Opinions Released December 20, 2002

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  DECEMBER 20, 2002

 
• State of Alabama v. Howington,

Nos. 1000610, 1000611 & 1000612  (Ala. Dec. 20, 2002)
(eminent domain; affirmed without opinion; dissenting opinion by Justice Houston)
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• Exxon Corp. v. Department of Conservation & Natural Resources,

No. 1001053 (Ala. Dec. 20, 2002)
(attorney-client privilege; harmless error; statute of limitations; claims of breach of contract and fraud based on the alleged underpayment of oil-and-gas-lease royalties;  The Alabama Department of Conservation and Natural Resources ("DCNR") awarded seven oil-and-gas leases in Mobile Bay to Exxon in 1981 and fifteen more leases in 1984.  In mid-1993, when Exxon was completing construction of its infrastructure at the drilling sites in Mobile Bay and preparing to shift responsibility of the Mobile Bay project to its operations division, R.J. Mertz, Exxon's accounting manager on the Mobile Bay project, asked Exxon's in-house counsel Charles Broome to perform a legal analysis of the royalty provisions of the lease agreement "to ensure that royalties were paid in accordance with the terms of the mineral lease" and to evaluate potential areas of cost recovery for Exxon in the production and treatment process.  Broome offered three different interpretations of the lease language concerning the payment of royalties, along with the likelihood of success of each interpretation in litigation.  Using his analysis, R.J. Kartzke, the Mobile Bay project manager and Broome's chief supervisor; Mertz; and other Exxon executives adopted an interpretation of the lease and began paying DCNR royalties based upon that interpretation after production began that year.  In 1996 DCNR hired outside auditors to audit Exxon's royalty payments.  When the audit was completed, DCNR made a demand for reimbursement, plus interest, of what it alleged were millions of dollars in royalties that, it said, according to the royalty provisions in the lease agreement should have been paid but were not.  Exxon refused to pay, and DCNR officials informed Exxon that the State was planning to sue to recover the royalty payments.  Soon after, on July 28, 1999, Exxon filed a declaratory-judgment action to determine the rights of the parties under the lease agreement.  The next day, the State filed a separate action against Exxon, alleging breach of contract and fraud; it later dismissed that complaint and brought the same claims as compulsory counterclaims in Exxon's declaratory-judgment action.  The trial court granted the State's motion to realign the parties, and the State became the plaintiff and Exxon the defendant.  The jury returned a verdict in favor of the State, finding Exxon liable for breach of contract and fraudulent underpayment of royalties, awarding $87.7 million in compensatory damages and $3.42 billion in punitive damages. HOLDING:  The Supreme Court reversed the judgment and remanded the case, holding that a letter written by Exxon's in-house counsel Charles Broome was erroneously admitted into evidence because it was privileged under the attorney-client privilege.  The Court held that admission of the letter was not harmless error.  The Court declined to overrule the holding in Romar Development Co. v. Gulf View Management Corp., 644 So. 2d 462 (Ala. 1994), that a compulsory counterclaim is not subject to the defense of limitations.)
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• General Motors Corp. v. Kilgore,

No. 1002149 (Ala. Dec. 20, 2002)
(wrongful death; AEMLD; asbestos; preemption; William Austin Kilgore (hereinafter referred to as "decedent") died on June 12, 1997.  The Kilgores alleged that the decedent died of mesothelioma as a result of exposure at his workplace to products containing asbestos manufactured by the General Motors Corp. ("GMC").  The Kilgores claim that GMC breached its duty under the Alabama Extended Manufacturer's Liability Doctrine (hereinafter "the AEMLD") to provide reasonably safe products and that it breached its duty to inform the decedent of the hazards of exposure to  asbestos.  The Kilgores' claims are based on the decedent's alleged exposure to asbestos products during his employment with Norfolk Southern Railroad Company from 1941 through 1983.  The Kilgores maintain that while he was employed with Norfolk Southern the decedent was exposed to asbestos-containing components of locomotives manufactured by GMC.  GMC moved for a summary judgment on the ground that the Kilgores' claims were preempted by the Federal Locomotive Inspection Act ("FLIA").  The trial court denied the motion for a summary judgment.  The Supreme Court granted GMC permission to appeal the trial court's denial of summary judgment.  HOLDING:  The Supreme Court reversed the trial court's denial of the motion for summary judgment and rendered a judgment for GMC.  The Court held that the FLIA governs the Kilgores' state-law causes of action and, thus, the Kilgores' claims are preempted.)
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• Brown v. Pool Depot, Inc.,

No. 1011032 (Ala. Dec. 20, 2002)
(arbitration; door-closing statute, Ala. Code §10-2B-15.02; interstate commerce; A representative of Pool Depot, Inc., a Georgia corporation, approached David Brown, an Alabama resident, to solicit Brown's purchase of an aboveground pool to be installed by Pool Depot at Brown's Alabama residence.  Brown executed a contract for the purchase and installation of the aboveground pool.  That contract contained an arbitration provision. The contract also provided that the purchaser can cancel the contract within three days of execution.  About 16 days later, Brown telephoned Pool Depot to cancel the contract.  Pool Depot sent Brown a notice stating that his cancellation was not in compliance with the contract, that he owed the full purchase price, and that perjury was a serious offense.  Pool Depot also sent another document purporting to be a lien by Pool Depot against Brown's home for $9,295, the purchase price for the pool minus the $200 deposit Brown had already paid.  Brown sued Pool Depot for fraudulent inducement and "tortious attempt to collect a debt by the threat of criminal prosecution.  Brown also alleged that "Defendant does not have a Certificate of Authority to do business in Alabama and is not license[d] to do business in this State ... [, and,] [t]herefore, the contract signed by the parties is void."  Pool Depot moved to compel Brown to arbitrate his claims pursuant to the arbitration provision in the pool contract.  Brown opposed the motion on the ground that the contract and its arbitration provision were void under Alabama's door-closing statute because Pool Depot had not qualified to do business in Alabama until some months after the execution of the Brown pool contract.  Pool Depot responded that, although it was not qualified to do business in Alabama when it entered the Brown pool contract, Pool Depot, as a business engaged in interstate commerce, was protected by the Commerce Clause of the United States Constitution from the operation of Alabama's door-closing statute to void the Brown pool contract.  Pool Depot submitted as evidentiary support for this argument an affidavit from Pool Depot vice president Frank Loureire stating that the components of the aboveground pools are manufactured in other states, are shipped to Georgia for assembly, and are shipped to their final destination for installation.  Loureire stated that Pool Depot "is a national company which does business nationwide."  Loureire stated further that all monies paid to Pool Depot were deposited in an account in Atlanta, Georgia.  While Loureire expressly denied that Pool Depot had ever had any offices in Alabama, he did not deny that it had agents in Alabama.  The trial court granted the motion to compel arbitration.  HOLDING:  The Supreme Court held that because Pool Depot, a foreign corporation, was not qualified to do business in Alabama at the time Pool Depot contracted to sell and to install an aboveground pool at Brown's Alabama residence, Alabama's door-closing statute, Ala. Code §10-2B-15.02, voids the pool contract and bars Pool Depot from enforcing the pool contract and its arbitration provision.  The Court noted that an isolated contract by an unqualified foreign corporation to do localized intrastate business within Alabama is subject to Alabama's door-closing statute even though that contract may require the use of materials and equipment shipped into Alabama from out of state.  The Court reversed the judgment of the trial court and remanded the cause for the trial court to vacate its order for arbitration.)
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• Ex parte Boykins,

No. 1011152 (Ala. Dec. 20, 2002)
(criminal; habeas corpus; request to receive incentive good time;  In 1973, Gregory Boykins was convicted of first-degree murder and was sentenced to 60 years' imprisonment. In September 1974, while working on a "road camp," Boykins escaped.  He remained a fugitive from 1974 until April 1995. While on escape, Boykins pleaded guilty to another murder in Illinois. Subsequent to his return to the custody of the Department of Corrections ("DOC"), Boykins requested eligibility to earn incentive good time ("IGT").  His requests were denied by the DOC because of its determination that Boykins failed to meet the criteria for receipt of IGT. In September 2001, Boykins filed a petition for a writ of certiorari with the Bullock County Circuit Court challenging the denial by the the DOC of his request to receive IGT.   The district attorney's office filed a motion to dismiss the petition, which Boykins opposed.  The trial court characterized Boykins's petition as a petition for a writ of habeas corpus and granted the motion to dismiss.  Boykins filed a notice of appeal to the Alabama Court of Criminal Appeals.  That Court of affirmed the trial court's order of dismissal in an unpublished memorandum.  The Supreme Court granted Boykins's petition to address the question whether the Court of Criminal Appeals properly affirmed the trial court's order of dismissal where the basis of the dismissal was the trial court's treatment of Boykins's petition for a writ of certiorari as a petition for a writ of habeas corpus.  HOLDING: The Supreme Court noted that Boykins is not challenging the duration of his sentence and is not asserting that he is unlawfully imprisoned because he has completed all of the time he was sentenced to serve  The Court noted that the courts of this state have long recognized that the only purpose of the writ of habeas corpus is to afford relief against actual restraints upon liberty.  The Court held that Boykins does not have liberty interest in the DOC's ruling on his request to qualify for IGT.   The Court held that because Boykins is only challenging the propriety of the DOC's ruling on his request for IGT, the ruling of the Court of Criminal Appeals and the trial court was correct.   The Court noted that Boykins is not asserting that the DOC deprived him of IGT he had previously earned, as to which he would have a liberty interest.)
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• The Hartford Fire Ins. Co. v. Epting,

No. 1011211 (Ala. Dec. 20, 2002)
(garnishment action; prior pending action; Ala. Code §6-5-440; affirmed without opinion; dissenting opinion by Justice See)
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• Ammons v. Tesker Manufacturing Corp.,

