Opinions Released September 27, 2002

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  SEPTEMBER 27, 2002 

 
• Chesser v. AmSouth Bank, N.A., 

No. 1002021 (Ala. Sept. 27, 2002)
(on application for rehearing; withdrawing and substituting the opinion of June 28, 2002)
(arbitration; interstate commerce;  William T. Chesser purchased a used 1995 GMC truck from Premiere Chevrolet, Inc.  AmSouth Bank financed the purchase of the truck; when he finalized the necessary paperwork to complete the sale, Chesser executed a buyer's order, an installment sales contract and security agreement, and an application for credit-disability and credit-life insurance coverage from Protective Life Insurance Corporation of Alabama. The buyer's order, the retail installment contract, and the certificate of insurance Chesser received when he applied for the credit-life and credit-disability insurance coverage all contained separate arbitration provisions.  Seven months after he purchased the truck, Chesser underwent heart surgery and was unable to continue making the installment payments due on the AmSouth loan.  Chesser contacted Premiere Chevrolet and told them that he wished to make a claim for benefits under the credit-disability policy he had purchased from Protective Life when he purchased the truck.  Premiere Chevrolet forwarded Chesser's claim to Protective Life.  Protective Life subsequently denied Chesser's claim and refunded to AmSouth, as the lienholder on the vehicle, the $1,141.38 premium.  AmSouth subsequently repossessed the truck.  Chesser maintains that although AmSouth received the refunded premium before it repossessed the truck, AmSouth failed to apply the refunded premium to the arrearage he owed on the loan; Chesser sued AmSouth and Protective Life alleging breach of contract, fraud, negligent failure to obtain insurance, wrongful possession and conversion, and bad-faith refusal to pay.  AmSouth moved to stay the action pending arbitration or, alternatively, to dismiss the action.  The trial court granted AmSouth's motion to compel arbitration. HOLDING: The Supreme Court held AmSouth met its burden of proving that the transaction had a substantial effect on interstate commerce because the credit-life and credit-disability insurance was purchased by Premier Chevrolet's forwarding a check to Protective Life in California, because the extended service contract was purchased by Premier Chevrolet's forwarding a check to "MS Dealer Service Corporation," which is headquartered in Florida, and because, in compliance with the retail installment agreement, Chesser obtained comprehensive and collision insurance from State Farm Insurance, which is headquartered in Illinois.  The Court therefore affirmed the trial court's order compelling Chesser to arbitrate his claims against AmSouth.)
*Download or view PDF version of opinion*

--(The original withdrawn opinion released on June 28, 2002, in Chesser  is also available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Providian Nat'l Bank v. Pritchett, 

No. 1010296 (Ala. Sept. 27, 2002)
(class action; class certification; res judicata; In 1999, Calvin Pritchett and James Joyner, both holders of Visa credit cards issued by Providian National Bank, sued Providian National Bank and Providian Financial Corporation (hereinafter collectively referred to as "Providian"), alleging that Providian had charged their credit-card accounts, without their knowledge or permission, for products or services Pritchett and Joyner had not ordered or requested.  In their complaint, Pritchett and Joyner alleged misrepresentation, suppression, deceit, fraudulent deceit, and unjust enrichment.  However, when Pritchett and Joyner filed this action, litigation involving similar claims was pending in California, Pennsylvania, and other states.  Many of those cases had been consolidated, and a nationwide class had been certified in the Superior Court of California, San Francisco County.  Pritchett and Joyner fell within the definition of the nationwide class.  Some of the class representatives involved in those actions were Alabama residents, and Alabama lawyers were listed as counsel of record in those actions.  Pritchett and Joyner received notice at least as early as February 22, 2000, that that claim was being alleged in the nationwide class action.  Pritchett and Joyner received notice of a proposed settlement of the nationwide class action; included in that notice were detailed instructions regarding the class members' rights under the proposed settlement, the date of a scheduled fairness hearing regarding the proposed settlement, how class members could object to the proposed settlement, and how class members could exclude themselves from the nationwide class.  Pritchett and Joyner elected to file an objection to the proposed settlement with the Superior Court of California rather than to opt out of the nationwide class.  The day before the California trial court concluded its fairness hearing on the proposed settlement, the Bullock County Circuit Court certified unidentified claims for class treatment, pursuant to Ala.R.Civ.P. 23(b)(2) and (b)(3).  Providian appealed.  HOLDING: The Supreme Court vacated the order of class certification.  The Court found that the claims asserted in Pritchett and Joyner's complaint are barred by the doctrine of res judicata and by the express language of the settlement agreement entered into by the parties to the nationwide class action, which included Pritchett and Joyner.)
*Download or view PDF version of opinion*
 
• Ex parte Hurricane Freddy's, Inc., 

No. 1010643 (Ala. Sept. 27, 2002)
(fraud; damages; In a previous appeal, the Court of Civil Appeals remanded the case for the trial court to enter an award of damages on the fraud claim by Darrell D. Smith and Hook's Catfish, Inc., d/b/a Hooks Catfish Restaurant ("Hooks Catfish") against  Hurricane Freddy's, Inc., Chris Ybarra, and Frank Martin.  The trial court heard testimony and other evidence and awarded Smith and Hooks Catfish $63,711.41.  The prior appeal established that Smith and Hooks Catfish were damaged when, as a proximate result of Smith's relying on the defendants' false representation, Smith and Hooks Catfish chose to close the restaurant.  HOLDING: The Supreme Court held that the plaintiffs were entitled to recover only those damages, including expenses, that naturally and proximately resulted from the closing of the restaurant, but that the trial court, in determining the damages to be awarded Smith and Hooks Catfish, considered the operating income of the restaurant, as well as its operating expenses, many of which Smith and Hooks Catfish had received the full benefit of before they decided to close the restaurant.  Therefore, the Court held that the trial court improperly applied the law to the facts.)
*Download or view PDF version of opinion*
 
• Mason v. Acceptance Loan Co., 

Nos. 1010563 & 1010564 (Ala. Sept. 27, 2002)
(arbitration; interstate commerce; insanity; mental retardation; capacity to contract; Charlie Mason, Charlie Thigpen, and others (hereinafter collectively referred to as "the plaintiffs") sued Acceptance Loan Company, Inc., Protective Life Insurance Company, and CNL Insurance America, Inc. (hereinafter collectively referred to as "the defendants"), in the Lowndes Circuit Court, asserting various claims stemming from the solicitation and sale of insurance to the plaintiffs in conjunction with consumer loans  they obtained from Acceptance.  Specifically, the plaintiffs purchased credit-life and disability insurance from Protective Life and automobile insurance from CNL.  The defendants each filed a motion to compel arbitration, seeking to enforce arbitration agreements signed by the plaintiffs in connection with each consumer loan and each application for insurance.  The trial court granted the defendants' motions.  The plaintiffs appealed and argued that the trial court erred in compelling arbitration because, they say, (1) the defendants did not offer sufficient evidence indicating that the transactions substantially affected interstate commerce, (2) the various contracts that contained the arbitration agreements are void under Ala. Code 1975, § 8-1-170, because, they argue, the plaintiffs suffer from mental retardation that renders them "insane," (3) the plaintiffs were fraudulently induced into signing the arbitration agreements, and (4) the arbitration agreements are unconscionable.  HOLDING:  The Supreme Court affirmed the trial court's order granting the motions to compel arbitration.  The Court held that two uncontroverted affidavits submitted by the defendants established that the plaintiffs' purchase of credit-life and disability insurance and automobile insurance in connection with obtaining loans through Acceptance clearly "involved" interstate commerce so as to enforce the arbitration agreements under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA").  The Court held that the plaintiffs are not properly characterized as "insane" for purposes of  Ala. Code §8-1-170 because conditions such as "mental weakness," illiteracy, and a lack of education do not make one "insane" or otherwise deprive one of the ability to contract.  The Court held that one claiming to be "insane" and thereby seeking to void a contract under Ala. Code §8-1-170 must present evidence of some condition substantially different in nature and degree than mere "mental weakness."  The Court noted that because there is no dispute that the arbitration provisions were clearly and repeatedly indicated in the various documents signed and received by the plaintiffs, the plaintiffs' claim of fraudulent inducement essentially rests on a combination of an alleged failure to disclose and the plaintiffs' alleged inability to read and to understand the documents at issue.  The Court held that, unlike their insanity claim, the plaintiffs' fraudulent-inducement claim should be resolved by an arbitrator, not a court, because their allegation addresses the contracts as a whole, rather than the arbitration provisions only.  The Court found either unsupported or unpersuasive the plaintiffs' arguments that the contracts were unconscionable because of (1) a lack of meaningful choice on their part, (2) a lack of mutuality of remedy, and (3) an inherent bias on the part of the American Arbitration Association.)
*Download or view PDF version of opinion*
 
