DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JUNE 28, 2002

 

Ex parte Gill,

No. 1000624 (Ala. June 28, 2002)
(right to public documents; petition by inmate Robert C. Gill for a writ of mandamus directing Morgan County Circuit Judge Sherrie W. Brown to vacate her denial of his requests for copies of certain documents and to order the circuit clerk of that county to copy the documents and to "forward" the copies to Gill at his address in the penitentiary; Gill mailed the circuit clerk a signed document requesting: "A copy of the Grand Jury Foreperson from 1980-2000, including the Race, Gender, and Age, Sex" and "A copy of the demographic data concerning members of Grand Jury including Race, Gender, and Age of the Spring Term 1995, Grand Jury No: 5591"; previously, Gill had made similar requests, and one of those previous requests had requested the names of the grand jury forepersons; Gill's requests referred to his case number CC-95-43.60, so the circuit clerk took Gill's requests to Judge Brown, who issued an order denying his requests; HOLDING: the Supreme Court denied the petition because Gill did not identify the particular writings to be copied, did not tender any payment for copies to be made, did not present himself at the circuit clerk's office or send an agent to inspect writings, to identify those to be copied, to make such copies, to pay the circuit clerk to make them, or to take delivery of them; the Court held that Ala. Code §36-12-40 expressly provides that "[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute" and that no statute denies this right to inmates or felons; the Court held that the races, genders, and ages of grand jurors are subject to disclosure, but the names, addresses, and occupations are not; the Court also held that Ala. Code §36-12-40 does not authorize a citizen to shift to the custodian of public writings the tasks of inspecting them and identifying the ones to be copied or the expense of copying those and does not require the custodian to undertake the burden and expense of mailing or otherwise delivering the copies; the Court held that any inspection of the writings and any identification of the ones to be copied must be performed by the citizen or his or her agent (simply another citizen) under such reasonable safeguards as the custodian may impose for the preservation of the writings; the Court held that the burden and expense of copying the writings and taking the copies must be borne by the citizen or his or her agent; the Court held that Ala. Code §36-12-40 does not entitle inmates to any relief from their incarceration or to any transportation to the custodian's office to inspect or identify documents and does not entitle them to free copies or to funds to pay for copies)
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Ex parte First USA Bank, N.A.,

No. 1000692 (Ala. June 28, 2002)
(petition for writ of mandamus denied without opinion; special concurring opinions by Justices Houston and Lyons; petition concerned trial court's discretion to permit an amendment to the complaint)
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Ex parte Wal-Mart Stores, Inc.,

No. 1001064 (Ala. June 28, 2002)
(petition for writ of mandamus denied without opinion; special concurring opinion by Justice Houston; petition concerned discovery dispute)
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Ex parte Ackles,

No. 1001294 (Ala. June 28, 2002)
(procedure for filing a writ of mandamus in the circuit court; right to public documents; inmate Moneek M. Ackles filed a petition for a writ of mandamus in the Talladega County Circuit Court seeking to compel the Clerk of the Talladega County Circuit Court to make certain allegedly public writings available for inspection and copying; Ackles's petition was not verified by affidavit; the circuit court dismissed the petition, and Ackles filed a petition for writ of mandamus with the Supreme Court; HOLDING: the Supreme Court denied the petition for writ of mandamus on the ground that the petition for a writ of mandamus filed in the Talladega County Circuit Court was not verified by affidavit as required by Ala. Code §6-6-640(a))
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Pratt Capital, Inc. v. Boyett,

No. 1001653 (Ala. June 28, 2002)
(amendment to pleadings; adding a defendant after judgment; the plaintiffs, Thomas Boyett and Nelda Boyett, individually and doing business as Prattville Roller Rink (hereinafter referred to collectively as "the Boyetts"), sued George Creel in the Autauga County Circuit Court; the Boyetts filed a motion for a summary judgment, alleging that, based on Creel's failure to respond to requests for admissions, there was no genuine issue of material fact and they were entitled to a judgment as a matter of law; subsequently, Creel, represented by attorney J. Myron Smith, responded to the request for admissions; just three days before the hearing on the motion for a summary judgment, Creel deeded the property that was the subject of the dispute to Pratt Capital; the president of Pratt Capital was Creel's attorney, J. Myron Smith; on April 25, 2000, the trial court entered a summary judgment for the Boyetts against Creel; on April 26, 2000, a certificate of judgment was issued; on May 25, 2000, Creel, appearing pro se, filed a motion to alter, amend, or vacate the judgment and for findings of fact; on June 6, 2000, the court denied the motion; Creel did not appeal; on September 13, 2000, the Boyetts filed an amendment to their original complaint, attempting to add as additional parties Pratt Capital, Inc., The People's Bank & Trust Co., and fictitiously named defendants A, B, C, and D; the Boyetts also filed a motion to set aside the transfer of the property by Creel to Pratt Capital, and they asked the court to perfect and enforce a lien on the property and to order its sale; the next day, the Boyetts filed a motion for an injunction preventing Pratt Capital and Creel from encumbering or transferring the property; Pratt Capital filed a motion to dismiss alleging that the plaintiffs' purported amendment to add it was a nullity because it was filed after judgment in the action; Pratt Capital also alleged that Pratt Capital, Inc., was improperly named as a defendant and also as a garnishee, and that the motion to set aside the transfer of property should have been filed in Elmore County, where the real property was located, rather than in Autauga County; the trial court enjoined Pratt Capital "from further encumbering, transferring etc. to subject property," set the motion to set aside the transfer for trial in Elmore County, and denied Pratt Capital's motion to dismiss; after trial, the trial court entered an order finding that the transfer of the property was fraudulent and setting the transfer aside; Pratt Capital appealed; HOLDING:  the Supreme Court held that, under the facts of this case, the Alabama Rules of Civil Procedure do not permit the trial court to allow the plaintiffs to amend their complaint to add additional defendants after a certificate of judgment has been entered; the Court reversed the trial court's orders entered after the judgment based on the amended complaint)
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Ex parte Maple Chase Co.,

No. 1001794 (Ala. June 28, 2002)
(discovery; costs; Maple Chase Company ("MCC") filed this petition for writ of mandamus seeking a writ directing the trial court to vacate its order requiring MCC to reimburse Keith Dickerson for the costs his counsel incurred in traveling to MCC's principal place of business in Downersgrove, Illinois, and MCC's production facility in Chihuahua, Mexico, to inspect and copy documents Dickerson requested from MCC, as well as costs incurred for translating the documents located at MCC's Mexico facility from Spanish to English; Dickerson sued MCC, asserting products-liability and breach-of-warranty claims against MCC, who manufactured the smoke detector located in Dickerson's apartment; the trial judge granted a motion to compel filed by Dickerson; after MCC provided supplemental discovery responses that Dickerson believed were inadequate, Dickerson filed another motion to compel and a motion for sanctions; the trial court entered an order requiring MCC to produce all documents relating to the model G smoke-detector" and "to produce all documents relating to the photo-electric and 'combo' smoke-detectors from January 1, 1988 to the date of the fire which is the basis of this lawsuit"; the trial court also ordered that MCC "shall pay the reasonable expenses incurred by the Plaintiff in traveling to and from Downersgrove, Illinois and Chihuahua, Mexico for the purposes of examining all documents concerning the smoke-detectors" and that MCC "shall pay the reasonable costs of employing a translator for use by the Plaintiff"; after a different trial court judge took over the case, MCC filed a motion for protective order, or to alter, amend, or vacate the discovery order; the trial court denied that motion; HOLDING: the Supreme Court granted the petition for writ of mandamus; the Court stated that it is a well-accepted principle that each party bears the ordinary burden of financing his own lawsuit, including its own pretrial discovery costs; the Court noted that while the prevailing party is permitted in the court's discretion to recover certain enumerated costs necessary to preparation and presentation of his case, this allocation only occurs after the suit is over; the Court held that a party cannot impose on the producing party the cost of translating documents from a foreign language; the Court held that the trial court abused its discretion when it ordered MCC to reimburse Dickerson for the costs associated with translating the documents produced by MCC; the Court held that the trial court exceeded its authority by requiring MCC to reimburse Dickerson's travel expenses to Illinois and to Mexico to examine and copy documents; the Court noted that if Dickerson prevails in this action, the trial court may, in its discretion, award Dickerson reimbursement of his costs of translating documents and his travel expenses)
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Ex parte Van Am. Ins. Co.,

No. 1001928 (Ala. June 28, 2002)
(forfeiture of performance bonds; reclamation of mined properties; Apex Coal Corporation and Warco, Inc. (the predecessor corporation of Gulf States Paper Corporation), entered into a mining-services contract in 1985; the Alabama Surface Mining Commission issued three mining permits to Apex for surface mining on land owned or leased by Gulf States; the 3 permits contained 14 mining areas or "increments," requiring 14 bonds; Van American Insurance Company and Clarendon National Insurance Company (hereinafter referred to collectively as "the sureties") posted the 14 performance bonds for the mining operations being performed by Apex, pursuant to the Alabama Surface Mining Control and Reclamation Act of 1981, Ala. Code §9-16-70 to -170, ("ASMCRA"); Apex ultimately did not comply with the reclamation requirements of the ASMCRA; the Commission issued a "show cause" order to Apex and the sureties, requesting them to show cause why the bonds should not be forfeited as to two of the three permits; the sureties, on behalf of themselves and Apex, filed a response, requested a hearing before the Commission's division of hearings and appeals, and filed a motion requesting that the Commission issue a "show cause" order to Gulf States, arguing that Gulf States was also liable for reclaiming the lands and that Ala. Code §9-16-95 provided them with a cause of action against Gulf States; the Commission's hearings division denied this request and entered orders revoking the two permits and ordering that the bonds be forfeited or, in the alternative, that Apex and/or the sureties submit to the Commission detailed reclamation plans; the sureties and Apex appealed the orders to the full Commission pursuant to Ala. Code §9-16-79(1)d.; the Commission affirmed and entered an order declaring the bonds forfeited and requiring Apex and the sureties to submit a detailed reclamation plan to the Commission for its approval; Apex and the sureties never submitted a reclamation plan; the sureties, on behalf of themselves and Apex, appealed the orders of forfeiture as to the first two permits to the Walker County Circuit Court naming as appellees the Commission and Gulf States; Apex never entered an appearance in its own behalf in the circuit court; the Commission and Gulf States filed motions for a summary judgment, which the trial court granted, upholding the orders of forfeiture issued by the Commission; the trial court entered a monetary judgment on the bonds without allowing the sureties the opportunity to reclaim the property in question at their own expense in lieu of paying the amount of the bonds; HOLDING: the Supreme Court noted that the statutory scheme favors but does not mandate efforts to secure voluntary compliance with the ASMCRA requirements; the Court held that the sureties did not have the absolute right under the statutory scheme to reclaim the property in lieu of paying the amount of the bonds; however, the Court noted that the statutes governing the reclamation of mined properties prohibit the circuit court in an appeal from modifying the remedy established by the Commission; thus, the Court held that because the Commission's final order affirmed the hearing officer's order, which provided, alternatively, that the sureties pay the amount of the bonds or submit a detailed reclamation timetable outlining the immediate steps for reclamation of the area, subject to the Commission's approval, the circuit court erred in modifying the Commission's order to require the sureties to pay the amount of the forfeited bonds without the option of reclamation)
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Chesser v. AmSouth Bank, N.A.,

No. 1002021 (Ala. June 28, 2002)
(arbitration; interstate commerce; waiver; nonsignatory; William T. Chesser purchased a used 1995 GMC truck from Premiere Chevrolet, Inc.; AmSouth Bank financed the purchase of the truck; when he finalized the necessary paperwork to complete the sale, Chesser executed a buyer's order, an installment sales contract and security agreement, and an application for credit-disability and credit-life insurance coverage from Protective Life Insurance Corporation of Alabama; the buyer's order, the retail installment contract, and the certificate of insurance Chesser received when he applied for the credit-life and credit-disability insurance coverage all contained separate arbitration provisions; seven months after he purchased the truck, Chesser underwent heart surgery and was unable to continue making the installment payments due on the AmSouth loan; Chesser contacted Premiere Chevrolet and told them that he wished to make a claim for benefits under the credit-disability policy he had purchased from Protective Life when he purchased the truck; Premiere Chevrolet forwarded Chesser's claim to Protective Life; Protective Life subsequently denied Chesser's claim and refunded to AmSouth, as the lienholder on the vehicle, the $1,141.38 premium; AmSouth subsequently repossessed the truck; Chesser maintains that although AmSouth received the refunded premium before it repossessed the truck, AmSouth failed to apply the refunded premium to the arrearage he owed on the loan; Chesser sued AmSouth and Protective Life alleging breach of contract, fraud, negligent failure to obtain insurance, wrongful possession and conversion, and bad-faith refusal to pay; AmSouth moved to stay the action pending arbitration or, alternatively, to dismiss the action; Protective Life answered the complaint, denying all allegations; the trial court granted AmSouth's motion to compel arbitration; although Protective Life's attorneys had previously notified Chesser that it would not seek to enforce the arbitration provision contained in the certificate of insurance, it moved for a joint and consistent disposition after being served with the other parties' motions to compel arbitration; the trial court granted Protective Life's motion and dismissed the action; HOLDING: the Supreme Court held the defendants met their burden of proving that the transaction had a substantial effect on interstate commerce because the credit-life and credit-disability insurance was purchased by Premier Chevrolet's forwarding a check to Protective Life in California, because the extended service contract was purchased by Premier Chevrolet's forwarding a check to "MS Dealer Service Corporation," which is headquartered in Florida, and because, in compliance with the retail installment agreement, Chesser obtained comprehensive and collision insurance from State Farm Insurance, which is headquartered in Illinois; the Court therefore affirmed the trial court's order compelling Chesser to arbitrate his claims against AmSouth; the Court held, however, that unlike AmSouth, Protective Life expressly waived its right to arbitrate any claims Chesser made against it under the arbitration provision in the certificate of insurance; the Court also held that Protective Life could not compel arbitration under the arbitration provision in the retail installment contract because it was a nonsignatory to that contract, it did not argue it was a third-party beneficiary of that contract, and Chesser's claims against Protective Life were not "intertwined with" and "related to" the retail installment contract; accordingly, the Court reversed the trial court's order insofar as it compels arbitration of Chesser's claims against Protective Life)
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Conseco Fin. v. Murphy,

No. 1002054 (Ala. June 28, 2002)
(arbitration; interstate commerce; unconscionability; Norman D. Murphy and Vicky C. Murphy consolidated several debts by obtaining a loan from Conseco Finance Corporation-Alabama ("Conseco"); They executed a loan application and a note with Conseco's agent, Carlos D. Tyler; the loan application listed the names and the out-of-state addresses of creditors who were to be paid from the proceeds of the loan the Murphys received from Conseco; the note provided that the Murphys repay the loan by paying $513.42 per month from February 2, 2000 through January 2, 2020 to "Conseco Finance, 7360 South Kyrene Road, Tempe, AZ 85283"; the note contained an arbitration provision; eleven months later, the Murphys executed an agreement to extend the maturity date of their loan from January 2, 2020 to March 2, 2020; extension agreement named "Conseco Finance Corp.–Alabama" as the creditor, but a header on the agreement contained the following name, address, and telephone number:  "Conseco Finance Servicing Corp., 7360 S. Kyrene Road, Tempe, Arizona, 85283-4583, 888-315-8733"; the Murphys sued the defendants Conseco Finance Corporation, Conseco Finance Corporation-Alabama, and Carlos D. Tyler for fraudulent misrepresentation and fraudulent deceit; the defendants moved to compel the Murphys to arbitrate their claims; the trial court denied the motion to compel arbitration; HOLDING: the Supreme Court held that Conseco satisfied its initial burden of establishing that the loan substantially affected interstate commerce so that the Federal Arbitration Act ("FAA") governs the transaction; the Court held that the Murphys failed to satisfied their burden of proving their affirmative claim of unconscionability, which they asserted to avoid operation of the arbitration provision)
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Bama's Best Housing, Inc. v. Hodges,

No. 1002057 (Ala. June 28, 2002)
(arbitration; Stephen Hodges met with Gary Taunton of Bama's Best Housing, Inc.; Hodges executed credit applications, and Taunton began communicating with various lenders to obtain financing for Hodges's home purchase; although Hodges was dissatisfied with the amount of financing available and the interest rates Taunton had offered him, he told Taunton the type of mobile home he wanted, and Taunton ordered a Fleetwood mobile home from Fleetwood Homes of Georgia, Inc.; after Fleetwood delivered the home, Taunton and Hodges discovered that the home did not comply with several of Hodges's specifications; once Fleetwood had corrected the deficiencies, Taunton contacted Hodges about completing the transaction; Taunton contacted the lenders again in an attempt to secure more favorable financing for Hodges; thereafter, Hodges contacted Taunton and told him that he wanted to look elsewhere to see if he could secure a better price or better financing; because Hodges had not signed a contract to purchase the Fleetwood home, Bama's Best began to show the home to other customers, and another customer purchased the home; several days later, Hodges telephoned Taunton and told him that he still wanted to purchase the Fleetwood home because he had been unable to secure a better price from another dealer; Taunton ordered a home from Fleetwood that was identical to the home Hodges had previously ordered, and Taunton again attempted to secure financing to meet Hodges's needs; Hodges then signed a contract to purchase a Fleetwood mobile home from Bama's Best; Taunton stated that he informed Hodges that Hodges would be required to sign an arbitration agreement and according to Taunton, Hodges never expressed any unwillingness to do so; Hodges contended that Taunton did not tell him that he would be required to sign an arbitration agreement; Taunton mailed a copy of the arbitration agreement to Hodges for his signature; although Hodges admits that he received the arbitration agreement, he did not sign and return the agreement to Taunton; when Taunton and a delivery crew arrived at Hodges's property to deliver and set up the mobile home, Taunton presented Hodges with another copy of the arbitration agreement and requested that Hodges execute the document before the delivery crew set up the mobile home; Hodges became very angry, yelled at Taunton, and refused to sign the arbitration agreement; because Hodges refused to sign the agreement, Taunton advised the delivery crew not to set up the home, and Taunton left; after Taunton left, Hodges spoke with the delivery crew, which was still on the property, and Hodges then telephoned Taunton and consented to sign the arbitration agreement; Hodges signed the agreement, and the mobile home was delivered to him; Hodges sued Bama's Best and Taunton, alleging various counts of fraud, "continuing fraud," and breach of contract; Bama's Best and Taunton moved to stay the proceedings and to compel arbitration; the trial court denied the motion to compel arbitration; HOLDING: the Supreme Court held that the arbitration agreement Hodges signed clearly states that all claims or controversies arising out of or in any way relating to the sale of the mobile home and the negotiations leading up to that sale are subject to arbitration, and because Hodges's claims relate to his desire to purchase but one mobile home, and because the defendants' alleged failure to deliver the first home led to Hodges's purchase of the second home, Hodges's claims, even though they concern the first mobile home, arise out of or relate to the sale of the second home; the Court distinguished the case of  Ex parte Early, 806 So.2d 1198 (Ala. 2001), and rejected Hodges's claim that the signed the arbitration agreement under economic duress; thus, the Court held that the trial court erred by refusing to grant Bama's Best and Taunton's motion to compel arbitration)
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Ex parte Michael,

No. 1010237 (Ala. June 28, 2002)
(quashing the writ of certiorari without opinion; dissenting opinion by Chief Justice Moore; domestic relations case)
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Brookfield Constr. Co. v. Van Wezel,

No. 1010353 (Ala. June 28, 2002)
(arbitration; interstate commerce; dispute is between Alabama residents over the construction of a new residence for  Stephen H. Van Wezel and Nesta W. Van Wezel; the house was built by Mohommed Heyat, the owner of Brookfield Construction Company, a sole proprietorship; the defendants moved to compel arbitration on the basis of a provision in a "Limited New Home Warranty" issued by Brookfield to the Van Wezels; the trial court denied the motion; HOLDING: the Supreme Court held that the defendants failed to meet their initial burden of showing that the construction of the Van Wezels' residence was a transaction that substantially affected interstate commerce, under the five-part test adopted in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala. 2000); thus, the Court affirmed the trial court's denial of the motion to compel arbitration)
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Carpenter v. Mobile County,

No. 1010448 (Ala. June 28, 2002)
(wrongful-death action;  Dana Carpenter, the administratrix of the estate of a deceased prisoner of the City of Mobile, who died detained in the Mobile Metro Jail, a jail facility constructed and maintained jointly by the City of Mobile and Mobile County pursuant to the terms of an "Agreement Concerning Joint Jail Facility" ("the agreement") filed this wrongful-death action against Mobile County, the City of Mobile, and others; before the agreement was executed, both the City of Mobile and Mobile County operated separate jail facilities;  after the agreement was executed and after the joint jail facility was built, both the City of Mobile and Mobile County used the newly built facility, which was called the Mobile Metro Jail; the agreement was executed by Mobile County, the sheriff of Mobile County, and the City of Mobile; section "E" of the agreement is entitled "Responsibility of County" and states: "The County agrees to accept and provide for the secure custody, care and safekeeping of City prisoners in accordance with laws, standards, policies, procedures or court orders applicable to the operations of the joint jail facility"; the trial judge granted Mobile County's Rule 12(b)(6), Ala.R.Civ.P., motion to dismiss on the ground that Mobile County, by executing the agreement, did not assume a duty it did not have to assume under the laws of the State of Alabama; the trial court made the judgment final pursuant to the provisions of Rule 54(b), Ala.R.Civ.P.; HOLDING:  the Supreme Court held that it cannot agree with the trial court's determination that Mobile County was entitled to a dismissal pursuant to Rule 12(b)(6), because nothing in the pleadings explains what the "laws, standards, policies, or procedures or court orders applicable to the operations of the joint jail facility" must be; the Court held that because it cannot determine from the pleadings, as a matter of law, that Mobile County, in executing the agreement, did not assume a duty that it did not have to assume, it is constrained to hold that Mobile County has failed to meet its burden of showing that Carpenter can prove no facts in support of her claim that would entitle her to relief under some legally cognizable theory; the Court held that it should not be understood as holding that Mobile County may not be able to present evidence in support of a motion for a summary judgment, or at trial, to show that, in executing the agreement, it did not assume a duty it did not have to assume; the Court reversed the trial court's dismissal of Mobile County)
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Ex parte D.V.G.,

No. 1010695 (Ala. June 28, 2002)
(termination of parental rights; denying the petition for certiorari without opinion, but stating that the denial of certiorari review should not be construed as an expression of opinion on the holding by the Court of Civil Appeals that the mother's failure to appeal prior dependency orders foreclosed the dependency prong of the Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990), test for termination of parental rights and left at issue only the prong of whether there were any viable alternatives to a termination of parental rights)
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Ratliff v. Citizens Bank,

No. 1010763 (Ala. June 28, 2002)
(arbitration; affirmed without opinion; opinion by Chief Justice Moore concurring in part and dissenting in part)
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Palmore v. First Unum,

No. 1010802 (Ala. June 28, 2002)
(insurance; bad faith; employee benefits; ERISA; preemption; certified question from the United States District Court for the Northern District of Alabama: Is the Alabama tort of bad faith, as codified in Ala. Code §27-12-24, and as previously existed before its codification, a law which (a) is limited solely to insurers, and (b) constitutes a regulation of the insurance industry under Alabama law?; HOLDING: the Supreme Court declined to answer the certified question because, it held, that the crux of the certified question is the interpretation of the phrase "regulates insurance," and also that any relevant analysis of the phrase necessarily involves the interpretation of a federal statute, namely, 29 U.S.C. § 1144(b)(2)(A), ERISA's savings clause; the Court held that no answer that it could give would be determinative of the underlying cause because authoritative interpretation of federal statutory language is ultimately declared by the federal courts; the Court noted that the Eleventh Circuit has repeatedly (and very recently) held that, under its interpretation of the phrase "regulates insurance" as used in the ERISA savings clause (a federal statute), our tort of bad faith does not "regulate insurance" and therefore is not saved from preemption; the Court noted that in the most recent of these decisions the Eleventh Circuit reaffirmed this conclusion while assuming that our tort of bad faith is "limited solely to insurers"; thus, the Court held that it was being asked either 1) to interpret  federal statutory language with regard to Alabama's tort of bad faith using the relevant federal precedent (something that has already been authoritatively accomplished by the United States Court of Appeals for the Eleventh Circuit), or 2) to give a meaningless "Alabama interpretation" to a phrase found in a federal statute, which would have no binding force or effect in federal court)
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Belmont Homes, Inc. v. Law,

No. 1010854 (Ala. June 28, 2002)
(arbitration; merger clause; Zannie Law purchased from American Dream Homes ("ADH") in Monroeville a new mobile home manufactured by Belmont Homes, Inc. at its Mississippi facilities; as part of the purchase, Law executed on the same day two instruments: (1) an "Acknowledgment and Agreement" ("the agreement"), which was executed by Law, by a representative of ADH, designated in the Agreement as the "Retailer," and by Linda Conwill as "Controller," a representative of Belmont, and (2) a "Manufactured Home Retail Installment Contract and Security Agreement" (the "installment contract"), which was signed only by Law and by a representative of ADH; the agreement also contained an arbitration clause and a merger clause; the installment contract contained, in addition to the price of the mobile home and the terms of financing, both an arbitration  provision and a merger clause; Law sued Belmont and ADH; Belmont moved to compel arbitration referencing only the agreement and did not mention the installment contract; Law filed a response consenting to arbitrate according to the terms of the retail installment contract; the trial court entered an order holding that Belmont's motion to compel arbitration was due to be granted and ordered "that arbitration shall be held in accordance with the arbitration provision contained in the Retail Installment Contract and Security Agreement"; however, the trial court essentially agreed with Law that the retail installment contract includes the only available arbitration agreement; HOLDING: the Supreme Court held that the merger rule applies only to contracts between the same parties and that the "same-party" condition is not satisfied in this case because Belmont was not a party to the installment contract and did not rely on the installment contract for its right to arbitrate; it is on this ground that the Court distinguished this case from Ex parte Palm Harbor Homes, Inc., 798 So.2d 656 (Ala. 2001); thus, the Court held that the trial court erred in disregarding the agreement and ordering arbitration under the terms of the installment contract, to which Belmont is not a party)
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Fitts v. Stokes,

