Opinions Released June 30, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON MONDAY,  JUNE 30, 2003

 
• Spain v. Brown & Williamson Tobacco Corp.,

No. 1000143 (Ala. June 30, 2003)
(tobacco; product liability; negligence; wantonness; statute of limitations; Certified Questions from the United States Court of Appeals for the Eleventh Circuit:  "1. When does the Alabama statute of limitations for claims brought under the [Alabama Extended Manufacturer's Liability Doctrine ('AEMLD')], and claims premised on negligence, wantonness, breach of warranty and conspiracy begin to run in a smoking products liability case?   2. Does the Alabama rule of repose apply in a smoking products liability case?  3. If so, when does the Alabama rule of repose begin to run in a smoking products liability case?  4. Before the appearance of federally mandated warning labels on cigarettes packages, were cigarettes 'unreasonably dangerous' under the AEMLD?  5. Since the appearance of federally mandated warning labels on cigarettes packages, have cigarettes been 'unreasonably dangerous' under the AEMLD?  In addition to certifying the preceding questions to the Alabama Supreme Court, the Eleventh Circuit also invited the Alabama Supreme Court to inform it if the conclusions it reached about the following state law issues are incorrect:  "a. that the negligence and wantonness claims merge into an AEMLD claim; b. that the sale of cigarettes does not violate the implied warranty of merchantability under Code of Alabama 1975, §7-2-314; c. that the fraudulent suppression claim, which is a basis for Spain's conspiracy claim, is not viable under Alabama law; and that, if cigarettes are not unreasonably dangerous as a matter of Alabama law, the fraudulent misrepresentation claim, which is a basis for the conspiracy claim, is not viable under Alabama law." Carolyn Spain started smoking cigarettes in 1962, when she was "approximately 15 years of age and was a multi-pack per day smoker."  She became addicted to the nicotine in cigarettes early on and was unaware at the time that she was becoming addicted.  She primarily smoked cigarettes manufactured by Philip Morris, Inc., R.J. Reynolds Tobacco Company, and Brown & Williamson Tobacco Corporation.  Carolyn's smoking was the proximate cause of her lung cancer, which was diagnosed on August 15, 1998.  Unable to stop, she, continued smoking until 1999.  She has since died. HOLDING:  In a significantly fractured per curiam opinion, some portions of which failed to get the complete approval of a majority of the Court,  the Supreme Court noted that Spain's negligence and wantonness claims are, at this stage of the proceedings, viable alternatives to his AEMLD claim.  The Court held that a claim alleging breach of an implied warranty of merchantability is separate and distinct from an AEMLD claim and is viable to redress an injury caused by an unreasonably dangerous product.  The Court answered the first question as to the tort claims by stating that the statutory limitations period begins to run at the moment a smoker recognizes that he or she has become addicted.  The Court held that under Ala. Code §7-2-725, any injury occurring from the breach of an implied warranty within the four-year period before Carolyn's death on August 5, 1999, would be actionable, but if the evidence reflects continued consumption with knowledge of the risk of cancer in the late 1990s and if the explicit warnings on each package of cigarettes are deemed sufficient, significant problems of proof of a causal connection are presented.  The Court declined to answer the remaining questions.  There was significant disagreement over whether addiction to nicotine is a compensable injury.)
*Download or view PDF version of opinion*
 
• Butler v. Town of Argo,

Nos. 1001496 etc. (Ala. June 30, 2003)
(invasion of privacy; defamation/slander/libel; legislative privilege; qualified privilege; Paul Jennings was elected mayor of the Town of Argo, and he began serving in November 1996.  Shortly after Jennings entered office, the chief of police of Argo, Larry Leonard, left his job and filed an unrelated action against the Town of Argo, members of the city council, and Mayor Jennings.  On February 8, 1997, Kim Butler, a resident of Hayden, Alabama, was driving through Argo when she was stopped by Officer John Wayne Fore, who cited Butler for speeding and issued her a speeding ticket.  Later that month, Butler telephoned Mayor Jennings, with whom she had attended high school, to discuss the ticket.  Butler expressed concern that the speeding ticket would cause her insurance rates to increase.  Butler stated that she was willing to pay the ticket, but she wanted to know if there was any way to keep her insurance company from finding out about the ticket.  Jennings told Butler that he had been in office only a short time and that he did not know what, if anything, he could do for her.  He told her that he would look into the situation and get back in touch with her.  On February 22, 1997, Jennings called Officer Fore, who was on patrol, into the mayor's office.  When Fore arrived at Jennings's office, they began to discuss the speeding ticket Fore had issued to Butler.  Unbeknownst to Jennings, Fore had a small tape recorder in the front pocket of his shirt and he tape-recorded the remainder of the conversation.  The conversation consisted of discussion concerning dismissing  Butler's ticket, the possibility of her making a donation to "our little senior citizen thing," and the possibility of getting Butler to have sex with Jennings.  Thereafter, Butler's ticket was dismissed, and she knew nothing about the circumstances of the dismissal.  Jennings never called her back, and she did not make any kind of payment or donation or do anything else in order to get the ticket dismissed.  Officer Fore, after secretly recording the discussion between him and Jennings concerning Butler's ticket, took the tape-recording and gave it to his friend and the former police chief, Larry Leonard.  Fore also met with Guy Martin, an attorney representing Leonard in his unrelated action against the Town of Argo, the members of the city council, and Jennings, and gave Martin an oral statement summarizing the content of the tape-recorded conversation with Jennings.  Martin subsequently received a copy of the tape-recording; he produced a transcript of the taped conversation.  Leonard and Smith then met with Kathryn Ayres, a member of the city council of the Town of Argo.  Smith provided Ayres with a copy of the tape-recorded conversation between Fore and Jennings and a copy of the transcript of the tape.  At some point, Ayres distributed copies of the transcript to at least two newspaper reporters.  An article appeared in the Birmingham News concerning the conversation between Fore and Jennings.  Ayres distributed copies to the city council during a council meeting of the transcript of that conversation, a petition calling for Jennings's resignation, and a "resolution" she had drafted ordering an investigation into the matter.  Another article appeared in the Birmingham News. After a city council meeting, Ayres played the tape-recorded conversation between Jennings and Fore in a crowded parking lot outside the city hall for at least one newspaper reporter.  An article then appeared in a St. Clair County newspaper.  Jennings wrote a letter and distributed copies of it to the city council and to the members of the public.  The letter was later published in whole in one newspaper and in part in another.  The letter stated, in pertinent part:  ".... I want to make it very clear that at no time have I ever dismissed or promised to have tickets dismissed in exchange for sexual favors.  I did discuss with the individual noted in the transcript about the possibility of the speeding ticket being dismissed upon a donation being made to a local civic group.  However, this conversation took place after the individual ... had called me and asked for my help because of long-term problems the speeding ticket could cause.  I told this individual, however, I did not know about the legality of such an offer.  .... Furthermore, although I did only inquire with [the] Argo Police Chief about the possibility of helping this individual, at no time was the help contingent upon any donation and in fact no donation was made.  I do apologize to the individual discussed in the transcript and to the council and citizens of Argo[;] however, I will not resign as Mayor of the Town of Argo, Alabama."  Butler said that she and Jennings did not discuss the possibility of a donation in exchange for dismissing her ticket.   On June 17, 1998, Butler's counsel made a written demand pursuant to Ala. Code §6-5-186 that Jennings publicly retract the allegedly defamatory language contained in the transcript and the letter.  Jennings never responded to the written demand in any manner.  Shortly after the newspaper articles appeared, Sam Butler, Kim's husband of 16 years, told Ayres and Martin to stop spreading false information about his wife or he would hire an attorney and pursue legal action.  Between April 27, 1998, and August 22, 1998, at least 10 articles concerning Butler and Jennings appeared in four newspapers.  On August 13, 1998, Kim Butler sued Jennings, alleging slander and defamation, negligent infliction of emotional distress, and invasion of privacy/false light. Butler later amended her complaint to state a claim alleging negligence and to add John Wayne Fore, Kathryn Ayres, and the Town of Argo as defendants in the action.  The case was tried before a jury, and the trial court charged the jury as to defamation, including libel and slander, and invasion of privacy.  The jury returned a general verdict in favor of Butler and against Jennings, Fore, Ayres, and the Town of Argo.  The jury assessed compensatory damages in the amount of $375,000 against Jennings, Fore, and Ayres.  The jury assessed only nominal damages against the Town of Argo but assessed punitive damages in the amount of $125,000 against Ayres. Jennings, Fore, and Ayres filed various posttrial motions, and the trial court issued an order purporting to remit the damages awarded by the jury and to apportion them.  Butler filed a notice of acceptance of the remittitur, reserving her right to seek reinstatement of the full verdict on appeal should any of the defendants appeal the court's judgment.  Jennings, Fore, and Ayres appealed from the judgment against them, and Butler appealed, seeking reinstatement of the full verdict.  HOLDING:  The Supreme Court held that the trial court should have entered a JML as to Butler's invasion-of-privacy claim against Jennings and Fore because Butler failed to produce substantial evidence indicating that Jennings or Fore ever publicly communicated private or untrue information about her.  The Court also held that Butler failed to produce substantial evidence to support a claim of slander per se or slander per quod against Jennings or Fore, and that she failed to produce substantial evidence to support her libel claim against Jennings.  The Court held that Butler failed to produce substantial evidence of special damage at trial.  The Court held that Ayres's actions are absolutely privileged as to Butler's invasion-of-privacy and defamation claims insofar as they concern Ayres's introduction and submission of the petition, the transcript, and the resolution during the city council meeting.  The Court further held that because Ayres's communications not within the absolute legislative privilege were prompted by her duty to the citizens of Argo as a city council member to inform them of possible illegal actions by the mayor, Ayres demonstrated a qualified privilege as to these communications.  The Court held that because Ayres's communications concerning possible illegal activity by the mayor were subject to privilege and because Butler failed to overcome that privilege, the trial court should have granted Ayres's motion for a JML as to Butler's claims against her.  The Court dismissed Butler's appeal with regard to her claims against the Town of Argo because she failed to present the Court with an adverse ruling for review.)
*Download or view PDF version of opinion*
 
