credit card. Over Casey's objection, the trial court admitted the case action summary.  Neither the case action summary nor any other evidence detailed any facts about the prior convictions.  The trial court gave a limiting instruction about the prior convictions, telling the jury that this evidence was presented not for the purpose of proving that the Defendant committed the crimes now charged but only for the limited purpose of the elements of knowledge and intent.  The jury found Casey guilty of one count of first-degree receiving stolen property and one count of second-degree receiving stolen property, but found him not guilty of the other charged offenses.  The trial court adjudged Casey guilty of the two counts of receiving stolen property, and sentenced him, as an habitual felony offender, to concurrent terms of twenty years and fifteen years in prison.  The Court of Criminal Appeals affirmed, in an unpublished memorandum, the judgment of the trial court.  HOLDING:  The Supreme Court reversed and remanded for a new trial.  The Court held that the admission of evidence of Casey's 1995 convictions violates the general exclusionary rule of Rule 404(b).  The Court concluded that the record discloses no logical connection between his prior theft or his prior unauthorized use of a credit card and his knowledge of the presence, ownership, or stolen character of any of the items he was being tried for receiving -- that is, the defendant's mere knowledge that the property he previously had been convicted of stealing or the credit card he had previously been convicted of using without authority belonged to some other persons would not, in the absence of some evidence of connecting facts, supply the defendant with knowledge of the presence, ownership, or stolen character of items found five years later in his girlfriend's apartment and car and would not enable him to differentiate between items there which were stolen and items there which were not stolen.   In other words, the record reveals no identity or connection between what the defendant knew or learned in his prior crimes and what he knew or learned about the items in his girlfriend's apartment or car.  The Court held that the "limiting" instruction given by the trial court to the jury did not ameliorate the prejudicial effect of the erroneous admission of the defendant's prior convictions, but instead, the instruction contradicted itself and exacerbated the prejudice.)
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• McKenzie v. Killian,

No. 1021616 (Ala. Mar. 5, 2004)
(auto accident; wantonness; statute of limitations; trespass; trespass on the case; On November 18, 2000, Rebecca McKenzie stopped her vehicle on an interstate highway in Hoover while officials were clearing a previous accident.  George Killian III, according to the accident report, entered the interstate from an entry ramp, was blinded by sunlight, and collided with the left rear of McKenzie's vehicle.  Also according to the accident report, a third motorist, Samuel Barber II, followed Killian on to the interstate.  After Killian's vehicle struck McKenzie's vehicle, Barber collided with the right rear of McKenzie's vehicle.   On November 18, 2002, McKenzie sued Barber and fictitiously named defendants, alleging that their negligent, willful, and/or wanton acts caused the accident.  On January 6, 2003, McKenzie amended her complaint to substitute Killian for a fictitiously named defendant.  Killian filed a motion for a summary judgment, arguing that McKenzie's negligence and wantonness claims were barred by the two-year statute of limitations set forth in Ala. Code §6-2-38.  Specifically, Killian argued that McKenzie was aware of his identity through correspondence from the insurance company and the accident report; therefore, he argued, McKenzie could not substitute him for a fictitiously named defendant after the lapse of the two-year statutory limitations period. McKenzie responded by arguing that her wantonness claims were grounded in an action for trespass and were therefore governed by the six-year statutory period of limitations set forth in Ala. Code §6-2-34(1).  The trial court entered a summary judgment for Killian as to McKenzie's negligence and wantonness claims.  HOLDING:  The Supreme Court affirmed, but not on statute-of-limitations grounds.   The Court held that the trial court properly declined to follow Myers v. Baker, 24 Ala. App. 387, 135 So. 643 (1931).  The Court overruled Sasser v. Dixon, 290 Ala. 17, 19, 273 So.2d 182, 183-84 (1973), and its progeny to the extent that those cases prefer the theory of causality over intent as the mechanism for distinguishing between actions for trespass and for trespass on the case.  In so doing, the Court abandoned whatever vestige of the outmoded direct/indirect distinction between trespass and trespass on the case still exists in Alabama, and in its place adopted the more modern tort concept of measuring the cause of action in terms of the degree of culpability of the alleged wrongful conduct.  As such, the Court held that wanton conduct, as that term is traditionally used and understood in the jurisprudence of our State, signifies the intentional doing of, or failing to do, an act, or discharge a duty, with the likelihood of injury to the person or property of another as a reasonably foreseeable consequence.  The Court held that such conduct, resulting in injury, is actionable in trespass and governed by the six-year statute of limitations.  But the Court affirmed the summary judgment because it held that there was no substantial evidence of wantonness.)
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• Ex parte State of Alabama (In re: State v. Webber),