Nos. 1010945 & 1010946 (Ala. June 28, 2002)
(dispute over real estate; ejectment; effect of divorce judgment on joint tenancy with the right of survivorship; the real estate at issue in this action was deeded to Richard Fitts and his then wife, Betty Stokes, then Betty Gail Fitts, as joint tenants with right of survivorship; thereafter, Richard Fitts and Betty Stokes were divorced; the divorce judgment, which incorporated a settlement agreement, provided that Richard Fitts was to have Betty Stokes's name removed from the note and mortgage on the property and that Betty Stokes was to execute a quitclaim deed to Richard Fitts for her 1/2 interest in the property; the judgment further provided that if Richard Fitts is unable to get the Bank to remove Betty Stokes from the note and mortgage, then Richard Fitts must continue to make the payments and continue to hold Betty Stokes harmless for any liabilities thereon, and that in the event that Richard Fitts is unable to make the payments for whatever reason, then he will convey his interest in the house and property to Betty Stokes before foreclosure of the mortgage, and she shall be responsible for any remaining payments; nine months after the divorce judgment, Richard Fitts died; between the time of his divorce from Betty Stokes and his death, Richard Fitts married Wanda Fitts, and they were married at the time of his death; at the time of his death, Richard Fitts had not obtained the release of Betty Stokes from the note and the mortgage; Betty Stokes filed this action seeking to eject Wanda Fitts from the property; Betty Stokes claimed that the joint tenancy with right of survivorship she held with Richard Fitts was undisturbed by the divorce judgment; moreover, Stokes argued that because Fitts had died without having her name removed from the mortgage, she took his interest in the property by virtue of her right of survivorship; Wanda Fitts argued that the divorce judgment terminated the joint tenancy with right of survivorship between Betty Stokes and Richard Fitts and left them tenants in common, and she argued that, as the representative of Richard Fitts's estate, she took his one-half interest in the property upon his death and that Betty Stokes owned the other one-half interest in the property; the trial court found that Wanda Fitts and Betty Stokes each owned a one-half interest in the property as tenants in common, and the trial court ordered that the property be sold and the proceeds divided, even though neither party had requested that the property be sold and such was not provided for by the divorce judgment; both Wanda Fitts and Betty Stokes filed motions in the trial court to alter, amend, or vacate the order; the trial court denied both motions; both Fitts and Stokes appealed; HOLDING: the Supreme Court held that the divorce judgment in this case evidences an intent by Betty Stokes and Richard Fitts to sever their joint tenancy with the right of survivorship because the parties anticipated that Richard Fitts would gain the entire interest in the property upon the removal of Betty Stokes from the mortgage or that Betty Stokes would gain the entire interest in the property in the event that Richard Fitts was unable to make the mortgage payments and, moreover, the property settlement refers to each party's "one-half interest" in the property; however, the Court held that the trial court's order requiring the sale of the property constituted a modification of the earlier property settlement, and the Court held that the trial court lacked jurisdiction to modify the property settlement; thus, the Court affirmed the judgment insofar as it concluded that the joint tenancy between Richard Fitts and Betty Stokes was extinguished by the divorce judgment, but it reversed the trial court's judgment in all other respects; the Court held that the interests of the parties in the subject property must be governed by the applicable provisions of the divorce judgment)
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Ex parte Miles,

No. 1010971 (Ala. June 28, 2002)
(criminal; lack of timely notice of denial of petition for postconviction relief; due process; petition for writ of mandamus by an inmate, Bobby Miles, seeking an order directing the trial court to vacate its order denying his Rule 32, Ala.R.Crim.P., petition; Miles filed a petition for postconviction relief, pursuant to Rule 32; the State filed a motion to dismiss the petition; the trial court denied Miles's petition; Miles received notice of the trial court's denial of his petition by way of a mailing postmarked January 4, 2002, 49 days after the trial court's order was entered; on January 8, 2002, Miles filed a notice of appeal; on that same day he filed a petition for a writ of mandamus with the Court of Criminal Appeals; the Court of Criminal Appeals issued an order dismissing Miles's appeal, and later it entered an order denying Miles's petition for a writ of mandamus, without an opinion; Miles filed a petition for a writ of mandamus with the Supreme Court; HOLDING: the Supreme Court concluded that Miles's receipt of the trial court's denial of his Rule 32 petition 49 days after that order was entered was through no fault of his own, and the Court held that to not allow Miles an opportunity to file a notice of appeal under these circumstances would violate his clear legal right to procedural due process; the Court issued a writ of mandamus and directed the trial court (1) to vacate its November 16, 2001, order denying Miles's Rule 32 petition, (2) to enter a new order on Miles's petition, and (3) to provide Miles prompt notice of that order)
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Opinions Released June 21, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JUNE 21, 2002

 

Thompson Properties v. Birmingham Hide & Tallow Co.,

No. 1000215  (Ala. June 21, 2002) (on application for rehearing; withdrawing and substituting the opinion of Nov. 2, 2001)
(Alabama Uniform Fraudulent Transfer Act ("AUFTA"), Ala. Code §§8-9A-1 through -12; action seeking to set aside as fraudulent certain transfers of real property; the complaint alleged that Ron Rockhill, who was Eastern Valley Trading Company's president and the sole shareholder at the time, had transferred to Birmingham Hide & Tallow Company property held in the name of Eastern Valley, with the intent to frustrate the claims of Rockhill's creditors, including the Thompson Properties Partnerships ("the Partnerships"); the complaint further alleged that when the property was transferred from Eastern Valley to Birmingham Hide, Eastern Valley was the "alter ego and [a] mere instrumentality" of Rockhill, and it also alleged that Eastern Valley and Birmingham Hide conspired to defraud Rockhill's creditors; the trial court entered a default judgment against Eastern Valley and then certified the default judgment as final under Rule 54(b), Ala.R Civ.P., and no party appealed the default judgment; the trial court entered a summary judgment against the Partnerships and in favor of Birmingham Hide; HOLDING: the Supreme Court concluded that Eastern Valley was, for purposes of the AUFTA, a "debtor" at the time of the transfer, by virtue of the default judgment entered against Eastern Valley, in which the trial court declared that, at the time of the transfer, Eastern Valley was the alter ego and a mere instrumentality of Rockhill and that Eastern Valley was liable to the Partnerships for the judgments the bankruptcy court determined to be nondischargeable; the Court held that because of the trial court's declaration that Eastern Valley was the alter ego and a mere instrumentality of Rockhill, it did not recognize Eastern Valley as an entity separate and apart from Rockhill, and for purposes of the AUFTA, then, Eastern Valley and Rockhill could be considered "one and the same" at the time of the transfer; the Court held that, therefore, the transfer of the Eastern Valley Properties to Birmingham Hide was a transfer "made by a debtor" under the language of the AUFTA; the Court held that when the trial court entered the default judgment declaring that Eastern Valley was the alter ego and a mere instrumentality of Rockhill, and then certified its judgment in this regard as final, Birmingham Hide did not appeal, although Birmingham Hide was a named party to the action and was clearly a "party aggrieved" by the trial court's judgment declaring that Eastern Valley was Rockhill's alter ego at all times material to the Partnerships' claims under the AUFTA; the Court held that because Birmingham Hide failed to appeal that judgment, Birmingham Hide cannot now argue that it is not bound by the judgment; the Court held that even absent the trial court's declaration that Eastern Valley was the alter ego and a mere instrumentality of Rockhill, the Partnerships presented sufficient evidence to establish a genuine issue of material fact as to whether the transfer of the Eastern Valley Properties to Birmingham Hide was a transfer made by a debtor, by presenting evidence that when the property was transferred to Birmingham Hide, Rockhill retained an "undocumented interest" in the property, for which, pursuant to an agreement made at the time the property was conveyed to Birmingham Hide, Rockhill was paid by Birmingham Hide after the property was resold to bona fide purchasers; the Court noted that the deeds evidencing the conveyance to Birmingham Hide of the Eastern Valley Properties -- in which Rockhill retained the "undocumented interest" -- were signed by Rockhill and concluded that if, as the evidence indicated, the transfer included Rockhill's undocumented interest, the transfer was one "made by a debtor"; the Court held that the trial court incorrectly relied on Folmar & Associates LLP v. Holberg, 776 So.2d 112 (Ala. 2000), in entering the summary judgment for Birmingham Hide, because the transfer was, for purposes of the AUFTA, "made by a debtor"; the Court held that the trial court erred in granting Birmingham Hide's summary- judgment motion)
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--(the original opinion released on Nov. 2, 2001, in Thompson Properties is also available at the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

Voyager Life Ins. Co. v. Hughes,

Nos. 1000835, 1000863 & 1000876  (Ala. June 21, 2002) (opinion modified on denial of application for rehearing)
(arbitration; waiver; disputes arising out of insurance agreements and small loan agreements; the trial court ruled that the defendants had waived their right to compel arbitration as to all of the plaintiffs because, it said, they had "substantially invoke[d] the litigation process and [had] thereby substantially prejudice[d] the party opposing arbitration"; HOLDING:  the Supreme Court held that there is no question that the defendants substantially engaged in the litigation process with Hughes where the defendants had waited over three years to assert arbitration as a defense to Hughes's claims and only moved to compel arbitration after Hughes moved for class certification and the trial court had set a hearing on certification; the Court held that with regard to plaintiff Hall, who did not join the lawsuit until Hughes submitted her amended complaint in August 2000, defendants could not be said to have substantially invoked the litigation process when they filed their motion to compel arbitration 26 days after Hall was added as a party)
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--(the original opinion released on Dec. 21, 2001, in Hughes is also available at the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

Jim Walter Homes, Inc. v. Nicholas,

No. 1001716  (Ala. June 21, 2002)
(statute of limitations; bad counts sent to a jury that returned a general verdict; claims of negligence and wantonness, fraudulent suppression, and deceit in connection with the survey of property and construction of a house; in November 1989, plaintiff Martha Joan Nicholas signed a contract and related financing documents for the purchase of a house to be constructed by defendant Jim Walter Homes, Inc. ("JWH") on her property in Fayette County; a surveyor selected by JWH  surveyed the property in 1989 for purposes of securing financing; JWH constructed the house to the agreed-upon percentage of completion, and Nicholas assumed possession in February 1990; in 1995, Nicholas was informed that a corner of her house was located on real property belonging to an adjacent landowner; Nicholas informed JHW of the problem, JWH purchased the land at no cost to Nicholas and deeded the land to her; in 1996, Nicholas was informed by another adjoining landowner that a 40-foot strip of property owned by that landowner ran through the middle of her house; JWH did not respond to Nicholas's telephone inquiries about the landowner's assertion that her house had been constructed partially on his property; Nicholas sued JWH, alleging negligence and wantonness, fraudulent suppression, and deceit; the jury returned a general verdict for Nicholas, awarding her $50,000 in compensatory damages and $50,000 in punitive damages; the trial court entered a judgment on the verdict and later denied JWH's postjudgment motion for a judgment as a matter of law or for a new trial; HOLDING: the Supreme Court held that Nicholas's negligence and wantonness counts were barred by the two-year statute of limitations, that because the jury entered a general verdict, the jury's verdict could have been based on that claim, and, therefore, that the judgment entered on that verdict must be reversed)
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Twin City Fire Ins. Co. v. Colonial Life & Accident Ins. Co.,

No. 1001831  (Ala. June 21, 2002)
(certified question from the United States District Court for the Middle District of Alabama; insurance; enhanced duty of good faith; choice of law; punitive damages; Twin City Fire Insurance Company ("Twin City") provided commercial general liability ("CGL") coverage to Colonial Life  & Accident Insurance Company ("Colonial") from 1994-1996; one of Colonial's former employees filed a wrongful-termination action in 1996, and, as provided by the policy, Twin City helped defend Colonial in that action under a reservation of rights; Twin City filed a declaratory-judgment action in the United States District Court for the Middle District of Alabama, seeking a declaration that it had no duty to continue defending Colonial and no duty to indemnify Colonial in the event that a judgment was entered against it; the wrongful-termination action was settled out of court for $1.3 million; that amount was provided by Colonial and the other insurance companies that had provided Colonial with  CGL coverage, but Twin City contributed nothing to the settlement; the settlement rendered the declaratory-judgment action  moot, but before that action was dismissed Colonial filed a counterclaim against Twin City alleging fraud, breach of contract, and breach of the insurer's enhanced duty of good faith under the reservation-of-rights defense; the federal court dismissed the fraud claim but allowed the breach-of- contract and breach-of-duty-of-good-faith claims to go to trial; after hearing the evidence, the federal court entered an order indicating that it would find no breach of contract by Twin City, but that it would find that under Alabama law Twin City had breached its enhanced duty of good faith; however, before entering a final order to this effect, the federal court certified the following two questions to this Court: "1) Does breach of the insurer's enhanced duty of good faith, imposed by L & S Roofing Supply Co. v. St. Paul Fire & Marine Ins. Co., 521 So. 2d 1298 (Ala. 1988), sound in contract or tort?  If [in] tort, and under the facts of this case, if Alabama choice-of-law rules dictate application of South Carolina law on a claim of breach of insurance policy, would Alabama law apply to a claim of breach of the insurer's enhanced duty of good faith?" and "2) Are punitive damages available for breach of the insurer's enhanced duty of good faith in cases where the insurance policy does not cover the underlying claim, pursuant to which the insurer has provided the reservation-of-rights defense?"; HOLDING: the Supreme Court held that the enhanced-duty-of-good-faith claim sounds in contract and not in tort; the Court held that it need not determine whether Alabama law applies to that claim, because the parties have stipulated that if it is a contract claim, Alabama law dictates that South Carolina law controls Colonial's claim; the Court also held that it need not determine what kind of damages can be awarded in such a claim)
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Conseco Fin. Corp. v. Slay,

No. 1010123  (Ala. June 21, 2002)
(arbitration; ripeness; Conseco Finance Corporation of Alabama d/b/a Green Tree Financial Corporation ("Conseco") filed a complaint on February 11, 2000, against Nora Slay ("Slay") alleging that it had entered into a contract with Slay for the purchase of a mobile home, that pursuant to the contract it had retained a purchase-money security interest in the home, and that under the terms of the contract it was entitled to the recovery of the collateral (i.e., the mobile home) and a money judgment for the outstanding indebtedness on the home; Slay asserted a counterclaim alleging that the signature on the contract purporting to be hers was a forgery; Conseco filed a motion to compel arbitration of Slay's counterclaim, pursuant to an arbitration provision contained in the contract; the trial court held that Slay's allegation that her purported signature on the documents is, in fact, a forgery was sufficient to prohibit the matter from proceeding to arbitration and that she would have the right to a jury trial in this matter; the case action summary sheet has a notation for the same day which states, "Motion to Compel Arbitration DENIED"; Conseco filed a motion to alter, amend, or vacate the order denying its motion to compel arbitration, arguing, in part, that the trial court's order denying arbitration should be amended to clarify that arbitration is not being denied at this stage of the proceeding but, rather, that the issue of the validity of Slay's signature on the arbitration agreement should be determined by trial by jury and thus the validity of the arbitration agreement will be determined by jury trial; the trial court denied Conseco's motion; on appeal, Conseco conceded the contract purporting to be Slay's was forged was a question for a jury; Conseco argued that the trial court's ruling and order "might be construed to deny arbitration completely" and it asked the Court to "direct the lower court to clarify its ruling" to assure Conseco that its motion to compel arbitration was "conditionally" denied pending a resolution by a jury of the validity of the contract containing the arbitration provision; HOLDING:  the Supreme Court held that Conseco has, at this point in the proceedings, requested relief for a harm it has not yet suffered; the Court held that Conseco's claim that it would be harmed if the trial court's order were read as an absolute denial of arbitration and the jury found the contract valid is speculative and does not present a live controversy; therefore, the Court held that the issue raised by Conseco is not ripe for adjudication, even though neither party questioned the ripeness of this matter)
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Aplin v. Tew,

No. 1010594  (Ala. June 21, 2002)
(personal injury; negligence; contributory negligence; Brad Tew, the son of defendants Terry Tew and Debbie Tew (hereinafter referred to collectively as "the Tews"), invited several schoolmates, one of whom was Jeffrey Aplin, to spend the night at his house; about 9:00 p.m., the boys decided that they wanted to shoot fireworks, and they asked Mr. Tew if he would drive them to Merritt's Fireworks so they could purchase fireworks; Mr. Tew agreed, and he drove the boys to Merritt's; the boys purchased both firecrackers and bottle rockets; on the way back to the Tews' house they stopped at a store where each boy purchased a lighter to ignite the fireworks; then the boys began setting off the fireworks in the Tews' backyard; Mr. Tew cut a strand of firecrackers so that the boys could light them individually instead of lighting all the firecrackers on the strand at one time; Mr. Tew then went inside to tell his wife that he was going to the front yard with the boys; the boys divided the firecrackers that had been cut from the strand and placed them in their pockets and in the waistband of their jeans; the boys walked around the side of the Tews' house toward the front yard, where they began to shoot bottle rockets; as Aplin was walking toward the front yard, one of the bottle rockets struck Aplin, igniting the firecrackers in his jeans and setting Aplin on fire; in his panic, fell through a glass door into the Tews' house; Tommy R. Aplin, as "guardian and next friend of Jeffrey Aplin," sued Terry Tew and Debbie Tew, alleging that the Tews were negligent in supervising the boys' purchase of the fireworks, negligent in that they helped the boys put the fireworks in their pants or allowed them to do so, and negligent in supervising the boys while they were setting off the fireworks; before trial, the Tews filed a motion to substitute Jeffrey Aplin as the plaintiff in the case because Aplin had reached the age of 19 years; at trial, Aplin testified that he had set off fireworks many times with his parents, for as long as he could remember on New Year's Eve and on the Fourth of July; also, Aplin admitted on cross-examination that he knew that placing fireworks in his waistband was dangerous and that he knew the fireworks he had placed in his waistband would explode if they were ignited; at the conclusion of Aplin's case, the Tews filed a motion for a judgment as a matter of law, seeking a dismissal of Aplin's claims on the grounds that Aplin failed to prove that they were negligent or, alternatively, that even if they were negligent Aplin was contributorily negligent and had assumed the risk; the trial court granted the motion as to the issue of contributory negligence; HOLDING: the Supreme Court held that based upon Aplin's testimony, it is clear that he was aware, before he placed the firecrackers in the waistband of his jeans, that placing firecrackers in his clothing was dangerous and that the firecrackers could explode if they were lit; the Court held that the fact that Aplin did not contemplate the specific means of ignition does not save him from a finding that he was contributorily negligent as a matter of law; thus, the Court held that the trial court did not err in concluding that Aplin was contributorily negligent; the Court held that while it applies a different standard to children below the age of 14, at the time of the accident, Aplin was already 14 years old and was capable of contributory negligence)
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Ex parte Lagrone,

No. 1010758  (Ala. June 21, 2002)
(personal jurisdiction; Jeffrey Taylor Lagrone allegedly suffered a serious brain injury when he was struck in the head by a pneumatic-lift jack while he was repairing a tractor; Lagrone filed an action in the Jefferson County Circuit Court against Norco Industries, Inc., Alabama Jack Company, Inc., and Fisher Products, Inc., seeking damages under tort claims and breach-of-warranty claims; Fisher Products is a Georgia corporation  with its principal place of business is located in Hartwell, Georgia, near the South Carolina state line; Fisher Products fabricates jacks for Norco pursuant to orders placed by Norco and ships the jacks to the destinations Norco instructs it to ship them to; occasionally, to save the time that would otherwise be consumed by shipment to Norco's warehouse, Norco instructs Fisher Products to ship the jacks directly to a third party; in those instances, Fisher Products sells the jacks "F.O.B." ("free on board"), which means that once the shipment leaves Fisher Products' shipping dock, the goods belong to Norco; from 1997 to 2000, the only years for which Fisher Products produced records, Fisher Products made 17 shipments of jacks and other products to Alabama addresses at Norco's instruction; Fisher Products' revenues from the 17 shipments totaled $15,296.98; Fisher Products has never advertised in Alabama, has never directly solicited business in Alabama, and no Fisher Products employees have ever traveled to Alabama for business purposes; Fisher Products filed a motion to dismiss the claims against it, alleging that the trial court did not have personal jurisdiction over it; the trial court granted the motion; Lagrone sought a writ of mandamus ordering the trial court to vacate its order granting Fisher Products' motion to dismiss for lack of personal jurisdiction; HOLDING: the Supreme Court held that the mere fact that Fisher Products delivered its products "F.O.B. Hartwell, Georgia," is not dispositive; the Court noted that Fisher Products placed its products into the stream of commerce, with not only the "expectation," but with the actual knowledge that the products would be purchased by consumers in this State; the Court held that in light of those shipments, Fisher Products should reasonably have anticipated being haled into court in Alabama; the Court held that the acts of Fisher Products are sufficiently "continuous and systematic" to establish Alabama's general in personam jurisdiction; the Court held that because there was general in personam jurisdiction, it is inconsequential that the jack made the basis of this action was not included in the 17 shipments made by Fisher Products directly to Alabama; the Court concluded that the exercise of in personam jurisdiction in this case is reasonable; the Court issued the writ of mandamus)
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Ex parte Turner,

No. 1010861  (Ala. June 21, 2002)
(state-agent immunity; qualified immunity; Randall Turner, an assistant principal at Bellingrath Junior High School in Montgomery, stopped Demonica Ware, who was 12 years old at the time, and asked her to present her "hall pass"; Turner asserts that he did not know Demonica or know whether she was enrolled as a student at Bellingrath Junior High School; according to Turner, Demonica refused to produce a pass and loudly resisted his efforts to stop her for questioning; she then tried to force her way past Turner, and when Turner grabbed Demonica's arm to stop her, both he and Demonica fell to the floor; Demonica hit her head on a locker and suffered a bruise, but there were no lacerations or broken bones; Demonica, who it turns out was a student at Bellingrath, was expelled from school; Tawanda Ware, as next of friend of  Demonica, sued Turner in his individual capacity and in his official capacity as assistant principal of Bellingrath Junior High School; Ware alleged assault and battery, 42 U.S.C. § 1983 civil rights violations, negligence, and intentional infliction of emotional distress (the tort of outrage) and claimed damages for "loss of services of a child"; Turner filed a motion for a summary judgment asserting that he was immune from civil liability on the basis of State-agent immunity and that he enjoyed qualified immunity from the § 1983 claims; the trial court denied his motion for a summary judgment; HOLDING: the Supreme Court held that Turner is protected under the doctrine of  State-agent immunity because his actions occurred while he was discharging his duties in educating students; the Court held that Turner's uncontroverted affidavit establishes State-agent immunity as to the state-law causes of action; the Court held that the trial court erred in denying Turner's motion for a summary judgment as to the state-law causes of action; the Court held that Turner's affidavit provides uncontroverted sworn statements that sufficiently establish qualified immunity from the § 1983 action)
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Ex parte Bryant,

No. 1990901  (Ala. June 21, 2002)
(criminal; capital murder; mitigating and aggravating circumstances; plain error; Jerry Devane Bryant was indicted for, tried for, and convicted of the murder of Donald Hollis made capital because it occurred during a kidnapping in the first degree; the jury which found Bryant guilty recommended a sentence of death by a vote of 11-1, and the trial court sentenced Bryant to death; Bryant did not object to any of the jury instructions at trial concerning mitigating and aggravating circumstances; HOLDING: the Supreme Court affirmed the conviction but reversed the defendant's death sentence; the Court held that the jury instructions erroneously allow the conclusion that the death penalty is appropriate even if the aggravating circumstances do not outweigh the mitigating circumstances so long as the mitigating circumstances do not outweigh the aggravating circumstances; the Court held that the trial judge in this case erroneously did not add the caveat that the jury was to "recommend the death penalty only if [the jury] found that the aggravating circumstances outweighed the mitigating circumstances"; the Court held that the trial court erred by implicitly telling the jury that it might recommend death even if the jury did not find an aggravating circumstance at all; the Court held that the erroneous jury instructions on the topic of weighing the aggravating circumstances and the mitigating circumstances constitute plain error; the Court did not find that an accumulation of individually nonreversible errors in this case "probably injuriously affected the substantial rights" of the defendant in the guilt phase of the trial)
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Opinions Released June 14, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JUNE 14, 2002

 

Telfare v. City of Huntsville,

No. 1000357 (Ala. June 14, 2002) (overruling application for rehearing)
(this case concerned discretionary-function immunity of a city  for the actions of a police officer, and the Court concluded that because a police officer does not have discretion to make a warrantless arrest for a misdemeanor not performed in his presence, the officer and city did not have immunity; on rehearing the City argued that Officer McCarver was not effectuating an arrest, but was rather engaging Terrell Telfare in a lawful investigatory detention, and that Officer McCarver had the right to place Telfare prone, facedown on the ground for Officer McCarver's safety; the Court did not reach these arguments because neither Officer McCarver nor the City offered any testimony or evidence as to the objective events or the subjective thoughts that surrounded  Officer McCarver's actions) 
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--(the original opinion released on Jan. 18, 2002, in Telfare is also available at the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

Ex parte LaMoreaux,

No. 1000522  (Ala. June 14, 2002)
(domestic relations; divorce; division of property; the husband testified that, during their 17-year marriage, he and the wife had maintained separate bank accounts, that the wife did not have access to any of his bank accounts or to any of his stock accounts, that he had a Merrill Lynch checking account from which he paid the household expenses, and that he deposited his salary into the Merrill Lynch account; the husband testified that his family had gifted him about 118 shares of stock in the family-owned corporation, P.E. LaMoreaux and Associates ("PELA"), about one-half of the shares before the marriage and the remaining shares during the marriage; no one testified as to the disposition of the dividends from the stock; the trial court awarded the husband all of his 118 shares of  the PELA stock, but took the value of the stock into consideration and ordered him to pay $20,000 to the wife's attorneys as their fee; both the husband and the wife moved to alter, to amend, or to vacate the judgment; in an amended judgment, the trial court found that the stock was worth more than previously valued and awarded the wife the marital residence and a North River Yacht Club lot, both previously ordered sold and the net proceeds divided between the parties, and ordered the husband to pay one-half of the wife's previously incurred medical expenses, an additional $25,000 to the wife's attorneys, an additional $32,000 in alimony in gross, and an  additional $500 per month in periodic alimony;  the husband argued that the trial court had erred in the division of the parties' marital property by considering stock gifted to the husband by his family and not used regularly for the common benefit of the couple during their marriage, citing Ala. Code §30-2-51(a); the Court of Civil Appeals affirmed; HOLDING:  the Supreme Court noted that the record is devoid of evidence that the husband's gifted PELA stock or his PELA stock dividends were  "used regularly for the common benefit of the parties during their marriage"; thus, the Court held that the trial court erred in considering the value of the husband's PELA stock in dividing the marital property; consequently, the Court held that the division of martial property is so unsupported by the evidence as to be unjust and palpably wrong; the Court reversed the judgment of the Court of Civil Appeals insofar as it affirmed that aspect of the judgment of trial court dividing the marital property)
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Ex parte Webb,

No. 1000789  (Ala. June 14, 2002)
(criminal; jurisdiction; transfer from juvenile court to circuit court; in 1983, Webb, then a 14-year-old juvenile, was arrested and charged as a juvenile with first-degree burglary, first-degree robbery, and second-degree assault; the district attorney filed a motion to transfer the case from the juvenile court to the circuit court; the juvenile court granted the motion and transferred Webb's case to the circuit court for him to be tried as an adult; while Webb's appeal of the transfer order was pending, Webb was indicted in the circuit court for the first-degree burglary; while Webb's appeal of the transfer order was still pending, the circuit court accepted Webb's guilty plea on the first-degree burglary indictment, convicted him, and sentenced him to 20 years' imprisonment in 1984; the Court of Criminal Appeals affirmed the transfer order; the Supreme Court reversed the affirmance by the Court of Criminal Appeals because the transfer order of the juvenile court was invalid for noncompliance with the requirements of Ala. Code §12-15-34(d); the juvenile court apparently ignored the remand order and did not conduct a new transfer hearing; in 2000, Webb filed a pro se Rule 32, Ala.R.Crim.P., petition challenging his first-degree burglary conviction and sentence, arguing that the circuit court lacked jurisdiction to accept his guilty plea and to adjudicate his case because, at the time of those proceedings in the circuit court, Webb's appeal of the order transferring his case from juvenile court to the circuit court was pending before the Court of Criminal Appeals; the trial court summarily dismissed Webb's petition; Webb appealed, and the Court of Criminal Appeals affirmed; HOLDING:  the Supreme Court held that the circuit court did not retain jurisdiction to adjudicate the merits of the indictment against Webb while his appeal of the juvenile court transfer order was pending before the appellate courts of this state; thus, the Court held that the judgment of the circuit court against Webb for first-degree burglary is a nullity; the Court reversed the judgment of the Court of Criminal Appeals, and it remanded this case to that court for it to remand the case to the trial court for it to grant Webb Rule 32 relief by vacating the conviction and sentence)
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Ex parte Conseco Fin. Corp.,