No. 1011213 & 1011313 (Ala. Dec. 20, 2002)
(assumption of the risk; wantonness; amendment of pleadings; workers' compensation; Ronald Ammons was injured during the course of his employment with Vulcan Threaded Products ("Vulcan"), Ammons's former employer.  At the time of the injury, Ammons was operating a "thread-rolling machine" (the "threader"), a component part of which was manufactured by  Tesker Manufacturing Corporation ("Tesker").   Wausau Insurance Company ("Wausau") , Vulcan's workers' compensation insurer, paid benefits on behalf of Vulcan.  Wausau (and formally, Ammons) sued Tesker seeking reimbursement, pursuant to Ala. Code 1975, § 25-5-11(d), of the benefits it paid.  The complaint alleged that the threader was defectively designed and manufactured and included claims of negligence, wantonness, failure to warn, breach of warranty, and breach of the Alabama Extended Manufacturer's Liability Doctrine.  Tesker answered the complaint, asserting various affirmative defenses, including contributory negligence.  It did not, however, assert the defense of assumption of the risk.  At trial at the close of the plaintiffs' case-in-chief, Tesker moved, over Wausau's objection, to amend its answer to assert the affirmative defense of assumption of the risk.  The trial court granted that motion, stating that it would allow Wausau to "reopen its case," if it "need[ed] to put on additional evidence."  Wausau did not exercise that option. Tesker also moved for a judgment as a matter of law ("JML") as to Wausau's wantonness-based claims.  The trial court also granted that motion.  Additionally, Tesker moved for a JML on all other claims, contending that they were barred by the statute of limitations.  That motion was denied.  Over Wausau's objections, the court charged the jury on the affirmative defense of assumption of the risk.  The jury returned a verdict for Tesker, and the trial court entered a judgment on that verdict.  Wausau moved for a new trial, and renewed its challenge to the jury charge on the assumption-of-the-risk defense.   The trial court denied Wausau's motion.  Wausau appealed.  HOLDING:  The Supreme Court affirmed.  The Court held that Wausau produced no substantial evidence of wantonness and that the trial court did not err in granting Tesker's motion for a JML on the wantonness-based claims.  The Court concluded that Wausau failed to demonstrate that it was prejudiced by the amendment to add the defense of assumption of the risk, and it held that the trial court did not abuse its discretion in allowing the amendment.)
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• Potts v. Baptist Health Sys., Inc.,

No. 1011234 (Ala. Dec. 20, 2002)
(arbitration; employment; interstate commerce; unconscionability; Caroline Edwards Potts, a registered nurse and a former employee of Walker Regional Medical Center, Inc., sued Baptist Health System, Inc. (hereinafter referred to as "BHS"), Walker Regional Medical Center, Inc., and other individual defendants, alleging breach of contract, defamation, intentional infliction of emotional distress, invasion of privacy, and wrongful termination.  Potts's claims arose from the termination of her employment with Walker Regional Medical Center, Inc., d/b/a Walker Baptist Medical Center (hereinafter referred to as "Walker Medical").  In response to Potts's complaint, BHS and Walker Medical (hereinafter jointly referred to as "the defendants") filed a motion to stay the proceedings and to compel arbitration pursuant to the arbitration provision contained in a document entitled "Dispute Resolution Program" provided by BHS to Potts.  The trial court granted the motion to compel arbitration and dismissed the case.  HOLDING: The Supreme Court concluded that the defendants showed that their employment relationship with Potts had a substantial effect upon interstate commerce.  The Court also concluded that the arbitration provision was not unconscionable.  Thus, the Court affirmed the trial court's order compelling arbitration.)
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• Wenger Tree Service v. Royal Truck & Equipment, Inc.,

No. 1011373 (Ala. Dec. 20, 2002)
(personal jurisdiction; Wenger Tree Service, an Alabama sole proprietorship engaged in the business of tree removal, sued the defendant Royal Truck & Equipment, Inc. ("Royal"), a Pennsylvania corporation engaged in the business of acquiring, refurbishing, and selling specialized trucks used by landscapers and arborists. Wenger sought specific performance of Royal's alleged contractual obligation "to deliver properly endorsed legal title to" a specialized truck bought and received by Wenger from Royal.  Royal moved to dismiss Wenger's action for lack of personal jurisdiction.  After a hearing, the trial court granted Royal's motion to dismiss.  HOLDING:  The Supreme Court reversed.  The Court held that Royal has sufficient contacts with the State of Alabama because Royal is or may be legally responsible as a consequence of Royal's transacting any business in this state or contracting to supply services or goods in this state in that (1) Royal, on two separate occasions, sold trucks directly to Wenger, (2) Royal customized the trucks to meet Wenger's  particular specifications, (3) Royal negotiated the details of the customization directly with Wenger, (4) Royal negotiated the price and terms of the sale directly with Wenger, (5) Royal negotiated the terms of Wenger's trade-in directly with Wenger, and (6) Royal shipped the trucks directly to Wenger.)
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• Ex parte Stewart,

No. 1011381 (Ala. Dec. 20, 2002)
(criminal; Sixth Amendment right to counsel at initial appearance under Ala.R.Crim.P. 4.4; In April 1999, four men robbed Harry Sansom and James Hartley at gunpoint.  Jerry Dwight Stewart was identified as a suspect in the robbery.  An arrest warrant, in which an appearance bond in the amount of $25,000 was set, was issued for Stewart.  Stewart was arrested in Portland, Oregon, and was extradited to Alabama. At the initial appearance, the court informed Stewart of the charges against him, of his right to representation by counsel, of his right to remain silent, and of his right to a preliminary hearing.  During the initial appearance, Stewart completed an affidavit of substantial hardship.  On the form, however, Stewart did not indicate that he was "financially unable to hire an attorney" and did not "request that the Court appoint one for [him]."  The district court entered an order appointing an attorney from the public defender's office to represent Stewart.  Stewart was unable to post bail, and he remained incarcerated in the Tuscaloosa County jail.  Before Stewart's preliminary hearing, two officers interviewed Stewart at the jail.  The officers, unaware that counsel had been appointed for Stewart on the day of the initial appearance, informed Stewart of his Miranda rights.  Stewart did not request an attorney; he signed a waiver of his rights and talked with the officers.  Stewart did not invoke his right to counsel at any time during the interview.  Stewart provided the officers with a written confession.  Stewart was indicted and was charged with first-degree robbery.  Before his trial, Stewart filed a motion to suppress his confession because, he said, his Sixth Amendment right to counsel was violated when the officers interviewed him without his counsel being present.  The trial court denied Stewart's motion to suppress and admitted his written confession into evidence.  The Court of Criminal Appeals affirmed the judgment of the trial court, holding that Stewart's Sixth Amendment right to counsel had not attached before his interview with the officers because adversarial proceedings had not begun.  HOLDING: The Supreme Court affirmed.  The Court held that an initial appearance conducted pursuant to Rule 4.4, Ala.R.Crim.P. is not a "critical stage" of the criminal process that triggers the Sixth Amendment right to counsel.  The Court reasoned that the Sixth Amendment right to counsel attaches only after the commencement of adverse judicial criminal proceedings against the defendant, and because an initial appearance is an informational proceeding designed to protect the rights of the accused and does not constitute a "critical" pretrial proceeding, the right to counsel does not attach at that time.)
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• Ex parte Vaughn,

No. 1011416 (Ala. Dec. 20, 2002)
(criminal; evidence regarding prior "bad acts"; Elvin Ray Vaughn was indicted by a Lauderdale County grand jury on three counts of attempted murder and three counts of assault in the second degree.  Vaughn pleaded not guilty and not guilty by reason of mental disease or defect on all counts.  At trial, the State's expert, Dr. Alwyn Whitehead, also a psychologist, stated in a colloquy with the judge outside the presence of the jury, that Vaughn's prior bad acts were important to his determination of Vaughn's mental state at the time of the incident.  Counsel for Vaughn objected to the proposed admission of testimony of Vaughn's prior bad acts, arguing that the prejudicial effect of informing the jury of the prior acts substantially outweighed the probative value.  The trial court allowed Whitehead to testify as to the importance of Vaughn's prior bad acts, after giving a limiting instruction to the jury.  Dr. Whitehead discussed an incident that occurred during the 1980s, while Vaughn was living in Illinois, when he shot an ex-girlfriend as she climbed into the window of his house at night, not knowing who she was.  Dr. Whitehead stated that while Vaughn was serving in the United States Army, he shot a man who allegedly had attempted to stab him during a card or dice game, for which he was convicted of manslaughter.  Dr. Whitehead concluded that Vaughn did suffer from a paranoid personality; however, Dr. Whitehead also expressed the opinion that at the time of the shooting at the plant Vaughn was not suffering from symptoms of a major mental illness that would have prevented him from understanding the wrongfulness of his criminal acts.  At the close of the trial, and before the jury began deliberations, the trial judge again explained to the jury the limited purpose for which Vaughn's prior acts could be considered.  The jury convicted Vaughn of one count of attempted murder and two counts of assault in the third degree.  The trial court sentenced him to 25 years' imprisonment for the attempted-murder conviction and 12 months' imprisonment for each assault conviction, the sentences to be served concurrently, and imposed monetary sanctions.  Vaughn appealed to the Alabama Court of Criminal Appeals challenging the trial court's admission of evidence regarding prior "bad acts" on the ground that the prejudicial effect of that evidence substantially outweighed its probative value.  That court affirmed the trial court's decision. HOLDING:  The Supreme Court reversed.  The Court held that allowing the jury to hear testimony that before the shooting in this case Vaughn had shot two other persons was error because the prior acts committed by Vaughn occurred many years before the act at issue, the State presented no evidence to indicate any correlation between those prior acts and Vaughn's state of mind at the time of the shooting at issue, and the choice made by Vaughn not to testify was jeopardized by the admission of his prior acts, which, in effect, testified against him.  The Court held that Vaughn did not "open the door" for the State to present evidence of prior acts to rebut his defense of not guilty by reason of insanity because the State presented nothing to indicate that the prior acts committed by Vaughn were relevant to his mental state during the shooting that occurred at his workplace many years later.  The Court concluded that the limiting instruction did not cure the error.  The Court held that the probative value of the evidence of the prior bad acts was substantially outweighed by its prejudicial effect.)
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• Wood v. Wade,