• Conseco Fin. Corp.-Ala. v. Salter, 

No. 1010657 (Ala. Sept. 27, 2002)
(on application for rehearing; withdrawing and substituting the opinion of July 3, 2002)
(arbitration; waiver; John T. Salter purchased a mobile home from Southern Lifestyle Manufactured Housing, Inc.., located in Bay Minette, Alabama; in connection with this purchase, Salter executed a Manufactured Home Retail Installment Contract and Security Agreement ("the installment contract"), which reflected that the installment contract was to be assigned to Green Tree Financial Corp.-Alabama (now known as Conseco Finance Corp.-Alabama), located in Pensacola, Florida.  The installment contract contained an arbitration provision.  The arbitration provision contained a sentence stating: "The institution and maintenance of a lawsuit to foreclose upon any collateral, to obtain a monetary judgment or to enforce the security agreement shall not constitute a waiver of the right of any party to compel arbitration regarding any other dispute or remedy subject to arbitration in this contract, including the filing of a counterclaim in a suit brought by you pursuant to this provision."   Conseco instituted in the Baldwin County Circuit Court an action against Salter alleging that Salter was in default for failing to timely make the payments due under the installment contract.  Salter asserts that during the course of his discussions with Conseco, Conseco learned that Salter had made all of his payments in a timely manner and that his account had never been in default.  Salter filed an answer and counterclaims in response to Conseco's complaint.  Salter sought a judgment declaring that his account with Conseco was not in default and that all payments he lawfully owed Conseco had been paid.  Salter also asserted counterclaims alleging negligence and the tort of outrage arising out of Conseco's continued attempts to collect the purportedly delinquent payments.  Three days later, at a hearing on Conseco's request for repossession,  Conseco voluntarily withdrew its action.  Salter then filed a motion seeking to enjoin Conseco from further collection attempts and requesting an immediate hearing.  The trial court granted Salter's motion and entered a preliminary injunction.   On the day the trial court entered the preliminary injunction, Conseco filed its motion to compel arbitration of Salter's claims against Conseco and a supporting affidavit, seeking to enforce the arbitration provision contained in the installment contract.  The trial court denied Conseco's motion, finding that Conseco had substantially invoked the litigation process and had thereby waived its right to enforce the arbitration provision.  HOLDING:  The Supreme Court held that although Conseco initiated this replevin action, the mere filing of a pleading does not constitute a waiver of the right to compel arbitration.  The Court noted that, as evidenced by the express language of the arbitration provision in the installment contract, the parties specifically agreed that the filing of such an action would not constitute a waiver of Conseco's right to seek arbitration.  The Court held that Conseco had not substantially invoked the litigation process by appearing at hearings held in its replevin action and by participating in discussions with Salter regarding the status of his account.  The Court noted that once Salter asserted his counterclaims, Conseco's only filing in the trial court related to enforcement of the parties' agreement to arbitrate, and that was done within two months of the filing of the counterclaims.  The Court held that the trial court erred in denying Conseco's  motion to compel arbitration and reversed the order denying arbitration.)
*Download or view PDF version of opinion*

--(The original withdrawn opinion released on July 3, 2002, in Salter  is also available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Comalander v. Spottswood, 

No. 1011020 (Ala. Sept. 27, 2002)
(construction; materialman's lien; negligence; fraud; slander of title; Robert Comalander, Jr. contracted with George and Amy Spottswood to build a house for the Spottswoods.  After the house was built, Comalander sued the Spottswoods, alleging breach of contract and seeking to enforce a materialman's lien in the amount of unpaid invoices for the construction of the house.  The Spottswoods counterclaimed, alleging negligence, fraud, and slander of title.  During the charge conference, the trial court stated that it would not charge the jury that the parties were entitled to a setoff.  Instead, the trial court stated that it, not the jury, would calculate the amount of any setoff, in the event  the jury awarded damages on both Comalander's and the Spottswoods' claims.  The trial court also stated during the charge conference that it would calculate and fix the interest of an award in favor of Comalander.  Comalander's invoices provided that a charge of 18% per year would be added to any balance remaining unpaid after 30 days.  While the jury was deliberating, Comalander entered into a settlement agreement with the Spottswoods.  Under that agreement, the Spottswoods were to pay Comalander a maximum amount of $400,000 and a minimum amount of $200,000.  The agreement stated that there was to be "[n]o appeal on counterclaim issues by either party."  It further stated: "This agreement is to settle all claims [the] Spottswoods have against Comalander."  Finally, it stated: "This agreement waives no defenses as to Comalander's claims against the Spottswoods."  The jury returned a verdict in favor of Comalander in the amount of $80,766.11.  The jury also returned a verdict in favor of the Spottswoods, on their counterclaims, in the amount of $41,300.  The trial court set off the two verdicts and then added interest to the final amount.  Thus, the trial court entered a judgment in favor of Comalander in the sum of $39,466 plus interest in the amount of $13,369.  The verdict in favor of the Spottswoods and against Comalander was substantially below the $200,000 floor set in the settlement agreement.  Zürich American Insurance Company, Comalander's insurance carrier, has tendered two checks to the Spottswoods, totaling $200,000.  Those checks have not been negotiated.  Comalander filed a postjudgment motion under Ala.R.Civ.P. 59 to alter or amend the trial court's judgment, and Ala.R.Civ.P. 60 for relief from the judgment, arguing that because the parties had already entered into a settlement agreement, pursuant to which the Spottswoods would be paid $200,000, the verdict in his favor should not have been set off.  In the alternative, Comalander argued that the trial court erred when it set off the amount of Comalander's verdict before adding interest, thereby reducing his entire verdict.  The trial court denied Comalander's postjudgment motion. HOLDING: The Supreme Court held that the trial court did not interpret the settlement agreement when it ruled on Comalander's Rule 59 and 60 motion.  Because the record indicates that the trial court did not consider the terms of the settlement agreement when it ruled on Comalander's postjudgment motion, the Court reversed the judgment of the trial court and remand the case for the trial court to construe the terms of the settlement agreement and to rule on Comalander's postjudgment motion in accordance with its construction of the settlement agreement.  In doing so, the Court declined to reach the merits of Comalander's substantive claims.)
*Download or view PDF version of opinion*
 
