• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON TUESDAY,  DECEMBER 30, 2003

 
• Breaux v. Thurston,

No. 1011655 (Ala. Dec. 30, 2003)
(medical malpractice; standard of care; jury instruction; retention case/negligent or wanton failure to remove all foreign objects after surgery; Sheila Bailey Thurston decided to undergo a bariatric procedure known as gastric bypass.  When she first consulted Dr. Breaux she weighed 283 pounds.  When the bypass surgery was performed at Cooper Green Hospital a little more than eight months later, on December 21, 1994, she weighed 310 pounds.  In essence, the surgery rerouted portions of Ms. Thurston's intestines to shorten the length available for digestion and absorption, significantly reduced the size of her stomach, and reconnected her stomach to the intestine by a small opening.  Dr. Charles W. Breaux was assisted by Dr. Harris, a third-year resident at Cooper Green Hospital, registered nurse Cynthia Venton, functioning as the circulating nurse, and Wylie King, functioning as the scrub nurse or operating-room technician. The hospital's "Operating Room Policies and Procedures" provided, with respect to "Instrument Count," that "[t]he purpose of an instrument count is to prevent the possibility of any foreign object being left in a body cavity."  Venton and King did not perform the required instrument count immediately before Ms. Thurston's surgery.  When such a preoperative count is performed, Dr. Breaux often has not yet entered the operating room and is in some other part of the hospital attending to other duties or patients.  At the end of the operation, but before Dr. Breaux closed the abdominal incision, Venton and King jointly conducted the required postoperative count and reported to Dr. Breaux that it was "correct," meaning that the postoperative count of each category of surgical instruments matched exactly the preoperative count.  Dr. Breaux did not participate in the counts and contended that "[t]he nurses actually don't want any interference when they are counting, so that they are not distracted and don't lose count of what they are doing."  Dr. Breaux further explained that a surgeon does not make any attempt to count the instruments placed in a patient and then removed, because of the need to concentrate on the performance of the surgical procedure.  Ms. Thurston did well and lost weight.  She moved to Nevada.  During the late winter of 1996, she started having pain on her left side.  She consulted Dr. Lynn Greenhouse, a physician in Nevada specializing in internal medicine.  The X-ray films from a barium  enema Dr. Greenhouse ordered revealed "right in the middle of the large intestine ... a Babcock-type surgical clamp."  Dr. Greenhouse referred Ms. Thurston to Dr. Myron J. Gomez, a general surgeon in Nevada, for removal of the clamp.  During that surgery, Dr. Gomez found that the clamp had eroded into the small bowel; he removed the clamp and repaired the bowel.  Thurston filed a medical-malpractice action against Dr. Charles W. Breaux and Jefferson Clinic, P.C., a professional corporation through which a group of doctors, including Dr. Breaux, provided physicians for the staff of Cooper Green Hospital.  The case was originally tried before a jury in October 1999, against Dr. Breaux, the Jefferson Clinic, P.C., Cooper Green Hospital, and two surgical nurses, Cynthia Venton and Wylie King.  The jury returned a $78,000 verdict against the defendants, but the trial judge, realizing he had committed an error, subsequently ordered a new trial.  The defendants appealed. The Supreme Court affirmed the grant of a new trial.  Breaux v. Bailey, 789 So.2d 204 (Ala. 2000).  When the case was retried on February 19, 2002, only Dr. Breaux and the Jefferson Clinic remained as defendants, Cooper Green Hospital, Venton, and King having settled the claims against them for a total of $100,000.  The jury returned a verdict against Dr. Breaux and the Jefferson Clinic in the amount of $300,000.  The trial court entered a judgment on the verdict and later denied the defendants' postjudgment motions for a judgment as a matter of law, a new trial, or a remittitur.  Dr. Breaux and the Jefferson Clinic again appealed.  HOLDING:  The Supreme Court reversed.  The Court noted that neither Dr. Greenhouse nor Dr. Gomez testified during their depositions concerning the medical standard of care that should apply to abdominal surgery and that the only testimony presented at trial concerning the applicable medical standard of care, and whether it had been breached, came from Dr. Breaux and Dr. Edward Waites, a general surgeon from Atlanta presented by Dr. Breaux.  Dr. Waites testified that, based on Dr. Breaux's description of what he had done in visually and manually exploring for any retained objects and then relying on the nurses' count, Dr. Breaux had met the standard of care.  The Court held that while the presence of the retained object is prima facie evidence of negligence by the surgeon in carrying out that responsibility, the presence of the retained objected does not, however, establish negligence per se.  The Court wrote: "Rather, it serves to shift the burden to the defendant surgeon to show that he or she was not negligent because he or she fully complied with the statutorily defined standard of care.  The fact that the operating-room nurses responsible for counting objects before and after the surgery report a final "correct" count does not in itself relieve the surgeon of liability.  Rather, for a jury question to be presented, there must be expert testimony establishing the medical standard of care for attempting to prevent the retention of foreign objects in the body after surgery.  To the extent that the surgeon relied on the nurses' counts, there must be expert testimony establishing that such a practice is within the standard of care.  If, after the plaintiff offers prima facie evidence of negligence by a showing that a foreign object was retained in the body after surgery and the burden of proof shifts to the surgeon, the standard of care is clearly established by expert testimony and there is substantial evidence indicating that the surgeon complied with all components of that standard of care, a jury question is presented as to whether the surgeon was in fact negligent."  The Court held that there were numerous errors in the jury instructions that collectively constituted reversible error.  Primarily, the Court found that there was clearly the "potential for confusing the jury" in the instruction that the nurses' count amounted "only to an added precaution" by Dr. Breaux to "ensure that he had properly performed his duty to remove the instruments from the patient."   The Court wrote: "[P]roof of a retained surgical instrument, in the absence of expert medical testimony presented by the plaintiff, constitutes only prima facie evidence of negligence on the part of the surgeon.  The effect of such prima facie evidence is to shift to the surgeon the burden of going forward with the evidence, to the end that the surgeon has the opportunity to overcome the prima facie evidence by establishing, through expert medical testimony, the elements of the applicable medical standard of care, and that he satisfied all of them.  If no contradictory expert medical testimony is introduced, however, that prima facie evidence is sufficient to sustain a verdict against the surgeon.   The jury instruction in this case, as duly objected to, and in the face of the expert testimony presented, clearly had the potential to confuse the jury."  The Court remanded the case to the trial court for further proceedings.)
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• Ex parte Western Mental Health Ctr.,

Nos. 1011990 & 1021481 (Ala. Dec. 30, 2003)
(discovery; psychotherapist-patient privilege; mental anguish; On June 4, 2001, P.H. sued James B. Koikos, owner of The Bright Star Restaurant, Inc. (hereinafter referred to as "Bright Star"), where P.H. worked, alleging assault and battery and the tort of outrage.  P.H. maintained that, as a result of Koikos's alleged conduct, she suffered physical injuries, financial hardship, and mental anguish.  P.H. later amended her complaint to allege negligence and wantonness.  During discovery, Koikos filed a request for the production of information regarding P.H.'s alleged mental suffering.  P.H. objected to the production of the information on the grounds of the psychotherapist-patient privilege.  Subsequently, P.H. again amended her complaint to add Bright Star as a defendant, and to demand workers' compensation benefits.  In response to discovery concerning P.H.'s medical treatment, Koikos and Bright Star served a subpoena upon Western Mental Health Center, a division of the Jefferson County Board of Health (hereinafter referred to as "Western"), a nonparty to the litigation, requesting that Western produce all medical records on the care and treatment of P.H.  Western objected; it moved the trial court to quash the subpoena, or, in the alternative, to issue a protective order.  Koikos and Bright Star responded, arguing that because P.H. had placed her mental state at issue, they would be prejudiced if they were unable to obtain the records.   The trial court overruled Western's objections and ordered it to produce the requested records.  It also entered a protective order, stipulating that only persons and entities having current or prior connections to either the records or the pending litigation would have access to the records.  The order further stated that all records produced would be placed under seal and would not become part of the public record of the case.  Western petitioned the Supreme Court for a writ of mandamus directing the Jefferson Circuit Court, Bessemer Division, to vacate that order.  In a separate case, M.S. sued James Kevin Stewart and others as a result of injuries she sustained in an automobile accident.  M.S. contends that she sustained property damage, serious physical injuries, emotional anxiety and distress, other pain and suffering, and ongoing medical costs as a result of Stewart's negligence or wantonness.  M.S. also claimed that she was rendered permanently disabled as a result of the accident.  In response to discovery concerning M.S.'s injuries, Stewart served a subpoena upon Western, a nonparty to the litigation, requesting that Western produce records relative to the care, treatment and confinement of M.S.  Western objected, and it moved for the court to quash the subpoena.  Stewart filed a response to its motion, and the trial court conducted a hearing on the matter.  The trial court overruled Western's objections and ordered that it produce the requested documents.  Specifically, the circuit court issued an order requiring  Western to produce all records relating to M.S., "[keeping them] confidential between the parties and their attorneys"; however, this order did not "preclude the utilization of the information obtained by these records ... as evidence in open court at hearings in this present action, or at the trial of this case."  As in the other case, Western petitioned the Supreme Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order and to quash the subpoena.  HOLDING:  The Supreme Court granted the writs of mandamus.  The Court noted that Alabama has not recognized an exception to the psychotherapist-patient privilege when, in civil actions such as these, the plaintiff merely alleges mental anguish.  The Court held that by merely alleging mental anguish and emotional distress the plaintiffs in these cases have not waived the psychotherapist-patient privilege conferred by Ala. Code §34-26-2.  The Court held that Stewart failed to include any evidence demonstrating that mental-health records relating to M.S. held by Western are necessary to Stewart's defense in this action.  Therefore, Stewart "failed to show that any constitutional right has been violated by the retention of the privilege legislatively extended to the [plaintiff's] medical records." The Court held that the records the trial courts ordered Western to produce are privileged and confidential and are not subject to production under the facts of these cases.)
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• Shiv-Ram, Inc. v. McCaleb,

No. 1012112 (Ala. Dec. 30, 2003)
(punitive damages; excessive award; clear and convincing evidence; Plaintiff was injured when she hit her foot on a sharp piece of metal protruding from the bed in a motel room.  The plaintiff and her husband sued, alleging negligence, wantonness, breach of contract, and loss of consortium.  The case was tried before a jury in the Calhoun Circuit Court.  The jury returned a verdict in favor of the plaintiff, awarding compensatory damages of $176,572.82 and punitive damages of $500,000.00.  The jury returned a verdict in favor of the defendant as to the plaintiff's husband's loss-of-consortium claim.  The defendant filed postjudgment motions pursuant to Rules 50 and 59, Ala.R.Civ.P., seeking a judgment as a matter of law, a new trial, or a remittitur of the damages.  The trial court denied those motions. HOLDING:  The Supreme Court affirmed.  The Court held that even if it were to overrule Henderson v. Alabama Power it would not  resurrect the "old" statutory punitive-damages cap of $250,000 set forth in the former Ala. Code §6-11-21.  The Court concluded that there was substantial evidence of wantonness and clear and convincing evidence that the defendant acted with a reckless or conscious disregard of the rights or safety of others in its conscious omission of its duty to furnish safe premises to the plaintiff.  The Court stated that had the defendant pursued any of the opportunities it had to fulfill its duty to furnish safe premises that its guests might use in the ordinary and reasonable way without danger, it would have protected guests such as the plaintiff from what was in fact a prevalent, dangerous defect in the king-sized beds in the motel.  Instead, the Court concluded, the defendant chose to turn a blind eye and a deaf ear to the situation and to forgo making even the most cursory inspections or inquiries concerning the safety of the guest rooms.  The Court stated that had the defendant made a reasonable inspection, or had it made any inquiry of either of the previous owners, it would have readily learned of the dangers inherent in the structures of the king-sized bed it was offering its guests. The Court concluded that the defendant was sufficiently alerted during the three and one-half months preceding the purchase of the motel of the possibility, if not probability, of potential safety hazards in the guest rooms.  The Court reviewed the various BMW and Green Oil factors and concluded that the punitive damages were not excessive, finding, among other things, the ratio of punitive damages to compensatory damages to be reasonable.)
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--(A clarification of this decision was released on application for rehearing on April 2, 2004.  That clarification is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site.)--
 
• Kinney v. Williams,

No. 1020412 (Ala. Dec. 30, 2003)
(fraud;  negligent or mistaken misrepresentation; The Adairs are a married couple.  So are the Kinneys.  Mr. Adair and Mrs. Kinney are brother and sister.  The two couples agreed to cooperate in the purchase of a certain parcel of land about five acres in size so that one couple could build and live on one half and the other couple could build and live on the other half.  A paved road bordered the north end of the property.  The couples' inquiries led them to believe the road was private, not public.  The private character of the road was important to both couples because they wanted privacy and quiet.  After some preliminary negotiations, the Kinneys contracted in writing to buy the property from its owner, one Marcinowski, and the Adairs orally agreed with the Kinneys to buy one-half of the property from the Kinneys.  The Kinneys and Marcinowski employed defendant Williams to prepare the deed from Marcinowski to the Kinneys and to obtain the title insurance.  The Kinneys and the Adairs disclosed their mutual interest in and plans for the property to Williams.  The couples also told Williams the importance of the private character of the road along the north end of the property.  Williams also served as the closing agent for the sale by Marcinowski to the Kinneys.  The Adairs as well as the Kinneys attended the closing of that sale.  There Williams assured both couples that the road was private, not public; and Marcinowski and the Kinneys closed the sale to the Kinneys.  Several weeks later, in accordance with the couples' oral agreement, the Adairs bought half of the property from the Kinneys.  Months thereafter, when the Adairs tried to stop neighbors from using the road, the Adairs learned that it was public, not private.  Among the claims the Adairs asserted in their action against Williams were fraud theories of negligent misrepresentation and innocent misrepresentation.  In support of these theories and in opposition to Williams's motion for a summary judgment, Mr. Adair testified that, but for Williams's assurances that the road was private, not public, the Adairs would not have bought their half of the property.  He testified that they would not have bought the property had they known that the road was public or that its private status was uncertain.  The sole ground of Williams's motion for a summary judgment on the Adairs' claims was that the absence of an attorney-client relationship between Williams and the Adairs deprived them of standing to sue.  The trial court granted the motion for summary judgment.  HOLDING:  The Supreme Court reversed.  The Court held that although Williams was not the Adairs' attorney, he knew their interest in the property and in the private status of the  road, and he directed his misrepresentations to the Adairs as well as to his clients the Kinneys.  Therefore, the Court held that the trial court erred in entering a summary judgment in favor of Williams on the Adairs' fraud claims.)
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• Ex parte Sharp,

Nos. 1020781 & 1020852 (Ala. Dec. 30, 2003)
(criminal; appellate procedure; Jason Michael Sharp was indicted for capital murder.   Before trial, he moved to suppress statements he had made to the police.  Judge Laura W. Hamilton granted Sharp's pretrial suppression motion.  Sharp then moved the court to dismiss the indictment, arguing that the indictment was based on the suppressed statements.  On May 9, 2002, the district attorney volunteered to reindict Sharp without the use of the statements and agreed to have the grand jury proceedings resulting in the indictment recorded and transcribed, and the trial court directed that the grand jury proceedings be transcribed.  In May 2002, Sharp was reindicted for capital murder; however, the grand jury proceedings were not recorded and transcribed.  Sharp filed an amended motion to dismiss the second indictment because the proceedings were not recorded and transcribed.  On September 20, 2002, Judge Hamilton issued a written order directing the district attorney to reindict  Sharp yet again and to record and transcribe the proceedings.  Judge Hamilton also stated that if the district attorney failed to comply he was to appear before the court on November 20, 2002, and show cause why he should not be held in contempt.   On October 25, 2002, the State sought to have Judge Hamilton recuse herself from the case.  On November 18, 2002, Judge Hamilton issued an order declining to recuse herself.  On the same day, the State petitioned the Court of Criminal Appeals for a writ of mandamus directing Judge Hamilton to recuse herself and for a writ of prohibition directing Judge Hamilton to vacate her September 20, 2002, order requiring the district attorney to have the grand jury proceedings recorded and transcribed.  On January 31, 2003, the Court of Criminal Appeals granted the State's petition for the writ of prohibition and, without opinion, denied the State's petition for a writ of mandamus.  Sharp and Judge Hamilton filed separate petitions for writ of mandamus to the Supreme Court seeking a writ of mandamus instructing the Court of Criminal Appeals to vacate its order granting the State of Alabama's petition for a writ of prohibition.  HOLDING:  The Supreme Court granted the petitions.  The Court held that the Court of Criminal Appeals erred in accepting the State's petition for the writ of prohibition as timely.  The Court concluded that the petition should have been filed within the seven-day period set forth in Rule 15.7, Ala.R.Crim.P.)
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• Ex parte State of Alabama (In re: Girard v. State),

No. 1020889 (Ala. Dec. 30, 2003)
(criminal; multiple counts of possessing obscene matter; unit of prosecution; David A. Girard was indicted on May 23, 2001, for 26 counts of possessing obscene matter, violations of Ala. Code §13A-12-192(b).  The counts were based on the number of alleged obscene images on the defendant's computer.  The images had been saved or downloaded on different dates and times.  Girard's trial began on October 10, 2001.  After the State had presented its case-in-chief, the trial court granted Girard's motion for a judgment of acquittal on counts 2 through 6, 14, and 17 through 26, leaving pending 10 counts of possession of obscene matter.  On October 11, 2001, the jury found Girard guilty of all 10 counts.  On November 14, 2001, the trial court sentenced Girard to 10 years in prison on each count, but "split" the sentence and ordered Girard to serve 3 years in prison followed by 5 years on probation.  The trial court ordered that Girard's sentences were to run concurrently.   Girard appealed to the Court of Criminal Appeals.  That court reversed the judgment of the trial court and remanded the cause for the trial court to vacate all but one of the convictions and sentences.   HOLDING:  The Supreme Court affirmed the Court of Criminal Appeals.  The Court concluded that the proper unit of prosecution for the offense of possession of obscene matter under Ala. Code §13A-12-192(b) is the possession of the obscene matter, regardless of how many items are actually possessed.)
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• Turenne v. Turenne,

No. 1021056 (Ala. Dec. 30, 2003)
(domestic relations; subject-matter jurisdiction; dispute over a marital settlement agreement that was incorporated in the judgment of divorce; Roger W. Turenne, the Roger W. Turenne 2001 Revocable Trust, and Turenne PharMedCo, Inc. (hereinafter referred to collectively as "the plaintiffs"), sued Patti W. Turenne, individually and as trustee of the Patti W. Turenne Revocable Trust; Christopher R. Schmidt, Patti's son, as trustee of the Patti W. Turenne Revocable Trust; Timothy W. Schmidt, Patti's son, as trustee of the Patti W. Turenne Revocable Trust; Talladega Healthcare Center, Inc.; Albertville Healthcare Center, Inc.; Hillview Properties, LLC; as well as other fictitiously named defendants, on claims alleging in count I, fraudulent inducement; in count II, suppression of material facts; in count III, breach of contract against Patti Turenne; in count IV, breach of contract against Talladega Healthcare Center, Inc., Albertville Healthcare Center, Inc., and Hillview Properties, LLC; in count V, anticipatory breach of contract against Talladega Healthcare Center, Inc., Albertville Healthcare Center, Inc., and Hillview Properties, LLC; and in count VI and count VII, money due and owing.  on December 12, 2001, Roger Turenne and Patti Turenne entered into a marital settlement agreement.  On December 13, 2001, a final judgment of divorce was entered, divorcing Roger Turenne and Patti Turenne.  The judgment stated, in pertinent part, that "the 'Marital Settlement Agreement' entered into between the parties on the 12 day of December, 2001, is hereby incorporated and merged into this Order, the same to be legally binding on both parties and enforceable by either."  The marital settlement agreement provided for a property division between Roger Turenne and Patti Turenne.  Before their divorce, the couple jointly owned several businesses, including a medical-supply company and two nursing homes.  Under the agreement, Roger received, among other things, PharMedCo, a pharmaceutical and medical-supply company, and Patti received the two nursing homes -- Albertville Healthcare Center, Inc., and Talladega Healthcare Center, Inc.  Hillview Properties, LLC, operates a nursing home under the name Hillview Terrace.  According to the plaintiffs' complaint, "Patti Turenne is a 60% member of Hillview Properties, and ... Chris Schmidt is a 40% member of Hillview Properties."  The marital settlement agreement did not purport to change the ownership of Hillview Properties.  Patti Turenne, Christopher Schmidt, Timothy Schmidt, Talladega Healthcare Center, Inc., Albertville Healthcare Center, Inc., and Hillview Properties, LLC, moved to dismiss counts I (fraudulent inducement), II (suppression of material facts), III (breach of contract as to Patti Turenne), and V (anticipatory breach of contract as to Talladega Healthcare Center, Inc., Albertville Healthcare Center, Inc., and Hillview Properties, LLC) because, they stated in their motion, "as a matter of law, these claims fail to state claims upon which relief can be granted."  The motion to dismiss also stated that those four claims "all stem[med] from a Marital Settlement Agreement entered between [Roger Turenne] and Plaintiff's former wife, Defendant Patti Turenne."  The circuit court granted the motion to dismiss.  HOLDING:  The Supreme Court affirmed.  The Court held that the Turennes' marital settlement agreement is no longer an enforceable contract; it was subsumed by the divorce judgment.  The Court held that jurisdiction of all matters arising from the divorce judgment, including the provisions of the marital settlement agreement, remained with the domestic relations division of the Montgomery Circuit Court, which, in a proper exercise of its jurisdiction, had entered a judgment divorcing Roger Turenne and Patti Turenne.  The Court noted that the fraud actions, i.e., count I (fraudulent inducement) and count II (suppression of material facts), are within the ancillary jurisdiction of the domestic relations division of the Montgomery Circuit Court.  The Court noted that the dismissal was without prejudice and that nothing prevents Roger Turenne from refiling this action in the domestic relations court, and nothing prevents the domestic relations court from enforcing the divorce judgment it entered.)
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• Ex parte Liberty Nat'l Life Ins. Co.,

No. 1021173 (Ala. Dec. 30, 2003)
(Barbara Roberts, Duane Johnson, and Mary Nalley sued Liberty National Life Insurance Company and Torchmark Corporation (hereinafter collectively referred to as "Liberty National") in the Choctaw Circuit Court, alleging breach of contract, unjust enrichment, misrepresentation, and suppression.  The action was brought on behalf of them and a class of persons who were the insureds under certain types of cancer-insurance policies sold by Liberty National (hereinafter "the plaintiffs").  The plaintiffs alleged that Liberty National failed to inform them that it had closed their block of insurance policies and that Liberty National had actively misrepresented the reasons for the increase in the amount of their premiums.  The plaintiffs were all members of the class certified in Adams v. Robertson, 676 So. 2d 1265 (Ala. 1995).  Robertson,  a class action filed in the Barbour Circuit Court, involved over 400,000 policyholders of Liberty National Life Insurance Company cancer insurance (hereinafter the "Robertson class").  The Robertson class alleged that Liberty National Life Insurance Company had fraudulently encouraged them to switch their insurance policies ("the old policies") for new policies that provided less coverage ("the new policies").  The Robertson class included both persons who had switched to the new policies and those who had retained their old policies.  The action was settled, and the settlement, as modified, was approved by the trial court; its order was affirmed by the Supreme Court.  The settlement required Liberty National Life Insurance Company to offer to the members of the Robertson class insurance policies with substantially all of the benefits of the old and new policies; it also prevented Liberty National Life Insurance Company from increasing premiums on the policies for three years and from ever increasing premiums by an amount that would result in a loss ratio of less than 55%.  These "special policies" were never offered to persons outside the Robertson class.  After three years, the premiums for the Robertson class increased substantially, but never exceeded the limit set forth in the Robertson settlement.  After Liberty National Life Insurance Company increased the premiums, the plaintiffs filed this action in the Choctaw Circuit Court against Liberty National, seeking another class certification.  In response, Liberty National filed a motion to dismiss or, in the alternative, for a summary judgment.  The basis of its motion was 1) that the Robertson settlement gave the Barbour Circuit Court continuing jurisdiction over matters related to the Robertson settlement and its enforcement and that, therefore, the Choctaw Circuit Court lacked subject-matter jurisdiction, 2) that the current action was barred by the res judicata effect of Robertson, and 3) that the claims now being asserted by the plaintiffs had been released as a part of the Robertson settlement.  The court denied the motion.  Liberty National then filed a motion to alter, amend, or vacate the order denying its motion or, in the alternative, to certify the order for an interlocutory appeal, pursuant to Rule 5, Ala. R. App. P.  The court denied that motion as well.  Liberty National now seeks a writ of mandamus ordering the trial judge either to dismiss the action or to certify for an interlocutory appeal his denial of its motion to dismiss.  HOLDING:  The Supreme Court granted the petition.  The Court held that the question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.  The Court held that the current action essentially attempts to improperly attack collaterally in another circuit court portions of the Robertson settlement.  The Court held that the Barbour Circuit Court expressly retained continuing jurisdiction over matters relating to the Robertson settlement and the enforcement of that settlement and that, therefore, the Choctaw Circuit Court does not have jurisdiction to hear this action.  The Court ordered the Choctaw Circuit Court to dismiss this action.)
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• Veteto v. Swanson Servs. Corp.,

No. 1021278 (Ala. Dec. 30, 2003)
(appellate procedure; failure to prosecute; Ronald D. Veteto ("Veteto") sued Swanson Services Corporation ("Swanson") and, "in both their individual and official capacities," Michael Haley, commissioner of the Alabama Department of Corrections ("DOC"); Billie Mitchem, warden of the William E. Donaldson Correctional Facility, a prison operated under the auspices of DOC and located in Bessemer, Alabama; Hurbert Etheridge, a captain at Donaldson; and Officer Marion C. Espy, a correctional officer supervisor II at Donaldson (Haley, Mitchem, Etheridge, and Espy are hereinafter referred to collectively as the DOC defendants).  Veteto, an inmate at Donaldson, alleged in his complaint that he had completed Swanson order forms distributed to inmates by Donaldson employees for the purpose of selecting items, to be paid for by his parents, available to inmates under Swanson's "Holiday Package Program."  The order forms represented that orders received by November 13, 2000, would be delivered between December 11 and December 22, 2000.  Veteto's parents subsequently completed their portion of the forms and mailed them to Swanson along with an "official" bank check made out to the order of Swanson in the amount of $158.68.  Veteto did not receive his holiday packages during the promised time frame; they were finally delivered on January 5, 2001.  Donaldson employees checked the contents of the packages, but, according to Veteto, they "rushed the process," comingling the contents, thereby failing to detect "some of the shortages and overages" that Veteto subsequently determined to exist in the packages.  Veteto determined that a number of items were missing, that some items were included that he had not ordered, and that various items of candy and snack foods were damaged or degraded.  Veteto concluded that the total value of the shortages was $40.09.  In addition to making numerous factual assertions against Swanson and asserting a variety of theories of legal liability against it, Veteto asserted that the DOC defendants "conspired with and/or aided and abetted" Swanson in its breach of contract and tortious wrongdoings.  Veteto sought actual damages for breach of contract in the amount of $40.09; $20,000 in compensatory damages against Swanson "for hungry, sickness, mental pain and anguish, and emotional distress"; $10,000 in compensatory damages against the DOC defendants "for conspiring with and aiding and abetting Swanson"; and $50,000 in punitive damages against Swanson and the DOC defendants.  The DOC defendants filed a motion to dismiss, or, alternatively, for a summary judgment.   The DOC defendants argued various legal points in a supporting brief, including their immunity from suit and that there had been no "material breach of contract."  The trial court entered a summary judgment in favor of the DOC defendants and dismissed for want of prosecution the claims against Swanson.  Veteto filed a notice of appeal stating that he "appeals to the Supreme Court of Alabama from the dismissal of this civil action with prejudice for want of prosecution"   There was no indication that he was appealing as to the DOC defendants. HOLDING:  The Supreme Court affirmed.  The Court held that the propriety of the judgment in favor of the DOC was not before the Court because of the failure of Veteto to indicate he was appealing as to that judgment.  As to Swanson, the Court held that Veteto's failure to seek a deposition either under Rule 30 or 31, there was nothing before the trial court that could have constituted Veteto's "prosecution" of the civil case.  Veteto, as an incarcerated civil plaintiff, is not entitled to be brought from the penitentiary to testify in his own behalf.  The Court concluded that the trial judge did not exceed his discretion in dismissing Veteto's claims against Swanson for want of prosecution at the scheduled trial date, given the state of the record at that time.)
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• Blount Recycling, LLC v. City of Cullman,

Nos. 1021683 & 1021766 (Ala. Dec. 30, 2003)
(preliminary injunction; The City of Cullman ("City") and the Cullman County Commission ("Commission") established the Cullman County Solid Waste Authority to provide for the disposal of solid waste generated within the geographical limits of Cullman County, which includes the City.  In 1992, the City, the Commission, and the Cullman County Solid Waste Authority entered into the Waste Disposal Services Agreement.  The agreement provided for the disposal of waste generated in Cullman County in a landfill built by the Authority.  The Commission enacted a resolution and the City enacted an ordinance to govern the collection of nonhazardous solid waste within the geographical limits of Cullman County.  The provisions authorize the City and the Commission to provide for the collection and the disposal of nonhazardous solid waste, with a few exceptions noted for sharing services and for the issuance of certificates of exception to persons or entities who did not want the service.  Blount Recycling is a waste-collection and recycling company authorized by the Alabama Department of Environmental Management to do business in every county in Alabama.  Blount Recycling operates a construction and demolition landfill in Blount County.  In 2002, Blount Recycling was issued a business license to conduct its business in Cullman County.  Shortly after it was issued a license to operate in Cullman County, Blount Recycling began advertising its services and picking up construction and demolition debris from around the City and in other parts of Cullman County.  The City notified Blount Recycling by letter that Blount Recycling's collection of the construction and demolition debris violated the City ordinance and the Commission's resolution.  The City requested that Blount Recycling discontinue its collection services.  Blount Recycling refused.  The City filed an action seeking a declaration of the parties' rights as to the collection of the debris and a petition seeking a preliminary injunction preventing Blount Recycling from collecting waste in the City.  The ordinance was the only evidence submitted by the City to establish the prerequisites for the issuance of the preliminary injunction.  The circuit court issued a preliminary injunction prohibiting Blount Recycling from collecting waste in the City until a final hearing was held in the case.  The Commission similarly began its action against Blount Recycling by filing in the circuit court a  declaratory-judgment action and a petition seeking an injunction.  Without conducting a hearing, the circuit court enjoined Blount Recycling from picking up or hauling solid waste in Cullman County.  HOLDING:  The Supreme Court reversed.  The Court found that the ordinance does not establish that the City will suffer immediate and irreparable injury without the injunction; or that the City is likely to succeed on the merits of the case; or that the hardship imposed upon Blount Recycling by the injunction would not unreasonably outweigh the benefit to the City.  As to the Commission, the Court noted that the Commission did not present any evidence and Blount Recycling was not given an opportunity to be heard.  It therefore ordered that its injunction be dissolved.  The Court held, however, that the City and the Commission were not precluded from requesting the circuit court to again issue an injunction, if they deem one necessary.)
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• Ex parte Murphy,

No. 1021703 (Ala. Dec. 30, 2003)
(domestic relations; periodic alimony; agreement to pay periodic alimony after remarriage; merger with divorce judgment; Ala. Code §30-2-55;  James R. Murphy and Mary J. Murphy Benvenuto divorced.  Incorporated into the parties' final judgment of divorce was a settlement agreement that awarded $1,500 per month as periodic alimony to Benvenuto.  It further provided that "[t]he award of periodic alimony shall not be taxable to the payee spouse nor deductible to the payor spouse."  About 19 months later, the parties executed an agreement purporting to modify the amount of alimony.  It provided that the agreement to pay periodic alimony will terminate in the event that Benvenuto marries someone other than Murphy, but that it would not take effect until January 1, 2000.  It further provided that Murphy would pay Benvenuto $300 per month for life upon the marriage of Benvenuto. The agreement also provided that the $300 per month was to be used for the support, maintenance, and general maintenance and for the health of Benvenuto during her lifetime, but Benvenuto agreed to deposit in an account separate from her estate which upon her death any monies therein would be paid to Murphy any money not so used.  The agreement also provided that either party could petition the court to incorporate the agreement into the divorce judgment.  Benvenuto remarried on December 1, 1999.  Murphy paid Benvenuto $300.00 per month from January 2000 until June 2001.  On September 20, 2001, Benvenuto petitioned the Russell Circuit Court to modify the final judgment of divorce to reflect the incorporation into the judgment of the agreement to modify alimony in the event of remarriage.  The court ordered  "That permanent periodic alimony to be paid by [Murphy] to [Benvenuto] is set at $300.00 per month as of the date of [Benvenuto's] remarriage."  Murphy appealed the circuit court's order to the Court of Civil Appeals; that court affirmed, without an opinion.  HOLDING:  The Supreme Court reversed the Court of Civil Appeals.  The Court held that when Murphy and Benvenuto executed the agreement to reduce Murphy's periodic-alimony payments after her remarriage, the agreement was contractual in nature and could be enforced like any other contract.  However, the Court held that when Benvenuto petitioned the Russell Circuit Court to incorporate the agreement into the divorce judgment, the agreement lost its contractual nature and became subject to the equity power of the court.  The Court held that when the agreement became subject to the equity power of the court, it became incumbent upon the court to follow the mandates of Ala. Code §30-2-55.  Thus, the Court held that the circuit court exceeded the scope of its authority in ordering Murphy to pay alimony after Benvenuto had remarried.)
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• Ex parte Bracknell,

No. 1021724 (Ala. Dec. 30, 2003)
(criminal; sufficiency of pleading of Rule 32 petition for post-conviction relief; ineffective assistance of counsel; The Supreme Court denied the petition for writ of certiorari without opinion.  Justice Johnstone wrote a dissenting opinion.)
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• Ex parte Procom Servs., Inc.,

No. 1021851 (Ala. Dec. 30, 2003)
(outbound forum-selection clause; venue; nonsignatories; Hank Smith, Jr., sued Procom Services, Inc. ("Procom"), a Texas corporation, and Russell Leitch and Hal Crews, both residents of Dallas, Texas, in the Jefferson Circuit Court alleging breach of an employment contract. Procom, Leitch, and Crews filed a motion to dismiss alleging, among other grounds, that venue in Jefferson County was improper and asking the trial court to enforce the outbound forum-selection clause contained in Smith's employment contract with Procom.  The motion to dismiss was supported by Leitch's and Crews's affidavits.  Smith amended his complaint to add a fraud claim based upon allegedly false representations made to him by Leitch and Crews.  Smith also filed a response to the defendants' motion to dismiss, along with his supporting affidavit.  The trial court overruled the motion to dismiss without a written explanation.  Procom, Leitch, and Crews petition this Court for a writ of mandamus "directing the trial court to dismiss the claims of Smith against petitioners" based on the outbound forum-selection clause. HOLDING:  The Supreme Court granted the writ of mandamus.  The Court held that Smith failed to meet his burden of "clearly establish[ing]" that enforcement of the forum-selection clause was unfair because the clause was "affected by fraud."  The Court held that Smith failed to establish that the employment contract was affected by overweening bargaining power.  The Court held that a trial in Dallas, Texas, would not be so difficult and inconvenient that it would effectively deprive Smith of his day in court.  The Court held that because Smith's claims against nonsignatories Leitch and Crews arise out of statements Leitch and Crews allegedly made while negotiating Smith's employment contract with Procom, Leitch and Crews are entitled to enforce the outbound forum-selection clause contained in the employment contract.)
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• Ex parte Romines,

No. 1022065 (Ala. Dec. 30, 2003)
(workers' compensation; hypertension; definition of "injury" in the Workers' Compensation Act; The Supreme Court denied the petition for writ of certiorari without opinion.  Justice Johnstone wrote a dissenting opinion.)
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• Ex parte Pierce,

No. 1030054 (Ala. Dec. 30, 2003)
(domestic relations; child custody; evidence that may be considered on a Ala.R.Civ.P. 59 motion; The Supreme Court denied the petition for writ of certiorari without opinion.  Justice Johnstone wrote a dissenting opinion.)
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Opinions Released December 19, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  DECEMBER 19, 2003