No. 1000821 (Ala. June 14, 2002)
(arbitration; interstate commerce; unconscionability; Racheal M. Boone purchased a manufactured home from SC Tuscaloosa Co., Inc., now known as Southern Energy Homes Retail Corporation, a seller of manufactured homes in Tuscaloosa, Alabama; Boone executed a "Manufactured Home Retail Installment Contract and Security Agreement" to purchase the manufactured home, which had been manufactured by Homes of Legend, Inc. ("HOL"), a Michigan corporation with its principal place of business in Boaz, Alabama; the installment contract contained an assignment to "Green Tree Financial Corp. – Alabama [now Conseco, a Delaware corporation], 324 Interstate Park Drive, Montgomery, AL 36109"; Boone noticed that leaks in the home caused water damage to the carpet and the underlying floor, and after several attempts by the dealer to repair the home failed to satisfy Boone, she sued Southern Energy, HOL, and Conseco for fraudulent misrepresentation, fraudulent suppression, the tort of outrage, and negligent hiring and supervision; each defendant moved to compel Boone to arbitrate her claims; the trial court denied the motions to compel arbitration; Southern Energy settled Boone's claims and HOL dismissed its appeal; HOLDING: the Supreme Court held that the facts cited by Conseco to establish the interstate commerce criterion for the application of the FAA are indistinguishable from the facts the Court found sufficient to satisfy the interstate commerce criterion in Green Tree Fin. Corp. v. Lewis, 813 So. 2d 820 (Ala. 2001), so Conseco satisfied its initial burden of establishing that the installment contract had a substantial effect on interstate commerce; the Court noted that it has previously held that arbitration provisions not materially distinguishable from the one in the installment contract executed by Boone are not unconscionable; therefore, the Court reversed the order of the trial court denying the motion of Conseco to compel arbitration)
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State of Alabama v. Parker,

No. 1000848 (Ala. June 14, 2002)
(taxes; refund; action against the State for a refund of sales taxes; the State moved to dismiss the action; the trial court denied the motion to dismiss; the State was granted permission for an interlocutory appeal; HOLDING:  based on its holding in Patterson v. Gladwin Corp., No. 1001747 (Ala. May 17, 2002), the Supreme Court held that the trial court has no subject-matter jurisdiction over a direct action against the State for a tax refund; therefore, the Court reversed the trial court's order denying the State's motion to dismiss)
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Ex parte Cain,

No. 1001030 (Ala. June 14, 2002)
(arbitration; existence of a contract to arbitrate; Willard Cain purchased a new manufactured home, manufactured by Chandeleur Homes, Inc.; Cain sued Chandeleur Homes for fraudulent misrepresentation and breach of express and implied warranties; a page of the "homeowner's manual" contained an arbitration provision; the "Limited One Year Service Warranty" did not contain an arbitration provision and did not contain any reference to any arbitration provision in the homeowner's manual; Cain submitted an affidavit stating that he never signed or agreed to any arbitration agreement, that no arbitration agreement was left in his mobile home as part of any warranty agreement or as part of a homeowner's manual, and that he never received any written warranty from Chandeleur Homes, Inc. regarding my mobile home; the trial court granted Chandeleur Homes' motion to compel arbitration; HOLDING:  the Supreme Court held that the only arbitration provision is in a page from a homeowner's manual, which Chandeleur has not proven to be a contract existing between Cain and Chandeleur; the Court held that because the evidentiary materials submitted by Chandeleur in support of its motion to compel Cain to arbitrate his claims do not establish the existence of contract containing an arbitration agreement between Cain and Chandeleur, Cain is entitled to mandamus relief directing the trial court to vacate its order compelling the petitioner Cain to arbitrate his claims against Chandeleur Homes)
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Ex parte Williams,

No. 1001054 (Ala. June 14, 2002)
(criminal; law of the case; obiter dictum; Lawrence Paultic Williams was convicted of reckless murder, as was his codefendant Mark Antonio Thompkins; Williams and Thompkins got into an argument that culminated in an exchange of gunfire between them; one innocent bystander, William Glen Richardson, was killed and another bystander was wounded; the medical examiner was unable to ascertain whether Williams's gun or Thompkins's gun had fired the fatal shots; Williams appealed and the conviction was affirmed, Williams v. State, 736 So.2d 1134 (Ala. Crim. App. 1998), cert. denied, 736 So.2d 1134 (Ala. 1999); Williams filed a Rule 32, Ala.R.Crim.P., petition asserting that the evidence was insufficient to support a finding of the mens rea essential to reckless murder and that his appellate counsel was ineffective for failing to raise this aspect of insufficiency of the evidence on direct appeal; the trial court denied the petition; the Court of Criminal Appeals affirmed the denial of the Rule 32 petition; Williams contends that the affirmance of the denial of the Rule 32 petition violated "the law of the case" established by the opinion that court had already published in previously affirming Williams's conviction on direct appeal; HOLDING:  the Supreme Court noted that the pertinent holding in the opinion on direct appeal is that the evidence was sufficient to support a finding on the essential element of causation — that Williams's conduct caused the death of the victim;  the Court noted that the previous opinion expressly recognizes that the issue of whether the evidence was sufficient to support a finding of the mens rea essential to reckless murder was not before the Court of Appeals in the direct appeal, but the opinion nevertheless states that "the evidence in the present case simply does not support a conviction for reckless murder as to either Williams or Thompkins" and that "[b]ecause both Williams and Thompkins were precluded from relief in the instant appeal regarding their reckless murder convictions, the proper vehicle to address this issue is through a post-conviction petition pursuant to Rule 32"; the Court held that the crucial statement of law in the published opinion on direct appeal relied upon by Williams is not a holding but is, rather, obiter dictum and therefore was not and is not the law of the case; the Court concluded, moreover, that the dictum is mistaken; therefore, the Court affirmed the Court of Criminal Appeals in its denial of Williams's Rule 32 petition, and, to prevent confusion in future cases, it expressly disapproved of the mistaken dictum in the opinion on direct appeal)
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Ex parte East Ala. Health Care Auth.,

No. 1001502 (Ala. June 14, 2002)
(certificate of need ("CON"); administrative law; the East Alabama Medical Center ("EAMC") brought a declaratory-judgment action in 1997 to have the CON granted to Auburn Medical Center, Inc. ("AMC"), by the State Health Planning and Development Agency ("SHPDA") in 1984 declared invalid; the validity of the CON at issue in this case has been the subject of litigation in one form or other for nearly 18 years, and the procedural background in the case is lengthy and convoluted; AMC applied for a CON to build and operate a 64-bed hospital in Auburn, and EAMC applied for a CON seeking approval of an additional 54 beds at an existing hospital; SHPDA approved AMC's CON, but later reversed its ruling approving the CON for AMC and also denied EAMC's request at the same time; AMC sued both SHPDA and EAMC, claiming that they had conspired to deprive AMC of its CON; the Court of Civil Appeals restored the approval of AMC's CON  in a 1990 decision, Auburn Med. Ctr., Inc. v. East Alabama Health Care Auth., 583 So.2d 1342 (Ala. Civ. App. 1990); in 1992, SHPDA approved a request from AMC for a project modification of the CON because of changes that had occurred in the hospital industry since the original CON had been approved in 1984; thereafter, AMC entered into a construction contract with The Robins and Morton Group, a construction company, pursuant to which The Robins and Morton Group was to build the hospital facility; SHPDA approved the modification and extended the validity of the CON for 12 months; in 1994, EAMC applied for a CON to build an ambulatory surgery center in Auburn; SHPDA denied that application, citing as its reason the CON it had granted AMC for a hospital facility, which at that point still had not been built; EAMC initiated the present action to have the CON granted to AMC declared invalid; the trial court held that the CON was invalid because, in its view, the time limit on the CON had expired under SHPDA regulations; the Court of Civil Appeals reversed the trial court's judgment; HOLDING:  the Supreme Court held that AMC's CON expired based on SHPDA Rules and Regulations, § 410-1-11-.01; the Court held that EAMC's filing an application for a CON does not qualify as an action that delays the expiration of a CON; the Court noted that the plain words of § 410-1-11-.01 discuss "judicial proceedings" as tolling the expiration of a CON, not quasi-judicial proceedings or administrative proceedings, and that the first judicial proceeding stemming from the transactions in question came when EAMC sued SHPDA and AMC on July 11, 1997, seeking a review of SHPDA's denial of their CON application -- after AMC's CON had already expired in June 1995 by operation of law; the Court held that AMC's CON had expired as a matter of law in accordance with SHPDA's Rules and Regulations in June 1995, and nothing in those rules gives SHPDA the power to resurrect it; accordingly, the Court held that the trial court correctly determined that AMC's CON had expired by operation of law and that it was therefore void; the Court reversed the Court of Civil Appeals )
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Donoghue v. American Nat'l Ins. Co.,

No. 1001926 (Ala. June 14, 2002) (on application for rehearing; withdrawing, substituting, and changing the result of the opinion of February 22, 2002)
(insurance; ripeness; George Donoghue III purchased, through agent Harold Knotts Jr., a universal life insurance policy from American National Insurance Company ("American National"); Donoghue filed this action in the Mobile County Circuit Court against American National and Knotts, alleging fraud, breach of contract, negligence, and conspiracy, all based on the alleged misrepresentation by American National and Knotts that the "universal life insurance policy would meet his stated needs in that monies would be available at retirement"; American National filed a motion to dismiss (which Knotts adopted) pursuant to Ala.R.Civ.P. 12(b)(6), arguing, among other things, that Donoghue's claims were not ripe for adjudication and citing in support of its argument this Court's decisions in Williamson v. Indianapolis Life Ins. Co., 741 So.2d 1057 (Ala. 1999), and Stringfellow v. State Farm Life Ins. Co., 743 So.2d 439 (Ala. 1999); the trial court granted the motion to dismiss, holding that Donoghue's claims were not ripe; HOLDING: the Supreme Court held that, under the standard of review for motions to dismiss under Rule 12(b)(6), the dismissal of Donoghue's claims was erroneous; viewing the allegations of Donoghue's complaint most strongly in his favor, the Court could not conclude that Donoghue could not prove a set of facts similar to those in Boswell -- namely, that due to the alleged tortious actions of the defendants, Donoghue was paying for something that "did not exist and never would exist" and that he consequently has suffered injury sufficient to ripen his claims; therefore, the Court reversed the trial court's dismissal of Donoghue's claims; the Court declined to address the defendant's statute-of-limitations argument because a decision against Donoghue based upon the statutes of limitations having expired would bar the claims from ever being brought again -- a result well beyond mere "affirmance" of the trial court's decision, which only held that Donoghue's claims were not ripe and could possibly be asserted at a later date)
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--(the withdrawn original opinion released on Feb. 22, 2002, in Donoghue is also available at the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

Ex parte Zimmerman,

No. 1002104 (Ala. June 14, 2002)
(criminal; sentencing; habitual offender; equal protection; Levanure Zimmerman was convicted of murder and was sentenced, as an habitual offender with three prior felony convictions, to life imprisonment without the possibility of parole; on a petition for postconviction relief, Zimmerman contends that his sentence as an habitual felony offender of life imprisonment without the possibility of parole violates his right to equal protection under the laws, by virtue of a relatively recent amendment to the Alabama Habitual Felony Offender Act; specifically, Zimmerman argues that Ala. Code §13A-5-9(c)(3), as amended effective May 25, 2000, impermissibly treats Class A felony offenders who have three prior felony convictions, none of which are Class A felonies, differently based on whether the offender's sentence was not final in the trial court on May 25, 2000; Ala. Code §13A-5-9(c)(3), as amended, gives the trial court discretion to sentence a Class A felony offender with three prior felony convictions to imprisonment for life or  imprisonment for life without the possibility of parole, if none of those three prior felony convictions was for a Class A felony; the Alabama Legislature specifically provided that the amended version of §13A-5-9(c)(3) was to be applied prospectively, that is, to only those cases in which the sentence was not final on May 25, 2000; when Zimmerman committed the murder for which he was punished as an habitual offender, the mandatory sentence upon application of §13A-5-9(c)(3) for a Class A felony offender with three prior felony convictions was imprisonment for life without the possibility of parole, even if none of those prior convictions was for a Class A felony, and the prior convictions used to enhance Zimmerman's sentence were not for Class A felonies; Zimmerman contends that the prospective application of the amended sentencing statute violates his right to equal protection under the laws by creating a date-based classification that confers the possibility of more lenient sentencing on a class of persons whose sentences were not final as of May 25, 2000, the effective date of the Act, while arbitrarily and inequitably excluding from the possibility of that leniency those persons, like him, whose sentences for offenses of the same nature or seriousness were final before the effective date of the Act; the Court of Criminal Appeals rejected Zimmerman's equal-protection argument, holding that a legislature may prospectively reduce the maximum penalty for a crime even though those sentenced to the maximum penalty before the effective date of the act would serve a longer term of imprisonment than one sentenced to the maximum term thereafter; HOLDING:  the Supreme Court agreed with the rationale and holding in the Court of Criminal Appeals' opinion, and adopted its analysis; the Court held that equal protection is not denied where an amendatory statute reducing a penalty is not applied to persons whose convictions were final before the effective date of the ameliorative amendment)
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Philpot v. State of Alabama,

No. 1002116 (Ala. June 14, 2002)
(dispute over ownership of real estate; ore tenus rule;  in 1932, a group referred to as the "Chapman heirs" conveyed to Madison County an 80-foot wide by 6,100-foot long strip of land; in 1936, the Chapman heirs conveyed to Madison County two additional 60-foot strips of land on either side of the original 80-foot strip; the 1936 deed, unlike the 1932 deed, contained a reversion clause stating that in the event Madison County or the State of Alabama stops using land for roadside improvements, the title to the lands shall revert to the grantors, their heirs or assigns; U.S. Highway 72  was later constructed on that strip of land; in 1963, the Chapman heirs conveyed by a fee simple warranty deed 18 acres of land that abutted the 60-foot strip on the south side of U.S. Highway 72 (the south-side 60-foot strip is hereinafter referred to as "the south strip") to Wikle Enterprises, Inc.; subsequently, through various conveyances, Wikle Enterprises conveyed all of its interest in the 18 acres to RBC Limited, Jacobs Bank, and Henson, Inc. , each of whom became the owner of a separate portion of the land; this action was originally brought by the State of Alabama in the Probate Court of Madison County as a petition to condemn a strip of land that abuts U.S. Highway 72 East in Huntsville; the Chapman heirs and RBC Limited Partnership were made parties to the condemnation action; the probate court granted the petition to condemn the property; the State of Alabama, the Chapman heirs, and RBC Limited appealed to the Madison County Circuit Court; Jacobs Bank and Henson, Inc., were then allowed to intervene as defendants based on their claims that they owned portions of the strip of land; the Chapman heirs then brought as a cross-claim a declaratory-judgment action against RBC Limited, Jacobs Bank, and Henson, Inc. (hereinafter collectively referred to as "the defendants") to determine who actually owned the land; the circuit court found that the defendants owned the land in fee simple absolute; the sole issue on appeal is whether the 1963 deed conveying the 18 acres to Wikle Enterprises also conveyed the south strip to the defendants; HOLDING: the Supreme Court held although the trial court heard ore tenus testimony, the heightened deference commanded by the ore tenus rule does not govern our review because the ore tenus rule does not apply to cases involving undisputed facts; the Court held that while the evidence before the trial court in this case may indicate a dispute concerning what land the parties "thought" they owned, the evidence indicates no material dispute as to what the 1963 deed actually conveyed; the Court held that the property line of the property deeded to Wikle Enterprises in 1963 clearly abuts the south line of the south strip and, therefore, the property conveyed to Wikle Enterprises in 1963 did not include the south strip; the Court held that without a showing by the defendants that the land description in the 1963 deed was ambiguous, any evidence concerning the parties' acts or declarations could not be used to interpret the deed; thus, because there was no showing that the description in the 1963 deed was ambiguous, the trial court erred in considering evidence concerning the parties' acts or declarations; the Court held that the defendants own no interest in the land at issue, and it reversed the judgment of the trial court)
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State Farm Fire & Cas. Co. v. Shady Grove Baptist Church,

No. 1010018 (Ala. June 14, 2002)
(insurance; breach-of-contract claim; Shady Grove Baptist Church sued State Farm, seeking to recover damages on claims of breach of contract, bad faith, and fraud in regard to State Farm's denial of a claim made by the Church following the collapse of a portion of the roof on its building; the trial court entered a summary judgment for State Farm on the Church's claims of bad faith and fraud; the breach-of-contract claim was tried before a jury; the jury returned a verdict in favor of the Church in the amount of $128,800, and the trial court entered a judgment on the verdict, adding $31,586.03 to the judgment as interest, for a total judgment of $160,386.03; State Farm filed a renewed motion for a judgment as a matter of law, or in the alternative, a motion for a new trial or for a remittitur; the trial court denied State Farm's renewed motion for a judgment as a matter of law and motion for a new trial, but it granted the motion insofar as it requested a remittitur and reduced the amount of the judgment to $98,700 to comport with the coverage limits of the insurance policy; the court added $24,205.98 in interest, for a total judgment of $122,905.98; on appeal, State Farm contends that the trial court erred by denying its Motion for Judgment As a Matter of Law because the Church failed to present any evidence which was sufficient to create a question of fact whether the cause of the roof collapse at the church was covered by the policy; HOLDING: the Supreme Court noted that the policy states that it does not provide coverage for collapse unless the collapse resulted from one or more of the six specific enumerated causes stated within the section entitled "Extensions of Coverage"; the Court further noted that it is not State Farm's position on appeal that the collapse was excluded from coverage but is, rather, that the collapse was not covered under the policy; therefore, the Court held that this is not a case in which the Church has to prove that a collapse, as defined within the policy, has occurred and State Farm then has to prove that a certain exclusion within the policy removed the collapse from the scope of its coverage; the Court held that in resisting State Farm's motions for a judgment as a matter of law, and for the trial court's denial of those motions to have been proper, the Church must have submitted substantial evidence showing that the collapse fitted within the definition of that term in the policy and that it was covered under the policy by virtue of its being caused by at least one of the six enumerated causes provided in the policy; after considering the evidence presented by the Church, the Court concluded that the Church failed to present substantial evidence showing that the collapse of the roof on its building was a result of any one of the enumerated causes contained in the policy; the Court noted that the testimony elicited provided several possible causes for the collapse, but held that substantial evidence as to any one cause was not presented; the Court held that the trial court erred when it denied State Farm's motions for a judgment as a matter of law)
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Ex parte Hall,

No. 1010573 (Ala. June 14, 2002)
(criminal; release on bail; necessity of a hearing; Tarus Hall filed this petition for a writ of mandamus or, in the alternative, a writ of habeas corpus after the Montgomery Circuit Court, without a hearing, denied his request to be released on bail; on September 5, 2001, Hall was arrested pursuant to a warrant charging him with murder, an offense made capital because the murder was committed during a robbery in the first degree; on October 5, 2001, Hall filed a motion to be released on bail; in his motion he requested a hearing; the State filed no response to the motion; without a hearing, the trial court denied the motion; Hall filed a petition for a writ of habeas corpus in the Court of Criminal Appeals; in response to that petition, the State submitted voluminous evidentiary materials, none of which had been submitted to the trial court; the Court of Criminal Appeals denied Hall's petition, without an opinion; Hall then filed his petition in the Supreme Court of Alabama; in response, the State admits that the trial court denied bail apparently without conducting a hearing, but relying upon the evidentiary materials first submitted to the Court of Criminal Appeals, the State argues that Hall is not entitled to bail, because "the proof is evident" that Hall is guilty of capital murder; HOLDING: the Supreme Court said it is well established that a person accused of a capital offense must overcome the presumption of his guilt by proof, in order to be entitled to bail; the Court held that by denying, without a hearing,  Hall's motion to be released on bail, the trial court denied him the opportunity to offer the proof necessary to overcome that presumption; the Court held that while the State has attempted to cure that procedural deficiency by submitting evidentiary materials, first to the Court of Criminal Appeals and then to the Supreme Court, a proper record must be developed in the trial court before such evidence can be considered by an appellate court; the Court granted the petition, directed the trial court to set aside its order denying bail, and directed the trial court to schedule a bail hearing)
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Opinions Released June 7, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JUNE 7, 2002

 

Robino v. Kilgore,

No. 1002052  (Ala. June 7, 2002)
(real estate; standing to appeal; sale-for-division suit under Ala. Code §35-6-58 seeking the sale of a parcel of real estate located in Shelby County and the division of the proceeds from the sale; Dee Kilgore, William B. Doyle, Michael J. Antonio, Jr., and Kelby E. Strickland (hereinafter collectively referred to as "the Kilgore plaintiffs") alleged that they each owned a one-eighth interest in the parcel and that each defendant (Joseph T. Robino, Jr., and Samuel T. Robino) owned a one-fourth interest in the parcel; Joseph T. Robino, Jr., died and George Babakitis, the administrator ad colligendum of his estate (hereinafter referred to as "the estate"), was substituted as a defendant; in November 1998, Samuel T. Robino (hereinafter referred to as "Robino") filed a petition in bankruptcy in the federal bankruptcy court pursuant to Chapter 11, and the litigation in the trial court was stayed; in April 2000, Richard G. Poff, an attorney, intervened in the action between the Kilgore plaintiffs and the estate, alleging that he had purchased Robino's interest in the parcel at a sheriff's sale in December 1999 and that Robino had forfeited his right of redemption in the parcel; Poff filed a complaint seeking to quiet title with respect to the interest in the parcel and also seeking to eject Robino from the property; Robino did not respond to Poff's complaint, and on June 7, 2000, the trial court entered a default judgment against Robino stating that acquired all of the right, title, and interest in and to said real estate which said Robino formerly held; on June 12, 2000, the case was called for trial; neither Robino nor anyone representing his interests was present; the Kilgore plaintiffs, Poff, and the estate informed the trial court that the issues in controversy between the parties had been settled; on July 31, 2000, the trial court entered an order requiring that the parcel be sold and the proceeds distributed according to the interests as set out in its order; Robino filed a motion objecting to the July 31, 2000, order; the trial court held that Robino had no standing to object; in March 2001, Poff filed a motion to confirm the sale of the parcel; Robino filed a motion objecting to both the sale and the confirmation of the sale; the trial court entered an order confirming the sale and noted that Robino was not a party to the proceedings; Robino filed a motion to reconsider both the trial court's orders providing for the sale of the parcel and the division of the proceeds, as well as the order confirming the sale of the parcel; the trial court denied that motion; Robino filed a notice of appeal; Robino did not file a motion to set aside the default judgment of the trial court, and he did not appeal that default judgment; HOLDING:  the Supreme Court held that because Robino's notice of appeal did not purport to appeal from the June 7, 2000, default judgment, and because he made no argument challenging the default judgment, he waived that issue; the Court stated that because the trial court's June 7, 2000, order divested Robino of any interest in the parcel, he had no basis on which to continue as a party in that action, and because Robino had no interest in the parcel, he was not injured by the trial court's confirmation of the sale; accordingly, the Court held that Robino has no standing to appeal from the trial court's subsequent order confirming the sale of the parcel, and that Robino's appeal is due to be dismissed)
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Ex parte Alabama Dep't of Mental Health & Mental Retardation,

No. 1002189 (Ala. June 7, 2002)
(sovereign immunity; standing; state-agent immunity; the Department of Mental Health and Mental Retardation (the "Department") and its commissioner, Kathy Sawyer, filed this petition for a writ of mandamus directing a judge of the Montgomery Circuit Court to vacate his order issued August 16, 2001, denying the Department and Sawyer's motion to dismiss and directing him to enter an order dismissing all the claims filed against them by Laura Percer, as administratrix of the estate of Cynthia Ruth Shirley; Percer's claims arise out of injuries Shirley suffered on August 8, 2000, while she was a resident at the Lurleen B. Wallace Developmental Center ("the Center"); Shirley later died as a result of those injuries; HOLDING:  the Supreme Court held that the Department, as an agency of the State of Alabama, has absolute immunity from lawsuits based upon the long-standing principle of sovereign immunity set forth in Article I, § 14, of the Alabama Constitution and that the courts of this State lack subject-matter jurisdiction over actions brought contrary to § 14; the Court held that Sawyer, in her official capacity as commissioner, is also entitled to absolute immunity pursuant to Art. I, § 14, Ala. Const.; the Court also held that Percer may not pursue an action against the Department and against Sawyer, in her official capacity as commissioner, for injunctive relief, not under the doctrine of sovereign immunity, but due to Percer's lacks standing to bring such a claim for injunctive relief because she cannot demonstrate that she, as administratrix, or the estate will suffer immediate harm if the requested injunctive relief is not granted and because she cannot show that she has no adequate remedy at law; thus, the Court held that the Department and Sawyer, in her official capacity, are entitled to a dismissal as to the claims for injunctive relief; the Court held that the language of the complaint, when read in a light most favorable to Percer, undoubtably stated claims against Sawyer in her individual capacity; the Court noted that a motion to dismiss is typically not the appropriate vehicle by which to assert qualified immunity or state-agent immunity and that normally the determination as to the existence of such a defense should be reserved until the summary-judgment stage, following appropriate discovery; thus, the Court held that the trial judge did not err in denying the motion to dismiss as to the claims made against Sawyer in her individual capacity based on a defense of state-agent immunity at this stage of the proceedings; the Court granted the writ of mandamus as to Percer's claims against the Department and against Sawyer in her official capacity, but denied the writ of mandamus as to claims against Sawyer in her individual capacity)
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Ex parte Tabor,

No. 1010043  (Ala. June 7, 2002)
(domestic relations; child support; postminority support; modification of previous orders; Tabor and Buxton were divorced in 1983; in December 1993, due to the extreme deterioration of the relationship of the parties, the circuit court entered an order indefinitely suspending the parental rights and responsibilities of Tabor, forgiving the child support arrearage if any existed (with no evidence that any arrearage did exist), and suspending the obligation of support by Tabor to the minor children; the December 1993 order was amended in August 1995 to make it final; in June 1999, Buxton filed a complaint against Tabor seeking child-support payments and postminority support for their daughter, who was 18 years old at the time; their oldest child, a son, had already reached the age of majority; in an order entered on March 6, 2000, the trial court held that the December 1993 order was due to be set aside, that the waiver of rights of visitation in exchange for release from the duty of child support is a legal impossibility, that a custodial parent cannot agree to forgive the amount due under a child support arrearage, and that a parent cannot waive child support due under a court order; however, the trial court found that Buxton did not have a right to seek child support arrearage for the son due to the fact that the child had reached the age of majority and, therefore, had become "stale"; the trial court ordered Tabor to pay postminority support in the amount of two-thirds of the costs of tuition, books, and fees incurred by the parties' daughter per semester; the trial court also ordered Tabor, effective retroactive to January 1, 2000, to pay $643.00 per month for the maintenance and support of the daughter until she reached the age of majority; both parties filed postjudgment motions; in September 2000, Tabor supplemented his postjudgment motion by asserting that the trial court's order was due to be reversed based on the doctrines of equitable estoppel, judicial estoppel, laches, and res judicata; the trial court entered an order denying Tabor's postjudgment motions and denying Buxton's postjudgment motion with the exception that the trial court determined that Tabor did owe past-due child support in the amount of $25,284; Tabor appealed, and the Court of Civil Appeals affirmed the trial court's judgment without an opinion; HOLDING: the Supreme Court noted that case does not present an instance in which Tabor or Buxton unilaterally or Tabor and Buxton bilaterally waived or altered Tabor's child-support obligation in contravention of a prior court order, but rather the parties' agreement was ratified by the trial court; the Court also noted that courts may not forgive child support already accrued and owing under a prior court order, but it found that the record does not reflect that Tabor owed any child-support arrearage before the 1993 order or the 1995 order and that there was no evidence showing that the 1993 and 1995 orders forgave any child-support arrearage; therefore, the Court held that the 1993 and 1995 orders were not due to be set aside on the basis that those orders forgave a child-support arrearage; the Court noted that the 1993 and 1995 orders prospectively modified child-support payments due from Tabor and that trial courts have the authority to modify future child-support payments; the Court held that because a child-support obligation cannot be waived permanently, since future circumstances may require otherwise, it was within the trial court's discretion to reinstate Tabor's child-support obligation to the parties' daughter; however, the Court held that the trial court was not free to retroactively impose an obligation that had been previously and prospectively relieved by the orders of a prior court of competent jurisdiction; the Court held that those portions of the trial court's March 6, 2000, order providing for a prospective support obligation from Tabor are due to be affirmed; the Court also held that there was no basis for the trial court to set aside its 1993 and 1995 orders)
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Ex parte Nesbitt,