• Tillman v. R.J. Reynolds Tobacco Co.,

No. 1001644 (Ala. June 30, 2003) (plurality opinion)
(Certified Question from the United States Court of Appeals for the Eleventh Circuit:  "Whether there is any potential cause of action under any theory against any retail defendants including those that employ pharmacists who sell cigarettes for claims brought under the Alabama Extended Manufacturer's Liability Doctrine, or premised on negligence, wantonness, or civil conspiracy under Alabama law."  Kalen Tillman sued the defendants alleging that he had smoked Winston brand cigarettes since 1968, and that as a result he developed lung cancer.  He asserted products-liability claims under the AEMLD, as well as negligence, wantonness, and civil-conspiracy claims.  Kalen died in April 1999, and Brenda Tillman, his wife and the executor of his estate, was substituted as the plaintiff in this action.  The district court dismissed the retailers and the individual defendants as having been fraudulently joined.  Tillman then voluntarily dismissed RJR Nabisco, Inc., leaving R.J. Reynolds Tobacco Co. ("Reynolds") as the sole defendant.  In January 2000, the district court granted Reynolds's motion to dismiss for failure to state a claim and entered a judgment in favor of Reynolds.  Tillman v. Reynolds Tobacco Co., 89 F.Supp.2d 1297 (S.D. Ala. 2000).   HOLDING:  The plurality opinion answered the certified question in the affirmative as to claims premised on negligence and wantonness and as to claims premised on an alleged civil conspiracy; as to all other claims, including those premised on the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD"), it answered the question in the negative.  The Court held that "when 'put to its intended use,' -- that is, when the cigarette is ignited and the consequential fumes and smoke are deliberately inhaled – a cigarette, like a saw, a fish hook, or butter, is not an 'unreasonably dangerous product' under the AEMLD."  The plurality opinion noted that even if it were to conclude that cigarettes are an unreasonably dangerous product, liability under the AEMLD is "obviated by an adequate warning," i.e., the federally mandated surgeon general's warning prominently displayed on every cigarette package since before Kalen Tillman began smoking cigarettes.  The plurality opinion noted that the AEMLD is "an example of judicial legislation," not of legislative enactment, and the  Court should not presume to so define the boundaries of the judicially created AEMLD so that it subsumes the common-law tort actions of negligence and wantonness against the retailer defendants.)
*Download or view PDF version of opinion*

Back to top

Opinions Released June 27, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JUNE 27, 2003

 
• Ex parte Weaver,

No. 1010582 (Ala. June 27, 2003)
(workers' compensation; negligence; wantonness; Robert Weaver and Frances Weaver, sued Robert's former employer Kimberly-Clark Corporation and other defendants for negligently or wantonly installing, maintaining, or repairing a catwalk and its handrail in a pulp and paper mill while Kimberly-Clark owned the mill and employed Robert and, by such negligence or wantonness, causing Robert's injury, which occurred after Robert's employment with Kimberly-Clark had terminated and after Kimberly-Clark's ownership of the mill, the site of the injury, had terminated.  Robert was injured in a fall caused by the failure of the handrail, which "gave way."  Kimberly-Clark moved for a summary judgment on the ground that the exclusivity provisions of the Workers' Compensation Act barred the Weavers from suing Kimberly-Clark.  After a hearing, the trial court entered summary judgment in favor of Kimberly-Clark but stayed entry of the judgment for 60 days to allow the Weavers to present evidence and to show cause why the judgment should not become final.  The Weavers filed a memorandum of law in opposition to the summary judgment motion.  While, in replying to the Weavers' opposition memorandum, Kimberly-Clark contended that the memorandum was untimely and insufficient, Kimberly Clark did not move to strike it.  After considering the Weavers' opposition memorandum, the trial court "vacate[d] the finality of the judgment" and scheduled a hearing on the summary judgment motion.   After the hearing, the trial court made its order granting summary judgment in favor of Kimberly-Clark final and appealable pursuant to Rule 54(b), Ala.R.Civ.P.  The Court of Civil Appeals affirmed the judgment of the trial court and held that Kimberly-Clark was entitled to invoke the exclusivity provisions of the Alabama Workers' Compensation Act, because Kimberly-Clark was Robert's employer at the time of the alleged negligence or wantonness although not at the time of Robert's injury.  HOLDING:  The Supreme Court reversed the judgment of the Court of Civil Appeals.  The Court concluded that the language of the exclusivity provisions read together with the definitions of "employer" and "employee" do not fairly and reasonably support an interpretation that these statutes protect former employers from actions by former employees for injuries sustained after the termination of the employer-employee relationship.)
*Download or view PDF version of opinion*
 
• Jones v. Jones,

Nos. 1010958 & 1012186 (Ala. June 27, 2003)
(appellate jurisdiction; Appeals were taken by both parties in a dispute over the probate of a will and the appointment of the executor.  The Supreme Court dismissed the appeals because neither was taken from a final judgment.)
*Download or view PDF version of opinion*
 
• Springhill Hospitals, Inc. v. Dixon,

No. 1011120 (Ala. June 27, 2003)
(medical malpractice; The Supreme Court affirmed without opinion.  Justice See wrote a dissenting opinion.)
*Download or view PDF version of opinion*
 
• Central Reserve Life Ins. Co. v. Fox,

No. 1011121 (Ala. June 27, 2003)
(arbitration; Joyce Fox applied for a health insurance policy with Central Reserve Life Insurance Company.  Central Reserve issued and delivered a health insurance policy to Fox.  That policy contained a rider that included an arbitration provision.  Fox sued Central Reserve for breach of contract and for negligent hiring, training, and monitoring of its employees.  She alleged that Central Reserve wrongfully refused to pay hospital and doctor expenses she incurred during a hospitalization.  Central Reserve moved to compel Fox to comply with her insurance policy by submitting her claims to arbitration.  The trial court summarily denied the motion to compel arbitration.  HOLDING:  The Supreme Court reversed.  The Court held that the denial of the motion to compel arbitration cannot be justified on the ground that the contract did not evidence a transaction that substantially affected interstate commerce in this case.  Thus, the Court held that  the Federal Arbitration Act governs this case and preempts the Alabama statute prohibiting specific enforcement of predispute arbitration agreements.  The Court rejected the plaintiff's argument that there was a condition precedent on the right to arbitrate contained in the policy.)
*Download or view PDF version of opinion*
 
• Alabama Great S. R.R. Co. v. Johnson,

No. 1011573 (Ala. June 27, 2003)
(automobile collision with a train; negligence; federal preemption; Richard Johnson and his wife, Winnie Johnson, sued Norfolk Southern Corporation, Norfolk Southern Railway Company ("NSR") and Alabama Great Southern Railroad Company ("AGS"), a wholly-owned subsidiary of NSR.  Richard Johnson sought damages on claims of negligence and wantonness arising from injuries he sustained when his vehicle was struck at a railroad crossing by a train owned and operated by NSR and AGS and subsequently identified as "train W96."  Johnson's wife asserted a derivative loss-of-consortium claim.  The defendants filed a motion for a summary judgment.  The trial court granted summary judgment as to some of the claims, but denied the motion as to any claims for negligence or wantonness on behalf of the employees of NSR and AGS.  The case proceeded to trial against NSR and AGS on the remaining claims.  At the close of the Johnsons' evidence, NSR and AGS filed a joint motion for a judgment as a matter of law ("JML"), which asserted, among other things, that Richard Johnson's own negligence proximately caused the accident, that the Johnsons' claims were preempted by federal law, and that there was insufficient evidence that NSR and AGS were guilty of negligence or wantonness.  The trial court granted the motion "as to the count of wantonness."  At the close of all evidence, NSR and AGS renewed their motion for a JML, on the same grounds previously asserted.  The renewed motion was denied, and the case was submitted to the jury on the remaining claim of negligence.  The jury returned a verdict in favor of Richard Johnson.  The trial court entered a judgment on the jury's verdict; that judgment stated in pertinent part, "[T]he Court orders that the plaintiff, Richard Johnson, recover from the defendants, Norfolk Southern Corporation and [AGS], the sum of SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000).... [The court] denies all relief not granted in this judgment.  This is a final judgment."  Subsequently, NSR and AGS jointly filed a renewed motion for a JML, or, in the alternative, a motion to alter, amend, or vacate the judgment and for a stay of the judgment.  The renewed motion for a JML asserted the same grounds as the two previous JML motions.  The motion to alter, amend, or vacate the judgment sought only to amend the judgment to substitute NSR for Norfolk Southern Corporation, against which the judgment had been erroneously entered.  The trial court denied the renewed JML motion, but granted the motion to amend the judgment and ordered the judgment stayed upon the posting of appropriate security.  HOLDING:  The Supreme Court reversed and held that the trial court erred by refusing to grant NSR and AGS's motions for a JML based upon federal preemption.  The Court held that federal law preempted any duty to provide additional warning of an approaching train at a crossing where the flashing lights were working properly and the train horn was sounded properly.  The Court held that it is clear that when federal funds are used to install warning devices at a railroad crossing, 23 C.F.R. §§646.214(b)(3) and (4) preempt state-law claims based upon inadequate signalization at railroad crossings.  The Court held that the trial court's summary judgment for NSR and AGS on "any claims that [they] should have installed additional warnings, signs, signals or devices at the crossing where the accident occurred" eliminated any claim that a duty on their part to install additional warning devices may have existed.  The Court also held that there was no "essentially local safety or security hazard" present at this crossing so as to satisfy the savings clause of 49 U.S.C.A. §20106 because (1) 23 C.F.R. §646.214(b)(3)(i)(B) directly addresses the conditions at the crossing in question; (2) Johnson relies upon a general tort-law principal, not a "law, regulation, or order related to railroad safety or security"; and (3) although Johnson states that the local safety hazard existed because of the amount of time the crossing was blocked by train A56, he was not affected by the special condition of the long wait.)
*Download or view PDF version of opinion*
 