 
• Dolgencorp, Inc. v. Hall,

No. 1012000 (Ala. Dec. 19, 2003)
(premises liability; negligence; Faye Hall went to a Dollar General Store to find a household item. As she was looking for the item, she noticed a musical instrument on a top shelf.  Someone said, "Excuse me" and stepped in front of Hall.  Hall stepped back.  When she stepped forward and looked up toward the instrument on the top shelf, a liquid substance fell in her face, getting in her nose, mouth, and eyes.  She called for help because her face was burning. Ruth Johnson, a Dollar General Store assistant manager, helped get Hall to the bathroom so Hall could wash her face. Johnson noticed that Hall's lips, face, and arm were burned.  After the paramedics arrived and treated Hall, Johnson went to the area where the incident occurred and found a bottle of liquid drain cleaner lying on a shelf; the top to the bottle was on the shelf beside the bottle.  She also saw that there was liquid from the bottle on the shelf and running down the side of the shelf.  Johnson had not seen the bottle of liquid drain cleaner on the shelf when she inspected the store the night before and again at 8:30 that morning. The shelf where the bottle was was not the shelf where the liquid drain cleaners were ordinarily kept.  On the day of the incident, the Dollar General Store employees had conducted "recovery," which included checking the shelves for bottles with loose caps, at 8:30 a.m.  The incident involving Hall occurred at 11:30 a.m.  Dollar General Store employees had noticed that bottles sometimes arrived at the store with loose caps.  In addition, the employees speculated that vandals or careless customers left the caps loose on some bottles already on the shelves.  Sandra Ingram, the store manager, testified that the store had only two employees working at any one time because it did not have the money to hire more employees. She testified that if she had more employees, she would have had them doing "recovery" more often.  Hall sued Dolgencorp, Inc. ("Dolgencorp"), which owns and operates Dollar General Store discount stores, alleging negligence and wantonness after the contents of a bottle of liquid drain cleaner spilled onto her face from a shelf in the Dollar General Store in Marion.  At trial, at the close of Hall's case-in-chief, Dolgencorp filed a motion for a judgment as a matter of law ("JML") as to Hall's negligence and wantonness claims.  The trial court granted Dolgencorp's motion as to the wantonness claim, but it denied the motion as to the negligence claim.  At the close of all of the evidence, Dolgencorp renewed its motion for a JML as to Hall's negligence claim, and the trial court again denied the motion.  The jury returned a $100,000 general verdict for Hall, and Dolgencorp appealed. HOLDING:  The Supreme Court reversed.  The Court noted that no evidence indicating that a store employee put the bottle on a high shelf next to the musical instruments or that any employees knew that the liquid drain cleaner was misshelved and that the cap to the bottle was loose or had been removed, and it held that such a conclusion would be mere speculation and therefore insufficient to show negligence on the part of Dolgencorp.  The Court stated that the fact that Dolgencorp did not have an employee policing every aisle at more frequent intervals does not mean that it was on constructive notice of the hazardous condition that resulted in Hall's injury.  The Court held that, therefore, the trial court erred by not granting Dolgencorp's motion for a JML.)
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• Ex parte Heard,

No. 1020241 (Ala. Dec. 19, 2003)
(criminal; appellate procedure; Ala.R.Crim.P. 24.4; time for appeal; On January 12, 2002, Rodericus Heard was convicted of one count of murder and one count of capital murder.  He was sentenced to life imprisonment for the murder conviction and to life imprisonment without the possibility of parole for the capital-murder conviction.  After his trial and sentencing, Heard filed a motion for a new trial on February 11, 2002.  On the same day, Heard also filed a "Motion to Set Hearing and Extend Time for Decision on Motion for New Trial and Motion in Arrest of Judgment."  Heard's motion stated two grounds for extending the time.  The first ground was that the time needed to prepare the trial transcript, combined with the time needed to adequately review the transcript, would likely be longer than 60 days.  Heard's counsel explained that pursuant to Rule 24.4, Ala. R. Crim. P., the motion for a new trial would be denied by operation of law 60 days after the pronouncement of sentence.  The second ground for the motion was that Heard's counsel was pregnant, and she anticipated being on maternity leave during a portion of the 60-day period.  Heard's counsel asserted in the motion that "the undersigned has contacted counsel for the state who consents to such an extension [of time] for the stated grounds."  In response to the motion, the trial court filed an order on March 13, 2002, setting Heard's motion for a new trial for a hearing on April 11, 2002.  Subsequently, Heard's counsel, for reasons unclear from the record, filed a notice of appeal on May 22, 2002, 41 days after the April 11, 2002, scheduled hearing date.  Upon receiving the notice of appeal, the Court of Criminal Appeals issued an order on June 20, 2002, stating that it appeared that Heard's motion for a new trial had been denied by operation of law on March 13, 2002, unless the motion had been continued.  The Court of Criminal Appeals ordered Heard to provide that court with "a certified copy of the entry of record made on or before March 13, 2002, continuing his motion for new trial beyond that date in compliance with the procedure prescribed in Rule 24.4 of the Alabama Rules of Criminal Procedure."  The court further stated that if Heard failed to provide the requested material within 14 days, his appeal would be dismissed.  Heard responded to the order by filing in the trial court a motion requesting that court to clarify its March 13, 2002, order.  The trial court held a hearing on the motion and afterwards, on July 3, 2002, issued a corrected order.  The court's order stated that its understanding at the time of the March 13, 2002, order was that the prosecutor and Heard had consented to extend the time for a ruling on Heard's motion for a new trial.  Furthermore, the trial court stated that its failure to include a reference in the text of its March 13, 2002, order to the parties' consent to extend the time was a clerical error.  Consequently, pursuant to Rule 29, Ala. R. Crim. P., the trial court corrected its March 13, 2002, order to include a recitation that the parties had in fact consented on record to the continuance.  Heard filed this clarification order with the Court of Criminal Appeals on July 8, 2002.  The  record of the case was certified as complete by the circuit clerk on July 24, 2002, and was filed with the Court of Criminal Appeals on July 29, 2002.  The Court of Criminal Appeals dismissed Heard's appeal.  In its opinion dismissing Heard's appeal, the Court of Criminal Appeals noted that, under Rule 59.1, Ala. R. Civ. P., which provides that in civil cases a postjudgment motion is deemed denied by operation of law after it has been pending for 90 days, a trial court loses jurisdiction over any postjudgment motions not ruled upon within 90 days, unless there is a continuance that is of record before the expiration of the 90-day period.  The Court of Criminal Appeals analogized Rule 59.1 to Rule 24.4, Ala. R. Crim. P., which provides that a motion for a new trial is deemed denied after it has been pending for 60 days, and held that the trial court in this case was without jurisdiction to enter its clarification order because it lost jurisdiction of the case after 60 days.  Therefore, the Court of Criminal Appeals dismissed Heard's appeal as untimely.  HOLDING:  The Supreme Court reversed the dismissal by the Court of Criminal Appeals.  The Court held that the express consent of both parties to the continuance of the motion for a new trial was clearly expressed in the record before March 13, 2002, as required by Rule 24.4, Ala. R. Crim. P., by Heard's  uncontested February 11, 2002, motion, contained in the record, which stated that Heard's counsel had "contacted counsel for the state who consents to such an extension for the stated grounds.")
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• Callaway v. Whittenton,

No. 1020660 (Ala. Dec. 19, 2003)
(wrongful repossession and trespass; On May 10, 2000, Christopher Callaway purchased a 1993 Geo Tracker sport utility vehicle from Summerdale Budget Auto & Truck, Inc.("Budget").  Baldwin Finance, Inc., which financed the Callaways' purchase of the Tracker, held a lien on the Tracker; the sales agreement entered into by the Callaways and Budget gave Budget and Baldwin Finance the right to repossess the vehicle in the event of a default.  The Callaways did not make the payment due in August.  On August 31, 2000, Michael Whittenton, who repossessed cars as an unincorporated independent contractor, repossessed the Tracker without incident.  Christopher paid the past-due amount and the repossession fee and retook possession of the Tracker.  The Callaways allege that Budget orally agreed to extend the date the October payment was due to November 24, 2000.  The only evidence of this oral agreement is the Callaways' testimony; the record contains no evidence presented by Budget regarding the alleged extension, and there is no evidence of consideration for the alleged agreement to defer the October payment.  The Callaways did not make the October payment when it was due, and Whittenton repossessed the Tracker again on November 6, 2000, at approximately 11:00 a.m.  The second repossession is the subject of this action.  The parties disagree as to what happened on November 6, 2000.  The Callaways sued Whittenton, Budget, and Baldwin Finance, alleging assault and battery, negligence, wantonness, trespass, civil conspiracy, and wrongful repossession (a violation of § 7-9-503, Ala. Code 1975 (secured party's right to take possession after default; replaced by §7-9A-609)); Joy Callaway alleged loss of consortium.  Budget and Baldwin Finance separately moved to compel arbitration, and on October 30, 2001, the trial court granted their motions.  The Callaways' claims against Whittenton were tried.  On December 12, 2002, at the close of the Callaways' case, the trial court granted Whittenton's motion for a judgment as a matter of law as to the wrongful-repossession, trespass, and civil-conspiracy claims.  The remaining claims -- negligence, wantonness, assault and battery, and loss of consortium -- were submitted to the jury.  The jury found in favor of Whittenton on all claims.  The Callaways appealed the trial court's judgment as a matter of law as to their claims of wrongful repossession and trespass.  HOLDING:  The Supreme Court affirmed as to the trespass claim and reversed as to the wrongful repossession claim.  The Court concluded that the Callaways were in default under the purchase agreement, and Budget was entitled to take possession of the car.  However, the Court noted that Budget was required to take possession without causing a breach of the peace.  The Court held that the testimony of the Callaways, though somewhat contradictory, is substantial evidence that the repossession was not accomplished "peacefully (i.e., without risk of injury to the secured party, the debtor, or any innocent bystanders)."  Because Whittenton entered onto the Callaways' property for the purpose of repossessing the Tracker, the Court held that Whittenton had a legal right to be on the premises, and it affirmed the trial court's judgment as a matter of law on this issue.  However, viewing the evidence in the light most favorable to the nonmovant Callaways, the Court concluded that they presented sufficient evidence from which a jury could conclude that in repossessing the Tracker Whittenton breached the peace; therefore, the Court held that the claim alleging wrongful repossession should have been submitted to a jury.)
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• Gore v. Alabama Dep't of Public Safety,

No. 1020722 (Ala. Dec. 19, 2003)
(sovereign immunity; conversion; declaratory judgment; seizure of cash and other personal property; On November 2, 2001, Ray Gore was stopped by an Alabama State Trooper for speeding on I-65 near Bay Minette.  During that traffic stop, the trooper discovered approximately $115,000 in United States currency in Gore's possession.  Suspecting that the currency may have been the product of criminal activity, the trooper confiscated it, along with Gore's cellular telephone and various personal documents.  Gore was neither arrested nor taken into custody as a result of the traffic stop.  The cash was subsequently transferred to the Federal Drug Enforcement Administration ("DEA"), which instituted forfeiture proceedings.  Gore has not been charged with any crime, offense, or violation, other than a warning citation he received for speeding.  He has since sought the return of the currency and personal items from the Department of Public Safety; however, the Department has refused to return them, stating that an investigation is ongoing and that the return of potential evidence could jeopardize that investigation.  On March 21, 2002, Gore sued the Department in the Baldwin Circuit Court alleging conversion and seeking a judgment declaring that the seizure of the money and personal items was wrongful.  The Department moved to dismiss the complaint, alleging that Gore failed to state a claim upon which relief could be granted and that the trial court lacked subject-matter jurisdiction over the matter.  The trial court granted the motion as to the currency, which was in the possession of the DEA, but denied the motion as to the personal property, over which the Department maintained control.  The Department moved for a summary judgment on Gore's remaining claims relating to the cellular telephone and the personal documents.  The trial court granted that motion.  HOLDING:  The Supreme Court held that the trial court properly dismissed Gore's claim for a judgment declaring that the seizure of the currency was wrongful and his claim for conversion seeking damages because they are barred under the doctrine of sovereign immunity.  However, the Court held that the doctrine of sovereign immunity is not applicable to Gore's claim for the physical return of the seized items, because the return of that property could be compelled as a ministerial act and there is an exception to sovereign immunity for actions brought to compel State officials to perform ministerial acts.  The Court held that the retention of a citizen's property for 15-24 months may not be justified solely by the law-enforcement agency's assurance that an investigation is ongoing.  The Court held that Gore has, therefore, established a genuine issue of material fact as to whether the Department has wrongfully withheld his cellular telephone and personal documents.  As such, the Court reversed the summary judgment entered in favor of the Department regarding the cellular telephone and personal documents.)
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• AmSouth Bank v. Looney,

No. 1020839 (Ala. Dec. 19, 2003)
(arbitration; discovery; Beulah H. Looney, a customer of AmSouth Bank, sued AmSouth and its employee Helen Kendrick for invasion of privacy and intentional infliction of emotional distress for disclosing information about Looney's AmSouth bank accounts to certain persons.  Relying on arbitration agreements contained in the "Customer Agreements" between Looney and AmSouth, AmSouth moved to compel arbitration.  Responding to the arbitration motion, Looney did not attack the grounds asserted by AmSouth to invoke arbitration but, instead, requested production of a number of specified documents.  Looney moved to defer a ruling on the motion to compel arbitration long enough for Looney to obtain the requested documents to prepare defenses to the arbitration motion.  Looney supported this motion with an affidavit.  AmSouth filed an objection to the request for discovery and a motion to strike the affidavit by Looney.  AmSouth argued that, because Looney had not stated any facts to  demonstrate any defense to the arbitration agreement, her request for discovery should be denied and her affidavit should be stricken.  The trial court granted the request by Looney for discovery of the requested documents, denied the motion by AmSouth to strike the affidavit by Looney, and denied the motion by AmSouth to compel Looney to arbitrate her claims.  HOLDING:  The Supreme Court held that Looney does not state in her affidavit or in any other materials presented to the trial court why the documents she seeks would invalidate the documents incorporating by reference or containing the arbitration agreement invoked by AmSouth.  The Court also noted that AmSouth apparently has already supplied most of the discovery sought by Looney.  The Court noted that while Looney's affidavit denies that she has ever signed or even seen an arbitration agreement with AmSouth, her affidavit does not deny that she has signed documents which incorporated the arbitration agreement by reference and that acknowledged her receipt of the arbitration agreement.  The Court held that these signed documents are sufficient to bind her to the terms of the arbitration agreement.  The Court concluded its opinion by stating that "if, as in this case, the party opposing arbitration has not made a record before the trial court sufficient to support the discovery order accompanying the premature denial of the motion to compel arbitration, then our reversal of the denial must be accompanied, as this one hereby is, with an instruction that the trial court not only vacate the denial but also enter an order granting the motion to compel.")
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• DCH Healthcare Auth. v. Duckworth,

No. 1020913 (Ala. Dec. 19, 2003)
(medical malpractice; dilatory-diagnosis-and-treatment case; 83-year-old Dee Duckworth went to the DCH Regional Medical Center ("the Center") on October 9, 1999, to pick up  Mary Duckworth, a patient at the Center, who was being discharged that day.  After arriving at the Center, however, Mr. Duckworth fell on an escalator and struck his head.  He was taken to the emergency department at 10:24 a.m.  Mrs. Duckworth was notified of the accident and joined him at the emergency department.  At 10:59 a.m., Dr. Malcolm Nelson, the emergency-department physician, examined Mr. Duckworth and ordered an X-ray examination, which began at 12:36 p.m.  For approximately 45 minutes preceding the X-ray examination, Mr. Duckworth waited in the hallway of the radiology department.  While he was waiting, he developed a headache and nausea.  He vomited during and after the X-ray examination.  At 1:17 p.m., Dr. Nelson ordered a computerized tomography scan ("CT scan"), which was performed at 1:54 p.m.  At 2:00 p.m., the radiology department notified emergency-department personnel that Mr. Duckworth had a subdural hematoma.  At approximately 2:15 p.m., Mr. Duckworth was relocated to the critical-care unit, and neurosurgeon Dr. Moses Jones was called to relieve the hemorrhage.  Dr. Jones arrived at the Center at approximately 3:15 p.m.  Surgery  began at 4:40 p.m. and was completed at 6:00 p.m.  Mr. Duckworth remained hospitalized until October 22, 1999, when he died as a result of the injuries he sustained in the fall on October 9.  Subsequently, Mrs. Duckworth sued the Center, alleging that Dr. Nelson and the other emergency-department personnel "caused or negligently allowed [Mr. Duckworth] to go without proper and timely evaluation, monitoring, care, and treatment for a potential closed-head injury, and failed to timely and properly address, observe and report changes in his condition."  The complaint further alleged that as a consequence of the alleged negligence, Mr. Duckworth "was caused to worsen with a cerebral bleed and he was so injured that he died."  During the trial of the case, the Center moved for a judgment as a matter of law ("JML") at the close of Mrs. Duckworth's evidence, and, again, at the close of all the evidence.  As a ground for the motions, the Center asserted that Mrs. Duckworth failed to present substantial evidence of causation by expert testimony.  The trial court denied  the motions, and a jury awarded Mrs. Duckworth $350,000.  The Center filed a postverdict motion for a JML.  That motion was overruled by operation of law.  HOLDING:  The Supreme Court reversed and rendered a judgment for the Center.  The Court concluded that Mrs. Duckworth failed to present substantial evidence of medical causation.  The Court noted that the plaintiff's only medical expert testimony is functionally identical to the testimony held to be insufficient in McAfee v. Baptist Medical Center, 641 So.2d 265 (Ala. 1994).)
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• Delta Health Group, Inc. v. Stafford,

No. 1021675 (Ala. Dec. 19, 2003)
(defamation; fraud; loss of consortium; Delta Health Group, Inc. operates approximately 45 nursing homes in the Southeastern states; Willow Trace Nursing Home, located in Butler, Alabama, is one of those nursing homes.  Beginning in 1994 until August 1997, Tim Stafford worked as the maintenance supervisor for Willow Trace.  He resigned in August 1997 to take a higher paying position with another employer.  During an internal study conducted in 1999, Delta Health could not account for certain building materials purchased on Willow Trace's account during the period from December 1996 through August 1997.  Anthony Perotta, director of maintenance for Delta Health, reviewed a number of the purchase invoices for the materials in question and determined that Tim Stafford had signed the invoices.  Perotta also indicated that some of the wiring purchased during that period, "Romex" brand wire, was a residential-grade wire inappropriate for use at the nursing home and that the amount of materials purchased during that  period was greater than the amount of materials normally used at Willow Trace during that time frame.  Perotta requested that James Dew, the director of maintenance at Willow Trace, inspect the nursing home to determine if the building materials purchased on Willow Trace's account had been used at Willow Trace.  Dew reported that the materials purchased included a residential-grade wire that was inappropriate for use as a permanent fixture in a commercial building such as a nursing home.  He indicated that he had inspected Willow Trace but had not found any evidence indicating that the wire in question had been used there.  Based on this information, Delta Health concluded that someone had stolen the building materials –- i.e., had purchased the materials on Willow Trace's account and not used the materials at Willow Trace.  Susan Fox, the administrator for Willow Trace, requested that the Choctaw County sheriff's office pursue a criminal investigation.  However, the sheriff told Fox that the evidence Delta Health had compiled was insufficient to support a criminal charge because no one had been seen taking the materials and no one had been seen with the materials off the premises of Willow Trace.  In July 1999, Tod Ioakim, the director of risk management for Delta Health, notified Lumbermens Mutual Casualty Company, the fidelity insurer for Delta Health, that it had suffered a loss of approximately $10,600 in building materials.  Ioakim telephoned the Lumbermens' agent who worked with Delta Health and, based on their conversation, the agent completed a property-loss notice.  That loss notice described the loss as follows: "Employee, over a period of several months, purchased building supplies from Ace Hardware, Surplus & Salvage & Southern Electric (total of $10,600) to be used in the construction of his home and charged them to the insured."  Under the section entitled "kind of loss" the insurance agent wrote  "crime."  Ioakim named Tim Stafford as the employee responsible for the loss.  Lumbermens compiled and maintained a file on the claim filed by Delta Health.  Lumbermens determined the loss suffered by Delta Health was $8,418.26.  After subtracting the $1,000 deductible, Lumbermens paid Delta Health $7,418.26 on its claim.  In exchange, Delta Health signed a release and assigned its rights to Lumbermens.  In October 2000, Kemper Insurance Companies, on behalf of Lumbermens, notified Stafford that he owed Lumbermens and Delta Health a total of $8,418.26 because, it alleged, he had converted the building materials from Willow Trace to his own use.  Lana Stafford began communicating with Kemper; she denied that her husband had stolen any building materials from Willow Trace.  She indicated that their house was completed before the time period in question.  Kemper asked Tim Stafford to provide proof that he was not responsible for Delta Health's loss, but Stafford refused.  On December 3, 2000, Stafford sent a letter to Willow Trace asserting that he had taken nothing from Willow Trace, that he owed no money to Willow Trace, and that Delta Health's claim that he had stolen building materials was completely false.  Delta Health, Lumbermens, and Kemper conducted no further investigation to determine the validity of the claim asserted against Stafford.  In May 2001, Lumbermens sued Stafford in the Choctaw District Court alleging conversion.  The complaint was filed in the name of Delta Health Group, Inc., d/b/a Willow Trace Nursing Home, and Lumbermens Mutual Casualty Co., as subrogee.  Lumbermens sought to recover from Stafford $8,447.44, plus interest and costs.  In June 2001, Tim Stafford and Lana Stafford sued Delta Health, Lumbermens, and various fictitiously named parties.  In the complaint, Tim Stafford alleged slander, slander per se, libel, the tort of outrage, malicious prosecution and/or abuse of process, and fraud.  Lana Stafford asserted a claim alleging loss of consortium.  Delta Health and Lumbermens filed separate motions seeking summary judgments.  Tim Stafford's tort-of-outrage claim was dismissed by agreement of the parties, and the trial court dismissed without prejudice his claim of malicious prosecution and/or abuse of process on the ground that it was prematurely asserted.  Because the only claims asserted against Lumbermens by Tim Stafford were the tort-of-outrage and the malicious-prosecution and/or abuse-of-prosecution claims, and because the only claim asserted by Lana Stafford against Lumbermens was a derivative one –- loss of consortium –- the trial court granted Lumbermens' motion for a summary judgment.  Lumbermens was dismissed as a party from the action.  The claim of malicious prosecution and/or abuse of process against Delta Health was dismissed without prejudice as premature; the tort-of-outrage claim against Delta Health was dismissed by agreement of the parties.  The trial court denied Delta Health's motion for a summary judgment on the remaining claims of slander, slander per se, libel, fraud, and loss of consortium.  The Staffords' claims alleging slander, slander per se, libel (those claims are hereinafter referred to collectively as "defamation claims"), fraud, and loss of consortium against Delta Health went to trial.  At trial, Stafford presented evidence indicating that the construction of the Staffords' house was completed in August 1996 and that he and Lana were living in the house on August 30, 1996.  Stafford also testified that he had used Romex wiring extensively at Willow Trace, particularly in the 200 Hall and 700 Hall residences.  Stafford also presented the testimony of Timothy Glosson, the former director of maintenance for Willow Trace, who testified that, immediately after Stafford resigned, Glosson saw new Romex wiring "all over" the Willow Trace facility.  At trial, Stafford read excerpts from the deposition of Anthony Perotta.  Perotta testified that he was told that excessive amounts of building materials had been purchased under Tim Stafford's signature.  He stated that he prepared a list of excessive building materials by simply going  through the invoices presented to him and picking out, to the best of his ability, what he thought would be used and what he thought would not be used at Willow Trace.  Perotta admitted that the invoices were not specific and that he made assumptions and guesses in this process as to the specific materials purchased and the exact amounts purchased.  Perotta also admitted that he had heard "through the [rumor] mill" that Tim Stafford was building a house; however, Perotta denied ever hearing that Stafford was using or had used the building materials purchased by Willow Trace to build his house.  He also did not personally investigate to determine if all of the materials represented on the invoices were actually used at Willow Trace; he was primarily concerned with the use of Romex wiring because, Perotta testified, its use in a commercial setting  would have created a safety hazard.  To determine whether  Romex wire had been used at Willow Trace, Perotta said he personally lifted up ceiling tiles to look for Romex wire.  Perotta acknowledged that any wiring at Willow Trace would have to be run through conduit, but he stated that he did not cut any conduit when he was looking for the Romex wire.  At the close of the evidence, Delta Health requested a judgment as a matter of law on Stafford's claims of defamation and fraud, asserting that Stafford had failed to establish sufficient evidence to justify submitting either claim to the jury.  Delta Health also argued that, if the defamation and fraud claims were dismissed, it was entitled to a judgment as a matter of law on Lana Stafford's derivative loss-of-consortium claim.  The trial court denied this motion and submitted the Staffords' claims to the jury.  The jury returned a general verdict in favor of Tim Stafford, awarding him $200,000 in compensatory damages and $200,000 in punitive damages.  The jury awarded Lana Stafford $100,000 on her loss-of-consortium claim.  The trial court entered a judgment on this verdict.  Delta Health filed a postjudgment motion seeking a judgment as a matter of law and a motion for a remittitur or, in the alternative, for a new trial.  On June 12, 2003, the trial court issued an order denying Delta Health's postjudgment motions.  On June 26, 2003, the trial court issued a separate order withdrawing that portion of its June 12, 2003, order that addressed punitive damages and analyzing the jury's $200,000 punitive-damages award for excessiveness.  The trial court found the punitive-damages award not to be excessive and again denied Delta Health's motion for a remittitur of the punitive damages.  HOLDING:  The Supreme Court reversed and remanded for a new trial.  The Court concluded that Stafford presented sufficient evidence to justify submitting his defamation claims to the jury.  The Court held that Delta Health's communications to Lumbermens –- its insurer -- were protected by a qualified privilege.  The Court concluded that Stafford presented sufficient evidence to create a conflict for the jury on whether Delta Health made the communications with actual malice.  However, the Court concluded that the record is devoid of any evidence tending to establish that Stafford relied to his detriment on any of the alleged misrepresentations made by Delta Health to Lumbermens.  As such, the Court concluded that Stafford failed to produce sufficient evidence to create a jury question on each of the elements necessary for his fraud claim.  Therefore, the Court held that the trial court erred in denying Delta Health's motion for a judgment as a matter of law regarding Stafford's fraud claim.  The Court held that the fraud claim should not have been submitted to the jury.  Because a good claim (defamation) and a bad claim (fraud) were submitted, the Court was required to reverse the judgment, including the loss-of-consortium claim, and remand the case for a new trial.)
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• Scott Bridge Co. v. Wright,

No. 1021705 (Ala. Dec. 19, 2003)
(worker's compensation; retaliatory discharge; Scott Bridge Company hired Michael Wright on June 26, 1997, as a carpenter on a bridge-construction project in Georgia.  When he was hired, Wright was a resident of Georgia.  Wright claims that he suffered an on-the-job injury on March 18, 1998, while working on a bridge project in Augusta, Georgia.  On or about September 28, 1998, Wright filed a claim for benefits with the Georgia State Board of Workers' Compensation.  Wright never sought benefits under the Alabama Workers' Compensation Act.  In October 1998, Scott Bridge assigned Wright to work at its office in Opelika, where he remained employed until he was discharged on April 21, 2000.   Wright sued Scott Bridge in the Chambers Circuit Court on April 19, 2002, alleging that he was discharged in retaliation for having filed a claim for workers' compensation benefits.  The action was transferred to the Lee Circuit Court.  Scott Bridge filed a motion for a summary judgment on the ground that the prohibition set forth in Ala. Code §25-5-11.1 against terminating an employee solely because the employee has filed a workers' compensation claim does not apply to employees asserting claims under the workers' compensation laws of any other state.  The trial court denied the motion.  Scott Bridge then filed a motion asking the trial court to alter or amend the order, or, in the alternative, to certify the order for permissive appeal pursuant to Rule 5, Ala.R.App.P.   The trial court entered an order stating that the case involved "a controlling question of law as to which there is a substantial ground for difference of opinion, specifically whether Ala. Code §25-5-11.1 recognizes a claim for retaliatory discharge where the plaintiff never sought workers' compensation benefits in Alabama, but rather sought workers' compensation benefits in Georgia pursuant to an injury occurring when the plaintiff worked and lived in Georgia."  The trial court then amended that order, finding expressly that "Plaintiff never sought workers' compensation benefits in Alabama, but claims only that he sought workers' compensation benefits in Georgia."  Continuing, the trial court observed that "Alabama law may recognize a claim for retaliatory discharge, pursuant to Ala. Code §25-5-11.1, based on the facts alleged by Plaintiff."  Scott Bridge then filed with the Supreme Court a petition for permission to appeal pursuant to Rule 5, Ala.R.App.P.  The Supreme Court granted the petition. HOLDING:  The Supreme Court  reversed the trial court's denial of the motion for summary judgment and rendered a judgment for Scott Bridge Company.  The Court held that §25-5-11.1 quite plainly creates a remedy where an employee has been discharged solely for instituting or maintaining an action for workers' compensation benefits "under this chapter."  The Court stated that the case for modifying §25-5-11.1 to embrace claims arising from an employee's discharge in Alabama as a result of the employee's asserting rights conferred by the workers' compensation laws of another state should be made in the Legislature.)
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• Moore v. State Farm Auto. Ins. Co.,

No. 1021725 (Ala. Dec. 19, 2003)
(insurance; breach of contract; bad faith; fraud; outrage; The Supreme Court affirmed without opinion.  Justice Johnstone wrote an opinion concurring in part and dissenting in part.)
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• Williams v. State Farm Mut. Auto. Ins. Co.,

No. 1021758 (Ala. Dec. 19, 2003)
(bad-faith failure to pay; claim insurer by third party injured by insured; Danny Williams was involved in an automobile accident; Frank Shaw was driving the other vehicle involved in the accident. Shaw, who was killed in the accident, was insured by State Farm.  While Williams suffered no personal injuries, his tractor-trailer was damaged.  State Farm opened a claim, and the matter was assigned to Derek Kidd, a State Farm claim representative, for handling.  Kidd received a demand from Williams's insurance carrier, Western World Insurance Group, seeking reimbursement of $12,000 Western World had paid Williams on the claim relating to his damaged tractor-trailer, as well as reimbursement of Williams's $1,000 deductible.  Attached to that demand was a copy of an appraiser's report obtained by Western World; the appraiser had inspected the tractor-trailer on June 24, 2002.  The report contained three independent quotes valuing the tractor-trailer at $15,000, $13,000, and $13,000.  The average of the three values was $13,667.  The maximum payable under Williams's policy with Western World was $12,000, plus Williams's deductible, for a total of $13,000.  Western World was entitled to the salvage. Therefore, if the tractor-trailer was declared a total loss and was not repaired, Williams would lose between $667 and $2,000, depending on which value figure was used.  After unsuccessful efforts were made to secure an axle that could be used to repair the tractor-trailer, on August 5, 2002, State Farm reimbursed Western World the $12,000 it had paid to Williams.  State Farm paid Williams directly $1,000, as reimbursement for his deductible.  On September 17, 2002, State Farm received a letter from Williams's attorney, who presented an "offer to settle the balance of Mr. Williams'[s] claim against your insured."  The settlement demand included $965 in towing fees plus $5,890 in lost profits, which Williams computed by taking his daily net profit and multiplying it by the 29 "working days" he claims he was without the tractor-trailer (June 18 to July 26).  On September 12, 2002, Kidd wrote Williams's attorney, stating that State Farm would agree to reimburse Williams for the towing charges, but claimed that Williams's demand for 29 days of lost profits was excessive.   Specifically, Kidd noted that Williams's tractor-trailer was inspected on June 24 and determined to be a total loss.  Kidd stated the claim should have been settled six days after the inspection and offered Williams 11 days of lost profits for a total of $3,420.78.   Coupled with the towing charges, State Farm proposed to pay Williams $4,385.78, contingent upon Williams's execution of a full release in favor of Shaw's estate.  The parties could not agree as to the amount of lost profits, and Williams sued State Farm in the Jefferson Circuit Court, alleging bad-faith failure to pay.  State Farm filed a motion for a summary judgment, which the trial court granted.  HOLDING:  The Supreme Court affirmed.  The Court noted that it is well established that a party cannot bring an action against an insurance company for bad-faith failure to pay an insurance claim if the party does not have a direct contractual relationship with the insurance company.  The Court held that this rule accords with the language of Ala. Code §27-12-24, which is clearly directed at regulating insurers' contractual relationships with their insureds for the protection of the insureds, not third parties.  The Court held that since it is undisputed that Williams has no contract of insurance with State Farm and that Williams procured no judgment against Shaw's estate before bringing his action against State Farm, State Farm was entitled to a judgment as a matter of law.)
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Opinions Released December 12, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  DECEMBER 12, 2003

 
• General Motors Corp. v. Jernigan,

No. 1020069 (Ala. Dec. 12, 2003)
(product liability; the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD"); recusal; venue; jury selection; challenges for cause of prospective jurors related to an attorney in the case; expert testimony; On December 10, 1999, Jeffrey Jernigan and his older brother Nickolas Jernigan were involved in an automobile accident.  Nickolas, who was 17 years old, was driving a 1993 Oldsmobile Delta 88 automobile ("the Oldsmobile") owned by Wilbert Jernigan ("Jernigan"), the father of the Jeffrey and Nickolas.  Jeffrey, who was 12 years old, was a passenger in the front seat of the Oldsmobile.  Both boys were wearing their seat belts.  The Oldsmobile, traveling at a speed of 50 to 55 miles per hour, crashed into an oncoming 2000 Pontiac Grand Prix automobile ("the Pontiac") traveling at approximately the same speed.  The right front corners of both automobiles took the brunt of the impact.  In this offset frontal (almost head-on) collision, the Oldsmobile's right front structures crushed toward Jeffrey, striking his head and pinning his feet in the wreckage.  He was thrown forward and sustained grave injuries, primarily a skull fracture that required surgical removal of a portion of the left frontal lobe of his brain, resulting in permanent and severe brain damage, personality changes, and learning deficits; he also sustained a second-degree burn to his left foot.  Neither Nickolas nor the driver of the Pontiac sustained serious injuries.  Jernigan, individually and as father and next friend of Jeffrey Jernigan, a minor, sued General Motors Corp. ("GM") and other defendants in Bullock County Circuit Court, seeking compensatory and punitive damages individually and on behalf of Jeffrey based upon the AEMLD.  Jernigan is also the circuit clerk of Bullock County.  The jury returned a verdict in favor of Jernigan, awarding $20 million in compensatory damages to Jernigan on behalf of Jeffrey, $2 million in compensatory damages to Jernigan, individually, and $100 million in punitive damages.  The trial court entered a judgment on the verdict.  GM filed a postjudgment motion renewing previously filed motions for a judgment as a matter of law ("JML"), requesting a new trial, or, alternatively, requesting a remittitur of the damages awards.  The trial court remitted the punitive-damages award to $60 million (three times the compensatory damages awarded on Jeffrey's behalf as required by § 6-11-21(a), Ala. Code 1975), but otherwise denied the postjudgment motion.  GM appealed.  HOLDING:  The Supreme Court reversed the portion of the postjudgment order denying GM's motion for a new trial and remanded the case for a new trial.  The Court declined to change the standard for admitting expert testimony from the Frye v. United States standard to the Daubert v. Merrell Dow Pharmaceuticals standard.  The Court held that the plaintiff's expert's testimony was admissible and offered substantial evidence of alternative designs.  The Court held that the plaintiff  introduced sufficient evidence of the availability of a safer, practical, alternative design.  Therefore, the Court held that the trial court properly denied GM's motions for a JML.  The Court held that because Myron Penn was an "attorney in the case to be tried" within the meaning of Ala. Code §12-16-150(11), GM was entitled to have its challenges for cause as to Penn's five relatives granted.  The Court distinguished several cases each involving one erroneous ruling on a challenge for cause considered to be harmless errors from the present case because they involved only one challenge for cause whereas the present case involved five.  As such, the Court held that the trial court, by denying five of GM's challenges for cause that should have been granted, substantially impaired GM's right to the use of its peremptory challenges in selecting a jury.  Therefore, the Court held that the trial court erred in denying GM's motion for a new trial.  The Court further ruled that a motion for a change of venue for cause, made pursuant to Ala. Code §6-3-20, will not be reviewed on an appeal from a final judgment, but instead, review of such a ruling in a civil action is by a petition for a writ of mandamus.  The Court also held that Jernigan offered substantial evidence indicating that GM waived any objection it may have had to Judge Smithart's vacation trip with several lawyers, one of whom represents Jernigan in this case.  The Court concluded that Judge Smithart's recusal is not required.)
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• SCI Ala. Funeral Servs., Inc. v. Corley,

No. 1020450 (Ala. Dec. 12, 2003)
(arbitration; interstate commerce; On the authority of Service Corp. International v. Fulmer, No. 1021503 (Ala. Dec. 5, 2003), the Supreme Court affirmed the order of the trial court denying the motion of the defendants-appellants to compel arbitration  insofar as it applies to the plaintiffs' claims against Service Corporation International but reversed the order insofar as it applies to the plaintiffs' claims against SCI Alabama Funeral Services, Inc. ("SCI- Alabama").  The Court further rejected the argument of the nonsignatory plaintiffs that their nonsignatory status spares them the burden of the arbitration agreements between the signatory plaintiffs and SCI-Alabama, because the nonsignatory plaintiffs' claims, which are identical to the signatory plaintiffs' claims, depend on the obligations undertaken by SCI-Alabama pursuant to the contracts containing the arbitration agreements.)
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• Howard v. City of Atmore,

No. 1021312 (Ala. Dec. 12, 2003)
(immunity; wrongful-death action arising out of a suicide in jail; On May 24, 1999, following convictions for third-degree theft of property, third-degree assault, resisting arrest, and destroying city property, Marilyn Faye Bowens began serving a 120-day sentence in the  City of Atmore jail.  The jail was equipped with a video camera that allowed continuous monitoring of Bowens's cell from a remote location.  At 3:00 p.m. the next day, May 25, Betty Cox completed her eight-hour shift as the jailer/dispatcher.  Before leaving for the day, Cox conducted a cell check of the inmates.  At that time, Officer Frank Bryars began his shift as the jailer/dispatcher, replacing Cox.  At 4:08 p.m., Sgt. Carey Flavors went to Bowens's cell to speak with her.  He found Bowens hanging by the neck from bars in the ceiling, to which she had attached herself with her shoe laces.  Flavors "yelled for help," and he and Officer Bryars removed Bowens from the makeshift noose.  Bowens died without regaining consciousness.  Subsequently, Gladys Bowens Howard,  as administratrix of the estate of her sister, filed this wrongful-death action against the City and against Chief McKinley and Officer Bryars, in their individual and official capacities.  The defendants moved for a summary judgment, contending that they are entitled either to "peace-officer" immunity, pursuant to Ala. Code §6-5-338, or to "State-agent" immunity under the analysis set forth in Ex parte Cranman, 792 So.2d 392 (Ala. 2000), and adopted in Ex parte Butts, 775 So.2d 173 (Ala. 2000).  The trial court entered a summary judgment for all the defendants, relying expressly on the ground of immunity. HOLDING:  The Supreme Court affirmed the judgment as to Chief McKinley and reversed as to Officer Bryars and the City.  The Court held that  Officer Bryars was a sworn law-enforcement officer at the time of Bowens's suicide, that the guarding of a city jail by a regular police officer is one of the "law enforcement duties" contemplated by Ala. Code §6-5-338, and that the categories in Cranman are broad enough to contemplate the confinement of prisoners.  However, the Court held that the summary judgment in favor of Officer Bryars was erroneous because the plaintiff presented substantial evidence that Officer Bryars failed to follow mandatory rules and procedures prescribed by  the City police department for observing inmates.  As to Chief McKinley, the Court held that Chief McKinley is responsible for the day-to-day operations of the police department and the city jail, that those activities fall squarely within Cranman categories, and that there is a conspicuous absence of binding authority as to how to identify and handle a potential suicide risk and what precautions to take in any particular case.  Thus, the Court held that Howard has not met her burden to show that Chief McKinley's conduct falls within an exception to State-agent immunity and that the trial court did not err in entering a summary judgment in favor of Chief McKinley.  As to the City, the Court held that the trial court correctly entered a summary judgment for the City with respect to the claims against Chief McKinley but that the trial court erred insofar as the summary judgment for the City was entered with respect to the alleged "neglect, carelessness and unskillfulness" of Officer Bryars.)
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• Cook's Pest Control, Inc. v. Hastings,