No. 1011473 (Ala. Dec. 20, 2002)
(Ala.R.Civ.P. 60(b)(6);  Claude Wood and Camille Witt were the victims of an attack that occurred at a Taco Mac Restaurant in Birmingham.  Wood and Witt sued C.F.J.J. Restaurant II, L.L.C., d/b/a Taco Mac Restaurant ("Taco Mac"), and two bartenders, James Wade and Douglas McGary. Taco Mac filed an answer through its attorneys, Larry W. Harper and Neal D. Moore III; Wade answered pro se.  Later, Harper and Moore became the attorneys of record for Wade, and they later withdrew as attorneys for Taco Mac.  Moore remained as attorney for Wade. However, after September 2000, the Jefferson Circuit clerk's office erroneously listed Wade as a pro se defendant; as a result, Moore received no further correspondence from the court regarding the case.  Trial was set for February 12, 2001, but neither Wade nor Taco Mac appeared for trial.  Default judgments were entered against both of them and damages of approximately $600,000 were awarded against them jointly and severally.  Moore (Wade's attorney) and J. Flint Liddon (Wood and Witt's attorney) jointly filed a Rule 60(b), Ala.R.Civ.P., postjudgment motion to set aside the default judgment against Wade.  the trial court granted the motion and dismissed Wade from the action with prejudice. Thus, after September 2001, the only judgment debtor was Taco Mac.  In December 2001, D. Benjamin Traylor became Wood and Witt's attorney of record.  Traylor filed a "Verified Motion For Relief Under Rule 60(b)" to have the order on the joint Rule 60(b) motion set aside, in effect seeking to have Wade reinstated as a defendant and the default judgment against him reentered. The court denied this second Rule 60(b) motion.  Wood and Witt appealed and raised two issues: (1) whether the trial court's September 26, 2001, order setting aside the default judgment against Wade and dismissing him from the case with prejudice was erroneous, and (2) whether the trial court abused its discretion in entering its March 4, 2002, order denying Wood and Witt's Rule 60(b) motion.  HOLDING: The Supreme Court held that Wood and Witt's appeal as to the September 2001 order setting aside the default judgment could not be considered by the Court because it was not from an adverse ruling.  The Court explained that only adverse rulings are appealable.  The Court held that the denial of the second Rule 60(b) motion was not an abuse of discretion because Wood and Witt showed no "exceptional circumstances" which entitle them to relief under Rule 60(b)(6).) 
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• Ex parte Wilson,

No. 1011505 (Ala. Dec. 20, 2002)
(venue; forum non conveniens; Julia Wilson, who at the time of her death was a resident of Wilcox County, received medical treatment at Selma Baptist Hospital in Dallas County.  At some point during a surgical procedure, her esophagus was perforated.  She remained hospitalized for three days in Selma and was then transferred to the University of Alabama Medical Center in Jefferson County, where she died 16 days later on August 1, 1999.  Curtis Wilson, as administrator of his wife's estate, filed a medical-malpractice action in the Wilcox Circuit Court against the doctors and nurse-anesthetists involved in the decedent's medical care in Dallas County and the doctors involved in the decedent's medical care in Jefferson County.  Several defendants filed a motion to transfer the case to the Dallas Circuit Court on the basis of forum non conveniens.  The trial court granted the motion for a change of venue.  Wilson filed a petition for a writ of mandamus ordering the trial court to vacate its order transferring this case from Wilcox County to Dallas County.  HOLDING:  The Supreme Court granted the writ of mandamus and ordered the trial court to vacate its order transferring venue to Dallas County.  The Court noted that the text of Ala. Code §6-5-546 clearly requires that in a wrongful-death action where the malpractice is alleged to have occurred in more than one county, "the action must be brought" in the county wherein the plaintiff's decedent resided at the time of the act or omission.  Thus, the Court held that venue for this action at the time it was filed was proper only in Wilcox County, where the decedent resided at the time of her death.)
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• Jim Walter Homes, Inc. v. Spraggins,

No. 1011659 (Ala. Dec. 20, 2002)
(arbitration; fraudulent inducement; Brian Spraggins and Jennifer Spraggins entered into a contract for the purchase of a house from Jim Walter Homes, Inc. ("JWH"), to be constructed on property the Spragginses owned.  A.L. Richardson, an agent and employee of JWH, conducted most of the transaction on behalf of JWH.  The contract of purchase includes a paragraph that incorporates an attached arbitration agreement.  The Spragginses alleged in their affidavits that A.L. Richardson told them that "arbitration was where if we had a dispute with Jim Walter Homes then we would discuss it with the Construction Manager.  If the Construction Manager cannot resolve the problem, then we would go to the district level and then to the regional level.  If the problem cannot be resolved by that time, then we would go to court."  After becoming dissatisfied with their home, the Spragginses sued JWH and others.  The defendants moved to compel arbitration, and the trial court denied that motion.  HOLDING: The Supreme Court reversed.  The Court held that the trial court erred in denying the motion to compel  arbitration.  The Court held that the Spragginses' claim of fraud in the inducement fails as a matter of law, based on the facts in this case, on the ground that the Spragginses could not have reasonably relied on the alleged misrepresentation of A.L. Richardson.)
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• Wal-Mart Stores, Inc. v. Anniston Development Co.,

No. 1012070 (Ala. Dec. 13, 2002)
(statute of limitations; money had and received; action for money due by open or unliquidated account; action on the written lease agreement; Wal-Mart Stores, Inc., appeals from a summary judgment entered in favor of Anniston Development Company ("ADC") in an action to recover overpayment of rent, pursuant to a lease between Wal-Mart, as lessee, and ADC, as lessor.  The overpayment was made more than three years before this action was filed.  The written lease agreement required Wal-Mart to pay a base rent plus a "percentage rent"; that percentage was calculated annually by multiplying Wal-Mart's "gross sales," a term that was specifically defined in the lease, by 1.5%.  The lease agreement provided that the amount of the base rent would then be deducted from that amount to determine the percentage rent and that if Wal-Mart replaced any mechanical equipment originally installed on the premises by ADC Wal-Mart would receive a credit against the percentage rent for the unamortized costs of the mechanical equipment.  On October 31, 1992, Wal-Mart paid ADC $176,502.11 as the percentage rent for the lease period ending on that date.  Wal-Mart failed to deduct from the percentage rent for the lease period ending October 31, 1992, all or a portion of the base rent it had paid that year.  ADC argued that the three-year statutory period of limitations for an action for money due by open or unliquidated account (Ala. Code §6-2-37(1)) had expired.  Wal-Mart contends that this is an action for money had and received, which is governed by the six-year statute of limitations or an action on the written lease agreement, which is also governed by the six-year statute of limitations.  HOLDING:  The Supreme Court reversed.  The Court held that this was not an action on an open and unliquidated account because an open and unliquidated account is one where a provision of the contract is left open for further negotiations, but lease contract between Wal-Mart and ADC was fixed and settled in all its terms in that Wal-Mart and ADC are fully bound by the price as set out in the terms of the contract, gross sales are fully defined in the lease, the percentage of gross sales to be paid as percentage rent is fully defined in the lease, the base rent is fully defined in the lease, the manner in which the base rent is deducted from the percentage rent is fully defined in the lease, and the method by which Wal-Mart could receive a credit against the percentage rent for the unamortized costs of replaced mechanical equipment was fully set out in the lease.  The Court held that Wal-Mart is seeking to recover money had and received by ADC because of Wal-Mart's mistake in allegedly overpaying ADC the rental it owed ADC for the fiscal year ending October 31, 1992, and therefore, this action is not barred by Ala. Code §6-2-37(1).)
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Opinions Released December 13, 2002

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  DECEMBER 13, 2002

 
• Southern Bakeries, Inc. v. Knipp,

No. 1010743 (Ala. Dec. 13, 2002)
(asbestos exposure; recovery for fear of developing physical injuries or disease; Ray Knipp was assigned the job of removing an old oven and installing the new one.  Ray Downey, the president of Southern Bakeries, Inc. ("SBI") told Knipp that if Knipp could find someone to buy the old oven, he would pay Knipp a percentage of the sales price.  Knipp claims that he asked Downey at that time whether an environmental study had been performed on the oven.  Knipp also claims that he told Downey that in order for Knipp to be able to find a buyer, the study would have to show that the oven was toxin free.  Knipp was told that the test results indicated that the oven was free of asbestos.  Knipp claims that he asked Downey for the report, and that Downey provided Knipp with a five-page document that stated that no asbestos had been detected in the oven.  Knipp became skeptical about Downey's representations that the oven was free of asbestos.  In July 1996, Knipp had tests conducted on samples of the insulation around the oven that he took when he removed it.  The tests indicated that the oven's insulation contained asbestos.  Knipp claims that Downey admitted that the report he gave Knipp was inaccurate in its representation that the oven contained no asbestos.  On December 2, 1998, Knipp sued SBI.  In an amended complaint, David Branyon joined the action as a plaintiff. Branyon had helped Knipp remove the oven.  Knipp and Branyon alleged (1) negligent or wanton  failure to warn them that the oven contained asbestos;  (2) fraudulent suppression; (3) negligent, reckless, or intentional representation; and (4) negligent or wanton failure to train employees, namely, Ray Downey.  In each count, Knipp and Branyon sought compensation for "extreme emotional distress and mental anguish," on the ground that because of their exposure to asbestos in removing the oven they "are at a greater risk of developing lung cancer and other diseases of the lungs in the future."  SBI moved for a summary judgment. the trial court entered a summary judgment for SBI as to "any claims by [Knipp and Branyon] that they are more likely than not to develop lung cancer almost three decades later."  However, the trial court denied SBI's summary-judgment motion "to the extent that [Knipp and Branyon's] causes of action arise from the present damage."  The Supreme Court granted SBI permission to appeal.  HOLDING:  The Supreme Court noted that Alabama has long required a manifest, present injury before a plaintiff may recover in tort.  The Court noted that fear is a real phenomenon and can be debilitating, but based on the evidence presented in this case the Court concluded that Knipp and Branyon have not suffered any legally cognizable present injury.  The Court concluded that opening the courts generally for compensation for fear of future disease would be a dramatic change in the law and could engender significant unforeseen and unforeseeable consequences.  The Court held that Knipp and Branyon's cause of action has not accrued because they have not proven that they suffered from mental anguish or emotional distress as a result of SBI's conduct.  The Court reversed the trial court's order insofar as it denied SBI's summary-judgment motion.)
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• Cook's Pest Control, Inc. v. Rebar,