• Ex parte Key,

No. 1011682 (Ala. June 27, 2003)
(criminal; manslaughter; leaving the scene of an accident in which someone was injured; the common-law year-and-a-day rule; predicate to review inculpatory statement; On March 28, 1997, Brian Rollo was struck by an automobile and was seriously injured.  On October 2, 1998, approximately 18 months after the accident, Rollo died as a result of complications from his injuries.  On November 6, 1998, the Jefferson County grand jury indicted Ralph Lynn Key for murder, reckless murder, and leaving the scene of an accident in which someone was injured.  The State moved the trial court to abrogate the common-law year-and-a-day rule and to allow it to proceed with the murder charges against Key.  The common-law year-and-a-day rule stipulates that "a defendant can be prosecuted for homicide only if the victim dies within one year and a day of the defendant's wrongful act."  On December 20, 1999, the trial court granted the State's request to proceed on the murder charge, thereby abrogating the year-and-a-day rule.  At Key's trial, the testimony of Joy Tolbert placed Key in the car that struck Rollo.  On cross-examination, Tolbert testified that a police investigator had interviewed her nearly a year after the incident, that the investigator had tape-recorded her statement, and that she had seen a transcript of the tape-recorded statement.  Tolbert also testified that the investigator was the first person to whom she reported that Key had told her that he had to back the car up in order to get Rollo out from under it.  Defense counsel then asked the court to order the State to allow defense counsel see a copy of the transcript of the interview, or, in the alternative, for the judge to review the transcript in camera.  The trial court denied both requests.  On September 7, 2000, a jury found Key guilty of manslaughter and of leaving the scene of an accident in which someone was injured.  The trial court sentenced Key as an habitual offender to life imprisonment for the manslaughter conviction and to 99 years' imprisonment for the conviction for leaving the scene of an accident, the sentences to run concurrently.  Key appealed, and the Court of Criminal Appeals affirmed his convictions on all charges.  The Court of Criminal Appeals, after recognizing the existence of the common-law year-and-a-day rule, decided to judicially abolish the rule.  HOLDING:  The Supreme Court held that that the year-and-a-day rule remains part of the common law of this State and reversed the Court of Criminal Appeals' judgment insofar as it abrogates the year-and-a-day rule.  Consequently, the Court reversed Key's conviction for manslaughter.  The Court further held that Key laid the proper predicate for an in camera inspection of Tolbert's statement when he elicited testimony from Tolbert that her statement to the police investigator, Bill Dickenson, had been tape-recorded and that she had seen a copy of the transcript of that tape-recorded statement.  Thus, the Court remanded this case for the Court of Criminal Appeals to remand the case for the trial court to determine whether Key should have been allowed to inspect Tolbert's statement, and the Court directed that, if the trial court finds that Key should have been allowed to inspect the statement, the trial court should order a new trial on the offense of leaving the scene of an accident.)
*Download or view PDF version of opinion*
 
• Wolff Motor Co. v. White,

No. 1011845 (Ala. June 27, 2003)
(arbitration; interstate commerce; Wolff Motor Company buys vehicles in Florida, Alabama, Louisiana, Georgia, and Mississippi and resells them to buyers in Alabama and other surrounding states.  Wolff has its principal place of business in Evergreen, Alabama.  Wolff purchased a 1994 GMC 3500 Rollback tow truck ("the car-hauler") from Musick Enterprises d/b/a Suncoast Wholesale in Pensacola, Florida.  Wolff used the car-hauler to haul cars in Florida, Mississippi, Georgia, and Alabama.  Stephen White negotiated the purchase of the car-hauler from Wolff.  Stephen White told Wolff that he operated a wrecker business in Flomaton, Alabama, and in Century, Florida, and that he intended to use the car-hauler to haul cars for his business.  Stephen White directed Wolff to complete the paperwork for the purchase of the car-hauler showing Stephen White and/or Linda White as the buyer.  Wolff obtained the Whites' credit information from Equifax Credit Information Services in Atlanta, Georgia.  Wolff attempted to obtain financing for the Whites through Firstar Bank, N.A., in Oshkosh, Wisconsin.  Firstar declined to provide financing, but Wolff ultimately was able to secure a loan through the Escambia County Bank in Alabama by which the Whites could purchase the car-hauler.  Wolff Motor Company and Stephen White executed an arbitration agreement in connection with the sale and purchase of the car-hauler.  The Whites sued Wolff, alleging negligent, reckless, wanton, and/or intentional misrepresentation or suppression of material facts concerning the condition of the car-hauler at the time of the sale.  Wolff moved to compel arbitration of the Whites' claims against it.  The trial court denied Wolff's motion, finding that its sale of the car-hauler to the Whites did not substantially affect interstate commerce.  HOLDING:  The Alabama Supreme Court noted that the United States Supreme Court held in Citizens Bank v. Alafabco, Inc., 123 S.Ct. 2037, 2039 (2003), that Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala. 2000), expressed an "improperly cramped view of Congress' Commerce Clause Power," and rejected the test the Alabama Supreme Court adopted in Sisters of the Visitation – that the individual transaction at issue must itself have a "substantial effect" on interstate commerce in order to trigger the application of the FAA.   The Alabama Supreme Court further noted that the U.S. Supreme Court reaffirmed the rule that "Congress' Commerce Clause power 'may be exercised in individual cases without showing any specific effect upon interstate commerce' if in the aggregate the economic activity in question would represent 'a general practice ... subject to federal control.'"  Applying the standards set forth by the U.S. Supreme Court in Citizens Bank v. Alafabco, the Alabama Supreme Court held that the transaction in this case sufficiently "involves commerce" to fall within the scope of the FAA because (1) both of the commercial enterprises in this case regularly deal in interstate commerce, (2) Wolff Motor Company purchased substantial quantities of goods that have moved in interstate commerce, (3) the "general practice" of the transaction at issue was of the sort subject to Congress's Commerce Clause power, and (4) a car-hauler is an instrumentality of commerce.  The Alabama Supreme Court also held that although Linda White was not a signatory to the arbitration agreement, she cannot seek the benefits of the contract and at the same time avoid the agreement's arbitration provision.  Thus, the Alabama Supreme Court held that the trial court erred when it denied the motion to compel arbitration.)
*Download or view PDF version of opinion*
 
• Ex parte Kelley,

No. 1012018 (Ala. June 27, 2003)
(criminal; search and seizure; Corporal Andy Martin and two other Dothan police officers went to a local bar known as Grand Central Station because they had received "numerous, numerous complaints of drug activity taking place at that establishment," particularly sales and purchases of "Ecstacy."   Martin and his two companions were working undercover.  The three officers each ordered a beer at one of the bars downstairs and then went upstairs to the balcony area where they could observe the lower level.  Eventually they saw an individual named Clint Adkinson, accompanied by another man, come up the stairs and enter a bathroom.  The officers had prior information on Adkinson.  After Adkinson and the other man entered the bathroom, the door to it never closed.  Through the partially open door Martin observed Adkinson pass something to the other man who, in turn, gave Adkinson some money. The other man emerged from the bathroom first.  One of the other undercover officers then went into the bathroom and asked Adkinson if he had any Ecstacy that he could get for him, but Adkinson told him that he did not have anything, that he did not sell drugs.  Adkinson subsequently emerged from the bathroom, went down the stairs, crossed the dance floor, and took a seat on a bar stool next to Denise Marcil Kelley and a man later identified as her boyfriend.  Adkinson sat to Kelley's right and her boyfriend was seated to her left.  Martin saw Adkinson place his right hand into his right pocket, and then pull his hand out "just a little bit," right at the edge of the pocket.  Martin could see Adkinson looking down at something "cupped" in his hand, which shielded the object from Martin's view.  Adkinson then transferred the object into his left hand and was trying to hide it and slide it over to Kelley.  Martin had a sufficient view of the object that he thought it looked like a "Tic-Tac" brand breath-mint box. Adkinson passed the object to Kelley with his left hand.  She had the small container cupped in her right hand "trying to hide it," and slid it into the right pocket of a long black jacket she had folded across her lap.  Martin never saw Kelley give Adkinson any money.  Adkinson subsequently got up and started walking around; he was seen "counting money."  Because the transfer from Adkinson to Kelley appeared to Martin also to be a drug transaction, he and his companions went downstairs and took positions near where Kelley and her boyfriend were still seated.  The other two officers stopped Adkinson, and Martin continued to follow Kelley and her boyfriend.  When Martin approached her and identified himself as a police officer, she put her hands into her jacket pockets.  Martin instructed her to take her hands out of her pockets, which she did.  It appeared to Martin that she was "trying to get rid of" what she had in her right hand, "[t]hat's why she had them in her hand.  Looked like she was going to throw them."   In fact, as Martin had approached and identified himself to Kelley, "she was already in the process of pulling her right hand out of her pocket, and I asked her to take both of her hands out of her pockets."  Martin "grabbed her right hand and turned it over" and saw what appeared to be a matchbox clutched in it.  Martin told Kelley "not to do anything stupid" and to let him have the matchbox, which she did.  After taking the matchbox from Kelley, Martin looked inside it and found "[t]hree small pills with the smiley faces, on them," which "field tested" positive for "methamphetamine."  The stop and search of Kelley took place about 30 minutes after the officers first arrived at Grand Central Station.  After being indicted by the Houston County grand jury for unlawful possession of  methylenedioxymethamphetamine, commonly known as "Ecstasy," Denise Marcil Kelley entered a plea of not guilty.  She filed a motion to suppress the evidence that was the basis of her indictment on the ground that it was the product of an unlawful search and seizure.  At the beginning of the hearing on that motion, Kelley agreed to plead guilty if the motion was denied, but reserved the right to appeal the denial.  After the trial court denied the motion, Kelley withdrew her not-guilty plea, entered a plea of guilty, and, upon being convicted and sentenced pursuant to that plea,  exercised her right to appeal to the Alabama Court of Criminal Appeals.  That court affirmed her conviction by an unpublished memorandum.  HOLDING:  The Supreme Court affirmed.  The Court reported that it had no difficulty in finding that Martin had observed sufficient activity, which, when viewed through the lens of his specialized training and experience, provided him with "reasonable suspicion" sufficient to authorize a warrantless investigation "stop" of Kelley.
*Download or view PDF version of opinion*
 
• Gayfer Montgomery Fair Co. v. Austin,

No. 1012159 (Ala. June 27, 2003)
(arbitration; unconscionability; Pinkey Burns Austin worked as a sales associate for Gayfer Montgomery Fair Co. d/b/a Dillard's ("Dillard's") at its Auburn store from August 1998 until January 2002.  Austin was injured when she struck her right elbow against a steel post while retrieving a pair of shoes from the shoe store room.  Austin's doctor imposed permanent workplace restrictions on Austin, including restricting her from performing "tasks requiring repetitive pinching or grapping [sic], repetitive pushing, pulling or lifting, or tasks that require overhead lifting."  Dillard's assigned her to answer the store's telephones from December 2000 until the end of November 2001, "as a form of light duty work."  In August 2001, Dillard's provided all of its employees with a copy of the "Rules of Arbitration" of Dillard's ("the Rules"), which explained at one point that claims for workers' compensation benefits were not covered by the Rules, "except for claims of retaliation."  Dillard's withheld the paycheck of any employee that did not voluntarily come into the personnel office to sign the arbitration acknowledgment form and withheld Austin's check until she signed the form.  Austin signed the Acknowledgment on August 3, 2001, while still on "light duty work" answering the telephone and thereafter continued working at Dillard's.  Austin was told that she could no longer work answering the telephones "because the corporate office objected to paying [her] $9.95 per hour to answer the phones."  Austin was placed on medical leave for six months.  Subsequently, she was involuntarily taken off of medical leave and told to return to work on the sales floor.  In December 2001, Dillard's assigned Austin to the intimate apparel department.  Austin contended that working in the intimate apparel department required her to do repetitive pinching and grabbing and caused her to suffer severe pain in her right arm.  Dillard's terminated Austin's employment on January 29, 2002.  Austin sued Dillard's seeking workers' compensation benefits and damages for retaliatory discharge.  Dillard's filed a motion to dismiss Austin's retaliatory-discharge claim and to compel arbitration of that claim.  The trial court entered an order denying the  motion to compel arbitration filed by Dillard's. HOLDING:  The Supreme Court reversed.  The Court held that at the time Austin signed the Acknowledgment, she did not have either an existing claim or an anticipated or prospective claim for retaliatory discharge because she had not been fired, and she does not suggest that at the time she signed the Acknowledgment, either she or Dillard's was contemplating that her employment might ultimately be terminated.  The Court rejected Austin's argument that she could not have found equivalent employment at the time she was forced to sign the Acknowledgment, pursuant to which she agreed to arbitrate her disputes with Dillard's, because she had limited use of her right arm.  The Court noted that Austin never addressed the other required component of unconscionability – whether the terms of the arbitration agreement represented by the Rules and the Acknowledgment are grossly favorable to the party that has the overwhelming bargaining power.  Thus, the Court concluded that Austin did not carry her burden in establishing that the arbitration agreement represented by the Rules and the Acknowledgment was unconscionable.  The Court also held that Austin's employment as a sales associate for Dillard's "involved commerce" under the FAA in accordance with Citizens Bank v. Alafabco, 123 S.Ct. 2037 (2003).)
*Download or view PDF version of opinion*
 