No. 1021795 (Ala. Dec. 12, 2003)
(arbitration; interstate commerce; The Marshall Circuit Court denied the motion to compel arbitration filed by Cook's Pest Control, Inc. ("Cook's"), finding that the transaction did not involve interstate commerce; the court's ruling was based on the now abrogated decision in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala. 2000).  The Supreme Court reversed the order denying the motion and remanded the cause for consideration in light of Service Corp. Int'l v. Fulmer, No. 1021503 (Ala. Dec. 5, 2003), and Bowen v. Security Pest Control, Inc., No. 1010783 (Ala. Oct. 3, 2003).)
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• Hammonds v. Town of Priceville,

No. 1021637 (Ala. Dec. 12, 2003)
(municipal government; Doyle Hammonds became Priceville's chief of police in 1980.  In May 2000, two former girlfriends brought harassment charges against Hammonds.  On October 15, 2001, he pleaded guilty to two counts of "harassing communications."  On November 15, 2001, Priceville's town council convened a hearing to discuss Hammonds's situation.  At the conclusion of that hearing, the council voted 4-2 to remove Hammonds as chief of police.  The mayor's vote was one of the four votes in favor of Hammonds's removal.  Hammonds was subsequently removed as chief of police.  Hammonds petitioned the trial court for a common-law writ of certiorari to review his removal.  The trial court granted the petition and subsequently entered a summary judgment for the Town of Priceville.  It is undisputed that Priceville has less than 12,000 inhabitants and that it thus falls within Ala. Code §11-43-2  HOLDING:  The Supreme Court noted that §11-43-2 states the broad principle that the mayor "may vote as a member of the council on any question coming to a vote."  However, the Court held that §11-43-160, when read in pari materia with §11-43-2, provides an exception to this broad principle.  The exception concerns not who may vote, but whose vote will actually count in removing a person appointed to office in the municipality.  The Court noted that §11-43-160 allows removal "by a two-thirds vote of all those elected to the council" and that mayors are "elected to" the office of mayor, not "to the council."  Therefore, the Court held that the  mayor is fully entitled to vote to remove a municipal official, but the mayor's vote does not count in determining if there was the requisite "two-thirds vote of all those elected to the council" to remove the official.  Thus, the Court held that the town council did not have the requisite two-thirds vote needed to remove Hammonds from the office of chief of police, and it reversed the judgment in favor of the town.)
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Opinions Released December 5, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  DECEMBER 5, 2003

 
• Alabama Ins. Guar. Ass'n v. Air Tuskegee, LTD.,

No. 1021087 (Ala. Dec. 5, 2003)
(residency for purposes of  the Alabama Insurance Guaranty Association Act (Ala. Code 1975, §§ 27-42-1 through 27-42-20) ("the Guaranty Act"); The purpose of the Guaranty Act is to provide a mechanism for the payment of statutorily defined claims made under certain types of insurance policies issued by insurance companies licensed to transact insurance in the State of Alabama that are declared insolvent and against whom an order of liquidation has been entered.  On December 6, 1995, the Troup County (Georgia) Airport Authority was the owner, maintainer and lessor of a Piper PA-28-180 aircraft.  On December 6, 1995, David R. Dobbins rented the Piper aircraft from the Troup County Airport Authority.  Wilford Senn was a passenger in the Piper aircraft that was piloted by David R. Dobbins.  The engine in the Piper aircraft piloted by David R. Dobbins failed, resulting in a crash landing near Athens, Georgia.  As a result of the crash, David R. Dobbins and Wilford Senn sustained severe, permanent injuries to their bodies.  Prior to the December 6, 1995 crash of the Piper aircraft, Air Tuskegee, Ltd., and/or Gerald Waller had been hired by the Troup County Airport Authority to perform maintenance on and/or to examine the engine of the Piper aircraft.  The subject maintenance and inspection to the subject Piper aircraft took place in Alabama.  At all times relevant to his performance of maintenance on and/or examination of the engine of the Piper aircraft, Gerald Waller was either an independent contractor, agent or employee of Air Tuskegee, Ltd.  Wilford Senn, Joan Senn, David R. Dobbins and Robin Dobbins filed a lawsuit in the Superior Court of Troup County, Georgia against Air Tuskegee, Ltd. and Gerald Waller, among others.  At the time of the December 6, 1995, crash made the basis of the Underlying Action, Air Tuskegee, Ltd. was a corporation existing under the laws of the State of Delaware having its principal place of business in Tuskegee, Macon County, Alabama.  At the time of the December 6, 1995 crash made the basis of the Underlying Action and effective April 18, 1995 through April 18, 1996, American Eagle Insurance Company (hereinafter 'American Eagle') provided a General Liability Airport Policy to its named insured, Air Tuskegee, Ltd.  to its named insured, Air Tuskegee, Ltd.  American Eagle is an 'insolvent insurer,' as defined by Ala. Code §27-42-5(5).  The Alabama Insurance Guaranty Association ("AIGA") filed this action to determine the residency of Air Tuskegee, LTD.  The trial court ruled that Air Tuskegee is a resident of the State of Alabama within the meaning of the Guaranty Act.  HOLDING;  The Supreme Court affirmed.  The Court held that a corporation can be a resident of only one state for purposes of entitlement to recovery under the Guaranty Act, and the Court adopted the principal-place-of-business rule in the AIGA context.)
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• Pearson v. Brooks,

No. 1021494 (Ala. Dec. 5, 2003)
(fictitious parties; relation back; statute of limitations; Annie Pearson was employed at Perdue Farms, Inc., a company operating a chicken-processing plant in Dothan.  Pearson was responsible for cleaning the "kill floor," where many of the machines used to prepare the chickens for sale and distribution were located.  Pearson's cleaning routine required her to spray the machines with a high-pressure hose to remove the chicken remains.  On November 17, 1999, while Pearson was cleaning the kill floor, she slipped in the chicken remains.  In an attempt to break her fall, Pearson held her hands in front of her.  Pearson fell into a "neck-skinning" machine, a machine that removed the skin from the chickens' necks.  Pearson's right index finger was amputated when it became entangled in the machine.  Apparently, the guard mechanism that would have prevented the blade of the machine from cutting was not in place at the time of Pearson's accident.  On October 17, 2001, one month before the statutory limitations period would have run on her claims, Pearson sued Perdue Farms, Inc. and several of her co-employees who were involved in the direct maintenance and supervision of the neck-skinning machine.  Pearson did not name as defendants Glenn Brooks and Michael Black, although she did assert claims against fictitiously named defendants who were either "that person, corporation or other legal entity who or which designed the machine, which is the subject matter of this lawsuit"; "that person, corporation, or other legal entity who had responsibility for maintenance or repair of the machine which is the subject matter of this lawsuit"; or "that person, corporation, or other legal entity whose negligence, wantonness, recklessness, willfulness or other wrongful conduct caused the injury to Plaintiffs [sic]."  Pearson claims that at the August 20, 2002, deposition of Hughes she became privy to an accident investigation report related to her injury, which Hughes had prepared.  Hughes stated in the report that Pearson's accident was caused by the "lack of control and supervision by the Sanitation Hourly Supervisor[] [Black] and Sanitation Superintendent [Brooks]."  On August 30, 2002, Pearson amended her complaint to substitute Brooks and Black for two of the fictitiously named parties.  Brooks and Black moved to dismiss Pearson's complaint, arguing that Pearson's claims against them were barred by the statute of limitations.  The trial court granted the motion and dismissed Brooks and Black from the action.  HOLDING: The Supreme Court affirmed.  The Court concluded that Pearson could not have reasonably been ignorant of the identities of Brooks and Black. The Court referred to Pearson's deposition in which she testified that she had known for over three or four years that Brooks was the superintendent of the sanitation department, that Brooks had personally trained her to clean the machines, that Black was her immediate supervisor in the sanitation department, and that Black instructed the employees regarding the safety procedures in the plant.  Thus, the Court held that when she filed her complaint,  Pearson knew Brooks's  and Black's identities as well as their duties regarding plant safety and the safe operation and cleaning of the plant's machinery.  The Court overruled Roberts v. Cochran, 656 So.2d 353 (Ala. 1995), to the extent that it conflicts with the rule established in Columbia Engineering International, Ltd. v. Espey, 429 So.2d 955 (Ala. 1983), and followed in Marsh v. Wenzel, 732 So.2d 985 (Ala. 1998), regarding the substitution of fictitiously named parties and the doctrine of relation back.)
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• Service Corp. Int'l v. Fulmer,

No. 1021503 (Ala. Dec. 5, 2003)
(arbitration; interstate commerce; unconscionability; Following the death of his mother, Blair Fulmer entered into a contract with SCI-Alabama d/b/a Johns-Ridout's Southside Chapel pursuant to which Johns-Ridout's Chapel would, among other things, perform a funeral service and  cremate his mother's body.  The contract, entitled "Statement of Funeral Goods and Services Selected/Purchase Agreement," included an arbitration provision.  Fulmer sued SCI-Alabama and SCI (SCI-Alabama's parent company), asserting various claims.   The appellants filed a motion to compel arbitration, which the trial court denied on grounds of an insufficient connection to interstate commerce. HOLDING: The Supreme Court reversed as to SCI-Alabama but affirmed as to SCI.  The Court explains in a scholarly discussion the interstate commerce issue and explains why the U.S. Supreme Court decisions on interstate commerce apply under the Federal Arbitration Act ("FAA") to require enforcement of arbitration provisions in virtually any economic or commercial contract, including those that are purely intrastate commercial transactions, if the "'general practice' those transactions represent" has, in the aggregate, a substantial effect on interstate commerce.  The Court explained that "there are few, if any, economic or commercial transactions that are beyond the reach of Congress's commerce power."  The Court further noted that "while there can be no per se rule that would preclude a trial court's role in evaluating whether a contract 'evidenc[es] a transaction involving commerce,' ... a trial court evaluating a contract connected to some economic or commercial activity would rarely, if ever, refuse to compel arbitration on the ground that the transactions lacked 'involvement' in interstate commerce."  The Court also rejected Fulmer's contention that he did not consent to arbitration because, when he entered into the contract with SCI-Alabama, he was suffering great emotional distress over the loss of his mother and because the contract is a contract of adhesion.  The Court held that Fulmer could not assert a breach-of-contract claim based on the contract and also contend that, for arbitration purposes, it was unconscionable and that he lacked the mental capacity to enter it.  The Court held that Fulmer's alleged lack of mental capacity, even if true, is a defense directed toward the contract as a whole, not just toward the arbitration provision.  However, the Court held that the language of the arbitration provision did not allow it to be enforced by SCI, a non-party to the contract.  Thus, as to SCI, the order denying arbitration was affirmed.)
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• Ex parte Full Circle Distribution, L.L.C.,

No. 1021631 (Ala. Dec. 5, 2003)
(relief from a default judgment; Ala.R.Civ.P. 60(b)(4); time for filing motion to set aside; in personam jurisdiction; Full Circle Distribution, L.L.C. and SECO Aviation, Inc., a corporation organized under the laws of Georgia ("SECO(GA)"), entered into a consignment agreement pursuant to which SECO(GA) agreed to act as a distributor for the sale of 14 helicopter-fuel-dump pumps owned by Full Circle.  According to the consignment agreement, Full Circle was to be paid 30 percent of the revenues from the sale of the pumps.    Approximately two years later, on August 10, 1999, SECO(GA) sold many of its assets, including the fuel-dump pumps.  On February 27, 2002, Full Circle sued SECO Aviation, Inc., a corporation organized under the laws of Pennsylvania ("SECO(PA)"), and Anthony Aviation Center, Inc., a corporation organized under the laws of Florida ("AAC"), in the Etowah Circuit Court, alleging breach of contract and conversion.  Full Circle contended that AAC purchased the 14 fuel-dump pumps from SECO(GA), but that SECO(GA) never paid Full Circle a commission on the sale of the fuel-dump pumps as required under the consignment agreement.  Full Circle served the summons and complaint on SECO(PA) and AAC.  However, SECO(PA) is a different entity from SECO(GA), with which Full Circle had entered into the consignment agreement.  After SECO(PA) and AAC failed to answer the complaint or to appear within 30 days, Full Circle filed an application and affidavit for the entry of a default judgment.  On May 10, 2002, the trial court entered a default judgment against SECO(PA) and AAC; it amended that judgment on June 28, 2002, and July 10, 2002.  On November 19, 2002, the default judgment was filed with the circuit court in Broward County, Florida, for domestication in accordance with the laws of the State of Florida.  At this time, SECO(PA) and AAC were provided with notice by certified mail that the default judgment was being domesticated in Florida.  Nevertheless, SECO(PA) and AAC failed to respond or to challenge the default judgment within 30 days of this notice, and the default judgment was domesticated in Florida on January 9, 2003.  On April 18, 2003, a writ of garnishment was issued by the Broward Circuit Court.  Then, on April 23, 2003, SECO(PA) and AAC filed an emergency motion in the Broward Circuit Court to dissolve the writ of garnishment; they argued that the Alabama judgment made the basis of the garnishment action was void because the Etowah Circuit Court lacked personal jurisdiction over them and because, they argue, Full Circle had not properly served the summons and complaint on either of the defendants.  Immediately after filing the emergency motion,  SECO(PA) and AAC filed with the Etowah Circuit Court a motion for relief from the default judgment pursuant to Rule 60(b)(4).  SECO(PA) and AAC argued that the default judgment was void because, they argued, the trial court lacked personal jurisdiction over them.  In its opposition to the motion for relief from the judgment, Full Circle asserted that SECO(PA) and AAC's motion failed to satisfy the requirement of Rule 60(b) that such a motion be filed within "a reasonable time," and that the actions of SECO(PA) and AAC were sufficient to establish minimum contacts so as to warrant the trial court's exercise of personal jurisdiction over them.  On June 20, 2003, the trial court granted SECO(PA) and AAC's motion for relief.  Full Circle petitioned for a writ of mandamus directing the trial court to set aside its order granting relief pursuant to Rule 60(b)(4).  HOLDING:  The Supreme Court denied the petition for writ of mandamu.  The Court held that the reasonable-time limitation is not applicable to actions seeking to set aside a void judgment pursuant to Rule 60(b)(4).  The Court found no evidence indicating that SECO(PA) or AAC had sufficient connections with Alabama to meet the requirements for either specific or general in personam jurisdiction.  As such, the Court held that the default judgment was void, and the trial court did not err in setting it aside.)
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Opinions Released November 26, 2003

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

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

No. 1020609 (Ala. Nov. 26, 2003)
(uninsured/underinsured motorist insurance; stacking; definition of "relative"; Bo Harris was driving a Chevrolet S-10 truck owned by his father.  Bo's father had given Bo permission to operate the truck. On that same date, Fate Foley III was operating an automobile owned by his wife, Lana Foley. Foley failed to stop at a stop sign, and the automobile he was driving collided with the truck being driven by Bo Harris.  It is undisputed that Foley's negligence and/or wantonness caused the accident, and that, as a result of the accident, Bo Harris suffered serious injuries.  It is also undisputed that Fate Foley and Lana Foley were uninsured motorists, as that term is defined by Alabama law.  At the time of the accident, State Farm insured Hugh Harris's Chevrolet S-10 truck under policy number D26 9897-F09-01. That policy was in effect on the date of the accident.  In separate policies, State Farm also insured four other vehicles owned by Hugh Harris; those policies were also in effect on the date of the accident.  In the policies issued to Hugh Harris, "relative" was originally defined to mean "a person related to you or your spouse by blood, marriage or adoption who lives with you. It includes your unmarried and unemancipated child away at school."  In a later endorsement, State Farm amended the definition of "relative" to read: "a person related to you or your spouse by blood, marriage or adoption who lives primarily with you. It includes your unmarried and unemancipated child away at school."  Donna Robinson, as mother and next friend of Bo Harris, sued Fate Foley and Lana Foley.  Robinson alleged that Fate Foley had negligently or wantonly operated the vehicle he was driving. Robinson also alleged that Lana Foley had negligently or wantonly entrusted her vehicle to Fate Foley.  Robinson sought to recover compensation for Bo Harris's medical expenses, his permanent injuries, and his pain and suffering. She also sought punitive damages.  State Farm filed a motion to intervene in the case. The trial court granted the motion, and State Farm answered Robinson's complaint. State Farm deposited with the clerk of the circuit court the sum of $25,000, which State Farm alleged was the maximum Bo Harris was entitled to recover under the uninsured-motorist coverage available under Hugh Harris's policy with State Farm insuring the Chevrolet S-10 truck. This amount represented the limits of the uninsured-motorist coverage provided under State Farm automobile policy D26 9897-F09-01, the policy issued on the Chevrolet S-10 pick-up truck being operated by Bo Harris at the time of the accident.  State Farm  subsequently sought a partial summary judgment, relying on Bo Harris's deposition testimony in which he stated that he lived primarily with his mother. State Farm argued that because Bo Harris did not live primarily with his father, he did not meet the definition of "relative" contained in the insurance policies issued to Hugh Harris. State Farm argued that because Bo Harris did not fall within any definition of "insured," he was not entitled to stack the uninsured-motorist coverage available under the insurance policies issued by State Farm on Hugh Harris's four other vehicles. Robinson opposed this motion and filed her own motion for a partial summary judgment, arguing, on various grounds, that Bo Harris was entitled to stack the coverage available under those policies.  Bo Harris's father and mother were divorced, and they had joint custody of Bo. His father lived in Stapleton and his mother lived in Daphne. In deposition testimony included in the record, Bo Harris testified that he was living
with his mother at the time of the accident. The trial court subsequently denied State Farm's motion for a partial summary judgment and granted Robinson's motion for partial summary judgment, holding that Bo Harris was entitled to stack the uninsured-motorist coverage available under his father's five State Farm insurance policies.  On November 6, 2000, Robinson's claims alleging negligence and wantonness as to Fate Foley were tried before a jury.  The jury  returned a verdict in favor of Bo Harris in the amount of $121,800 in compensatory damages and $7,000 in punitive damages. On November 7, 2002, the trial court entered a judgment on that verdict.  On November 15, 2002, State Farm filed its postjudgment motion styled as a "Motion for Reduction in Judgment Amount." In that motion, State Farm again argued that, because Bo Harris did not live primarily with Hugh Harris, he could not meet the definition of an "insured." State Farm argued that Bo Harris was therefore entitled to recover uninsured-motorist benefits under only the insurance policy applicable to Hugh Harris's Chevrolet S-10 truck and that he was not entitled to stack the  uninsured-motorist coverage available under the four other State Farm policies issued to Hugh Harris. For these reasons, State Farm requested that the trial court reduce the judgment to $25,000. The trial court denied the motion.  HOLDING:  The Supreme Court reversed.  The Court concluded that the trial court erred in finding that Bo Harris was a "relative," as that term is defined in the State Farm insurance policies.  The Court held that because Bo Harris did not fall within the definition of the term "relative" or under any other definition of "insured," he was not entitled to stack the uninsured-motorist coverage available in the insurance policies issued to Hugh Harris by State Farm.)
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Opinions Released Nov. 21, 2003

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

 
• Dunning v. New England Life Ins. Co.,

No. 1011927 (Ala. Nov. 21, 2003)
(standing; insurance; fraud and breach-of-contract claims; appellate procedure; notice of appeal; filing of original; standing to appeal; In 1985 and 1992, Hammer, Inc., a construction company located in Monroeville, entered into "supplemental income agreements" with three key employees, George Dunning, Gerald Salter, and Dennis Coleman.  The agreements provide retirement and/or death benefits for each of the employees.  Hammer was solely responsible for funding the promised benefits.  The employees received the benefits if they remained employed by the company through the retirement date specified in the agreements or died while employed by the company.   Hammer purchased a life insurance policy on each of the three employees to fund its anticipated obligations under the supplemental income agreements.  Hammer purchased the insurance from New England Mutual Life Insurance Company ("New England Mutual") through its agent, Spencer Tatum d/b/a Tatum & Associates.  Hammer--not the employees--was the owner and beneficiary of the life insurance policies.  Article 7 of each of the supplemental income agreements specifically permitted this type of funding arrangement.  Hammer receives annual statements from New England Mutual showing the value of each policy.  Since 1991, the value of each policy has been lower than anticipated and the policies would not fund Hammer's obligations to its employees under the supplemental income agreements.  Hammer is aware of the under-performance of the life insurance policies and acknowledges that it is still obligated to honor the agreements with its employees.  Hammer, however, has no current obligation under the agreements because none of the employees' benefits has vested, that is, none of the employees has retired or died.  After learning that the life insurance policies were not performing at a level that would fully fund their promised benefits, the employees sued Hammer, Tatum, New England Life Insurance Company, and Metropolitan Life Insurance Company (hereinafter we refer to New England Life Insurance Company and Metropolitan Life Insurance Company collectively as "New England"), alleging fraud, suppression, and breach of contract.  New England and Tatum moved for a summary judgment, arguing that the employees' claims are not ripe for adjudication, or, alternatively, that their claims are barred by the statute of limitations or are preempted under ERISA.  On May 6, 2002, the trial court entered a summary judgment in favor of New England and Tatum, finding that the employees' claims were not ripe for adjudication.  Following the issuance of that order, the employees dismissed their claims against Hammer without prejudice.  On June 17, 2002, Sidney W. Jackson III, counsel for the employees, telephoned Milton Coxwell, Jr., an attorney practicing in Monroeville, and asked him to file with the Monroe Circuit Court clerk a copy of the employees’ notice of appeal from the summary judgment for New England and Tatum because, Jackson said, he had no way of getting the notice of appeal to Monroeville that day.  Coxwell agreed, and Jackson faxed a copy of the notice of appeal to Coxwell.  Coxwell delivered the faxed copy of the notice of appeal to the circuit court clerk.  Jackson never forwarded the original notice of appeal to the clerk.   The appeal was docketed in the Supreme Court on July 16, 2002.  On July 25, 2002, New England and Tatum moved to dismiss the appeal, arguing that the employees failed to file a proper and timely notice of appeal.  The Supreme Court granted the motion to dismiss.  The employees moved for reconsideration of the dismissal, asking the Court to set aside its order of dismissal and to reinstate their appeal.  The Court did so; however, it instructed the parties to brief the issue of the effectiveness of facsimile filings together with the substantive issues presented on appeal. HOLDING:  The Supreme Court vacated the trial court's judgment and dismissed the appeal.  The Court held that a copy of an original notice of appeal, timely filed, is sufficient to invoke the jurisdiction of an appellate court under Ala.R.App.P. 3.  The Court noted  that the employees did not file their notice of appeal by faxing it to an agent of the Monroe Circuit Court clerk.  Instead, a local attorney filed a copy of their notice of appeal in person.  The copy of the notice of appeal had been produced by a fax machine in the local attorney's office; it had not been transmitted to the clerk's office by fax machine.  Therefore, the Court noted that the issue presented in this case is not whether the filing of a notice of appeal by facsimile transmission is permissible; instead, it is whether a timely filed copy of a notice of appeal is acceptable under the Alabama Rules of Appellate Procedure if that copy was produced by a facsimile transmission.  The Court held that neither the Alabama Rules of Appellate Procedure nor the Alabama Rules of Civil Procedure requires that a notice of appeal bear an original, penned signature.  The Court held that the employees lacked standing to sue on the alleged underperformance of the life insurance policies because they are strangers to the contract on which their claims are based.  The Court held that, similarly, the employees have no standing to complain about the alleged fraudulent behavior in connection with the execution of the contracts on New England Mutual's part.  Because the employees lack standing, the Court held that the trial court did not have jurisdiction over their claims.
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• Wal-Mart Stores, Inc. v. Hepp,

No. 1012237 (Ala. Nov. 21, 2003)
(workers' compensation; retaliatory discharge; collateral estoppel; Peter Gregory Hepp was employed at a Wal-Mart discount department store as a manager in the "tire and lube express" service center.  In November 1996, Hepp injured his back while on the job.  He underwent back surgery and in November 1997 filed an action against Wal-Mart seeking workers' compensation benefits.  On June 8, 1998, the trial court approved a settlement agreement between Wal-Mart and Hepp.  Also on June 8, 1998, Randy Baggett, a district manager for Wal-Mart, received a report that Hepp had been dispensing freon without charging a fee for the service.  Baggett investigated the claim, and learned that Hepp had dispensed freon into his personal vehicle and a vehicle belonging to an acquaintance.  Hepp had not charged for the service and had not prepared service orders for the vehicles; Wal-Mart required that a service order be prepared for each vehicle brought in for servicing.  On June 10, 1998, Hepp was terminated for violating the following policies: "(1) performing work (i.e. dispensing freon) at the Riverchase [tire and lube express service center], which ... was not allowed, (2) failing to write up a service report on a vehicle for which he provided service[,] and (3) performing service on a personal vehicle."  Hepp filed for unemployment-compensation benefits with the Department of Industrial Relations ("DIR") on June 28, 1998.  On July 21, 1998, DIR denied Hepp benefits.  Hepp appealed the denial to the appeals tribunal, as provided by Ala. Code 1975, § 25-4-91 and § 25-4-92, alleging that he was terminated because he had filed a workers' compensation claim against Wal-Mart, which had recently been settled.  A hearing was held on Hepp's appeal.  Both Hepp and a representative from Wal-Mart participated in the hearing.  On August 14, 1998, the appeals referee determined that Hepp had been discharged for "misconduct connected with his work," pursuant to Ala. Code 1975, § 25-4-78(3)(c), because Hepp had violated Wal-Mart's policy.   The referee then held that Hepp was disqualified from receiving full benefits and was entitled to only reduced benefits under that Code section.  Hepp did not appeal this decision.  After Hepp's hearing before the referee, but before the referee issued his decision, Hepp filed a complaint in the Shelby Circuit Court, seeking to reopen his 1997 workers' compensation case to consider vocational disability.  He later amended his complaint to allege that Wal-Mart had discharged him in retaliation for his filing a workers' compensation action, in violation of Ala. Code §25-5-11.1.  Wal-Mart moved for a summary judgment on the retaliatory-discharge claim, arguing that Hepp is barred by the doctrine of collateral estoppel from relitigating the reason underlying his termination, which, Wal-Mart argued, the appeals referee had already determined was "misconduct connected with his work."  The trial court denied Wal-Mart's motion, but certified its order for an interlocutory appeal under Rule 5, Ala.R.App.P. HOLDING:  The Supreme Court reversed.   The Court held that the doctrine of collateral estoppel bars Hepp from arguing in this case that he was terminated for some reason other than "misconduct connected with his work," which was the reason the referee had determined Hepp was terminated. Thus, the Court held that Hepp cannot establish a prima facie case of retaliatory discharge.)
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• Kingvision Pay-Per-View, Ltd. v. Ayers,

No. 1012384 (Ala. Nov. 21, 2003)
(denial of motion to vacate a default judgment; the validity of a purported appearance by an attorney on behalf of a party; Kingvision Pay-Per-View, Ltd. ("Kingvision"), a Delaware corporation headquartered in Florida and the owner of the exclusive right to broadcast the June 28, 1997, fight between Evander Holyfield and Mike Tyson, employed Coral Springs, Florida attorneys Scott Salomon and Barry Mittelberg (collectively "Salomon & Mittelberg") to pursue claims against the plaintiff Lester Ayers and others in Alabama for the unlicenced interception of the broadcast. Salomon &  Mittelberg, in turn, employed Andrew Nelms ("Nelms"), a Montgomery attorney, to act as Alabama counsel for Kingvision in the pursuit of these claims. Before filing a lawsuit against the plaintiff, Salomon & Mittelberg attempted to collect money from the plaintiff by means of telephone calls and letters.  In response to the collection efforts of Salomon & Mittelberg, the plaintiff sued Kingvision for invasion of privacy and felonious injury, in the Bessemer Division of the Jefferson County Circuit Court in November 1997. The plaintiff served Kingvision by sending the summons and complaint by certified mail to Salomon & Mittelberg rather than by serving either Kingvision itself or CT Corporation, the registered agent of Kingvision for service of process. Salomon & Mittelberg, on behalf of Kingvision, moved the circuit court for additional time to respond to the plaintiff's complaint. The motion stated that "Defendant was served with the instant action seeking damages on or about December 5, 1997." The motion did not assert that the service of process on Kingvision was insufficient. After Salomon & Mittelberg obtained additional time to respond to the complaint, Nelms, on behalf of Kingvision, simultaneously filed both a Rule 12(b), Ala. R. Civ. P., motion to dismiss and an answer. The Rule 12(b) motion sought dismissal of the plaintiff's complaint on the grounds that the "complaint ... fail[ed] to state a claim ... upon which relief [could] be granted" and that the plaintiff's claims were "barred by personal jurisdiction." The motion did not assert that the service of process on Kingvision was insufficient. Similarly, while the answer asserted that the trial court "lack[ed] ... jurisdiction," it did not assert that the service of process on Kingvision was insufficient. After the trial court denied the motion to dismiss,  Salomon & Mittelberg and Nelms filed a separate lawsuit against the plaintiff for recovery of damages for the unauthorized interception of the broadcast, in the United States District Court for the Northern District of Alabama. Subsequently, Nelms amended the answer of Kingvision in the plaintiff's state court lawsuit to assert a statute of limitations defense that Nelms had omitted from the original answer. This amended answer, like the previously filed Rule 12(b) motion and the original answer, failed to assert that the service of process on Kingvision was insufficient.  In the summer of 2000, Nelms withdrew as attorney of record for Kingvision in the plaintiff's lawsuit. Salomon & Mittelberg then employed Birmingham attorney James Ward ("Ward") and his law firm, Corley, Moncus & Ward, P.C. ("Corley"), to defend Kingvision against the plaintiff's claims. Corley, on behalf of Kingvision, deposed the plaintiff in October 2000. In December 2000, Ward and Corley, withdrawing as attorneys of record for Kingvision, requested that the trial court send copies of the order granting their motion to withdraw and send future notices to Kingvision in care of Salomon & Mittelberg.  The trial court called the plaintiff's lawsuit for trial on September 24, 2001. When Kingvision failed to appear, the trial court entered a default against Kingvision. In December 2001, after the plaintiff presented evidence of damages, the trial court entered a default judgment against Kingvision in the amount of $65,000.  In July 2002, Kingvision moved the trial court under Rule 60(b), Ala. R. Civ. P., to vacate the default judgment because, Kingvision said, the default judgment was void and Kingvision had a meritorious defense to the plaintiff's claims. Kingvision asserted that the default judgment was void because: (1) the service of process was insufficient and (2) this insufficiency deprived the trial court of in personam jurisdiction over Kingvision. Kingvision did not assert that the trial court lacked in personam jurisdiction because of a lack of contacts between Kingvision and the State of Alabama or because of any reason other than the insufficiency of the service of process on Kingvision. In support of the Rule 60(b) motion, Kingvision submitted an affidavit from Donna K. Westrich.  The trial court heard the Rule 60(b) motion of Kingvision without ruling on either the plaintiff's motion to strike Westrich's affidavit and to compel her deposition. Nelms and Ward testified at the hearing that they were employed by Salomon & Mittelberg, that all of their communications were with Salomon & Mittelberg, and that they had not communicated directly with Kingvision. Nelms opined that Salomon & Mittelberg had  apparent authority to act as a general agent for Kingvision in the collection of monies owed Kingvision for the unlicenced interception of the broadcast of the Holyfield-Tyson fight. The trial court held that Salomon & Mittelberg P.A. had a dual role, that of attorney for Kingvision and collection agent in the State of Alabama.  The trial court held that their failure to answer the complaint and the subsequent entry of default against them on September 24, 2001, is not due to be set aside. HOLDING:  The Supreme Court affirmed.  The Court noted that Ala. Code §34-3-22 provides that "the court may at any stage of the proceedings, upon proof [that an attorney has appeared for a party without authority], relieve the party for whom the attorney has assumed to appear from the consequences of [the attorney's] acts," and that "[a]n appearance in a suit by an attorney of the proper court, is presumed to be authorized," with the burden of proof on the party denying the authority. The Court noted that the only evidence Kingvision presented that was relevant to the issue of Nelms's authority was Westrich's affidavit, which failed to refute effectively Nelms's authority to file these pleadings.)
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• Young v. Pimperl,

No. 1020323 (Ala. Nov. 21, 2003)
(contract for sale of real estate; Lehman Harvey Young, Mary Rebecca Orton Newcomber, Howard Franklin Young, Jr., Evelyn Alice Hollar Young, and Virginia Caroline Young Martin (hereinafter collectively referred to as "the landowners") each owned an undivided 1/5 interest in a  20-acre parcel of property located in Baldwin County.  John Pimperl and his wife Judy Pimperl discussed with each of the landowners the possibility of the Pimperls' purchasing the land.  When the Pimperls reached what they believed to be an agreement with the landowners as to a fair price for the land, the Pimperls mailed each of the landowners a quitclaim deed, along with a purchase agreement, to be executed and mailed back to the Pimperls.  Lehman, Mary, Evelyn, and Virginia each executed a copy of the purchase agreement and the quitclaim deed each had received and mailed the documents back to the Pimperls.  The Pimperls then contacted Howard and inquired as to why he had not executed his purchase agreement and quitclaim deed.  Howard told the Pimperls that he believed that the property was worth more than the price reflected in the purchase agreement as the sales price and that, consequently, he did not intend to execute the purchase agreement and deed.  The Pimperls recorded the deeds they had received from Lehman, Mary, Evelyn, and Virginia, and sent them each a check in the amount of $2,300, representing 1/5 of the purchase price of the entire property.  The Pimperls also sent Virginia an additional $1,000 as reimbursement for funds she had expended to redeem the land from a tax sale.  The next month, Lehman, Mary, and Evelyn returned to the Pimperls the checks they had received for $2,300 with letters stating that they no longer intended to sell their interests in the land to the Pimperls.  The Pimperls filed an action in the Baldwin Circuit Court, seeking a declaration of ownership of the property interests of Lehman, Mary, and Evelyn, and seeking a partition of the land and a sale against Howard.  The defendants answered the complaint and filed a counterclaim, seeking a declaration that the purchase agreements and quitclaim deeds containing their signatures are a nullity and vaguely alleging "misrepresentation."  After a bench trial, the trial court entered an order finding that the purchase agreements and quitclaim deeds executed by Lehman, Mary, and Evelyn were binding contracts for the sale of their undivided interests in the land.  The court then ordered the Pimperls to pay Lehman, Mary, and Evelyn $2,300 each for their interests in the land.  The court further found "by stipulation of the parties that the deed [from] Virginia Carolyn Young Martin is a valid conveyance of her fractional interest in the property subject to the complaint."  The court then determined that the Pimperls were entitled to purchase the remaining 1/5 undivided interest from Howard.  The court appointed a licensed appraiser to perform a valuation of the remaining 1/5 interest to serve as the basis for a purchase price.  The Pimperls then had 30 days from the date of the valuation in which to pay to Howard the purchase price as set by the court-appointed appraiser.  Lehman, Mary, and Evelyn (hereinafter collectively referred to as "the appellants") appealed the trial court's order finding that their execution of the purchase agreements and deeds constituted binding contracts with the Pimperls for the sale of their interests in the land.  HOLDING:  The Supreme Court reversed.  The Court held that when the terms of the purchase agreement are read as a whole and each word is given its ordinary, plain, and natural meaning, it is clear that the purchase agreement requires the participation of all of the landowners for the sale of the land to occur.  The Court held that because fewer than all five of the landowners agreed to sell their interests and to execute the purchase agreement and quitclaim deeds, there is no binding contract for the sale of the land.)
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• Harbor Village Home Center, Inc. v. Thomas,