No. 1010676  (Ala. June 7, 2002)
(criminal; petition for postconviction relief pursuant to Rule 32, Ala.R.Crim.P.; timeliness of filing; William R. Nesbitt filed his Rule 32 petition on November 1, 2000, attacking his 1994 conviction for burglary in the third degree, possession of stolen property in the first degree, possession of burglary tools, and his resulting sentence of life imprisonment; the trial court held a hearing on Nesbitt's petition on May 25, 2001, and denied his petition that same day; as to Nesbitt's claim that the trial court improperly applied the Habitual Felony Offender Act, the Court of Criminal Appeals determined that that claim was not a jurisdictional claim, that it was waivable, and that it was therefore subject to the two-year limitations period set out in Rule 32.2(c), Ala.R.Crim.P.; thus, the Court of Criminal Appeals determined that Nesbitt's claim that the trial court improperly applied the Habitual Felony Offender Act was barred; in regard to Nesbitt's claim that the trial court erred in not conducting an evidentiary hearing on his claim of prosecutorial misconduct, in which he specifically contended that Officer Troy Childress had committed perjury during Nesbitt's trial and that this constituted newly discovered evidence, the Court of Criminal Appeals determined that the alleged perjured testimony was not newly discovered evidence pursuant to Rule 32.1(e), Ala.R.Crim.P.; the Court of Criminal Appeals further stated that "Nesbitt's contention is nothing more than bare allegations supported by no evidence, not newly discovered evidence"; HOLDING:  the Supreme Court held that the Court of Criminal Appeals erred in determining that the two claims Nesbitt presents in his appeal were barred by application of the two-year limitations period set out in Rule 32.2(c), Ala.R.Crim.P., because Nesbitt had filed a timely Rule 32 petition in 1998, and the subsequent procedural events, including the Court of Criminal Appeals' August 8, 2000, order dismissing the appeal and setting aside the trial court's judgment all flowed out of the 1998 petition; the Court concluded that the October 27, 2000, Rule 32 petition was not a separate and distinct filing to which the Court of Criminal Appeals could look to determine that the petition was filed outside the two-year limitations period set out in Rule 32.2(c), but was, rather, a continuation of the timely filed 1998 petition; the Court held that, as a valid amended or continued petition Nesbitt's October 27, 2000, Rule 32 petition related back to his timely filed 1998 petition)
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Ex parte Sterilite Corp.,

No. 1010724  (Ala. June 7, 2002)
(standing; real party in interest; plaintiff in bankruptcy;  in 1998,  John C. Homer III was injured when merchandise fell on him when he opened a trailer, loaded by Sterilite Corporation of Alabama, that he had delivered from an undisclosed location to a Wal-Mart distribution center in Virginia; on October 4, 1999, Homer filed a voluntary petition in bankruptcy in the United States Bankruptcy Court, Middle District of Georgia; Homer indicated, by checking a box appearing on the bankruptcy petition, that he was filing for bankruptcy under Chapter 7; Homer did not list as property in the document titled "Schedule B -- Personal Property" any cause of action he had against Sterilite; on December 20, 1999, Homer filed a complaint in the trial court alleging that Sterilite had negligently or wantonly loaded and sealed the trailer, and that its negligence or wantonness caused him permanent emotional and physical injuries; on January 20, 2000, Homer was discharged from bankruptcy by order of the bankruptcy court; on February 23, 2000, Sterilite filed an answer to Homer's complaint; on February 8, 2001, Sterilite filed an amended answer that set out two additional defenses: (1) that Homer did not have standing to assert the claims and seek damages as alleged in his complaint, and (2) that Homer was judicially estopped from asserting the claims and seeking damages that he alleged; on March 29, 2001, the trustee in Homer's bankruptcy case filed, in the bankruptcy court, a motion to reopen that case stating, in pertinent part, that "[i]t now appears that [Homer] failed to schedule or advise your trustee of his interest in a personal injury action," and that "[i]t is believed that this interest has significant value"; on May 3, 2001, the bankruptcy court entered an order reopening Homer's case, and on May 8, 2001, Homer filed an amendment to his bankruptcy petition, adding his lawsuit against Sterilite as a potential asset, and claiming an exemption to a portion of the damages he might receive; on August 16, 2001, Sterilite filed a motion to dismiss  in the trial court arguing that Homer had no standing; the trial court denied that motion; Sterilite filed a petition for writ of mandamus and also filed in the trial court a motion to stay the action; the trial court granted the motion to stay; Homer's bankruptcy trustee filed a motion asking the trial court to lift the stay in order to consider his motion to add himself as a plaintiff in this case; HOLDING:  the Supreme Court held that there is no question that Homer has standing, because Sterilite's alleged negligence or wantonness injured him, not his bankruptcy trustee; the Court observed that while objections to a plaintiff's standing are not waivable, objections based upon an action's not being prosecuted in the name of the real party in interest can be waived; the Court noted that Sterilite made no objection based upon Homer's not being the real party in interest in any of its responsive pleadings; the Court held that because standing was the only issue presented in the petition for the writ of mandamus, it is not necessary that it further address the question whether Homer or his bankruptcy trustee is the real party in interest; the Court denied the petition for writ of mandamus)
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Ex parte Melton,

No. 1010787 (Ala. June 7, 2002)
(criminal; petition for a writ of mandamus directing the trial court to grant the petitioner's request to proceed in forma pauperis on a Rule 32, Ala.R.Crim.P., petition for postconviction relief; Vince Melton was convicted of attempted murder in 1987 and was sentenced to 20 years' imprisonment;   Melton subsequently filed two Rule 32 petitions that were denied by the trial court and affirmed by the Court of Criminal Appeals; Melton filed a third Rule 32 petition that he contends was accompanied by a motion for order granting Leave to Proceed In Forma Pauperis supported with a Rule 32 (IFP) Declaration Form; attached to Melton's petition for a writ of a mandamus was the first page of an in forma pauperis declaration, and it was stamped as "denied" by the trial court; Melton contends that the first page of the denied petition " is all that was forwarded to me by the Court to be used as Evidence"; HOLDING:  the Supreme Court held that it is necessary that it be presented with some documentation showing the petitioner's prison-account balance, certified by the appropriate prison official, and no such documentation was attached to Melton's petition; the Court held that Melton therefore failed to show that the trial court abused its discretion in denying his in forma pauperis request or that he has a clear legal right to the relief he seeks; accordingly, the Court denied the petition for writ of mandamus)
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Ex parte Little,

No. 1010797, 1010798 & 1010799 (Ala. June 7, 2002)
(substantial hardship; indigent inmate plaintiff; waiver of prepayment of court costs; recusal or disqualification of the trial judge; petitions for writs of mandamus filed by Bobby Wayne Little  in three cases all seeking an order directing Judge Richard Joel Laird to vacate his orders denying Little's affidavits of substantial hardship and directing Judge Laird to recuse himself in each of the cases; Little seeks, by the filing of the affidavits in each case, to be declared indigent and to have the prepayment of court costs waived; Little, a state prison inmate, filed three separate civil actions in the Calhoun County Circuit Court against Fred Lawton III, Cindy L. Lewis, and Ted Hooks, respectively; each action was accompanied by a signed and notarized Unified Judicial System Form C-10, "Affidavit of Substantial Hardship and Order"; according to Little, each affidavit noted his approximate income of $5.00 a month from gifts; Judge Laird denied Little's request for indigency status and also struck through the following language on the form: "Affiant is not indigent";  HOLDING:  the Supreme Court concluded that Little has established a clear legal right to the order sought, that is, to have the order denying him indigency status vacated, that the respondent had a duty to perform, and that he refused to do so; the Court issued a writ of mandamus in each case directing Judge Laird to vacate his order denying Little indigency status; as to Little's request for a writ of mandamus requiring Judge Laird to recuse, the Court held that Little failed to establish actual personal bias or prejudice on the part of Judge Laird and further failed to demonstrate that Judge Laird's impartiality might reasonably be questioned; the Court held that the denial of Little's applications for indigency status and the fact that two of the individual defendants had positions in the court system -- a lawyer and the circuit clerk -- without more, does not indicate bias or prejudice on the part of Judge Laird; thus, the Court denied Little's request for an order directing Judge Laird to recuse himself in each of these cases; additionally, the Court did not find that Little has demonstrated an absolute right to indigency status because Little filed only the second page of each affidavit of substantial hardship form with this Court; the Court held that Judge Laird must reconsider Little's applications, and that, in the event Judge Laird finds it appropriate to deny Little indigency status, directed that Judge Laird shall state the reason therefor in writing and notify Little)
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Ex parte Deramus,

No. 1010923 (Ala. June 7, 2002)
(criminal; criminal procedure; habeas corpus; classification as a "heinous offender"; revocation of eligibility for work release; Christopher Deramus was convicted of murder in 1988 and was sentenced to 45 years' imprisonment; Deramus posted an appeal bond and was released pending the outcome of his appeal; Deramus was unsuccessful in his efforts to appeal, and in June 1990, he was returned to Kilby Correctional Facility to serve the remainder of his sentence; in 1994, Deramus  was granted work-release status; in 1995, Deramus began participating in the "PDL" work-release program, and he continued in the program for approximately five years; on June 23, 2000, Deramus was removed from work-release status and returned to Kilby Correctional Facility; the Alabama Department of Corrections ("DOC") notified Deramus that he had been reclassified as a "heinous offender" and that he was permanently ineligible to participate in the work-release program; Deramus filed a "petition for writ of certiorari" in the Limestone County Circuit Court alleging that the DOC had improperly classified him as a "heinous offender"; the circuit court restyled the petition as one for a writ of habeas corpus and, after conducting a hearing, denied the petition; Deramus appealed, and the Court of Criminal Appeals did not address the merits of Deramus's argument but instead affirmed the judgment on the ground that Deramus had mislabeled his petition -– Deramus's petition was styled as a "petition for writ of certiorari," rather than a "petition for writ of habeas corpus"; HOLDING: the Supreme Court held that the Court of Criminal Appeals erred in refusing to address the merits of Deramus's claims; the Court noted that the Alabama Rules of Civil Procedure apply to habeas corpus proceedings to the extent that the practice in this matter is not provided for by statute, citing Ala.R.Civ.P. 81(a)(13); the Court held that Ala. Code §15-21-4 does not address whether a mislabeled petition may be treated as an application for a writ of habeas corpus based upon the relief requested; the Court held that the mere mislabeling of a motion is not fatal; the Court held that because it was clear on the face of Deramus's petition that he was requesting relief regarding the change in his custody classification, the Court of Criminal Appeals, having already held that a petition for a writ of habeas corpus is the proper vehicle by which to challenge a change in custody classification, should have treated Deramus's petition as a petition for a writ of habeas corpus and considered the merits of his claims; the Court reversed the Court of Criminal Appeals and remanded the case for that court to consider the merits of the appeal)
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Ex parte Johnston,

No. 1011003  (Ala. June 7, 2002)
(the petition for writ of mandamus was denied without opinion; Justice Lyons wrote a concurring opinion; Justice Johnstone also wrote a concurring opinion;  the writ of mandamus sought an order to compel a continuance of a hearing on a motion for a summary judgment in order to permit discovery)
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Ex parte Morrison,

No. 1011227 (Ala. June 7, 2002)
(the petition for writ of certiorari was denied without opinion; opinion by Chief Justice Moore concurring in part and dissenting in part; opinion by Justice Johnstone dissenting; the case concerned a child-support award and the finality of a divorce settlement)
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Opinions Released May 31, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, MAY 31, 2002

 

River Conservancy Co. v. Gulf States Paper Corp.,

No. 1001725  (Ala. May 31, 2002)
(lease of real property; Alabama Declaratory Judgment Act, Ala. Code §6-6-220 et seq.; extrinsic evidence of the meaning of a contract; ambiguity; in 1969 Gulf States Paper Corporation ("Gulf States") entered into a timber purchase agreement with E.O. Eddins and Anne E. Eddins in which the Eddinses conveyed to Gulf States all of the timber on a tract of land in Sumter County, hereinafter referred to as "the Eddins tract"; the agreement gave Gulf States 40 years from the execution of the contract to remove all timber and forest products conveyed by the purchase; Gulf States entered into a lease agreement with the Eddinses, for a term of 40 years, beginning on May 19, 1969, and ending on May 18, 2009; the  lease agreement provided that "[f]or the purpose of re-stocking the land following the final harvest cut Gulf States will select from the then existing stand of timber a minimum of five (5) dominant or co-dominant trees per acre to be left as seed trees"; in 1997, an heir of the Eddinses assigned the lease agreement to Bony F. Barrineau; two weeks later, Kelly conveyed the Eddins tract to Bony F. Barrineau by warranty deed; the conveyance was subject to the timber purchase agreement and the lease between Gulf States and the Eddinses; a month later, Barrineau conveyed the Eddins tract to River Conservancy Company, L.L.C. ("River Conservancy"); this conveyance was also subject to the timber  purchase agreement and the lease, and the warranty deed expressly reserved Kelly's right to receive proceeds under the timber purchase agreement; in 1998, Gulf States decided to exercise its rights under the timber purchase agreement to harvest timber on the Eddins tract, and a controversy arose over the restocking of the harvested timber; specifically, the controversy was over whether the "seed-tree" provision of the lease agreement applied to both hardwood trees and pine trees; Gulf States sought a judgment declaring the rights, status, obligations, and liabilities of Gulf States and River Conservancy with respect to the lease agreement and the timber purchase agreement; River Conservancy filed a counterclaim; the trial court entered a judgment for Gulf States, but the court ordered Gulf States to leave both hardwood and pine seed trees to restock the Eddins tract; HOLDING:  the Supreme Court held that the trial court did not err in considering extrinsic evidence to determine the meaning of the "seed-tree" provision because it could properly find that the provision was ambiguous in that the provision could reasonably be interpreted to apply to only pine trees, only hardwood trees, or both pine and hardwood trees; the Court held that the trial court fairly and wisely resolved a difficult dispute and that the evidence in the record and the agreements before the court sustain its findings; the Court affirmed the judgment of the trial court)
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Ex parte Drummond Co.,

No. 1001929  (Ala. May 31, 2002)
(workers' compensation; scheduled and unscheduled injuries; exceptions to scheduled injuries; Kenneth C. Pate worked for Drummond Company, Inc. as a belt patrolman monitoring coal as it left the mine on coal-carrying belts and was also responsible for fixing any belts that stopped or malfunctioned; on March 7, 1996, Pate injured his left knee while he was climbing a hill to restart one of the belts; X rays revealed arthritis in Pate's knee, beneath the patella; Dr. Erich Wouters, an orthopedic surgeon, performed arthroscopic surgery on the knee, and the surgery revealed a partial tear of the meniscus; on July 11, 1996, Dr. Wouters allowed Pate to return to work without any restrictions or limitations, but over the next several months, Pate returned to Dr. Wouters, complaining of intermittent swelling in his left knee; in December 1996, Dr. Wouters again examined Pate, and he concluded that any swelling in Pate's left knee was the result of arthritis; Dr. Wouters assigned Pate an impairment rating of 1% to the whole body; Pate filed a workers' compensation action against Drummond seeking benefits based on the injury to his left knee that had occurred in March 1996; the trial court found that Pate was 50% permanently and partially disabled as a result of his injury; the Court of Civil Appeals affirmed; HOLDING:  the Supreme Court noted that the test of Bell v. Driskill, 282 Ala. 640, 213 So. 2d 806 (1968), permitted an injury to a scheduled member to be compensated outside the schedule if the effect of the injury extends to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the injury to the specific member, but that the Court of Civil Appeals has substantially expanded the Bell test to include, as effects that will take the injury outside the schedule: (1) pain, swelling, and discoloration; (2) work restrictions; (3) impairment ratings to the body as a whole; and (4) vocational disabilities; the Court found that the Court of Civil Appeals has considered the worker's ability to find future employment as a factor in deciding whether an injury to a scheduled member should be compensated outside the schedule; the Court adopted as the test for determining whether an injury to a scheduled member should be treated as unscheduled the following language from the current edition of 4 Lex K. Larson, Larson's Workers' Compensation Law §87.02 (2001): "The great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive"; the Court overruled Bell insofar as it established a different test, and it further overruled those cases that expanded the Bell test; the Court held that the trial court erred in awarding workers' compensation benefits based on its finding that Pate was 50% permanently and partially disabled as a result of an on-the-job injury because it did not have before it substantial evidence indicating that Pate's injury should have been compensated outside the schedule)
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Ex parte James,

Nos. 1950030, 1950031, 1950240, 1950241, 1950408 & 1950409  (Ala. May 31, 2002)
(education funding; separation of powers; in 1990, the Alabama Coalition for Equity and various other plaintiffs filed a complaint in the Montgomery Circuit Court, challenging Alabama's method of funding Alabama public schools as violating the equal protection of the laws as allegedly guaranteed by §§1, 6, and 22 of the Alabama Constitution; in 1991, a group of plaintiffs eventually known as the Harper class filed a similar complaint challenging the funding as violating a "fundamental right to education" for "all of Alabama's children between the ages of seven and twenty-one years," allegedly guaranteed in Art. XIV, §256 of the Alabama Constitution, as originally adopted; these cases were eventually consolidated into what is now known as the "Equity Funding Case"; HOLDING: the Supreme Court held (1) that its review of the merits of the still pending cases known as the "Equity Funding Case" has reached its end, and (2) that, because the duty to fund Alabama's public schools is a duty that -- for over 125 years -- the people of this State have rested squarely upon the shoulders of the Legislature, it is the Legislature, not the courts, from which any further redress should be sought; thus, the Court held that the Equity Funding Case is due to be dismissed)
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Opinions Released May 24, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, MAY 24, 2002

 

ITT Specialty Risk Servs., Inc. v. Barr,

No. 1000618  (Ala. May 24, 2002)
(workers' compensation; tort of outrage; fraudulent suppression; summary judgment;  Rhonda Barr filed a workers' compensation claim against Bruno's Inc.;  ITT Specialty Risk Services, Inc. ("ITT") became the third-party administrator for Bruno's workers' compensation program and in that capacity began handling Barr's claim; Barr's workers' compensation claim against Bruno's was settled, but the final order issued by the court provided that future medical benefits remained open; in January 1998, Barr telephoned ITT, complaining of further medical problems related to her injury; ITT authorized treatment from Dr. Sharon Colgin; after a second appointment, Dr. Colgin recommend that Barr consider seeing a pain specialist; Dr. Colgin's records indicate that ITT was informed of this recommendation; Barr called ITT, stating that Dr. Colgin had referred her to a pain specialist, but ITT advised Barr that it could not authorize treatment by a pain specialist until it had received a referral from Dr. Colgin; after a third visit, Dr. Colgin wrote that she would make referral to a pain specialist, that Barr would always have an element of chronic pain, and that hopefully a pain specialist would be able to help her; Dr. Colgin's records reflected that ITT was copied on Dr. Colgin's notations; when Barr called ITT regarding Dr. Colgin's recommendations, ITT told Barr that it had not been informed that a referral had been made; two employees of Dr. Colgin's office submitted affidavits stating that they read Barr's medical records aloud to ITT; three women who handled claims for ITT testified in depositions that ITT's policy on referrals is that either the referring doctor or the doctor to whom the patient is referred must telephone ITT to receive official authorization for the referral, and all three admitted that they had never informed Barr or Dr. Colgin of this policy and that this "policy" is not a written policy; each of the three claims adjusters testified that she did not doubt the medical necessity of pain management or the reasonableness of her request for authorization, but that ITT was waiting for a telephone call from Dr. Colgin's office before ITT would authorize the referral; one claims processor on Barr's file stated that she could have authorized treatment by a pain specialist even without a telephone call from Dr. Colgin; ITT's activity log stated, "Insured wants to make sure we continue to keep control of this claim and the treating Dr. as they question if clmt is trying to get treatment w/ another physician"; Barr filed this action against ITT asserting claims of, among others, fraudulent misrepresentation, fraudulent suppression, and the tort of outrage; shortly thereafter, ITT approved Barr's treatment by a pain specialist; ITT moved for a summary judgment; the trial court entered a summary judgment for ITT on Barr's claims other than the tort of outrage, fraudulent misrepresentation, and fraudulent suppression; ITT petitioned for permission to appeal from the interlocutory order partially denying its motion for summary judgment; HOLDING:  the Supreme Court held that Barr presented substantial evidence from which a jury could reasonably find that ITT had unreasonably refused to authorize her treatment by a pain-management specialist, but the Court held that the refusal alone does not rise to the threshold of the outrageous behavior; the Court held that the facts of Barr's case did not rise to the level of outrageous conduct necessary to survive the defendant's summary-judgment motion; the Court held that Barr failed to produce any evidence demonstrating that ITT acted intentionally or recklessly to cause Barr extreme emotional distress and that Barr failed to produce any evidence to show that ITT's conduct was "outrageous"; thus, the Court reversed the trial court's denial of summary judgment in favor of ITT on the outrage claim; with regard to the fraudulent-suppression claim, the Court held that the trial court correctly decided that ITT owed Barr a duty to disclose the procedures for obtaining a referral to a pain specialist and that Barr has presented evidence that would qualify as clear and convincing evidence of fraudulent suppression by ITT; the Court affirmed the trial court's denial of ITT's motion for a summary judgment as to Barr's claim of fraudulent suppression; the Court noted that ITT failed to make any specific argument in its brief or in its reply brief as to why the trial court's ruling as to Barr's claim of fraudulent misrepresentation was erroneous; therefore, it affirmed the trial court's denial of ITT's summary-judgment motion as to Barr's claim of fraudulent misrepresentation)
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H.H.B., L.L.C. v. D & F, L.L.C.,

Nos. 1001925 & 1002011 (Ala. May 24, 2002)
(zoning; intervention; standing; H.H.B., L.L.C., is a limited liability company, whose owners are accountants; D & F, L.L.C., is a limited liability company, whose owners are the principals of The Mitchell Company, a real-estate company, and other real-estate companies in Mobile; D & F owns a 1.7-acre corner parcel of property in Mobile ("the subject property"); the building in which H.H.B. is located is across the street from the subject property; all of the property in the immediate neighborhood is zoned, as defined in the zoning ordinance of the City of Mobile, R-1 (One-Family Residential Districts) or B-1  (Buffer  Business Districts); D & F intends to build a 10,000-square-foot CVS retail discount store with 60 parking places on the subject property, but in order to do so, D & F must have the zoning designation of the subject property changed to B-2  (Neighborhood  Business Districts); D & F voluntarily incorporated numerous changes to its plans and restrictions on otherwise acceptable B-2 uses in an effort to accommodate the concerns of residents of the neighborhood, which changes included eliminating any use that could be made of the property under B-2 zoning except for a drugstore, designing a building that would be architecturally compatible with the neighborhood's surrounding buildings, not allowing the sale of beer and wine, not providing outside telephones, restricting dumpster pickups to daylight hours, and constructing a brick wall behind the store; the planning commission's staff recommended to the commission that it deny the application, but the planning commission, in September 2000, voted 6-2 to recommend to the city council that it approve D & F's application to change the subject property's zoning designation to B-2 subject to the conditions and restrictions D & F had voluntarily attached to its application; the council members voted 4-3 to approve the amendment to the zoning ordinance, but Ala. Code §11-44C-28 requires a "supermajority" of the city council before an ordinance can be adopted, which meant that five votes were required in order for the amendment to the zoning ordinance to become effective; D & F appealed the denial of the zoning-ordinance amendment to the Mobile County Circuit Court alleging that the city council's denial of its requested zoning change was "arbitrary and capricious," that it bore "no substantial relationship to the health, safety, morals, or general welfare of the City of Mobile," and that the decision not to rezone the subject property was "not fairly debatable" because D & F was not seeking to change the basic use of the property; the day before the case was set for trial, H.H.B. filed a motion to intervene; the trial court concluded that H.H.B., as a neighboring landowner, "had an absolute right to intervene under Rule 24"; H.H.B. participated in the nonjury trial along with D & F and the City of Mobile; the trial court entered a written order in which it concluded that the City's decision not to amend the zoning ordinance to change the zoning of the subject property to B-2 was arbitrary and capricious as applied to D & F, that keeping the subject property zoned R-1 and B-1 bore no substantial relationship to the health, safety, morals, or general welfare of the City, and that the City's decision not to rezone was not fairly debatable because D & F was not seeking to change the basic use of the property; only H.H.B. appealed; HOLDING: the Supreme Court held that that H.H.B. presented enough evidence to show that rezoning the subject property could have an adverse effect on H.H.B.'s property and, therefore, H.H.B. had standing to intervene in this case and has standing to appeal the circuit court's judgment; the Court held that the trial court did not abuse its discretion in allowing H.H.B. to intervene the day before trial; the Court held that the record in this case demonstrates that the question whether to zone the subject property B-2 instead of B-1 was certainly "subject to controversy or contention" or "open to question or dispute"; therefore, the Court held that the city council's decision should not be disturbed by a court; the Court held that the city council's decision not to rezone the subject property had a reasonable relationship to the health, safety, morals, or general welfare of the community and that the trial court erred in finding its decision to deny rezoning to be arbitrary and capricious; the Court reversed and remanded the case for the trial court to enter an order affirming the decision of the city council)
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Robinson v. Benton,

No. 1010167  (Ala. May 24, 2002)
(legal malpractice; action by the intended beneficiary of a proposed will of a decedent against the decedent's attorney; the complaint alleged, among other things, that (a) after the death of her husband, Frederick O. Postle, on February 5, 1999, Dorothy S. Postle met with Daniel Benton and delivered to him the original of her April 4, 1991, will, (b) Dorothy Postle instructed Benton as her attorney to destroy the existing will and to prepare another will and that she wanted to exclude Barbara Brown and Louis Fred Postle, from her new will, (c) Benton failed to destroy the April 4, 1991, will as instructed, (d) Dorothy Postle died, (e) Rita Postle filed for probate the April 4, 1991, will of Dorothy Postle, and (f) if the April 4, 1991, will offered for probate had been destroyed as Dorothy S. Postle instructed, she would have died intestate and her sole heirs at law would have been the Plaintiff and a sibling; Benton filed a motion to strike certain allegations in Robinson's complaint and to dismiss; the plaintiff filed an affidavit by Benton that had been filed in Dorothy Postle's estate proceedings; the affidavit of Benton stated that Dorothy Postle had delivered the April 1991 will to him, that she wanted it destroyed and replaced by a new will, and that he failed to destroy the April 1991 will; the trial court entered an order granting Benton's motion to strike and to dismiss; HOLDING: the Court noted that under current Alabama law an intended beneficiary cannot bring a civil action against the attorney unless the duty arises from a gratuitous undertaking by the attorney; however, the Court declined to change the law to grant a third-party beneficiary standing to sue an attorney who has allegedly committed legal malpractice through services provided to a decedent; the Court affirmed the judgment of the trial court)
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Ex parte American Color Graphics, Inc.,