• Board of Water & Sewer Comm'rs v. Bill Harbert Constr. Co.,

No. 1012198 (Ala. June 27, 2003)
(arbitration; Bill Harbert Construction Company ("Harbert") sued the Board of Water & Sewer Commissioners of the City of Mobile ("the Board"), Federal Insurance Company ("Federal"), and Sika Corporation ("Sika").  Harbert's various claims arose from its termination as contractor on two public works projects in Mobile involving the construction of water mains, sanitary sewers, and sewage pump stations.   Harbert amended its complaint to add as defendants various project design engineers, subcontractors, and related insurers and to assert further claims against the Board.  After further pleadings and extensive discovery, the Board filed motions "To Confirm and Enforce the Arbitrator's Decisions," and, in the alternative, to "Enforce Arbitration Concerning Contracts" ("the arbitration motions").  The Board asserted that the construction contracts it had entered into with Harbert, both of which incorporated paragraph 5.01 of the Standard Specifications for Water Mains, Sanitary Sewers, and Sewage Pump Stations ("the standard specifications"), vested authority in the project engineer to arbitrate the matter.  The arbitration motions were briefed to a special master appointed by the trial court, and the special master issued a detailed report determining that the contracts did not contain an arbitration clause.  The trial court entered an order adopting the findings of the special master, and the Board appealed.  HOLDING:  The Supreme Court affirmed and held that the trial court did not err in denying the arbitration motions on the basis that the construction contracts, and specifically paragraph 5.01 of the standard specifications incorporated into those contracts, did not contain an arbitration clause.  The Court noted that an agreement to arbitrate must be plainly expressed in the contract between the parties and that a contract may appropriately vest final authority to determine facts in a third party with technical expertise, but such an agreement ordinarily does not displace the authority of the courts to decide legal questions.  The Court also noted that the standard specifications include section 7, titled "Legal Relations and Responsibility to Public," which contains a number of provisions discussing the responsibilities of the contractor, its surety, and the owner concerning legal actions (paragraph 7.10), discussing the legal liability of the Engineer and public officials specified in the contract (paragraph 7.15), and disclaiming any waiver of legal rights (paragraph 7.16).  The Court concluded that such provisions are inconsistent with the argument of the Board.)
*Download or view PDF version of opinion*
 
• S.J. Holding Co. v. Kadco, Inc.,

No. 1012272 (Ala. June 27, 2003) (plurality opinion)
(Alabama Uniform Fraudulent Transfer Act ("AUFTA"); In 1992, the Jefferson Circuit Court found that Employers Insurance Company of Alabama, Inc. ("EICA"), was insolvent, and in its order appointed Nelson Burnett, chief of the receivership division of the State Department of Insurance, as the receiver for the insolvent insurer.  One of EICA's assets was over 90% of the stock of South Jefferson Company, Inc. ("South Jefferson"), which owned a tract of real property called Meadowbrook Townhome Property ("the Meadowbrook property").  South Jefferson borrowed $1,500,000 from AmSouth Bank to develop the Meadowbrook property.  To secure the loan, South Jefferson granted AmSouth a first mortgage on the property.  At the time Burnett was appointed receiver of EICA, John P. Baker was president of South Jefferson.  In November 1992, Baker and S.J. Holding, of which Baker was the sole shareholder, executed a security agreement with AmSouth pursuant to which Baker and S.J. Holding personally guaranteed the indebtedness of South Jefferson.  Burnett, as the receiver of EICA, was duly elected chairman of the board and president of South Jefferson in December 1992, but Burnett was never appointed the receiver for South Jefferson, nor was South Jefferson in the insurance business.  EICA was merely the majority stockholder of South Jefferson.  In early 1993, South Jefferson defaulted on its mortgage payments on the Meadowbrook property, and as authorized by the security agreement executed by Baker and S.J. Holding, AmSouth Bank applied funds from the lots sold by S.J. Holding to South Jefferson's mortgage on the Meadowbrook property.  The total amount of funds withheld from S.J. Holding and applied to South Jefferson's indebtedness was $147,132.  In 1995, Kadco expressed an interest in buying the Meadowbrook property, and on August 8, 1995, Burnett, as the receiver for EICA, filed a motion in the Jefferson Circuit Court in the State ex rel. Weaver v. EICA case for the approval of a sale of the Meadowbrook property to Kadco.  In his motion Burnett stated that as the receiver of EICA he was petitioning the court to approve the sale of property, "currently owned by South Jefferson, a subsidiary of EICA."  On September 6, 1995, Burnett issued to the shareholders of South Jefferson a notice of a special meeting, to be held on September 28, 1995, at the office of the State Department of Insurance, receivership division, for the purpose of approving the sale of the Meadowbrook property to Kadco.  On September 20, 1995, the circuit court granted Burnett's motion for approval of the sale of property.   S.J. Holding, Inc., sued Kadco, Inc., the grantee of the alleged fraudulent transfer of real property.  S.J. Holding sought an avoidance of the transfer and compensatory and punitive damages.  Kadco answered the complaint and counterclaimed, alleging intentional interference with contractual and business relations, slander of title, and conspiracy to commit the foregoing torts.  hereafter, S.J. Holding moved for a summary judgment on Kadco's counterclaims; it subsequently moved for a summary judgment on its claim against Kadco.  In reply, Kadco moved for a summary judgment on the fraudulent-transfer claim asserted against it.  the trial court, based on the undisputed material facts submitted in support of and in opposition to Kadco's motion for a summary judgment, granted the motion.  HOLDING:  The Supreme Court affirmed.  The Court concluded that it was Burnett, acting as the receiver of EICA pursuant to a court order, who transferred the Meadowbrook property, not South Jefferson.  Consequently, the Court held that the trial court did not err in holding that the provisions of the AUFTA did not apply in this case.)
*Download or view PDF version of opinion*
 
• Ex parte Southern Energy Homes, Inc.,

No. 1020037 (Ala. June 27, 2003)
(workers' compensation; Southern Energy Homes, Inc. builds and distributes manufactured homes.  It hired Emma Riddle in November 1995 at Southern Energy's Lynn plant to clean the manufactured homes before they left the manufacturing facility.  Riddle was 53 years old at the time of trial.  Riddle alleged in her complaint that she first injured her back in April 1996 when she fell off a six-foot ladder and landed on her feet.  After missing one day of work, after which she was back to work performing all of her normal duties.  Riddle never filled out the  workers' compensation paperwork for an on-the-job injury.  In early 1997, Riddle was transferred to Southern Energy's Double Springs plant.  On or around January 5, 1997, Riddle complained to her supervisor that she hurt her back when she was pushing a vacuum cleaner inside one of the manufactured homes.  Riddle never returned to work at Southern Energy, or anywhere else. During Riddle's employment with Southern Energy, her primary-care physician was Dr. Bernard Simieritsch.  Riddle testified that she informed Dr. Simieritsch of her daily back pain, but Dr. Simieritsch's records admitted into evidence do not mention the April 1996 incident or any complaints of back pain during Riddle's first seven visits to Dr. Simieritsch after the alleged April 1996 incident.  After she had filed a workers' compensation claim with Southern Energy and had stopped working for Southern Energy, Riddle informed Dr. Simieritsch that she had fallen off a ladder in April 1996 and that she has had problems with her back since that time.  Dr. Simieritsch diagnosed Riddle with degenerative disk disease of the lumbar spine.  Dr. Simieritsch referred Riddle to Dr. Edward Fisher, an orthopedic surgeon.  Dr. Fisher observed that Riddle's "complaints of symptoms seem[] out of proportion to any physical findings."  Dr. Fisher concluded  that "[a]lthough she has quite a few symptoms[,] there are not really any objective findings to rate any permanent impairment."  He did not place any work restrictions on Riddle upon releasing her from his care.   Riddle decided to seek further treatment from other doctors of her own choosing.  She sought treatment from Dr. Forqouk Raquib, who concluded that the "degree of her physical symptoms are inconsistent with physical findings."  Upon releasing Riddle from his care, Dr. Raquib did not restrict Riddle from working and did not make a finding as to whether her condition was caused by an on-the-job injury.  Dr. Muhammad Ali, a neurologist and pain specialist, found that Riddle was engaging in "symptom magnification," i.e., she was exaggerating the extent of her debilitation.  Dr. Ali determined that Riddle had reached maximum medical improvement on April 4, 2000.  He never assigned Riddle a permanent impairment rating during her visits, but upon questioning at his deposition, he placed Riddle's permanent impairment rating at between 0% and 5%.  Dr. Ali concluded that there was nothing that would preclude her from performing light-duty and medium-duty work.  Others testified similarly.  The trial court ruled that Riddle sustained a permanent injury after having sustained a previous permanent injury in her employment at defendant, and the combined effect of said previous injury and said subsequent injury resulted in her permanent total disability.  The trial court awarded Riddle $363,684.32 for her disability.  The Court of Civil Appeals affirmed the trial court's ruling, without an opinion. HOLDING:  The Supreme Court reversed.  The Court noted that none of the doctors who treated Riddle stated with any degree of certainty that Riddle's back condition was due to the alleged workplace injury.  The Court noted that none of the doctors, psychologists, or experts stated after examining Riddle that Riddle was incapable of gainful employment.  The Court concluded that Riddle failed to present substantial evidence of medical causation between her on-the-job incidents and her condition and that she failed to produce substantial evidence indicating that she sustained a permanent total disability.)
*Download or view PDF version of opinion*
 