No. 1020392 (Ala. Nov. 21, 2003)
(arbitration; merger clauses; Curtis Thomas purchased from Harbor Village a new mobile home manufactured by Buccaneer Homes of Alabama, Inc.  In connection with the purchase, Thomas and Harbor Village executed three different documents, each of which contained an arbitration provision: a document entitled "Retail Installment Contract, Security Agreement, Waiver of Trial by Jury, and Agreement to Arbitration or Reference or Trial by Judge Alone" ("the retail contract"); a document entitled "Acknowledgment and Agreement" ("the acknowledgment"), which Buccaneer also executed; and a document entitled "Agreement for Binding Arbitration and Waiver of Jury Trial" ("the freestanding arbitration agreement").  After purchasing the mobile home, Thomas discovered numerous alleged defects.  He then sued Buccaneer and Harbor Village in the Washington Circuit Court, alleging fraud, breach of express and implied warranties, and violation of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq.  The complaint also alleged a negligence claim against Harbor Village.  Buccaneer and Harbor Village moved to compel arbitration.  Thomas filed a brief in opposition to their motions to compel arbitration.  Specifically, Harbor Village asked the circuit court to enter an order "compelling the parties to the controversy to submit all claims and causes of action in this present case to binding arbitration before the American Arbitration Association ...."  Harbor Village also included with its motion copies of the arbitration provisions and a supporting affidavit.  Thomas filed a response to Buccaneer's motion only, but filed a motion to strike the affidavit filed in support of Harbor Village's motion.  Thomas also sent a letter to the trial court arguing that even if the court compelled arbitration, arbitration did not have to be conducted under the Commercial Arbitration Rules of the American Arbitration Association (hereinafter "the AAA rules").  On August 27, 2002, the trial court issued an order in response to the motions to compel arbitration filed by  Buccaneer and Harbor Village stating that Curtis Thomas is entitled to a jury trial against Buccaneer for the express warranty claims and the claims brought pursuant to the Magnuson-Moss Warranty Act and that the other claims between the parties, including the implied warranty claims, are due to be arbitrated pursuant to the terms of the agreements for arbitration.  Harbor Village appealed.  Harbor Village claims that the trial court, in ordering that the arbitrator be selected by "the seller with the consent of the buyer and selected and agreed upon by both the buyer and seller," erroneously compelled arbitration under the freestanding arbitration agreement.  Harbor Village argues that the trial court should have instead compelled arbitration under the retail contract and the acknowledgment, which call for arbitration under the AAA rules.  Those rules, Harbor Village argues, set out a procedure for selecting an arbitrator different from the procedure found in the freestanding arbitration agreement.  Buccaneer did not appeal, and Thomas did not cross-appeal. HOLDING:  The Supreme Court reversed.  The Court held that the retail contract is the only fully integrated agreement between Harbor Village and Thomas because the retail contract contains all of the terms necessary to the contract, including a description of the mobile home, the identities and signatures of the parties, the price of the mobile home and the terms of the financing, the assignment, and an arbitration provision, plus the retail contract contains a merger clause.  The Court concluded that the acknowledgment, despite the fact that it contains a merger clause, is not the final and complete agreement of the parties.)
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• Edward D. Jones & Co. v. Wehby,

No. 1020689 (Ala. Nov. 21, 2003)
(arbitration; interstate commerce; John Herbert Wehby sued Jefferson Bruce McKittrick, his former business partner, alleging fraud and breach of contract.  Wehby later amended his complaint to include claims of breach of fiduciary duty and suppression against Edward D. Jones & Co., LP, d/b/a Edward Jones, and its agent, Frank Preziuso (hereinafter collectively "Jones").  In March 2000, Wehby and McKittrick formed a general partnership, J&J Com, to manage specific investment accounts located at AmSouth Bank in Jefferson County, Alabama, and at Edward D. Jones & Co. in Cleveland, Ohio.  Wehby's complaint alleges that McKittrick engaged in trading not authorized under the partnership agreement, resulting in losses to the partnership of approximately $385,000.  Wehby sought $500,000 in compensatory, consequential, and incidental damages, as well as costs, attorney fees, and interest on the debt.  McKittrick failed to answer Wehby's complaint, and the trial court entered a default judgment against McKittrick in the amount of $500,000.  Edward D. Jones & Co. and J&J Com had previously entered into a customer account agreement that addressed the partnership account the parties maintained with Edward D. Jones & Co.  This agreement contained an arbitration provision.  Jones moved the court to dismiss the action by Wehby and the partnership and to compel arbitration.  The trial court denied Jones's motions to dismiss and to compel arbitration.  HOLDING:  The Supreme Court reversed.  The Court held that the transaction at issue in this case between Jones and Wehby involves interstate commerce.)
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• Ex parte Alloy Wheels Int'l, Ltd.,

No. 1020778 (Ala. Nov. 21, 2003)
(personal jurisdiction; Katherine Victoria Vance was killed in the rollover wreck of her 1998 Land Rover Discovery sport-utility vehicle.  Katherine's mother, Sue Vance, as the personal representative of Katherine's estate, sued a number of defendants, and eventually added Alloy Wheels International, Ltd.  as a defendant, for Katherine's wrongful death. The plaintiff alleged product liability claims and Alabama Extended Manufacturer's Liability Doctrine claims against the defendants.  The plaintiff specifically alleged that Alloy Wheels had defectively designed and manufactured the aluminum alloy wheels on Katherine's Land Rover and that a crack in at least one of the wheels caused the fatal wreck. Answering the amended complaint, Alloy Wheels asserted, among other defenses, the lack of personal jurisdiction.  Thereafter, Alloy Wheels moved for a summary judgment on the ground that the trial court lacked personal jurisdiction over Alloy Wheels.  Alloy Wheels relied on the allegations of the complaint and on two affidavits of Paul Merritt, the operations director of Alloy Wheels in the United Kingdom.  The trial court denied that motion. Alloy Wheels filed a petition for writ of mandamus.  HOLDING:  The Supreme Court granted the writ of mandamus and directed the trial court to grant Alloy Wheels' motion for summary judgment.  The Court found that the plaintiff had not submitted substantial evidence that Alloy Wheels "purposefully directed" any action "at the forum State [other] than the mere act of placing a product in the stream of commerce" and that no evidence establishes sufficient minimum contacts between Alloy Wheels and the State of Alabama.)
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• Conference Am., Inc. v. Telecommunications Cooperative Network, Inc.,

No. 1021047  (Ala. Nov. 21, 2003)
(contracts; assignability; jury misconduct; Conference America, Inc. is an Alabama corporation that provides conference-call services.  In 1995, Conference America was selected by Telecommunications Cooperative Network of New York, Inc. ("Old TCN"), a not-for-profit membership cooperative that assisted nonprofit entities in using telecommunications services, to provide conference-call services to members of Old TCN.  In 1997, Conference America and Old TCN entered into an agreement ("the 1997 agreement") pursuant to which Conference America would pay Old TCN a 24% commission on the services Conference America provided to members of Old TCN.  The term of the 1997 agreement extended from January 27, 1997, through December 31, 2000.  The 1997 agreement was silent as to whether the agreement was assignable.  By early 1998, Old TCN was having financial difficulties and was close to filing a petition for involuntary bankruptcy.  Around that time, David Altshuler, who had served as vice chairman on the board of directors of Old TCN through July 1997, formed a for-profit corporation named Telecommunications Management, Inc. ("TMI").  Pursuant to a management agreement between Old TCN and TMI, Altshuler, as president of TMI, took over the management of Old TCN. In July 1998, TMI changed its name to Telecommunications Cooperative Network, Inc. ("New TCN").  In September 1998, the assets of Old TCN – including its name, its goodwill, and the 1997 agreement -- were transferred or assigned to New TCN and Old TCN was subsequently dissolved.  New TCN is a for-profit corporation, run by Altshuler as its sole officer and director.  Conference America claims to have had no knowledge of the transfer of assets of Old TCN to New TCN, of the dissolution of Old TCN, or of the creation of New TCN.  After New TCN acquired the assets of Old TCN, Conference America continued to provide services and to remit commissions to New TCN pursuant to its 1997 agreement with Old TCN.  In December 1998, Conference America executed another agreement ("the 1998 agreement") virtually identical to the 1997 agreement that, among other things, extended the term of the 1997 agreement through September 30, 2002.  The 1998 agreement referred to "TCN"; it did not distinguish between "Old" TCN and "New" TCN.  According to Conference America, New TCN held itself out as being the same company as the dissolved Old TCN.  Subsequently, the relationship between Conference America and New TCN became strained.  Conference America sued New TCN, Altshuler, Chris Lipscomb, and others, seeking, among other things, 1) damages for fraud, breach of contract, repudiation of contract, and moneys paid by mistake under a void assignment of the 1997 agreement, and 2) declaratory and injunctive relief.  New TCN and Lipscomb each filed a counterclaim.  Following the trial, however, the only claims that went to the jury were Conference America's breach-of-contract and fraud claims, New TCN's counterclaim alleging breach of contract and repudiation of contract, and Lipscomb's counterclaim alleging breach of contract.  The trial court granted New TCN's motion for a judgment as a matter of law as to Conference America's claim that it was entitled to moneys paid to New TCN by mistake because, it argued, the 1997 agreement was unassignable.  The jury returned a verdict for New TCN and Lipscomb on Conference America's breach-of-contract and fraud claims and on their counterclaims.  The jury awarded damages on the counterclaims in the amounts of $1,007,499.97, and $1,000 to New TCN and Lipscomb, respectively.  The trial court entered a judgment on this verdict.  Following the verdict, Conference America discovered that a juror had given erroneous answers in his questionnaire and on voir dire examination.  It confirmed this fact through investigation and memorialized its discovery and initial investigation in a letter to the Court dated November 8, 2002,  enclosing its investigative material.  On November 22, 2002, Conference America filed motions for a judgment as a matter of law, a new trial, and to alter, amend, or vacate the judgment, asserting, among other things, juror misconduct and the alleged unassignability of the 1997 agreement.  The trial court denied Conference America's postjudgment motions.  HOLDING:  The Supreme Court held that that the trial court's rulings based on the assignability of the 1997 agreement were correct.  However, the Court held that the juror misconduct warrants a new trial.  The Court also held that the trial court's resolution of the equitable claims in this case is unaffected by any juror misconduct and its judgment as to those claims is affirmed.  The Court held that the trial court did not err in denying Conference America's motion for judgment as a matter of law regarding New TCN's counterclaims.)
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• Pittman v. United Toll Sys., LLC,

No. 1021188 (Ala. Nov. 21, 2003)
(automobile accident; negligence; wantonness; assumption of the risk; summary judgment; Gayle Pittman sued United Toll Systems, LLC ("United Toll"), State Farm Mutual Automobile Insurance Company ("State Farm"), and certain fictitiously named defendants, seeking to recover damages for injuries she sustained in an automobile accident that occurred on the approach to a toll bridge operated by United Toll.  The accident was caused by a chain reaction set in motion by icy conditions on the bridge.  Pittman alleged negligence and wantonness against United Toll and alleged breach of contract as to both State Farm and United Toll.  United Toll moved for a summary judgment on all pending claims against it on the sole basis of the defense of assumption of the risk.  Pittman responded and the trial court, after hearing oral arguments on the motion, entered a summary judgment for  United Toll on all claims without stating its rationale.  Pittman filed a motion to alter, amend, or vacate the trial court's judgment; the court denied that motion.  Pittman appealed.  Pittman argues that the trial court erred in entering a summary judgment for United Toll because, she says, in response to its summary-judgment motion she presented substantial evidence creating genuine issues of material fact (1) as to whether she had actual knowledge and appreciation of the danger of ice on the bridge and (2) as to whether she voluntarily proceeded onto the approach to the bridge with an understanding that there was ice on the bridge.  HOLDING:  The Supreme Court reversed as to the summary judgment on the negligence and wantonness claims.  The Court held that no evidence was presented to indicate Pittman's "actual awareness" that there was ice on the bridge before the driver of the truck lost control of it.  The Court also concluded that Pittman did not voluntarily proceed with knowledge of the danger posed by ice on the bridge.  Therefore,  the Court held that there exist genuine issues of material fact to be resolved by the fact-finder as to whether Pittman assumed the risk.  The Court noted that Pittman did not challenge the summary judgment on the breach-of-contract claim.)
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• Ex parte Leasecomm Corp.,

Nos. 1021281 & 1021308 (Ala. Nov. 21, 2003)
(outbound forum-selection clause; Aaron Cobb filed a putative class action against Galaxy Mall, Inc. , a Utah company, and MicroFinancial, Inc., and its subsidiary, Leasecomm Corporation, both Massachusetts companies (the Massachusetts companies will hereinafter be collectively referred to as "Leasecomm").  The complaint sought compensatory and punitive damages "in an amount not to exceed $74,000 per class member."  Recovery was sought on theories of (1) breach of contract, (2) fraud, (3) fraudulent suppression, (4) conspiracy, (5) theft by deception, (6) conversion, and (7) violation of statutory usury laws.  Galaxy Mall filed a "Motion to Enforce Forum Selection Clause."  The motion was based on a clause on the reverse side of the order form provided by Galaxy Mall and signed by Cobb, which provided: "[T]he parties agree that any and all disputes arising out of this transaction ... shall be resolved in the courts of the State of Utah in the County of Utah or the United States District Court for the State of Utah."  Leasecomm had filed a similar motion based on a forum-selection clause in the lease agreement entered into between Leasecomm and Cobb; that clause provided: "The Parties hereby ... consent and submit to the exclusive jurisdiction of the Courts of the Commonwealth of Massachusetts and expressly agree to such exclusive forum for the bringing of any suit, action or other proceeding arising out of their obligations hereunder, and expressly waive any objection to venue in any such Courts ...."  The trial court denied the motions, stating: "[E]nforcement of either forum selection clause would be unreasonable under the circumstances because the clauses effectively deny [Cobb] and remaining Alabama customers ... their day in court."  The trial court held that enforcement of the outbound forum-selection clauses would be "seriously inconvenient," and "unreasonable under the circumstances."  Glaxy Mall and Leasecomm filed petitions for writs of mandamus challenging the trial court's ruling.  HOLDING:  The Supreme Court denied the petitions for writ of mandamus.  The Court noted that Galaxy Mall and Leasecomm anticipate the splitting of Cobb's claims for separate trials against Galaxy Mall and Leasecomm in Utah and Massachusetts, respectively.  The Court also noted that Alabama has a strong policy against splitting causes of action or claims.  The Court further noted that where a plaintiff's suit is truly broader than the forum selection clause and the structure of the complaint is not an attempt to avoid the forum selection clause, enforcement of the forum selection clause would be unreasonable.  The Court concluded that the claims against Galaxy Mall and Leasecomm are inextricably intertwined.  The Court held that under the circumstances of this case, it cannot conclude that the trial court exceeded its discretion in denying the petitioners' motions.)
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• Ex parte Jackson,

No. 1021330 (Ala. Nov. 21, 2003)
(tenure; dismissal of public school teacher; Lucy Jackson was a teacher at Howard Elementary School in Mobile.  The principal at Howard Elementary recommended that Jackson's employment be terminated, and the Mobile County School Board voted 4-0 to terminate her employment.  Jackson appealed her termination to the Alabama State Tenure Commission ("the Commission").  As part of discovery during her appeal, she requested all documents that would be presented against her at the Commission's hearing.  She was timely provided with those documents and with summaries of the testimony that would be presented against her at the hearing.  Many of the documents came from her personnel file -- to which all public-school teachers have access upon request.  However, some of the documents had been retained outside her personnel file; Jackson was unaware of the existence of those documents until the documents were provided to her pursuant to her discovery request.  After the hearing, the Commission upheld the decision of the school board to terminate Jackson's employment.  Jackson petitioned the Mobile Circuit Court for a writ of mandamus ordering the Commission to reverse its decision.  The circuit court issued the writ, holding that Jackson was not properly notified of the grounds of her termination.  The Commission appealed to the Court of Civil Appeals, which reversed the judgment of the trial court issuing the writ.  HOLDING:  The Supreme Court affirmed the Court of Civil Appeals.  The Court rejected Jackson's argument that certain records were unlawfully "retained," because their retention anywhere outside her "personnel file" was inconsistent with Ala. Code §16-22-14.   The Court held that even assuming that the retention of the records violates §16-22-14, Jackson's argument lacks merit, because she asserts no recognizable injury stemming from this alleged violation.)
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• Ex parte Horton Family Housing, Inc.,

No. 1021679 (Ala. Nov. 21, 2003)
(discovery; arbitration; Sabrina Burton and John Burton ordered a manufactured home from Horton Family Housing, Inc.  Mrs. Burton appears to have handled all aspects of the transaction.  The Burtons specially ordered linoleum for the bedroom floor and a large Palladian window.  Horton processed special order homes such as the Burtons' only after financing was approved through GreenPoint Credit, L.L.C., a financing company.  On December 12, 2001, GreenPoint Credit informed Horton that it had approved the financing for the Burtons' home, stating on the application Mrs. Burton had submitted: "all conditions have been met."  Kim Temple, an employee of Horton, then informed Mrs. Burton that her credit application had been approved.  Mrs. Burton signed three documents to complete the transaction: a buyer's order form, an installment sales contract/security agreement, and a separate arbitration agreement.  The installment sales contract/security agreement also contained an arbitration provision that contained the following language, which did not appear in the separate arbitration agreement: "Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator(s)."  When the manufactured home was complete, Horton delivered it to the Burtons' property.  However, Horton was unable to place the home on its designated site because the property had not been adequately prepared.  After its unsuccessful attempt at delivery, Horton returned the home to its place of business.  At some point after delivery of the manufactured home was attempted, GreenPoint Credit informed both parties that it could not confirm Mrs. Burton's income and thus that it was withdrawing its approval of the loan.  The Burtons filed this action in the Elmore Circuit Court claiming fraudulent misrepresentation, fraud by forgery, failure to disclose, conversion, negligence, wantonness, negligent delivery and removal, and wanton delivery and removal.  Horton and Temple filed an answer and a motion to dismiss, or, alternatively, to compel arbitration.  The Burtons immediately filed notice of their intent to serve a subpoena on GreenPoint Credit and noticed the taking of the deposition of Horton's president, Trey Horton.  At this point, Horton and Temple filed a motion for a protective order to halt discovery, which the trial court initially denied on June 25, 2003.  Horton and Temple subsequently filed a petition for a writ of mandamus.  The day Horton and Temple filed the petition, the trial court issued a protective order "as to issues beyond the substance of the existence of the sales/financing agreement." HOLDING: The Supreme Court denied the petition.   The Court held that whether GreenPoint Credit extended financing to the Burtons is central to this dispute, and the Burtons are entitled to conduct limited discovery on matters related to the financing.  The Court stated that on June 25, the trial judge denied Horton and Temple's motion for a protective order, which would have placed some limit on discovery, and that in so deciding, the judge exceeded his discretion.  The Court stated that if the order had stood, the trial court would have committed reversible error.  However, on July 9, the judge issued a protective order which appropriately limited the Burtons' discovery to whether financing had been approved; if it had been approved, when; and if and when financing was later withdrawn.  The Court stated that if the trial court permits discovery beyond those bounds, Horton and Temple are free to again petition for mandamus relief.)
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• Ex parte Town of Valley Grande, Alabama,

No. 1021744 (Ala. Nov. 21, 2003)
(municipal incorporation; appellate procedure;  On December 13, 2002, residents of the Valley Grande community who were inhabitants, property owners, and qualified electors filed a petition for incorporation of the community of Valley Grande in the Dallas County Probate Court.  On December 16, 2002, the probate court held a hearing and after reviewing the petition and the evidence granted the petition to incorporate and ordered an election on the question of whether to incorporate the Town of Valley Grande, Alabama.  The election was held on January 9, 2003.  On January 8, 2003, Rita M. Lett and Tamara Duncan Smith filed a petition in the Dallas Probate Court seeking to vacate the probate court's order granting the petition to incorporate and ordering an election.  The probate court, on that same day, entered an order allowing the January 9 election to proceed, and it agreed to address the matters raised in Lett and Smith's petition to vacate after the election.  On January 9, 2003, the election on the incorporation question was held.  The results of that election were 821 votes for incorporation and 90 votes against incorporation.  Election inspectors certified the election results and their certificate was filed with the probate court on January 11, 2003.  On January 16, 2003, the probate court held a hearing on Lett and Smith's petition to vacate and on several other objections raised by Lett and Smith, including allegations that the metes and bounds description in the petition for incorporation was incorrect, that some parties who signed the petition were not residents, and that absentee ballots had not been provided for the election.  On January 30, 2003, the probate court issued an order rejecting Lett and Smith's objections.  Specifically, in its order the probate court found that the description of the property to be incorporated included with the petition for incorporation was an accurate description by metes and bounds of the area proposed to be incorporated and that it met the statutory requirements as interpreted by Alabama Supreme Court caselaw; that Lett and Smith's challenge with regard to the alleged failure to provide absentee ballots was meritless, in light of Ala. Code §11-41-1 et seq.; and that the statutory and jurisdictional requirements in effect on the date the petition for incorporation was filed had been met and that, therefore, the jurisdiction of the probate court was properly invoked.  On January 31, 2003, Smith and Lett filed a petition for a writ of mandamus and prohibition in the Dallas Circuit Court, asking that court to direct the probate court to vacate its order granting the petition to incorporate and setting the date for the incorporation election and to issue a writ prohibiting the probate judge from certifying and recording the results of the election.  On February 3, 2003, the probate court entered an order of incorporation for the Town of Valley Grande.  On July 7, 2003, the persons who petitioned for an order of incorporation for the Town of Valley Grande (hereinafter "the Valley Grande citizens") filed in the circuit court a motion to dismiss Lett and Smith's petition for the writ of mandamus.  In its motion, the Valley Grande citizens argued that the circuit court did not have jurisdiction to entertain Smith and Lett's petition because, it said, the probate court's order of incorporation, entered on February 3, 2003,  constituted a final judgment, and the only remedy available to Lett and Smith was by an appeal.  On July 15, 2003, the circuit court denied the motion to dismiss filed by the Valley Grande citizens.   On July 18, 2003, the Valley Grande citizens filed a petition for a writ of mandamus with the Supreme Court.  In its petition, the Valley Grande citizens argued that the circuit court should have dismissed Lett and Smith's petition for the writ of mandamus because, it said, Smith and Lett's proper means of review of the probate court's order was by an appeal. HOLDING:  The Supreme Court granted the petition.  The Court held that Lett and Smith had an adequate remedy by appeal; accordingly, a petition for a writ of mandamus filed in the circuit court was not the appropriate means of review in this case.  The Court directed the circuit court to dismiss Lett and Smith's petition for a writ of mandamus and prohibition.)
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• Ex parte B.D.S.,

No. 1021936 (Ala. Nov. 21, 2003)
(The Supreme Court denied the petition for writ of certiorari without opinion, but  the Court stated that in denying the petition for the writ of certiorari, the Court does not not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion.)
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• Ex parte B.D.S.,

No. 1021939 (Ala. Nov. 21, 2003)
(The Supreme Court denied the petition for writ of certiorari without opinion, but  the Court stated that in denying the petition for the writ of certiorari, the Court does not not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion.)
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Opinions Released Nov. 17, 2003

• Ex parte Anonymous,

No. 1030172 (Ala. Nov. 17, 2003)
(Opinion quoted in full:  "This Court, by order of November 7, 2003, reversed the Court of Civil Appeals'  judgment and remanded this matter for that court to "remand this cause to the trial  court and order that court to detail sufficiently the basis for appropriate findings  and immediately to conduct such further proceedings, to include taking additional  testimony or admitting further evidence, that may be necessary in order to do so." Ex parte Anonymous, [Ms. 1030172, November 7, 2003] ___ So. 2d ___, ___  (Ala. 2003).   The burden of proof with respect to both the maturity/well-informed prong and the  best-interest prong of § 26-21-4(f), Ala. Code 1975, lies with the minor. In re  Anonymous, 833 So. 2d 75, 78 (Ala. Civ. App. 2002).  After having reviewed the  trial court's order entered on November 13, 2003, on remand, this Court concludes  that the trial court's finding as to the maturity/well-informed prong is sufficiently  supported by the record.  This Court further concludes that the minor failed to  carry her burden of proof as to the best-interest prong, particularly in light of the  absence of evidence as to the attitude or ability of the minor's father to assist her  and as to whether an abortion is in her physical or emotional best interest.  AFFIRMED.")
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Opinions Released November 14, 2003

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

 
• Ex parte Sears Roebuck & Co.,

No. 1020251 (Ala. Nov. 14, 2003)
(discovery; The underlying dispute in this case involves a workplace injury a Sears Roebuck and Co. employee, Sonya Salter, suffered on December 1, 2000. On October 3, 2001, Salter sued Sears Roebuck and Co., and its employees Debbie McCarley, Frank Blankenship, and Larry Collins (hereinafter collectively "Sears"), alleging fraud, concealment, misrepresentation, intentional infliction of emotional distress, and suppression arising from the injury to her right foot. Sears denied Salter's claims and moved for a summary judgment.  The trial court entered a scheduling order that provided that all discovery in Salter's action was to be completed by March 31, 2002. On March 23, 2002, Salter served Sears with interrogatories and requests for the production of documents. On April 26, 2002, Sears responded to Salter's discovery requests, objecting to the production of certain documents. Salter moved to compel Sears to produce the documents.  On May 10, 2002, the trial court denied Sears's summary-judgment motion and granted Salter's motion to compel. On May 17, Sears moved the trial court to certify its denial of Sears's summary-judgment motion for an interlocutory appeal pursuant to Rule 5, Ala.R.App.P. On May 20, Salter moved pursuant to Rule 37, Ala.R.Civ.P., to enforce the trial court's discovery order, and on May 24, Sears moved for a protective order. On May 31, the trial court certified its denial of Sears's summary-judgment motion for an interlocutory appeal, stayed the proceedings in the case except for discovery, denied Sears's motion for a protective order, and ordered Sears to provide Salter with the requested discovery within 10 days.  Sears sought permission for an interlocutory appeal of the denial of its summary-judgment motion with the Supreme Court,  but did not provide Salter with any of the requested documents pursuant to the trial court's discovery order. On June 19, 2002, Salter again moved to compel production of the documents. On June 26, the trial court entered an order explaining that it did not stay discovery in its May 31, 2002, order. The trial court ordered Sears to provide Salter the requested discovery by July 1, 2002, and warned that it would sanction Sears by striking its pleadings if Sears failed to comply with the order.  On July 1, 2002, Sears filed with this Court an earlier petition for a writ of mandamus seeking protection from the discovery order.  Sears also moved the trial court for a stay of discovery while its mandamus petition was pending. On July 19, 2002, the Supreme Court denied Sears's petition for permission to take an interlocutory appeal, finding that the trial court's certification failed to include a statement of the controlling issue of law, and it also denied Sears's mandamus petition.  On July 25, 2002, Sears moved the trial court to amend its May 31 order to include a proper statement of the controlling issue of law, and to recertify its order for an interlocutory appeal. On August 26, the trial court denied Sears's motion to recertify its order. The trial court also struck Sears's "pleadings as they relate to the fraud claims of [Salter]" as a sanction, because Sears had failed to comply with the July 1, 2002, discovery deadline.  Sears moved the trial court to reconsider the sanction it had imposed for Sears's violation of its discovery order. The trial court conducted a hearing on the issue. On October 1, 2002, the trial court denied Sears's motion to reconsider the discovery sanction. Sears now petitions the Supreme Court for a writ of mandamus ordering the trial court to vacate its order striking Sears's pleadings as to Salter's fraud claims.  HOLDING:  The Supreme Court denied the petition.  The Court held that because Sears failed to comply with the trial court's June 26, 2002, order to provide Salter with the requested discovery by July 1, the trial court judge was well within his discretion to sanction Sears for discovery abuse.  The Court left  it to the trial court to clarify what aspect of the "pleadings" it intended to strike.)
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Court of the Judiciary Judgment Released November 13, 2003

• In the Matter of Roy S. Moore, Chief Justice of the Supreme Court of Alabama

(The Court of the Judiciary removed Chief Justice Moore from office because of his refusal to comply with a federal court order to remove his "Ten Commandments monument" from the state judicial building.)
Final judgment available only in PDF format
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Opinions Released November 7, 2003

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

 
• Harrelson v. R.J.,

No. 1012233 (Ala. Nov. 7, 2003)
(assault and battery; the tort of outrage; punitive damages;  R.J. allowed her 15-year-old daughter, J.B., to spend the night with J.B.'s 15-year-old friend, M.B., after the two had returned from a weekend ROTC meet.  At that time, M.B. lived with her mother and with her stepfather, Anthony Harrelson.  Later that night, M.B.'s mother and Anthony went to a nightclub to celebrate Anthony's birthday, leaving M.B. and J.B. alone in the house.  The girls spent the evening watching television, talking on the telephone, and using the computer.  Eventually, they went to sleep in M.B.'s bed, which was positioned under the window in her bedroom.  M.B. testified that she always locked her bedroom door before going to sleep at night, and that when she and J.B. went to sleep, her bedroom door was locked.  In the early morning hours of March 15, 1999, M.B. and J.B. were awakened when Anthony tapped on M.B.'s bedroom window.  Anthony told M.B. that he and her mother were locked out of the house.  Apparently, M.B.'s mother was very intoxicated and had become ill in the car on the way home.  M.B. got up and unlocked one of the doors for Anthony and her mother.  M.B. went back to her bedroom, locked the door, and she and J.B. fell asleep.  A short time later, the girls were awakened again when Anthony tapped on the window.  M.B. opened the window, and Anthony began talking with them.  Anthony gave them a wine cooler through the window and M.B. and J.B. drank it.  J.B. testified that while Anthony was talking to her through the window, she could tell that he had been drinking because she could smell alcohol and because he was talking and acting differently than he normally did.  She said that Anthony told her that she was "hot," and she believed that he was flirting with her.  M.B. testified that she did not know what to think about Anthony's demeanor toward J.B., but that the conversation made her uncomfortable.  During the course of the conversation with Anthony, M.B. and J.B. each left the bedroom to go to the bathroom.  J.B. was the last one to come back into the bedroom, and she did not lock the door.  After the girls finished the wine cooler, they passed the empty bottle back through the window to Anthony, who threw it into a nearby field.  Anthony left to feed his pet wolves, and the girls closed the window and went back to sleep.  J.B. testified that she was awakened a short while later by Anthony, who was standing over her and touching her.  After Anthony left, J.B. and M.B. both got out of bed.  When J.B. told M.B. what Anthony had done, both girls started crying.  They did not sleep for the rest of the night.  The next day at school, J.B. told one of her teachers what had happened.  The teacher insisted that J.B. inform the principal and assistant principal; she did so and the principal and assistant principal then contacted the Department of Human Resources ("DHR").  The State brought criminal charges against Anthony Harrelson.  He was tried and convicted of sexual abuse in the second degree, a Class A misdemeanor.  R.J., individually and as mother and next friend of J.B., sued the Harrelsons.  In her complaint, R.J. alleged assault and battery and the intentional infliction of emotional distress, i.e., the tort of outrage, against Anthony, negligence against M.B.'s mother, and loss of services of a child against Anthony and M.B.'s mother.  The case was tried before a jury.  At the close of the evidence, the trial court entered a judgment as a matter of law in favor of both defendants as to R.J.'s claim for loss of services of a child and in favor of M.B.'s mother as to R.J.'s negligence claim.  M.B.'s mother was then dismissed from the action.  The assault-and-battery and tort-of-outrage claims were then submitted to the jury.  The jury returned a verdict in favor of R.J. on both counts.  The jury awarded R.J. $5,000 compensatory damages and $25,000 punitive damages on the assault-and-battery claim.  The jury awarded R.J. $10,000 compensatory damages and $50,000 punitive damages on the tort-of-outrage claim.  HOLDING:  The Supreme Court affirmed.  The Court held that, despite Anthony's contentions, R.J. presented substantial evidence from which a jury could find that J.B. suffered severe emotional distress as a result of Anthony's conduct.  The Court held that the punitive damages award was justified because Anthony's conduct was extremely reprehensible, the punitive damages in this case were five times the relatively low compensatory-damages award, Anthony's behavior is punishable by criminal statutes in the State of Alabama, and the record does not support Anthony's allegations that the punitive-damages awards against him "will result in complete financial devastation for which there can be no relief.")
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• Cashion v. Torbert,

No. 1020886 (Ala. Nov. 7, 2003)
(estate administration; insolvent estate; attorney fees; The appeal of a related case involving the same parties was decided in Cashion v. Torbert, No. 1020449 (Ala. Aug. 29, 2003).  This appeal arises out of the same "fairly convoluted procedural history."  Mary Dixon Torbert, an attorney in Montgomery, served during Dot Smith's life as the court-appointed conservator of her estate, and, upon final settlement of that conservatorship, was awarded an attorney's fee of $15,298.75.  After Ms. Smith died, Torbert filed a claim against her estate, of which Cashion was the successor executrix, for her attorney-fee award as conservator.  Cashion subsequently determined that the estate was insolvent and filed a report of insolvency with Reese McKinney, Jr., Judge of Probate of Montgomery County.  She listed the total assets of the estate as $18,511.46.  In her report of insolvency, Cashion itemized the claims had been filed against the estate, indicating as to each claim the subsection in Ala. Code §43-2-371 to which Cashion believed it should be assigned.  Additionally, Cashion requested reimbursement of expenses incurred by her and her predecessor executrix in the amount of $1,800, and payment of "attorneys fees of approximately $4,000.00 to date."  Cashion asserted that the $5,800 represented by those two items was due to be paid as a debt under §43-2-371(2), representing "fees and charges of administration."  On January 18, 2002, Judge McKinney issued a "Decree of Insolvency," declaring the estate insolvent and ordering "that Amanda Linn Cashion, as executrix, appear and make a statement of her administration for final settlement of said estate on the 25th day of February, 2002, at 1:30 o'clock p.m."  The hearing was held as scheduled on February 25, and Judge McKinney heard Cashion's statement of her administration of the estate "and any objections to same."  On March 5, Judge McKinney issued his "Order on Final Settlement," in which he found, "upon consideration of all the evidence, testimony, and briefs," that the available assets of the estate amounted to $18,511.46, and that they should be disbursed to satisfy certain claims and expenses of the estate, including Torbert's claim, reduced  from the $15,298.75 awarded by Judge McCooey to $15,286.11."  In his March 5 order, Judge McKinney further declared that Torbert would "be responsible for paying outstanding debts that were incurred under the Conservatorship of Dot C. Smith (Treasure [Chest] Antiques $2,070.00 and [Green] $478.79) from the funds she will receive from this Estate ...."  The order also directed payment of the bill of Hamilton Funeral Home, the expenses incurred by Cashion and her predecessor executrix in the amount of $1,800, and court costs in the amount of $414.50.  Thus, the aggregate amount of the claims and court costs approved was $18,511.46, exactly matching the funds available for payment of claims and expenses.  No mention was made of the claims of South Haven Health & Rehabilitation ("South Haven"), American Pharmaceutical Services, and Alabama Gas Company.  Although in the report of insolvency Cashion characterized the $4,000 component of her $5,800 claim as "attorney fees," in her brief in support of the report of insolvency she clarified the $5,800 claim as one being made on behalf of herself and the predecessor executrix "under Ala. Code §43-2-371(2), for $5,800 for fees and charges that accrued for the administration of the Estate."  On July 11, 2002, Cashion filed in the circuit court formal objections to the claims against the estate filed by Alabama Gas Company, Green, Treasure Chest, and Torbert.  On August 9, Torbert moved to strike all of the objections, contending that Ala. Code §43-2-747 required such obligations to be presented to, and resolved by, the probate court and that, therefore, they could not be presented for the first time in the circuit court, because the circuit court's review was not de novo but was limited to the record from the probate court.  Cashion argued that, under Ala. Code §43-2-747 she had six months after the estate was declared insolvent to file an objection, but that Judge  McKinney had "prematurely" entered the final settlement order, leaving her with no choice but to file the objections in the circuit court.  On December 5, 2002, Judge Shashy granted Torbert's motion to strike Cashion's objections and affirmed Judge McKinney's order on final settlement.  HOLDING:  The Supreme Court held that the probate court erred in disallowing entirely Cashion's claim for compensation for the services she rendered to the estate, but the Court held that  the maximum allowable amount of compensation was $925.58.  The Court found no reversible error with respect to Judge McKinney's classification of Torbert's claim. The Court affirmed as to most of the other issues raised.) 
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• Dickinson v. Land Developers Constr. Co.,