• Byrd v. Lamar, 

No. 1011068 (Ala. Sept. 27, 2002)
(promissory fraud; fraudulent suppression; sovereign immunity; state-agent immunity; Bernard Byrd transferred to Alabama State University ("ASU") in 1995 to pursue a degree in music media.  Byrd chose ASU based upon the information he had seen in ASU's "General Undergraduate Catalog, 1994-1996."  Dr. Horace Lamar, the dean of ASU's school of music, was Byrd's academic advisor at ASU.  Early in his academic career, Byrd asked Lamar for permission to enroll in some of the music media courses.  Lamar told Byrd that he had to complete ASU's core-requirement classes before he could take the music media courses.  Byrd was not allowed to take any music media courses during his first three years.  During his fourth year at ASU, Byrd had not taken any of the courses listed in ASU's undergraduate catalog for students majoring in music media.  In 1997, ASU revised the list of courses offered to students seeking a degree in music media.  Byrd had not taken any of these courses by his fourth year at ASU.  According to Byrd, in February 1999, Carol Porter, an instructor in the music department, told Byrd that she had talked with Lamar about the music media curriculum and that Lamar told her that "he was just bull****ting [Byrd] ... about the music media program."  Byrd met with Lamar and, according to Byrd, Lamar told him that he could still take the necessary music media courses to graduate in May 2000.  Lamar also told Byrd that he would arrange for Byrd to take the "basic recording" course during the 1999 spring semester but, according to Byrd, the instructor for the "basic recording" course, Ralph Chapman, did not appear in class until four weeks into the semester.  When Chapman did appear, he offered to give Byrd and the other music media students in the class a grade for the course, even though they had done nothing to earn it.  Byrd wrote letters to Lamar, the dean of the school of music; Dr. Roosevelt Steptoe, the vice president of academic affairs; Dr. Jacqueline Williams, the vice president of student affairs; and Dr. William Harris, the president of ASU, stating that he did not understand why the courses in his music media major were not being taught at ASU and that he had been misled about the status of his degree program.  Lamar mailed Byrd a memorandum listing the music media courses required for Byrd to graduate and indicating when those courses would be offered.  The memorandum stated that "basic recording" and "practicum in recording" would be offered in the 1999 fall semester, "advanced recording, audio production, and an internship" would be offered in the 2000 spring semester, and "digital signal processing" and "recital" would be offered in the 2000 summer semester.  In the fall semester of 1999, Byrd enrolled in the basic recording and practicum in recording courses.  According to Byrd, no instructor appeared on the first day of classes to teach the courses.  Byrd alleges that about five weeks into the semester, Ron Handy, an instructor in the music department, told Byrd that Lamar asked him to show Byrd "some things in the music recording area."  According to Byrd, Handy told him that ASU's music-recording equipment was outdated.  According to Byrd, most of the equipment in the studio did not work, and Handy told him that he did not have the credentials to teach either the basic recording course or the practicum in recording.  Byrd alleges that between the 1999 spring semester and the 1999 fall semester, three ASU music professors -- Ron Handy, Tony Van Free, and Doug Bristol -- told him that the music media program had been discontinued several years before Byrd enrolled at ASU and that ASU did not have a qualified music instructor to teach the music media courses.  Byrd decided to withdraw from ASU in the spring semester of 2000.  Byrd met with Williams, the vice president of student affairs, and Williams asked Byrd to talk with Dr. Steptoe, the vice president of academic affairs, once more before he withdrew from school.  Byrd testified that during his meeting with Steptoe, Steptoe admitted that there was no music media program at ASU.  According to Byrd, Steptoe told Byrd that if he "dropped" his lawyer he would be given "transportation, somewhere to stay, free schooling, and free room and board" and that Steptoe offered to provide the cost of tuition for Byrd to complete a music media program at another college.  Byrd withdrew from ASU during the spring semester of 2000.  Byrd sued ASU, and Lamar, Steptoe, Harris, Williams (hereinafter referred to collectively as "the ASU defendants"), and the Board of Trustees of ASU, all in their individual and official capacities, alleging breach of contract and fraud.  The trial court dismissed Byrd's claims against ASU, his breach-of-contract claim, and his claims against Lamar, Steptoe, Harris, Williams, and the members of the Board of Trustees in their official capacities, holding that those defendants were immune from suit pursuant to Ala. Const. of 1901, Art. I, § 14.  Byrd filed an amended complaint alleging what he described as fraud claims against Harris and Lamar, promissory-fraud claims against Lamar and Steptoe, and suppression claims against Williams and Harris.  The trial court subsequently entered a summary judgment in favor of each of the ASU defendants and the Board of Trustees in their individual capacities, holding, among other things, that Byrd had failed to produce substantial evidence indicating that Lamar or Steptoe had made untrue statements to Byrd or that Byrd had relied to his detriment on the alleged statements; that Byrd failed to produce substantial evidence of an intent to deceive and an intent not to do the acts allegedly promised in order to support his promissory-fraud claims against Steptoe and Lamar; and that Byrd failed to produce substantial evidence indicating that the music media program was fraudulent in order to support his suppression claims against Williams and Harris.  On appeal, Byrd did not challenge the dismissal of ASU and Harris, Lamar, Steptoe, Williams, and the Board of Trustees, in their official capacities, nor did Byrd challenge the summary judgment in favor of the Board of Trustees in their individual capacities.  Byrd conceded that the trial court properly dismissed or entered a summary judgment in favor of all members of the Board of Trustees.  HOLDING:  The Supreme Court agreed with the ASU defendants' contention that Byrd's fraud claim against Lamar is actually a suppression claim, noted that Byrd conceded in his reply brief to this Court that his fraud claim against Lamar is actually a suppression claim. and noted that Byrd did not argue in his initial appeal brief that the trial court erroneously entered the summary judgment for Lamar as to the suppression claim but instead argued in that brief that the trial court erroneously entered the summary judgment for Lamar as to the  misrepresentation claim.  The Court held that it cannot consider Byrd's suppression claim as to Lamar because of the settled rule that the Court does not address issues raised for the first time in a reply brief and because it cannot reverse the trial court's judgment based on a version of the complaint that was not before it.  Thus, because Byrd did not properly allege a fraudulent-misrepresentation claim in his complaint, the Court affirmed the summary judgment in favor of  Lamar as to Byrd's so-called "fraud" claim.  As to Byrd's claims against Harris, the Court noted that Byrd contends that Harris should be held liable for the allegedly fraudulent misrepresentations in ASU's undergraduate catalog.  The Court held that because the allegations of the complaint charge Dr. Harris, in his individual capacity, with fraud, Ex parte Cranman does not shield Dr. Harris from immunity.  The Court noted that while Byrd presented evidence indicating that the ASU undergraduate catalog 1994-1996 misrepresented the courses that would be available to music media students and the condition of its music recording studio, Byrd failed to present substantial evidence indicating that Harris prepared the course curriculum for the school of music, that Harris was specifically aware of what courses the catalog advertised for music media students, or that Harris had approved the ASU undergraduate catalog, 1994-1996, for publication.  The Court further found that the record is devoid of any evidence indicating that Harris made any direct misrepresentation to Byrd.  The Court held that without substantial evidence indicating that Harris himself made misrepresentations to Byrd or that he approved the alleged  misrepresentations in the ASU catalog, Byrd's fraud claim against Harris must fail.  As to Byrd's promissory-fraud claim against Lamar, the Court found that the record contains substantial circumstantial evidence supporting Byrd's contention that Lamar misrepresented the status of ASU's music media program and that Lamar knew in the spring semester of 1999 that ASU did not have the equipment or the instructors qualified to teach music media courses in the fall semester of 1999.  Therefore, the Court reversed the summary judgment for Lamar on the promissory-fraud claim.  As to Byrd's promissory-fraud claim against Steptoe, the Court found that Byrd presented substantial circumstantial evidence of Dr. Steptoe's involvement in ASU's curriculum by reason of his position as vice president of academic affairs, substantial evidence that Steptoe promised him that he could complete the music media program in a "timely manner" and that the music media courses listed in the ASU catalog would be taught in the "near future," and that  Steptoe knew that ASU did not offer a music media program.  Thus, the Court held that the trial court erred in entering a summary judgment in favor of Dr. Steptoe as to Byrd's promissory-fraud claim.  As to Byrd's fraudulent-suppression claims against Williams and Harris, the Court found that Byrd presented no evidence indicating that Williams or Harris had knowledge that music media courses were not being taught in the music department, that ASU did not have a qualified instructor to teach the music media courses, or that the music equipment in the recording studio was outdated and did not work.  The Court further found that even if Williams and Harris did have knowledge that ASU could not offer music media courses, Byrd presented no evidence indicating that Williams or Harris attempted to conceal that fact from him.  Thus, the Court affirmed  the summary judgments in favor of Williams and Harris on Byrd's suppression claims.)
*Download or view PDF version of opinion*
 