No. 1021743 (Ala. Mar. 5, 2004)
(criminal; mootness; jurisdiction; appellate procedure; mandamus; guilty plea; drug court; dismissal;  In December 2001, Clennan Hill Webber was indicted for four property crimes.  He declined to participate in the "pre-trial diversion program" operated by the district attorney but agreed to participate in the "drug court" instituted and supervised by the trial judge herself. He entered guilty pleas to the four charges in the "case," and the trial court deferred adjudications and sentencing subject to certain conditions, including participation in the trial judge's "drug court."  After the defendant completed the drug court program and fulfilled all other conditions imposed by the trial court, it, over the district attorney's objection, dismissed the "case" against the defendant with prejudice on April 24, 2003.  On May 1, 2003, within the seven days next following the date of the judgment of dismissal, see Rule 21(a), Ala. R. App. P., and Rule 15.7, Ala. R. Crim. P., the State, through the district attorney, petitioned the Alabama Court of Criminal Appeals for a writ of mandamus directing the trial judge to vacate her order dismissing the "case" against the Webber and to adjudicate him guilty and to sentence him in accordance with his guilty pleas. The Court of Criminal Appeals dismissed that petition on July 9, 2003, without an opinion, and the State petitioned the Supreme Court within seven days thereafter.  The State claims that the trial court "usurped the authority of the district attorney" and "abused its discretion by arbitrarily and capriciously dismissing the charges against the Defendant over the State's objection."  HOLDING:  The Supreme Court dismissed the petition for writ of mandamus.  The Court held that because the trial court now lacks jurisdiction to vacate the judgment of dismissal, and the appellate courts of the state now lack jurisdiction to order the judgment vacated, it cannot reach the merits of the claim of the State, as the claim is moot.  The Court held that the April 24, 2003 dismissal of the case constituted a final judgment and that the trial court lost subject-matter jurisdiction of the cases at the expiration of thirty days following entry of the final judgments.  Because no party filed a timely appeal, no appellate court ever acquired any appellate jurisdiction over the cases.)
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• Ex parte Soule,

No. 1030152 (Ala. Mar. 5, 2004)
(criminal; appellate procedure; George Soule III was convicted of murder and was sentenced to 25 years' imprisonment.  Soule filed a Rule 32, Ala.R.Crim.P., postconviction petition in the trial court claiming ineffective assistance of trial counsel.  The trial court denied Soule's petition.  Soule appealed to the Court of Criminal Appeals.  On the authority of Bumpus v. State, No. CR-02-0964 (Ala. July 18, 2003), the Court of Criminal Appeals dismissed Soule's appeal, without an opinion.  Soule filed an application for rehearing with the Court of Criminal Appeals.  With his rehearing application, Soule filed certified copies of several documents from the record relating to his attempt to appeal, including (1) a signed cover letter to the clerk of the Lauderdale Circuit Court, (2) a completed form entitled "Court of Criminal Appeals Docketing Statement," (3) a completed form, save for the signature of the clerk, entitled "Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk," (4) a completed form entitled "Form 1C. Reporter's Transcript Order-Criminal." Soule's cover letter to the circuit clerk of the Lauderdale Circuit Court stated that he did not know and could not locate the identity of the court reporter.  Soule concluded the cover letter by stating, "Please file this Notice of Appeal of Rule 32 to the Alabama Court of Criminal Appeals and send me a copy of the case action summary sheet that would validate the filing."  The cover letter was the only document submitted to the Court of Criminal Appeals that bore Soule's signature.  The Court of Criminal Appeals denied Soule's application for rehearing.  HOLDING:  The Supreme Court reversed.  The Court held that the documents Soule filed are sufficient to invoke appellate jurisdiction under Rule 3 because the Court of Criminal Appeals could reasonably infer from Soule's request to the clerk in the cover letter to "please file this notice of appeal of Rule 32 to the Alabama Court of Criminal Appeals" Soule's intent to appeal.   The Court also held that that court could also ascertain from the information Soule included on the notice-of-appeal form and the cover letter the judgment Soule was appealing, the date of the judgment, the date of the filing, and the date of Soule's conviction.)
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• Ex parte Blanton,