Nos. 1021276 & 1021277  (Ala. Nov. 7, 2003)
(statute of limitations; discovery rule; claims of breach of contract, fraud, mental anguish and emotional distress, negligent and/or wanton inspection, breach of the warranty of habitability, and breach of the implied warranty of merchantability arising from the construction of a house; claims of breach of contract, fraud, negligence, and negligence per se arising out of termite damage to a house; Douglas and Barbara Dickinson and Land Developers Construction Company, Inc. entered into a contract for the construction of a house.  Cook's Pest Control, Inc. issued the Dickinsons a "Subterranean Termite Control Damage Replacement Guarantee" for this house on February 25, 1993.  This guarantee was effective for one year and was renewable annually.  Pursuant to this guarantee, Cook's provided an initial inspection and pretreatment of the Dickinsons' house against termites and conducted annual inspections thereafter.  Those annual inspections checked, among other things, the moisture level of the house.  The Dickinsons moved into their house on December 20, 1993.  Shortly after moving in, the Dickinsons began to notice a number of problems with their house.  In early January 1994, the Dickinsons provided Land Developers with a "punch list" of items that needed to be completed.  On October 2, 1994, the Dickinsons sent Land Developers another list of items that still needed to be addressed. Six to nine months after moving into their residence, the Dickinsons discovered seals on certain of the windows were broken. On November 17, 1994, the Dickinsons' architect prepared a list of problems with the French doors in the house.  In early 1995, the Dickinsons documented a leak in their "pool bath." On May 1, 1995, the Dickinsons wrote a letter to Land Developers stating that they would like Land Developers to address the noted problems as soon as possible and listing seven areas of concern with the house.  On May 13, 1995, the Dickinsons sent a memorandum to Land Developers concerning cracks in the driveway and a water leak under their driveway and asking when it would address the previously noted problems.  The inspection report prepared by Cook's in 1995 noted that there was some water seepage in the crawl space under the house and that some wood material was "below grade," i.e., below the ground level.  However, the reports prepared by Cook's in 1996 through 2000 failed to note any water seepage; the 1996 report stated that everything "Looks good!"  Furthermore, the 1996, 1998, and 1999 reports prepared by Cook's concurred with the 1995 report in stating that there was wood in the Dickinsons' house that was below the outside grade level, but the 1994, 1997, and 2000 reports indicated that there was no wood below the outside grade level.  On April 26, 1996, the Dickinsons sent Land Developers a letter by certified mail; the letter outlined 11 residual problems with the house.  Land Developers never responded to this letter.  On October 30, 1999, the Dickinsons sent another letter via certified mail to Land Developers requesting that it fix several problems with the house.  After Land Developers failed to respond to the October 30, 1999, letter, the Dickinsons hired a structural engineer, Joel Wehrman, to inspect their house.  In his report, Wehrman found that there was a separation between the brick veneer and the doorframes of the French doors at the rear of the house.  Wehrman opined that the separation was caused by the rotting of the wooden basement wall, which had resulted from the use of untreated wood in constructing the basement wall.  Wehrman stated that the decay of the belowground wooden wall was inevitable.  Wehrman also found that the use of the wooden wall resulted in a lack of lateral support for the house and could contribute to the separation of the superstructure from the foundation.  In addition, Wehrman found that the driveway, walkway, and patio were cracking.  Wehrman stated that this resulted from their having been constructed on fill soils, which had settled since construction.  At Wehrman's suggestion, and with his oversight, the Dickinsons began the demolition and reconstruction of part of their house in February 2000.  The cost of the demolition and reconstruction was $731,833.50.  Before the demolition and reconstruction, no termite activity was reported and the moisture-content levels measured by Cook's in its annual inspections were never at or above 20% (a level of 20% or above would have indicated a greater chance of wood decay and insect infestation).  During the demolition and reconstruction of the Dickinsons' house, however, Cook's discovered termite activity in the belowground wooden wall, which was located at the rear of the house.  After being informed by Cook's of the termite infestation, the Dickinsons hired a termite consultant to inspect their home.  This consultant observed the termite infestation in the rear of the house and, after evaluating Cook's pretreatment of the Dickinsons' house, concluded that Cook's should have applied 600 to 700 gallons of the insecticide Dursban to the Dickinsons' house. The records maintained by Cook's reflect that it applied only 444 gallons of Dursban.  On December 21, 1999, following receipt of the Wehrman report, the Dickinsons sued Land Developers in the Shelby Circuit Court, seeking damages for breach of contract, fraud, mental anguish and emotional distress, negligent and/or wanton inspection, breach of the warranty of habitability, and breach of the implied warranty of merchantability arising from the construction of the Dickinsons' house.  On October 27, 2000, the Dickinsons sued Cook's in the same court, seeking damages for breach of contract, fraud, negligence, and negligence per se arising out of termite damage to their house.  The actions were consolidated following a motion filed by the Dickinsons.  Land Developers and Cook's both filed  motions for a summary judgment; the trial court granted both motions, holding that the Dickinsons' claims against Land Developers and Cook's were time-barred.  HOLDING:  The Supreme Court noted that the Dickinsons discovered a number of problems with their house at an early stage, including roof leaks, problems with the French doors and window seals, a leaking pool bath, water damage in parts of their home, and cracks in and moisture on the driveway.  The Court held that insofar as the Dickinsons' claims against Land Developers arise out of these problems, they are barred by the two-year statutory limitations period of Ala. Code §6-5-221.  The Court held that Land Developers failed to show that the problems the Dickinsons experienced with their house shortly after construction was completed would cause a reasonable person to discover the existence of the rotten belowground wooden wall or the allegedly improperly compacted fill soil.  The Court held that the question of when the Dickinsons should have discovered the serious structural defects in their house, such as the rotten belowground wall and the allegedly improperly compacted fill soil, may not be decided as a matter of law, and a jury question exists as to when the Dickinsons discovered facts sufficient to maintain their claims against Land Developers.   The Court affirmed the summary judgment in favor of Cook's.)
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• Randall v. Water Works & Sewer Bd. of the City of Birmingham,

No. 1021289 (Ala. Nov. 7, 2003)
(municipal referendum; jurisdiction; standing; ripeness; On or about October 2, 2002, a group of electors in the City of Birmingham (hereinafter referred to collectively as the "electors") filed with Michael F. Bolin, the probate judge for Jefferson County, a "Petition for Ordinance to Reclaim the Water Works Assets for the City of Birmingham."  The electors requested that the probate judge certify their petition and submit the proposed ordinance to the Birmingham City Council for adoption by initiative or by referendum election.  The electors filed their petition pursuant to the authority purportedly granted by Act No. 294, Ala. Acts 1965.  The purpose of the proposed ordinance was "to implement a plan to satisfy and redeem the debt of the Water Works and Sewer Board of the City of Birmingham in order to administer more effectively such systems and use the surplus revenues therefrom for needed improvements in city schools and other projects."  In order to accomplish this purpose, the ordinance authorized the City of Birmingham to redeem the debts of the Water Works and Sewer Board of the City of Birmingham ("the Board") and to cause the dissolution of the Board by operation of law, which would then vest title to the assets of the Board in the City.  At the time the electors submitted their petition, the outstanding indebtedness of the Board was $550 million.  The ordinance submitted by the electors would appoint David A. Sullivan as a special attorney for the City and would grant him virtually unlimited authority to accomplish the purpose of the ordinance.  In addition, the proposed ordinance requires the mayor and all employees, consultants, and attorneys for the City to assist and cooperate with Sullivan and to pay "all invoices for actual expenses incurred and provid[e] all information and assistance as requested by Mr. Sullivan."   Under the ordinance, Sullivan was to be compensated for his services as special attorney for the City on a contingent basis, depending upon whether the City  successfully reclaimed the Board's assets.  If the City was successful in its effort to take over the Board's assets, Sullivan would receive $350 per hour for the hours he worked or 3% of the dollar amount of the bonds issued, whichever was greater.  Because the Board's outstanding debt is $550 million, Sullivan stood to earn a contingent fee of at least $16.5 million if the purpose of the ordinance was accomplished.  The probate judge determined that the petition, as amended, contained the signatures of a sufficient number of qualified electors.  Judge Bolin indicated that he intended to certify the petition and submit the proposed ordinance to the Birmingham City Council unless and until a court of competent jurisdiction instructed him otherwise.  Before the probate judge could certify the petition and order that the proposed ordinance be submitted to the Birmingham City Council for consideration, the Board filed a declaratory-judgment action in the Jefferson Circuit Court.  In its declaratory-judgment action, the Board alleged (1) that Act No. 294, under the authority of which the ordinance was presented, no longer applied to the City of Birmingham; (2) that Act No. 294 was unconstitutional; (3) that the action contemplated by the proposed ordinance was beyond the authority of the Birmingham City Council; (4) that the proposed ordinance was invalid on its face; (5) that the proposed ordinance improperly delegated to Sullivan, the special attorney, the legislative authority of the Birmingham City Council; (6) that the actions contemplated by the proposed ordinance would violate the Board's contractual obligations; (7) that the proposed ordinance contained subjects that were improper for initiative ordinances; and (8) that the proposed ordinance was overbroad, vague, and ambiguous.  In addition to seeking declaratory relief, the Board sought a temporary restraining order and a permanent injunction preventing the probate judge from certifying the petition for consideration by the Birmingham City Council.  The trial court entered a temporary restraining order prohibiting Judge Bolin from certifying the petition and from presenting the proposed ordinance to the Birmingham City Council.  Shortly after the issuance of the temporary restraining order, the electors moved to intervene in the Jefferson Circuit Court action as defendants; the trial court granted their motion.  The trial court also granted the City's motion to intervene as a defendant.  The Board and the electors filed motions for a summary judgment.  On December 13, 2002, the trial court held a hearing on the motions.  On February 5, 2003, the trial court entered a summary judgment for the Board, finding that the proposed ordinance "unlawfully and unreasonably delegates the power of the City.  The Court finds that the ordinance is void and is not to be certified."  The trial court then dissolved the temporary restraining order directed at Judge Bolin, finding no further need for the restraining order.  On appeal, the electors argued that the Jefferson Circuit Court lacked jurisdiction to hear the Board's declaratory-judgment action because (1) the issue whether the Board's debt might be paid in full by the issuance of refunding bonds pursuant to the ordinance is a mere possibility and therefore is not ripe for judicial resolution; thus, no case or controversy exists; (2) the Board failed to allege that it would be injured by the City Council's consideration of the proposed ordinance and, therefore, the Board lacked standing to obtain a judicial ruling on the proposed ordinance; and (3) pursuant to Act No. 294, the probate court, not the circuit court, has been specially designated to resolve claims regarding proposed ordinances like this one.  HOLDING:  The Supreme Court affirmed.  The Court concluded that in its complaint the Board alleged an actual controversy even though the proposed ordinance had not yet been adopted or enacted.  The Court held that the circuit court had subject-matter jurisdiction of this action because the Alabama Constitution grants the circuit courts of this state general jurisdiction over all cases except as may be limited by law and it found no statutory limitation in this case.  The Court also held that all necessary parties were present.  The Court held that the Board had standing.  The Court held that the proposed ordinance is invalid, but for a different reason from the trial court.  The Court noted that the ordinance proposed to place David A. Sullivan, a special attorney, in control of the waterworks system.  Thus, the Court held that the ordinance proposed to transfer to Sullivan those powers that by virtue of  Ala. Code §11-50-230 et seq. have been squarely placed in the hands of the board of directors of the waterworks system.  The Court therefore held that the proposed ordinance conflicted with §11-50-230 et seq. and is invalid.)
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• Ex parte Perfection Siding, Inc.,

Nos. 1021363 & 1021369 (Ala. Nov. 7, 2003)
(venue; doing business by agent; Chris Sealy filed a complaint in the Hale Circuit Court, seeking damages for injuries he sustained in a fall from the roof of a building in Tuscaloosa County.  Sealy alleges that he sustained his injuries while he was an employee of Perfection Siding, Inc. ("Perfection"), which, at the time of Sealy's fall, was performing subcontracting work for Bill Lunsford Construction, Inc.  Sealy sued Perfection and Lunsford Construction, as well as Dennis Hall and Russ Lewis (Sealy's supervisors at Perfection), seeking damages based on negligence and negligent hiring or contracting.  Sealy also sought damages from the petitioners for intentionally failing to provide a safe workplace, and Sealy sought workers' compensation benefits from Perfection.  The defendants moved to transfer the case to Tuscaloosa County, either because venue in Hale County was improper or, in the alternative, because the doctrine of forum non conveniens mandated a transfer to Tuscaloosa County.  The trial court denied the motions.  Perfection, Hall, and Lewis (the "petitioners") filed petitions for writ of mandamus.  HOLDING:  The Supreme Court denied the petitions.  The Court noted that because the petitioners are all residents of Tuscaloosa County and a substantial part of the events giving rise to the claim occurred in Tuscaloosa County, which is also where the principal office of Perfection is located, venue was proper in Tuscaloosa County.  However, the Court noted that because Sealy resided in Hale County when the cause of action arose, venue would be proper in Hale County under Ala. Code §6-3-7(a)(3) if Perfection "does business by agent" currently in Hale County.  The Court noted that although of the approximately 1,000 jobs Perfection performs annually, only two or three were located in Hale County in the year Sealy sustained his injuries.  However, the Court held that the trial judge could have determined that Perfection was doing business in Hale County in the present, not the past, primarily because Perfection's work there was performed within the same calendar year as Sealy sustained his injuries.  The Court found it meaningful that Perfection actually performed services in Hale County.  The Court also held that Tuscaloosa  County was not shown to be significantly more convenient than Hale County.)
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• Elizabeth Homes, L.L.C. v. Gantt,

No. 1021661 (Ala. Nov. 7, 2003)
(arbitration; interstate commerce: Elizabeth Homes, L.L.C. is in the business of constructing single-family, semicustom residential structures.  Customers of Elizabeth Homes select a design from the house plans available; according to Elizabeth Homes, the customers are then allowed to modify those plans to meet their individual needs and tastes.  Roy G. Gantt and Patty R. Gantt are residents of Elmore County.  On or about March 7, 2001, they contracted with Elizabeth Homes for the construction of an "Ambassadore" style house on property the Gantts owned in Wetumpka.  The Gantts agreed to pay Elizabeth Homes $76,500 for the construction of the house.  The Gantts entered into a purchase agreement with Elizabeth Homes; that agreement contained an arbitration agreement.  Elizabeth Homes completed the Gantts' house in December 2001.  In June 2002, the Gantts notified Elizabeth Homes of numerous defects and deficiencies in the house.  On January 16, 2003, the Gantts sued Elizabeth Homes, James D. Flanagan, and Carl Smith in the Elmore Circuit Court, alleging breach of warranty, negligence and/or wantonness, fraudulent misrepresentation, breach of contract, breach of an implied warranty of habitability, unjust enrichment, and breach of implied duties of good faith and fair dealing.  Elizabeth Homes filed a motion seeking to enforce the Gantts' agreement to arbitrate "any and all disputes arising under" the purchase agreement.   The Gantts' only argument to the trial court was that the transaction did not meet the interstate-commerce requirement.  The trial court denied Elizabeth Homes' motion.  HOLDING:  The Supreme Court reversed.  The Court held that Elizabeth Homes also established that the transaction at issue – the construction and sale of the Gantts' house – involved interstate commerce.)
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• Ex parte Perry,

No. 1022093 (Ala. Nov. 7, 2003)
(The Supreme Court denied the petition for writ of certiorari without opinion, but the Court stated that in denying the petition, it did not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.)
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• Ex parte Anonymous,

No. 1030172 (Ala. Nov. 7, 2003) (plurality opinion)
(abortion; minor; judicial bypass for parental consent; An unemancipated 16-year-old girl (the "minor") filed a petition on October 8, 2003, pursuant to the Parental Consent Act, Ala. Code §26-21-1 et seq. ("the Act"); when she filed the petition she was approximately eight weeks pregnant.  The trial court appointed separate guardians ad litem for the minor and for the baby.  The trial court conducted a hearing at which the minor testified on direct examination by her attorney, was cross-examined by the guardian ad litem for the baby, and answered questions posed by the trial court.  After hearing the evidence, the trial court entered an order concluding as follows: "Based on the evidence and its observation of the petitioner, the Court cannot find that she is mature enough and well-informed enough to make this decision on her own.  Taking into consideration the risks involved and her lack of understanding or even knowledge of all of them, the Court cannot find that the granting of this petition is in her best interest."  HOLDING:  The Supreme Court reversed.  The plurality opinion concluded that the trial court's findings are conclusory and therefore fail to state grounds essential to meaningful appellate review.  The Court remanded the case, and the plurality opinion directed the trial court to detail sufficiently the basis for appropriate findings and immediately to conduct such further proceedings, to include taking additional testimony or admitting further evidence, that may be necessary in order to do so.  The plurality opinion directed that the trial court should submit its findings to the Supreme Court by 5:00 p.m. on Thursday, November 13, 2003.)
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Opinions Released October 31, 2003

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

 
• Jefferson County v. Acker,

No. 1010843 (Ala. Oct. 31, 2003)
(occupation privilege tax in Jefferson County; federal district judges; Certified Question from the United States District Court for the Northern District of Alabama;  Jefferson County, Alabama, sued the defendants William M. Acker, Jr., and U.W. Clemon, United States district court judges, to collect from them an occupational tax consisting of one-half percent of their respective salaries, levied by the plaintiff county.  The U.S. District Court where the case is pending certified the following question to the Supreme Court of Alabama:  "Is exemption from payment of Jefferson County's occupation privilege tax imposed pursuant to its Ordinance No. 1120 of 1987 a privilege or benefit of membership in the Alabama Bar Association to which defendants are entitled by virtue of their payment of 50% of the dues of active members of that association?"  HOLDING:  The Supreme Court answered the question in the negative and held that the defendant federal district judges are not exempt from the tax.  The Court noted that the defendant judges claim only that they are exempted by section 2 of the defendants' bar association statute, now §34-3-17, providing that, "[u]pon payment of said sum as prescribed in the preceding sentence, such persons shall be entitled to all the privileges and benefits common to other  members of such Association," and noted that the defendant judges claim only that §34-3-17 entitles them to share in the practicing, state-license-buying attorneys' exemption from the county tax pursuant to the above-quoted exceptions in the county tax enabling act and the plaintiff's county tax ordinance, because that exemption is a "privilege" or "benefit" "common to" those practicing, state-license-buying attorney members.  The Court noted that the defendants' bar association statute does not mention any county tax or any exemption from any tax.  The Court concluded that the county tax enabling act and the plaintiff's county tax ordinance, by the express terms of these measures, spare practicing attorneys from the county tax not because of their membership in the bar association but because of the mandate of §40-12-49 that the practicing attorneys "pay an annual license tax to the state, but none to the county."  The Court held that the Legislature did not likely intend for the ambiguous language in the plaintiff's bar association statute to provide an exemption from the then nonexistent county tax because §34-3-17 was originally adopted in 1945, more than two decades before the Legislature even authorized the plaintiff county to impose the county tax and over four decades before the plaintiff county imposed the tax by adopting the plaintiff's county tax ordinance.)
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• Newson v. Protective Indus. Ins. Co.,

No. 1011342 (Ala. Oct. 31, 2003)
(claims for misrepresentation, suppression, conversion, and conspiracy; claim for negligent or wanton employment practices; Rule 12(b)(6), Ala. R. Civ. P.; standing; Betty Newson and Willie Newson, a married couple, took out a number of Protective Industrial Insurance Company of Alabama ("PIICO") life insurance policies on their lives. In addition, Mrs. Newson took out two policies insuring the life of the Newsons' son, James D. Newson ("James"), and one  policy insuring the life of the Newsons'  grandson, Keyon Orr ("Keyon"). Mrs. Newson, using joint funds belonging to her and Mr. Newson, paid all of the premiums on the policies insuring the lives of James and Keyon. The policies insuring the lives of James and Keyon do not identify an owner of the policies by name or generic description.  The two policies insuring James's life provide that "upon written request to the Company [subject to conditions not pertinent to this case] the Company will pay a cash surrender value." To whom, these two policies do not say. The policy insuring Keyon's life provides that "the Insured [Keyon], while living, may [subject to conditions not pertinent to this case] obtain the cash surrender value of this Policy."  PIICO agents Felicia Scott Nichols ("Nichols") and Rosetta Randolph ("Randolph") usually came to the Newsons' home to collect the premiums on policies the Newsons had taken out. To induce the Newsons to pay these premiums, Nichols and Randolph falsely represented that the premium payments would be applied to these policies. However, Nichols, Randolph, and Shareef Id Deen ("Deen"), a PIICO manager, did not apply all of the Newsons' premium payments to the payment of premiums on these policies.  About May or June 1999, Nichols and Randolph falsely told the  Newsons that they needed to surrender five policies, consisting of a $1,000 policy insuring Mr. Newson's life, a $1,000 policy insuring Mrs. Newson's life, the two policies insuring James's life, and the policy insuring Keyon's life, to use the cash surrender values to "catch up" the payments on some of their other policies. Nichols and Randolph told the Newsons also that they should use some of the cash-surrender-value proceeds they received from surrendering these policies to buy two new PIICO life insurance policies, one insuring the life of Mr. Newson for $2,000 and the other insuring the life of Mrs. Newson for $2,000.  During this conversation, Nichols and Randolph did not disclose to the Newsons: (1) that they could maintain all of their policies without surrendering any of them because the  cash values that had accumulated in their policies would fund the payment of premiums under the automatic extended insurance provisions in the policies; (2) that the first $1,000 of coverage provided by each of the proposed $2,000 replacement policies on their respective lives would cost more than the corresponding $1,000 policy they would be surrendering;  or (3) that their keeping the policy insuring the life of Keyon and paying the premiums would pay the policy up within six years.  The Newsons surrendered the five policies to Nichols and Randolph. In exchange, PIICO issued four checks, each payable to the insured named in the surrendered policy or policies on that insured's life. At the direction of Nichols and Randolph, Mrs. Newson signed the respective names of the respective payees on the backs of the four checks, including the checks payable to James and Keyon.  The back of each check bore the printed statement:  "Endorsed and accepted as payment in full and releasing the Company of any and all liabilities under claim on policy number [appropriate policy number inserted]."  After Mrs. Newson endorsed the checks, Nichols and Randolph took the checks, and the defendants used the proceeds of the  checks to "catch up" premiums on other existing policies that supposedly were unpaid, to pay the cost of issuing the new $2,000 policies on the lives of Mr. and Mrs. Newson, and to pay other premiums that the Newsons had not authorized.  On the basis of these facts, the Newsons claimed against PIICO, Nichols, Randolph, and Deen for misrepresentation, suppression, conversion, conspiracy, and "felonious injury." Against PIICO only, the Newsons claimed additionally for negligent or wanton hiring, training, and supervision of Nichols, Randolph, and Deen.  The four defendants jointly moved the trial court to dismiss the Newsons' claims or, in the alternative, to enter summary judgments for the defendants. The defendants attached to the motion copies of the five policies the Newsons had surrendered, the four checks PIICO issued in exchange for the policies, and an affidavit by the custodian of these documents authenticating them. The defendants contended that the trial court should dismiss the Newsons' claims  because: (1) the Newsons released the defendants from all claims when Mrs. Newson endorsed the checks, (2) the Newsons did not suffer any damage, (3) the Newsons did not have standing to sue for torts relating to the policies insuring the lives of James or Keyon, and (4) the counts for "felonious injury" did not state cognizable claims.  The defendants agreed that the motion to dismiss or, in the alternative, motion for summary judgment should be treated as a motion to dismiss only.  The trial court, holding that "the releases were final releases," dismissed all of the Newsons' claims.  HOLDING:  The Supreme Court reversed as to most of the claims.  The Court held that the Newsons' "releasing the Company of any and all liabilities under claim on policy number [appropriate policy number inserted]" did not release PIICO from the tort claims and did not release Nichols, Randolph, or Deen from any claims.  The Court also held that the dismissal of the Newsons' claims could not be affirmed on the ground of accord and satisfaction.   The Court held that the Newsons sufficiently alleged that they had suffered damage by alleging that the defendants' torts caused the Newsons to suffer the loss of the cash surrender values of the policies they surrendered.  The Court further held that the Newsons also sufficiently alleged that they had suffered damage by alleging that the defendants' torts caused them to replace their $1,000 policies with new $2,000 policies and thereby unnecessarily to incur a higher premium cost for the first $1,000 of coverage under each replacement policy.  The Court held that the Newsons' allegations of misapplied premium payments also sufficiently allege damage.  The Court further held that it could not affirm the dismissal of the Newsons' conversion claims on the ground that the policies, cash-surrender-value checks, and premium payments no longer belonged to the Newsons once they relinquished possession of them.  The Court also held that because the determination of whether conversion will lie for the recovery of money paid as insurance premiums depends on the evidence of the form, source, and mode of the payments, it cannot hold that the Newsons "can prove no set of facts entitling [them] to relief" under their claim for conversion of the money paid by them as insurance premiums.  The Court held that it cannot, on the ground that the Newsons lacked standing to sue, affirm the dismissal of their claims for misrepresentation, suppression, or conspiracy to defraud relating to the policies insuring the lives of James and Keyon.  The Court held that because Mrs. Newson, using joint funds belonging to her and Mr. Newson, paid all of the premiums on the policies insuring the lives of James and Keyon, it cannot, on the ground that the Newsons lacked standing, affirm the dismissal of their claims for conversion of the premiums paid on the policies insuring the lives of James and Keyon.  The Court held that because the policies insuring James's life do not identify the owner or  the person entitled to the cash surrender values, the Newsons could prove that they were entitled to these cash surrender values.  However, the Court held that because the policy insuring Keyon's life provides that Keyon was entitled to the cash surrender value of that policy, the Newsons do not have standing to sue for the conversion of the cash surrender value of that policy.)
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• Mobile Infirmary Med. Ctr. v. Hodgen,

No. 1011932 (Ala. Oct. 31, 2003)
(invited error; punitive damages; collateral-source rule; medical malpractice; In February 2000, 58-year-old James Hodgen was a patient in the intensive care unit of the Mobile Infirmary Medical Center recovering from cardiac bypass surgery.  Hodgen's recovery progressed normally until he began to develop cardiac arrhythmia, or abnormal heart rhythms, two days after the surgery.  The Mobile Infirmary employee overseeing Hodgen's care, Dawn Byrd, a recent nursing school graduate, informed a supervising nurse, Tammy Espiritu, that Hodgen was experiencing arrhythmia.  Espiritu instructed Byrd to telephone Hodgen's cardiologist, Dr. Chris Brown.  When Byrd telephoned Dr. Brown and advised him of Hodgen's condition, Dr. Brown prescribed .25 milligrams of digoxin.  Byrd mistakenly informed Espiritu that Dr. Brown had prescribed 1.25 milligrams of digoxin, and Espiritu telephoned the order to the pharmacy.  Espiritu, believing that Hodgen's condition was worsening, told Byrd not to wait for the pharmacy to deliver the medication.  Instead, Espiritu instructed Byrd to obtain the digoxin from the stock of medicine maintained in the intensive care unit and to administer it to Hodgen.  Without supervision from Espiritu, Byrd obtained three vials, or ampules, of digoxin and emptied at least two and a half of the vials directly into Hodgen's intravenous tube.  Shortly after Byrd had administered the digoxin to Hodgen, the pharmacy called Espiritu, questioning the amount of digoxin she had ordered.  It was then that Byrd and Espiritu realized that Byrd had administered to Hodgen five times the amount of digoxin Dr. Brown had actually prescribed.  When Hodgen began to experience complications the next evening resulting from digoxin toxicity, he was administered Digibind, an antidote for digoxin toxicity.  After the Digibind was administered, Hodgen's heart stopped beating and one of the nurses began to "mechanically pace his heart."  Hodgen's blood pressure then dropped to a very low level and the oxygen-saturation level in his blood became extremely low.  Hodgen stopped breathing, and the hospital staff began CPR and other forms of intervention to revive Hodgen.  Hodgen was revived, but he suffered damage to various organs as a result of severe oxygen deprivation.  Hodgen later underwent surgery to remove a portion of his intestines and to amputate his right leg.  Hodgen is now unable to walk, must use a colostomy bag, and claims that his mental capacity is diminished.  Hodgen sued Mobile Infirmary in the Mobile Circuit Court under the Alabama Medical Liability Act, Ala. Code §6-5-480.  Hodgen alleged that Mobile Infirmary had been negligent and/or wanton in administering the digoxin and in supervising its employees.  James's wife, Judy Hodgen, also sued Mobile Infirmary, stating a derivative claim alleging loss of consortium.  The Hodgens sought both compensatory and punitive damages.  The case went to trial in April 2002.  The evidence at trial indicated that Byrd, although assigned to care for various patients in the intensive care unit at Mobile Infirmary, was not a licensed nurse.  She was a recent graduate of nursing school and, when she administered the digoxin overdose to Hodgen, she had taken but had not yet received the results from her nursing board examination.  The supervising nurse that evening, Espiritu, had passed her nursing board examination only seven months before the overdose was administered and had never worked with Byrd before that occasion.  Additionally, the charge nurse for that evening had assigned Byrd and Espiritu separate patients, instead of having Byrd work under Espiritu's direct supervision.  Espiritu testified that she understood that her responsibility in supervising Byrd was merely to answer any questions Byrd might have had.  Dr. Ray Lash, the Hodgens' medical expert, testified that Hodgen's symptoms after the digoxin overdose were consistent with digoxin toxicity.  Dr. Lash further testified that, generally, digoxin that is to be given intravenously is delivered to hospitals in prepackaged vials, or ampules.  According to Dr. Lash, a normal dosage of digoxin is about one-half of a vial, but the maximum dosage that should be administered to an average person is one vial.  Dr. Lash testified that a medical professional in an intensive care unit should have known that medications are generally packaged so that one container is the maximum dose for one person.  He further stated that a qualified nurse should have known something was wrong when, to administer the prescribed dose of digoxin to a patient, she had to use three vials of the medicine.  Dr. Lash expressed his opinion that Byrd was inadequately trained, that she was put in a position where she was "in over her head," and that Mobile Infirmary failed to put safeguards into place to prevent Byrd's inexperience from hurting patients.  After the close of all of the evidence, the trial court charged the jury on negligence and wantonness and on compensatory damages and punitive damages.  The jury's verdict form stated that it found in favor of the Plaintiff, James Hodgen, and awarded zero past damages, zero future damages, $2,250,000 in punitive damages, and $2,250,000 total damages.  The jury awarded Judy Hodgen zero damages.  Immediately after the jury read its verdict in this case, the trial court dismissed the jurors into the jury room to await a final discharge from their duties.  The trial court then held a conference with the attorneys during which the trial court stated that it thought the award was strange but that it thought they could do it.  Counsel for Mobile Infirmary agreed.  The trial court entered a judgment in favor of James Hodgen awarding him $2,250,000 in punitive damages and a judgment in favor of Judy Hodgen awarding her $0.  After the jury was discharged, Mobile Infirmary filed a motion for a judgment as a matter of law ("JML"), arguing, despite its earlier representation to the trial court that the jury could make such an award, that the trial court's judgment on the jury verdict was improper because the jury failed to award compensatory or nominal damages.  At the hearing on the motion, counsel and co-counsel for Mobile Infirmary admitted that they had previously represented to the trial court that they believed the verdict was proper, but that they were taking a different position on the posttrial motion.  The trial court denied Mobile Infirmary's posttrial motions and refused to remit the punitive-damages award.  In support of its refusal to remit the award, the trial court purported to find that, at trial, James Hodgen produced evidence that he had incurred $1,600,000 in compensatory damages.  The trial court further stated that if Mobile Infirmary had indicated there was anything wrong with the jury's verdict, had indicated anything less than its total acceptance of the jury's verdict, or had even voiced suspicions or doubts about the form or substance of the jury's verdict, then it would have proceeded to bring back the jury and recharge it.   HOLDING:  The Supreme Court affirmed conditionally.  The Court held that the Mobile Infirmary invited error because it cannot, on the one hand, represent to the trial court that the jury verdict was proper, thus inducing the trial court to enter a judgment on that verdict, and then, on the other hand, argue in posttrial motions that the jury verdict was improper and that Mobile Infirmary is entitled to have a judgment rendered in its favor.   The Court declined to revive the $400,000 cap on the noneconomic damages that could be awarded in a medical-malpractice case imposed by Ala. Code §6-5-544(b) which was declared unconstitutional in Moore v. Mobile Infirmary Association, 592 So.2d 156 (Ala. 1991).  In so holding, the Court noted that §6-11-21 was rewritten in 1999 and has been recognized as a complete replacement of the old statutory restrictions on punitive damages.  The Court held that in addressing compensatory damages that could have been awarded, in the context of the renewed vitality of Ala. Code §6-5-545, which abrogates the collateral-source rule, a special interrogatory should be propounded to the jury that gives the jury the opportunity to state the amount of compensatory damages it would have awarded, but did not so award because of the evidence of the availability of compensation to the plaintiff from a collateral source.  The Court recognized the inequity of allowing Mobile Infirmary to capitalize on the fact that the jury entered a  verdict awarding no compensatory damages.  Nonetheless, the Court  recognized the problem inherent in accepting the trial court's conclusion as to causation as a means of determining compensatory damages that could have been awarded.  The Court was therefore unwilling to permit the trial court's finding as to $1,600,000 in past and future medical expenses to function as the amount of compensatory damages that could have been awarded for purposes of the rule established in Life Insurance Co. of Georgia v. Smith, 719 So.2d 797, 814-15 (Ala. 1998).  Under the unique circumstances of this case, the Court affirmed the judgment of the trial court, on the condition that Hodgen file with this Court, within 14 days of the date of the opinion, a remittitur of the punitive-damages award to $1,500,000, the amount appropriate under Ala. Code §6-11-21(d).)
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• Image Marketing, Inc. v. Florence Television, L.L.C.,

No. 1020395 (Ala. Oct. 31, 2003)
(appellate procedure; timeliness of appeal; amendment of complaint;  Image Marketing, Inc. (hereinafter "IM"), sued Florence Television, L.L.C., and Valley Television, L.L.C.  The controversy stems from a television show IM produced, entitled "Cooper & Company" (hereinafter "the show"), which, based on several contractual agreements, Florence and Valley agreed to air on a television station they operated in Lauderdale County.  In its original complaint, IM sought an injunction, a declaratory judgment, and remedies established by § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), for service-mark/trade-dress infringement.  IM amended the complaint to add additional defendants, including Gary Kneller, co-owner and general manager of the station. IM also amended the complaint to assert claims of breach of contract, intentional interference with business relations, fraud, negligence, wantonness, conspiracy, and negligent or wanton supervision. Florence, Valley, and the other defendants separately moved for a summary judgment as to all the claims.  IM filed a response and contemporaneously filed a second amended complaint, adding a claim for specific performance. The trial court entered a partial summary judgment for Florence, Valley, and the other defendants on July 18, 2001, dismissing IM's claims of intentional interference with business relations, fraud, negligence, wantonness, conspiracy, and negligent or wanton supervision. The trial court did not rule on the breach-of-contract and specific-performance claims.  On August 15, 2001, the trial court issued an order supplementing the July 18, 2001, summary-judgment order, which dismissed all of the individual defendants, including Kneller, from the case.  The trial court did not dismiss Florence and Valley, leaving them as the only defendants in the case.  Florence and Valley filed a second motion for a summary judgment addressing IM's  remaining claims of breach of contract and specific performance.  As the litigation  proceeded, the parties continued their business relationship, although it was strained.  Kneller, as general manager of the station, implemented a policy requiring IM to provide a transcript of the show, detailing what would take place on the show, 24 hours before the airing of each show. Considering this requirement to be a breach of contract, IM filed a third amended complaint on October 21, 2002, without seeking leave of court.  Florence and Valley filed a motion to strike IM's third amended complaint on the basis that it was untimely because the case "was first set for trial on November 1, 2001," and IM "did not and has not sought leave of court to amend the complaint."  On October 23, 2002, the trial court granted Florence and Valley's pending motion for a summary judgment, thus disposing of IM's remaining claims.  On October 29, 2002, Florence and Valley filed a motion to strike IM's third amended complaint on the basis that it was untimely because the case "was first set for trial on November 1, 2001," and IM "did not and has not sought leave of court to amend the complaint."  On October 31, the trial court granted that motion.  On December 6, 2002, IM filed its notice of appeal. On March 17, 2003, Florence and Valley filed with the Supreme Court a motion to dismiss the appeal, as well as a supporting brief, alleging that the trial court's October 23, 2002, ruling was the final judgment from which the time for appeal began to run.  On March 24, 2003, IM filed an opposition to the motion to dismiss and a supporting brief.  HOLDING:  The Supreme Court dismissed the appeal as untimely filed.  The Court held that IM's third amended complaint was without legal effect and was therefore ineffectual to present an additional claim to the trial court when it entered the October 23, 2002, summary judgment.  The Court concluded that the October 23, 2002, summary judgment adjudicated every claim before the trial court and that IM's time for filing an appeal began to run when that judgment was entered.  The Court held that because the trial court's October 23, 2002, summary-judgment order completely adjudicated all issues remaining after the entry of its earlier partial summary judgment and was therefore final, the time for appeal began to run from that date, and the appeal filed on December 6, 2002, was two days late.)
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• Coca-Cola Bottling Co. Consolidated v. Hollander,