• Ex parte Spivey, 

No. 1011128 (Ala. Sept. 27, 2002)
(state-agent immunity; negligence; wantonness; Jerry Peacock is a vocational teacher and Donald Spivey is the career and technical director at the Houston County Career and Technical Center ("the vocational center").  During the week of August 20, 1999, Peacock's class, in which Heath Wright was a student, was making raised-panel doors.  As part of the project, the students were to use a model W-SS3 spindle wood shaper manufactured by Jet Equipment and Tools, Inc., to make straight cuts on three sides of a board and an arched cut on the fourth side.  The shaper has "infeed" and "outfeed" "fences" positioned lengthwise on the right and left sides of the blade, respectively, from the perspective of the operator.  The fences assist the operator in guiding the wood into the blade.  Before class began on the date of the accident, Peacock set up the shaper for the students' use.  Peacock removed the outfeed fence, left the infeed fence in place, and made sure that a "rub collar" was in place.  Peacock also had the students use a "starting pin."  Peacock testified that he believed this setup was "more or less in line with" a photograph in the textbook depicting the operation of the shaper when making irregularly shaped cuts -– with a collar and a starting pin and without fences.  Peacock testified that he believed that there was no way to make the machine safer than it was at the time of Heath's injury.  Peacock further testified that the specific cut Heath was making at the time of his injury -- a straight cut -- could have been made with both fences in place.  Before the students began to use the shaper on the day Heath was injured, Peacock demonstrated how to use the shaper to perform the assigned cuts.  Heath testified that Peacock also demonstrated how to safely operate the shaper and told them to avoid coming in contact with the cutter.  Peacock had also required the students to take written safety tests.  Peacock testified that the students were all wearing safety goggles or glasses on the day Heath was injured.  Heath had never used the large shaper before the day he was injured.  However, Heath had used the smaller shaper earlier in the week.  Peacock testified that Heath successfully completed the arched cut and two of the straight cuts during previous turns at the machine.  Peacock also testified that Heath successfully completed the final cut, a straight cut, before he was injured.  Peacock testified, "I watched him, after the board had passed the cutter.  And the last step that he had to do was turn the machine off.  And, at that point, when the cut was completed, I remember stating, 'Good job.'  And the last operation was just to turn the machine off."  Peacock testified that he did not witness Heath's hand coming in contact with the blade because some students were standing between Heath and Peacock.  Heath's version of how the injury occurred contradicts Peacock's testimony.  Heath testified that the injury occurred when he was approximately halfway finished with his cut.  Heath severed one finger and part of his thumb and severely cut another finger on his right hand.  Heath Wright and his parents, Betty Wright and Solomon Wright, sued Donald Spivey, Jerry Peacock, among others, alleging that Peacock and Spivey had been negligent and wanton (1) in failing to supervise and/or instruct Heath in the proper use of the shaper, (2) in allowing Heath to operate a defective or improperly designed machine, (3) in failing to inspect the shaper to assure that it was in proper working order and safe for use by the students, (4) in failing to implement or to follow guidelines or rules for the proper and safe use, and the proper safety inspection of, the shaper, (5) in failing to prevent an unsafe condition from developing, (6) in failing to provide the proper safety equipment for use with the shaper, and (7) in failing to properly maintain the shaper.  Peacock and Spivey filed motions for a summary judgment arguing, among other things, that they were entitled to state-agent immunity.  The trial court denied their motions for summary judgment, specifically finding that they were not entitled to state-agent immunity.  Peacock and Spivey filed a petition for writ of mandamus.  HOLDING: The Supreme Court held that the Wrights' actions against Peacock and Spivey arise from decisions they made in educating students and in Spivey's supervision of Peacock, categories specifically included within the Cranman restatement of the rule governing state-agent immunity.  The Court found that even assuming that the teacher was under a ministerial duty to follow to the letter the textbook and the owner's manual, an analysis of the textbook and the manual does not support the conclusion that the use of the shaper without fences renders the shaper unsafe.  The Court held that Peacock was immune from liability predicated upon the exercise of his judgment in educating students, and held that it may not second-guess his decision.  The Court held that Peacock and Spivey's  respective job descriptions and in the faculty handbook do not remove from Peacock his judgment in determining the safe operation of the tools or when a safety hazard exists and are not the type of "detailed rules or regulations" that would remove a state agent's judgment in the performance of required acts.  The Court also held that the general requirement imposed by Spivey's job description that he "[i]mplement safety instruction and practices" does not remove Spivey's judgment in determining whether Peacock was properly teaching and practicing safe operation of the shaper.  The Court found that Peacock, a shop teacher with over 20 years' experience, acted within his judgment in determining that retrofitting equipment for the shaper was not available and that it was reasonably safe to use the shaper under his close personal supervision without additional guards.  The Court found that there is no evidence indicating that Peacock had any "knowledge that injury ... would likely or probably result" from the use of the shaper without the guards and the outfeed fence.  Thus, the Court concluded that Peacock and Spivey have a "clear legal right" to summary judgments in their favor.  The Court ordered the trial court to vacate its order denying summary judgments for Peacock and Spivey and to enter summary judgments in their favor.)
*Download or view PDF version of opinion*
 