No. 1030227 (Ala. Mar. 5, 2004)
(criminal; The Supreme Court denied the petition for writ of certiorari without opinion.  Justice Johnstone wrote a concurring opinion to note that the petition does not seek certiorari review of any of the jury-selection issues addressed by the Court of Criminal Appeals.)
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• Ex parte West,

No. 1030392 (Ala. Mar. 5, 2004)
(criminal; petition for postconviction relief under Rule 32, Ala. R. Crim. P.; the effective date of an amendment to Rule 32, Ala. R. Crim. P., reducing the time in which a defendant can file a postconviction petition; This case presents the same issue as Ex parte Garner, No. 1030309 (Ala. Jan. 27, 2003).  In light of Garner, the Supreme Court summarily granted the petition for writ of certiorari without allowing the respondent to file a brief and reversed the Court of Criminal Appeals' affirmance of the denial of the petitioner's petition for postconviction relief under Rule 32.)
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• Ex parte Smith,

No. 1030608 (Ala. Mar. 5, 2004)
(criminal; petition for postconviction relief under Rule 32, Ala. R. Crim. P.; the effective date of an amendment to Rule 32, Ala. R. Crim. P., reducing the time in which a defendant can file a postconviction petition; This case presents the same issue as Ex parte Garner, No. 1030309 (Ala. Jan. 27, 2003).  In light of Garner, the Supreme Court summarily granted the petition for writ of certiorari without allowing the respondent to file a brief and reversed the Court of Criminal Appeals' affirmance of the denial of the petitioner's petition for postconviction relief under Rule 32.)
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Opinions Released February 27, 2004