No. 1010180  (Ala. May 24, 2002)
(workers' compensation; hearsay; harmless error; Rayfield Foster injured his back on August 22, 1997, while working at American Color Graphics ("ACG") where he worked for over 20 years; Foster received temporary disability benefits  for  28 weeks; Foster sued ACG on April 7, 1999, seeking permanent disability benefits, and the issue at trial concerned the nature and extent of Foster's disability; after filing his action, Foster visited three physicians who found that Foster was physically incapable of working and two psychologists who found Foster to be too depressed to work; these physicians and psychologists prepared reports on their evaluations of Foster, and the reports were submitted to the court; ACG filed a motion in limine to prevent Foster from introducing into evidence the records of the three doctors and two psychologists, as well as the testimony of Foster's vocational expert, on the grounds that that evidence constituted inadmissible hearsay; Foster's attorney presented the findings of the doctors and psychologists who had evaluated Foster in the form of certified records, not through testimony; Foster's vocational expert, Dr. Michael McClanahan, testified at trial, and Foster's attorney asked Dr. McClanahan to express his opinion about Foster's disability based upon those certified records; the trial court issued an order admitting the evidence and finding that Foster had suffered a permanent total disability for which he was entitled to workers' compensation benefits; the Court of Civil Appeals held that the trial court erred in admitting those medical records, but nonetheless affirmed the trial court's finding that Foster was entitled to permanent-total-disability benefits, concluding that the admission of the records was "harmless error"; HOLDING:  the Supreme Court noted that aside from the erroneously admitted records, Foster's only other evidence of permanent total disability was the testimony of Dr. McClanahan, who relied for the most part on the improperly admitted medical records to form his opinion, and noted that Dr. McClanahan's testimony that Foster was totally disabled was not based on his independent findings; the Court held that Dr. McClanahan, who is not a medical doctor or psychologist but rather holds a Ph.D. degree in rehabilitation services; was not qualified to render an expert medical opinion as to the extent of Foster's disability; the Court held that trial court's reliance on the inadmissible evidence precludes the possibility that its admission was harmless error; the Court reversed the judgment of the Court of Civil Appeals and remand the case to that court to remand the case for a new trial, free from influence of the illegal evidence)
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City of Russellville Zoning Bd. of Adjustment v. Vernon,

No. 1010331  (Ala. May 24, 2002)
(zoning; variance; Raymond Vernon owns property in the City of Russellville that was zoned as an "R-3 Residential District" in 1997 when his daughter purchased a mobile home and installed it on his property to serve as her residence; the City's zoning ordinance prohibited, among other things, the use of "mobile homes [and] mobile home parks"; Bois Porter, the City Building Inspector, advised Vernon and his daughter that if they removed the "tongue" and "underpinned" the mobile home, the Board would grant a variance from the prohibited uses; after they made the suggested modifications, the variance was granted; in March 2000, Vernon purchased a mobile home and moved it onto his property with the intent to lease this home for residential purposes; after he removed the tongue and underpinned the unit on the site, Porter visited the site and told Vernon that he could not proceed with the installation unless he obtained a second variance from the Board; Vernon appealed to the Board for a variance; the Board denied Vernon's second variance request, and he appealed to the circuit court; the circuit court entered a judgment in favor of Vernon, finding that the Board's action was "an 'arbitrary and capricious interference with the basic right' of [Vernon] to utilize his property in an appropriate manner"; HOLDING: the Supreme Court reversed, holding that a property owner is not entitled to a variance where the hardship suffered because of the zoning restriction is "self-inflicted or self-created"; the Court held that because Vernon knew of the zoning restriction against mobile homes before he purchased his mobile home and nevertheless purchased the mobile home without first seeking and securing  a variance, his hardship is self-created) 
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Potter v. First Real Estate Co.,

No. 1010339  (Ala. May 24, 2002)
(claims of misrepresentation, suppression, fraud, and promissory fraud arising out of the sale of a house; statute of limitations; reasonable reliance;  Joseph Potter and his then fiancée, Jamie, were looking to purchase their first house; Joseph and Jamie saw a "First Real Estate" sign in the yard in front of Kimberly Boler's house; they telephoned the number on the sign and spoke with Dawn Borden, a real-estate agent employed by First Real Estate; Borden acted as a "dual agent" in the sale of the house, representing both the buyer and the seller; Joseph Potter testified that during the first visit he asked Borden if the house was located in a flood plain, and Borden responded that to her knowledge it was not, but that she would check on a survey she had in her office; Borden told Joseph and Jamie that they could obtain another survey if they wished, but that the one she had was a recent one and that they could save money if they used it; Joseph Potter testified that when Borden showed him the survey of the property that she purportedly had obtained from a prior owner, it was hard to read and "almost illegible," so he took her at her word; on July 7, 1998, Joseph executed an eight-page "Financed Sales/VA Contract" for the house, and the contract stated that the property was not located in a flood plain; at that July 7 meeting, Jamie asked if the property was in a flood plain, and Borden replied, "No"; the sales contract also included a disclaimer stating that "they have not relied upon the advice or representations of Broker ..."; at the closing, Joseph was given a copy of the survey of the property which contained the words "the property described herein (is) (is not) located in a special flood hazard area" and had a slightly diagonal handwritten line moving from the lower left to the right over the words "is not"; Joseph testified that the copy of the survey he was given at the closing was another copy of the same survey he described as "almost illegible"; the Potters testified that they first learned their property was in a flood plain on September 2, 1999, when they received a letter from their mortgage company stating that the property was in a flood plain and that they were required to purchase flood insurance; Joseph contacted an insurance agent and purchased flood coverage for the structure of the house; in March 2000, after heavy rains, the Potters' house flooded; the Potters filed this action; Borden and First Real Estate moved for summary judgment, and the Potters unsuccessfully attempted to postpone consideration of Borden's and First Real Estate's motions for a summary judgment to allow further discovery; the trial court entered a summary judgment for Borden and First Real Estate, stating that the plaintiffs were put on notice that the property in question was in a flood hazard zone; HOLDING:  the Supreme Court held, based upon the documents in the record that clearly show the words "is not" to have been struck through by a hand-drawn line, that the trial court did not err in reading the survey as giving the Potters notice that the property is situated in a flood plain; the Court held that under the reasonable-reliance standard, evidence showing that a single clear and unambiguous document was submitted to a literate person at the time of closing does not always trigger the running of the statute of limitations, regardless of circumstances and events preceding the closing or events occurring at the closing; the Court held that it is consistent with Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala. 1997), to recognize a jury question in a fraud case where the plaintiff's ignorance of the contents of a document is reasonable under the circumstances; the Court held that the evidence of a special relationship between the Potters and Borden, evidence indicating that Joseph was unable to read an earlier version of a document that was presented again at the closing in a legible condition, and evidence of renewed assurances that the document presented at the closing was consistent with the previous document described by Joseph as almost illegible is sufficient evidence to warrant a determination by the jury that there was a "misrepresentation of the content of the agreement or the employment of trick or artifice" at the time of the closing that lulled the Potters into a "false sense of security"; the Court held that "the documents at issue are not as easily understood" as those in Foremost and that a jury, taking the Potters as reasonable first-time home buyers, could conclude that they reasonably relied on Borden's oral representations and the statement in the sales agreement that the property was not in a flood plain; the Court held that the trial court erred in entering a summary judgment based on a finding "that the Plaintiff was put on notice that the property in question was in a flood hazard zone"; the Court reversed the summary judgment entered in favor of Borden and First Real Estate)
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Lacy v. Mini Warehouse World,

No. 1010878  (Ala. May 24, 2002)
(claims of negligence and conversion; Jacqueline V. Lacy entered into an agreement with Mini Warehouse World ("Warehouse") for the lease of a personal storage unit; Lacy failed to make payments for the first two months, but Warehouse forgave this debt after Lacy paid the rental amount for the third month; from September 1998 through July 1999, Lacy again failed to pay the rent due; in April 1999, Warehouse sent Lacy, by certified mail, a notice of its intent to sell the contents of the storage unit; before the sale could take place, Lacy made payments toward her total past due rental amount, and Warehouse canceled the sale; from August 1999 until December 1999, Lacy again failed to pay the rent; in October 1999, Warehouse sought to sell the contents of Lacy's storage unit and notified her by certified mail of its intent to sell the contents; in the certified mail notice, Warehouse misspelled the name of Lacy's street name, writing "Gehig" instead of "Gehrig" and also put the wrong zip code, writing "36613" instead of "36610"; Lacy sued Warehouse, alleging negligence and conversion; Warehouse moved for a summary judgment; Lacy included in her response an affidavit stating that she had not received the October 1999 notice; the trial court entered a summary judgment for  Warehouse; filed a motion to alter, amend, or vacate the trial court's judgment on the ground of newly discovered evidence, namely, a letter from the United States Postal Service, Mobile main post office, indicating that it had no record of delivery for the second certified letter; the trial court denied the motion;  HOLDING:  the Supreme Court held that the trial court erred in entering the summary judgment; the Court held that Warehouse failed to show that there was no genuine issue of material fact regarding whether it complied with the notice requirements of Ala. Code §7-7-210(2))
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Ex parte Conners,

No. 1010939  (Ala. May 24, 2002)
(the Supreme Court denied the petition for writ of certiorari without opinion, but stated that the Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion)
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Rice v. English,

No. 1010968  (Ala. May 24, 2002)
(redistricting; elections; one-person, one-vote; judicial review; Ala. Const. art. IX, §200; the new redistricting plan for Alabama senate districts, Act No. 2001-727, 2001 Ala. Acts (hereinafter "the redistricting plan"), was approved by Governor Don Siegelman on July 3, 2001, and was precleared by the Attorney General of the United States on October 15, 2001; John W. Rice, William McCall Harris, and Patricia Christine N. Wood (hereinafter collectively referred to as "the Rice plaintiffs") challenged the redistricting plan, contending that the plan failed to satisfy the one-person, one-vote standard they viewed as mandated by Ala. Const. art. IX, § 200; Ala. Const. §200 prohibits a districting plan that divides a county between two districts and requires the districts to be "as nearly equal to each other in the number of inhabitants as may be"; the provision of §200 prohibiting a districting plan has previously been declared unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; the Rice plaintiffs contended that the new senate districts failed to satisfy Ala. Const. art. I, §33, and Ala. Const. art. IX, §200, in that the population of the new districts was not "as nearly equal to each other ... as may be"; the Rice plaintiffs sought a judgment declaring that the new plan violates state law and injunctive relief that would, among other things, prohibit the use of the new districts in any election; the defendants  moved for summary judgment, and the trial court granted that motion; HOLDING:  the Supreme Court held that it had jurisdiction to review the Rice plaintiff's challenge, stating that the authority of the Court to review challenges to acts of the Legislature on constitutional grounds is a bedrock principle of our State's legal heritage; the Court held that the trial court afforded the Legislature appropriate deference in its solution to the difficult question of dividing the State into 35 senate districts with approximately equal population; the Court held that while its members might have opted for different district boundaries or greater concern for more uniformity of population within districts if they had been part of the Legislature, as judges, they cannot overturn the redistricting plan on the grounds asserted by the Rice plaintiffs; the Court declined to require further proceedings on whether a deviation in population of plus or minus five percent violates the constitutional mandate of § 200 that "districts shall be as nearly equal to each other in the number of inhabitants as may be," and it affirmed the judgment)
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Ex parte State (In re: State v. St. Paul & Marine Fire Ins. Co.),

No. 1992198  (Ala. May 24, 2002)
(the Supreme Court held that the opinion of the Court of Criminal Appeals is correct and cited Ala. Code §13A-1-4 ("No act or omission is a crime unless made so by this title or by other applicable statute or lawful ordinance") without further elaboration)
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DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, MAY 17, 2002

 

Patterson v. Gladwin Corp.,

No. 1001747  (Ala. May 17, 2002)
(taxation; subject-matter jurisdiction; immunity; exhaustion of remedies; class actions; corporate franchise tax; action seeking refunds of previously paid corporate franchise taxes; this action was filed as a class action on May 24, 1996, by Gladwin Corporation ("Gladwin"), on behalf of itself and all other corporations similarly situated, while South Central Bell Tel. Co. v. Alabama, 526 U.S. 160 (1999), on remand, South Central Bell Tel. Co. v. State, 789 So.2d 133 (Ala. 1999) ("First Interim Order"), and 789 So.2d 147 (Ala. 2000) ("Second Interim Order"), was pending; Gladwin sought a refund initially in the circuit court and invoked none of the administrative procedures for relief set forth in the Taxpayers' Bill of Rights and Uniform Revenue Procedures Act, Ala. Code §40-2A-1 et seq. ("the TBOR"); the complaint as last amended on November 1, 2000, added Arizona Chemical Company ("ACC") as a class representative; before joining this action, ACC had petitioned the Department of Revenue ("the Department") for a refund of franchise taxes it had paid from 1995 to 1999; ACC appealed, pursuant to §40-2A-7(c)(5), to the administrative law division of the Department, but while that appeal was pending, ACC asserted its claims in the amended class-action complaint; the trial judge certified, pursuant to Ala.R.Civ.P. 23(b)(3), an opt-out class consisting of approximately 18,000 class members and placing approximately $1 billion in controversy; HOLDING:  the Supreme Court dismissed the action for lack of subject-matter jurisdiction; the Court held that a direct action in the circuit court seeking a tax refund from the State treasury is barred by the principle of sovereign immunity, as that principle is expressed in Ala. Const. art. I, §14; the Court held that a reasonable taxpayer would have thought that the TBOR represented the exclusive remedy for unlawful franchise taxes; consistent with the Court's holding that compliance with the TBOR is the exclusive means to a franchise-tax refund, the Court overruled Monroe v. Valhalla Cemetery Co., 749 So.2d 470 (Ala. Civ. App. 1999), and Sizemore v. Rinehart, 611 So.2d 1064 (Ala. Civ. App. 1992), to the extent that they are inconsistent with this holding; the Court held that federal due process does not require Alabama to permit a direct action against the State for a tax refund)
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Rivard v. University of Ala. Health Servs. Found., P.C.,

No. 1001840  (Ala. May 17, 2002)
(medical malpractice; Roland Rivard received numerous injuries in an automobile accident; he was transported to a hospital owned by the University of Alabama Health Services Foundation, P.C. (the "University") where Dr. Jorge Alonso performed emergency surgery; in order to repair some of  Rivard's injuries, Dr. Alonso harvested bone from Rivard's pelvic area; after Rivard recovered from the accident and surgery, he complained of pain, discomfort, and numbness in his buttocks, penis, scrotum, and perineum, and he also complained that he was impotent and that the condition was permanent; Rivard filed a medical-malpractice action against the University and Dr. Alonso, alleging that Dr. Alonso and the University's performance of the bone- harvesting-and-grafting procedure was below the appropriate standard of care because, he claimed, Dr. Alonso penetrated portion of his spinal canal while harvesting the bone during the procedure; Rivard's wife claimed that she lost the comfort, care, and services of her husband; the University and Dr. Alonso moved for summary judgment; in opposition to the motion for a summary judgment, Rivard, who is also an orthopedic surgeon licensed by the State of Alabama, proffered his own deposition testimony; although Rivard admitted that his injuries could have resulted from other causes, such as the dislocation of an occult fracture suffered in the accident, he opined that it was not probable, absent medical malpractice by the orthopedic surgeon -- i.e., Dr. Alonso -- for the sacral defect to be present, and he stated that, absent medical negligence, he has never observed this type of sacral defect; Rivard also offered the testimony of Dr. Carl Sanfelippo, a board-certified urologist who specifically testified that, in his opinion, the effects of the accident and the surgery probably combined to cause Rivard's injury; Rivard also presented the expert testimony of Dr. Max Burr, a board-certified orthopedic surgeon, who testified that Dr. Alonso deviated from the standard of care when he invaded Rivard's sacroiliac joint and sacrum and that, in his opinion, it was the bone-grafting procedure that probably caused the injury to Rivard's sacral canal; Dr. Burr admitted that other circumstances could have caused that injury, but he specifically characterized those other possibilities as "long-shot possibilities"; the trial court entered a summary judgment in favor of Dr. Alonso and the University; HOLDING:  the Supreme Court reversed the summary judgment because it concluded that the testimony offered presented a genuine issue of material fact as to the cause of  Rivard's injuries)
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Fast Phones, Inc. v. City of Montgomery,

No. 1002017  (Ala. May 17, 2002)
(taxation; business license fee; Fast Phones, Inc. has an agreement with BellSouth Telecommunications, Inc. ("BellSouth"), pursuant to which Fast Phones leases local telephone lines from BellSouth; Fast Phones then sells local telephone service to consumers whose credit history is poor; it sells that service at a price higher than the price BellSouth ordinarily charges its customers; BellSouth owns all of the facilities and equipment necessary to provide the local telephone service Fast Phones resells, and Fast Phones itself does not own any facilities, transmission equipment, telephone lines, switching equipment, or other engineering equipment nor does it perform maintenance work on the telephone lines or the equipment; Fast Phones also does not provide long-distance telephone service; in order to conduct its business, Fast Phones is required to obtain a certificate of public convenience and necessity  from the Alabama Public Service Commission ("the APSC"); the APSC issued a certificate of public convenience and necessity to provide "resold local exchange service" in the State of Alabama to Fast Phones; the City of Montgomery (the "City") assessed Fast Phones a  license fee in the amount of $12,000, pursuant to City of Montgomery License Ordinance No. 48-91, §19C-21i, which authorizes the City to collect a license fee from any "person, firm, or corporation which operates a telephone exchange or exchanges within the City"; Fast Phones paid the license fee under protest and appealed the assessment to the City's Board of Revenue Appeals (the "Board"); the Board upheld the assessment, and Fast Phones appealed to the Montgomery County Circuit Court; the trial court entered a summary judgment in favor of the City; HOLDING:  the Supreme Court held that Fast Phones is not subject to City of Montgomery License Ordinance No. 48-91, §19C-21i ("the telephone-exchange ordinance") because it is merely a reseller of telephone services and does not operate a "telephone exchange")
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Ex parte Weddington,

No. 1010037  (Ala. May 17, 2002)
(criminal; child pornography and child molestation; preservation of error as to jury instructions; defendant (Danny Weddington) was convicted of first-degree sexual abuse, first-degree sodomy, production of obscene matter, and possession of obscene matter; the convictions arose out of Weddington's videotaping himself engaging in sexual acts with the four-year-old daughter of his wife's best friend; at the hearing on the jury instructions, the State requested that the trial court give instructions based on Rutledge v. State, 745 So.2d 912 (Ala. Crim. App. 1999), concerning the charges of possession of obscene matter and production of obscene matter; the State also requested that the trial court instruct the jury that the "electrical or electronic reproduction" prohibited by Alabama's anti-obscenity statutes includes computer images depicting child pornography and that the statutes creating the offenses Weddington was charged with prohibit the possession of child pornography by any means, including visual depictions displayed on a computer or computer diskettes, and found on the Internet; Weddington, through counsel, argued that the requested instructions should not be given because, counsel argued, to be found guilty of producing child pornography the defendant must be present with the child; the trial court overruled Weddington's objection and stated that Weddington was granted a continuing exception; after concluding the jury instructions, the trial court held an off-the-record discussion with counsel, and then the court went back on the record and stated: "Let the record reflect that the defendant's exceptions to the requested jury charges were timely made and that they have been made again and are incorporated by reference"; the trial court sentenced Weddington to consecutive terms of 10 years in prison on the convictions for first-degree sexual abuse and possession of obscene matter, and to life imprisonment on the convictions for first-degree sodomy and production of obscene matter; the Court of Criminal Appeals affirmed the convictions in an unpublished memorandum; HOLDING:  the Supreme Court reversed the Court of Criminal Appeals only to the extent that it held that Weddington failed to preserve for appellate review his objections to the trial court's jury instructions on the count charging production of obscene matter; the Court affirmed the judgments of the Court of Criminal Appeals and the trial court as to the holdings that the videotapes shown to the jury containing child pornography were not privileged as communications made during Weddington's marriage, that the videotapes were properly authenticated, and that other  pornographic videotapes Weddington had downloaded from the Internet were excludable as irrelevant; the Court remanded the case to the Court of Criminal Appeals to consider Weddington's objections to the trial court's jury instructions on the production-of-obscene-matter count)
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SouthTrust Bank v. Ford,

No. 1010124  (Ala. May 17, 2002)
(arbitration; Edwin Edwards and SouthTrust were involved in a dispute regarding SouthTrust's  payment of an allegedly forged check drawn on Edwards's account at the time Edwards died; Edwards's daughter, Melody Ford, was appointed the  administratrix of his estate; Edwards's checking account with SouthTrust was governed by a "deposit agreement"; the deposit agreement incorporated by reference SouthTrust's "Rules and Regulations Governing Deposit Accounts" and all amendments thereto; those rules and regulations contained an arbitration provision; Melody Ford and her husband, Eddie Ford, filed this action against SouthTrust, alleging that SouthTrust (1) negligently cashed  a forged item drawn on Edwards's account, (2) intentionally inflicted emotional distress by causing Edwards's estate to be depleted and "having to vainly attempt to have [SouthTrust] reimburse the Monies and having to deal with Uncaring and Rude personnel of [SouthTrust]", and (3) intentionally misrepresented and suppressed material facts concerning the passing and forgery of the check; trial court denied SouthTrust's motion to compel arbitration, finding that the "substantial-effect-on- interstate-commerce" requirement had been satisfied but that the arbitration agreement did not apply to claims asserted by the depositor's agents, assigns, or representatives; HOLDING:  the Supreme Court held that SouthTrust established the existence of a contract calling for arbitration because the parties do not dispute that Edwards's checking account was governed by SouthTrust's deposit agreement, or that the deposit agreement included the arbitration agreement; the Court held that SouthTrust also presented evidence concerning the effect of its banking activities on interstate commerce and noted that the Fords do not challenge SouthTrust's assertion or the trial court's finding that the transaction at issue in this case had a substantial effect on interstate commerce; the Court held that where an executor or administrator asserts a claim on behalf of the estate, she must also abide by the terms of any valid agreement, including an arbitration agreement, entered into by the decedent, and because Melody serves as the administratrix of Edwards's estate, she stands in his shoes; thus, the Court concluded that Melody's claim to recover the value of the improperly paid check is subject to arbitration because she is asserting that claim in her role as the administratrix of Edwards's estate; the Court held that to the extent that Melody's tort claims of intentional infliction of emotional distress and fraud are based upon an injury sustained by Edwards before his death, those claims would be subject to the agreement to arbitrate, but the Court did not express any opinion as to whether any such claims survived Edwards's death; the Court noted that Melody is not seeking the benefits of the Edwards-SouthTrust deposit agreement, she is not a third-party beneficiary of the Edwards-SouthTrust deposit agreement, and the doctrine of "intertwining"/equitable estoppel is not applicable; therefore, the Court held that if Melody is asserting a tort claim based upon an injury she suffered directly, those claims are not subject to arbitration; the Court remanded the case and instructed the trial court t to conduct further proceedings as necessary to determine which, if any, of Melody's tort claims are asserted on behalf of Edwards's estate and which, if any, are asserted on her own behalf, and to determine which claims were subject to arbitration in accordance with this opinion; the Court held that the same reasoning applied to Melody's claims are applicable to Eddie's claims, and since nothing in the record suggests that Eddie is asserting his claims in any capacity other than an individual one, his claims are not subject to the arbitration agreement)
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Ex parte State of Alabama (In re:  Carter v. State),

No. 1010251  (Ala. May 17, 2002)
(criminal; murder; doctrine of transferred intent; the defendant (Carter), her boyfriend Trevas Bell, and her good friend Artimese Johnson, were involved in an altercation with a group composed of Tamiko Smith, Sheri Baker, and Marcus Cephas; Cephas attempted to push Carter, and Bell began fighting with Cephas; as the two men fought, Cephas knocked Carter to the ground, where  Carter saw a 9mm pistol which she picked it up, fired, and shot Cephas and her friend, Artimese Johnson, killing both; Carter also shot and wounded her boyfriend, Bell; the jury convicted Carter of intentional murder for the death of Artimese Johnson and provocation manslaughter for the death of Marcus Cephas; the Court of Criminal Appeals reversed on the ground that the verdicts were inconsistent because "the doctrine of transferred intent can[not] support a conviction for a greater offense with regard to the unintended victim than for the intended victim";  HOLDING:  the Supreme Court held that, under the doctrine of transferred intent, a defendant can be convicted of an offense as to the unintended victim that is greater than the offense the defendant was convicted of with respect to the intended victim; the Court held that the jury did not find two distinct mental states for one course of conduct -- they found that Carter had the intent to kill, but that in the case of  Cephas, her guilt was mitigated by the provocation brought on by his actions toward her; the Court held that the intent that "transferred" was not lessened by the provocation and held that only Carter's guilt in the eyes of the law was lessened because of the factual circumstances; the Court held that because this is not a case where the verdicts are mutually exclusive of each other, a reversal is not warranted; the Court reversed the Court of Criminal Appeals' reversal)
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Quimby v. Memorial Parks, Inc.,

No. 1010334  (Ala. May 17, 2002)
(law of the case; this matter has been before the appellate courts in Alabama on two separate occasions -- see Quimby v. Memorial Parks, Inc., 667 So.2d 1353 (Ala. 1995) ("Memorial Parks I"), and Quimby v. Memorial Parks, Inc., 705 So.2d 430 (Ala. Civ. App. 1997) ("Memorial Parks II"); initially, the trial court entered a summary judgment for Memorial Parks, Inc. ("M.P.I."), holding that the oral agreements Robert E. Quimby contended existed between him and M.P.I. were barred by the Statute of Frauds; that judgment was reversed in Memorial Parks I; on remand, the case was tried, and the trial court found that there was an oral agreement between Quimby and M.P.I. but found that it was void under the Statute of Frauds; in Memorial Parks II, the Court of Civil Appeals reversed the trial court's judgment, holding that the trial court erred in finding that the oral agreement was void under the Statute of Frauds as being incapable of performance within one year; on remand, the trial court, without hearing any additional evidence and in spite of its previous orders in this case, found that Quimby had not proven that an oral agreement existed between him and M.P.I.; HOLDING:  the Supreme Court held that the trial court had previously found that an agreement existed between Quimby and M.P.I., and the law of the case will not permit the trial court to reverse itself; the Court again reversed the judgment of the trial court)
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Burgoon v. Alabama State Dep't of Human Resources,

No. 1010345  (Ala. May 17, 2002)
(wrongful death; immunity; granting a motion to dismiss without a hearing;  17-year-old J.B. Beasley was murdered, suffering a gunshot wound to the head, and her body was discovered locked in the trunk of her automobile; at the time of the murder, Beasley was in the legal custody of the Houston County Department of Human Resources; Cheryl Burgoon, individually and as administratrix of the estate of her daughter, J.B. Beasley, commenced a wrongful-death action in the Houston County Circuit Court against the Alabama State Department of Human Resources and the Houston County Department of Human Resources (hereinafter referred to collectively as "DHR"), and against certain individuals, among whom were employees of DHR; Burgoon's complaint alleged, among other things, that certain individuals had failed to supervise Beasley; the trial court entered on the case-action-summary sheet an order scheduling a hearing on October 2, 2001, for "[a]ll pending motions"; the defendants filed motions for dismissal; DHR and one of its employees filed a joint "Motion to Dismiss Pursuant to [Ala]. R. Civ. P. 12, or in the Alternative, Motion for Summary Judgment Pursuant to [Ala]. R. Civ. P. 56" accompanied by  the employee's affidavit; 11 days before the scheduled hearing, the trial court entered the following order on the case-action-summary sheet: "Motions to dismiss as to all defendants are hereby granted"; HOLDING:  the Supreme Court held that, in accordance with Ala.R.Civ.P. 78, with one exception, a court may not grant a motion to dismiss without a hearing, although, in some circumstances, it may deny such a motion without a hearing; the one notable exception to this rule is when a court is without jurisdiction to entertain a suit against the State because of Ala. Const. art. I, §14; the Court held that a trial court must dismiss an action against a State agency or against a State agent acting in an official capacity at the earliest opportunity and that the trial court did not err in dismissing the claims against DHR and against its employees in their official capacities, because facially these claims were claims against the State; the Court held that the DHR employees in their individual capacities enjoy only qualified immunity from suit and that the claims against the individuals in their individual capacities are not subject to the "notable exception" to Rule 78, because such claims are not claims against the State; thus, the Court held that the trial court erred in granting the motions to dismiss the claims against all individual defendants in their individual capacities without conducting a hearing; the Court reversed the trial court's judgment to the extent the judgment dismissed the claims against the individuals in their individual capacities; the Court affirmed the trial court's judgment to the extent it dismissed the claims against DHR and against the individual defendants in their official capacities)
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Ex parte Russell,