No. 1020520 (Ala. Oct. 31, 2003)
(retaliatory discharge; workers' compensation; Louis Frank Hollander was employed by Coca-Cola Bottling Co. Consolidated ("CCBCC") at its facility in Florence, Alabama, to deliver soft-drink vending machines and coolers. He was injured on Friday, August 27, 1999, when a fully loaded soft-drink vending machine, weighing between 700 and 1,000 pounds, fell on him while he and another worker were moving it into an elementary school in Collinwood, Tennessee.   On the day of the incident, Hollander reported this incident to his supervisor, William Talley.  According to CCBCC, Talley asked Hollander if he had been injured when the machine fell on him and if he needed medical care, and Hollander said that he had suffered a cut on his leg but that he did not require medical treatment. Hollander says that Talley did not ask him if he needed to see a doctor and that he waited for guidance from Talley instead of asking to see a doctor. CCBCC's employee handbook requires that all injuries, "no matter how minor," be reported immediately to the injured employee's supervisor, "who will take whatever actions necessary to insure required medical treatment is authorized and attained and that the First Report of Injury is completed. The Employee will be referred to a doctor of CCBCC's choice." It is undisputed that Hollander complied with that policy.  Talley reported the accident to CCBCC's third-party accident claims administrator. The administrator completed a "first report of injury" form. In accordance with CCBCC's standard procedure, Talley also completed a supervisor's accident report. Hollander and his coworker continued to deliver and retrieve vending machines on the day Hollander was injured. Hollander claims that he could not drive the delivery truck after the machine fell on him on August 27 because of the condition of his legs and that his coworker, who did not have a commercial driver's license, drove the truck the rest of the day. However, Hollander's coworker testified that he did not drive the truck. After arriving at CCBCC's facility in Tennessee at approximately 5:00 p.m., Hollander and his coworker began using a forklift to load machines onto the truck for delivery the next day. As Hollander was driving the forklift to load a machine, the machine fell off the forklift.  On Monday August 30, Hollander visited Dr. Glen Sockwell complaining of stress and shortness of breath. On August 31, Hollander left Talley's office, stating, "I can't do this." On that same day Hollander visited Dr. Sockwell again. Dr. Sockwell's office notes from August 30 and 31 mention nothing about an injury to Hollander's legs or his August 27 injury.  Also, on August 31 Dr. Sockwell gave Hollander a work-release slip excusing him from work for the period August 31 through September 12.  On September 1, 1999, Hollander visited the North Alabama Bone and Joint Clinic, a group of physicians approved by CCBCC to treat work-related injuries of its employees. Hollander saw Dr. Lee Nichols, one of the physicians at the clinic, and complained of pain in his right knee and left ankle as a result of the August 27 incident. Dr. Nichols did not consider it necessary to excuse Hollander from work because of the injury to his legs. Hollander has not made any claim based on the injuries he suffered as a result of the August 27 incident other than a claim for the medical expenses incurred in his September 1 visit to Dr. Nichols.  On September 7, Joe Clayton, general manager of CCBCC's Florence facility, learned for the first time that Hollander was seeking workers' compensation benefits for a heart condition and stress, for which Dr. Sockwell treated him on August 30 and 31. Clayton informed the claims administrator of Hollander's claim and completed a first report of injury form related to Hollander's heart condition and stress-related complaint. Robyn Masoner, a benefits coordinator with CCBCC, forwarded Dr. Sockwell's work-release slip to Lou Jane Miller,  CCBCC's environmental safety manager at its offices in Brentwood, Tennessee, who was responsible for deciding whether an employee's claim was compensable. Miller told Masoner that CCBCC did not consider Hollander's heart condition and stress claim to be based on a compensable injury.  On September 8, Hollander returned to Dr. Sockwell's office; he denies that he returned to Dr. Nichols's office on that date. Dr. Nichols reported in his notes that he saw Hollander on September 8, but he admits that those notes are incorrect and that he actually had a telephone conversation with Hollander on that date. Dr. Nichols testified that in that telephone conversation Hollander asked him to "write a work release or an excuse from work from the date of his [August 27] injury, because he said that when he presented the work release Dr. Sockwell gave him, his employer would not accept Dr. Sockwell's work release because he was not their company doctor."  Dr. Nichols admitted that his notes were in error in stating that he saw Hollander on September 8; he testified, however, that he could not have been mistaken as to Hollander's asking him to backdate a work-release slip for him. As part of the regular claims procedure, Dr. Nichols's office faxed the medical record notes of September 1, 1999, and September 8, 1999, to Miller at CCBCC's offices in Brentwood, Tennessee. On September 13, 1999, Miller faxed the notes to Clayton at CCBCC's Florence facility, and he determined that, in asking Dr. Nichols to backdate a work-release slip, Hollander had been dishonest.  Before the conversation with Dr. Nichols related above, Hollander had made numerous telephone calls to Masoner and Miller inquiring about his workers' compensation claim. According to Masoner's testimony, at some point after learning the above, Hollander asked:  "What if I call my Worker's Comp doctor [Dr. Nichols] back, the original doctor back that I went to for my Worker's Comp injury, and get them to say that the reason I was off was due to the Worker's Comp [August 27] injury?"  Masoner's answer was that Hollander could not do that and that such an action "would be dishonest, and it would be a falsification." Hollander denies that he told Masoner what she claims he did. After the telephone call with Hollander in which she says he inquired about talking to Dr. Nichols, Masoner telephoned Miller and told her about the conversation. It is at this point that Hollander allegedly telephoned Dr. Nichols to tell him that his employer would not accept Dr. Sockwell's work-release slip because Dr. Sockwell was not a doctor approved by CCBCC and to ask Dr. Nichols to backdate a work-release slip so that Hollander could be paid for his time off. Dr. Nichols informed him that he would not backdate a work-release slip, and that, in any event, in his opinion Hollander could perform his work without any restrictions.  On September 13, 1999, Hollander returned to work. On September 14, Talley and Clayton informed Hollander that he was being terminated from his job for attempting to have Dr. Nichols backdate a work-release slip.  Clayton testified that the sole reason Hollander's employment was terminated was for dishonesty, based on Dr. Nichols's notes indicating that Hollander had attempted to get Dr. Nichols to backdate a work-release slip. Hollander himself testified that because of the nature of his job –– carrying large amounts of cash for use in the vending machines –– dishonesty was a legitimate reason for CCBCC to terminate his employment. Hollander saw two counselors after his employment was terminated to help him with his anguish about being terminated and with other problems. Hollander testified that he had lost income of $30,000 as a result of the termination and that he had used his own funds to pay to go to school to become a long-distance truck driver.   Hollander sued CCBCC, alleging retaliatory discharge in violation of Ala. Code §25-5-11.1.  CCBCC filed motions for a judgment as a matter of law ("JML") at the close of Hollander's evidence and again at the close of all the evidence. The trial court denied the motions. The jury returned a verdict in favor of Hollander, awarding compensatory damages of $150,000 and punitive damages of $250,000. After the trial court entered a judgment on that verdict, CCBCC filed a postverdict motion for a JML and a motion for a new trial or, in the alternative, a remittitur. The trial court denied those motions, and CCBCC appeals, contending that the trial court erred in denying the postjudgment motions.  HOLDING:  The Supreme Court reversed.  The Court held that evidence in the record shows no causal connection between Hollander's filing of a workers' compensation claim and the termination of his employment.  The Court held that Hollander presented no evidence indicating that CCBCC used dishonesty as a pretext for terminating employees who had filed workers' compensation claims, that CCBCC's termination of Hollander violated any company policy, or that CCBCC ever acknowledged that its stated reason for terminating Hollander's employment was pretextual.  Therefore, the Court held that CCBCC's stated reason for terminating Hollander's employment precludes a finding that the fact that he filed a workers' compensation claim was the "sole" cause of his termination.)
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• Ex parte Moore,

No. 1020599 (Ala. Oct. 31, 2003)
(right to trial by jury; eviction action;  Andrea Moore, a tenant in Smiley Court, a housing complex in Montgomery, was served with a notice of eviction on November 13, 2002, and thereafter failed to deliver possession of the apartment at 3704(B) Smiley Circle.  On December 12, 2002, the Montgomery Housing Authority  ("MHA") filed an eviction action against Moore under the Sanderson Act in the Montgomery County District Court.  The purpose of the Sanderson Act, Ala. Code §35-9-80 et seq., is to provide a more speedy remedy to a landlord for recovering possession of his or her land after expiration of a lease or when possession is wrongfully withheld by the tenant.  The Sanderson Act also vests Alabama district courts with jurisdiction to hear cases brought under that act.  The basis of MHA's eviction action was that Moore had held possession of the premises over and beyond the term of her lease.  Moore responded by filing an affidavit, contending that her lease had not been terminated and that she had a right to continue as a tenant of the residence.  On January 6, 2003, the district court entered an order evicting Moore.  The next day, Moore filed a notice of appeal to the Montgomery Circuit Court in which she requested a trial by jury.  Thereafter, MHA filed a motion to strike Moore's jury demand, which Moore opposed.  The circuit court entered an order denying Moore's request for a trial by jury and set the case for a nonjury trial.  Moore sought a writ of mandamus ordering the circuit court to vacate its order denying her request for a jury trial. HOLDING:  The Supreme Court granted the petition for writ of mandamus.  The Court held that Moore is entitled to a trial by jury on her appeal to the circuit court challenging the district court's judgment rendered in favor of MHA.  The Court noted that an action brought pursuant to the Sanderson Act is an action in the nature of unlawful detainer and that, historically, the right to a trial by jury in unlawful-detainer actions has been recognized by the courts of this State.   The Court concluded that a cause of action under the Sanderson Act serves the same function as did an ejectment action at common law, which was previously recognized as a triable issue.)
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• Steele v. Walser,

No. 1020652 (Ala. Oct. 31, 2003)
(arbitration; construction of a new house; interstate commerce; unconscionability; Maxine Walser sued Robert L. Steele, president of S.S. Steele and Company, Inc. (hereinafter "the company"), alleging fraud, mental anguish, and emotional distress arising from the construction of a new house.  Steele filed a "Motion to Dismiss and Compel Arbitration," with supporting evidentiary submissions.  Walser filed a response in opposition.  The trial court entered an order denying Steele's motion.  HOLDING:  The Supreme Court reversed.  The Court concluded that Steele showed that the aggregate effect of the transaction evidenced by the construction and sales contract satisfied the Federal Arbitration Act's "involving commerce" test.  The Court noted that although Walser argues that the scope of the arbitration agreement in the construction and sales contract is overly broad, she made no showing that it assigned the threshold issues of arbitrability to the arbitrator, that there was a lack of mutuality of remedies, that it set a limit on the amount the arbitrator could award, or that any other terms of the agreement were "grossly favorable" to the company.  The Court further noted that Walser presented no evidence showing that the company had overweening bargaining power.  Therefore, the Court rejected Walser's unconscionability argument.
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• City of Huntsville v. Rowe,

No. 1020868 (Ala. Oct. 31, 2003) (Opinion withdrawn and substituted on application for rehearing) 
(condemnation; easement; valuation; The City of Huntsville ("the City") condemned a portion of property owned by Roland H. Rowe, as trustee of the Dimitriu Family Trust, and Elvina Geauque ("the owners") to secure an easement for constructing, maintaining, repairing, altering, replacing, or removing an underground sanitary sewer line, and erecting manholes on the surface.  The easement is a 40-foot-wide strip, comprising 3.624 acres of a 290.19-acre tract of unimproved land.  The probate court awarded the owners compensation for the property taken for the easement.  The owners appealed the probate court's award to the Madison Circuit Court for a jury trial on the issue of damages pursuant to Ala. Code §18-1A-283.  The owners moved for a partial summary judgment in the circuit court, asking the court to determine the proper method of valuing, under Ala. Code §18-1A-170(b), the property taken for the easement.  Section 18-1A-170(b) provides:  "If there is a partial taking, the valuation rule is the difference between the fair market value of the entire property before the taking and the fair market value of the remainder after the taking."  More specifically, the owners sought a judgment declaring "that the taking of an easement must be valued as if the entire fee is taken," and an order prohibiting the City from contending or testifying at trial "that the damage[s] to be awarded the property owner for the land actually taken within the easement are less than the value of the entire fee of said land within the easement at the time of the taking."  The trial court granted the owners' motion.  At trial, the owners moved in limine for an order prohibiting the City's appraisal experts from testifying in a manner inconsistent with the partial summary judgment.  In other words, the owners sought to preclude testimony that the value of the 3.624 acres constituting the easement after the taking was greater than $0.  The trial court granted the motion.  Before the jury returned its verdict, the City's appraisal expert made an offer of proof that the value after the taking was 75% of the value of the land before the taking.  The jury awarded the owners $68,856.  The trial court entered a judgment on that verdict.  The trial court denied the City's motion for a new trial, and the City appealed, specifically challenging the partial summary judgment and the order on the motion in limine.  HOLDING:  The Supreme Court reversed.  The Court held that the trial court erred in ruling that the taking of property for an easement for an underground pipeline must be compensated as if the entire fee-simple title to the property on which the easement lies had been taken.  The Court directed the trial court on remand to permit the jury to consider evidence that the market value of the 3.624 acres after the taking was greater than $0.)
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--(The substituted opinion released March 26, 2004, in Rowe that reaches a different outcome is available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• SouthTrust Corp. v. James,

No. 1021103 (Ala. Oct. 31, 2003)
(arbitration; interstate commerce; unconscionability; Hessie James sued the SouthTrust Corporation and SouthTrust Bank of Russell County (hereinafter jointly referred to as "SouthTrust") in the Russell Circuit Court.  James sought compensatory and punitive damages from SouthTrust on claims of conversion, negligence, wantonness, willful misconduct, and fraud.  On July 11, 2002, SouthTrust filed its answer, denying liability.  The controversy centers around a checking account opened by James on or about December 5, 2001.  To fund the account, James deposited a check, drawn on the First Bank of Chicago, payable through FCC National Bank, located in Wilmington, Delaware, in the amount of $14,342.60.  One prerequisite for opening the account was signing a deposit agreement.  The deposit agreement James signed states that it includes and incorporates SouthTrust's "Rules and Regulations Governing Deposit Accounts," internal rules adopted by SouthTrust (hereinafter "the rules").  The deposit agreement also states that James agreed to be bound by the rules, including any amendments to the rules.  James admits that she was given a copy of the rules when she opened the account, as the deposit agreement itself stated.  Contained within those rules was an arbitration provision.  After opening her account, James ordered checks; SouthTrust informed her that her checks would arrive by mail in approximately one week.  After one week had passed and James's checks had not arrived, she contacted SouthTrust.  SouthTrust informed James that it had mailed the checks to the wrong address and the checks had been returned to SouthTrust.  SouthTrust further told James that pursuant to SouthTrust's policy, the checks had been destroyed.  SouthTrust assured James that she soon would receive checks SouthTrust had ordered to replace the destroyed checks.  James received the new checks; however, she was notified that forged checks and forged deposit slips were being used to conduct transactions on her account.  James's account was assessed fees associated with the forgeries, which in the aggregate, totaled 13 separate incidents.  Of those 13 incidents, at least 5 occurred in other states.  As a result, James closed the account and opened at SouthTrust a new account.  However, James asserts that the fraudulent activity on her bank account negatively impacted her credit, caused collection agencies to attempt collection of unpaid debts created by the forgeries, and may subject her to criminal prosecutions.  On August 26, 2002, SouthTrust filed a motion to dismiss or, in the alternative,  to stay the proceedings and to compel arbitration.  On November 26, 2002, one day after a hearing on the issue, the trial court, without making any findings of fact or stating any conclusions of law, denied SouthTrust's motion.  HOLDING:  The Supreme Court reversed.  The Court concluded that the banking transaction in this case had a sufficient nexus with interstate commerce.  The Court also held that enforcement of the arbitration provision is not unconscionable.)
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• ECS, Inc. v. Goff Group, Inc.,

No. 1021293 (Ala. Oct. 31, 2003)
(arbitration; nonsignatory; This dispute arose out of the termination of a "Program Manager's Agreement" ("the agreement") executed in the spring of 2001 by Goff Group, Inc. ("Goff"), Greenwich Insurance Company ("Greenwich"), and XL Specialty Insurance Company ("XL").  As "manager" under the agreement, Goff had authority to bind "insurance policies for insureds introduced to it by independent agents" in Alabama and several other southeastern states.  Policies were underwritten by ECS Underwriting, Inc., and issued by Greenwich and XL.  The agreement contained an arbitration provision providing for arbitration of "any dispute arising out of this Agreement."  Fowler sent Goff a letter dated June 28, 2002, purporting to terminate the agreement. On August 9, 2002, Goff sued ECS on theories of (1) fraud, (2) tortious interference with a contractual/business relationship, (3) the tort of outrage, (4) conspiracy, (5) unfair competition, (6) violation of trade secrets, (7) conversion, and (8) tortious training and supervision.  In addition to compensatory and punitive damages, Goff sought equitable relief, including an order enjoining ECS from "soliciting, brokering, or marketing services or competing with [Goff's] rights under the Program Manager's Agreement," and from "interfering with the Program Manager's Agreement." In a separate action in the Montgomery Circuit Court, Goff also sued Greenwich and XL, alleging breach of contract.  That action, originally styled Goff Group, Inc. v. Greenwich Insurance Company; XL Specialty Insurance Company, CV-2002-2199, was removed to the United States District Court for the Middle District of Alabama, which ultimately ordered the parties to proceed to arbitration.  ECS moved to compel arbitration of this dispute.  The trial court denied the motion, and ECS appealed. HOLDING:  The Supreme Court reversed.  The Court held that ECS, which is not a signatory to the agreement, may, nevertheless, enforce the agreement's arbitration provision as to Goff's claims against it.)
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Opinions Released October 24, 2003

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

 
• Southern Pine Elec. Coop. v. Burch,

No. 1020066 (Ala. Oct. 24, 2003) (on return from remand)
(excessive punitive damages; mental distress damages; public utility; The Supreme Court previously remanded this case for the trial court to enter an order in compliance with Hammond v. City of Gadsden, 493 So.2d 1374 (Ala. 1986), stating its reasons for denying the motion of the appellant, Southern Pine Electric Cooperative ("Southern Pine"), for a remittitur of a compensatory-damages award of $20,000 and a punitive-damages award of $75,000 in favor of Christopher Burch, without providing a statement of its reasons for the denial.  Following a hearing on remand, the trial court, in a written order, again denied Southern Pine's motion.  Southern Pine is a "[c]ooperative, nonprofit membership corporation[]," as defined by Ala. Code §37-6-2, "organized under [Ala. Code §§37-6-1 to -49,] for the purpose of supplying electric energy and promoting and extending the use thereof."  This action arose out of an attempt by Southern Pine to collect payment for electrical service it provided to Tracy Burch, who, at some time, was married to Brian Burch, the cousin of the plaintiff, Christopher Burch.  That service was provided to a mobile home located on County Road 27 in Castleberry.  Southern Pine terminated electrical service at the site in April or May 2001, after it was unable to collect $677.31 on Tracy Burch's past-due account.  On May 7, 2001, Christopher Burch submitted an "Application for Membership and Electrical Service," seeking to reestablish electrical service at the mobile home.  Southern Pine approved the application and dispatched district supervisor James Brown and service technician Chet Dolihite to the site to reestablish electrical service.  Brown and Dolihite completed their assignment and were leaving the  premises, when, they say, they met an automobile, with a male driver and a blonde female passenger, driving toward the mobile home.  According to Brown and Dolihite, the vehicle was a white Mercury automobile that had customarily been parked at the mobile home while the account for electrical service to the mobile home was in Tracy Burch's name.  Subsequently, Brown reviewed the account file of Christopher Burch, which contained a copy of Christopher's driver's license.  From the photograph on the copy, Brown concluded that Christopher Burch was the driver of the white Mercury.  He further concluded that he had seen Christopher at the mobile home on an earlier occasion, while the account was in Tracy's name, and that, on that occasion, Christopher had identified himself to Brown as Tracy Burch.  Southern Pine concluded that Christopher's membership application was merely an attempt to circumvent the past-due account, for which service to the mobile home had been discontinued.  It concluded, in other words, that "Southern Pine was dealing with the not-uncommon problem of members attempting to avoid indebtedness for electrical service by simply changing the name on the account from one resident of the household to another."  Therefore, the first electrical bill mailed to Christopher was for $737.39.  Of that amount, $60.08 was designated as "current bill," while $677.31, the amount due on Tracy Burch's delinquent account, was designated as "previous balance."  On June 15, 2001, Christopher paid the "current bill" amount of $60.08.  On June 27, 2001, Southern Pine discontinued electrical service to Christopher for failure to pay the alleged delinquency.  Christopher sued Southern Pine, alleging (1) breach of contract, (2) "wrongful termination of electrical power," and (3) "wanton or willful termination of electrical service."  Electricity was restored to the mobile home on July 31, 2001, pursuant to a court order; Southern Pine offered no opposition.  Subsequently, Southern Pine counterclaimed against Christopher for the delinquent amount on Tracy's account.  After the complaint was filed, Southern Pine's personnel began surveilling Christopher's premises.  While doing so, James Brown took a number of photographs of a blonde woman on the premises.  A jury trial began on June 24, 2002.  At the close of all the evidence, the trial court granted Burch's motion for a JML on the counterclaim.  The case was submitted to the jury on claims of breach of contract and wantonness.  The jury awarded Burch $20,000 in compensatory damages and $75,000 in punitive damages.  Southern Pine filed a posttrial motion for JML, as well as a motion for a remittitur or, in the alternative, a new trial.  Those motions were denied.  HOLDING:  The Supreme Court affirmed.  The Court held that in actions alleging the wrongful termination of utility services, damages for mental distress are recoverable, and, when the circumstances justify it, so are punitive damages.  The Court held that the award of $19,900 in damages for mental distress was supported by evidence that Burch was without electricity for 34 days, that for two weeks of that time he slept at the home of relatives, that he was inconvenienced, that he lost the use of his home, and that he was embarrassed at having to move back in with his relatives when his power was off.  With regard to the punitive damages, the Court noted that Tracy Burch was never identified for the record, that none of Southern Pine's personnel ever asked the woman they allegedly saw on the premises to identify herself, that Southern Pine did not ask Christopher whether Tracy was still living on the premises before it assessed the past-due balance on her account against his account or before it terminated his electrical service for the failure to pay the past-due balance, and that Southern Pine conducted regular surveillance of Burch's property and took a number of photographs of an unidentified woman it saw there.  The Court therefore concluded that if the jury believed Burch, and disbelieved Southern Pine -- as it apparently did -- it could have found the evidence that Southern Pine terminated Burch's electrical service in "reckless or conscious disregard of [his] rights," that Southern Pine's conduct was based on mere unfounded suspicion, that Southern Pine never made a reasonable effort to identify the woman it alleged was Tracy Burch, that Southern Pine terminated Burch's service before it made any effort to determine whether he had lived on the premises, that Southern Pine conducted an ongoing campaign of surveillance of Burch's property -- which included peeping into windows -- solely for improper purposes such as harassment or intimidation.  The Court held that Southern Pine has presented no reason for a reversal of the judgment or a remittitur of the punitive damages awarded.  The Court agreed with the trial court that nothing in Ala. Code §37-6-30(b) authorizes a rural electrical cooperative to sue one member of a household for a debt incurred by another member of the household, so the trial court did not err in entering a JML on the counterclaim.)
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• Ex parte Bruno's, Inc.,

No. 1020404 (Ala. Oct. 24, 2003)
(The Supreme Court quashed writ of certiorari as improvidently granted, citing Ex parte Fort James Operating Co., No. 1020678 (Ala. June 27, 2003).)
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• Wilson v. Manning,

No. 1020432 (Ala. Oct. 24, 2003)
(medical malpractice; state-agent immunity; Sherrian Y. Wilson sued Rhoda Manning, a registered nurse and an employee of the Mobile County Sheriff, asserting medical-malpractice claims, alleging that Manning's negligence resulted in further amputation of Wilson's leg.  Manning filed a motion for a summary judgment, with supporting evidentiary submissions, and Wilson filed a brief opposing the motion.  The trial court granted the Manning's motion for summary judgment on grounds of state-agent immunity and on grounds of the failure of Wilson to present substantial evidence which raises a genuine issue of material fact regarding the breach of the standard of care. The evidence showed that Wilson was arrested at her home on Wednesday, May 21, 1997, and was taken to the Mobile County Metro Jail for failing to appear at a hearing on a charge of negotiating a worthless instrument.  Wilson was brought to the jail at 6:30 p.m., and a corrections officer noted on her "Jail Receiving Screening Form" that she had "bone cancer."  At the time of her incarceration, Wilson was receiving intravenous antibiotic medication twice daily, through a Groshong shunt in her chest, to treat what she termed a "bone disease" in her left leg, which had been amputated below the knee.  When she was admitted to the jail, she had not had her second daily dosage of the antibiotic medication.  Manning, an employee of the Mobile County Sheriff's Department, was director of nursing at the jail and was responsible for supervising two medical secretaries, five registered nurses, and seven licensed practical nurses.  She testified in her deposition, filed in support of her motion for a summary judgment, that the warden ran the jail and that his immediate supervisor was the chief, who answered to the chief deputy, who answered to the sheriff.  On Thursday, May 22, Wilson signed a "consent for medical care" form and filled out a "request for medical evaluation," on which she wrote "PAIN, leg stump - need IV treatm[ent].  I have a shunt in my chest for bone disease."  That same day, in response to Wilson's request for a medical evaluation, Manning visited Wilson and filled out a "medical encounter record."  Manning noted in the medical encounter record that Wilson informed her that she was a patient of Infirmary Home Health Agency, Inc., and she provided her doctor's name, Dr. Steven G. Alsip, and a telephone number for Infirmary Home Health.  Manning telephoned Infirmary Home Health and spoke to Jackie Woolfolk, the nurse who administered Wilson's medications to her at Wilson's home.  Manning recorded in the medical encounter record, and subsequently testified on deposition, that Woolfolk told her that Wilson was taking one gram of Cefotan, an antibiotic, intravenously twice daily, at 6:00 a.m. and 6:00 p.m., and was having the dressing changed on the Groshong shunt three times per week.  She also stated in her deposition: "The assessment from this lady, Jackie, was osteomyelitis,[] amputee, car accident two years ago, long-standing, chronic."  In regard to her conversation with Infirmary Home Health, Manning also stated that she telephoned them "to make them aware that [Wilson was] there so they [could] continue the treatment or whatever they do ...."  Woolfolk testified somewhat differently, by deposition, concerning the content of that telephone conversation.  She stated that she telephoned the jail "and left a message for the head nurse to call me back."  Woolfolk stated that when she talked to Manning, "I introduced myself, told her that I was the one who had been primarily seeing Sherrian.  I told her what medication she was getting ... how often she was getting it, and who her doctor was, and I also gave her the doctor's phone number."  Woolfolk testified that there was no discussion during that conversation about Infirmary Home Health's delivering Wilson's medication and she stated that Manning did not request that Infirmary Home Health send the medicine.    On Wednesday, May 28, Wilson, who was still incarcerated, filled out another request for medical evaluation form; that form stated, "I have an infection of the bone that is VERY active at present.  I have a shunt in my chest and I need antibiotics I.V. and pain medication."  Manning testified that Wilson was given a dose of antibiotics on May 28, at 6:00 p.m.  Wilson was released from the jail on May 29.  According to Wilson's brief opposing Manning's summary-judgment motion and her brief to this Court, she was "taken immediately to Mobile Infirmary hospital where the remainder of her leg was amputated."  HOLDING:  The Supreme Court reversed.  The Court held that the facts of this case raise a genuine issue of material fact as to whether Manning provided Wilson the "necessary medicines and medical attention" required by Ala. Code §14-6-19.  The Court stated that even if Manning was "exercising ... her judgment in the administration of a department or agency of government," she had no discretion to decline to provide necessary medicines and treatment in violation of Ala. Code §14-6-19.  Accordingly, the Court held that the trial court erred in entering the summary judgment on the basis that Manning was entitled to state-agent immunity.  The Court also concluded that there was substantial evidence from which a reasonable juror could infer that Manning accepted Wilson as her patient with full knowledge of Wilson's "necessary medicines" and with full appreciation of the importance of continuity of care in antibiotic treatment, yet failed to provide that care beginning with the dosage due at 6:00 p.m. on May 21, 1997, through the 6:00 a.m. dosage due on May 28, resulting in a total of 14 missed doses. Thus, the Court held that the trial court erred in entering the summary judgment on the basis that there was not substantial evidence to prove a breach of the standard of care.)
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• Jim Walter Homes, Inc. v. Saxton,

No. 1020513 (Ala. Oct. 24, 2003)
(arbitration; unconscionability; existence of agreement to arbitrate; David Saxton entered into a contract with Jim Walter Homes, Inc., and Jerry Tinch (collectively "JWH") for the construction and financing of a new house; attached as Exhibit D to the contract was a document entitled "Arbitration Agreement-Alabama."  The house was to be built by JWH on land Saxton owned in Hurtsboro, at a total cost of $178,596, including financing charges.  After the house was constructed, Saxton sued JWH, alleging breach of warranty, fraud, negligence, and breach of contract, and asserting a products-liability claim.  JWH moved to compel arbitration of the claims pursuant to Exhibit D.   Saxton filed a response in opposition to JWH's motion to compel arbitration asserting six reasons the arbitration provision should not be enforced.  The trial court, without identifying the specific grounds for its decision, denied JWH's motion to compel arbitration. HOLDING:  The Supreme Court reversed.  The Court noted that Saxton does not dispute that he signed an agreement to arbitrate any claims that might arise from the contract he entered into with JWH and that JWH presented evidence indicating that the transaction at issue affects interstate commerce.  The Court rejected Saxton's arguments concerning unconscionability based on an alleged lack of a "meaningful choice,"  lack of mutuality of remedy, and unequal bargaining power because Saxton failed to carry his burden of proof.  The Court held that Saxton cannot reasonably assert that he did not knowingly, willingly, and voluntarily waive his right to a jury trial when the arbitration agreement he signed states that "[t]he parties agree and understand that they choose arbitration instead of litigation to resolve disputes."  The Court held that because Saxton has taken the position that JWH breached its contract with him, he cannot now claim that the contract is invalid because JWH failed to sign it.)
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• Middleton v. Lightfoot,

No. 1020666 (Ala. Oct. 24, 2003)
(wrongful death; medical malpractice; evidence; expert testimony;  Lula Mae McDougle was admitted to the University of South Alabama Knollwood Park Hospital for surgery to relieve a condition diagnosed by Dr. Robert Lightfoot as "cholelithiasis" (gallstones).  Dr. Lightfoot performed a "cholecystectomy," that is, surgical removal of the gallbladder. He first attempted to remove the  gallbladder "laparoscopically," that is, by inserting a series of "ports," or "trocars," into the abdominal wall, through which the gallbladder could be removed.  He inserted an "umbilical trocar," which was approximately 11 millimeters in diameter, through the lower abdomen; however, he abandoned the laparoscopic procedure because his vision of and access to the gallbladder were obscured by "adhesions," that is, scar tissue or "extra-fibrous tissue."  He then removed the trocars and made a larger incision in the lower abdomen, through which he extracted the gallbladder.  McDougle was released from the hospital at approximately 9:15 a.m. the following morning, April 25.  By 6:30 a.m. on April 26, McDougle was dead.  An autopsy revealed an 11-millimeter perforation of the "jejunum," that is, the "small bowel," near the incision into which Dr. Lightfoot had inserted the "umbilical trocar" during the abortive  laparoscopic cholecystectomy.  Katherine Middleton, as administratrix and personal representative of McDougle's estate, sued Lightfoot.  The complaint alleged, among other things, that  Lightfoot "caused or negligently allowed the [gallbladder surgery] to be performed in such a manner that [McDougle] suffered a perforated [bowel], which led to acute peritonitis and infection that caused [her death]."  It also alleged that Lightfoot allowed McDougle "to go without proper and necessary evaluation, work-up, diagnosis and treatment of her perforation and resulting peritonitis and prematurely and improperly discharged [her] in spite of signs and symptoms of her problems."  Finally, the complaint averred that Lightfoot "negligently caused or allowed the perforation and resulting peritonitis to occur without proper and timely evaluation of the patient in spite of conditions which should have caused further concern and evaluation of potential complications."  Subsequently, Ernest Middleton was substituted for Katherine Middleton as the administrator of McDougle's estate and thus the plaintiff.  The jury trial of the case focused primarily on two issues: (1) the cause of death, and (2) the standard of care.  As for the cause of death, the autopsy report failed to attribute death to a specific cause.  Middleton's theory of the case was that Dr. Lightfoot inadvertently punctured the bowel with the umbilical trocar during the laparoscopic procedure and failed to discover and treat the injury.  According to this theory, the contents of the bowel escaped through the puncture, resulting in "acute peritonitis," infection, and ultimately McDougle's death.  Middleton presented expert testimony indicating that Dr. Lightfoot had breached the standard of care in failing to discover and repair the perforation.  Lightfoot did not challenge the autopsy finding that McDougle's bowel was perforated at the time of her death, but challenged the theory that the perforation occurred during the surgical procedure, as well as Middleton's theory as to the cause of McDougle's death.  According to Lightfoot, the perforation resulted, not from the insertion of the trocar, but from a bowel "impaction."  According to that theory, death resulted, not from peritonitis or infection, but from a "pulmonary embolus," having no connection with the perforated bowel.  The jury returned a verdict in favor of Lightfoot.  Middleton moved for a new trial, on the ground, among others, that the trial court erred in allowing Lightfoot to cross-examine Middleton's expert witness regarding medical-malpractice actions that have been brought against the witness.  The trial court did not rule on the new-trial motion, and it was denied by operation of law.  HOLDING:  The Supreme Court reversed.  The Court held that the prior medical malpractice action against the Middleton's expert witness was not relevant because the fact that the expert has himself been a medical-malpractice defendant has no tendency to prove bias in favor of plaintiffs.  The Court further noted that even if a malpractice defendant would, in some case, be entitled to impugn the credibility of the plaintiff's expert witness through reference to extraneous lawsuits, it could not be done in this case, because , contrary to Lightfoot's contention, Middleton's expert's laparoscopic-cholecystectomy case is not remotely similar to the allegedly negligent conduct in this action.)
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• John Deere Constr. Equip. Co. v. England,

No. 1020984 (Ala. Oct. 24, 2003)
(agency; fraudulent suppression; Earnest England and Johnny England are brothers; together they operate a business known as England Logging.  John Deere Construction Equipment Company ("Deere") manufactures, among other things, heavy industrial equipment.  In the early 1990s, it developed and marketed a line of skidders designated as the E-series.  This line included the 548-E model, the 648-E model, and the 748-E model skidder.  Shortly after these skidders were placed on the market, Deere learned of various problems with the E-series skidders.  Although the problems manifested themselves in various ways, it appeared that the most recurrent problem was in the hydraulic system.  In 1993, Deere issued an update kit to its authorized dealers in an attempt to deal with the problems that had been identified in the E-series skidders.  In 1995, Deere issued another update kit designed to address the overheating of the E-series skidders.  Deere denominated this kit as a "fix-as-fail" update, rather than a "mandatory" update.  Warrior Tractor and Equipment Company is a heavy equipment dealer with six retail locations in Alabama.  As an authorized Deere dealer, Warrior had entered into a dealership agreement with Deere; that agreement outlined the relationship between Deere and Warrior.  Warrior is also an authorized dealer for numerous other manufacturers of heavy equipment.  In June 1995, the Englands decided to purchase a Deere skidder for use in their logging business.  Tommy Moore, a sales representative with Warrior, came to the Englands' job site to show them a used 648-E model Deere skidder Warrior had for sale.  Warrior had received this skidder as a trade-in, had performed some repairs on it, and then offered it for sale.  The Englands decided to purchase the used Deere skidder.  Warrior provided a 30-day power-train warranty.  Earnest England testified that he knew Warrior, not Deere, was providing this warranty, because any warranty provided by Deere on the skidder would have expired by the time the Englands purchased the skidder.  He also testified that in negotiating the purchase he met only with representatives of Warrior and negotiated only with Warrior, and that during the negotiations and while the Englands owned the skidder he never contacted Deere for any reason.  Six months after they purchased the skidder, the Englands began experiencing various problems with the skidder.  Finally, in October 1999, while the skidder was at Warrior's service department for repairs, Warrior's service manager asked the Englands if the 1995 update kit had been installed on the skidder.  Apparently, it had not.  Warrior installed the 1995 update kit that same day.  According to Earnest England, the update kit solved the overheating problem but the other problems continued.  Over six years after they purchased  the skidder from Warrior, Earnest England, individually, Johnny England, individually, and Earnest England and Johnny England d/b/a England Logging sued Deere and Warrior in the Perry Circuit Court.  In their complaint, they alleged that Deere (1) fraudulently represented to them that the skidder was free of defects and was suitable for its intended use; (2) fraudulently suppressed material facts regarding the hydraulic system of the skidder; (3) negligently or wantonly failed to complete warranty work, to service, to maintain, or to repair the skidder; (4) breached implied warranties; (5) breached express warranties; and (6) failed to exercise reasonable and ordinary care in the operation of its business.  Deere and Warrior each moved for a summary judgment as to all claims asserted by the Englands.  The trial court granted the motions as to both defendants except as to count II of the complaint, which alleged that Deere and Warrior had fraudulently suppressed material information regarding the defects in the hydraulic system of the skidder.  The Englands' claim of fraudulent suppression against Deere went to trial.  The undisputed evidence at trial indicated that the Englands had had no contact with Deere, that the Englands had never attempted to contact Deere regarding problems with the skidder, and that Deere had no knowledge that the Englands had purchased a used 648-E model skidder.  It was also undisputed that Deere had repeatedly notified Warrior and its other authorized dealers of problems with the hydraulic system of the 648-E model skidder and had provided the dealers an update kit to address those problems.  At trial, counsel for the Englands stipulated that the Englands' fraudulent-suppression claim against Deere was premised entirely upon their allegation that, in its dealings with the Englands, Warrior was acting as Deere's agent.  At the close of the Englands' case and again at the close of Deere's case, Deere moved for a judgment as matter of law.  Deere argued that the Englands had not established  sufficient evidence of the existence of an agency relationship between Warrior and Deere and that, therefore, Deere could not be liable for any alleged suppression by Warrior.  Deere also argued that the Englands had failed to present any evidence to support their claim for punitive damages.  The trial court denied Deere's motion and submitted the fraudulent-suppression claim to the jury.  On September 25, 2002, the jury returned a verdict against Deere, assessing compensatory damages in the amount of $289,000 (consisting of lost profits, repair costs, and damages for emotional distress) and punitive damages in the amount of $1,500,000.  On October 7, 2002, the trial court reduced the punitive-damages award, pursuant to § 6-11-21, Ala. Code 1975, to $867,000, resulting in a total award of $1,156,000.  The trial court entered a judgment on the verdict as reduced.  Deere filed a motion for a remittitur, a motion for a new trial, and a postverdict motion for a judgment as a matter of law.  Those motions were denied by operation of law.  HOLDING:  The Supreme Court reversed.  The Court held that, as a matter of law, the evidence is insufficient to create a jury question on the issue of actual agency.  The Court noted that the dealer agreement neither gave Deere the right to control Warrior's day-to-day activities nor gave Deere any authority to dictate how Warrior fulfilled its requirements under the agreement.  The Court also found that there was no evidence that presented a jury question on the issue of apparent agency or agency by estoppel.)
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• Smith Family Cos. v. The Home Depot, U.S.A., Inc.,

No. 1021291 (Ala. Oct. 24, 2003)
(tortious interference; promissory fraud; breach of contract; The Supreme Court affirmed without opinion.  Justices Johnstone and Harwood wrote opinions concurring in part and dissenting in part.)
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• Liberty Nat'l Life Ins. Co. v. Ester,