• Trapp v. Vess, 

No. 1011406 (Ala. Sept. 27, 2002)
("rescue doctrine" of tort law; negligence; wantonness; On January 28, 2000, the weather conditions in Franklin County included freezing temperatures and two to three inches of snow.  Jerry Vess and his daughter left their home that morning to take Vess's daughter to Russellville Hospital, where she was scheduled to undergo medical tests.  Along the way, Vess applied the brakes on an icy portion of a road, and his car skidded into a ditch.  Neither Vess nor his daughter were injured; however, Vess's car was stuck in the ditch.  A few minutes later Jerry Trapp drove by and stopped to help.  Vess says that he informed Trapp that he and his daughter were not injured and that they had been on their way to Russellville Hospital where his daughter was to undergo some tests.  Trapp offered to get a truck with a trailer hitch to pull Vess's car out of the ditch.  Trapp left and later returned with a truck and five or six men to aid in getting Vess's car out of the ditch.  The men attached a chain to the front of Vess's car and proceeded to pull the car from the ditch. During this process, Trapp and some of the men were standing in the ditch pulling on the car while the truck pulled from the road. As Trapp pulled on the car, he tore his right distal biceps tendon.  The men successfully removed the car from the ditch.  Trapp sought medical attention for his injury a few days later and eventually underwent surgery on his arm.  Trapp sued Vess and Cotton States Insurance Company, alleging that the injury to his arm resulted from Vess's negligence and/or wantonness in driving his car into the ditch.  Both Vess and Cotton States filed motions for a summary judgment. After Trapp responded to the motions, the trial court entered a summary judgment for Vess and Cotton States. Trapp appealed. HOLDING: The Supreme Court noted that the rescue doctrine allows a person who sustains an injury when he or she comes to the aid of another in peril to recover damages based upon the negligence of the tortfeasor, despite the absence of proximate cause.  The Court noted that in order to meet the standard under the rescue doctrine, the defendant must have been negligent as to the person being rescued.  If so, the defendant is deemed to have acted negligently towards the rescuer as well.  However, the Court held that Trapp's argument contains no factual support to show that Vess acted negligently in causing his car to enter the ditch, and it noted that the mere skidding of an automobile on an icy street does not necessarily prove negligence of the driver of the car.   Therefore, the Court held that the trial court correctly entered a summary judgment for Vess and Cotton States.  Additionally, the Court concluded that, as a matter of law, Trapp did not have a reasonable belief that some person was in imminent peril and that Trapp is not entitled to the application of the rescue doctrine.)
*Download or view PDF version of opinion*

Back to top

Opinions Released September 20, 2002

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

 
• Ex parte Pierce, 

No. 1981270 (Ala. Sept. 20, 2002)  (on return to remand)
(criminal; postconviction relief; ineffective assistance of counsel; Pierce was convicted of murder committed during the course of a robbery, and he was sentenced to death by electrocution. After his conviction was affirmed after various appeal proceedings, Pierce filed a petition for postconviction relief under Ala.R.Crim.P. 32.  The trial court dismissed several of Pierce's claims and denied the remaining claims for relief.  One of Pierce's claims for Rule 32 relief was based on his allegation that Sheriff Douglas Whittle had been a key witness for the prosecution and that he had improperly had close and continual contact with the jury throughout the trial.  The Court of Criminal Appeals held that this issue was procedurally barred by Rule 32.2(a)(3) and (5) because it was not raised at trial or on direct appeal, and it further held the claim to be without merit. The Supreme Court reversed in Ex parte Pierce, No. 1981270, Ala. Sept. 1, 2000).  The Court concluded that "Sheriff Whittle was in fact a key witness for the State," and found "undisputed evidence indicating [Sheriff Whittle] had close and continual contact with the jury" in violation of Turner v. Louisiana, 379 U.S. 466 (1965).  However, the Court held that this claim would be procedurally barred by Rules 32.2(a)(3) and (5) if "Pierce's attorney did know or should have known of the sheriff's contact with the jury during the trial," and the Court remanded the case for the Court of Criminal Appeals to remand to the trial court for an evidentiary hearing on that issue.  The trial court found that Pierce's attorney knew or should have known of the sheriff's contact with the jury during the trial.  HOLDING: The Supreme Court held that while the trial court's conclusion that Pierce's attorney knew or should have known of the sheriff's contact with the jury during the trial may result in the preclusion of Pierce's underlying Turner claim, it effectively breathes life into his ineffective-assistance-of-counsel claim, which requires proof (1) that Pierce's attorney did not provide reasonably effective assistance and (2) that Pierce's attorney's deficient performance prejudiced Pierce.  The Court noted that it answered the question of prejudice in Pierce when it held that a Turner violation occurred.  The Court also found that the failure to raise this constitutional violation constitutes a failure to provide reasonably effective assistance.  Therefore, the Court held that Pierce is entitled to a new trial based upon his ineffective-assistance-of-counsel claim.)
*Download or view PDF version of opinion*

--(The opinion released on application for rehearing on Sept. 1, 2000, in Ex parte Pierce is also available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--

--(The oritginal withdrawn opinion released on May 26, 2000, in Ex parte Pierce is also available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Eastside Development, Inc. v. Medical Plaza East, POB, LLC, 

Nos. 1010342 & 1010525 (Ala. Sept. 20, 2002)
(partnership dissolution; affirmed without opinion; opinion by Justice Johnstone concurring in part and dissenting in part; opinion by Justice Lyons concurring in part and dissenting in part)
*Download or view PDF version of opinion*
 
• Ex parte Carroll, 

No. 1010546 (Ala. Sept. 20, 2002)
(opinion of July 26, 2002, modified on rehearing)
(criminal; capital murder; sentencing; Taurus Carroll and Mack Dailey robbed a dry-cleaning and coin-operated-laundry business in Birmingham on April 9, 1995. During the robbery, Betty Long, one of the owners of the business, was shot and later died as a result of the gunshot wound.  The jury, by a vote of 10-2, recommended that Carroll be sentenced to life imprisonment without the possibility of parole, but the trial court overrode the jury's recommendation and sentenced Carroll to death.  The case was appealed and remanded several times for resentencing, and the trial court again sentenced Carroll to death. HOLDING:  The Supreme Court held that the trial court improperly considered Carroll's incarceration for youthful-offender adjudications in negating the mitigating circumstance of no significant criminal history.  The Court found, in light of the wish of the victim's family that Carroll not be sentenced to death, but that he instead be sentenced to life imprisonment without parole, that it was difficult to reconcile the trial court's reliance upon the "pain of the victim's family" as one of its reasons for overriding the jury's recommendation.  The Court held that it appears that the trial court gave insufficient weight to the jury's recommendation that Carroll be sentenced to life imprisonment without parole, and in this case, the recommendation was entitled to considerable weight.  The Court further explained the effect of a jury's recommendation of life imprisonment without the possibility of parole.  The Court concluded that the trial court's override in this case of the jury's recommended sentence of life imprisonment without parole and that court's subsequent sentence of death were improper under the circumstances presented here.  The Court reversed the judgment of the Court of Criminal Appeals as to Carroll's sentence and remanded the case for that court to instruct the trial court to resentence Carroll following the jury's recommendation of life imprisonment without the possibility of parole.  The Court stated that issues as to the continuing validity of its stated conclusions regarding the effect of a jury's recommendation of life imprisonment without the possibility of parole and the authority of the trial court to override such a sentence and the scope of the appellate court's review in light of Ring v. Arizona, 122 S. Ct. 2428 (2002), must await another day.)
*Download or view PDF version of opinion*

--(The original withdrawn opinion released on July 26, 2002, in Ex parte Carroll is also available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Gilbert v. Nicholson, 