No. 1010897 (Ala. Dec. 13, 2002)
(arbitration; Cook's Pest Control entered into a one-year renewable "Termite Control Agreement" with Robert Rebar and Margo Rebar.  Under the agreement, Cook's Pest Control was obligated to continue treating and inspecting the Rebars' home for termites during the term of the agreement, which, with certain limited exceptions, continued so long as the Rebars continued to pay the annual renewal fee.  The agreement contained a mandatory, binding arbitration provision.  When the initial term of the agreement was about to expire, Cook's Pest Control notified the Rebars and requested that they renew the agreement for another year by paying the renewal fee.  On August 16, 2001, Mrs. Rebar submitted a payment to Cook's Pest Control; with the payment she included an insert entitled "Addendum to Customer Agreement" (hereinafter referred to as "the addendum").  That addendum provided, in part: "Notwithstanding prior amendments, nothing herein shall limit Customer's right to seek court enforcement (including injunctive or class relief in appropriate cases) nor shall anything herein abrogate Customer's right to trial by jury.  Arbitration shall not be required for any prior or future dealings between Cook's [Pest Control] and Customer."  The addendum also provided: "Cook's [Pest Control] agrees that any future amendments to the Customer Agreement shall be in writing and signed by Customer and [an] authorized representative of Cook's [Pest Control]."  The addendum further provided: "Continued honoring of this account by you acknowledges agreement to these terms.  If you do not agree with all of the terms of this contract, as amended, you must immediately notify me of that fact."  After it received the addendum, Cook's Pest Control negotiated the Rebars' check and continued to perform termite inspections and services at the Rebars' home.  On August 30, 2001, just two weeks after it sent the addendum, the Rebars filed this action against Cook's Pest Control for fraud, negligence, breach of contract, breach of warranty, breach of duty, unjust enrichment, breach of the duty to warn, negligent training, supervision and retention of employees, and bad-faith failure to pay and bad-faith failure to investigate a claim.  Those claims were based upon Cook's Pest Control's alleged failure to treat and control a termite infestation in the Rebars' home and to repair the damage to the home caused by the termites.  Cook's Pest Control moved to compel arbitration of the Rebars' claims.  The Rebars opposed the motion to compel arbitration, asserting, among other things, that a binding, mandatory arbitration agreement no longer existed.  The trial court denied Cook's Pest Control's motion to compel arbitration.  HOLDING: The Supreme Court rejected Cook's Pest Control's argument that the Rebars were attempting unilaterally to modify an existing contract.  The Court held that the Rebars did not accept the terms proposed by Cook's Pest Control for renewal of the agreement but instead proposed terms for the renewal of that contract that were materially different from the terms of the agreement.  The Court also rejected Cook's Pest Control's argument that the addendum had no effect upon the renewal of the agreement because none of the employees in the office where the Rebars' payment was processed had the authority to enter into a contract on behalf of Cook's Pest Control.  The Court noted that if Cook's Pest Control wished to limit the authority of its employees to enter into contracts on its behalf, Cook's Pest Control, as the drafter of the original agreement, could have included such limiting language in the agreement.  The Court concluded that Cook's Pest Control's external and objective actions evidenced assent to the Rebars' proposed modifications.  The Court affirmed the denial of the motion to compel arbitration.)
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• Mt. Carmel Estates, Inc. v. Regions Bank,

No. 1011357 (Ala. Dec. 13, 2002)
(foreclosure; duty of fairness and good faith; Regions Bank foreclosed on a mortgage given as security for a promissory note executed on May 12, 1999, in the amount of $2,000,000 by Mt. Carmel Estates, Inc. ("Mt. Carmel"), and guaranteed by Charles M. Sisco, David Wall, Mychiallyn Wall, and Myron Wilson (hereinafter referred to collectively as "the guarantors").  At the foreclosure sale, Regions Bank, the only bidder, bid $1,242,000, an amount less than the unpaid balance on the note, creating a deficiency.  A July 24, 2000, appraisal valued the property at $1,530,000.  Regions Bank sued Mt. Carmel and the guarantors to collect the deficiency and demanded a judgment against the defendants, jointly and severally, for the sum of $375,122.16, attorney fees in the amount of $30,000, and interest "at the Index rate plus .50% until paid [in] full and costs."  After the defendants answered, Regions Bank filed a motion for a summary judgment.  The trial court entered a summary judgment in favor of Regions Bank, and against Mt. Carmel and the guarantors, with the exception of Myron Wilson, who had entered into a pro tanto release before the judgment was entered. HOLDING:  The Supreme Court affirmed the summary judgment.  The Court held that Regions Bank's bid of $1,242,000 was not so low as to shock the conscience.)
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Opinions Released December 6, 2002

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  DECEMBER  6, 2002

 
• Alabama Power Co. v. Aldridge,

No. 1010969 (Ala. Dec. 6, 2002)
(workers' compensation; retaliation; Kevin Aldridge worked for Alabama Power Company ("APCo") from 1978 until 1998.  Aldridge alleged that in May 1996 he injured his neck on the job; he underwent surgery to correct this injury.  As a result of that injury, Aldridge made a claim for workers' compensation benefits.  From May 1996 to January 1997, Aldridge did not work because of his injury and subsequent recovery from surgery.  When he returned to work in January 1997, APCo placed Aldridge in its customer-service center.  Aldridge left the position after three days, claiming that he experienced severe pain from sitting all day.  Aldridge then applied for and received long-term disability benefits.  During this period, Aldridge started his own "car-hauling business."  The business ultimately failed, a fact APCo claims caused Aldridge to cooperate with its efforts to find him physically suitable employment.  In November 1997, almost one and one-half years after his neck injury, Aldridge accepted APCo's offer of a meter-reader position in Fort Deposit.  On December 2, 1997, Aldridge began training for the job.  Three days later, Aldridge injured his knee.  Aldridge claims that the injury occurred while he was on his meter-reading walking route.  Aldridge sought medical attention for his injury, and APCo would not let him return to work without medical clearance.  His doctor cleared him to return to work on January 21, 1998.   Aldridge began working as a part-time driver for Material Delivery Service, Inc. ("MDS"), during the period that he was not medically cleared to return to work at APCo.  Aldridge's job at MDS required him to work long hours and sometimes required work that appeared to be outside the physical limitations placed on him by his doctor after his knee injury.  Aldridge never told APCo that he was working for MDS; when  the doctor cleared him to work and he began to work for APCo again in January, he continued to work at MDS.  On January 21, 1998, Aldridge returned to his work as a meter reader.  The next day, Aldridge did not appear for work.  He claims that his knee was hurting when he woke up and that he attempted to call in sick.  Aldridge told APCo of his knee injury, and Aldridge was instructed to report for a fitness-for-duty examination.  On January 28, 1998, Aldridge was cleared to return to his meter-reader position.  During his absence from APCo, Aldridge continued to work for MDS.  Aldridge returned to work at APCo on January 29.  On February 9, 1998, Aldridge telephoned his supervisor to ask for the day off, stating that his son had wrecked one of Aldridge's automobiles the day before and that he needed to take it to get an estimate for the repairs.  The supervisor agreed to allow Aldridge to take the day off, and Aldridge received the day off without pay. Aldridge worked for MDS that day from 12:30 to 9:30 p.m.  Aldridge missed another day of work and left a message stating that the roof of  his house had been damaged by a storm, but after an investigation APCo found that Aldridge had lied about some of the information he had given concerning why he missed work.  APCo then decided to investigate a previous absence when he had claimed he had to deal with getting a wrecked car repaired.  APCo then learned that Aldridge was working for MDS.  Thereafter, Aldridge was told that he was being discharged for making misrepresentations, for failing to properly report his absences, and for failing to maintain proper attendance.  Aldridge sued APCo, asserting claims of retaliatory discharge, invasion of privacy, intentional infliction of emotional distress, and tortious interference with a business relationship.  APCo filed a motion for a summary judgment as to all of Aldridge's claims.  The trial court entered a summary judgment in favor of APCo as to all but Aldridge's retaliatory-discharge claim.  After a trial, the jury returned a verdict in favor of Aldridge in the amount of $500,000--$250,000 in compensatory damages and $250,000 in punitive damages.  The trial court denied all of APCo's posttrial motions. HOLDING:  The Supreme Court held that Aldridge did not establish a prima facie case of retaliation.  The Court noted that because APCo discharged Aldridge approximately two years after he filed his workers' compensation claim, there was insufficient temporal proximity to establish a prima facie causal connection between the workers' compensation claim and the subsequent discharge.  The Court held that "where a conclusive determination can be made that retaliation is not the sole basis for the discharge a judgment as a matter of law is appropriate."  The Court held that a plaintiff, therefore, has the burden of presenting sufficient evidence indicating that  the plaintiff was discharged because he or she filed a claim for workers' compensation benefits, but if there is uncontradicted evidence of an independently sufficient basis for the discharge then the defendant is entitled to a judgment as a matter of law.  The Court held that APCo presented undisputed evidence supporting one of its legitimate reasons for discharge--that Aldridge made misrepresentations concerning his absence on February 17 in order to make repairs to his roof -- and, consequently, Aldridge failed to present substantial evidence that APCo discharged him solely because he instituted or maintained an action against the employer to recover workers' compensation benefits.  Thus, the Court found it is unnecessary to address whether other aspects of Aldridge's proof would constitute a prima facie case of causation. The Court reversed the trial court's order denying APCo's motion for a JML at the close of the evidence and remanded the case for the trial court to enter a judgment in favor of APCo as a matter of law.)
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• Stevens v. Phillips,