No. 1021395 (Ala. Oct. 24, 2003)
(arbitration; fraud in the inducement; Willie Ester and Dorothy Ester sued Liberty National Life Insurance Company ("Liberty National") and  Chris Reese, who they alleged told them that their mortgage-insurance policy had to be canceled and converted to a whole life insurance policy.  The Esters claimed that this representation was false and that they suffered damage because they "could not obtain similar insurance with similar limits for the same or less premium being paid to [Liberty National]."  Liberty National and Reese filed a motion to compel arbitration, supported by an affidavit of Anthony McWhorter, president of Liberty National.  Liberty National also asked the court to stay the action pending arbitration.  The trial court held a hearing on Liberty National and Reese's motion to compel arbitration; after the hearing the trial court denied the motion, stating in its order that "this Court looks 'beyond the maneuvering by [Liberty National and Reese]' to force the [Esters] to arbitrate their justiciable grievances and clearly sees Alabama plaintiffs seeking redress in an Alabama Court against an Alabama agent and an Alabama company in which the subject transaction should be regulated by the Insurance Department of  Alabama.... [Liberty National and Resse's] motion to compel arbitration is denied."  Liberty National and Reese appealed.  Willie Ester and Dorothy Ester, the plaintiffs,  recognize that the judgment of the trial court cannot be affirmed on the ground that the transaction does not affect interstate commerce; they argue, however, that even if the transaction evidenced by the policy affects interstate commerce, a question remains as to whether they were fraudulently induced to convert an existing policy, and that that question is an issue that must be determined by the court, not an arbitrator.  They contend, further, that the trial court here determined that issue adversely to the movants, the defendants, and that the judgment of the trial court should therefore be affirmed.  HOLDING:  The Supreme Court reversed.  The Court held that the Esters did not present substantial evidence to support a fraudulent-inducement claim.)
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• General Motors Corp. v. Stokes Chevrolet, Inc.,

No. 1021446 (Ala. Oct. 24, 2003)
(arbitration; judicial estoppel; Stokes Chevrolet, Inc. ('the Stokes dealership'), operates a dealership in Clanton that, in addition to the Chevrolet line of the Chevrolet Motors Division of General Motors Corporation ('GM'), sold Chrysler, Plymouth, Dodge, and Jeep vehicles (Stokes's non-GM lines are hereinafter referred to as 'the Chrysler assets').  Rick Bush Motors ('Bush') was a GM dealer that also operated in Clanton and that had the authority to sell Buick, Oldsmobile, and Pontiac vehicles, and the GMC line of GM. The Stokes dealership was interested in acquiring from Bush assets to be used in the operation of an Oldsmobile, Pontiac, and Buick dealership.  Bush's dealership agreement with GM required GM's approval of the sale of its assets to the Stokes dealership.  The Stokes dealership obtained GM's approval and purchased Bush's assets; however, a condition of the approval was the Stokes dealership's agreement to relocate the Chrysler assets to another site in Clanton.  On April 8, 1999, GM and Stokes Chevrolet, Inc. ("the Stokes dealership"), signed a "Relocation Agreement and Business Plan" ("the relocation agreement"), which paved the way for the Stokes dealership to obtain the authority to sell Oldsmobile vehicles.  The relocation agreement mandates that "all claims, disputes, and controversies between the [parties] arising under or relating to [the] agreement" be submitted to arbitration.  On November 1, 2000, the Stokes dealership and GM entered into a "Dealer Sales and Service Agreement" ("the Oldsmobile dealer agreement"), which covered the Oldsmobile line.  The Oldsmobile dealer agreement states that the Stokes dealership and GM agreed to resolve disputes in accordance with the terms of the dispute resolution process set out in the agreement.  Under this dispute resolution process, disputes are to be resolved through mediation, with certain exceptions, and if the dispute is not resolved through mediation, both parties may then voluntarily agree to arbitrate.  Just over a month later, on December 12, 2000, GM announced that it had decided to halt development of and "phase out" the Oldsmobile line.  As a result of the announcement, the Stokes dealership, Kirk A. Stokes, and James H. Stokes (hereinafter referred to collectively as "the Stokeses") sought to recover damages they alleged arose from GM's decision to discontinue the Oldsmobile line.  The Stokeses specifically alleged in count one of their complaint a violation of the Alabama Motor Vehicle Dealer Act, Ala. Code §8-20-4 et seq. (the "Act"), claiming that GM terminated the Oldsmobile line without notice and without good cause as required by the Act.  Count two alleged an allocation claim under the Act.  Count three alleged a fraud claim based upon GM's alleged fraudulent suppression and concealment at the time it presented the Oldsmobile dealer agreement to the Stokeses of the fact that it would be shutting down the Oldsmobile line of vehicles.  Count four alleged breach of contract and breach of the implied covenant of good faith and fair dealing.  GM filed a motion to compel arbitration pursuant to the relocation agreement.  The Stokeses objected to arbitration, arguing that their claims against GM arose solely out of the Oldsmobile dealer agreement.  After a hearing, the trial court denied GM's motion to compel arbitration. GM appealed.  HOLDING:  The Supreme Court affirmed.  The Court noted that GM urged the Court in General Motors Corp. v. Stokes, 850 So.2d 1239 (Ala. 2002) ("Stokes I"), to reverse an order denying arbitration in an earlier proceeding between it and the Stokeses by distinguishing the claim in that case from claims that were part of the ongoing order of business between a dealer and GM under existing dealer agreements, thereby indicating that such claims would not be arbitrable.  The Court held that GM cannot now be heard to disavow the logic of its earlier argument in an effort to obtain arbitration of this proceeding involving claims that are clearly part of the ongoing order of business between a dealer and GM under an existing dealer agreement.  The Court noted that for it to come from the other direction and say a dispute that is a part of the ongoing order of business between a dealer and GM under an existing dealer agreement is also arbitrable under the relocation agreement would suggest that it was misled by GM in Stokes I when it accepted the distinction there advanced by GM between claims arising under a dealer agreement and claims arising under the relocation agreement.  The Court concluded that such a facile construction would unfairly advantage GM.  The Court held that the claims asserted by the Stokeses in the present action are not subject to the arbitration clause contained in the relocation agreement.  The Court concluded that the arguments made below and reasserted here are sufficient to make the defense of judicial estoppel to GM's demand for arbitration a ground for affirmance presented by the record.)
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• Ex parte McWhorter,

No. 1021638 (Ala. Oct. 24, 2003)
(sovereign immunity/State immunity; Marilyn McCarley and four other plaintiffs (hereinafter referred to collectively as "McCarley") sued Timothy L. McWhorter, a Lawrence County deputy sheriff; the Lawrence County Commission; and Lawrence County on theories of negligence and wantonness arising from a motor-vehicle accident.  The accident occurred on May 25, 2002, on Alabama Highway 157 in Lawrence County, when a vehicle driven by Deputy McWhorter collided with a vehicle occupied by McCarley.  Deputy McWhorter filed a motion to dismiss the complaint, asserting that he was entitled to sovereign immunity as provided in Art. I, § 14, Ala. Const. of 1901.  The trial court denied the motion.  McWhorter filed a petition for writ of mandamus. HOLDING:  The Supreme Court granted the petition for writ of mandamus.  The Court noted that it is undisputed that Deputy McWhorter was acting within the line and scope of his employment as a deputy sheriff at the time of the accident.  As such, the Court held that Deputy McWhorter is entitled to sovereign immunity, now referred to as State immunity.)
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Opinions Released October 17, 2003

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

 
• LaFarge Bldg. Materials, Inc. v. Stribling,

No. 1020623 (Ala. Oct. 10, 2003)
(real estate; landlord-tenant; fixtures; trade fixtures; Chattahoochee Valley Railway Company ("Chattahoochee") leased land to Sidney Evans, who used the land to operate Valley Concrete Company in Lanett. Evans paid $100 per month to lease the land and placed improvements on the land to operate the concrete company. In 1987, Evans sold his business and the equipment used in the business to Williams Brothers, Inc., an entity that was LaFarge's predecessor in interest. Shortly after Evans sold the business, LaFarge began to operate the concrete plant and took the additional step of securely attaching the equipment to the property by pouring concrete around the bases of the equipment. Evans remained involved in the concrete plant, working as LaFarge's plant manager from 1987 to 1991. During LaFarge's operation of the concrete plant, it leased the land from Chattahoochee under terms identical to those in the Chattahoochee-Evans lease.  In 1995, Phillip E. Stribling II, an acquaintance of Evans's, purchased the land on which LaFarge's concrete plant was located from Chattahoochee for $7,500. The purchase  agreement assigned to Stribling all of Chattahoochee's rights under its lease with LaFarge. Six days after Stribling purchased the land, Evans acquired from Stribling a 50% interest in the land.  On December 31, 1996, LaFarge's lease expired. Stribling notified LaFarge that it could renew the lease at the substantially higher rate of $2,000 a month or it could purchase the property for $100,000. LaFarge declined both offers and opted to vacate the property.   When LaFarge vacated the property, it removed and dismantled several pieces of equipment, apparently the same equipment Williams Brothers had previously purchased from Evans. Additionally, LaFarge destroyed several structures and/or removed several structures from the property. LaFarge admitted that when it vacated the property it left the property in a state of disarray. Subsequently, Stribling and Evans sued LaFarge, alleging breach of contract, wanton or malicious destruction of property, and negligence in removing the equipment and several structures from the plant.  Paragraph 6 of the assigned Chattahoochee-LaFarge lease regarding property improvements is the centerpiece of Evans and Stribling's claim. It provides as follows:  "6. Any buildings and improvements erected on the leased property by the Lessee shall become the sole property of Lessor at the expiration of the lease term or any extension thereof as herein provided and it is hereby understood and agreed that any building and improvements situated on the leased property at the inception date of the lease is the sole property of the Lessor."  At trial, Evans and Stribling testified that they intended to operate a concrete plant on the land after the lease expired, and that the removal of the equipment caused them to lose profits of $424,598. LaFarge argued that the removed items consisted of "trade fixtures" and that it was entitled to remove the trade fixtures upon the termination of its lease.  LaFarge contends that it erected, placed, or attached to the ground all of the equipment at issue, including structures and bins, in furtherance of its trade or business. Stribling and Evans do not contradict this contention. Stribling acknowledged that the purpose of putting the equipment on the property was to carry on a trade or business. At the close of the evidence, Stribling and Evans voluntarily dismissed their negligence and breach-of-contract claims, leaving for consideration by the jury only the tort claims alleging wantonness and intentional conduct. The trial court denied LaFarge's preverdict motion for a JML and instructed the jury. The jury returned a verdict in favor of Evans and Stribling, awarding them $500,000 in compensatory damages and $1,500,000 in punitive damages.  LaFarge then moved for a postverdict JML, arguing that under Alabama law the equipment and structures were trade fixtures.  The trial court denied LaFarge's motion. In its order, the trial court stated that "there was a legitimate and justiciable dispute as to which items were trade fixtures and which items were a part of the realty.  HOLDING:  The Supreme Court held that the trial court's jury instruction incorrectly applied the law governing ordinary fixtures to a case that should be governed by the law applicable to trade fixtures because the trial court placed impermissible emphasis on the method of attachment.  The Court held that since it is undisputed that the property in question was installed for the purpose of furthering LaFarge's business, a judgment in favor of LaFarge was due to be entered on the issue of whether the fixtures were trade fixtures, but the Court held that LaFarge was still liable for the destruction or injury to the property resulting from the removal of the trade fixtures in an amount equal to the cleanup costs.  The Court affirmed the trial court's order insofar as it denied LaFarge's motion for a JML on the count of the complaint seeking damages for cost of cleanup, and the Court remanded for a new trial as to the issue of damages. However, insofar as the trial court's order awarded damages for removal of trade fixtures, the Court reversed and rendered a judgment in favor of LaFarge.)
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Opinions Released October 10, 2003

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

 
• Queen v. Belcher,

No. 1020061 (Ala. Oct. 10, 2003)
(conservatorship; trust; power of attorney; competence; Bettye Jan Belcher Queen, Beverly Jean Belcher Scroggins, and Otha A. Belcher  ("the petitioning children") and the appellee, Brent Belcher ("Brent"), are all children of Olon Belcher, an 87-year-old man who, they all acknowledge, suffers from dementia.  During his lifetime, Olon acquired a substantial estate, largely through the success of Olon Belcher Lumber Company, a retailer of lumber and building supplies.  For some time, Brent has actively managed his father's estate, first through a durable power of attorney executed in 1995, and later through a family partnership formed in 1995, and amended in 1999, and a trust agreement executed in 1998.  On June 15, 2000, the petitioning children petitioned the Probate Court of Bibb County to have a conservator appointed for their father because of his diminishing mental capacity and because of concern about the way their brother Brent was handling his estate.  On February 9, 2001, the probate judge granted the petition, concluding that Olon "is a person unable to manage property and business affairs effectively as described in [Ala. Code §26-2A-130]."  The order also required Brent to produce the 1998 trust agreement and to make an accounting of that trust.  Sanford E. Gunter was appointed conservator of Olon's estate.  Brent immediately removed the conservatorship to the Bibb Circuit Court and, in June 2001, moved the court to issue an order: (1) adopting the "Plan for Joint Care of Olon Belcher" Brent had submitted, (2) directing the conservator to work with the instruments of Olon's estate already in effect (the durable power of attorney, the partnership agreement, and the trust agreement), and (3) setting June 15, 2000, the date the petitioning children filed their petition for a conservator, as the effective date for the appointment of a conservator.  The petitioning children opposed Brent's motion and moved the court to compel Brent to comply with the provisions of the probate court's February 9 order that required him to produce the 1998 trust agreement and to make an accounting of that trust.  They further asked the court to find that Olon had been incapable of managing his business affairs since 1994, and that, therefore, he did not have the capacity in 1995 to execute the power of attorney or the partnership agreement or subsequently in 1998 to execute the trust agreement and that those documents were therefore invalid.  On July 26, 2001, the trial court ruled that Brent did not have to comply with the provisions of the probate court's order requiring him to produce the trust agreement and to make an accounting of the trust, but it did not address the other pending issues.  Meanwhile, on October 16, 2001, the court-appointed conservator filed his inventory of Olon's estate.  After listing Olon's then current assets and liabilities, he noted numerous transactions in which Brent had been involved that the conservator had not investigated, and he asked the court to clarify the scope of his responsibility.  The trial court scheduled a hearing for December 17, 2001, to determine when Olon became incapable of effectively managing his property and his business affairs.  At the hearing, the petitioning children presented deposition testimony from three doctors in support of their contention that Olon was incapable of effectively managing his property and business affairs at least as early as 1995, when he executed the power of attorney in favor of Brent.  They asked the court to invalidate the power of attorney, the partnership agreement, and the trust agreement, and to order a full accounting of the estate from 1995 to the present.  Brent presented six affidavits from witnesses who knew Olon in varying degrees, both personally and in business settings, and who swore that Olon had appeared lucid and intelligent during business interactions they had had with him at different times between 1993 and 2000.  Brent also presented evidence indicating that the petitioning children had benefited as well from transactions with Olon during this period.  The petitioning children moved to strike the affidavits as hearsay.  On May 13, 2002, the court denied the petitioning children's motion to strike the affidavits and found that Olon had the legal capacity to execute the power of attorney and the partnership agreement in 1995 and the trust agreement in 1998.  The court denied the petitioning children's request for an accounting of the estate and ordered that the conservator manage the estate to reflect the validity of all the documents executed by Olon before the conservator was appointed.  HOLDING:  The Supreme Court reversed and remanded.  The Court held that the trial court's order was a final, appealable order.  The Court held that the trial court was correct in recognizing that there are two standards of legal capacity--one for "general business affairs" and one for "a will or other documents"; however, the Court held that the trial court erred when it held the power of attorney, the partnership agreement, and the trust agreement to the standard applicable to wills because those are not testamentary documents.  The Court also held that neither Brent nor the trial court identified any exception to the exclusionary hearsay rule that would permit the affidavits to be admitted into evidence; accordingly, the Court held that they cannot be considered.)
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• City of Prattville v. Corley,

Nos. 1020075 et al.  (Ala. Oct. 10, 2003)
(damages for tort claims for flood damage against municipalities; Ala. Code §§11-93-2, 11-47-190; failure to maintain storm drains; On September 1, 2000, eight inches or more of rain fell in the City of Prattville within a few hours. The City's storm drains and sanitary sewers overflowed, severely damaging a number of residences and businesses.  At the urging of the City's mayor, the residents filed itemized claims with the City to recover damages.  The City  quickly paid the damages claims filed by a few residents, but it now contests a large number of the claims filed by other residents.  On December 5, 2000, a number of residents sued the City, alleging various claims arising from the flooding, including negligence, trespass, inverse condemnation, abatable nuisance, 42 U.S.C. § 1983 claims, and claims seeking injunctive relief arising from what the residents argue is the City's failure to properly maintain its storm drains.  The City then moved for a pretrial determination or declaration stating whether Ala. Code §11-47-190 applied to limit its aggregate liability arising from the September 1, 2000, flood.  The trial court entered an order stating that the issue of damages for those claims sounding in tort was controlled by Ala. Code §11-93-2,  not §11-47-190, and that §11-93-2 did not limit the City's aggregate liability for property damage.  The trial court certified its interlocutory order for permissive appeal, and the Supreme Court granted the City's petition for permission to file an interlocutory appeal.  HOLDING:  The Supreme Court affirmed.)
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• Ex parte Alabama Dep't of Youth Servs.,

No. 1020480 (Ala. Oct. 10, 2003)
(sovereign immunity; qualified immunity; state-agent immunity; Eleventh Amendment immunity; Jane Doe 1 and Jane Doe 2, by and through their respective next friends ("Doe plaintiffs"), sued three Alabama Department of Youth Services ("DYS") employees for committing various sexual assaults on the Doe plaintiffs and for sexually harassing them while the Doe plaintiffs were in the custody of DYS at its Chalkville campus.  The Doe plaintiffs sued DYS for violating Title IX of the Education Amendments of 1972, 86 Stat. 373, as amended, 20 U.S.C. § 1681 et seq., by failing "to respond and/or their inadequate response to" a "sexually hostile education environment and sexual abuse and harassment."  Against DYS, the Doe plaintiffs seek injunctive relief, compensatory and punitive damages, and attorneys' fees.  The Doe plaintiffs sued executive director of DYS J. Walter Wood, Jr., under various legal theories.   All were based on Wood's, and certain other supervisory defendants', being "entrusted with the security of elementary students like the minor plaintiffs who are placed by operation of law into their charge."  The Doe plaintiffs alleged a claim against Wood under 42 U.S.C. § 1983 for deliberate indifference to their "right[s] to personal safety, security and privacy, guaranteed by the Fourteenth Amendment" while Wood was "acting under color of state law."  The Doe plaintiffs alleged that Wood "failed to develop, implement or administer procedures or policies reasonably designed to provide protection for the minor Plaintiffs from sexual harassment and abuse"; failed "to prevent male employees of DYS from sexually abusing and harassing them"; failed "to investigate prior complaints" against the three employees; and failed "to protect the Plaintiffs from harm and from further harm after [Wood] received notice of the sexual harassment and abuse and the potential for sexual harassment of" them.   The Doe plaintiffs seek compensatory and punitive damages, "equitable relief," attorneys' fees, and costs.  The prayer for relief does not specifically seek an injunction.  The Doe plaintiffs also alleged state-law claims against Wood, in his individual and official capacities, for "intentionally and recklessly caus[ing] them to suffer extreme emotional distress by [his] outrageous misconduct" and for negligently or wantonly hiring, supervising, investigating, and monitoring the three employees, and their supervisor, the principal of the school.  The Doe plaintiffs alleged that Wood's acts or omissions in the torts alleged in these two claims were "malicious and intended to injure."  The Doe plaintiffs also claimed against Wood in his individual and official capacities for "willfully, recklessly, and/or mistakenly represent[ing] to Plaintiffs a material existing fact, which the Plaintiffs relied on said false representation that caused damage to the Plaintiff[s] as a proximate result."  The Doe plaintiffs asked for compensatory and punitive damages and costs for all of these claims.  DYS and Wood moved to dismiss the Doe plaintiffs' claims against them.  DYS asserted that the claims against it should be dismissed on the ground that DYS is an agency of the State of Alabama entitled to sovereign immunity under the Eleventh Amendment to the United States Constitution and Art. I, § 14, Alabama Constitution of 1901.  Wood asserted that he is entitled to a dismissal of the claims against him in his official capacity on the ground of sovereign immunity under Art. I, § 14, Alabama Constitution of 1901, and that he is entitled to a dismissal of the claims against him in his individual capacity on the grounds of federal qualified immunity and state-agent immunity.  Both DYS and Wood asserted that they are entitled to dismissal of the federal § 1983 claims against them on the ground that § 1983 precludes respondeat superior liability.  The Doe plaintiffs responded in opposition to the motion to dismiss.  After a hearing, the trial court denied the motion to dismiss filed by DYS and Wood.  HOLDING:  The Supreme Court held that DYS is not entitled to Eleventh Amendment immunity from the Doe plaintiffs' Title IX claim.  The Court held that Wood has not shown a clear legal right to a dismissal of the Doe plaintiffs' § 1983 claim on the ground of federal qualified immunity.  The Court held that the law of Eleventh Amendment immunity, not of state constitutional sovereign immunity, governs a Title IX claim brought against a state and, therefore, DYS is not entitled to a dismissal of the Doe plaintiffs' Title IX claim on the ground of Art. I, § 14, sovereign immunity.  However, the Court held that Wood has shown a clear legal right to a dismissal of the Doe plaintiffs' state-law claims against him in his official capacity.  The Court held that because each of the plaintiffs' state-law claims against Wood expressly alleges that his conduct was either malicious, willful, "intended to injure the minor plaintiffs," or fraudulent, the allegations do not show, and Wood has not shown, that he has a clear legal right to a dismissal of any of these state-law claims on the basis of state-agent immunity.)
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• Frazier v. St. Paul Ins. Co.,

No. 1020505 (Ala. Oct. 10, 2003)
(uninsured-/underinsured-motorist insurance; workers' compensation; Alan Jerome Frazier was employed by Charter Communications as a line installer; a portion of his job responsibilities involved driving the cable company truck to install, disconnect, and repair cable.  On December 7, 1999, Frazier was involved in a collision while he was driving the company's truck in connection with his job when  Lee Roy Mullins pulled his vehicle out in front of the truck Frazier was driving.  Frazier could not stop, and he hit Mullins broadside.  As a result of the accident, Frazier suffered injuries to his neck and back.  He underwent fusion surgery and various other treatment.  Because Frazier was injured within the line and scope of his employment, he qualified for workers' compensation benefits under the Workers' Compensation Act.  On June 11, 2002, Frazier reached a settlement with St. Paul, Charter's workers' compensation insurance carrier.  On May 8, 2001, Frazier sued Mullins, the alleged tortfeasor, and St. Paul, Charter's automobile insurance carrier, in the Marshall Circuit Court, seeking to recover damages for his injuries.  On February 22, 2002, the Marshall Circuit Court entered a default judgment against Mullins.  St. Paul filed a motion for judgment as a matter of law, arguing that Frazier was precluded from receiving workers' compensation benefits and uninsured-/underinsured-motorist benefits for the same injury.  The trial court granted St. Paul's motion and entered a judgment for St. Paul.  HOLDING:  The Supreme Court reversed.  The Court noted that in Ex parte Carlton, No. 1001781, (Ala. Apr. 11, 2003), it rejected the rationales of both cases now relied upon by St. Paul, namely Auto-Owners Ins. Co. v. Holland, 832 So.2d 76 (Ala. Civ. App. 2002), and State Farm Mut. Auto. Ins. Co. v. Carlton, No. 2991014,  (Ala. Civ. App. May 11, 2001), aff'd on other grounds, No. 1001781 (Ala. Apr. 11, 2003).  The Court held that assuming that Frazier meets the definition of an "insured" under the St. Paul automobile insurance policy and assuming that no policy exclusion applies, nothing in the Alabama Workers' Compensation Act would bar Frazier from recovering the uninsured-/underinsured-motorist benefits to which he may be entitled under the St. Paul automobile insurance policy issued to Charter.)
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• UBS PaineWebber, Inc. v. Brown,

No. 1020524  (Ala. Oct. 10, 2003)
(arbitration; E. Walton Brown opened a brokerage account with J.C. Bradford in November 1999.  At that time, Glenn E. Brandon was working for J.C. Bradford.  J.C. Bradford was subsequently acquired by PaineWebber Group, Inc., the parent company of UBS PaineWebber, Inc. ("PaineWebber"), in the spring of 2000.  In the acquisition, which was closed on June 9, 2000, J.C. Bradford Acquisition Company, an acquisition subsidiary of PaineWebber Group, Inc., merged with J.C. Bradford; J.C. Bradford continued to exist as a limited liability company and became a wholly owned subsidiary of UBS Americas, Inc., which also owns PaineWebber.  The agreement Brown executed when he established his brokerage account with J.C. Bradford contained an arbitration clause, and there was also an arbitration agreement in materials PaineWebber contends it sent to Brown on July 3, 2000, days before the transactions that form the basis for this action.   PaineWebber contends that, as a result of corporate restructuring, it acquired all of the accounts of J.C. Bradford's customers and that it sent Brown two "negative consent" letters notifying him of that fact, as well as a "disclosure brochure" and a master account agreement that  contained the arbitration clause PaineWebber contends governs Brown's transactions.  Brown sued Brandon and PaineWebber.  In his complaint, Brown alleged that Brandon, acting as an agent of PaineWebber, made unauthorized and unsuitable purchases of securities for Brown's account and refused to sell the securities when Brown asked him to do so.  PaineWebber moved to compel arbitration.  Brown denied that he received from PaineWebber either a copy of the negative consent letters, the disclosure brochure, or the master account agreement.  Brown also contended that the brokerage agreement entered into between Brown and J.C. Bradford, on which PaineWebber partially relies, was not properly modified in accordance with the terms of that agreement.  The trial court denied the motion to compel arbitration.  HOLDING:  The Supreme Court reversed.  The Court concluded that Brown received the master account agreement and notice of the arbitration clause contained in that document.  The Court held that Brown's continuation of his relationship with PaineWebber precludes his denial of acceptance of the terms of the PaineWebber agreement, which unambiguously covers preexisting disputes.)
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• East Alabama Behavioral Medicine, P.C. v. Chancey,

No. 1020828 (Ala. Oct. 10, 2003)
(vicarious liability under the doctrine of respondeat superior; vicarious liability under the doctrine of ratification; In August 1996, Phillip Chancey sought treatment from East Alabama for depression, anxiety, and panic attacks.  Dr. Kimberly Whitchard was Phillip's treating psychologist.  On December 23, 1996, Whitchard and Phillip met for drinks at a local restaurant following a therapy session.  While at the restaurant, the two expressed romantic feelings for each other.  According to East Alabama, Whitchard  informed Phillip that same night that if she and Phillip engaged in a personal relationship she would need to terminate their psychologist-patient relationship.  The Chanceys assert that the psychologist-patient relationship between Phillip and Whitchard did not end until December 26, 1996.  Nonetheless, Phillip never objected to the termination of the professional relationship, and it is undisputed that that relationship ended no later than December 26, 1996.  On December 28, 1996, Phillip sent messages to the pager Whitchard used in conjunction with her work at East Alabama, expressing his love for her.  Somehow, the messages were faxed to East Alabama on December 30.  Upon receiving these messages, the administrators of East Alabama, Ed Sweeney and Joe Beacham, learned about Phillip's infatuation with Whitchard and confronted Whitchard about the matter.  Sweeney and Beacham instructed Whitchard to end all contact, both personal and professional, with Phillip.  Furthermore, Sweeney and Beacham prepared a letter for Whitchard to send to Phillip informing him that Whitchard would no longer be his psychologist and that, if he wished to continue treatment at East Alabama, Phillip's case would be assigned to Eddie Lancaster.  Phillip declined further treatment and never returned to East Alabama.  Whitchard testified at trial that Sweeney and Beacham told her during her meeting with them on December 30, 1996, to change Phillip's medical records to make it appear as though he had expressed feelings for her during a treatment session and that she had then discussed the limits of a therapeutic relationship with him.  Sweeney and Beacham conceded that Phillip's medical records had been altered, but denied that they instructed Whitchard to do so.  By mid-January 1997, approximately three weeks after the termination of their professional relationship, Phillip and Whitchard were sexually involved.  A friend of Beth Chancey, Phillip's wife, saw Whitchard and Phillip together, and she told Beth.  Beth then asked Phillip to leave the marital home.  At that time, Whitchard, who was also married, told her husband that she was leaving him for Phillip.  On January 18, 1997, Whitchard met with  Beacham and Sweeney at Beacham's home to tell them that she and Phillip were still involved in a personal relationship and that she was resigning from her position at East Alabama.  Shortly after Whitchard's resignation, Phillip ended the affair and sought treatment from another physician.  In March 1997, after the affair had ended, Whitchard returned to East Alabama and requested that she be rehired.  Sweeney and Beacham agreed to rehire Whitchard under the condition that she undergo a psychiatric evaluation and, if necessary, psychiatric treatment.  Also, if she was rehired, Whitchard would be restricted to treating only female patients.  Phillip and Beth Chancey sued Whitchard and East Alabama alleging negligent or wanton hiring, training, and supervision; negligent or wanton counseling; negligent or wanton "abandonment"; and negligence or wantonness per se; Beth Chancey alleged loss of consortium.  East Alabama filed a motion for a summary judgment.  The Chanceys, in response to East Alabama's motion for a summary judgment, conceded that the entire basis for East Alabama's liability was the doctrine of respondeat superior and the agency relationship that existed between Whitchard and East Alabama. The trial court granted East Alabama's motion for a summary judgment as to the claims asserting negligent hiring and supervision.  The Chanceys then filed a second amended complaint alleging the alteration or destruction of medical records.  The Chanceys entered into a pro tanto settlement with Whitchard, settling all their claims against her for $5,000.  The case against East Alabama on the remaining claims against it proceeded to a jury trial.  At the close of the Chanceys' case, East Alabama moved for a preverdict JML, which the trial court denied.  The jury returned a verdict in favor of the Chanceys awarding them $1 each in compensatory damages and a total of $495,000 in punitive damages.  East Alabama then filed a postjudgment motion for a JML, or, alternatively, for a new trial, or a remittitur, primarily asserting that the issues of vicarious liability, ratification, and abandonment should not have been submitted to the jury because, as a matter of law, East Alabama cannot be held liable for Whitchard's tortious conduct.  The trial court denied the motion.  HOLDING:  The Supreme Court reversed.  The Court held that the trial court erred in refusing to grant the motions for JML.  The Court held that Whitchard's affair with Phillip was not a function of her employment at East Alabama.  The Court also held that the doctrine of ratification cannot form the basis for liability on the part of East Alabama.  The Court noted that the case was not tried on the basis of direct liability on the part of East Alabama because the jury was instructed that East Alabama could not be liable to the Chanceys if they found that Whitchard was not acting within the line and scope of her employment.  The Court held that, assuming the Chanceys' claim for direct liability against East Alabama was properly before it, it concluded that it fails as a matter of law.)
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• Morris v. Cornerstone Propane Partners, L.P.,

No. 1020949 (Ala. Oct. 10, 2003)
(res judicata; privity; "virtual representation"; In a previous proceeding in the Calhoun Circuit Court certain named plaintiffs who were poultry farmers and members of the Calhoun County Poultry Association ("the McDill plaintiffs") asserted claims of breach of contract and fraud arising from an alleged agreement by Cornerstone Propane and Dean ("the propane defendants") to sell propane to the McDill plaintiffs at a stated price.  The case was tried, and the trial resulted in a judgment for the propane defendants.  Although the McDill proceeding was initiated on behalf of a putative class, it was not certified as a class action.  The Calhoun County Poultry Association ("the Association") was named as a plaintiff in the McDill proceeding, but before the trial began in that case, the trial court limited the plaintiffs to the individuals named in the caption of the complaint.  Stanley Morris and other new plaintiffs who were not named in the McDill proceeding ("the Morris plaintiffs") have filed the instant action seeking essentially the same relief against the same propane defendants.  The Morris plaintiffs are also poultry farmers and members of the Association.  After the propane defendants moved for a summary judgment in this action, asserting the defense of res judicata based on the outcome of the McDill proceeding, the trial court entered a summary judgment in their favor. HOLDING:  The Supreme Court reversed.  The Court concluded that the defense of res judicata does not apply to this case because the fact that the Morris plaintiffs were members of the same association to which the McDill plaintiffs belonged does not constitute a sufficient basis for concluding that the essential element of privity between the parties in the McDill proceeding and in this proceeding exists.
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• United Wisconsin Life Ins. Co. v. Tankersley,

No. 1021128 (Ala. Oct. 10, 2003)
(arbitration; scope of arbitration agreement; United Wisconsin Life Insurance Company is an insurance underwriter and the issuer of the health-insurance policies involved in this action.  Its  principal place of business is in Wisconsin.  American Medical Security, Inc. serves as the administrator of the United Wisconsin policies; American Medical's principal place of business is also in Wisconsin.  The plaintiffs in the underlying action, Ruth Shuniak, Susan N. Tankersley, Nathaniel Miller, Debbie Miller, and Gregory Shockley (hereinafter referred to collectively as "the plaintiffs") are all individual residents of Alabama.  The various plaintiffs completed applications for health insurance under a group policy with United Wisconsin.  American Medical approved the applications in Wisconsin and sent an insurance certificate entitled "Certificate of Group Insurance" and a group insurance policy to each plaintiff shortly after completion of the application.  At some point, United Wisconsin issued a rider to the policy; the rider added an arbitration provision to the policy.  In their complaint, the plaintiffs allege that they are all current or former policyholders of a United Wisconsin group health-insurance policy, namely "Master Policy Number AB 2000."  The plaintiffs allege that United Wisconsin and American Medical, or presumably their agents, marketed this policy to the plaintiffs by representing that it was a group insurance policy and that the premiums charged the plaintiffs were or would be based on the group's claims experience.  The plaintiffs allege that beginning in 1998 and continuing throughout 2002, United Wisconsin and/or American Medical increased their premiums at various times in a manner that was not based upon the group's claims experience but upon their individual claims experience.  They assert claims of intentional, reckless, and/or negligent misrepresentation;  suppression; fraudulent concealment; conspiracy to mislead the plaintiffs concerning the premium increases and the actual basis of the premium charges, conspiracy to constructively cancel the policies of certain policyholders who made certain claims or who suffered from certain medical conditions, and conspiracy to improve the profit margin on the policies; breach of fiduciary duty; and breach of contract.  United Wisconsin and American Medical moved to compel arbitration of the plaintiffs' claims.  The trial court denied United Wisconsin and American Medical's motion to compel arbitration.  HOLDING:  The Supreme Court affirmed.  The Court noted that the arbitration provision at issue in the present case is identical to the provision in United Wisconsin Life Insurance Co. v. Beaty, 775 So.2d 191 (Ala. 2000), and held, consistent with that case, that the scope of the arbitration agreement was limited to disputes regarding only claims for benefits made under the policy.  Thus, the Court held that the arbitration provision here is not broad enough to encompass the plaintiffs' claims.)
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• Ex parte State of Alabama (In re: Draper v. State),

No. 1021611 (Ala. Oct. 10, 2003)
(criminal; evidence; admission of evidence of a prior conviction; The Supreme Court denied the petition for writ of certiorari without opinion.  Justice Stuart wrote a dissenting opinion.)
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Opinions Released October 3, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  OCTOBER 3, 2003

 
• Bowen v. Security Pest Control, Inc.,

No. 1010783 (Ala. Oct. 3, 2003) (on application for rehearing; withdrawing and substituting opinion of February 28, 2003)
(arbitration; interstate commerce; This is a case in which the Supreme Court had originally reversed the trial court's order compelling arbitration by application of Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala. 2000).  On rehearing, the Court changed its decision and affirmed on the authority of the U.S. Supreme Court's disapproval of the Sisters of the Visitation standard in Citizens Bank v. Alafabco, Inc., 123 S. Ct. 2037 (2003).)
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--(The original, withdrawn opinion released in Bowen on Feb. 28, 2003, is also available on the website of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Royal Ins. Co. of Am. v. Thomas,

