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 define