No. 1010976 (Ala. Dec. 6, 2002)
(arbitration; interstate commerce; standing to enforce the arbitration agreement by an employee of the party to the agreement when the employee is the only defendant; Susan A. Stevens purchased a manufactured home from Southern Investment Corporation d/b/a Southern Homes, Inc. ("Southern Homes").  At the time Stevens purchased the manufactured home, she executed at least two arbitration agreements.  Stevens was dissatisfied with the condition of the home, and she sued only the salesperson after Southen Homes filed a demand for arbitration with the American Arbitration Association.  Stevens, although not naming Phillips's employer, Southern Homes, as a party, nevertheless included allegations relating to Southern Homes in two counts of her complaint.  Phillips filed a motion to compel arbitration.  Stevens was a resident of Alabama at the time of the sale and that Southern Homes was an Alabama corporation, and that the defendant, Uta Phillips, was the general sales manager of Southern Homes and was also the salesperson of the manufactured home that Stevens bought.  Indies House Manufactured Homes, the manufacturer of the home, was an Alabama corporation, and the home was manufactured in Hackleburg, Alabama, although there was evidence indicating that many of the materials used in the construction of the manufactured home came from out-of-state.  In an affidavit submitted in support of her motion, Phillips stated that Stevens's purchase of the manufactured home "was financed through Green Point Credit Company, which is headquartered in Cincinnati, Ohio,"  and that "[t]he actual sales documents and credit approval came from Green Point Credit in Pensacola, Florida."  Phillips also filed an affidavit made by Tony Capasso, the controller for Indies House Manufactured Homes, who stated that, based upon the records of the company, "the home purchased by Ms. Stevens would be constructed with materials purchased and paid for through Interstate Commerce in excess of $14,000."  The trial court ultimately granted the motion to compel arbitration.  HOLDING:  The Supreme Court affirmed.  The Court found that Stevens's claims against Phillips arise out of representations allegedly made by Phillips, while she was acting as an agent within the line and scope of her employment with Southern Homes; therefore, the Court held that under the circumstances presented by this case, Phillips "stands in the shoes" of her principal.  The Court also held that the evidence was sufficient to show that the transaction substantially affected interstate commerce.)
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• Dickerson v. Alabama State Univ.,

No. 1011053 (Ala. Dec. 6, 2002)
(final judgment; appellate jurisdiction; After being fired from his position as head football coach at Alabama State University ("ASU"), Ronald Dickerson sued ASU, the president of ASU, and various members of the ASU Board of Trustees.  The defendants filed a motion to dismiss on grounds of sovereign and state-agent immunity.  The trial court granted the motion except to a portion of one count seeking equitable relief.  The trial court did not certify the dismissal as final under Ala.R.Civ.P. 54(b).  Dickerson appealed. HOLDING:  The Supreme Court dismissed the appeal.  The Court held that because there was no final judgment, it lacked jurisdiction.
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• Ex parte Thomas,

No. 1011421 (Ala. Dec. 6, 2002)
(criminal; search and seizure; petition for writ of certiorari quashed without opinion; dissenting opinion by Justice Houston, joined by Justice Johnstone)
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• Holman v. Childersburg Bancorporation,

No. 1011756 (Ala. Dec. 6, 2002)
(Statute of Frauds; real estate; Danita Kim Holman and her husband, D. Mark Holman borrowed $275,000 from the First Bank of Childersburg ("the Bank") in connection with the purchase of approximately 16 acres of real property.  The loan was secured by a mortgage on that property.  Subsequently, the original 16-acre tract was subdivided into three tracts --tract I, tract II, and tract III.  The Holmans allege in their complaint that in 1997 they and Henry reached an oral agreement regarding the disposition of some of the property.  Under the alleged agreement, the Holmans would sell tract I.  The parties agree that a portion of the sale proceeds were to be paid to the Bank to satisfy the mortgage on tract I.  The Holmans allege that the Bank also agreed -- in exchange for $175,000 of the purchase price of tract I -- to execute an instrument releasing tract II from the mortgage lien, to enable the Holmans to obtain a construction loan to build a residence on tract II.  tract I was sold, and the Holmans paid the Bank  $175,000.  On May 7, 1997, the Bank executed a "Partial Release," releasing tract I from the mortgage lien.  Subsequently, the Holmans began constructing a house on tract II.  However, title searches conducted revealed to the Holmans that no mortgage release had been recorded as to tract II.  In December 2000, the Holmans sued the Bank, Childersburg Bancorporation, Inc., and Byron Louie Henry, an officer of the Bank alleging (1) breach of a contract to release tract II from the mortgage lien, (2) negligence/wantonness, (3) fraudulent misrepresentation, (4)  fraudulent suppression, (5) slander of title, and (6) civil conspiracy.  The trial court entered summary judgment for the defendants on grounds of Statute of Frauds as to the contract claim and statute of limitations as to the tort claims.  HOLDING:  The Supreme Court affirmed the summary judgment.  The Court held that the contract claim was barred by the Statute of Frauds and rejected the plaintiffs' argument that the defendants were estopped from denying the oral agreement and that there had been partial performance.  The Court held that the tort claims were also barred by the Statute of Frauds, because all of the tort claims depended upon the existence of an oral contract.)
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• Ex parte Wood,

No. 1011916 (Ala. Dec. 6, 2002)
(sovereign immunity; state-agent immunity; E.L., a minor child, by and through his next friend, Sharon Love, on behalf of himself and all others similarly situated, sued J. Walter Wood, Jr., executive director of the Department of Youth Services ("the Department"), and other fictitiously named defendants, on theories of negligence and wantonness, seeking damages as a result of Wood's alleged failure to provide adequate educational programs for children  committed to the Department's facilities.  E.L. was adjudicated a delinquent and was placed at the Vacca campus operated by the Department.  E.L. alleges that he and other class members at the Vacca campus have not received the curriculum and course of study mandated by State law.  He states that he attends school for only two hours each school day, as opposed to the six hours required by Ala. Code §16-1-1 and Rule 290-3-1-.02 of the Alabama State Department of Education.  E.L. claims that during those two-hour classes he has received no educational instruction and that, instead, he and his classmates watch movies during class time at the Vacca campus.  E.L. sued Wood, "in his individual capacity as Director" of the Department, seeking to represent all individuals committed to the custody of the Department and placed at the Vacca campus from February 12, 2000, to the present.  E.L. is seeking compensatory and punitive damages, attorney fees, and costs.  E.L. contends that Wood is personally responsible for providing and implementing appropriate educational opportunities required by State law for those individuals committed to the custody of the Department.  E.L. argues that Wood acted in bad faith by willfully denying E.L. and his class members "equitable and adequate" educational programs.  Wood sought to stay discovery in the trial court, or, alternatively, to limit discovery to those issues relating to his immunity from liability and/or class-action certification.  E.L. filed a response along with a motion to compel production.  Wood filed a motion for a summary judgment; the motion was supported by his own affidavit.  Wood argued that he was entitled to State or State-agent immunity.  The trial court denied Wood's motion for a summary judgment and questioned how it could consider the motion based on the information before it without allowing further discovery.  Wood then filed his mandamus petition.  HOLDING: The Supreme Court denied the petition for writ of mandamus.  The Court noted that, although Wood's affidavit states the issues in terms that would lead to the conclusion that he falls under the immunity from liability set forth in Cranman, Wood fails to provide any significant facts relating to his personal involvement in the actions giving rise to the claims asserted against him.  The Court held that Wood failed to present facts sufficient to determine whether his conduct entitles him to the defense of State-agent immunity. Based upon the inadequacy of the materials before the Court, it found no abuse of discretion in the trial court's deferral of resolution of the issue of State or State-agent immunity until E.L. has completed further discovery limited to the issue of immunity.)
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• Ex parte Dallas,

No. 1961457 (Ala. Sept. 9, 2002)
(criminal; capital murder; note from the reporter of decisions;  On September 9, 2002, the Supreme Court of Alabama issued an order setting an execution date for Donald Dallas.  Justice Johnstone issued a special writing dissenting from the order setting the execution date while Dallas's petition for federal habeas corpus relief is pending in federal court.  Justice Johnstone noted that the timeliness of the federal habeas corpus petition was a matter for the federal courts and stated that the ineffective assistance of counsel claims in the federal habeas corpus petition seem worthy of consideration if the federal court can reach the merits.)
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• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  NOVEMBER 27, 2002

 
• Lee L. Saad Constr. Co. v. DPF Architects, P.C.,

No. 1010505 (Ala. Nov. 27, 2002)
(construction contract dispute; res judicata; collateral estoppel; arbitration; The Baldwin County Board of Education (the "Board") sued Lee L. Saad Construction Co. ("Saad Construction") and one of its suppliers, Jim Boothe Contracting & Supply Company ("Boothe Contracting"), seeking a declaratory judgment as to the rights and obligations of the parties under the construction contract and seeking to interplead certain funds it claimed were in dispute between the parties concerning the "Spanish Fort" project and the "Rosinton project."  DPF Architects and Lee Turberville intervened.  Saad Construction raised as an affirmative defense that the Board was contractually obligated to submit disputes related to the construction contract to the Alabama Building Commission, and it moved to compel arbitration.  The trial court granted Saad Construction's motion to compel arbitration with the Board.  The director of the Commission conducted an arbitration hearing between Saad Construction and the Board.  the director issued his decision, which consisted of a list of the claims made by Saad Construction and the Board with a note beside each claim, "Award" or "No Award."  The director did not explain his reasons behind the decision.  The director noted "no award" concerning both parties' claims related to the remedial work on the wall.  The director made an award for Saad Construction on its claims for the changes to the overhead electrical installations and also made awards to Saad Construction for weather-related delays and for the addition of fire dampers that were also the subject of a dispute between the parties.  The director made awards to the Board for remedial work performed by the remedial-work contractor unrelated to the wall, "future remedial work," and liquidated damages under the contract.  The director made no award concerning any of Saad Construction's other claims.  Both the Board and Saad Construction satisfied the awards.  In September 2000, Saad Construction filed a cross-claim against DPF and a third-party complaint against Mueller, Capes, Capes Engineering, Yonge & Associates, and Larry Kerr, a former employee of Saad Construction who worked on the Spanish Fort project.  The trial court dismissed the Board and realigned the parties to identify Saad Construction as the plaintiff and  the other remaining parties as defendants.  DPF, Turberville, Mueller, Capes, and Capes Engineering subsequently filed motions for a summary judgment.  The trial court entered summary judgments in favor of those parties, stating:  "The Court is of the opinion that all issues are or were covered by arbitration.  All motions for summary judgment are granted."  HOLDING:  The Supreme Court held that Saad Construction's tort claims were not within the scope of the submission to arbitration.  The Court held that because the director lacked subject-matter jurisdiction over Saad Construction's tort claims and could not award punitive damages, res judicata does not bar Saad Construction from asserting those claims in a subsequent action.  The Court also held that the appellees have not satisfied their burdens of proof as to their affirmative defense of collateral estoppel.  The Court did hold that one defendant that submitted its motion for summary judgment on the merits, Capes Engineering, was entitled to a summary judgment.  Thus, the Court reversed the summary judgments as to all defendants except Capes Engineering.)
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• Liberty Mut. Ins. Co. v. Wheelwright Trucking Co.,