No. 1011518 (Ala. Oct. 3, 2003)
(insurance coverage; Certified Question from the United States District Court for the Northern District of Alabama; The certified questions relate to the coverage afforded Sandra Hill Thomas ("Thomas"), a customer of Carl Cannon Chevrolet-Olds, Inc. ("Carl Cannon"), by two insurance policies issued to Carl Cannon: a garage policy issued by Certain Interested Underwriters at Lloyd's of London ("Lloyd's London") and an umbrella policy issued by Royal Insurance Company of America ("Royal").  About October 9, 1998,  Carl Cannon lent a car to Thomas while Carl Cannon repaired Thomas's car. On October 13, 1998, Thomas was driving the Carl Cannon car when it collided with another car occupied by Velma Daniel ("Daniel"). To recover for injuries she suffered in the collision, Daniel sued Thomas and Carl Cannon in the Walker Circuit Court. The Walker Circuit Court entered a summary judgment for Carl Cannon.  The Lloyd's London and Royal policies constituted Thomas's only potential sources of liability insurance for the collision. Lloyd's London contended that Section II, paragraph A.1.a.(2) of the Lloyd's London garage policy ("the exclusion") excluded Thomas as an insured unless she either had no other available primary, excess, or contingent insurance or had insufficient coverage under such insurance to meet the $20,000 minimum required by the Motor Vehicle Safety-Responsibility Act, Ala. Code §32-7-1 et seq., ("the Act"). Lloyd's London further contended that, if Thomas did not have other available primary, excess, or contingent insurance or had insufficient coverage under such insurance to meet the $20,000 minimum required by the Act, then the exceptions to the exclusion preserved coverage for Thomas under the Lloyd's London garage policy but limited the coverage to the amount necessary for her to meet the $20,000 minimum required by the Act.  The exclusion and the two exceptions to the exclusion appear within the subsection of the Lloyd's London garage policy defining "who is an insured" under the policy. After that subsection of the policy initially defines "insured" as including Carl Cannon and anyone else while using a Carl Cannon car with the permission of Carl Cannon, the exclusion then excludes customers of Carl Cannon. The two exceptions to the exclusion then preserve coverage for customers who either have no other available primary, excess, or contingent insurance or have insufficient coverage under such insurance to meet the $20,000 minimum required by the Act.  To resolve the coverage disputes, Royal sued Thomas, Daniel, and Lloyd's London for a declaratory judgment in the federal district court. Thomas, whom neither Lloyd's London nor Royal provided with counsel for the coverage disputes, depended on Daniel to advocate Thomas's rights to coverage under the policies. After Royal moved for a partial summary judgment and Lloyd's London cross-moved for a summary judgment, the federal district court certified the following questions:  "1. Is the exclusion or limiting clause contained in Section II, paragraph A.1.a.(2) of the Lloyd's Garage Liability Policy issued to Carl Cannon Chevrolet-Olds, Inc., as the insured's primary liability coverage, valid under Alabama law? Put another way, does the Alabama law allow an insurer to limit its exposure under a so-called 'garage' policy by reducing its liability limit to the statutory minimum in cases in which a permitted driver qualifies as an 'insured,' but does not possess automobile liability coverage?" and "2. Depending upon the answer to question 1, what coverage, if any, is provided to the driver of the automobile that was furnished by Carl Cannon Chevrolet-Olds to her under the language of Section VI.6 of Royal's Big Shield Commercial Catastrophe Liability Policy?" HOLDING:  The Supreme Court answered the first certified question in the affirmative for the time pertinent to this case.  As to the second question, the Supreme Court concluded that because Thomas does not have "underlying insurance" and the Royal policy affords primary coverage to Thomas instead of excess  coverage, the drop-down provision does not apply to the coverage Royal owes Thomas.  That is, the Court held that (a) the Lloyd's London garage policy exclusion validly excludes Thomas as an insured under that policy, (b) the Royal umbrella policy affords Thomas primary coverage for the collision, and (c) the drop-down provision in the Royal policy has no application to the coverage for Thomas under the Royal policy.)
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• Eagle Products, Inc. v. Glasscock,

No. 1020206 (Ala. Oct. 3, 2003)
(claims of breach of contract, misrepresentation of facts, and deceit; excessive damages; judgment as a matter of law; John Glasscock sued Eagle Products, Inc. (hereinafter "Eagle"), alleging claims of breach of contract, misrepresentation of facts, and deceit.  The case proceeded to trial on June 17, 2002.  The dispute centered around a distributor agreement in which Glasscock became a distributor of Eagle products.  Eagle manufactures premium dog food and pet supplies.     At the close of Glasscock's case, Eagle moved for a judgment as a matter of law ("JML").  The trial court granted Eagle's motion for a JML "as it relate[d] to fraud and den[ied] as it relate[d] to the contract."  Eagle rested its case without calling any witnesses and then renewed its motion for a JML on the breach-of-contract claim; the trial court denied the motion.  The jury returned a verdict in favor of Glasscock and awarded him $500,000 in damages.  Eagle filed a postverdict motion for a JML, or, in the alternative, a new trial, which it subsequently amended to request, in the alternative, a remittitur.  The trial court denied Eagle's posttrial motion.  HOLDING:  The Supreme Court reversed and rendered a judgment for Eagle.  The Court held that the distributor contract was terminable at will.  The Court noted that in 1996 Eagle notified Glasscock, initially by letter and then in person, that in order to retain his distributorship status, Glasscock would have to meet specified criteria.  Glasscock testified that he did not meet many of the required criteria, and in July 1996 Eagle notified Glasscock that he was being classified as a direct-buy account, rather than as a distributor.  Glasscock conceded at trial that he knew at the time that Eagle's opinion was that he was no longer their distributor.  The Court noted that at trial, Glasscock did not dispute that Eagle had the right to sever the distributorship agreement, he argued only that in doing so it did not comply with the terms of the contract. Under the distributorship agreement between Glasscock and Eagle, in the event Eagle severed the distributorship relationship, Eagle was required to "pick up and pay for any product that [was] dated not more than 90 days old."  Glasscock testified that he knew that Eagle could terminate the distributorship "if they bought back the product from [him]."  Glasscock testified that he did not have any product less than 90 days old at the time he received the July 1996 letter. The Court concluded that, therefore, at the time Eagle terminated the relationship, July 11, 1996, there was no product Eagle was required to buy back in conjunction with the termination of Glasscock's distributorship status, and Eagle effectively terminated the distributorship agreement by notifying Glasscock of his direct-buy classification in Hurst's July 1996 letter.)
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• Ex parte Patel,

No. 1020364 (Ala. Oct. 3, 2003)
(on application for rehearing; criminal; capital offense; The Court overruled the application for rehearing without opinion.  Justice Houston wrote a concurring opinion stating that he would revise the portion of the opinion in which the Court quoted from Roan v. State, 24 Ala. App. 517, 137 So. 320 (1931), in order to clarify that, under the circumstances presented here, the State has the burden of proving that the crime was committed and showing "facts that would convince the judge that upon final trial the judge would sustain a verdict pronouncing the defendant guilty and imposing the death penalty [or a sentence of life imprisonment without parole].")
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--(The original opinion released May 23, 2003, in Patel is also available on the website of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Ex parte Tomlin,

No. 1020375 (Ala. Oct. 3, 2003)
(criminal; capital murder; death penalty; sentencing; jury override; On January 2, 1977, the bodies of Richard Brune and Cheryl Moore were found on an exit ramp from I-10 in Mobile County.  Both had died as the result of multiple gunshot wounds.  In 1999, Phillip Wayne Tomlin was convicted, for the fourth time, of the intentional murders of Brune and Moore, an offense made capital because two people were intentionally killed pursuant to one act or a series of acts.  See Ala. code §13-11-2(a)(10) (repealed).  The jury at Tomlin's fourth trial was not asked to make a sentencing recommendation.  Instead, the parties stipulated that the jury at Tomlin's third trial, by a vote of 12-0, had recommended that Tomlin be sentenced to life imprisonment without the possibility of parole.  After a sentencing hearing, the trial court overrode the jury's recommendation and sentenced Tomlin to death.  In its sentencing order, the trial court found only one aggravating circumstance: "The only aggravating circumstance ... in this case is the one contained in the definition of the capital offense itself: that [Tomlin] committed murder in the first degree wherein two human beings were intentionally killed by the defendant by a series of acts."  While the trial court found no statutory mitigating circumstances, it found several nonstatutory mitigating circumstances.  The Court of Criminal Appeals affirmed Tomlin's conviction and sentence.  The dispositive issue in the petition for writ of certiorari is whether the decision of the Court of Criminal Appeals conflicts with the Alabama Supreme Court's decision in Ex parte Carroll, No. 1010546 (Ala.  July 26, 2002).  HOLDING:  The Supreme Court reversed. The Court concluded that, under the circumstances presented here, the trial court's override of the jury's recommended sentence of life imprisonment without parole and that court's subsequent sentence of death were improper because the court did not give proper deference to the unanimous jury recommendation.)
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• Mobile Airport Authority v. HealthSTRATEGIES, Inc.,

No. 1020376 (Ala. Oct. 3, 2003)
(stop-loss insurance; claims of unjust enrichment, money had and received, and quasi-contract, among others; The Mobile Airport Authority ("MAA") offers health-insurance coverage to its employees and certain dependants of its employees through its self-funded employee health-care plan.  MAA bears all of the risks and financial obligations associated with funding benefits under its health-insurance plan. MAA sought to acquire a stop-loss insurance policy to limit its financial exposure under its health-insurance plan. Stop-loss insurance "protects a self-insured employer from catastrophic losses or unusually large health costs of covered employees."  MAA directed HealthSTRATEGIES, Inc. its third-party administrator ("TPA"), to obtain stop-loss insurance for it. HealthSTRATEGIES chose a product offered by Pan American Life Insurance Company ("PALIC").  PALIC did not provide stop-loss policies directly to those entities seeking such insurance. Instead, its stop-loss policies were issued by managing general underwriters, who were directly authorized by PALIC to issue such policies. The particular managing general underwriter that dealt with HealthSTRATEGIES in procuring stop-loss insurance for MAA was Sympson & Associates, Inc. ("SAI").  PALIC provided SAI with the forms necessary to issue its insurance policies, including applications for stop-loss insurance policies.  On July 1, 1998, HealthSTRATEGIES sent an application to MAA for a PALIC stop-loss insurance policy. The blanks on the application, which was drafted by PALIC, had been completed by Anthony Allen of HealthSTRATEGIES. MAA's representative signed the application, entitled "Application to Pan American Life Insurance Company for Aggregate and Specific Excess Loss Insurance" ("the application"), and submitted it to PALIC.  The application requested coverage for the period from July 1998 to June 1999. On the last page of the application is a blank for the signature of the applicant and a blank for a signature labeled "Acceptance by Carrier." No signature appears in the latter blank.  MAA paid premiums upon its application for the insurance  and every month during the period for which it requested coverage. MAA paid the premiums to HealthSTRATEGIES; HealthSTRAGEGIES would deduct its commission from the premium amount and would then pay SAI, which would also deduct a commission and then pay PALIC.  Following the submission of the application, SAI sent most of its communications regarding the policy to HealthSTRATEGIES. At some point, SAI assigned MAA a policy number -- PAL 6901. In a letter dated September 18, 1998, SAI requested several documents from HealthSTRATEGIES. In the letter, SAI stated, "[T]he purpose of this letter is to initiate the Binder/Issue process." The letter also stated: "SAI will require the following information in order to complete this file and issue the contract ... (1) Plan Document signed by the employer[,] (2) Medical Disclosure Statement[, and] (3) Sold Census ...."   An applicant must submit a plan document and a medical disclosure statement before PALIC will issue a policy.  The plan document is a comprehensive description of the medical benefits provided under a health-benefit plan to employees of the company seeking stop-loss insurance.  The stop-loss insurance coverage is defined in reference to the plan document.  In fact, the plan document is attached to and becomes part of the policy.  The medical disclosure statement is a document on which the employer's TPA, in this case HealthSTRATEGIES, or broker must list the names of beneficiaries under the company's health-benefit plan who fall into certain defined categories.  MAA, however, could not complete a medical disclosure statement form because federal privacy laws prevent an employer from having the information necessary to complete the form.  The medical disclosure statement gives the insurer the ability to exclude certain high-risk beneficiaries from stop-loss coverage. SAI's TPA manual states that "[b]efore coverage can be bound, the following  ... must be submitted to SAI within 15 days after proposed effective date of the new sold case: ... 8. Medical Disclosure Statement (Form DS-1) signed by the employer."  The medical disclosure statement form states: "The Plan Sponsor [MAA] further acknowledges, understands and agrees that this information may be used in evaluating and determining the acceptability of the Plan Sponsor's risk and that no coverage shall become effective until specifically agreed to in writing by the Underwriter."  In December 1998, MAA hired a new TPA, Bluebonnet Administrators of Jackson, Mississippi ("Bluebonnet"), and discontinued its relationship with HealthSTRATEGIES. In a letter dated February 26, 1999, from Mark Bieze, senior vice president of SAI, SAI responded to a letter from Bluebonnet.   In the February 26, 1999, letter, SAI stated, in pertinent part:  "4) The policy for this group cannot be issued because the following documentation remains outstanding: A) a copy of the signed plan document, and B) a completed disclosure statement. ...  Hopefully, the outstanding issues can be resolved quickly and to everyone's satisfaction. However, unless complete and satisfactory information is received in this office within ten days of the date of this letter, we will have no choice but to  send written notice of cancellation to the client."  The information requested in SAI's letter was never sent, and no "written notice of cancellation" was sent to MAA.  SAI sent a second letter to Bluebonnet on May 7, 1999. That letter stated: "In order to issue the policy on [MAA] we need the plan document signed by the employer and I have enclosed a medical disclosure form for you to complete."   SAI never received the medical disclosure statement or the plan document.  On June 9, 1999, July 8, 1999, and August 5, 1999, SAI faxed requests to Bluebonnet; those requests read: "In order to issue the policy for [MAA] we need the Medical Disclosure Statement and the Plan Document signed by the employer."   On August 5, 1999, SAI faxed a document to MAA for the first time; that document stated:  "In order to issue the policy for [MAA] I need the plan document signed by the employer and the medical disclosure statement. I am so sorry for the inconvenience but this is the only way I can issue this policy[.] I need the two above items taken care of. I am sorry I had been faxing [Bluebonnet] but [it] told me to contact you."  On October 7, 1999, SAI faxed another request to MAA requesting the same documents "[i]n order to issue the policy for MAA ... because we got a claim pending." At some point before October 7, 1999, MAA had filed a claim with SAI for stop-loss insurance coverage. MAA asserts that it filed the claim before it was aware that no stop-loss insurance policy had been issued by PALIC.  Finally, on October 18, 2000, PALIC sent a letter to MAA repeating SAI's request for "a signed copy of the plan document" so it could "issue the stop loss policy." PALIC requested the document because it wished to adjudicate the claim filed by MAA that had been pending since before October 7, 1999.  MAA asserts that it was not aware that it did not have a stop-loss insurance policy in place until after the desired coverage period. At that point, MAA had paid over $90,000 in premiums to PALIC.  On June 28, 2001, MAA sued HealthSTRATEGIES, SAI, and PALIC in the Mobile Circuit Court. Including the claims that are alleged in MAA's second amended complaint filed on June 22, 2002, MAA alleges equitable claims of unjust enrichment, money had and received, and quasi-contract against all the appellees; various tort claims against all the appellees; and a breach-of-contract claim against HealthSTRATEGIES. On May 31, 2002, PALIC and SAI filed motions for a summary judgment; HealthSTRATEGIES did the same on June 14, 2002. On September 30, 2002, MAA filed a motion for a partial summary judgment against all the appellees with respect to its equitable claims. On October 17, 2002, the trial court granted the appellees' motions for a summary judgment and denied MAA's motion for a partial summary judgment.  MAA appeals. HOLDING:  The Supreme Court reversed the trial court's summary judgment in favor of PALIC, SAI, and HealthSTRATEGIES.  The Court affirmed the trial court's denial of MAA's motion for a partial summary judgment, and the Court remand the cause for further proceedings.)
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• American National Red Cross v. ASD Specialty Health Care, Inc.,

No. 1020446 (Ala. Oct. 3, 2003)
(Certified Question from the United States District Court for the Southern District of Alabama:  "Whether the  [Alabama Uniform Fraudulent] Transfer Act, Ala. Code §§8-9A-1 et seq., includes blood products, as provided for in Ala. Code §7-2-314(4)."  Plaintiff Red Cross alleges that, during 1999, it entered into an arrangement with an individual named Peter Woolley and a company with which he was affiliated, LA Pharmaceutical, to sell blood products to LA Pharmaceutical, LLC ('LA Pharmaceutical'). Plaintiff further alleges that LA Pharmaceutical, through one of its principals, Peter Woolley, then transferred the blood products to certain of the defendants in violation of the Alabama Uniform Fraudulent Transfer Act ("AUTFA"). (A default judgment has previously been entered against LA Pharmaceutical and Peter Woolley, neither of which are defendants in this current action.)  The defendants (ASD Specialty Health Care, Inc.;  Midwest Drug Supply, LLC; and Raymar Worldwide Sales, Inc.) deny any liability under the AUFTA.  The defendants have also asserted that the AUFTA has no application in this case because the blood products in question are considered, for all purposes, to be a 'service' under Ala. Code §7-2-314(4) and, therefore, not 'property' under the AUFTA.  All parties agree that the blood products in question are governed by §7-2-314(4).  Plaintiff asserts that the AUFTA is applicable because the definition of 'property' under the AUFTA includes the blood products in question; however, defendants assert that the AUFTA is not applicable because the definition of 'property' under the AUFTA does not include services.  HOLDING:  The Supreme Court answered the certified question in the affirmative.  The Court reasoned that because §7-2-314(4) does not exclude blood products from the application of the AUFTA and because blood products "may be the subject of ownership," they are "property" for purposes of the AUFTA.)
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• Ex parte Bender Shipbuilding & Repair Co.,

No. 1020545 (Ala. Oct. 3, 2003)
( Longshoremen and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. ("the LHWCA"); fraud; preemption; In 1990, Faron Walley injured his upper back while he was working at Bender Shipbuilding & Repair Co.'s shipyard as a shipfitter for a company known as T.J. Adams, a subcontractor of Bender.  For the next two years, Walley was unable to work because of his injury.  During this time, T.J. Adams, through its workers' compensation insurance carrier, Liberty Mutual, paid for Walley's medical treatment and also paid Walley temporary disability compensation pursuant to the LHWCA.  Dr. James West, Walley's treating physician, eventually assigned him a 5% permanent impairment rating and released him for full-duty work with no restrictions in 1992.  After his release, Walley worked for the next three years as a shipfitter, welder, and fabricator for two companies other than T.J. Adams and Bender.  In 1995, Walley was again employed by a subcontractor to work at Bender's shipyard.  After approximately three months, however, Bender hired Walley to work directly for Bender.  At that time, Walley was examined by Bender's physician and was determined to be physically and mentally fit for work as a shipfitter.  On December 9, 1996, Walley injured his back while lifting a mooring hook on a ship at Bender's shipyard.  Walley informed his foreman of the injury and finished his shift despite the injury.  The next morning, Walley's back pain had worsened and he contacted his foreman, who told him to contact Vicki Wagner, an employee in Bender's safety department.  When Wagner asked Walley whether his injury was related to his 1990 upper-back injury, Walley stated that it might be, but that his entire back was hurting.  Conflicting evidence was introduced at trial as to whether Walley's December 1996 injury was a recurrence of his 1990 injury, as opposed to an aggravation of his 1990 injury or a new injury.  There was also conflicting evidence as to whether Bender understood and believed Walley's December 1996 injury to be a recurrence of his 1990 injury, rather than an aggravation of that injury or a new injury.  Although a December 18, 1996, entry by Dr. West on Walley's medical chart contains a statement that "[t]he patient states that this is related to his old injury and not [a] new injury," Dr. West's subsequent January 22, 1997, notes reflect his opinion that "this is an exacerbation of [Walley's] previous injury."  On January 22 1997, Dr. West again examined Walley and released him to return to work with a light-duty restriction.  Walley returned to Bender's shipyard and provided Wagner with his light-duty work release.  However, Walley testified that Wagner and Jere Davis, a safety and risk manager for Bender, discussed the release and told him that Bender had no light-duty work available.  Bender was self-insured under the LHWCA, and its light-duty work policy for partially disabled employees was in addition to its obligations with respect to compensation and medical benefits under the LHWCA.  Under the light-duty work policy, Bender paid an injured employee the full amount of his or her normal weekly wage when the employee engaged in light-duty work.  Employees receiving only temporary disability benefits under the LHWCA received payments equal to only a portion of their normal weekly wage.  Although T.J. Adams, through Liberty Mutual, initially paid for Walley's medical expenses resulting from his December 1996 injury, T.J. Adams refused to pay Walley's temporary disability benefits and eventually stopped paying his medical expenses.  In March 1997, Walley retained an attorney and filed a complaint against Bender with the United States Department of Labor.  Pursuant to its rights under the LHWCA, Bender initially contested Walley's claim.  However, after a June 1997 meeting between the Department of Labor, Bender, and Walley, Bender accepted the Department of Labor's finding that Bender was responsible for Walley's medical expenses and compensation benefits under the LHWCA.  Bender began paying Walley's medical expenses and, within a few weeks, also began paying Walley temporary disability benefits.  Bender thereupon also offered Walley light-duty work in accordance with its light-duty work policy.  Walley had no income between the date of his December 1996 back injury and June 1997, when Bender accepted responsibility for paying LHWCA benefits to Walley.  Dr. West released Walley to return to full-duty work effective September 1, 1997.  Although Bender paid Walley's medical expenses and also his LHWCA compensation benefits accruing after the June 1997 meeting with the Department of Labor,  it was not until July 1998 that Bender paid Walley the temporary disability benefits due for the period from his December 1996 injury until the June 1997 meeting.  Bender subsequently paid penalties assessed by the Department of Labor against Bender for its failure to make timely compensation payments in accordance with the LHWCA.  Walley was unable to pay his living expenses for several months after Dr. West released him for light-duty work in January 1997.  As noted, during the period, Bender did not pay Walley compensation benefits under the LHWCA and did not provide him with light-duty work.  As a result, Walley borrowed money from family and friends to pay his living expenses.  He also received assistance from community resources, and he eventually applied for and received food stamps.  Walley averted creditors' efforts to repossess his truck and to foreclose on his home by borrowing money from his family, including a $20,000 loan from his parents.  Because he had no source of income, Walley was unable to pay a court-ordered monthly child-support obligation for the benefit of his son.  Walley stated that his former wife attempted to have him held in contempt for his failure to pay child support and that she refused to let him exercise his visitation rights with their son until he had paid all of his child-support obligation.  After receiving that payment, Walley paid his past-due child-support obligation; he had been unable to visit with his son for approximately 18 months.  There was evidence introduced at trial indicating that Walley was so affected by his circumstances that, in May 1997, a neighbor had Walley hospitalized because he had not been eating and she was concerned about his being depressed.  In October 1997, Walley sued Bender in the Mobile Circuit Court alleging, in pertinent part, that Walley was entitled to an offer of light-duty work after he was released for such work in January 1997, but that Bender falsely represented to Walley that no light-duty work was available.  Walley alleged that as a result of Bender's alleged fraud, he suffered monetary losses and mental anguish; he requested both compensatory damages and punitive damages.  Bender filed a motion for a summary judgment arguing, among other things, that Walley's fraud claim was barred by the exclusivity provision of the LHWCA and also that, although some courts have recognized an intentional-tort exception to the LHWCA's exclusivity provision if the employer has specifically intended to injure the employee, Walley had failed to allege and offer evidence that Bender specifically intended to injure him.  The trial court denied Bender's motion.  The jury returned a verdict in favor of Walley and against Bender for $40,000 in compensatory damages, and the court entered a judgment on that verdict.  The Court of Civil Appeals affirmed.  HOLDING:  The Supreme Court reversed.  The Court concluded that the availability of a light-duty-work program, while not mandated by the LHWCA, is an economic benefit an employer can offer its employees in lieu of its obligation to pay temporary total disability benefits.  The Court reasoned that although the LHWCA does not require that such a benefit be provided, claims regarding the mishandling of an economic benefit such as light-duty work, made available to an employee as the employer's alternative means of complying with the LHWCA, would arise under the LHWCA.  The Court further concluded that, despite being labeled an "intentional fraud claim," Walley's claim is actually a claim alleging that Bender, intentionally or in bad faith, refused to award a benefit to him and, in so doing, intentionally inflicted emotional distress.  Thus, the Court held that Walley's claim against Bender for failure to confer a benefit offered only as a means of the employer's satisfying its obligations under the LHWCA is preempted and precluded.)
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• Providian Nat'l Bank v. Screws,

No. 1020668 (Ala. Oct. 3, 2003)
(arbitration; validity of the contract containing the arbitration provision; arbitration provision added to credit-card agreements by amendment; John Screws, Sheila Adams, Terry Person, Charles Richardson, and Gloria Shade (hereinafter referred to collectively as "the plaintiffs") sued Providian Financial Corporation, Providian National Bank, Providian Bank, and Providian Bancorp Services (hereinafter referred to collectively as "Providian") in the Barbour County Circuit Court.  The plaintiffs are current or former holders of a credit card issued by Providian National Bank. The complaint alleges that Providian violated its credit-card agreements with the plaintiffs and engaged in "unconscionable, unfair and fraudulent" business practices by charging higher than agreed to interest rates, charging for services and products not requested by cardholders, and improperly assessing late fees.  Providian National Bank notified holders of its credit card, including the plaintiffs, of a change in the terms of the credit-card agreement, inserting into the agreement an arbitration provision.  Providian notified its cardholders of this change in the terms of their credit-card agreements by enclosing a notice in the monthly billing statement.  Acceptance of the arbitration provision by the cardholder was not mandatory.  The notice enclosed within the monthly billing statement began by stating:  "This notice is to advise you that the following Arbitration Provision will be added to your Account Agreement (the 'Agreement'). The Arbitration Provision will become effective forty-five (45) calendar days after the Statement Date on the enclosed billing statement ... unless we receive prior to then a letter from you stating that you do not want the Arbitration Provision to become part of the Agreement.... If we receive such a letter on time, the Arbitration Provision will not become part of the Agreement, and the status of your Account will be unaffected by your rejection of the Arbitration Provision."  None of the plaintiffs rejected the arbitration provision. Approximately 15 months later, in August 2002, the plaintiffs filed this action.  Providian filed a motion to compel arbitration of all claims asserted by plaintiffs Screws, Richardson, and Shade.  The trial court denied the motion.  HOLDING:  The Supreme Court reversed.  The Court held that the plaintiffs' failure to reject the arbitration provision within 45 days of receiving notice that it was being added to their credit-card agreements amounted to acquiescence to include the arbitration provision in their credit-card agreements.  The Court also held that the arbitration provision is not unconscionable.)
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• Ex parte Tiffin,

No. 1020898 (Ala. Oct. 3, 2003)
(disqualification of attorneys; shareholder-derivative claims; individual claims by minority shareholders; standing;  The minority shareholders of Tiffin Motor Homes, Inc. ("TMH"), namely, J.M. Page, Darrell Harp, Grady Price, Ann Vincent, David D. Deaton, and Kathryn B. Deaton (hereinafter collectively referred to as the "minority shareholders") filed a 14-count complaint against TMH and the majority shareholders in TMH, namely Robert A. Tiffin, Jr., David Tiffin, Judy Tiffin, Timothy R. Tiffin, Van L. Tiffin, and Alex B. Tiffin (hereinafter collectively referred to as "the Tiffins").  The first nine counts of the complaint were shareholder-derivative claims, asserted on behalf of TMH, pursuant to Ala. R. Civ. P. 23.1, against the Tiffins in their official capacities.  The essence of those claims was that the Tiffins had breached various duties to the corporation by "causing the corporation to pay excessive prices for goods and services to entities connected to the Tiffin family, by usurping business opportunities, and by diverting incomes and profits to other related companies" ("the derivative claims").  The remaining claims were against the Tiffins in their individual capacities.  In those claims, the minority shareholders alleged that they had been "individually damaged by the [Tiffins'] actions."  More specifically, they averred that they had been "deprived of their just share of the corporate gains"; that the Tiffins had "siphoned off and diverted profits and dividends from [TMH]"; and that the Tiffins had "engaged in a systematic scheme or design to 'squeeze out' the minority shareholders of [TMH]" ("the minority-shareholder claims").  Sirote & Permutt, P.C. ("Sirote"), undertook to represent the Tiffins, individually, in the action, while the law firm of Bedford, Rogers & Bowling, P.C., represented TMH in the action.  On June 13, 2002, the trial court entered a partial summary judgment for the Tiffins disposing of the derivative claims; that judgment was made final pursuant to Rule 54(b), Ala. R. Civ. P., and is no longer reviewable by appeal.  On July 22, 2002, almost a year after the complaint was filed and more than a month after the entry of the partial summary judgment, the minority shareholders moved to disqualify Sirote from representing the Tiffins.  The motion alleged that "[a]t all times  relevant ..., [Sirote had] served as general counsel for [TMH]."  The motion also alleged that "in its capacity as counsel for TMH, [Sirote had] provided legal advice and performed legal services with respect to issues and transactions ... directly at issue."  It further alleged that Sirote's "continued representation" of the Tiffins constituted an "irreconcilable conflict of interest" with TMH, as prohibited by Rule 1.7, Ala. R. Prof. Conduct, and Rule 1.9, Ala. R. Prof. Conduct.  The Tiffins responded to the minority shareholders' motion to disqualify Sirote, arguing that because Sirote was representing only them, individually, in the litigation, the summary judgment on the derivative claims removed any purported conflict of interest.  The trial court granted the minority shareholders' motion, and entered an order disqualifying Sirote from representing the Tiffins.  Subsequently, the Tiffins filed this mandamus petition, challenging that order. HOLDING:  The Supreme Court granted the writ of mandamus.  The Court noted that,  as a general rule, courts do not disqualify an attorney on the grounds of conflict of interest unless the current or former client moves for disqualification, that the minority shareholders had not shown a reason why the general rule should not apply in this case.  The Court concluded that the minority shareholders lack standing to seek disqualification of Sirote.)
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• State of Alabama v. Norris,

No. 1020953 (Ala. Oct. 3, 2003)
(quo warranto; right to hold office by felon whose civil and political rights have been restored; The State of Alabama filed a quo warranto action to remove Huburt Norris from the office of sheriff in Fayette County ("sheriff").  The trial court entered summary judgment for Norris.  The sole issue presented by this appeal is whether, after a sheriff has been convicted of a felony and removed from office for such conviction by operation of Ala. Code §36-9-2, and thereafter has been pardoned with restoration of "all civil and political rights which were forfeited as a result of the aforesaid conviction(s)," the same Code section bars him from ever again holding the office of sheriff even pursuant to a new election, sought and won after the pardon, to a new term or part thereof.  HOLDING:  The Supreme Court affirmed.  The Court held that §36-9-2 does not bar the subsequent holding of the office pursuant to the subsequent election.)
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• Polaris Sales, Inc. v. Heritage Imports, Inc.,

No. 1021166 (Ala. Oct. 3, 2003)
(arbitration; forum-selection and choice-of-law clauses; unconscionability; Heritage and Polaris entered into an agreement pursuant to which Heritage was appointed as a dealer to sell certain Polaris products from its store in Fairhope and Polaris agreed to sell those Polaris products to Heritage for resale to retail customers ("the dealer agreement"). In the dealer agreement, Heritage and Polaris contracted to arbitrate the following:  "All disputes, controversies, and claims arising out of or in connection with the ... interpretation ... of this Agreement, or of any provision of this Agreement (including without limitation this arbitration provision and the arbitrability of any issue), or arising out of or in connection with any claimed duty, right, or remedy (whether arising under this Agreement or any statute, regulation, ordinance, or other rule of law or otherwise) relating to any of the foregoing ...."  This action began as an effort to collect money Heritage owed Polaris Acceptance ("Acceptance"), arising out of Heritage's failure to repay Acceptance for money Acceptance had advanced Heritage to purchase inventory from Polaris.  Heritage expanded the action by adding Polaris as a third-party defendant and asserting a cross-claim against Polaris and a counterclaim against Acceptance alleging intentional interference with a contract.  Heritage's cross-claim alleges that Heritage and a third party entered into a contract pursuant to which the third party agreed to purchase Heritage's recreational-vehicle dealership, its inventory, and its franchise rights.  This contract allegedly included a clause stating that the transaction was contingent upon Polaris's approval.  Heritage claims that Polaris intentionally interfered with this contract by inducing the third party to dishonor its contract with Heritage and to contract directly with Polaris.  Polaris moved the trial court to compel arbitration of Heritage's cross-claim, based on the arbitration provision in the dealer agreement.  The trial court granted Polaris's motion to compel arbitration and transferred the action to the administrative docket pending the completion of arbitration.  Approximately four months later, Polaris moved the lower court to dismiss Heritage's cross-claim against it on the ground that Heritage failed to prosecute its claim because it had failed to initiate arbitration proceedings.  In response to Polaris's motion to dismiss, Heritage moved the court to dissolve the stay and to reinstate the case on the active docket.  The court, in response to Heritage's motion, vacated its earlier order compelling arbitration.  Polaris appealed.  HOLDING:  The Supreme Court reversed.  The Court held that the requirement in the dealer agreement that the arbitration proceeding take place in Minnesota and under Minnesota law is not unconscionable.  The Court further held that the plain language of the agreement unquestionably shows that in this case Heritage and Polaris agreed to arbitrate the issue of arbitrability and,  therefore, any questions of arbitrability relating to Heritage's claim are for an arbitrator to decide.)
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• Ex parte Leasecomm Corp.,

No. 1021212 (Ala. Oct. 3, 2003)
(outbound forum-selection clause; fraudulent inducement; On June 8, 1999, Jeffrey R. Sisk, the owner of Southern Belle Quick Stop convenience store, executed a "Non-Cancellable Equipment Lease Agreement," pursuant to which he was to lease certain credit-card processing equipment from Leasecomm Corporation, a Massachusetts corporation registered to do business in Alabama.    The lease agreement contained the following paragraph just above Sisk's first signature on the front page, typed in boldface and underlined:  "The Parties hereby agree that this Agreement is made in, governed by, to be performed in, and shall be construed in accordance with the laws of the Commonwealth of Massachusetts.  They further consent and submit to the exclusive jurisdiction of the Courts of the Commonwealth of Massachusetts and expressly agree to such exclusive forum for the bringing of any suit, action or other proceeding arising out of their obligations hereunder, and expressly waive any objection to venue in any such Courts and waive any right to a trial by jury so that trial shall be by and only to the Court.  It is further agreed and understood that the corporate headquarters of Leasecomm Corporation is located within the venue of The District Court Department of the Trial Court within Middlesex County."  On January 3, 2002, after the credit-card processing equipment had malfunctioned and Leasecomm had refused to repair the equipment, Sisk sued Leasecomm in the Etowah Circuit Court, alleging fraud in the inducement, continuing fraud, misrepresentation, and breach of contract.  Leasecomm moved to dismiss the complaint or, in the alternative, to enforce the forum-selection clause in the agreement and transfer the case to an appropriate court in Massachusetts.   After a hearing, the trial court denied Leasecomm's motion without making any factual findings.  HOLDING:  The Supreme Court granted the writ of mandamus.  The Court concluded that Leasecomm has a clear legal right to the enforcement of the outbound forum-selection clause because Sisk did not clearly establish that Sisk was fraudulently induced to enter into the agreement containing the clause.)
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• Ex parte Dillard Dep't Stores, Inc.,

No. 1021239 (Ala. Oct. 3, 2003)
(discovery; On November 19, 2000, Carrie Hardrick and Tina Irwin, while shopping at a Dillard department store in Dothan, were detained by an off-duty Dothan police officer employed by Dillard as a security officer because the officer thought they were shoplifting.  No merchandise was found on their persons, and they were immediately released.  Thereafter, Hardrick and Irwin sued Dillard and the City of Dothan Police Department, alleging false imprisonment, intentional infliction of emotional distress, and assault.  The Dothan Police Department was subsequently dismissed as a party, leaving Dillard as the sole defendant.  On August 21, 2002, Hardrick and Irwin requested that Dillard, pursuant to Rule 34, Ala. R. Civ. P, produce documents in connection with a deposition.  Dillard did not object within 30 days.  The deposition was continued by agreement of the parties.  However, on September 11, 2002, Hardrick and Irwin refiled an identical request for production.  Dillard timely filed answers and objections to the September 11 request.  Hardrick and Irwin then filed a motion to compel the production of the requested documents, which the trial court granted on October 21, 2002, without holding a hearing.  At Dillard's request, the trial court immediately set aside its order.  Dillard informed the trial court that Hardrick and Irwin were seeking documents regarding (1) all actions filed against Dillard; (2) all claims that did not result in actions being filed; (3) all complaints and charges made by customers and noncustomers regarding mistreatment by employees of Dillard; (4) all customer complaints regarding the mistreatment of employees of Dillard by other employees; and (5) all records regarding current and former employees who had been accused of injuring, accusing, or detaining customers or other employees.  On March 24, 2003, after a hearing at which Dillard argued its objections to the motion to compel, the trial court reinstated the order compelling discovery.  HOLDING:  The Supreme Court granted the petition for writ of mandamus.  The Court declined Hardrick and Irwin's request that we look solely to Dillard's failure to respond to the first request and ignore the timely response to the second request, stating that Rule 34 does not specifically provide that a failure to respond within the time provided will result in a waiver of any objections.  The Court noted that Hardrick and Irwin made no attempt to defend the trial court's discovery order on its merits, choosing only to resist on the basis of procedural default.  The Court further noted that Dillard showed that there are more than 100 Dillard department stores throughout the United States from which Hardrick and Irwin are requesting  documents and that the documents they are requesting are irrelevant to this case.  The Court concluded that the burden imposed on Dillard by the discovery order is far out of proportion to any benefit Hardrick and Irwin would obtain from the information requested and that, therefore, the trial court exceeded its discretion in overruling Dillard's objections.  The Court left for the trial court the question whether discovery should be limited to Dillard stores in Alabama or to the Dothan store.)
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• Ex parte McNabb,

No. 1021528 (Ala. Oct. 3, 2003)
(criminal; appellate procedure; mandamus; request for payment for transcript; Ruben Corey McNabb was arrested and tried for robbery.  His trial resulted in a deadlocked jury and a mistrial.  McNabb's attorney filed a motion for extraordinary expenses to pay for a transcript of the trial.  McNabb's attorney stated that the transcript was needed for rebuttal and cross-examination in McNabb's second trial.  The cost of the transcript would have amounted to $800.  The trial court denied the motion.  McNabb petitioned the Court of Criminal Appeals for a writ of mandamus ordering the trial court to approve payment of a trial transcript.  The Court of Criminal Appeals did not address the merits of the petition.  Instead, the Court of Criminal Appeals transferred the petition to the Supreme Court to decide whether the Court of Criminal Appeals has jurisdiction to issue writs of mandamus addressing the payment of extraordinary trial expenses. HOLDING:   The Supreme Court returned the petition to the Court of Criminal Appeals because the transfer was improper. The Court held that McNabb's petition does not present an issue that should have been initially presented to the Supreme Court.  The Court held that because the Court of Criminal Appeals has jurisdiction to hear a petition for the writ of mandamus "in relation to matters in which said court has appellate jurisdiction" (§ 6.03), and because the right of a defendant to a fair trial if the requested transcript is not available is an issue as to which that court has appellate jurisdiction, the Court of Criminal Appeals has jurisdiction to deal with the issue presented in McNabb's petition filed before it.)
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