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  FEBRUARY 27, 2004

 
• Robbins v. Sanders,

No. 1021505 (Ala. Feb. 27, 2004)
(corporations; breach of fiduciary duty; squeeze-out/oppression of minority shareholders; shareholder-derivative claims; Ala. R. Civ. P. 15(b); trial court's entering of an order substantially identical to the order drafted by the lawyer for one of the parties; survival of tort claims; statute of limitations; In 1988, James Bailey and his wife, Mary Bailey, owned approximately 53 acres of real property in Birmingham.  This property was mortgaged to SouthTrust Bank for $400,000; an individual had a second mortgage on the property in the amount of $50,000.  The Baileys generated income by using a part of the land as a landfill.  An underground fire developed on the portion of the property used as a landfill, In May 1988, the Jefferson Circuit Court ordered the Baileys to close the landfill and to extinguish the fire.  At the time that order was issued, James Bailey was 83 years old and Mary was 77 years old.  Pete M. Robbins approached the Baileys and offered his help in extinguishing the fire.  On May 13, 1988, James Bailey, Mary Bailey, Robbins, and Otis Skinner entered into an agreement, which provided that Robbins and Skinner would extinguish the fire for cost plus 20%, secured by a lien.  Skinner backed out of the agreement.  On June 1, 1988, James Bailey, Mary Bailey, and Robbins entered into another agreement.  The June 1 agreement provided that Robbins would extinguish the underground fire.  In addition, the June 1 agreement provided that the parties would form a corporation to acquire the 53 acres owned by the Baileys; that the corporation would assume the mortgage indebtedness owed by the Baileys secured by the property and attempt to have the Baileys released from personal liability for the amounts owed on the 53 acres or that Robbins would assume personal liability on the mortgage debt; that the corporation would issue 1,000 shares of stock, and Robbins would receive 500 of those shares, and James Bailey and Mary Bailey would each receive 250 shares for their contribution to the corporation of the 53 acres of land.  The June 1, 1988, agreement further provided that the corporation was to be a subchapter-S corporation and that profits in an amount of not less than 50% of the corporation's profits were to be distributed to the shareholders pro rata according to their stock ownership.  The agreement provided that no salaries were to be paid to Robbins for two years.  After that two-year period, any salaries paid to stockholders would require approval by all of the stockholders.  Additionally, after the corporation began making sufficient income to cover the monthly mortgage payments on the property, James Bailey was to receive $1,250 per month for three years.  Robbins extinguished the fire in approximately 21 days.  He kept no records of the costs and expenses he incurred in extinguishing the fire, but he estimated that it cost him less than $25,000.  Pursuant to the June 1, 1988, agreement, Corridor Enterprises, Inc., was formed in October 1988.  Robbins failed to make the necessary election for treatment as a subchapter-S corporation.  Robbins served as president and director of Corridor Enterprises from the date of its incorporation.  No formal corporate action was ever taken to establish a salary for Robbins.  The only business Corridor Enterprises conducted at the time of its incorporation was the rental of various buildings on its property; the rental income was the sole source of income for Corridor Enterprises.  In June 1989, Robbins began considering the possibility of entering into the landfill business again and dumping materials on the property owned by Corridor Enterprises.  On October 24, 1991, the Baileys and Robbins entered into a stock-purchase agreement.  In this agreement, the Baileys agreed to sell their stock in Corridor Enterprises to Robbins for $500 per share; the Baileys also agreed not to sell their stock to a third party so long as Robbins purchased their stock at the rate of at least two shares per month.  James Bailey died on February 9, 1997.  Mary Bailey died on April 27, 1997.  Terrill Sanders was appointed as administrator of both Mary Bailey's estate and James Bailey's estate.  Sanders, in his role as administrator of the estates, made a written request upon the attorney representing Corridor Enterprises, Richard Carmody, for an accounting and an inspection of the corporate books and records.  Sanders received no response to this request.  Sanders filed a complaint against Robbins in the Jefferson Circuit Court on behalf of the estate of Mary Bailey.  In that complaint, Sanders requested that Robbins and Corridor Enterprises be ordered to provide an accounting for the period 1991 through the date the complaint was filed, so that Sanders could determine the amount of profits of Corridor Enterprises that were owed to Mary Bailey's estate.  On October 29, 1998, the trial court entered an order compelling Robbins to allow an inspection of the books and records of Corridor Enterprises.  According to the corporation's certified public accountant, Kenneth Tate, only one tax return had been prepared for Corridor Enterprises (for the year 1992) at the time of the trial court's October 29, 1998, order.  After reviewing the corporate documents and records produced by Robbins, Sanders amended the plaintiffs'  complaint to allege breach of fiduciary duty; squeeze-out/oppression of minority shareholders; and refusal to allow access to the corporation's books and records.  On behalf of the minority shareholders of Corridor Enterprises, Sanders also alleged shareholder-derivative claims alleging breach of fiduciary duty, self-dealing, conversion of corporate assets, waste of corporate assets, and mismanagement.  Sanders requested an accounting and judicial dissolution of the corporation, pursuant to Ala. Code §10-2B-14.30.  The books and records of Corridor Enterprises revealed that, from 1991 to 2001, Corridor Enterprises had rental income totaling $367,600.75, and that, during that same period, Robbins received $258,768.57 in compensation from Corridor Enterprises.  Robbins testified that he paid himself whatever was available, that the amount varied, and that the amount was not based upon any particular standard.  Robbins paid himself as compensation for the period 1991 to 2001 70% of the gross income of Corridor Enterprises despite the fact that the shareholders had taken no action to approve any compensation for him.  There was also evidence of numerous acts of substantial corporate wrongdoing by Robbins.  After the bench trial, the trial court entered a judgment in favor of the Bailey estates on the individual claims and in favor of the corporation on the shareholder-derivative claims.  The trial court awarded $3,269,125.91 in compensatory damages and $750,000 in punitive damages.  Robbins filed a motion for a new trial, a motion for a remittitur, a motion to alter, amend, or vacate the judgment, and a motion seeking the recusal of the trial judge.  The trial court denied those motions.  HOLDING:  The Supreme Court reversed in part and remanded.  The Court held that because Robbins did not object to the opening statement on the basis that the relief requested there exceeded that requested in the complaint, he cannot now be heard to say that he assumed the evidence of damages was being offered solely in furtherance of his narrow reading of the issues raised in the complaint, excusing him from the necessity of objecting as the evidence was offered.  The Court held that Robbins was not denied due process of law by the trial court's entering an order substantially identical to the order drafted by the lawyer for the estates. The Court did not read the complaint as stating tort claims on behalf of James and Mary Bailey individually, noting that such claims would have been extinguished upon their deaths.  Instead, the Court read the complaint as asserting those claims on behalf of the estates of James Bailey and Mary Bailey.  Therefore, the Court held that Ala. Code §6-5-462 does not bar the tort claims brought by those estates.  However, because components of the damages awards described in the trial court's order related to activities that occurred before the decedents died,  those damages are not recoverable to the extent that those damages arise from tort injuries sustained by the individual decedents before their deaths and for which no action was commenced during their respective lives.  As such, the Court remanded for a new determination of damages.  The Court held that because each award of damages was made jointly to the corporation and to the minority shareholders, the manner in which the trial court structured its damages award is improper.  The Court noted that because it is remanding this cause to the trial court for reconsideration of the damages, the amount of compensatory damages or punitive damages, or both, may change on remand.  As such, the Court declined to consider the arguments concerning excessiveness of damages.)
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• Ex parte Peterson,