• Ex parte Creech,

No. 1020055 (Ala. June 27, 2003)
(criminal; The Supreme Court denied the petition for writ of certiorari without opinion, but the Court stated that in denying the petition for the writ of certiorari, it does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion.  Justice Houston dissented and stated that he adopt's Judge Cobb's dissent.)
*Download or view PDF version of opinion*
 
• Nationwide Ins. Co. v. Rhodes,

No. 1020160 (Ala. June 27, 2003)
(uninsured motorist; Jason Rhodes suffered multiple injuries in an automobile  accident involving a vehicle driven by James Green, an uninsured motorist.  At the time of the accident, Rhodes lived in a mobile home that he and his wife owned at 1047 Fields Road in Bessemer.  Before moving to his own mobile home approximately two years before the accident, Rhodes had lived for a year in a mobile home that he rented; before that he had lived with his parents at 9361 Old Toadvine Road, Bessemer.  At the time of the accident, Rhodes had an automobile- insurance policy with Nationwide Insurance Company ("Nationwide").  Rhodes's father also had an automobile-insurance policy with Nationwide.  After the accident, Rhodes sought coverage under the uninsured-motorist ("UM") portion of his own policy.  After exhausting the coverage limits of his own policy, Rhodes attempted to obtain additional coverage under the UM limits of his father's Nationwide automobile- insurance policy.  The automobile-insurance policy Rhodes's father had with Nationwide included UM coverage for "relatives"; it defined "relative" to mean "one who regularly lives in your household and who is related to you by blood, marriage or adoption (including a ward or foster child.)  A relative may live temporarily outside your household."  Nationwide denied Rhodes's claim under his father's policy, and Rhodes sued Nationwide seeking UM coverage under his father's policy.  Nationwide moved for a summary judgment; Rhodes then moved for a summary judgment.  Rhodes presented evidence indicating that Rhodes slept at his parents' house, with or without his wife, approximately one night a month; that he occasionally ate meals at his parents' house; that he had a key to his parents' house and came and went as he pleased; that a room at his parents' house was designated as "his room" and that the furniture in that room was "his," though his father had paid for that furniture; that he still received mail at his parents' house; that he had not changed the address on his driver's license or voter's registration from his parents' address to the address of the mobile home he owned with his pregnant wife; and that he claimed to have a "present intention" to return to his parents' house.  Rhodes stated in his deposition that he had been financially independent from his parents for several years; that he was a married, employed, 28-year-old man with a child on the way; and that Rhodes slept most nights in his own mobile home.  The parties stipulated that the only dispute between them was whether Rhodes qualified as a covered "relative" within the meaning of his father's automobile-insurance policy with Nationwide.  The trial court entered a summary judgment for Rhodes, finding that the Nationwide insurance policy was ambiguous on that issue and awarding Rhodes $60,000 in UM benefits under his father's policy.   HOLDING:  The Supreme Court reversed and found that the trial court erred in finding that the language of the Nationwide policy was ambiguous.  The Court also noted that note that Rhodes's acquisition of his own automobile-insurance policy indicates his understanding that he needed separate insurance from that of his parents.)
*Download or view PDF version of opinion*
 
• Ex parte State of Alabama (In re: Arrington v. State),

No. 1020214 (Ala. June 27, 2003)
(criminal; The Supreme Court held that the convictions and sentences in this case are due to be reversed and the case remanded on the authority of Wilson v. State, No. 1020014 (Ala. June 13, 2003).)
*Download or view PDF version of opinion*
 
• Ex parte Fort James Operating Co.,

No. 1020678 (Ala. June 27, 2003)
(workers' compensation; attorney fees; standing; The petitioner, Fort James Operating Company ("Fort James"), was sued by its employee, Willie J. Thompson ("the employee"), for workers' compensation benefits.  The trial court awarded the employee accrued temporary total disability benefits, certain accrued medical expenses, future medical expenses, and the costs of maintaining the action.  The trial court also awarded attorney fees to the employee's attorney. The trial court ordered that benefits that had been paid through the employee's insurance, which was an employment benefit provided by Fort James, would offset a portion of Fort James's liability, pursuant to Ala. Code §25-5-57(c)(1).  In calculating attorney fees, however, the trial court computed the maximum attorney fee allowed by Ala. Code §12-5-90 -- 15% -- on the total amount of temporary total disability benefits due before deducting the setoff amount for the benefits paid by the employee's insurance.  In other words, the attorney fee was calculated on the pre-setoff amount.  The trial court ordered Fort James to pay an attorney fee that was based, in part, on the amount of the setoff.  The trial court also awarded the employee's attorney a fee based on 15% of the medical expenses awarded to the employee.  The parties agree that the trial court ordered that this fee be subtracted from the award of medical expenses, and thereby it was to be paid by the employee, not by Fort James.   The Court of Civil Appeals affirmed the trial court's judgment as to the amount of the attorney fee awarded, but reversed the portion of the trial court's order that required Fort James to pay that portion of the attorney fee calculated on the setoff.  HOLDING:  The Supreme Court quashed the writ of certiorari as improvidently granted. The Court held that Fort James lacks standing because Fort James is not responsible for the payment of either attorney-fee award of which it complains.)
*Download or view PDF version of opinion*
 
• Ex parte 84 West, Inc.,

No. 1020895 (Ala. June 27, 2003)
(The Supreme Court denied the petition for writ of certiorari without opinion, but stated that in denying the petition for the writ of certiorari, it does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.)
*Download or view PDF version of opinion*
 
• Ex parte Stallworth,

No. 1020941 (Ala. June 27, 2003)
(criminal; The Supreme Court denied the petition for writ of certiorari without opinion.  Justice Johnstone wrote a dissenting opinion.)
*Download or view PDF version of opinion*

Back to top

Opinions Released June 20, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JUNE 20, 2003

 
• Ex parte Phenix Rental Ctr.,

No. 1012284 (Ala. June 20, 2003)
(workers' compensation; maximum medical improvement; permanent and total disability; Phenix Rental Center ("Phenix") is in the equipment-rental business, which includes the rental of portable fiberglass toilets.  Beginning in October 1995, Angel Ray Batiz was employed by Phenix as a laborer repairing various fiberglass rental items, including the toilets.  The repair work often resulted in "cuts or splinters from the fiberglass" to, or into, Batiz's hands and sometimes required him to come in contact with human waste that had not been completely pumped from waste reservoirs in the toilets.  On August 12, 1997, Batiz reported that he had been diagnosed with hepatitis C, and he alleged that he contracted the disease through his employment at Phenix.  On November 12, 1997, Phenix filed a complaint in the Russell County Circuit Court for a judgment declaring whether Batiz was entitled to workers' compensation benefits under the Alabama Workers' Compensation Act.  Batiz filed a counterclaim seeking those benefits.  After various filings by the parties, the trial court held an evidentiary hearing ("the 1999 hearing"), following which the trial court found, among other things, that Batiz had suffered a work related injury by contracting hepatitis C and ordered that Phenix provide him workers' compensation benefits. Subsequently, the trial court held a second evidentiary hearing ("the 2001 hearing"), resulting in an order entered on April 24, 2001, declaring Batiz to be "totally and permanently disabled."  Phenix appealed to the Alabama Court of Civil Appeals, and that court affirmed the judgment of the trial court without an opinion.  HOLDING:  The Supreme Court reversed.  The Court concluded that the record supports Phenix's contention that Batiz had not reached maximum medical improvement ("MMI") at the time of the trial court's 2001 order finding that he was permanently and totally disabled. The Court held that before a trial court can make a determination that an employee is permanently (and either partially or totally) disabled under the Alabama Workers' Compensation Act, the employee must have reached MMI.  The Court concluded that the record is devoid of any evidence indicating that, as of the time the trial judge issued his April 24, 2001, order finding Batiz to be "totally and permanently disabled," Batiz had in fact reached MMI, as that status is defined by the law.  The Court noted that the trial judge could have attempted a determination of some sort of temporary disability rating, but he acted prematurely in making a determination of permanent disability.)
*Download or view PDF version of opinion*
 