No. 1010600 (Ala. Sept. 20, 2002)
(contempt; The Nicholsons filed a complaint on the 11th day of March, 1999, seeking to enjoin the Gilberts from blocking a roadway to their homeplace.  Thereafter, the parties agreed in open court that the Gilberts would convey to the Nicholsons another roadway or right of way over their property in order to allow the Gilberts to close the existing roadway, and furthermore, that the Gilberts would construct or have constructed the new roadway.  Thereafter, the parties could not agree upon the materials, etc., to be used to construct the roadway, and the parties agreed for the court to appoint Mr. David Edgil, the Walker County Engineer, as the court's Special Master to inspect the roadway and see that the road was constructed according to his specifications.  Edgil subsequently reported to the court that the proposed roadway has not been constructed to his specifications, and some of the materials used were insufficient to maintain this roadway.  The Nicholsons filed a Petition for Rule Nisi.  The trial court noted that Gerald Gilbert admitted in open court that he was in contempt of court for his failure to comply with the court's previous orders, which ordered him and his wife to construct a certain roadway in accordance with the specifications in the court's previous orders.  The trial court also found that the Gilberts blocked the old roadway on more than one occasion, although they were previously ordered specifically not to do so.  On November 2, 2001, the trial court found Gerald Gilbert in contempt and sentenced Gerald Gilbert to be incarcerated in the Walker County Jail, unless and until he fully and completely complied with the court's orders pertaining to the roadways.  The trial court ordered that Gerald Gilbert may purge himself of contempt by constructing or having constructed the roadway in accordance with the court's orders and according to the specifications of the court's Special Master, and further comply with all the Court's Orders, no later than November 19, 2001.  The court also ordered Joyce Gilbert, to appear on November 20, 2001, to show cause why she also should not be held in contempt for her failure to comply with the court's previous orders concerning the roadways, including the court's order requiring her to post a performance bond in the sum of $25,000.00 to insure her performance and compliance with the previous orders of the trial court.  After a hearing on November 20, the Gilberts filed the $25,000 performance bond required by the court and filed a motion to stay Gerald Gilbert's incarceration.  The court granted the motion to allow Gerald Gilbert to be released from jail with further instructions from the court to comply with its previous orders.  The Gilberts then appealed from the trial courts November 2 and November 20 orders.  HOLDING: The Supreme Court held that to the extent that the Gilberts attempt to appeal orders relating to the merits of the underlying case, their appeal is premature, because no final judgment has been entered in the case.  The Court considered the Gilberts' argument that the trial court was without jurisdiction to enter its contempt finding because of the failure to join an indispensable party and  concluded that the trial court did not abuse its discretion in denying the Gilberts' motion to add Leady Gilbert as an additional party and that her absence does not render the proceeding void.  The Court concluded that the trial court did not abuse its discretion in finding Gerald Gilbert in contempt of court after hearing testimony ore tenus on the issue of Gerald Gilbert's inability to comply.  The Court affirmed the contempt order of November 2.)
*Download or view PDF version of opinion*
 
• McRae v. Johnson, 

No. 1010952 (Ala. Sept. 20, 2002)
(deceased party; appellate jurisdiction or standing; Notice of this appeal was filed on January 23, 2002, by an attorney purporting to represent Charles McRae, who died in November 2000.  The "appeal" purports to be from the denial on January 10, 2002, of a postjudgment motion, challenging a judgment entered on December 11, 2001, which, among other things, set aside a judgment entered on November 4, 1999, "quieting title" in Charles McRae to certain real estate in Barbour County.  Throughout these proceedings, no suggestion of death has been filed and no substitution of parties has been made. HOLDING: The Supreme Court held that an attorney's authority to act on behalf of a client ceases on the death of that client.  The Court held that a notice of appeal filed on behalf of a deceased party fails to invoke the jurisdiction of the Court, except where the party dies shortly before the deadline for filing an appeal.  Because the notice of appeal purportedly filed by Charles McRae was a nullity, the Court dismissed the appeal.)
*Download or view PDF version of opinion*
 
• Russell Coal Co. v. Smith, 

No. 1011008 (Ala. Sept. 20, 2002)
(default judgment; Rule 60(b); service of process; Russell Coal Company ("Russell") suffered a default judgment in the amount of $300,000 after it failed to answer the complaint filed by Kenneth Smith and Deborah Smith.  In 1996, Russell filed a petition in the United States Bankruptcy Court for the Northern District of Alabama, seeking protection under Chapter 11 of the United States Bankruptcy Code.  The bankruptcy court appointed Terry Humphryes trustee of the bankruptcy estate of Russell, the debtor.  Humphryes retained David B. Anderson as his attorney, apparently with the approval of the bankruptcy court.  In 1997, the Smiths filed this action against Russell.  After their attempts to obtain service of process upon Russell failed, the Smiths had a copy of the summons and complaint sent by certified mail to Anderson, the attorney representing the bankruptcy trustee.  A secretary at the law firm where Anderson works signed the certified-mail receipt on January 6, 2000.  On September 18, 2000, the Smiths filed an application for the entry of a default against Russell, claiming that Russell "was served through the bankruptcy trustee ... on January 6, 2000."  Default was entered on that same date, with leave to prove damages.  On November 6, 2000, after a hearing on damages, the trial court entered judgment in favor of the Smiths and against Russell in the amount of $300,000.  On March 6, 2001, Russell filed a Rule 60(b), Ala.R.Civ.P., motion for relief from the default judgment, claiming that the judgment was void, because, it alleged, it had not been served with process in accordance with Ala.R.Civ.P. 4(c)(6).  The trial court entered an order denying Russell's Rule 60(b) motion, and Russell appealed. HOLDING: The Supreme Court reversed the trial court's denial of Russell's Rule 60(b) motion.   The Court held that there is no factual or legal support for the Smiths' contention that 11 U.S.C. §323 allows service of process upon the attorney for the trustee, in lieu of service upon the debtor-defendant.  The Court concluded that service upon Anderson, the attorney for the bankruptcy trustee, was not effective service of process upon Russell, the debtor-defendant, and, therefore, the default judgment entered against Russell was void.)
*Download or view PDF version of opinion*
 