Nos. 1010818, 1010819, 1010820 & 1010821 (Ala. Nov. 27, 2002)
(garnishment proceedings; insurance coverage; consent judgment; Liberty Mutual Insurance Company, GAN North America Insurance Company, Federal Insurance Company, and Gerling America Insurance Company, the insurers of Dorsey Trailers, Inc. ("Dorsey"), appeal from the respective summary judgments entered against them and in favor of Wheelwright Trucking Company, Inc. ("Wheelwright").  Wheelwright and Eufaula Equipment Associates, L.L.C. ("Eufaula"), purchased 44 trailers from Scruggs, Incorporated ("Scruggs"), a trailer dealer.  The trailers were manufactured by Dorsey.  During the next five years, Liberty Mutual Insurance Company ("Liberty"), GAN North America Insurance Company ("GAN"), Federal Insurance Company ("Federal"), and Gerling America Insurance Company ("Gerling") (hereinafter referred to jointly as "the insurers") successively and respectively issued excess commercial liability insurance policies and/or "umbrella" excess liability insurance policies to Dorsey.  Wheelwright and Eufaula sued Dorsey and Scruggs in the Circuit Court of Barbour County on theories of breach of contract, breach of warranty, fraud, and negligence, and asserting a claim under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD").  The insurers denied Dorsey's request for coverage and refused to provide it with a defense.  Federal, Gerling, and Liberty filed complaints in the United States District Court for the Northern District of Georgia against Dorsey, Wheelwright, and Eufaula seeking judgments declaring that their respective policies did not require them to provide coverage to Dorsey.  GAN filed a similar action in the United States District Court for the Middle District of Alabama with respect to  coverage under its policies.  Those declaratory-judgment actions were subsequently consolidated in the Federal District Court for the Middle District of Alabama.  Thereafter, Dorsey filed a petition in the United States Bankruptcy Court of the Middle District of Alabama pursuant to Chapter 11 of the United States Bankruptcy Code.  The Barbour County action and the federal declaratory-judgment actions were all stayed pursuant to the "automatic stay" provision of 11 U.S.C. § 362.  Dorsey entered into a settlement agreement with Wheelwright and Eufaula.  Wheelwright and Eufaula filed a motion with the bankruptcy court seeking relief from the automatic stay of their action against Dorsey in the Barbour Circuit Court and the approval of a proposed order of the Barbour Circuit Court incorporating the settlement.  The insurers filed objections to the "form and contents" of the proposed order approving the settlement, on the ground that the proposed order contained language concerning the conduct of the insurers that was not substantiated by any evidence.  The objections all contained substantially the same language indicating that the insurers did not object "to the entry of a proper order at the proper time relieving or modifying the stay of 11 U.S.C. § 362 for the purpose of the entry of a consent judgment as announced by the litigating parties ...."  Dorsey presented the proposed settlement to the bankruptcy court in what it styled as a "Motion to Compromise and Settle Claim" ("the motion to compromise").  In pertinent part, the motion stated: "[T]he Plaintiffs have agreed to collect the Consent Judgment only to the extent that the Debtor's insurance provides coverage."   None of the insurers took any action to oppose the motion. The bankruptcy court granted the motion to compromise and lifted the stays as to all of the related lawsuits.  The Barbour Circuit Court entered a judgment against Dorsey ("the consent judgment").  In pertinent part, the consent judgment stated: "The Plaintiffs have agreed to collect the Judgment only to the extent that Dorsey's insurance provides coverage." Wheelwright filed petitions for writs of garnishment in the Barbour Circuit Court against the insurers seeking to collect on the consent judgment.  The federal district court also stayed the declaratory-judgment actions pending before it until after there had been adjudication by the Barbour Circuit Court of the petitions for writs of garnishment.  The circuit court denied the insurers' and National Union's motions for a dismissal of the garnishment proceedings or abstention by the circuit court from ruling on the petitions.  The circuit court also entered summary judgments for Wheelwright against the insurers.  The circuit court concluded first that the insurers, by refusing to exercise their right to defend the claims against Dorsey, were "precluded from challenging the validity or amount of the [consent] judgment absent evidence of bad faith or collusion."  Second, the circuit court determined that no evidence of bad faith or collusion existed.   Third, the circuit court  determined that the insurers did owe coverage under their respective policies.  Accordingly, the summary-judgment order required each insurer to pay a pro rata share of the $2,500,000 judgment, less   a single "self-insured retention" ("SIR") amount of $250,000. HOLDING:  The Supreme Court concluded that under the circumstances of this case, the insurers are bound by Dorsey's consent judgment settling Wheelwright's claims to the extent that the consent judgment was reasonable and entered into in good faith. The Court held that because the the insurers were informed of the consent settlement and had ample opportunity to contest its terms before the settlement was approved by the bankruptcy court and because the circuit court's finding that the settlement was not collusive or made in bad faith is supported by the record, there was no error in the circuit court's determination that the insurers are precluded from challenging the validity or the amount of the consent judgment.  The Court noted that the policies in this case all specify that they apply only to property damage that occurs within their respective policy periods.   The Court concluded that the occurrence in this case is properly viewed as Wheelwright's loss of the use of its tractors because the Dorsey trailers could not haul steel coils and that that loss of use took place no earlier than July 1998.  Thus, the Court held that the policies of Liberty, GAN, and Federal had all expired before the occurrence.  Accordingly, the Court held that the circuit court erred in entering the summary judgments for Wheelwright against those insurers and erred in denying their respective motions for a summary judgment.  The Court found that Gerling's argument that the circuit court erred in denying its motions to dismiss Wheelwright's garnishment proceeding against it because, it says, the writ of garnishment was a compulsory counterclaim to its declaratory-judgment action pursuant to Rule 13(a), Ala.R.Civ.P., and Rule 13(a), Fed.R.Civ.P., to be without merit.  The Court reversed that portion of the summary judgment setting off only a single SIR amount and instructed the circuit court upon remand to determine the extent to which Dorsey satisfied the SIR requirements for each Gerling policy and to set off against Wheelwright's recovery against Gerling under the consent judgment the amount of the SIR for each respective policy that was not satisfied by Dorsey.  The Court concluded that the circuit court was correct in determining that Gerling owed coverage for Wheelwright's loss of use of its tractors as a result of the failure of Dorsey's trailers.  Although the Court rejected the circuit court's determination that the cracking of the trailers was the occurrence in this case, the Court noted that its determination that the failure of the trailers to haul concentrated loads is properly characterized as the occurrence fits within the circuit court's rationale.  The summary judgments for Wheelwright against Liberty, GAN, and Federal were reversed and remanded for the circuit court to enter a summary judgment for each respective insurer against Wheelwright.  The Court affirmed the summary judgment for Wheelwright against Gerling, but held that that cause must also be remanded for the circuit court to determine the extent of Gerling's liability under its policies with respect to Dorsey's payment of the SIR amounts as to each Gerling policy.)
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• Tuck v. Healthcare Authority of the City of Huntsville,

No. 1011100 (Ala. Nov. 27, 2002)
(medical malpractice; expert testimony; similarly situated health-care provider; Virginia Tuck was admitted to the  Hospital for treatment of respiratory problems and "confusion."  Nurses Connie Cowan and Paul Mizelle cared for Virginia Tuck during her stay.  Mizelle determined that Virginia Tuck was at risk for a fall, and he initiated a fall-management protocol.  This protocol called for safety measures, such as explaining the call bell to Virginia Tuck, raising the rails on her bed, and placing the bed in its lowest position.  After Tuck got out of bed three times, Cowan initiated a restraint protocol that included a belt restraint.  Tuck did not leave her bed for the rest of Cowan's shift.  Mizelle continued the restraint protocol.  Mizelle testified that he checked Virginia Tuck every two hours, in accordance with hospital policy, and that during those checks he made sure the belt restraint was in the proper location.  Around 5:30 p.m. on December 18, 1999, Mizelle found Virginia Tuck sitting on the floor at the foot of her bed; her leg was folded underneath her.  Virginia Tuck told Mizelle that she thought the room was on fire, and she apparently had worked her way out of the restraint and had gotten out of the bed and fallen.  Mizelle then added wrist and ankle restraints to Virginia Tuck.  The on-call doctor examined Virginia Tuck and determined that she had broken her hip in the fall.  Tuck sued the Hospital for medical malpractice.  Subsequently, Virginia Tuck died from unrelated causes, and her son, Charles Tuck, was substituted as the plaintiff in his capacity as the personal representative of Virginia Tuck's estate.  the Hospital filed a motion for a summary judgment.  Charles Tuck opposed the motion; his evidence in opposition included an affidavit of his expert witness, Cecilia Cantrell, a former nurse and an administrator at a school of nursing.  The Hospital filed a motion to strike the affidavit, and the trial court denied both the Hospital's motion for a summary judgment and its motion to strike Cantrell's affidavit.  At trial, the Hospital filed a motion to exclude the testimony of Charles Tuck's expert witness, Cantrell, on the grounds that she did not qualify as a similarly situated health-care provider as required by Ala. Code §6-5-548, a part of the Alabama Medical Liability Act ("AMLA").  The trial court granted the motion.  After this ruling, Tuck's attorney sought to call Phillip Buchmann, a Hospital employee who provides training in the use of patient restraints, to testify as an expert on the standard of care in applying restraints.  Tuck had deposed Buchmann and had submitted his testimony at the summary-judgment stage and had introduced at trial, before the Hospital filed its motion to exclude Cantrell's testimony, a training video featuring Buchmann.  The trial court did not allow Tuck to use Buchmann as an expert because Tuck had not disclosed Buchmann as an expert witness in accordance with Rule 26(b)(4), Ala. R. Civ. P., in response to the Hospital's interrogatories.  Tuck moved for a mistrial, and the trial court denied the motion.  At the close of Tuck's case, the trial court granted the Hospital's preverdict motion for judgment as a matter of law ("JML") and entered a judgment in favor of the Hospital.  Tuck filed a motion for a new trial;  the trial court denied the motion, and Tuck appealed.  HOLDING: The Supreme Court affirmed the trial court's judgment.  The Court held that when Cantrell testified at trial, she testified that she was not similarly situated to Cowan and Mizelle and that she had not been a staff nurse at a hospital in the year preceding Virginia Tuck's accident in December 1999.  The Court held that the trial court properly determined that Cantrell was not a health-care provider similarly situated to Cowan and Mizelle and that she was not qualified to testify as to the standard of care in this case.  The Court held that the trial court did not abuse its discretion in refusing to allow Buchmann to testify as an expert witness and in denying Tuck's motion for a mistrial.)
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• Grubbs v. Life Ins. Co. of Georgia,