• Lee v. Minute Stop, Inc.,

No. 1012303 (Ala. June 20, 2003)
(discretionary immunity for police officers set out at Ala. Code §6-5-338; summary judgment; malicious prosecution; false arrest; defamation; wantonness or negligence in failing to properly train and supervise employees; Douglas Lee went with Bobby and Laurie McLaughlin around 4:30 a.m. to get some cigarettes at the Minute Stop Conoco service station.  Laurie McLaughlin entered the store first; she was immediately followed by Bobby McLaughlin and Lee.  Laurie McLaughlin asked for cigarettes and told Twanda Nobles, the only clerk on duty at the time and  who was separated from the customers by safety glass, that she often purchased cigarettes from that Conoco service station and paid for them later.  Nobles was not familiar with any credit arrangement Laurie might have had, and when she told Laurie McLaughlin that she was not going to give her the cigarettes, Bobby McLaughlin told Nobles, "I'll take those damn cigarettes from you ....  I'll make you give them to me."  Although Lee did not say anything at that time, he did not disclaim involvement with the McLaughlins or attempt to separate himself from the McLaughlins.  Both McLaughlins used profanity toward Nobles and used a racial slur.  Laurie McLaughlin struck the safety glass between her and Nobles with her hands and indicated to Nobles that she would be coming back for cigarettes and that she then turned to Bobby McLaughlin and Lee and stated that she could handle the situation.  Nobles feared for her safety.  Bobby McLaughlin and Lee then left the store, but Laurie McLaughlin remained in the store and told Nobles that she would come back behind the glass.  While this was happening, Bobby McLaughlin, who was outside the building at this time, banged on the glass window next to Nobles and then went to his automobile and reached inside, toward the floorboard.  Nobles saw the butt of a handgun at that time.  According to Nobles, Laurie McLaughlin yelled at Bobby McLaughlin to "put that gun down, ... she's calling the police."  Laurie McLaughlin told Bobby McLaughlin to back up so that Nobles could not get the license number of the vehicle, and the three drove off rapidly.  Nobles telephoned emergency 911 and informed the dispatcher that three individuals had entered the store and had created a disturbance.  The three were apprehended by Mobile police officers and brought back to the store, and Nobles identified them as the three who had come into the store.  Lee was arrested on a charge of robbery in the first degree and remained in jail until the date of his preliminary hearing.  At the preliminary hearing the district judge dismissed the charge against Lee based on a finding that the officers lacked probable cause to arrest him.  Lee subsequently filed this action, and in his third and final amended complaint he asserted several claims against several defendants.  In count one he alleged malicious prosecution against several defendants: Twanda Nobles; several the corporate defendants hereinafter referred to collectively as "Minute Stop"; and Mobile police officers K.N. Rodgers, David Walker, James Stabler, and Michael Williams.  In count two he alleged false arrest against all the defendants, in their individual and corporate capacities, as applicable.  In count three he alleged negligence against Minute Stop, claiming that it failed to adequately train and supervise Twanda Nobles in how to properly report and handle an alleged criminal offense, or how to properly identify persons alleged to be responsible for an alleged crime.  In count four Lee alleged negligent supervision and training on the part of the City of Mobile of the four police officers named as defendants in count one.  In count five he alleged defamation against Twanda Nobles for allegedly falsely accusing him of robbery, knowing that the allegations were not true.  In count six he alleged negligence against the City of Mobile and also alleged that the four officers failed to properly determine that there was no probable cause for his arrest.  In count seven he alleged that the officers were guilty of wanton misconduct because, he alleged, they failed to properly and thoroughly investigate the events leading up to his arrest, detention, and prosecution.  In count eight he alleged negligence against Twanda Nobles and Minute Stop in identifying and/or accusing Lee of robbery or attempting to rob the store.  In count nine he alleged that Twanda Nobles and Minute Stop were guilty of wantonness for incorrectly identifying him as a robber and for accusing him of robbing or attempting to rob Twanda Nobles.  In count ten Lee asserted a claim of abuse of process against the City of Mobile and the four police officers.  Each of the defendants filed a motion for a summary judgment.  The trial court granted the defendants' summary-judgment motions.  HOLDING:  The Supreme Court affirmed.  The Court held that the trial court did not err in entering a summary judgment for Nobles and Minute Stop on Lee's malicious-prosecution, false-arrest, defamation, negligence, and wantonness claims, and for Minute Stop on his claim alleging negligent training and supervision, because it held there was probable cause to detain Lee.  The Court also noted that the record does not show that Nobles ever stated that Lee did anything wrong; rather, she only identified Lee as being one of the persons who was in the store during the disturbance and answered questions the police officers asked her about the incident..  The Court held, regarding Lee's malicious-prosecution claims against Nobles and Minute Stop, that it appears that the trial court could have determined that Lee did not satisfy at least three of the five elements of such a claim: (1) the existence of a judicial proceeding initiated by the defendant; (2) that there was a lack of probable cause; and (3) that the defendant acted with malice.  The Court noted that Alabama law protects those who, in good faith, assist law-enforcement officials in identifying persons who may have committed a crime.  The Court also held that if the employee is not guilty of a false arrest, the employer could not be liable either.  The Court further held that the trial court did not err in entering a summary judgment in favor of the City of Mobile and its police officers on the basis of discretionary-function immunity.  The Court held that because the police officers had probable cause to arrest and detain Lee, the act of arresting Lee for a felony without a warrant was discretionary, and the officers were protected under Ala. Code §6-5-338.)
*Download or view PDF version of opinion*
 
• Ex parte Progress Rail Servs. Corp.,

No. 1012357 (Ala. June 20, 2003)
(workers' compensation; exclusivity and immunity provisions of the Alabama Workers' Compensation Act; Lydia Garcia and her husband, Daniel Pantoja Garcia, were both employees of Progress Rail, a company that, among other things, purchased old railroad cars and locomotives for scrap metal.  Lydia's and Daniel's job responsibilities included cutting scrap metal with a cutting torch, described in the plaintiffs' complaint as a "blow torch."  In November 2001, Progress Rail was in the process of cutting up several railroad box cars and a locomotive for scrap metal.  The crew consisted of Lydia and Daniel and their supervisor, James Painter.  Initially, Painter told the couple that one of the cars, which had a 4,000-gallon diesel fuel tank, would not be cut because there was fuel residue in the tank.  Subsequently, however, on November 13, 2001, Painter retrieved the fuel tank and ordered Daniel and Lydia to cut it in half, apparently so that it would fit on a truck for transport.  They began cutting the fuel tank, working on opposite ends.  At a point in the operation, an explosion occurred and Lydia was engulfed in flames; she died of her injuries approximately 14 days later.  It is undisputed that at the time of the incident, Lydia was an employee of Progress Rail and that her injury and resulting death were caused by an accident arising out of and in the course of her employment.  Subsequently, in a separate action filed in the Marshall Circuit Court, the circuit court determined that Daniel and the couple's three children were the "appropriate and sole dependents [of Lydia] to receive the benefits under the Alabama Workers' Compensation Act."  Those benefits, both accrued and prospective, were declared by a judgment entered on March 13, 2002; that judgment contained the provision that "[f]ollowing the payment of the benefits set out herein, all obligations of [Progress Rail] to the dependents under the Alabama Workers' Compensation Act shall cease."  Four days before that judgment was entered, Daniel and the three children, proceeding in various specified capacities (hereinafter collectively referred to as "the Garcias"), sued Progress Rail, Progress Energy Service Company, LLC, Painter, and three other of Lydia's co-employees.  Progress Rail, jointly with the other defendants, filed a motion to dismiss, asserting that the various counts failed to state a claim upon which relief could be granted.  Progress Rail specifically asserted that, as to it, the Garcias' claims were barred by the exclusive-remedy provisions of the Workers' Compensation Act (hereinafter sometimes referred to as "the Act").   After conducting a hearing, the circuit judge denied the motion.  Progress Rail filed a petition for writ of mandamus.  The t Garcias' argument in response to Progress Rail's exclusivity argument is essentially that Ala. Code §25-1-1 imposes on an employer a statutory duty to provide its employees with a safe place to work and that this duty, when intentionally and willfully breached, gives rise to a cause of action unencumbered by the exclusive-remedy provisions of the Act.  Progress Rail argues just the opposite, contending that when an employee suffers injury or death caused by an accident arising out of and in the course of his employment, and the injury or death is covered under the Act, the Act's exclusivity provisions apply and control, even though the accident arose out of a failure to provide a safe place to work and regardless of whether the employer's conduct was negligent, wanton, intentional, or willful. HOLDING:  The Supreme Court granted the writ of mandamus and directed the trial judge to dismiss Progress Rail as a party to the action.  The Court held that Lydia's injury and resulting death were clearly covered under the Act, and compensation and other benefits due her dependents under the Act have been duly provided to and accepted by them.  The Court said that it cannot agree with the Garcias that it "stands to reason" that, because the Legislature has imposed a statutory duty on employers to provide their employees with a safe place to work, an injured employee can maintain an action against an employer for a breach of that duty even though the injury is fully covered under the Act, with that action to be exempt from what this Court has declared to be the "complete immunity" provided to an employer for such injuries.)
*Download or view PDF version of opinion*
 
• Reynolds v. Colonial Bank,

Nos. 1020186 & 1020187 (Ala. June 20, 2003)
(jurisdiction; Jefferson Screening, Inc.; Laguna Resources, Inc.; and Black Creek Land and Minerals, Inc. (hereinafter referred to collectively as "the debtors") were the plaintiffs in a fraud action against Seminole Electric Cooperative, Inc.  On May 3, 2000, after the commencement of the debtors' action, Colonial Bank sued both the debtors and Seminole, claiming that the debtors had defaulted on their loans with Colonial Bank because of Seminole's alleged failure to honor its contracts to purchase coal from the debtors.  Colonial Bank's action was consolidated with the debtors' action against Seminole.  The trial court entered a summary judgment in favor of Colonial Bank for its claims against the debtors in the amount of $7,446,363.16.  The judgment was made final pursuant to Rule 54(b), Ala.R.Civ.P.  The debtors did not appeal the summary judgment against them.  The debtors assigned to Colonial Bank any potential recovery in their fraud action against Seminole, and, in return, Colonial Bank agreed to seek recovery of the debtors' indebtedness only from the proceeds recovered, if any, in the debtors' fraud action against Seminole.  The trial court entered an order of attachment in favor of Colonial Bank charging with payment of Colonial Bank's judgment any monetary judgment recovered by the debtors against Seminole, subject to any liens held by the debtors' attorneys. Colonial Bank dismissed its action against Seminole.  The debtors' remaining claims against Seminole were tried before a jury.  On June 26, 2001, the jury returned a verdict in favor of the debtors against Seminole in the amount of $22,196,899.69.  Colonial Bank, along with Komatsu, General Electric, and Brad Regan, other creditors of the debtors, served their writs of garnishment on Seminole.  The law firm of Friedman, Leak & Bloom, P.C. ("Friedman") and the law firm of Tweedy, Jackson, Beech and Fikes, P.C. ("Tweedy") also asserted their claims for attorney fees related to the services they provided for one of the debtors, Jefferson Screening.  Seminole subsequently appealed the trial court's judgment for the debtors on their fraud claim.  On September 9, 2002, while that appeal was pending before the Supreme Court, the debtors and Seminole executed a "Release and Settlement Agreement" settling the debtors' judgment against Seminole for  $6,900,000.  To protect itself from competing claimants, Seminole filed a complaint for interpleader of the funds.  Seminole paid the interpleaded funds to the trial court so the trial court could determine the proper distribution of the funds among the competing claimants.  The debtors answered the interpleader complaint and disclaimed any entitlement to the proceeds of the interpleaded funds.  On September 11, 2002, again while the appeal was still pending before this Court, the trial court conducted a hearing at which the debtors, Seminole, and Colonial Bank were present.  The trial court entered an order condemning the $6,900,000 settlement amount.  The trial court also approved the payment of attorney fees and litigation expenses pursuant to the employment contract Friedman and Tweedy had with Jefferson Screening.  The trial court also entered an order sealing the record in the case.  On September 11, 2002, the same date the trial court entered its orders, the parties filed a joint motion with the Supreme Court asking it to remand Seminole's appeal of the underlying fraud action.  Two days later, on September 13, 2002, the Supreme Court remanded Seminole's case for proceedings consistent with the release and settlement agreement.  Consequently, the trial court's hearing took place and its orders were entered while Seminole's appeal was pending before the Supreme Court.  On September 13, 2002, the same date the Supreme Court remanded Seminole's case, General Electric, Cumberland Casualty and Surety Company, and Regions Bank filed petitions of involuntary bankruptcy against the debtors.  Thomas E. Reynolds was appointed as interim bankruptcy trustee.  Approximately 15 days after the trial court entered its orders, the Supreme Court dismissed the appeal on Seminole's motion. Reynolds appealed the trial court's condemnation order and its award of attorney fees and expenses.  HOLDING:  The Supreme Court held that the trial court lacked jurisdiction to enter its condemnation order and to award attorney fees and expenses.  The Court held that the trial court's order  condemning the settlement amount and its award of attorney fees and expenses were not "collateral" to the pending appeal.  The Court held that although it is clear that the debtors as well as Seminole agreed to be bound by the release and settlement agreement, the parties' consent cannot confer jurisdiction on the trial court.  The Court reversed the trial court's order and remanded.)
*Download or view PDF version of opinion*