No. 1021913 (Ala. Feb. 27, 2004)
(criminal; double jeopardy; For the factual background of this case, see Peterson v. State, 842 So.2d 734 (Ala. Crim. App. 2001) ("Peterson I"), and Ex parte Peterson, No. CR-02-0874, (Ala. Crim. App. Aug. 1, 2003) ("Peterson II").  This case  arises out of the murder, in which Charles Peterson and other individuals participated, of "Eddie Allen, the manager of a Burger King fast-food restaurant."  In 1995, a grand jury returned a one-count, capital-murder indictment against Peterson for the intentional murder of Allen during the course of a robbery.  In May 1997, pursuant to a blind plea agreement, Peterson's indictment was amended to charge, and he pleaded guilty to, (1) felony murder and (2) first-degree robbery.  He was sentenced to 30 years' imprisonment and 20 years' imprisonment, respectively; the sentences were to be served consecutively.  In July 2000, Peterson filed a Rule 32, Ala.R.Crim.P., petition challenging his robbery conviction.  Specifically, he contended that he was indicted for murder made capital because he committed it during the course of a robbery.  He further asserted that he was convicted of first-degree robbery and felony murder, for which the underlying offense was robbery.  Therefore, he argued, his conviction for both felony murder and the underlying offense of robbery violated the constitutional guarantees against double jeopardy.  The Court of Criminal Appeals remanded the case for further factual findings, stating that "if [Peterson's] convictions for both felony-murder and first-degree robbery were based on the same robbery, his convictions for both offenses violate double jeopardy principles."  On remand, the State conceded "that the felony-murder conviction and the robbery conviction were both based upon the same robbery and ... that, based on [the remand instructions], the circuit court must set aside the robbery conviction and sentence."  The State also convened a grand jury, which, on March 8, 2002, returned a three-count indictment against Peterson, charging (1) capital murder during the course of a robbery, (2) capital murder during the course of a burglary, and (3) conspiracy to commit robbery.  The State then moved to set aside both the felony-murder conviction and the robbery conviction and to nol-pros the original one-count capital-murder indictment.  Peterson objected to the dismissal of the felony-murder conviction, and moved to dismiss the March 2002 indictment.  The trial court granted the State's motions and denied Peterson's motion.  Peterson petitioned the Court of Criminal Appeals for a writ of mandamus directing the trial court to dismiss the March 2002 capital-murder indictment and to reinstate his felony-murder conviction.  The Court of Criminal Appeals denied the petition.  Peterson filed a petition for writ of mandamus with the Supreme Court seeking the same relief.  HOLDING:  The Supreme Court granted the petition.  The Court held that there was no basis on which to set aside his felony-murder conviction and that any prosecution under the March 2002 indictment violates the principle of double jeopardy. The Court held that it is beyond cavil that felony murder is an offense contemplated in the 1995 capital-murder indictment because felony murder is a lesser-included offense of the capital offense of intentional murder committed during the course of a robbery.  The Court held that because the guilty plea to felony murder was a valid plea, jeopardy attached  to the felony-murder conviction, prohibiting any further prosecution of Peterson for the murder of Eddie Allen.)
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