No. 1011233 (Ala. Nov. 27, 2002)
(affirmed without opinion; Justice Johnstone stated that he concurred in affirming the summary judgment against the plaintiffs on their contract and negligence theories, but dissented from affirming the summary judgment against the plaintiffs on their fraud theory.)
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• Ex parte HealthSouth Corp.,

No. 1011582 (Ala. Nov. 27, 2002)
(medical malpractice; expert testimony; Sharon Heath had been admitted to the HealthSouth facility for back surgery.  After her surgery, which was successfully performed, Heath was transferred to the rehabilitation section of the facility.  Immediately before her transfer and before she left the surgical ward on November 21, 1999, she was given 5 milligrams ('mg.') Valium, 10 mg. morphine, and a Percodan tablet.  Shortly after arriving at the rehabilitative floor of the facility, she received a second Percodan tablet.  The Percodan was supposed to be given at four-hour intervals, but Heath received the second Percodan tablet 2 hours and 45 minutes after she had taken the first one.  In addition, Heath, an insulin-dependent diabetic, did not receive a scheduled dose of her insulin.  Heath testified in her deposition that, shortly after she received the second Percodan tablet, she needed to use the bathroom, and she rang the buzzer to summon a nurse. Heath said that after she rang the buzzer, she waited "anywhere from 30 minutes to an hour" for a nurse to come and assist her to the bathroom.  Although she knew that her doctor had instructed her not to get up from her bed without the assistance of a nurse, she was unable to wait any longer and she began to climb out of bed by herself.  Health fell, breaking her left hip.  The Heaths sued HealthSouth alleging that the defendants had breached the standard of care in providing care and treatment for Heath while she was a patient in the facility.  Specifically, they alleged that the defendants (1) had failed to identify Heath as a patient 'at risk' for falling, (2) had failed to properly supervise and monitor Heath while she was being treated in the facility, (3) had failed to train its nursing staff on safety issues, and (4) had failed to respond to Heath's calls for assistance. HealthSouth moved for a summary judgment, stating as grounds that no genuine issue of material fact existed as to the defendants' breach of the standard of care.  HealthSouth supported its motion with the affidavit of Lola Patterson, R.N.  The Heaths responded to HealthSouth's summary-judgment motion with the affidavit testimony of Julie Akin, R.N.  HealthSouth moved to strike Ms. Akin's affidavit, contending that she was not a qualified expert pursuant to the Alabama Medical Liability Act, Ala. Code §6-5-548.  The trial court determined that Ms. Akin did not meet those requirements, struck her affidavit, and granted HealthSouth's summary-judgment motion.  HOLDING: The Supreme Court affirmed the trial court.  The Court recognized that there is an exception to the rule requiring expert testimony in a class of cases where want of skill or lack of care is so apparent as to be understood by a layman, and requires only common knowledge and experience to understand it, such as when a sponge is left in, where, for example, the wrong leg is operated on, or, as here, where a call for assistance is completely ignored for an unreasonable period of time.  The Court also recognized an exception to the rule requiring expert testimony applies when a plaintiff relies on a recognized standard or authoritative medical text or treatise or is himself or herself a qualified medical expert.)
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• Ex parte A.K.,

Nos. 1011789 & 1011790  (Ala. Nov. 27, 2002)
(petitions for writs of certiorari denied without opinion; brief dissent by Justice Johnstone)
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• Ameriquest Mortgage Co.. v. Bentley,

No. 1011791 (Ala. Nov. 27, 2002)
(arbitration; employment; Kathryn Bentley owns and operates a real estate appraisal business, Kathryn Bentley & Associates, in Jefferson County, Alabama.  Bentley performed real estate appraisals for  Ameriquest Mortgage Company, Inc. ("Ameriquest"), from May 1998 to January 2000.  In January 2000, Bentley accepted an offer to work for Ameriquest at its Birmingham office as a retail account executive.  Her job duties with Ameriquest consisted of originating loans on behalf of the company.  The employment agreement Bentley signed upon acceptance of the Ameriquest job stated that her employment was on an "at-will basis" and that it was also conditioned upon her signing an arbitration agreement. The contract provided: "As a condition of employment, you will be required to sign the standard Mutual Agreement to Arbitrate Claims ..., which will apply during your employment with the Company and thereafter."  Bentley and a representative of Ameriquest both signed the employment contract and the arbitration agreement.  Bentley later became dissatisfied and terminated her employment with Ameriquest, but claims that she left only after Ameriquest allegedly represented to her that the company would use her as a preferred real estate appraiser if she terminated her employment. Bentley later learned that she had been removed from Ameriquest's "preferred appraiser's list."  Bentley sued Ameriquest and Diana Harmon, an Ameriquest representative in California, alleging claims of breach of contract, fraud, defamation, and tortious interference with business relations.  All of the claims are based on the alleged representations by Ameriquest to Bentley while she was employed at Ameriquest. Ameriquest and Harmon moved to stay the proceedings and to compel arbitration based on the arbitration agreement signed by Bentley.  The trial court denied Ameriquest and Harmon's motion to compel arbitration. HOLDING: The Supreme Court reversed, holding that Ameriquest and Harmon clearly satisfied their burden by showing a valid, controlling contract containing an arbitration agreement in a transaction that substantially affects interstate commerce.  The Court rejected Bentley's unconscionability argument because Bentley neither pleaded nor argued below unconscionability  as a basis for avoidance of the arbitration agreement at issue.)
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• Ex parte Hayles,

No. 1011811 (Ala. Nov. 27, 2002)
(state-agent immunity; The Alabama Department of Transportation ('ALDOT') entered a contract with the Alabama Department of Conservation and Natural Resources ('ADOC') to demolish a bridge over Lake Martin known as the Old Kowaliga Bridge ('the old bridge').  During the demolition of the old bridge, however, it collapsed prematurely.  Two ALDOT employees, Randall Phillips and Frank Williams, who were working on the old bridge when it collapsed, died when pieces of the old bridge pinned them at the bottom of Lake Martin.  The widows of Phillips and Williams, acting as administratrices of their husbands' estates, along with their minor children (hereinafter the widows and the minor children will be sometimes referred to collectively as 'the families'), sued ADOC; ALDOT; James D. Martin, the former director of ADOC; Jimmy Butts, the former director of ALDOT; Ray Bass, ALDOT's chief engineer; Douglas 'Mitch' Kilpatrick, ALDOT's chief maintenance engineer; Terry L. McDuffie, an assistant bridge-maintenance engineer for ALDOT; Bob Campbell, an assistant bridge-maintenance engineer for ALDOT; and John A. Hayles, the supervisor of the ALDOT work crew to which Phillips and Williams were assigned.  Each of the individual defendants was sued in both his official capacity and his individual capacity.   The employees moved for a summary judgment on the ground that they are entitled to state-agent immunity.  The trial court entered a summary judgment for all the employees except Hayles and McDuffie.  Hayles and McDuffie filed a petition for writ of mandamus.  HOLDING:  The Supreme Court granted the writs.  The Court found that nothing indicates that McDuffie or Hayles exceeded the scope of his authority.  The Court held that McDuffie and Hayles established that they are entitled to  state-agent immunity as to the state-law causes of action.  The Court directed the trial court to enter a summary judgment in favor of Hayles and McDuffie.)
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• Ex parte Wharton,

No. 1011935 (Ala. Nov. 27, 2002)
(state-agent immunity and statutory immunity under Ala. Code §6-5-338(a); the petition for writ of mandamus was denied without opinion; dissenting opinions by Justice Houston and Justice Stuart)
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• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  NOVEMBER 22, 2002

 
• Ex parte Waldrop,

No. 1001194 (Ala. Nov. 22, 2002)
(criminal; capital murder; judicial override of jury recommendation of life imprisonment to impose the death penalty; The petitioner, Bobby Wayne Waldrop, was convicted of three counts of capital murder: two counts of murder made capital because it was committed during a robbery in the first degree and one count of murder made capital because two or more persons were murdered by one act or pursuant to one scheme or course of conduct.  After the sentencing hearing, the jury, by a vote of 10-2, recommended that Waldrop be sentenced to life imprisonment without the possibility of parole.  The trial judge overrode the jury's recommendation and sentenced Waldrop to death.  Waldrop claimed that the United States Supreme Court's opinions in Ring v. Arizona,  122 S. Ct. 2428 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000), mandate that any factual determination required for imposition of the death penalty must be made by the jury, not by the trial court.  Waldrop also claimed that Ring and Apprendi require that the jury, and not the trial court, determine whether the aggravating circumstances outweigh the mitigating circumstances.  HOLDING:  The Supreme Court noted that because the jury convicted Waldrop of two counts of murder during a robbery in the first degree, the statutory aggravating circumstance of committing a capital offense while engaged in the commission of a robbery was "proven beyond a reasonable doubt."  Thus, the Court noted, in Waldrop's case, the jury, and not the trial judge, determined the existence of the "aggravating circumstance necessary for imposition of the death penalty."  Therefore, the Court held that the findings reflected in the jury's verdict alone exposed Waldrop to a range of punishment that had as its maximum the death penalty, and that this is all Ring and Apprendi require.  The Court also held that the weighing process is not a factual determination because the relative "weight" of aggravating circumstances and mitigating circumstances is not susceptible to any quantum of proof.  The Court affirmed the sentence of death.)
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• Ex parte Seaman Timber Co.,