No. 1010489  (Ala. May 17, 2002)
(criminal; venue; driving under the influence of alcohol; Mobile police officer General Finklea stopped Michael Levonne Russell  for a headlight violation, and when Officer Finklea approached Russell's vehicle, he detected the odor of alcohol on Russell's person; when Russell was unable to perform a field sobriety test successfully, Officer Finklea placed him under arrest for driving under the influence of alcohol; two Intoxilyzer tests revealed that Russell's blood-alcohol level was .18 and .19, respectively; at trial, Officer Finklea testified that when he turned on his flashing lights and siren to stop Russell's vehicle, Russell stopped within about 500 to 600 feet; the prosecutor did not specifically ask Officer Finklea the location at which Russell stopped his vehicle, but the prosecutor did ask Officer Finklea the following question: "I think you heard the Judge say earlier that you stopped Mr. Russell at Dr. Martin Luther King and English?" -- to which  Officer Finklea responded, "Yes, ma'am"; at the close of the City's case, Russell moved for a judgment of acquittal, arguing, among other things, "lack of venue," and the trial court denied that motion; Russell was convicted of driving under the influence of alcohol; the court sentenced him to pay a $750 fine and to serve one year in the county jail, but it split that sentence, ordering Russell to serve 10 days of the jail sentence, and it suspended the balance of the jail sentence and placed Russell on one year's probation; the Court of Criminal Appeals affirmed Russell's conviction; HOLDING:  the Supreme Court held that failure to prove venue is ground for reversal; the Court further held that the City failed to prove venue because the prosecutor asked Officer Finklea only if he heard the trial judge say earlier that Officer Finklea had stopped Russell at the intersection of Dr. Martin Luther King Boulevard and English Street, and a witness's response to a question asking if he or she heard something that another has said indicates only whether the witness heard such statement, not whether the statement was true; the Court held that evidence indicating that Officer Finklea was a member of the Mobile Police Department when he made the arrest and that Russell was taken to the police station to which Officer Finklea was assigned is not proof beyond a reasonable doubt that Officer Finklea made the arrest within Mobile County; the Court reversed the judgment of the Court of Criminal Appeals)
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Ex parte McFadden Engineering, Inc.,

Nos. 1010815 & 1010832  (Ala. May 17, 2002)
(discovery; continuance; petition for a writ of mandamus directing the trial court to vacate its order refusing to allow the petitioners to conduct, or adequate time in which to conduct, certain discovery; the Town of Millry, Alabama, sued McFadden Engineering, Inc., A. Frank McFadden, SJ&L, Inc., Michael B. Tew, and North American Specialty Insurance Company (hereinafter collectively referred to as "the petitioners") asserting claims stemming from the petitioners' design and construction of Millry's expansion of its existing sewer system ("the expansion system"); three and a half years after litigation began, a total of 119 individual plaintiffs (hereinafter "the intervenor plaintiffs") moved to intervene in the case, and the trial court granted those motions; the intervenor plaintiffs adopted some of Millry's claims against the petitioners, but also added new claims; the petitioners sent various interrogatories and requests for production to each of the intervenor plaintiffs; after two motions to compel and a motion for sanctions, beginning on December 21, 2000, and continuing through May 4, 2001, the intervenor plaintiffs gradually submitted responses to the petitioners, and while some of the responses were still somewhat incomplete, they were apparently sufficient to provide a foundation based on which the petitioners could prepare to take the depositions of each intervenor plaintiff; the depositions of 87 of the intervenor plaintiffs were taken between April 2001 and December 2001, and the plaintiffs also took the depositions of the petitioners and their experts; the depositions of the intervenor plaintiffs revealed particular facts surrounding their individualized allegations, which were not sufficiently known until those depositions were taken, such as what damage had been incurred to the property, when the damage began to occur, and the details of the party's  individual plumbing and electrical systems; on December 14, 2001, the plaintiffs filed supplemental responses to interrogatories and requests for production, identifying 22 categories of individuals who may have knowledge of the facts surrounding the plaintiffs' claims, including several individuals who had not yet been deposed; also identified was a previously undisclosed expert witness who was to testify as to the values of the intervenor plaintiffs' properties and the alleged diminution of those values; in response, the petitioners retained their own expert property appraisers; the petitioners also sought to inspect the homes of each intervenor plaintiff in order to investigate the specific damage claims made by each intervenor plaintiff during deposition and the possible causes for that damage and to examine each intervenor plaintiff's particular electrical and plumbing connection to the expansion system, but in a letter dated January 11, 2002, counsel for the intervenor plaintiffs refused to give permission to the petitioners to perform those inspections, stating that the inspections were not necessary and that the petitioners had waited too close to the date of trial -- which had been set for February 11, 2002 -- to seek the inspections; the petitioners on January 14, 2002, jointly filed a "Motion for Immediate Entry Upon Land for Inspection"; the trial court denied the petitioners' request to enter and inspect the intervenor plaintiffs' properties as to all purposes except appraisal purposes, and  the court also denied the petitioners' motions for continuances, meaning that the petitioners would have less than a month to complete the appraisals -- or any other discovery matters -- if the petitioners wanted to have them available before trial; HOLDING: with respect to the trial court's denial of the petitioners' request to inspect the intervenor plaintiffs' residences for purposes of inspecting the plumbing and electrical connections and verifying the plaintiffs' claims of damage, the Supreme Court held that the trial court clearly abused its discretion, and it issued the writ of mandamus; as to the trial court's denial of additional time within which to complete discovery, the Court held that that issue is moot and, as to the petitioners' request for additional time, it denied the petitions)
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Opinions Released May 10, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, MAY 10, 2002

 

Walker v. GuideOne Specialty Mut. Ins. Co.,

No. 1000964  (Ala. May 10, 2002)
(uninsured-motorist insurance; "miss-and-run" accident with no physical contact by a "phantom" vehicle;  the automobile insurance policy issued by GuideOne Specialty Mutual Insurance Company to Lola Walker provided, with regard to the uninsured-motorist coverage, "If there is no physical contact with the hit-and-run vehicle the facts of the accident must be proved.  We [GuideOne] will only accept competent evidence other than the testimony of a person making [a] claim under this or similar coverage"; Walker was involved in an automobile accident; she was severely injured and the only passenger in the automobile –– her husband –– was killed; Walker alleges that an approaching vehicle left its lane and  crossed into her lane, causing Walker to swerve to miss the oncoming vehicle; her vehicle left the roadway, collided with a tree, and was completely destroyed by the resulting fire; the unidentified "phantom" vehicle did not stop, and it remains unidentified; Walker filed a claim with GuideOne for uninsured-motorist benefits; GuideOne did not pay the claim but instead filed a complaint for a declaratory judgment; the trial court granted GuideOne's summary-judgment motion; HOLDING:  the Supreme Court held that, under Alabama's uninsured-motorist statute, Ala. Code §32-7-23, an insurance policy provision is invalid and unenforceable if, in a "miss-and-run" accident allegedly caused by an  unidentified "phantom" vehicle, the policy will not cover a claimant who fails to produce evidence to corroborate his or her claim; the Court held that GuideOne's policy could be used to "hide a veritable mountain of testimonial evidence that would otherwise indicate that the claimant or claimants are 'legally entitled to recover damages'" and that the undeniable effect of GuideOne's corroborative-evidence requirement, therefore, is to exclude from coverage those who were involved in an accident as the result of a phantom vehicle, but who cannot present "competent evidence other than the testimony of a person making [a] claim," even though such persons may be "legally entitled" to recover under §32-7-23; the Court held that because GuideOne's corroborative-evidence requirement is more restrictive than the uninsured-motorist statute, it is void and unenforceable; the Court reversed the trial court's summary judgment, expressly overruled the decision of the Court of Civil Appeals of Alabama to the contrary in Hannon v. Scottsdale Ins. Co., 736 So.2d. 616 (Ala. Civ. App. 1999), and declined to follow the Eleventh Circuit decision in Moreno v. Nationwide Ins. Co., 105 F.3d 1358 (11th Cir. 1997))
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Ex parte Hutcherson,

No. 1010421 (Ala. May 10, 2002)
(criminal; appellate procedure; mandamus; adequate remedy on appeal; timeliness of petition for post-conviction relief pursuant to Ala.R.Crim.P.  32; Hutcherson filed a petition for post-conviction relief challenging the validity of his capital-murder conviction and death sentence; Hutcherson's counsel admitted that it was filed outside the two-year limitations period of Rule 32.2(c)  because he misunderstood the rule, and he filed a motion for an enlargement of time pursuant to Rule 1.3(b); the State filed a motion to dismiss the petition on the ground that the petition was barred by Rule 32.2(c); the trial court entered an order stating that it would consider the limitations-period argument at the hearing on the merits of Hutcherson's petition; the State filed a petition for writ of mandamus with the Court of Criminal Appeals requesting that the trial court be ordered to dismiss Hutcherson's Rule 32 petition; the Court of Criminal Appeals granted the petition and issued the writ; Hutcherson petitioned the Supreme Court for a writ of mandamus ordering the Court of Criminal Appeals to vacate its order directing the trial court to dismiss his petition; HOLDING:  the Supreme Court held that the issuance of the writ of mandamus by the Court of Criminal Appeals was improper because the State's right, pursuant to Ala.R.Crim.P. 32.10, to appeal the final judgment of the circuit court in a Rule 32 proceeding provides the State with an adequate remedy at law by which to challenge the circuit court's denial of the State's motion to dismiss Hutcherson's petition; the Court noted that the fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal)
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Ex parte State of Alabama (In re:  Featherston v. State),

No. 1010502  (Ala. May 10, 2002)
(criminal; criminal possession of a forged instrument in the second degree; business records exception to the hearsay rule; harmless error; Featherston, was convicted of two counts of criminal possession of a forged instrument in the second degree and was sentenced to concurrent terms of four years' imprisonment, but the sentences were suspended and he was placed on four years' supervised probation and was ordered to pay restitution; the owner of the account on which the forged checks were written, Mr. Campbell, an elderly man in poor health, completed a number of affidavits to submit to his bank alleging that a forgery had occurred in his account; at the trial, the State offered, and the trial court admitted, the affidavits under the business records exception to the hearsay rule; the Court of Criminal Appeals concluded that where the individual reporting the information included in a business record is not an employee of the business, the statement is hearsay and is not admissible as part of the business record; HOLDING:  the Supreme Court did not address the issue of whether the affidavits were admissible as business records because it concluded that the harmless-error rule is applicable; thus, the Court held that any error that might have occurred in the admission of the affidavits does not constitute reversible error; the Court reversed the judgment of the Court of Criminal Appeals)
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Ex parte Jackson,

No. 1981723  (Ala. May 10, 2002) (on application for rehearing and return to remand; withdrawing and substituting the opinion of Feb. 15, 2002)
(criminal; capital murder; judicial override of jury recommendation of life imprisonment to impose the death penalty; admissibility of the defendant's inculpatory statement; harmless error; previously, the Supreme Court had remanded the case to the Court of Criminal Appeals for that court to remand the case for the trial court to conduct a hearing outside the presence of the jury to determine the admissibility of Jackson's inculpatory statement; the trial court denied Jackson's motion to suppress a statement he made to a law-enforcement officer; Jackson claimed that he was tricked into making the statement; the detective who interrogated Jackson -- after reading him his Miranda rights and after Jackson signed a waiver -- told Jackson that a cup with his fingerprints on it had been found in the vehicle; after this statement by the detective, Jackson, who had previously denied knowing the other 3 codefendants, admitted that he knew them; then Jackson admitted to having been with the other codefendants at the time of the murder and to possessing a .380 automatic pistol; the trial court noted that a confession is not inadmissible merely because it was induced by a trick or misrepresentation and found, after examining the totality of the circumstances surrounding the statement of the defendant, that statement was made voluntarily and was therefore admissible; HOLDING: the Supreme Court held that the trial court's findings are adequately supported by the record; the Court concluded, after considering the totality of the circumstances surrounding Jackson's statement, that the State met its burden in proving that Jackson voluntarily and knowingly waived his Miranda rights and that he made his statement voluntarily; additionally, in response to Jackson's argument that the trial court erred in granting the State's pretrial motion in limine requesting that Jackson be prevented from presenting evidence that the victim was involved in drug activity, the Court held that error was not preserved because the trial court had stated it would reconsider its ruling if Jackson decided to testify and Jackson did not testify;  in response to Jackson's argument that the trial court erred in considering his juvenile record in overriding the jury recommendation of life imprisonment without the possibility of parole, which was unanimous, and sentencing him to death, the Court held that the trial court specifically stated that Jackson's juvenile record could not be considered and that, in light of Jackson's three previous felony convictions, any such error would be harmless; the Court also held that the trial court did not err in its assessment of the weight to assign the mitigating circumstance of Jackson's age -- 18 years old -- at the time of the offense; the Court held that Jackson's argument that the trial court failed to determine his culpability is without merit; the Court also rejected Jackson's argument that the trial court's override of the jury's unanimous recommendation of life imprisonment without parole was improper, arbitrary, and unconstitutional, and that it wrongfully negated the role of the jury; the Court commended the trial court for its thorough sentencing order and especially for its explanation for its override of the jury recommendation)
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--(the withdrawn on-return-to-remand opinion released on Feb. 15, 2002, in Ex parte Jackson is also available at the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--

--(the original opinion released on May. 18, 2001, in Ex parte Jackson is also available at the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--

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Opinions Released May 3, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, MAY 3, 2002

 

Ex parte State of Ala. Dep't of Indus. Relations, Second Injury Trust Fund,

No. 1000260 (Ala. May 3, 2002) (on application for rehearing; withdrawing and substituting the opinion of September 14, 2001)
(workers' compensation; the Second Injury Trust Fund ("SITF"), which was created in the 1940s, was designed to encourage employers to employ workers who had previously suffered disabilities by paying additional benefits to employees who were injured a second time and became disabled (Ala. Code §25-5-70 through -75); the statutes that created the SITF were repealed effective May 19, 1992, and  Ala. Code §25-5-316 was enacted to provide a method for paying continued benefits for those who had been eligible under the prior statutory scheme; the trial court ruled that the dependents were not entitled to receive SITF benefits after the death of the qualified recipient, Roy A. Gibbs; the Court of Civil Appeals, relying on Ala. Code §25-5-57(a)(5), reversed the judgment, remanded the case to the trial court, and held that the dependents step into the shoes of the deceased worker and continue to receive the benefits the deceased worker had been receiving; HOLDING:  the issue presented by the parties is whether the dependents of a recipient of benefits from the SITF are entitled to continue to receive SITF benefits after the death of the recipient, but the Supreme Court decided the case on other grounds; the Court noted that under Ala. Code §25-5-57(a)(5), the amount of the benefits may not exceed the amount that would have been due if the employee's death had resulted proximately from an injury on account of which compensation is being paid to an employee, and the Court held that this restriction was determinative in this case; the Court held that where an injured worker's death does not result from his work-related injury and does not occur within three years from the date of the injury, his surviving dependent spouse is precluded from recovering workers' compensation benefits based on her husband's injury; because in this case Gibbs, the employee, was injured on March 28, 1992, and died of nonwork-related causes more than six years later, on July 14, 1998, the Court held that Gibbs's dependents are not entitled to receive workers' compensation benefits from the SITF following his death; thus, the Court held that the trial court correctly found that the dependents were not entitled to continued benefits after Gibbs's death, and the Court reversed the judgment of the Court of Civil Appeals)
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--(the original opinion released on Sept. 14, 2001, in State of Ala. Dep't of Indus. Relations, Second Injury Trust Fund is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

General Motors Acceptance Corp. v. Dubose,

No. 1001060 (Ala. May 3, 2002) (on application for rehearing; modifying opinion released on January 18, 2002)
(class actions; the plaintiff claimed that he had been improperly charged a rental tax that the State of Alabama imposes on the lessors of automobiles, and he asserted claims of breach of contract, suppression, misrepresentation, "quasi-contract and unjust enrichment," and theft by deception; the trial court certified two classes, the Yerby Chevrolet Class and the GMAC Class; HOLDING:  the Supreme Court held that the lease agreement was ambiguous, which prevents the plaintiff from satisfying the "commonality" requirement of Rule 23(a)(2) and forecloses the conclusion that "common issues predominate"; thus, the Court held that the trial judge abused his discretion in certifying the two classes in this case)
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--(the original opinion released on Jan. 18, 2002, in Dubose is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

Ex parte Wright,

No. 1001181 (Ala. May 3, 2002)
(criminal; appellate procedure; timeliness of appeal; Rule 32 petition for post-conviction relief; acting pro se, Wright filed a Rule 32 petition complaining that the indictments in his cases were void, and the trial court denied the petition; Wright appealed the denial, and the Court of Criminal Appeals dismissed his appeal for untimeliness, without an opinion; on December 27, 2000, the  trial judge signed and dated a separate order, not in bench notes or on the case action summary, denying Wright's Rule 32 petition; that order was date-stamped as received by the trial court clerk on January 8, 2001; Wright received notice of this order through the mail on January 10, 2001; Wright alleges that he placed his notice of appeal in the prison mailbox on February 19, 2001, which was 42 days after the January 8 date of the trial court clerk's receipt of the trial judge's order; on February 21, 2001, the trial court clerk date-stamped Wright's notice of appeal as received; Wright's notice of appeal bears a "Declaration of Mailing" signed by Wright and three witnesses stating: "I hereby certify that I have this 19th day of February, 2001, placed the foregoing Notice of Appeal in this Institution's mailbox, postage pre-paid and properly addressed, pursuant to Houston v. Lack, 487 U.S. 266"; HOLDING: the Supreme Court held that because there was no evidence before the Court of Criminal Appeals contradicting Wright's "Declaration of Mailing," which, if true, establishes that his notice of appeal was "filed" within the 42 days allowed by law, and because Wright's notice of appeal must have been mailed on February 19, 2001 (the 42nd day), or February 20, 2001 (the 43rd day), for the notice of appeal to have been received and date-stamped by the trial court clerk's office on February 21, 2001 (the 44th day), the Court of Criminal Appeals' dismissal of the appeal is due to be reversed and the case must be remanded for the trial court to determine whether Wright, in fact, deposited his notice of appeal in the appropriate internal mail system of the prison institution or handed the notice to an appropriate officer of that institution for such deposit on or before February 19, 2001) 
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Ex parte State Dep't of Human Resources,

No. 1001795 (Ala. May 3, 2002)
(termination of parental rights; in August 1996, the Madison County Department of Human Resources ("DHR") received a report that two minor children, W.R.F. IV and S.F., were being inadequately supervised; DHR reached an agreement with the mother and placed the children with J.P. ("the maternal grandmother"); later, the maternal grandmother notified DHR that she could no longer care for the children because she was getting married and her  husband-to-be did not want the children living with them; without DHR's consent, J.P. physically placed the children in the home of a married couple she knew; the children continued to live with the married couple until May 2000, when the couple began having marital problems and requested that the children be moved; the maternal grandmother declined to take custody again because, according to the maternal grandmother, her husband was terminally ill and all of her attention was focused on him, or according to a DHR social worker, her husband was very much opposed to the children's being placed with them; DHR petitioned to terminate the parental rights of the children's parents; before the scheduled termination hearing, the maternal grandmother petitioned to intervene in the action, claiming that she could now accept custody of the children because her husband had died; the Madison County Juvenile Court entered an order terminating the parental rights of N.F., the mother, after finding that the children's maternal grandmother was not a viable alternative to termination; the Court of Civil Appeals reversed; HOLDING: the Supreme Court reversed the judgment of the Court of Civil Appeals and rendered a judgment affirming the judgment of the trial court; the Court noted that the maternal grandmother's continued rejection of the children until the death of her husband was a strong indicator of whether she had a present desire to care for these children as late as 10 days before the termination hearing; the Court noted that the trial court's judgment in this case was based on ore tenus evidence and that the trial court's determination as to the maternal grandmother's ability to care for the children was based, at least in part, upon the maternal grandmother's often conflicting testimony; thus, the Court held that the Court of Civil Appeals was required to apply a presumption of correctness to the trial court's finding that placement of the children with the maternal grandmother was not a suitable alternative to termination; the Court stated that it cannot say that the trial court's conclusion that the maternal grandmother provided no suitable alternative to termination constituted an abuse of discretion or that it was plainly and palpably wrong)
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Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp.,

No. 1002019 (Ala. May 3, 2002)
(final judgments under Rule 54(b), Ala.R.Civ.P.; the lawsuit involved claims and counterclaims arising out of negotiations and transactions between Clarke-Mobile Counties Gas District (the "Gas District") and Prior Energy Corporation, including sales, swaps, and purchases of natural gas; the trial court entered a partial summary judgment in favor of Prior Energy on its counterclaims under Alabama's version of the Uniform Commercial Code ("UCC"), and the trial court later made this partial summary judgment final under Rule 54(b); the Gas District appealed; HOLDING: the Supreme Court held that the trial court erred in certifying as final pursuant to Rule 54(b) its summary judgment on Prior Energy's counterclaims and in determining that the Gas District's claims, including fraud, were not intertwined with Prior Energy's counterclaim; the Court reasoned that because the Gas District claims that it became liable under the contract as a result of the fraudulent conduct of Prior Energy, the opposing claims are based upon the same set of facts and should not be separately adjudicated; the Court held that to allow the Gas District's and Prior Energy's claims to be separately adjudicated in this case would pose an unreasonable chance of inconsistent results, and the Court held that the trial court's Rule 54(b) certification on the summary judgment it entered on Prior Energy's counterclaims is of no effect; because the trial court's Rule 54(b) certification was invalid and the appeal is from a nonfinal judgment, the Court dismissed the appeal)
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Harshaw v. Nationwide Mut. Ins. Co.,

No. 1010114 (Ala. May 3 , 2002)
(action against that insurer for uninsured-motorist benefits; Rose Harshaw was lawfully stopped at a red light at an intersection in Huntsville when her vehicle was struck from the rear by a vehicle driven by Raymond Dennis, an uninsured motorist; the impact caused minor damage to the rear bumper cover of Harshaw's vehicle, and Harshaw contended that her neck was injured in the accident; testimony at trial by Harshaw and the investigating police officer established that Dennis had the odor of alcohol on him and was under the influence of alcohol; in addition to Dennis, Harshaw also sued Nationwide Mutual Insurance Company to assert a claim for uninsured-motorist benefits; Nationwide admitted the existence of the uninsured-motorist coverage and admitted that Dennis was an uninsured motorist at the time of the accident; the jury returned a verdict for Nationwide; HOLDING: the Supreme Court noted that because Nationwide admitted that it provided uninsured-motorist coverage to Harshaw and admitted that Dennis was an uninsured motorist at the time of the accident, the jury merely had to decide whether Harshaw was "legally entitled to recover damages" from Dennis; the Court further noted that because Harshaw offered unrefuted evidence that Dennis was at fault, the only way the jury's verdict could stand is if the jury was entitled to conclude that Harshaw had not proven to its reasonable satisfaction that she had sustained any injury as the proximate result of Dennis's negligence; the Court held that because Nationwide stipulated at trial that "as a proximate result of the September 14, 1998 wreck ... Rose Harshaw sustained personal injuries requiring medical treatment," the jury's responsibility was to determine the extent of such injuries and then to determine the appropriate amount of compensatory damages; the Court held that the trial court erred in denying Harshaw's motion for a new trial, because the preponderance of the evidence is so decidedly against the verdict as to clearly convince this Court that the verdict was plainly and palpably wrong and unjust; the Court reversed the trial court's judgment and remanded)
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Clark Substations, L.L.C. v. Ware,

No. 1010208 (Ala. May 3, 2002)
(noncompetition agreements; enforceability of noncompetition agreements by a company purchasing the assets of the employer with whom the noncompetition agreements were entered; defendants Larry Ware and Kurt Edwards were employed by Clark Corporation; in connection with their employment, Ware and Edwards each executed a  noncompetition agreement, pursuant to which he agreed not to compete with Clark Corporation after the termination of his employment; the noncompetition agreement executed by Ware stated that "the provisions hereof shall inure to the benefit of, and be binding upon, the successors and assigns of [Clark Corporation]" and also provided that "[Clark Corporation] and [Ware] may not assign its or his rights hereunder"; the noncompetition agreement signed by Edwards allowed Clark Corporation to assign the agreement only with Edwards's prior written consent to the assignment; the assets of Clark Corporation were purchased by plaintiff Clark Substations, L.L.C.; Clark Substations operated at the same location with the same employees, products, customers, vendors and the same goodwill as Clark Corporation; both Ware and Edwards went to work for Clark Substations, serving as its president and engineering manager, respectively; subsequently, Ware and Edwards resigned; Ware and Edwards formed Substation Enterprises, Inc. and began to compete with Clark Substations in the substation-packaging business; Clark Substations sued Ware and Edwards to enforce the noncompetition agreements that Ware and Edwards had executed while they were employed by Clark Corporation; Clark Corporation sought, among other relief, a temporary restraining order and a preliminary injunction; the trial court, without a hearing, issued a temporary restraining order against Ware and Edwards; after a hearing, the trial court entered an order ruling that Clark Substations was not entitled to enforce the noncompetition agreements and dissolving the temporary restraining order; the trial court did not enjoin Ware and Edwards from competing with Clark Substations; Clark Substations appealed from the denial of the relief sought in its motion for preliminary injunction; HOLDING:  the Supreme Court agreed with the trial court's order insofar as it, in effect, denied injunctive relief based upon the noncompetition agreements, and the Court held that Clark Substations was not entitled to enforce the agreements; the Court distinguished this case from Sevier Insurance Agency, Inc. v. Willis Corroon Corp. of Birmingham, 711 So.2d 995 (Ala. 1998), on the ground that Sevier Insurance involved a merger of two corporations and was governed by Ala. Code §10-2B-11.06, whereas the present case involved the purchase by Clark Substations of the operating assets of Clark Corporation, a transaction outside the scope of §10-2B-11.06; the Court held that §10-2B-12.02, which specifically deals with a sale-of-assets transaction, does not provide that the mere purchase of a corporation's assets, without a valid assignment of specific contract rights, gives the purchaser all the rights of the seller of those assets, and therefore does not express any legislative intent inconsistent with the policy disfavoring noncompetition agreements expressed in Ala. Code §8-1-1; thus, the Court concluded that Clark Substations is not a successor entitled to enforce the noncompetition agreements executed by Ware and Edwards in the course of their employment by Clark Corporation; the Court held that Clark Substations is not entitled to enforce the  noncompetition agreements as an assignee of those agreements because the agreement executed by Ware specifically prohibited  its assignment by Clark Corporation and the agreement executed by Edwards allowed Clark Corporation to assign the agreement with Edwards's "prior written consent")
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Ex parte H.F.,