--(The substituted opinion in Reynolds released on Aug. 15, 2003, is available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Ex parte Hunter,

No. 1021296 (Ala. June 20, 2003)
(The Supreme Court denied the petition for writ of certiorari without opinion, but the Court stated that in denying the petition, it does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion.)
*Download or view PDF version of opinion*

Back to top

Opinions Released June 13, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JUNE 13, 2003

 
• Ex parte Helms,

No. 1001475 (Ala. June 13, 2003)
(will contest; The petitioners -- Annie Jean Helms, Mary Jon Brown, Sharon Wallace, Susan Grimes Mitchum, and Robert Grimes  (hereinafter, sometimes collectively "the contestants") -- contested a will in the trial court, where the jury returned a verdict and the trial court entered a judgment in favor of the contestants and thereby invalidated the contested will. The respondents -- Ruth H. Morrow and Pamela Morrow (hereinafter, sometimes collectively "the proponents") -- had offered the will for probate and, after they lost the will contest to the contestants in the trial court, appealed the adverse judgment.  The Court of Civil Appeals held that the trial court committed three reversible errors in, first, denying the proponents' motion for judgment as a matter of law on their claim that the execution of the will met the formal requirements for validity; second, denying the proponents' motion for judgment as a matter of law on the contestants' claim that the decedent, Bernice H. Grimes, lacked testamentary capacity; and, third, denying the proponents' motion for judgment as a matter of law on the contestants' claim that the proponents had procured the will by exerting undue influence on Bernice.  The proponents argued that the will was "self-proved" in accordance with Ala. Code §43-8-132, even though the official seal of the "officer authorized to administer oaths" was not affixed as required by this statute.  The Court of Civil Appeals agreed that the seal was unnecessary and that the will was self-proved. HOLDING:  The Supreme Court affirmed in part, reversed in part, and remanded. The Court rejected the Court of Civil Appeals' holding that the will was self-proved, "because the statute means what it says."  The Court said that Judge Murdock, in his special writing in this case below, correctly explains the indispensable nature of the seal, and it adopted Judge Murdock's analysis.  The Court also agreed with the proponents and Judge Murdock that the proponents introduced uncontradicted evidence that the will was actually executed as required by Ala. Code §43-8-131 — that is, that the will was signed by the testator before two witnesses, who also signed.  The Court held that the contestants did not preserve any challenge to the legal sufficiency of the proponents' prima facie proof of the formalities of the execution of the will, and no evidence in the record rebuts the proponents' prima facie proof.  Therefore, the Court held that the trial court erred in denying the proponents' motion for JML on this issue and in submitting this issue to the jury.  The Court held that the text of the jury's verdict against the proponents of the will does not exclude the possibility that the jury based the verdict on a finding that Bernice did not sign the will or that she did not sign it before two witnesses who also signed, as required by Ala. Code §43-8-131.  The Court noted that such a finding would be contrary to the proponents' uncontroverted prima facie proof, and thus, the error of the trial court in denying JML in favor of the proponents on this issue requires reversal.  The Court held that the judgment of the Court of Civil Appeals is correct to this extent, although for a wrong reason.  The Court reversed the Court of Civil Appeals on the other two issues:  that is, (1) the Court held that the record contains substantial evidence supporting the claim of the contestants that Bernice was mentally incompetent to execute the contested will when the proponents claimed she executed it, and (2) the Court held that the record contains substantial evidence supporting the claim of the contestants that the proponents procured the putative January 15, 1997, will by exerting undue influence in Bernice.  The Court held that the contestants are entitled to proceed again to the jury on their lack-of-testamentary-capacity claim; and, absent further consideration and an adverse holding by the Court of Civil Appeals on the issue of the proponents' status as "favored beneficiaries" under the putative 1997 second will, the contestants will be entitled to proceed again to the jury on their undue-influence claim.)
*Download or view PDF version of opinion*
 
• Ex parte Holton,

No. 1012143 (Ala. June 13, 2003)
(workers' compensation; Curtis Dale Holton lives in West Monroe, Louisiana; he was 23 years old on the day of his accident. On October 14, 1999, Holton was working for Mastec North America, Inc., laying conduit for fiber-optic cable along U.S. Highway 90 near the Styx River in southeast Baldwin County.  Late in the afternoon on October 14, Mastec's boring superintendent suggested that the crew take a break and go swimming in the Styx River.  The crew went swimming at a spot along the river where the bank was sandy; there was a rope swing hanging from a tree.  One member of the work crew grabbed the rope swing and jumped safely from the swing into the deep part of the river.  Holton was next in line for the rope swing.  Holton grabbed the rope and attempted to jump into the deep water in the middle of the river; instead, he slipped and fell into shallow water, breaking his neck.  As a result of the accident, he is essentially paralyzed from the neck down; he retains very limited movement of his hands and arms.  The trial court found that Curtis Dale Holton was injured in the line and scope of his employment and that he is permanently and totally disabled.  The trial court entered a judgment awarding past and future compensation for permanent total disability, compensation for future medical expenses, and $176,494.48 for past medical expenses.  The Court of Civil Appeals reversed the trial court's award of workers' compensation benefits. HOLDING:  The Supreme Court reversed the Court of Civil Appeals and affirmed the trial court.  The Court held that the injury arose from the plaintiff's employment where the employer sanctioned a swimming break for its employees.  The Court held that Holton's method of entering the water is not a bar to his receiving workers' compensation benefits.  The Court concluded that the Court of Civil Appeals impermissibly substituted its judgment for that of the trial court.)
*Download or view PDF version of opinion*
 
• Morgan v. Exxon Corp.,

No. 1012345 (Ala. June 13, 2003)
(contamination of real property; environmental law; rule of repose; Blanche Taylor Morgan and her two adult children, Kenneth Morgan and Ellen Morgan Caudle (hereinafter referred to collectively as "the Morgans") filed an eight-count complaint against Exxon Corporation ("Exxon"), Mobil Oil Corporation ("Mobil"), and Marshall Oglesby (Exxon, Mobil, and Marshall Oglesby are hereinafter referred to collectively as "the Companies") that "at all times material and pertinent" the Companies "owned and/or were engaged in the business of operating certain oil, gas and/or saltwater disposal wells, production equipment, disposal pits, and other facilities" on the Morgans' property.  In the process of those operations, the complaint alleged, the Companies "willfully, wantonly, recklessly and negligently caused the [Morgans'] real and personal property to become contaminated with radioactive scales, residues, precipitates and other harmful and hazardous materials."  The complaint alleged that the contamination consisted of "salt water, oil and grease, heavy metals and other harmful and hazardous substances."  The Morgans sought relief on theories of (1) negligence, (2) nuisance, (3) trespass to land, (4) breach of contract, (5) waste, (6) strict liability,  (7) the tort of outrage, and (8) conspiracy.  They sought recovery of the "costs of site investigation, monitoring, cleanup and/or remediation, [and] loss of property values."  They also sought damages for emotional distress and punitive damages.  Moreover, the complaint disclaimed that it was asserting any claim for relief based on any federal law or statute.   It is undisputed that the Companies' activities at the well sites had ceased by the early 1970s, that is, more than 20 years before the commencement of this action.  The Morgans first discovered the contamination on the Morgan property in 1994, first had the property tested for hazardous substances in 1995, and filed this lawsuit on July 19, 1996.  In motions for summary judgment, the Companies argued that the claims against them are barred by the rule of repose.  The Morgans asserted that the application of the rule of repose to their claims is preempted by the Comprehensive Environmental Response, Compensation, and Liability Act, codified as amended by the Superfund Amendments and Reauthorization Act of 1986, at 42 U.S.C. §9601 et seq. ("CERCLA").  The Morgans insisted that Alabama's rule of repose is preempted by 42 U.S.C. §9658(a)(1), which purports to preempt the accrual date of any state limitations period which provides for a commencement date earlier than the federally required commencement date (the "FRCD"), which is defined as "the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (a)(1) of this section were caused or contributed to by the hazardous substance or pollutant or contaminant concerned."  The trial court granted the Companies' summary-judgment motions, solely on the rule-of-repose ground.  In each order, the trial court stated: "The court has not considered the other grounds raised by [the Companies] as to [the Morgans'] claims, and expressly reserves judgment with respect thereto."  The trial court certified the orders as final judgments, pursuant to Ala. R. Civ. P. 54(b), and the Morgans appealed.  HOLDING:  The Supreme Court affirmed.  The Court concluded that it need not decide whether the Morgans must actually assert a CERCLA claim, as the Companies contend, because the Morgans have failed to present substantial evidence of a  necessary element of §9658.  The Court noted that although the Morgans presented evidence showing at the relevant sites the presence of petroleum hydrocarbons, chlorides, crude oil, lead, "saltwater erosion" arsenic, benzene, toluene, xylene, zinc, and "normally occurring radioactive material" ("NORM"), the record contains no evidence of the source of any of those materials, which evidence is essential to satisfy the second element of §9658.  The Court held that §9658 applies to the Morgans' claims only if they offer substantial evidence that the damage to their property was caused by the "release of a hazardous substance.")
*Download or view PDF version of opinion*
 