• Seward v. Dickerson, 

No. 1011359 (Ala. Sept. 20, 2002)
(Sandra Deno, Angie Tisdale, Matthew Adams, and Jackie Fairley and Tonda Dickerson were all employees at the Waffle House restaurant in Grand Bay, Alabama. Edward Seward was a regular customer of the Waffle House. On several occasions Seward would travel to Florida and purchase lottery tickets and upon his return would give the tickets to various friends and family members, including the employees of the Waffle House. Seward did not expect to share any potential lottery winnings based on the tickets he gave away, but he claimed that he was promised a new truck by the employees of the Waffle House if one of the tickets he distributed there was a winning ticket. Several employees of the Waffle House received lottery tickets from Seward during the several weeks that he gave out the tickets.  A drawing for the Florida lottery was scheduled for Saturday night, March 6, 1999. During the week before that drawing, Seward traveled to Florida and purchased several lottery tickets. He placed each individual ticket in a separate envelope and wrote the name of the intended recipient on the outside of the envelope. On March 6, 1999, before the lottery drawing, Seward presented Deno, Tisdale, and Adams each with an envelope containing one lottery ticket. The drawing was held as scheduled. The numbers on the lottery tickets held by Deno, Tisdale, and Adams did not match the numbers drawn in the March 6 drawing.  On March 7, 1999, after the March 6 drawing had already been concluded and the winning numbers had been determined, Seward presented a ticket to Fairley, who had never previously received a ticket from Seward; he also on that date presented Dickerson with a ticket. Each of those tickets was for the March 6 drawing, and each was presented in a separate envelope. Upon opening her envelope, Fairley determined that the numbers on her ticket did not match the winning numbers. Subsequently, Dickerson opened her envelope and determined that the numbers on her ticket matched the winning numbers drawn in the lottery the night before. The ticket won Dickerson a prize of approximately $10 million.  Seward sued Dickerson and others (hereinafter referred to collectively as "the defendants"), alleging fraud and conversion and seeking equitable relief.  The basis for each of these claims is Seward's allegation that Dickerson acquired the ticket from Seward by fraudulently misrepresenting that, if she won, she would share any winnings with her co-employees.  The trial court entered a summary judgment in favor of the defendants as to each of Seward's claims.  HOLDING: The Supreme Court held that for Seward to recover, he must have "reasonably relied" on Dickerson's alleged representation that she would split with her co-employees any winnings she received from her lottery ticket, but the Court found that the evidence indicates that the only "representation" Dickerson made was not made to Seward.  Instead, the Court found that Seward was attempting to rely on Dickerson's mere assent to a question asked to her by one of her coworkers, Sandra Deno, which he overheard.  The Court held that Seward cannot reasonably rely on Dickerson's mere assent -- a fragment of a vague conversation that was not directed to him -- as the basis for the rather serious charge that Dickerson somehow "defrauded" him.  The Court also noted that the lack of the reasonableness of his reliance combines with the lack of evidence indicating that Dickerson intended to communicate with Seward in such a way as to induce him to purchase the ticket.  The Court held that the trial court did not err when it entered a summary judgment on Seward's fraud claim.  Additionally, because Seward's conversion claim and his claim for equitable relief rely upon the validity of his fraud claim, the Court held that the trial court did not err in entering summary judgment in favor of the defendants on those claims.)
*Download or view PDF version of opinion*

Back to top

Opinions Released September 13, 2002

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

 
• Ex parte Seaman Timber Co., 

No. 1001658 (Ala. Sept. 13, 2002)
(discovery; spoliation; sanctions; Melford O. Cleveland, his wife, Belle H. Cleveland (Melford and his wife are hereinafter referred to collectively as "the Clevelands"), and his aunt Sarah Head sued Jim Seaman, Janet Seaman, and Seaman Timber Company, Inc. (referred to collectively as "Seaman"), claiming that a Seaman's operation of a lumber mill and wood-preserving operation on property adjacent to theirs caused the contamination of their land.  The Clevelands and Head claimed that their land was damaged and that they suffered personal injuries.  Because of the advanced ages of the plaintiffs, Seaman attempted to schedule depositions soon after it was served with the complaint.  Head's deposition was scheduled four or more times (twice on dates selected by the Clevelands, once pursuant to a court order, and other times on dates selected by Seaman).  Seaman filed several motions for sanctions under Ala.R.Civ.P. 37.  On September 9, 1999, the trial court entered a discovery order requiring the plaintiffs to submit to depositions "in the near future" and to attend "barring an emergency."  There was also paper discovery to which the plaintiffs were ordered to respond.  The morning of September 27, 1999, Sarah Head did not appear for her deposition as scheduled.  After several attempts to reschedule, on April 5, 2000, Seaman filed another Rule 37 motion requesting dismissal and other sanctions.  On August 30, 2000, Seaman took the deposition of Dr. Karin Rock, Ms. Head's physician, and Seaman learned for the first time from Dr. Rock's deposition and the medical file that Ms. Head's condition on September 27 was not a medical emergency and that she could have given a deposition on that date.  Dr. Rock's deposition testimony also revealed that Sarah Head was mentally and physically capable of giving a deposition up until the end of 1999, but in Dr. Rock's opinion, by the end of 1999 or early 2000, Ms. Head's condition had deteriorated to the point that she could no longer give a deposition.  Ms. Head later died.  Seaman filed its fifth motion to dismiss on December 21, 2000.  The trial court granted Seaman's motion to dismiss as to the plaintiffs' personal-injury claims, but denied it as to the claims for damages to their land.  Seaman filed a petition for a writ of mandamus directing the trial court to dismiss this action with prejudice or to grant whatever other relief this Court deems appropriate, just, and proper as a sanction for the respondents' willful refusal to comply with the trial court's discovery orders.  HOLDING: The Supreme Court granted the writ of mandamus.  The Court noted that the appropriate sanction for spoliation of evidence is dismissal (or a default judgment) where the complained-of conduct is willful, especially where the party seeking the discovery is prejudiced by the refusal to comply with discovery orders.  The Court noted that dismissal of the personal-injury claims tends to indicate that the trial court found the Clevelands' conduct to be willful.  The Court found the discovery sanction imposed -- dismissal of the personal-injury claims – to be wholly inadequate.  The Court granted the petition for the writ of mandamus and directed the trial court to reconsider Seaman's motion for dismissal or for sanctions for failure to allow discovery, and it directed the trial court to impose an adequate sanction, proportionate to the discovery abuse in this case.)
*Download or view PDF version of opinion*
 
• Gonzalez, LLC v. DiVincenti, 

Nos. 1010015 & 1011011 (Ala. Sept. 13, 2002)
(res judicata or claim preclusion; Alabama Litigation Accountability Act;  Gonzalez LLC, the owner of the former Scottish Rite Temple (the "Temple") in Mobile County, sued its insurance agent, Mark Rowley; its insurance agency, Oakleigh Insurance Agency; its insurance providers, TIG Insurance Company and K&K Insurance Group; and the agents or representatives of all the defendants, alleging claims of negligent failure to report a claim; wanton failure to report a claim; fraud in misrepresenting that the hurricane-damage claim would be paid; breach of contract for failure to investigate, handle, or pay the covered loss; negligent failure to supervise agents and representatives; and bad faith in failing to investigate and refusing to pay claims.  The claims by Gonzalez arose out of insurance claims for damage to the Temple caused by two hurricanes.  The defendants in that action hired Professional Forensic Services, Inc. and its president, Roy DiVincenti, to perform forensic testing on the roof of the Temple to determine what damage, if any, had been done by wind and rain.  The president of Gonzalez signed a release purporting to release PFS from liability for any damage done to the roof during testing.  PFS tested the roof of the Temple.  This testing included inserting numerous nails into the roof at regular intervals.  Gonzalez claims that inserting the nails into the roof pierced the water barrier in the roof, permitting additional water damage to the roof and the building.  After PFS completed its testing, Gonzalez filed an amended complaint, asserting claims against fictitious parties based on its allegations concerning damage to the roof during testing.  After filing this amended complaint, Gonzalez, LLC, agreed to settle the action.  After the settlement of the original action for a combined total payment of $1 million, Gonzalez, LLC, filed a new action against DiVincenti and PFS.  DiVincenti and PFS moved for the payment of attorney fees under the Alabama Litigation Accountability Act and for summary judgment.  The trial court granted the motion for a summary judgment, but did not address the issue of attorneys' fees.  About eleven days after the entry of the summary judgment, the trial court noted in the case-action log that it was aware that it had not ruled on the motion for attorney fees, and that it thought that reasonable attorney fees were warranted in this case.  Gonzalez then filed a notice of appeal from the summary judgment.  Thereafter, Gonzalez requested a hearing in the trial court on the issue of attorneys' fees.  No hearing took place, and several months later the trial court denied DiVincenti and PFS's motion for attorney fees.  DiVincenti and PFS then appealed from the order denying their motion for fees.  HOLDING: The Supreme Court held that the summary judgment was a final, appealable order, because the trial court did not specifically reserve jurisdiction for determination of attorneys' fees.  The Court held that all the elements of res judicata were met, including the substantial identity of the parties, even though PFS and DiVincenti were not named in the first action.  Therefore, the Court affirmed the summary judgment.)
*Download or view PDF version of opinion*
 