No. 1010658 (Ala. May 3, 2002)
(timeliness of appeal; excusable neglect; termination of parental rights; the Alabama Department of Human Resources (the "Department") sought to terminate the parental rights of H.F. and B.F., to their minor child, J.L.F.; the trial court entered a judgment terminating H.F. and B.F.'s parental rights on November 21, 2000; H.F. and B.F. filed a timely postjudgment motion on December 5, 2000; on December 18, 2000, the trial court entered an order denying the December 5 postjudgment motion; H.F. and B.F. had until January 2, 2001, to file a notice of appeal from the December 18, 2000, order, but they took no action until January 3, 2001, when they filed a motion styled as a "Motion to Allow Late Filed Appeal" based on Rule 77(d), Ala.R.Civ.P., and asserting "excusable neglect"; the basis for the alleged "excusable neglect" was the claim of H.F. and B.F.'s attorney that he did not receive notice of the entry of the trial court's December 18, 2000, order until January 3, 2001; on January 5, 2001, H.F. and B.F. filed a notice of appeal, and on January 9, 2001, the trial court entered an order, finding that the notice of appeal was "timely" filed due to excusable neglect; the Department did not contest H.F. and B.F.'s assertion that the untimely filing of the notice of appeal was the result of excusable neglect or the trial court's finding to that effect; however, the Court of Civil Appeals dismissed H.F. and B.F.'s appeal as untimely, holding that because mere lack of notice of the entry of a judgment does not constitute excusable neglect, the trial court improperly extended the time within which to appeal; HOLDING:  the Supreme Court, relying on Ex parte S.W.T., 782 So.2d 766 (Ala. 2000), held that, given the Department's failure to contest H.F. and B.F.'s motion for, and the trial court's order granting, the extension of time within which to file a notice of appeal, the Court of Civil Appeals could not review the merits of that order, because arguments raised for the first time on appeal cannot be considered; the Court reversed the judgment of the Court of Civil Appeals and remand the case for that court to consider H.F. and B.F.'s appeal)
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Ex parte Celtic Life Ins. Co.,

Nos. 1010738 & 1010759 (Ala. May 3, 2002)
(arbitration; this case was previously appealed to the Supreme Court from the trial court's order denying arbitration, Celtic Life Insurance Co. v. McLendon, No. 1992060 (Ala.  June 1, 2001); on that appeal, the Supreme Court held that the "order of the trial court denying Celtic and [Jeffrey] Fredrickson's motions to compel arbitration is reversed, and the cause is remanded for further proceedings consistent with this opinion"; on that appeal, Diane McLendon did not challenge the arbitration clause on the theory that that clause was invalid because it prohibited the award of punitive damages, an issue that had not yet been addressed by the United States Supreme Court or this Court, and on which federal circuit and district courts were divided; after the remand of the previous appeal, the Supreme Court of Alabama decided Cavalier Manufacturing, Inc. v. Jackson, No. 1000391 (Ala. Oct. 5, 2001), in which the Court held that a "predispute arbitration clause that forbids an arbitrator from awarding punitive damages is void as contrary to the public policy of this State"; after Cavalier Manufacturing was decided, McLendon filed a motion in the circuit court asking it to void the arbitration agreement based solely upon the provision in that agreement prohibiting the award of punitive damages; in spite of the ruling in the previous appeal, the trial court granted McLendon's motion; HOLDING:  the Supreme Court held that Celtic, the only defendant who was a party to the contract, waived the right to enforce the provision excluding an award of punitive damages; the Court directed the trial court to vacate its order and enter an order granting Celtic and Fredrickson's motions to stay the proceedings, including discovery, and to compel arbitration in accordance with the arbitration agreement, except for the provision stating that the arbitrators shall have no power to award any punitive damages)
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Ex parte Smith,

No. 1010997 (Ala. May 3, 2002)
(the Court denied the petition for writ of certiorari without opinion but stated that in denying the petition, the Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion)
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DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, APRIL 26, 2002

 

Aronov Realty Brokerage, Inc. v. Morris,

Nos. 1001292, 1001650, 1001733 & 1010456 (Ala. Apr. 26, 2002)
(arbitration; interstate commerce; consolidated appeal involving multiple defendants; the plaintiff asserted claims of fraud, negligence, negligent supervision and training, misrepresentation and suppression, breach of fiduciary duty, wantonness, conversion, conspiracy, and breach of contract, all in regard to her purchase of a condominium unit; the "Real Estate Purchase/Sales Contract" (hereinafter referred to as "the agreement") contained an arbitration clause; the defendants moved to compel arbitration, and the trial court denied them; HOLDING: the Supreme Court held that defendant Elizabeth Maxwell failed to attach to her motion any supporting materials and failed to submit any evidence showing that the agreement evidenced a transaction that affected, to any degree, interstate commerce; therefore, the Supreme Court affirmed the trial court's denial of Maxwell's motion to compel arbitration; the Court held that the other defendants failed to demonstrate that the transaction "substantially affects" interstate commerce where the agreement involved only in-state parties, there was no evidence of tools or equipment moving in interstate commerce, defendants produced no evidence tending to show that any out-of-state contractors were used to assist in the construction of the plaintiff's condominium unit, the condominium unit is incapable of moving across state lines, the purchase price was increased by $217 for settlement charges relating to her purchase of contents insurance through State Farm, a foreign corporation,  $214 for flood insurance for one year was paid to State Farm, $495  was paid for a home warranty through American Home Shield, a foreign corporation, there was no evidence of any out-of-state financing, and the total transaction was $105,724.33; the Court concluded that the defendants failed to make a prima facie showing that the agreement involves a transaction substantially affecting interstate commerce and affirmed the denial of the motions to compel arbitration)
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Hannah v. Gregg, Bland & Berry, Inc.,

Nos. 1002094 & 1002095 (Ala. Apr. 26, 2002)
(wrongful-death action; summary judgment; expert testimony; contributory negligence; claims are based upon the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") and theories of  negligence, wantonness, and breach of warranty; Jerry Hannah was crushed to death between two large industrial machines --  a "belt wrapper" and a "recoiler" -- at a plant operated by  Reynolds Metals Company ("Reynolds"); the belt wrapper and recoiler were manufactured in the mid-1960s by the McKay Machinery Company; the belt wrapper was modified to wind the aluminum in an under-wind direction, but in 1985 or 1986 Reynolds hired Greg, Bland & Berry, Inc. ("GB&B") to convert the belt wrapper to its original overwind configuration; GB&B reconfigured the belt wrapper in accordance with Reynolds's specifications, which did not include a barrier guard to protect persons working between the belt wrapper and the recoiler, and GB&B did not suggest to Reynolds that it include a barrier guard in the specifications; Westinghouse Electric Corporation ("Westinghouse") supplied the electrical controls for the continuous annealing line ("CAL"), including the belt wrapper, in the 1960s; on the day of the accident, Hannah was inspecting the recoiler, which he had previously done twice that day, and he signaled for Roy Gieske to stop the recoiler and then signaled for Gieske to turn the recoiler slowly; however, Gieske pressed the wrong button; when Gieske saw the belt wrapper moving toward Hannah he immediately pressed the retract button, but the belt wrapper did not retract; the belt wrapper lifted Jerry Hannah and pushed him into the recoiler; Hannah died from his injuries; neither Roy Gieske nor Hancock noticed whether the safety pin was in place at the time of the accident, and when Reynolds engineers inspected the accident site, they did not find the safety pin in place;  Judy Hannah, Jerry Hannah's widow, sued several defendants, including Danieli Corporation (formerly McKay Corporation), GB&B, and Westinghouse, alleging negligence and breach of warranty based upon the failure of those defendants to include a safety feature, such as a barrier guard, an interlocking device, or a presence-sensing device, in the area between the belt wrapper and the recoiler; the trial court entered a summary judgment in favor of GB&B and Westinghouse; it denied Danieli's motion for a summary judgment; the trial court certified the summary judgments for GB&B and Westinghouse as final under Rule 54({b); HOLDING: the Supreme Court reversed and remanded the summary judgment in favor of the defendants on the AEMLD and negligence claims; the Court held that the mere fact that GB&B followed the plans and specifications supplied by Reynolds does not, in and of itself, shield GB&B from liability if GB&B should have been aware that complying with those plans and specifications would create an unreasonably dangerous condition, and Hannah submitted expert testimony stating that GB&B should have been on notice of the hazard of failing to include a barrier guard between the belt wrapper and the recoiler;  the Court held that the trial court also erred in entering summary judgment against Westinghouse because Hannah submitted the deposition testimony of two experts who agreed that Westinghouse failed to include appropriate safety devices in the design and installation of the electrical controls for the CAL; the Court held that the electrical controls could be a product for purposes of the AEMLD where Westinghouse designed the control system, the regulating system, and the tension and speed control of the CAL and where Westinghouse supplied motors, the control for the motors, desks, operators stations, control cabinets, the equipment to control the speed and tension of the process line, the logic solenoid, and the logic relays, all in accordance with the design of the electrical circuitry; the Court held that a manufacturer such as Westinghouse could be liable under the AEMLD where there was an alteration of the product if the alteration or modification did not in fact cause the injury, or if the alteration or modification was reasonably foreseeable to the manufacturer or seller, and Although Reynolds modified the electrical control system,  Westinghouse's expert admitted in his deposition that most of those modifications played no role in causing and did not contribute to the accident that killed Jerry Hannah; the Court held that Hannah presented substantial evidence creating a jury question as to whether Westinghouse owed a duty of care to Hannah; the Court rejected Westinghouse's contention that even if the control logic and the control panels are products under the AEMLD, Hannah failed to demonstrate that a feasible alternative design was available that would have reduced or eliminated Jerry Hannah's injuries, because Hannah's experts described five feasible alternative designs Westinghouse could have used in the design and construction of the electrical controls for the CAL; the Court noted that to establish contributory negligence as a matter of law such that summary judgment would be appropriate (as opposed to proving it sufficiently for a jury to find contributory negligence), a defendant seeking a summary judgment must show that the plaintiff put himself in danger's way and that the plaintiff had a conscious appreciation of the danger at the moment the incident occurred, and the Court held that this standard was not met because Hannah submitted evidence that would permit jury could conclude that at the time of his accident, Jerry Hannah was standing in what he may have believed to be a safe position, on the outer edge of the recoiler and that he did not appreciate the danger posed by the belt wrapper, and also that would permit a jury to conclude that Hannah may have inserted the safety pin, believing that it was set, but that the bend in the pin did not allow it to properly lock)
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Flippo v. Pope,

Nos. 1010104 & 1010792 (Ala. Apr. 26, 2002)
(res judicata; Brandy Lynn Pope was injured on November 29, 1997, when an automobile in which she was a passenger collided with another automobile; Pope was a minor at the time of the accident; Pope's father, Michael Cline, filed an action  on Pope's behalf pursuant to Rule 17(c), Ala.R.Civ.P., styled "Michael Cline, on behalf of himself and as father and next friend of Brandy Lynn Pope, a minor, v. Nathan Flippo, Eric Exum, American States Insurance Company"; while Cline's action on her behalf was pending, Pope reached the age of majority in Alabama; the trial court granted a motion filed by Cline's attorneys requesting permission to withdraw from the case, and the trial court entered a handwritten notation on the case action summary that stated:  "Plaintiff has 45 days to secure the services of an attorney or case will be dismissed for lack of prosecution"; the case action summary states that Cline and Pope were notified of the order, but the case action summary does not indicate that Cline or Pope responded to the order; the trial court dismissed the action with prejudice for failure to prosecute; the case action summary states that Cline was notified of that order, at the address  listed on the case action summary as Cline's mailing address -- a street address in Louisville, Kentucky; fourteen months later, Pope filed an action in her own name against Flippo, Exum, and American States asserting identical claims for relief against the same parties as those asserted in Cline's 1998 action; Flippo and Exum motions for summary judgment on grounds of res judicata; Pope responded to those motions with an affidavit in which she testified that she was not notified of the court's order requiring her to obtain an attorney within 45 days after her father's attorneys were allowed to withdraw or of the subsequent order of dismissal; the trial court denied the motions for summary judgment but included the statement required for an interlocutory appeal pursuant to Rule 5, Ala.R.App.P.; HOLDING: the Supreme Court held that the doctrine of res judicata does not operate to bar an action filed by an adult plaintiff to recover for injuries sustained during an incident which occurred during her minority, where that same incident also formed the basis of a previous lawsuit filed on her behalf by her next friend against the same defendants which was dismissed for lack of prosecution after she reached the age of majority; the Court held that, although the authority of the next friend expires when the minor attains the age of majority, that event does not abate an action commenced by the next friend so long as the former minor elects to proceed; the Court held that such an election may be inferred from any conduct on the former minor's part evincing recognition of subsequent prosecution of the action for the former minor's benefit, such as, for instance, knowingly allowing the action to be carried on in the former minor's name or in the name of the next friend; the Court noted that there is no evidence indicating that Pope had notice that her father's attorneys had withdrawn from the case, that the trial court had imposed a deadline for securing new counsel, or that the trial court had dismissed the case until after the trial court had entered the order of dismissal; the Court held that the trial court properly denied the motions for summary judgment filed by Flippo and Exum, and it affirmed the order denying those motions)
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BankAmerica Housing Servs. v. Lee,

Nos. 1010324, 1010325, 1010326, 1010327 & 1010504 (Ala. Apr. 26, 2002)
(arbitration; Robert Lee, Letha Witherspoon, LaSonya Dudley, Antoine Parnell, and Bernice King each purchased a manufactured home or a mobile home from a seller, and the transaction was financed by either GreenPoint Credit, LLC (Witherspoon, Dudley, Parnell, and King) or by BankAmerica Housing Services; in each transaction, the plaintiff became dissatisfied with the home he or she had purchased and sued the seller, the manufacturer, and the financing company, either GreenPoint or BankAmerica; each plaintiff asserted numerous claims, including fraud and breach of fiduciary duty; in each of the underlying  transactions, the installment sales contract signed by the plaintiff contained an arbitration agreement; each of the installment contracts incorporated by reference the Commercial Arbitration Rules of the American Arbitration Association (hereinafter "the  AAA"); in each case, the defendant financing company, either GreenPoint or BankAmerica, moved to compel arbitration; except for Witherspoon, each plaintiff eventually consented to arbitrate their claims; in each case, the trial court entered an order compelling arbitration; the defendants appealed, complaining about certain aspects of those orders, arguing that in each case the order compelling arbitration was improper because it impermissibly deviated from the terms of the applicable arbitration provision by changing the contractually prescribed method of selecting the arbitrator and conducting the arbitration; HOLDING: the Supreme Court concluded that when the trial court ordered the parties to arbitrate their claims, certain of the terms it imposed, instead of simply managing the litigation, as the plaintiffs assert, materially affected the arbitration process itself in ways contrary to the procedures expressly prescribed by the AAA Rules; the Court noted that the trial court's orders compelling arbitration, in conflict with the AAA Rules, (1) required each respective arbitration to be completed within a set time frame; (2) stated a deadline for selecting an arbitrator, in default of which the trial judge would select the arbitrator;  and (3) ordered the defendants to pay the fees and expenses, as opposed to being paid by the respective parties; the Court noted that as to these aspects of an arbitration, the AAA Rules prescribe specific mechanisms and procedures with which the trial court's special provisions are at variance; thus, the Supreme Court concluded that the trial court erred when it mandated mechanisms and procedures inconsistent with the mechanisms and procedures set out in the AAA Rules; the Court held that there is no evidence in the record that the trial judge concluded that any portion of any of the arbitration agreements was unconscionable, and it held that the respective plaintiffs have failed to adequately and properly present such an issue in their briefs, particularly with respect to the hardship that any payment of filing fees or costs as required by the AAA Rules might impose on that particular plaintiff; the Court affirmed the orders insofar as they compelled arbitration, but it reversed the portions of those orders specifically requiring the allocation of fees and costs among the defendants and specifically describing the means for the selection of arbitrators)
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Opinions Released April 19, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, APRIL 19, 2002

 

Bell v. Eagerton,

No. 1000163 (Ala. Apr. 19, 2002)
(elections; on June 29, 2000, the Reform Party of Alabama certified Fred Bell as the Reform Party candidate for Lowndes County district court judge in the then upcoming general election; on August 21, 2000, in the Montgomery County Circuit Court, Nancy Lamar Eagerton sued Bell and the appropriate election officials, including the Alabama Secretary of State, and sought declaratory relief and injunctive relief on the ground, among others, that Bell had not resided in Lowndes County for "12 months preceding his election or appointment" as required by Ala. Code §12-17-64; Eagerton sought a declaration that Bell was not qualified for that office and prayed for an injunction barring the election officials from including Bell on the ballot; the trial court granted the relief sought by Eagerton, on the ground that Bell did not meet the residency requirements; on October 18, 2000, Bell moved the trial court to stay its October 13, 2000, judgment and also filed an appeal; the trial court denied Bell's motion to stay the trial court judgment; Bell moved the Supreme Court of Alabama for a stay, and on October 31, 2000, the Supreme Court denied Bell's motion for a stay; Bell did not sue to enjoin the November 7, 2000, election or to enjoin the certification and the installation of the victorious candidate as the Lowndes County district court judge, nor did Bell contest the election under Ala. Code §§17-15-22, 17-15-27, 17-15-28, and 17-15-32; HOLDING: the Supreme Court dismissed the appeal as moot because Bell's failure to contest the election deprives the Court of jurisdiction to nullify the election; the Court held that because Bell did not seek and obtain an injunction to stop the November 7, 2000, election for Lowndes County district court judge, and because Bell did not contest the election of Terri Bozeman to that office, the Court cannot nullify her election or order a new election)
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Bethea v. Springhill Mem'l Hosp.,

Nos. 1001715 & 1001814 (Ala. Apr. 19, 2002)
(jury selection; reliance on extraneous information by a jury; Tristan Bethea and her mother, Angie Bethea ("the Betheas") sued  Springhill Memorial Hospital, among others, for damages based on injuries allegedly sustained by Tristan during Tristan's birth at Springhill; the Betheas alleged that Tristan suffered brain damage during the delivery process as a result of the improper use of the drug Oxytocin (which was also referred to as Pitocin at trial); during voir dire, one juror, L.A.C., indicated that she knew two attorneys in the case, but she stated that she would like to think she could still be fair and impartial; counsel for the Betheas requested that L.A.C. be struck from the jury for cause, but the trial court denied that request; counsel for the Betheas eventually used a peremptory strike to remove L.A.C. from the venire; the jury returned a verdict in favor of Springhill; the Betheas filed a motion for a new trial based upon, among other things, their assertion that the jury had improperly considered extraneous material during deliberations; the Betheas filed an affidavit of Vera Milhouse, who served as one of the jurors, and that affidavit stated that "some of the other women jurors discussed their own personal knowledge about Pitocin from their own pregnancy and that of their daughter or relatives stating that they did not believe Pitocin could cause the child's problems because it had not happened in their own situations"; Springhill filed a motion to strike Milhouse's affidavit; the trial court granted Springhill's motion to strike and denied the Betheas' motion for a new trial; HOLDING: the Supreme Court rejected the argument by the Betheas that the trial courts refusal to dismiss L.A.C. for cause was reversible error because even if the Betheas could demonstrate that the trial court erred in not granting their request that L.A.C. be removed from the venire for cause (an issue we do not reach), they had not shown that the trial court's ruling somehow injured them by leaving them with a less-than-impartial jury; the Court held that the trial court did not err in striking Ms. Milhouse's affidavit because affidavits containing "accounts of some jurors' discussions during deliberations" do not fall under the extraneous-information exception of Ala.R.Evid. 606(b), because the alleged information did not come to the jury from some external authority or through some "process outside the scope of the trial"; the Court held that in order for information to come within the extraneous-information  exception to Rule 606(b), the information must come to the jurors from some external authority or through some process outside the scope of the trial, either (1) during the trial or the jury's deliberations or (2) before the trial but for the purpose of influencing the particular trial; the Court held that the alleged prejudicial information -- personal experiences with the use of Pitocin in induced labor -- is not extraneous information under the exception to Rule 606(b))
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Ex parte Arthur,

No. 1001789 (Ala. Apr. 19, 2002)
(reliance on extraneous information by a jury; personal injury; negligence; auto accident; Bernice Hart Stringer, while driving her automobile, collided with a van being driven by Richard D. Arthur; the resulting collision caused injuries to Richard Arthur, the driver, and to his daughter, Ashley Arthur, who was riding in the backseat; Stringer admitted that her negligence caused the accident, and the jury was so instructed; trial testimony indicated that Richard had medical expenses of $500, and that as of the trial in 2000 Ashley's medical expenses were $6,916.75; the jury awarded Richard $500 and awarded Ashley $1,800; the Arthurs sought a new trial, arguing that the jury was improperly influenced by extraneous information one of the jurors had brought into its deliberations; at the hearing on the motion for a new trial, Ashley and Richard submitted an affidavit of Collen Boyette, one of the jurors, stating that "one of the jurors  brought in outside medical research that he had done overnight concerning the injuries and possible causes for those injuries from which the girl, Ashley Arthur, had been suffering," that the juror who had conducted the research "was agreeable to paying all the medical bills" before he did the research, but that afterward, "he agreed with the position that the medical bills should not be paid"; the jury foreperson testified at the hearing that one of the jurors, "to [his] recollection, said that he had gone back ... and looked at some medical journals that he had, 'cause he worked in a doctor's office, or something like that, and had confirmed that migraine headaches were not just caused by accident impacts"; the trial court denied the motion for a new trial; the Court of Civil Appeals affirmed the trial court's judgment, without an opinion; HOLDING: the Supreme Court held that the extraneous information in this case goes to the cause of Ashley Arthur's migraine headaches, and the answer to that question may have determined the measure of damages for which Bernice Stringer was liable to Ashley; the Court held that extraneous information about possible causes of migraine headaches found in a medical textbook is "not the type of common knowledge we expect jurors to bring to deliberations," and that it "was crucial in resolving a key material issue in the case," namely, the damages to which Ashley was entitled; the Court noted that neither the parties nor the court had an opportunity to challenge the information or state that it should be ignored; therefore, the Court held that under the facts of this case, the extraneous information brought in by the juror and pertaining to what may well have been the principal issue in the case -- whether the car accident caused Ashley's migraine headaches -- was prejudicial as a matter of law; the Court reversed the judgment for Ashley Arthur and remanded the case for a new trial as to Ashley Arthur's claims, but the Court affirmed as to the judgment for Richard Arthur because Arthurs did not contest the jury's verdict for Richard Arthur or the award of damages for his injuries)
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Corbin v. Smith,

No. 1001800 (Ala. Apr. 19, 2002)
(medical malpractice; release; action seeking damages for an injury to, and ultimately the death of, Wilford Smith, a patient at the Bill Nichols State Veterans Home ("the Veterans Home"), allegedly caused by negligence and medical malpractice on the part of Dr. Timothy Corbin and others; trial court denied Dr. Corbin's motion for a summary judgment, and he petitioned for permission to appeal from an interlocutory order under Ala.R.App.P. 5; the complaint alleged that Wilford suffered a broken neck as the result of a fall that occurred at the Veterans Home; the complaint also alleged that although Wilford exhibited several serious symptoms immediately following the fall, Dr. Corbin and the nurses who responded to the fall failed to take adequate precautions when they lifted Wilford and placed him in a chair; the Smiths alleged that Wilford, who suffered a broken neck in the fall, should have been stabilized before he was moved and that the failure to stabilize him resulted in a partial dislocation of the cervical vertebrae and in severe, permanent damage to Wilford's spinal cord, which resulted in paralysis, quadriplegia, ventilator dependency, and eventual death; approximately a year after the incident, Wilford died, and Terry, as the administrator of Wilford's estate, was substituted as the plaintiff in the case; on September 13, 1999, Terry entered into a pro tanto release, releasing from liability most of the defendants, including Service Master Diversified Health Service, L.P., and the Veterans Home and its agents, servants, and employees, which included the nurses and Dr. Corbin in his capacity as the medical director of the Veterans Home; however, the release expressly reserved the right to sue Dr. Corbin in his capacity as Wilford's treating physician at the time of incident; Dr. Corbin moved for a summary judgment, arguing that the release, which operated to release him in his capacity as medical director, also released him from liability in his capacity as Wilford's physician, because, he argued, the claims against him as medical director and as Wilford's treating physician arise out of an alleged single breach of the standard of care; the trial court denied Dr. Corbin's summary-judgment motion; HOLDING: the Supreme Court held that it is clear that Dr. Corbin held two positions at the Veterans Home: he was the medical director of the facility and he was a treating physician and that release also makes a clear distinction between the two capacities; the Court held that the implication of Dr. Corbin's argument is that he ceased being a physician simply because he was also acting as the medical director, even though he was treating a patient during the incident that is the basis for this action, and that agreeing with Dr. Corbin's position would be tantamount to saying that he did not have to meet the standard of care required of a doctor simply because he was also serving as medical director; the Court held that doctors cannot avoid medical-malpractice liability simply by wearing multiple hats; the Court held that the trial court correctly denied Dr. Corbin's summary-judgment motion)
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Dillard v. Baldwin County Comm'n,

No. 1001971 (Ala. Apr. 19, 2002)
(Certified Questions from the United States District Court for the Middle District of Alabama)
(size of county commissions; voting rights; in 1986, the Baldwin County Commission ("the Commission") was composed of four persons elected at-large, one from each of four numbered districts; in 1986, John Dillard and other African American voters (the "Dillard plaintiffs") brought suit against the Commission alleging that the at-large system used to elect its members violated section 2 of the Voting Rights Act of 1965;  the Commission conceded liability and the district court ordered the Commission to increase its membership from four to seven persons elected from single-member districts in order to ensure a majority-black voting district; in 1996, four individuals filed a complaint in intervention as plaintiffs (the "Brown intervenors") alleging that by increasing the size of the Commission from four to seven members in order to create a majority-black district, the district court exceeded its authority granted by Congress in the Voting Rights Act, and violated the Tenth and Eleventh Amendments; Act No. 92-1, §1, 1992 Ala. Acts 3, codified at Ala. Code §11-3-1.1(a), provides "Following the release of any federal decennial census, any county commission of this state which is at that time electing its members from single-member districts, pursuant to either state or local law or a court order, may, by resolution, alter the boundaries of the districts"; Resolution No. 99-76, passed by the Baldwin County Commission, provides, "in compliance with the judgment and orders of the United States District Court for the Middle District of Alabama, Northern Division, Civil Action No. 87-T-1159-N, the County Commission hereby continues the implementation of the seven-member County Commission district arrangement"; the district court certified to the Supreme Court of Alabama the following questions: "Does ... Ala. Code §11-3-1.1 provide state-law authority for county commissions by resolution to redraw the boundaries of their court-ordered single-member districts and, as a consequence, provide a state-law basis for the number of districts thus redrawn?" and "Did the Baldwin County Commission, by adopting Resolution #99-76, in fact adopt a seven-member commission pursuant to state law?"; the parties who urged the Supreme Court to answer the questions in the affirmative are the Dillard plaintiffs, the Smith intervenors, and the Commission, while the parties who urged the Supreme Court to answer the questions in the negative are the Brown intervenors and Adrian Johns, in his official capacity as Baldwin County probate judge; HOLDING: the Supreme Court held that the two questions could be answered by answering  one dispositive question, namely, whether there is statutory authority for the Commission to adopt a seven-member commission; in summary, the Court held that the Legislature has not provided for a seven-member Baldwin County Commission, either by local act or by general law; more specifically, the Court held that a statute that does no more than authorize the Commission to facilitate a federal court's order does not, itself, constitute substantive state law for the result; the Court rejected the argument of the Commission, Smith intervenors and Dillard plaintiffs that authority for a seven-member commission is necessarily implied in Ala. Code §11-3-1.1(a) and rejected the argument that this law cannot be effective unless the authority to redraw the district boundaries includes the authority to adopt the number of districts being drawn; the Court held that while Ala. Code §11-3-1.1(a) authorizes the alteration of district boundaries, it says nothing of any change in the number of districts; the Court noted that its conclusion is reinforced by reference to the preceding Code section, namely, Ala. Code §11-3-1, which the Legislature amended in 1997, and which provides "Unless otherwise provided by local law and as otherwise provided in subsection (b), there shall be in every county a county commission, composed of the judge of probate, who shall  serve as chairman, and four commissioners ..."; the Court concluded that the Legislature did not intend to provide in §11-3-1.1(a) general, substantive authority for county commissions in excess of four members (excluding the probate judge); the Court also noted that its conclusion was supported by the Legislature's response to a similar challenge in Sumbry v. Russell County, 993 F. Supp.  1439, 1441 (M.D. Ala.), aff'd,  162 F.3d 99 (11th Cir. 1998), where the commission structure was challenged in February 1997 by a plaintiff-intervenor, on grounds similar to those argued by the Brown intervenors, and in response the Legislature passed Act No. 97-680, 1997 Ala. Acts 1329, which provided: "There is hereby created a county commission for Russell County, consisting of seven members ...")
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(Note:  The prevailing "Brown intervenors" were represented in this case by Albert L. Jordan of Wallace, Jordan, Ratliff & Brandt, L.L.C.)
 