• Southeast Cancer Network, P.C. v. D.C.H. Healthcare Auth.,

No. 1012382 (Ala. June 13, 2003)
(declaratory judgment; claims of tortious interference with a business relationship and of engaging in an unlawful trust, combine, or monopoly in violation of Ala. Code §6-5-60; DCH Healthcare Authority, Inc. ("DCH") was incorporated as a public hospital corporation pursuant to authorizing resolutions adopted by Tuscaloosa County, the  City of Tuscaloosa, and the City of Northport.  DCH's certificate of incorporation provides that DCH shall have all the powers and authority permitted to it under the Health Care Authorities Act of 1982, Ala. Code §22-21-310 et seq.  DCH owns and operates DCH Regional Medical Center in Tuscaloosa and Northport Medical Center in Northport.  DCH leases and operates Fayette Medical Center in Fayette.  Oncology Associates of West Alabama, P.C., is a medical professional corporation located in Tuscaloosa.  All physicians employed by Oncology Associates of West Alabama hold privileges to practice oncology at DCH facilities.  Southeast Cancer Network, P.C. ("Southeast") employs 11 physicians.  Southeast's physicians have offices in Tuscaloosa, Fort Payne, Decatur, Sylacauga, and Montgomery, Alabama, and in Lebanon, Tennessee.  Southeast's physicians hold staff privileges at over 30 hospitals in Alabama and Tennessee.  Southeast operates an oncology clinic in Tuscaloosa.  Some physicians employed by Southeast may have practiced oncology at DCH-operated facilities before November 1997.  DCH has no objection to granting general staff privileges at any of its hospitals to Southeast's physicians.  In fact, one Southeast physician, Dr. Pamela Hughes, holds staff privileges to practice internal medicine at all three DCH hospitals.  DCH, however, declines to grant Southeast's physicians specialist-staff privileges to practice oncology at a DCH hospital.  DCH and Oncology Associates maintain that there are in the "surrounding area" at least 10 medical centers, in addition to the hospitals operated by DCH and the 31 hospitals at which Southeast's physicians hold staff privileges, that provide oncological services.  At least 5 of those medical centers are within 60 miles of Tuscaloosa.  On November 18, 1997, DCH entered into a five-year contract with Oncology Associates to provide oncology services at medical centers operated by DCH.  The agreement contains an exclusivity provision stating that DCH "will not allow or permit any person or  entity other than Oncology Associates to provide inpatient or outpatient oncology services (either directly or indirectly) in the Center or the Cancer Program (including physician oncology services at all [DCH] owned operated hospitals or health care facilities) without the written consent of Oncology Associates, which consent Oncology Associates may unreasonably withhold."  On October 4, 2000, Southeast sued DCH, Oncology Associates, and Oncology Associates' individual members, alleging that the defendants had violated Alabama's antitrust laws by engaging in an unlawful trust, combine, or monopoly and had tortiously interfered with Southeast's business relationships, and seeking a declaration that the exclusive agreement between DCH and Oncology Associates was void because it violated Ala. Code §8-1-1.  DCH and Oncology Associates moved for a summary judgment.  The trial court entered a summary judgment in favor of DCH and Oncology Associates as to all claims.  The trial court found there were no material facts in dispute and that Ala. Code §22-21-318(a)(31) and (32) permit DCH to engage in anticompetitive behavior.  The trial court found that DCH had not tortiously interfered with any of Southeast's business relationships because DCH has a legal right to enter into exclusive contracts. Finally, the trial court found that Oncology Associates was entitled to a summary judgment because DCH's immunity from antitrust liability extends to private parties with whom DCH enters into contracts.  HOLDING:  The Supreme Court affirmed.  The Court held that the agreement, as a matter of law, does not restrain Southeast's physicians from practicing oncology but merely denies Southeast's employees staff privileges in oncology at medical facilities operated by DCH.  The Court noted that every contract to some extent injures other parties; that is, it necessarily prevents others from making the sale or sales consummated by such contract.  Therefore, the Court held that, as a matter of law, DCH's contract with Oncology Associates is not void because it does not restrain Southeast, or Southeast's employees, in a manner that violates Ala. Code §8-1-1.  The Court did not reach the question whether Ala. Code §22-21-318(a)(31) permits a health-care authority to enter into and enforce a contract otherwise made void by §8-1-1.)
*Download or view PDF version of opinion*
 
• Ex parte State of Alabama (In re: Wilson v. State),

No. 1020014 (Ala. June 13, 2003)
(criminal; failure to disclose potentially exculpatory evidence; Willie Hamilton was carrying a box of children's clothes he was trying to sell in the Gate City housing project where he lived.  Hamilton approached two men and asked if they were interested in purchasing the clothes.  One of the men took the box, and put it in the trunk of his car.  Hamilton demanded that the men either pay for the clothes or give him back the box.  The men told Hamilton to go away, and when he refused, one of the men then pulled a gun and shot Hamilton five times.  The two men jumped in a car and sped away.  Antywan Wilson and Trumane Arrington were picked up within an hour of the shooting approximately one block from the scene of the shooting, driving a car matching a description a witness had given of the suspects' car.  In a pretrial photographic lineup, and again at trial, Hamilton identified Wilson as the shooter and Arrington as the man who was with Wilson on the day of the shooting.  Wilson served the Jefferson County district attorney with a motion to produce or disclose any information and documents exculpatory to his case.  The district attorney responded to Wilson's request with a number of documents, including a police report that contained the names of the three witnesses to the shooting.  The prosecution provided Arrington's counsel with a copy of the incident report as well, but did not provide the report to Wilson.  However, the district attorney's response did not include statements from the victim, defendants, or witnesses.  Wilson's counsel wrote the prosecution requesting additional information; he received no new information in response to that inquiry.  The case went to trial, and it ended in a mistrial when the jury was unable to reach a verdict.  At Wilson's second trial, also consolidated with Arrington's, Hamilton again identified Wilson as the man who had shot him.  Wilson's counsel asked the investigating officer, Detective Corey Hardiman, if he had interviewed the three witnesses listed in the police report: Dalanda Smith, Akia Julius, and Telisa Hickman.  Det. Hardiman testified that he had interviewed the witnesses and that he had taken notes of the interviews.  Wilson's attorney then moved to have those notes made available to the defense.  Under further questioning from Wilson's counsel, Det. Hardiman testified that the three witnesses had identified two men named "B" and "Bouty-Bouty" as the perpetrators of the shooting.  Det. Hardiman testified that he attempted to track down those individuals but that he was unable to do so because the names given by the witnesses were  nicknames.  After the examination of Det. Hardiman, Wilson's counsel argued that Det. Hardiman's notes of the interviews constituted  exculpatory evidence and, therefore, that the notes should have been disclosed to the defense before trial.  Subsequently, both Wilson and Arrington moved for a mistrial based on the prosecution's failure to timely disclose allegedly exculpatory evidence.  The trial court denied the motion. The trial court ruled that the evidence was exculpatory, but in an effort to avoid a mistrial and to ensure that the failure to disclose the evidence would not affect the jury's judgment, he permitted the defendants to cross-examine Det. Hardiman about the contents of his notes.  Following that examination, the defense also put one of the witnesses, Dalanda Smith, on the stand and questioned her about her recollection of the robbery/attempted murder.  At the conclusion of the trial, Wilson and Arrington made a motion for a new trial based upon the State's failure to disclose allegedly exculpatory evidence.  The trial court denied the motion.  On appeal, the Court of Criminal Appeals, in a 3-2 decision, reversed Wilson's conviction, holding that Wilson was denied the opportunity to pursue those witnesses who would best suit his version of the facts, and the jury was deprived of the opportunity to render its verdict based upon the complete evidence.  HOLDING:   The Supreme Court reversed the Court of Criminal Appeals.  The Court noted that there is no dispute that Wilson and Arrington were not given Det. Hardiman's notes until midway through the second trial and that, as the trial court stated during the in camera discussion after the notes came to light, "obviously [the notes] are exculpatory because they say somebody else did the shooting, whoever B and Bouty Bouty happen to be, and they should have been disclosed to [Wilson]."  Thus, the Court concluded that the failure by the State to disclose Det. Hardiman's notes meets the first two components of a violation of Brady v. Maryland, 373 U.S. 83, 87 (1963), because the evidence was potentially exculpatory and the prosecution suppressed the evidence, regardless of whether it did so intentionally or inadvertently.  However, unlike the Court of Criminal Appeals, the Supreme Court held that the error did not prejudice Wilson, or in other words, it held that there is no reasonable probability that his conviction would have been different had the materials been disclosed, because Wilson was aware of the potentially exculpatory evidence and, in fact, presented it to the jury.)
*Download or view PDF version of opinion*
 
• Ex parte Schaeffel,

No. 1020459 (Ala. June 13, 2003)
(negligence; assumption of the risk; contributory negligence; Timothy Schaeffel, a service technician for a refrigeration, heating, and cooling company, responded to a call to repair a low-temperature floor-to-ceiling freezer at a Wal-Mart Super Center in Muscle Shoals.  Servicing the freezer required Schaeffel to climb through a square opening in the ceiling approximately four feet by four feet in order to work on the freezer's condensing unit, which was located on the top of the freezer.  The light that came through the opening provided the only light in the area around the condensing unit.  When he climbed through the opening and onto the top of the freezer, Schaeffel found that he could not walk around the left side of the condensing unit.  Therefore, Schaeffel walked around the right side of the condensing unit.  Schaeffel testified that, although he could not see the edge of the drop ceiling (which was adjacent to the top of the freezer), as he was walking along the right side of the unit he felt the edge of the drop ceiling with his foot.  Schaeffel went behind the condensing unit and examined the defrost timer.  To do so, he had to hold a cigarette lighter up to the "sight glass" (which showed how much refrigerant was in the unit) because he had left his flashlight in his truck.  Schaeffel then began to walk away from the top of the freezer the same way he had come when he tripped on a piece of conduit coming out of the unit, fell through the ceiling, and was injured.  Schaeffel sued Wal-Mart, Irons Electric Company, Inc. ("Irons"), and W.G. Yates & Sons Construction Company ("Yates"), alleging negligence.  Specifically, Schaeffel alleged that Yates had breached a duty to Schaeffel when it allegedly violated the Southern Building Code in constructing the area around the condenser unit and that Wal-Mart had failed to properly supervise Yates in that regard.  Schaeffel also alleged that Irons had also violated the Southern Building Code and had thereby breached a duty to Schaeffel.  Wal-Mart, Yates, and Irons (hereinafter referred to collectively as "the defendants") filed answers and motions for a summary judgment raising the defenses of contributory negligence and assumption of the risk.  The trial court entered a summary judgment in favor of the defendants without a written order.  The Court of Civil Appeals affirmed the trial court's summary judgment, without an opinion.  HOLDING:  The Supreme Court affirmed, holding that in conducting his activities in the dark area around the condensing unit Schaeffel had assumed the risk and had been contributorily negligent.  The Court noted that in the past it has held that total darkness is an open and obvious danger, as a matter of law, and it found that the evidence demonstrated that Schaeffel could not see anything in the area where he was walking.  The Court noted that "while there may have been some light coming through the opening in the ceiling, the relevant area -- the walking space around the condenser unit -- was in total darkness, not dim light.")
*Download or view PDF version of opinion*
 
• Alcazar Shrine Temple v. Montgomery County Sheriff's Dep't,

No. 1020514 (Ala. June 13, 2003)
(standing to appeal; bingo; declaratory judgment; In July 2001, the Montgomery County Sheriff received a letter from the holder of a permit to conduct charitable bingo games in Montgomery County complaining that several other holders of permits for charitable bingo games in Montgomery County were not operating in accordance with the applicable laws and regulations pertaining to charitable bingo games in Montgomery County. In response, the "Montgomery County Sheriff's Department" and the Montgomery County Commission filed an action in the Montgomery Circuit Court seeking a judgment declaring what