No. 1001658 (Ala. Nov. 22, 2002) (additional opinion on application for rehearing)
(While the action was pending, the plaintiffs divorced, and the divorce judgment awarded all right, title and interest in and to the claim against Seaman Timber Company regarding the Shelby County farm property to Melford O. Cleveland and divested Belle Cleveland of any interest in the claim.  Belle Cleveland asked to be removed as a party.  The Supreme Court stated that it was reluctant to remove a party, but it encouraged the trial court, when  it reconsiders Seaman's motion for dismissal and the imposition of sanctions, to consider this new information regarding Belle Cleveland and her participation in the proceedings below.)
(In the opinion on original consideration, the Court granted the petition for the writ of mandamus and directed the trial court to reconsider Seaman's motion for dismissal or for sanctions for failure to allow discovery, and it directed the trial court to impose an adequate sanction, proportionate to the discovery abuse in this case.)
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--(The original opinion released on September 13, 2002, in Seaman Timber Co. is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

• Chambers County Comm'n v. Chambers County Bd. of Educ., 

No. 1010273 (Ala. Nov. 22, 2002)
(on application for rehearing; withdrawing and substituting opinion of August 2, 2002) (Note: August 2 opinion was a plurality opinion, but this substituted opinion is a majority opinion)
(taxation; property tax referendum; At a meeting of the Chambers County Commission held on August 20, 2001, the Chambers County Board of Education ("the Board"), in conjunction with the Board of Education for the City of Lanett, presented a resolution requesting that the Commission call a special election to propose the imposition of a special school district tax in Chambers County.  The resolution specified that the election be held on November 13, 2001, and that the assessment be at the rate of 5 mills and that it be imposed for 20 years.  The Commission did not act on the resolution but instead tabled the issue; the Commission noted that it did not have the money to fund such a special election and that funds for such a special election had not been included in the budget for Chambers County.  The day after the Commission tabled the issue, the Board instituted this action, seeking a writ of mandamus compelling the Commission to hold the special election.  The Board asserted that, pursuant to Amendment No. 3 and Amendment No. 202 to the Alabama Constitution of 1901, the Commission was required to call the special election, under the terms requested by the Board, for the purpose of considering the special school district tax.  The Board asserted that, Amendment No. 3 and Amendment No. 202 authorized it to set the rate and term of any assessment considered for public school purposes and to specify the date for the special election.  The Board of Education for the City of Lanett was added as a petitioner.  The trial court entered an order issuing the writ of mandamus and holding that Amendment No. 3 and Amendment No. 202 of the Alabama Constitution required the Commission to call a referendum in accordance with the terms in the Boards' resolution.  The trial court held that the Commission could not ignore its constitutionally mandated duty, regardless of the financial ramifications of performing that duty.   HOLDING:  The Supreme Court concluded that the Boards have no authority to invoke Amendment No. 202 at all.  Therefore, the Court reversed the trial court's order of September 6, 2001, and issued the writ of mandamus.  The Court noted that the only provision in Amendment No. 202 substantively addressing the power to tax is the first sentence,  which grants five-mill taxing power only to the county governing body -- not to any school board.  The Court noted that the last sentence of Amendment No. 202 purports only to provide for an election procedure, not to provide for any extension or expansion of the substantive five-mill taxing power.  The Court also reasoned that the last sentence of Amendment No. 202  is a general provision, which, as a matter of construction, cannot countermand the express, specific provisions of the first sentence limiting the five-mill taxing power to the county governing body.  Additionally, the Court stated that the reference to Amendment No. 3 in the last sentence of Amendment No. 202, which grants only three-mill taxing power, can hardly serve as a vehicle to grant the Boards five-mill taxing power.  The Court held that the Boards were not entitled to a writ of mandamus to enforce the Boards' claim to taxing power under Amendment No. 202.  Therefore, the Court reversed the trial court and ordered it to vacate its writ.)
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--(The original withdrawn plurality opinion released on August 2, 2002, in Chambers County Commission is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

• Ex parte Pike Fabrication, Inc.,

No. 1010388 (Ala. Nov. 22, 2002)
(venue; Pike Fabrication, Inc. ("Pike"), the defendant in an action pending in the Coffee Circuit Court, petitioned the Court for a writ of mandamus directing the trial court to vacate its order denying Pike's motion to transfer the action to Pike County.  Pike made a prima facie showing that it did not do business by agent in Coffee County.  The plaintiff did not respond to Pike's motion.  HOLDING:  The Supreme Court held that the two inquiries made in Coffee County by Pike's president regarding possible leases were not conduct sufficiently regular as to constitute doing business for purposes of the venue statute, and, therefore, the plaintiff failed to demonstrate that venue in Coffee County is proper. The Court granted the writ and directed the trial court to vacate its order denying the motion and to transfer the action to Pike County.)
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• Porterfield v. Audubon Indemnity Co.,

No. 1010894 (Ala. Nov. 22, 2002)
(insurance coverage; pollution-exclusion clause; environmental law; certified question from the the United States District Court for the Middle District of Alabama: "Does the pollution exclusion clause contained in Audubon's comprehensive general liability insurance policy preclude coverage to its insured for liability for injuries allegedly caused from the ingestion of lead contained in paint, blinds, water, pipes and soil on premises operated by the insured?"  The Supreme Court rephrased the question as follows: "Does an 'absolute' pollution-exclusion clause contained in a commercial general liability insurance policy exclude coverage for injuries resulting from the ingestion of lead contained in the paint, blinds, water, pipes, and soil on premises under the control of the insured?"  HOLDING:  The Supreme Court held that lead paint qualifies as a pollutant under the terms of the absolute pollution-exclusion clause.  On the other hand, the Court concluded that a reasonably prudent insured might have concluded in 1991 that the presence of lead-paint flakes, chips, and/or dust in a residential apartment would not qualify as a discharge, dispersal, release, or escape of a pollutant.  Having concluded that the operative terms "discharge," "dispersal," "release," or "escape" are ambiguous in the context of flaking and peeling lead paint in a residential apartment, the Court construed them against Audubon and thereby determined that the absolute pollution-exclusion clause does not bar coverage in that specific and particular setting.  Thus, the Court held that Audubon's duty to defend was triggered as to the claims in the underlying lawsuit predicated on the children's personal injuries that allegedly were caused by their inhalation and ingestion of lead disseminated through the "peeling and flaking" of lead paint.  The Court answered the certified question by stating that, as to the peeling and flaking interior surface lead paint that resulted in the presence of lead-paint particles (including lead dust), which were then ingested and/or inhaled by the children, the absolute pollution-exclusion clause serves as no bar to Audubon's otherwise existing duty to defend the MHA in the underlying lawsuit.)
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• Ex parte State Health Planning & Dev. Agency,

Nos. 1011707 & 1011708 (Ala. Nov. 22, 2002)
(certificate of need; The central issue in these appeals is whether vendors that provide mobile lithotripsy equipment to hospitals are providing a "health service" requiring a "certificate of need" ("CON") under Ala. Code §22-21-263(a)(4).  The Court of Civil Appeals answered this question in the negative, holding that "the health-care facilities and HMOs that provide health services must seek CON review in connection with providing such a service[; however, the] sellers or vendors of equipment that health-care facilities and HMOs use in order to provide such services need not obtain a CON."  HOLDING:  The Supreme Court found the Court of Civil Appeals' reasoning interpreting §22-21-263 to be sound.  The Court held that SHPDA's interpretation was not due any deference.  The Court reasoned that because the sale or lease of mobile lithotripsy equipment falls outside the SHPDA's particular sphere of statutory authority, any SHPDA interpretation that would bring the acts of selling or leasing mobile lithotripsy equipment into that sphere is invalid and is not entitled to deference.  The Court adopted the reasoning of the Court of Civil Appeals and affirmed its judgment.)
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• Locke v. City of Mobile,

No. 1011741 (Ala. Nov. 22, 2002)
(negligence; summary judgment; Laura Locke , who owns a house in the Azalea and Cottage Hill area of Mobile, alleges that the City negligently maintained the drainage system in her neighborhood and that its negligent maintenance of the system resulted in the flooding of her property.  The trial court entered summary judgment in favor of the City of Mobile.  HOLDING:  The Supreme Court concluded that Locke failed to present substantial evidence showing that the City's negligent maintenance of the drainage system proximately caused the flooding of her property.  It therefore affirmed the summary judgment in favor of the City.)
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• Ex parte House,

No. 1012219 (Ala. Nov. 22, 2002)
(petition for writ of certiorari denied without opinion; dissenting opinion by Chief Justice Moore stating that he believes House has demonstrated a true conflict between the no-opinion affirmance by the Court of Civil Appeals in this case, which concerns modification of a divorce judgment by the parties' agreement, and the decisions in Holland v. Holland, 406 So.2d 877 (Ala. 1981), and Price v. Price, 705 So.2d 488 (Ala. Civ. App. 1997).)
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• Ex parte Perkins,

No. 1991016 (Ala. Nov. 22, 2002) (on remand from the U.S. Supreme Court)
(criminal; capital punishment; mental retardation; The United States Supreme Court vacated the Supreme Court of Alabama's March 30, 2001, judgment in this case and remanded the cause for our further consideration in accordance with Atkins v. Virginia, 122 S.Ct. 2242 (2002), which held that executing a mentally retarded individual violates the ban on cruel and unusual punishments found in the Eighth Amendment to the United States Constitution.  On remand, the Supreme Court of Alabama conducted a thorough review of the record to determine if there is any inference that Perkins is mentally retarded.  The Court concluded that Perkins does not suffer from mental retardation under the definitions considered by the United Supreme Court in reaching its holding in Atkins or as defined by any of the state statutes that prohibit the imposition of the death sentence on a mentally retarded defendant.  The Court held that it can determine, based on the facts presented at Perkins's trial, that Perkins, even under the broadest definition of mental retardation, is not mentally retarded.  Applying the plain-error standard of review, the Court held that because, applying the most common definitions of mental retardation, it found no indication in the record that Perkins is mentally retarded, no reversible error occurred and the imposition of the death sentence in this case is not unconstitutional.  Therefore, the Court affirmed the judgment of the trial court sentencing Perkins to death.)
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--(The original opinion released on March 30, 2001, in Perkins is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--

--(The additional opinion on rehearing by Justice Johnstone concurring in the result released on July 13, 2001, in Perkins is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 
 
 

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There Were No Opinions Released November 15, 2002

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