H.R.H. Metals, Inc. v. Miller,

No. 1002015 (Ala. Apr. 19, 2002)
(contributory negligence; construction; on-the-job injury; claims of negligence and wantonness against general contractor H.R.H. Metals, Inc. ("HRH") arising out of a serious on-the-job injury suffered by Carl Miller, an employee of a subcontractor of HRH; HRH was the general contractor of the site involved in Carl Miller's injury and of the building being dismantled; Carl Miller claimed compensatory and punitive damages, and Virginia Miller asserted a loss-of-consortium claim, also seeking compensatory and punitive damages; HRH asserted the affirmative defenses of contributory negligence and assumption of the risk; the jury returned verdicts awarding Carl Miller $4,562,457.19 and Virginia Miller $2,125,000, both of which were compensatory damages only; the trial court entered a judgment on the jury verdicts; HRH moved for judgment as a matter of law (JML) or for a new trial or a remittitur; the trial court denied HRH's postjudgment motions; HOLDING: the Supreme Court held that Carl Miller's employer, Miller Machine Company, was a subcontractor under the terms of the agreement between HRH and Vulcan Materials; the Court held that Carl Miller was a third-party beneficiary of the contract between HRH and Vulcan, and that, therefore, HRH owed Miller a duty with regard to on-the-job safety; the Court held that HRH did not preserve for appeal its argument that the trial court erred in denying its motion for a JML on the negligence claim, because, it insists, Carl Miller was contributorily negligent as a matter of law, because HRH failed to renew its motion for a JML on that ground at the conclusion of all of the evidence; however, the Court held that the trial court did err in instructing the jury on the defense of contributory negligence by engrafting the conscious appreciation element of assumption of the risk into its contributory negligence charge; the Court held that the trial court's erroneous contributory negligence charge requires the reversal of the judgment)
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Water Works & Sewer Bd. of the City of Selma v. Randolph,

No. 1002182 (Ala. Apr. 19, 2002) (on application for rehearing)
(Sunshine Law, Ala. Code §13A-14-2; on rehearing, Randolph challenged the Supreme Court's statement in the opinion on original submission that he did not contend on appeal that the second catchall phrase in Ala. Code §13A-14-2(a) --  "board, body or commission to which is delegated any legislative or judicial function" -- is applicable, but the Court held on rehearing that Randolph made no argument concerning the applicability of that portion of the statute to the facts of this case; the Court noted that merely quoting a statute and emphasizing certain parts with bold type does not constitute a properly stated and supported contention; the Court noted that Randolph, for the first time on rehearing, argues in his rehearing application that the second catchall phrase is applicable to the Board, and the Court noted the well-settled rule that precludes consideration of arguments made for the first time on rehearing; the Court stated that the question of the effect of the portion of the statute on which Randolph relies for the first time on application for rehearing on entities such as The Water Works and Sewer Board of the City of Selma will have to await another day; the Court overruled the application for rehearing)
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--(the original opinion released on Feb. 1, 2002, in Randolph is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

Walker v. City of Montgomery,

No. 1010009 (Ala. Apr. 19, 2002)
(taxation; city business or privilege license tax on salaried professionals; Plaintiff, G. Hal Walker, Jr., an attorney engaged in private practice within the City of Montgomery as a salaried employee of Crumpton & Associates, L.L.C., initiated this action on February 7, 2001, with a Complaint alleging that the City of Montgomery collects a business or privilege license tax upon salaried professionals in violation of a 1957 enactment by the Alabama Legislature, Act No. 457, which provides, in pertinent part: "No city within the State of Alabama having a population of not less than 100,000 nor more than 125,000, according to the last or any subsequent federal decennial census, shall have the power or authority to levy or impose any privilege license tax on all employees of employers working for wages, salaries, or other compensation, within the corporate limits or police jurisdiction of such city ...."; the City of Montgomery  contended that Act No. 457 no longer applies to the City of Montgomery because the City outgrew its population bracket; the trial court granted the City's motion for a summary judgment; HOLDING: the Supreme Court affirmed and held that the trial court correctly determined that the City was entitled to a summary judgment as a matter of law; the Court held that if a class within a population classification is to be considered as "shifting," a city or county within that class must be able to outgrow the classification just as a city or county can grow into such a classification)
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Phillips v. AmSouth Bank,

No. 1010207 (Ala. Apr. 19, 2002)
(civil procedure; summary judgment; Ala.R.Civ.P. 12(b)(6); Thomas Phillips and John Phillips, the beneficiaries of a trust created by the will of J.T. Phillips, their grandfather, sued AmSouth Bank, asserting claims of breach of fiduciary duties, misrepresentation, and fraudulent suppression, and claims for equitable and declaratory relief, all in connection with the investment and disposition of the trust assets; AmSouth filed a motion to dismiss the complaint, on the ground that the claims were barred by the statute of limitations, and AmSouth submitted with its motion was the affidavit of W. Baker Crowe IV, a senior vice president of AmSouth; the plaintiffs moved in the alternative to strike the affidavit, or, pursuant to Ala.R.Civ.P. 56(f), to afford them a reasonable opportunity to conduct discovery before the court ruled on the motion, and the plaintiffs submitted, in accordance with Ala.R.Civ.P. 56(f) the affidavit of their attorney, endeavoring to show why Plaintiffs could not present facts essential to their opposition to the defendant's motion in the absence of discovery; the trial court declined to strike the affidavit or to postpone ruling on AmSouth's motion, and instead, five days after the plaintiff's filed their motion, the trial court granted AmSouth's motion to dismiss; HOLDING: the Supreme Court held that because the trial court dismissed the case on AmSouth's Ala.R.Civ.P. 12(b)(6) motion, which included a substantive affidavit, it committed reversible error by prohibiting discovery regarding AmSouth's factual assertions; the Court noted that unless the trial court expressly declines to consider the extraneous material, its conclusions may be construed to include the extraneous material; thus, the Court held that AmSouth's motion was converted to a summary-judgment motion by the submission of, and the trial court's constructive consideration of, Crowe's affidavit; the Court held that because the plaintiffs properly challenged the conversion of the motion to dismiss, their motion to strike the affidavit, or, in the alternative, for a postponement of a ruling on the motion was due to be granted; the Court expressed no opinion as to the merits of AmSouth's motion)
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Ex parte C.G.,

No. 1010249 (Ala. Apr. 19 , 2002)
(criminal; accomplice liability; sexual abuse in the first degree; C.G. was convicted, as an accomplice of M.D., of sexual abuse in the first degree and was sentenced to seven years' imprisonment; the victim was C.G.'s and M.D.'s five-year-old daughter, A.D.; the Court of Criminal Appeals affirmed C.G.'s conviction; the Supreme Court granted certiorari review to determine whether the Court of Criminal Appeals erred in holding that there was sufficient evidence from which a jury could have concluded that C.G. intended to promote or to assist A.D.'s father in the commission of sexual abuse; HOLDING: the Supreme Court affirmed the conviction and the Court of Civil Appeals; the Court stated that it cannot hold that C.G.'s knowledge of  M.D.'s propensity for sexually abusing their daughter, standing alone, was sufficient to prove intent; the Court stated that in order to treat C.G. as an accomplice, there must be evidence from which the jury could have concluded that she derived some benefit from failing to intervene and protect A.D. from M.D.'s sexual abuse, thereby permitting the jury to infer that C.G. possessed the requisite intent to assist M.D.; the Court held that based on the evidence the jury could have reached two conclusions -- that C.G. derived pleasure from the companionship of M.D. and that, at least on that occasion, not only was C.G. tolerant of M.D.'s criminal activity, she tried to inculcate in A.D. a positive attitude toward it; the Court held that jury could have reasonably believed that C.G.'s conscious failure to protect A.D. showed that she intended to allow the sexual abuse to occur in order to maintain her relationship with M.D.)
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Hoover, Inc. v. State Dep't of Revenue,

No. 1010281 (Ala. Apr. 19, 2002)
(taxation; sales tax; interstate commerce; Commerce Clause; Hoover, Inc. is a Tennessee corporation that sells crushed stones and other products in the southeastern United States; Hoover operates three sales offices in Alabama, and one of its quarries is located in Colbert County; during the years 1996 through 1999, Hoover sold crushed stone from the Colbert County facility to certain Mississippi governmental entities, but it did not collect Alabama sales tax on those sales; the Alabama Department of Revenue entered a final assessment against Hoover, assessing $159,520.27 in additional sales tax due for the period July 1996 through June 1999; Hoover filed a complaint against the Department in the Colbert Circuit Court, appealing the final assessment and claiming, in reliance on Ala. Code §40-23-4(a)(17), that the practice of exempting instrumentalities and municipalities of the State from the payment of the sales tax, while imposing a sales tax on sales to governmental entities in Mississippi, violates the Commerce Clause of the United States Constitution (Art. 1, §  8, cl. 3); the trial court entered a summary judgment in favor of the Department; HOLDING: the Supreme Court concluded that the Department had the burden of establishing a defense to a facially discriminatory tax scheme; the Court held that because at trial the Department has the burden of proof to justify a law that on its face discriminates against interstate commerce, the trial court erred in entering a summary judgment in favor of the Department on a record where the Department offered no evidentiary justification for the discriminatory impact; the Court reversed the judgment and remanded the case for further proceedings)
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McCaster v. Jackson,

No. 1010356 (Ala. Apr. 19, 2002)
(dog attack; claim of negligence, wantonness, and a violation of Ala. Code §3-6-1; Madeline Jackson and her dog, a 60-pound Labrador/shar-pei mix, moved in with her mother, Mary R. Jackson; Mary was suffering from lung cancer; McCaster was employed as a delivery person by Price Pharmacy; he delivered prescription drugs to the Jackson house on a regular basis; when he made a delivery to the Jackson house, McCaster would park his truck, leave the door to the truck open, go up the stairs to the front porch, leave the package from the pharmacy by the front door, and knock; each time he made a delivery to the Jackson house, he heard what sounded like a large dog barking and scratching on the other side of the door; on April 29, 1998, McCaster followed his regular routine in delivering drugs to the Jackson house; after he put the drugs by the front door and knocked, he started back to the truck; Madeline Jackson opened the door, and McCaster turned to see the barking dog run past her and toward him; the dog got within four feet of McCaster, who was running toward his truck; McCaster fell trying to escape the dog and injured both knees and his shoulder; Jackson got control of the dog after McCaster fell; McCaster incurred substantial medical expenses as a result of his fall; McCaster sued Madeline Jackson; Jackson filed a motion for a summary judgment and included supporting evidence; the trial court granted Jackson's motion and entered judgment in her favor; HOLDING: the Supreme Court held that the trial court did not err in entering summary judgment in favor of Jackson on the negligence and wantonness claims because Jackson sufficiently established that she had no knowledge, before the incident in which McCaster was injured, that the dog had any dangerous propensities; the Court held that the trial court erred in entering summary judgment on McCaster's claim under Ala. Code §3-6-1 because there was testimony before the trial court, when it entered the summary judgment, that McCaster did not provoke the dog, that he was at a place where he had a right to be, and that he was on or being chased by the dog from property controlled by Madeline Jackson when  he was injured; thus, the Court reversed the summary judgment as to Madeline Jackson only on the claim under Ala. Code §3-6-1)
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Ex parte Hall,

No. 1010415 (Ala. Apr. 19, 2002)
(criminal; failure to obtain a land-disturbance permit for site construction as required by a municipal ordinance of the City of Mobile ("the City"); the Court of Criminal Appeals affirmed Hall's conviction, in an unpublished memorandum; the Supreme Court granted certiorari review only as to Hall's argument that his conviction should be reversed because the City failed to introduce into evidence a copy of the ordinance it accused Hall of violating; HOLDING: the Supreme Court held that although the City showed the court a copy of the ordinance during the trial, it failed to introduce into evidence the ordinance under which Hall was convicted; thus, because the City failed to prove the ordinance and thereby to make it a part of the record, the Court held that the City did not establish its prima facie case; the Court held that the statement by Hall in his motion for judgment of acquittal that ""insufficient evidence has been presented to support a finding that the defendant is guilty beyond a reasonable doubt" was sufficient to put the trial court on notice of a defect in the city's case, and, therefore, sufficient to preserve the issue for review; the Court reversed the conviction and the judgment of the Court of Criminal Appeals)
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Ex parte Charest,

No. 1010929 (Ala. Apr. 19, 2002)
(appellate procedure; the Court stated that the petition for the writ of certiorari is denied because it has been prematurely filed and that the petitioner will have the opportunity to file another petition for the writ of certiorari, if necessary, after the Court of Criminal Appeals has made a final decision on return from remand)
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Ex parte McCall,

No. 1011110 (Ala. Apr. 19, 2002)
(the Court denied the petition for writ of certiorari without opinion, but stated that the Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion)
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Opinions Released April 9 & 12, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, APRIL 12, 2002

 

Opinion of the Justices, No. 376 (Ala. Apr. 9, 2002)

(alcohol sales in a municipality located in a dry county; local legislation in conflict with a general statute; Ala. Const. §§104 & 105, Ala. Code §28-2A-1 et seq.; Senate Bill 539 permits certain municipalities in Cherokee County with a population of not less than 1,300 inhabitants nor more than 1,500 inhabitants to determine by a local option election whether alcoholic beverages may be legally sold and distributed within the corporate limits of the municipality; Ala. Code §28-2A-1 et seq. provides for a local option procedure in municipalities having a population of 7,000 inhabitants or more, and further provides that if a municipality having a population of 7,000 or more inhabitants of any county allows the sale of alcoholic beverages within its corporate limits, then every other municipality having a population of 4,000 or more inhabitants in the county may likewise petition for and hold an election to legalize the sale of alcoholic beverages in the same manner; §105 of the Constitution of Alabama provides in part, "No ... local law ... shall be enacted in any case which is provided for by a general law...," and §104 of the Constitution of Alabama, in the concluding paragraph provides in part, "The legislature shall pass general laws for the cases enumerated in this section, provided that nothing in this section or article shall affect the right of the legislature to enact local laws regulating or prohibiting the liquor traffic ..."; additionally, §28-2A-3 provides, "In the furtherance of the protection of the public welfare, health, peace and morals, the Legislature has determined that a population classification should be established to provide this method of municipal option election only in those municipalities with a population of 7,000 or more people within a county, it being the judgment of the legislature that municipalities with a lesser population would be unable to support and maintain such protection where such municipality is located in a dry county, whereas a municipality of 7,000 or more population would have the resources and ability to support and maintain such safeguards"; HOLDING: the Justices concluded that Senate Bill 539 is not a local law "regulating or prohibiting the liquor traffic" so as to fit within the specific authorization set out in § 104 because the general sense of the phrase "to regulate" is to reference control over something that already exists, as distinct from the authority to create something that did not previously exist; the Justices concluded that because Senate Bill 539 on its face seeks to accomplish an end already addressed in the negative by §28-2A-1 et seq., i.e., to permit a municipality with a population of less than 1,300 or more than 1,500 persons to conduct an option election to permit the sale of alcoholic beverages, Senate Bill 539 violates §105 of the Alabama Constitution)
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All American Termite & Pest Control, Inc. v. Walker,

No. 1001363 (Ala. Apr. 12, 2002)
(arbitration; Walker filed an action asserting claims of breach of contract, negligence, and negligent misrepresentation, arising out of a dispute concerning termite damage to, and All American's treatment of termites in, Walker's home; after All American filed a motion to compel arbitration, Walker agreed to a dismissal of his action in order to submit his claims to arbitration; as a result of Walker's agreement to dismiss his action, the Baldwin County Circuit Court issued an "Agreed Order" dismissing the action; after instituting proceedings with the American Arbitration Association, actively participating in selecting the arbitrator and a preliminary hearing, and conducting discovery, Walker filed a motion to reinstate his civil action against All American, arguing various defenses to the arbitration clause; the trial court dismissed the ongoing arbitration and reinstated Walker's action; HOLDING:  the Supreme Court held that Walker waived any right he had to dispute the validity of the arbitration clause at issue because he made a conscious, deliberate decision to submit his dispute with All American to binding arbitration after All American filed its motion to compel in the Baldwin County Circuit Court, filed a request for arbitration with the American Arbitration Association, and fully participated in arbitration proceedings for 10 months without objecting to the proceedings in any manner until he filed in the Baldwin County Circuit Court a motion to reinstate his civil action; the Court held that by voluntarily agreeing to and initiating arbitration proceedings, and by fully participating in the proceedings without objection for 10 months, Walker has, through his own actions, "effectively validated" the arbitration clause he now disputes)
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Elliott v. Van Kleef,

No. 1001395 (Ala. Apr. 12, 2002) (on application for rehearing; overruling application but withdrawing and substituting opinion of January 11, 2002)
(personal jurisdiction; claim under the Alabama Legal Services Liability Act; plaintiff sued attorney John Van Kleef and the law firm of Bullock & Van Kleef (the "Van Kleef defendants") located in Arkansas for legal malpractice alleged to have been committed in Arkansas; plaintiff also sued Alabama attorney John Kizer Jr. and John Kizer LLC; Kizer hired Van Kleef to be local counsel for the plaintiff's Arkansas action; the trial court granted the Van Kleef defendants' motion to dismiss for lack of personal jurisdiction; HOLDING:  the Supreme Court affirmed the dismissal for lack of personal jurisdiction, finding that Van Kleef did not purposefully avail himself of the jurisdiction in Alabama)
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--(the original opinion released on January 11, 2002, in Elliott is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

Ex parte Jim Walter Homes, Inc.,

No. 1002188 (Ala. Apr. 12, 2002)
(venue; petition for a writ of mandamus directing Judge James W. Moore, Jr., of the Fayette County Circuit Court to transfer an action from that court to the Shelby County Circuit Court; the plaintiff, Martha Joan Nicholas, a resident of Jefferson County, alleged that Jim Walter Homes ("JWH") and Mid-State Homes, Inc. had wrongfully converted insurance proceeds paid to compensate her for a fire loss to her house; the gravamen of Nicholas's claim is that JWH and Mid-State did not have a right to the insurance proceeds because they did not have a security interest in the property on which the house was constructed; JWH and Mid-State moved to transfer the action to Shelby County, where JWH's principal office in Alabama is located; JWH argued that the actions, conduct, and omissions Nicholas alleges were wrongful occurred in Tampa, Florida, where Mid-State's principal office is located; therefore, it argues, venue is not proper in Fayette County; the trial court denied JWH's motion for a change of venue; HOLDING:  the Supreme Court held that fact that the insurance check was issued based on a claim of damage to a house located on real property in Fayette County does not constitute a "substantial part" of the conversion claim; the Court noted that "a substantial part of the events or omissions giving rise to the claim" involved Mid-State's "wrongful exercise of dominion over" the insurance proceeds; the Court concluded that the alleged wrongful taking or retention of the check did not occur in Fayette County, but in Tampa, Florida, and that Fayette County is not a proper venue for Nicholas's action; the Court directed the trial court to vacate its order denying JWH and Mid-State's motion for a change of venue and directed the trial court to grant the motion and to transfer the case to Shelby County)
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J.C. Bradford & Co., L.L.C. v. Vick,

No. 1010280 (Ala. Apr. 12, 2002)
(arbitration; the plaintiffs (collectively referred to as "the Vicks") sued a number of defendants (collectively referred to as "the PaineWebber defendants") over the mishandling of investment accounts; in 1991, investment accounts were opened for the Estate of Wyman Vick and for Louise Bowman Vick; in 1992, the Estate, through Roberts, opened an options account (hereinafter referred to as "the Estate Account"); the document that created the account, called the "option new account form," contained an arbitration clause; in 1995, Louise also opened an options account (hereinafter "the Vick Account"), and that option new account form also contains an arbitration clause; In 2001, the Vicks sued the PaineWebber defendants and Thomas Roberts, alleging various state-law claims arising from Roberts's alleged mishandling of the accounts (including the Estate Account and the Vick Account); the PaineWebber defendants moved the trial court to stay the proceedings pending arbitration, arguing that the arbitration clauses in the option new account forms for the Estate Account and the Vick Account (the forms are hereinafter referred to as "the contracts") covered the Vicks' claims; the Vicks alleged that the contracts were void because, they say, the contracts as a whole violated the rules of the National Association of Securities Dealers (hereinafter the "NASD") and that, therefore, the arbitration provisions in the contracts were unenforceable; The trial court denied the motion to stay, stating that both contracts were void because they violated NASD rules; HOLDING:  the Supreme Court held that the contracts were not void and that the trial court erred in denying the motion to stay and compel arbitration; the Court held that a violation of an NASD rule will not void an otherwise binding contract)
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Moore v. Crocker,

No. 1992321 (Ala. Apr. 12, 2002)
(peace officers' immunity pursuant to Ala. Code §6-5-338; discretionary-function immunity; state-agent immunity; Moore sued Crocker, a police officer of the City of Brent, for torts (including, among other theories, assault and false imprisonment) allegedly committed in arresting Moore without a warrant at Moore's home in Marion in Perry County, transporting him to Brent, and jailing him there overnight without charging him; the place of the arrest, Marion in Perry County, is over 20 miles from the City of Brent in Bibb County, and is outside the police jurisdiction of the City of Brent, which employed Crocker as a police officer; the trial court entered summary judgment for the defendant; HOLDING: the Supreme Court reversed the summary judgment on the ground that Ala. Code §15-10-1 restricts a police officer's authority to arrest to the limits of the county containing the city or town which employs the police officer and, therefore, forecloses his claim of peace officer immunity under §6-5-338)
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Opinions Released April 5, 2002

DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY, APRIL 5, 2002

 

Holsbrooks v. Stacy,

No. 1000633 (Ala. Apr. 5, 2002) (plurality decision)
(constitutionality of increase in docket fees in Bibb County; Ala. Const., amend. 332; Act No. 99-427, Ala. Acts 1999; Act No. 99-427 ("the Act") became law on June 10, 1999, and its purpose was to create a uniform compensation system for judicial officers throughout the state; in order to fund this system, the Act increased docket fees in all civil cases; in Bibb County, the docket fees increased from $110 to $140; the plaintiff, Randall Holsbrooks, had filed an action in the Bibb Circuit Court, and he had been charged the increased docket fee; Holsbrooks then sued  Bibb County Circuit John Stacy and State Treasurer Lucy Baxley, in their official capacities, arguing that this increase was unconstitutional in that the Act violated Ala. Const., amend. 332 ("the Amendment"); the Amendment provides that the "legislature may, from time to time, by general or local laws applicable to or operative in Bibb county and approved by a majority of the qualified electors of Bibb county at a referendum election, fix, regulate, and alter the costs and charges of court and the fees, commissions, allowances, and salaries, ... to be charged or received by ... the circuit clerk and the register"; the second paragraph of the Amendment also provides that "any law theretofore passed which places any officers in Bibb county on a salary basis, or any law fixing, regulating, and altering the costs and charges of court and the fees, commissions, allowances, and salaries of any officer in Bibb county, may become effective without any other election having been held thereon"; no referendum election was held in Bibb County before the clerk began collecting the increased docket fees called for by the Act; Stacy and Baxley filed a motion to dismiss, which the trial court granted; Holsbrooks filed a motion to alter, amend, or vacate the judgment of dismissal and requested a hearing on his motion, but the trial court denied the motion without hearing; HOLDING:  the Court unanimously affirmed the trial court's judgment upholding the Act, although there was no consensus by a majority of the Court as to the reasons for the affirmance; Chief Justice Moore and Justice Stuart concurred in an opinion by the Chief Justice; Justices Lyons, Woodall, and Houston concurred in an opinion by Justice Lyons; Justice Johnstone wrote an opinion expressing his view; Justices Harwood, Brown, and See concurred in the result without opinion)
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State of Alabama v. Lawhorn,

No. 1002071 (Ala. Apr. 5, 2002)
(civil procedure; appellate procedure; judgment made final under Ala.R.Civ.P. 54(b); Phillip and Sheila Lawhorn sued the State of Alabama, Governor Siegelman,  the district attorney for the Ninth Judicial Circuit, the DeKalb County Sheriff, and the director of the DeKalb County Department of Human Resources alleging that the Community Notification Act, Ala. Code §§15-20-20 et seq. ("the Act"), was unconstitutional in its entirety, or as it applied to Phillip Lawhorn, in that it prohibited Phillip and Sheila Lawhorn from living together without fear of criminal prosecution; Plaintiffs Sheila and Phillip Lawhorn were married to each other on or about November 7, 1997; at the time of said marriage, Sheila had, and currently has, two minor children that are, as a result of said marriage, Phillip's stepchildren; on March 9, 1998, Phillip was sentenced and placed on probation for two separate charges of sexual abuse in the second degree; as a condition of his probation, Phillip was prohibited from residing with his wife Sheila and with Sheila's children/his stepchildren; on September 1, 1999, the Act became effective; on March 9, 2000, Phillip was released from his probation; the Lawhorns sought, in part, a declaration from the trial court that the Act was unconstitutional in its entirety, or at least as it applied to them, so that they could live together; the Lawhorns also requested that the trial court preliminarily enjoin the State from enforcing the Act against them, during the pendency of the action, and that it permanently enjoin the State from doing so thereafter; the trial court entered an order granting a preliminary injunction to Phillip Lawhorn on January 25, 2001; the State and other Defendants filed a motion to alter, amend, or vacate the trial court's judgment; the trial court denied the postjudgment motions on May 1, 2001; on May 24, 2001, the State filed a motion for the trial court to make "final" pursuant to Ala.R.Civ.P. 54(b) for purposes of appeal its January 25, 2001, judgment concerning the constitutionality of the Act; on June 8, 2001, the trial court entered an order that stated, "the court's order of January 25, 2001, is made final concerning the issue of the constitutionality of that portion of the Community Notification Act that is the subject of the proceedings, the court finding there is no just reason for delay"; HOLDING: the Supreme Court dismissed the appeal because the appeal was not from an appealable order; the Court noted that the State did not challenge the entry of the preliminary injunction in and of itself, but instead challenged the trial court's findings concerning the constitutionality of the Act, which were expressed only in the context of determining whether the Lawhorns, as a prerequisite to their entitlement to a preliminary injunction, had shown that they had a reasonable chance of prevailing on the merits of their claims; the Court said that once the trial court denied the State's postjudgment motion on May 1, 2001, the State had 14 days from that date to file its notice of appeal, if it was appealing only the entry of the preliminary injunction; the Court further held that the trial court's grant of the State's motion to make its January 25, 2001, order "final" pursuant to Rule 54(b), Ala. R. Civ. P., was ineffectual; the Court stated that the trial court's order is ambiguous in that it purports to make final a judgment in favor of Phillip Lawhorn on the claim for declaratory relief concerning the  unconstitutionality of the Act, when it had not previously made any such judgment in its January 25, 2001, order; the Court concluded that the trial court purported to make final its previous determination that Phillip Lawhorn had a reasonable chance of prevailing on the merits of the claim that the Act was unconstitutional, and that was not a complete ruling on any "claim"; the Court held that because the trial court's ruling on the Lawhorns' claim for injunctive relief was not a complete ruling on that "claim" or a ruling on the Lawhorns' separate claim seeking a declaration that the Act was unconstitutional, there was no judgment the trial court could certify under Rule 54(b), Ala.R.Civ.P., or from which the State can appeal)
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