• Serra Chevrolet, Inc. v. Edwards Chevrolet, Inc., 

Nos. 1010340 & 1010341 (Ala. Sept. 13, 2002)
(statute of limitations; Motor Vehicle Franchise Act ("MVFA"); tortious interference with a contract; Serra Chevrolet sued Edwards Chevrolet, claiming that Edwards had tortiously interfered with its business relationship with General Motors ("GM").  Serra filed an amended complaint that set forth an additional claim that Edwards had acted in concert with other named defendants in violation of the MVFA.  Serra's amended complaint also sought to name two GM "representatives," within the meaning of the MVFA, as defendants.  GM filed a motion to intervene as a defendant and filed an answer to Serra's complaint that also contained a counterclaim for a declaratory judgment. The trial court granted GM's motion to intervene.  Serra amended its complaint to add GM as a defendant, claiming that GM had acted in concert with other named defendants in violation of the MVFA, and to state additional claims against GM alleging fraud, negligence, willfulness, and wantonness, and negligent and wanton supervision.  The trial court entered summary judgment in favor of Edwards and also entered summary judgment in favor of GM on all claims except the MVFA claim.  As to Serra's MVFA claim against GM, the trial court held that it could only assert a claim based on events occurring after December 1994.  After a trial on Serra's MVFA claim against GM, the jury found in favor of Serra and awarded damages against GM in the amount of $9,096,000.00.  The trial court also awarded Serra $2,500,000 in attorney fees and $330,000 in expenses. Serra appealed the judgment in favor of Edwards, and GM appealed the judgment in favor of Serra.  HOLDING: The Supreme Court affirmed the judgment in favor of Edwards and against Serra, and it reversed the judgment in favor of Serra against GM.  The Court found that Serra had not presented any evidence of damages nor had its contract with GM been terminated at the time the trial court ruled on Edwards's summary-judgment motion.  The Court held that any damage sustained by Serra as a result of any violation of the MVFA by GM before April 8, 1994, and any subsequent damage resulting from such a pre-April 8 violation, would be barred by the MVFA's statute of limitations.  The Court then concluded that there was no evidence presented to the jury indicating that GM failed to follow its distribution system after 1991, which the jury could have reasonably inferred to be a violation of the MVFA.  Based upon the evidence, limited to GM's conduct after April 8, 1994, the Court concluded there was no basis to support a verdict determining that GM's conduct was arbitrary, in bad faith, unconscionable, capricious, or unreasonably discriminatory, as is required for liability under the MVFA.  Accordingly, the Court held that GM was entitled to judgment as a matter of law.)
*Download or view PDF version of opinion*
 
• Community Care of Am. of Ala., Inc. v. Davis, 

No. 1010454 (Ala. Sept. 13, 2002)
(arbitration;  Leatha Davis, an Alabama resident, sued Community Care of America of Alabama, Inc., and some of its employees alleging that, while she resided in Community Care's nursing home, she developed "pressure ulcer sores on her feet," as the result of what she described as the "negligent and wanton conduct" of the defendants.  Davis averred that, as a consequence of this condition and of Community Care's failure to provide "the proper medical services, care, and treatment that a long-term care facility within the same medical community, and same general line of practice, possessing and exercising such ordinary, reasonable and necessary medical care, skill and diligence would have provided" in discovering and treating the condition, she suffered the amputation of both legs.  Community Care moved to compel arbitration of the dispute, based on a clause in the "Admission Contract" Davis's son, Willie Harris, executed when Davis was admitted to the facility.  Community Care supported its motion with the affidavit of Joan Tidwell, the administrator of the nursing-home facility.  The trial court refused to consider the affidavit.  The trial court also denied the motion to compel arbitration.  Community Care appealed.  HOLDING:  The Supreme Court affirmed the denial of the motion to compel arbitration.  The Court held that it need not determine whether the trial court erred in striking the Tidwell affidavit, because, even assuming that it was admissible, it failed to compel the conclusion that the FAA requires enforcement of the arbitration provision.  The Court noted that on November 6, 1999, the office of the Secretary of State revoked the certificate of authority of Community Care to transact business in Alabama.  Thus, when the Admission Contract was signed, Community Care was not qualified to do business in Alabama, as required by Ala. Code §10-2B-15.01(a).  The Court noted that this "door-closing" statute bars a foreign corporation not qualified to do business in Alabama from enforcing in an Alabama court a contract it made in Alabama.  The Court noted that the test of the enforceability of the arbitration clause in the Admission Contract in this case is not, as Community Care contends, whether the transaction substantially affects interstate commerce, but is whether the main or primary purpose of the transaction constitutes an interstate or intrastate activity.  The Court noted that establishing a continuing presence in the state over and above the mere shipping of commodities between the states is intrastate activity, and the Commerce Clause does not protect a foreign corporation from the consequences of noncompliance with a door-closing statute when the corporation has "localized its business" in the forum state.  The Court noted that the operation of the nursing home constitutes a "localized" business activity, especially considering that the essence of Community Care's transactions with its residents is labor.)
*Download or view PDF version of opinion*
 
• Ex parte Lamar Advertising Co., 

No. 1010479 (Ala. Sept. 13, 2002)
(zoning; Lamar Advertising Company, Inc. ("Lamar"), owns an outdoor advertising sign located on the southwest corner of Airport Boulevard and Azalea Road in Mobile.  The sign was erected before 1994, when the city of Mobile adopted Zoning Ordinance No. IV, which regulates outdoor advertising signs.  Lamar's sign was thus "grandfathered" in as a nonconforming sign.  The ordinance provided that if a nonconforming sign is expanded, the Land Use Department of the City of Mobile can require its removal.  After the ordinance was adopted, Lamar replaced the existing face on the sign with a "trivision sign face," which is a sign face allowing automatic changing of the sign face, thus making it possible to present up to three advertisements during a relatively short period by automatically changing the sign face, for example, every 20 seconds on a rotating basis. The size of the sign when displayed remained the same as the earlier sign.  The Land Use Department sent Lamar a notice stating that the trivision sign face constituted an improper "expansion" under the ordinance and directing Lamar either to remove the sign or to get a variance for it.  The Mobile Board of Zoning Adjustment affirmed the Department's position, and after an appeal to the circuit court, the circuit court also affirmed the Department's position.  HOLDING:  The Supreme Court reversed.  The Court held that the sign at issue here was not "enlarged" by adding a motor and the ability to display three advertisements instead of one.)
*Download or view PDF version of opinion*
 
• Denmark v. Mercantile Stores Co., 

No. 1010849 (Ala. Sept. 13, 2002)
(trip-and-fall; premises liability; Genevieve Denmark and her husband, Jed W. Denmark, Jr., sued Mercantile Stores Company, Inc., a/k/a Dillard's, or Dillard's, Inc., (hereinafter referred to as  "Mercantile"), seeking damages for injuries Genevieve Denmark allegedly suffered when she tripped and fell on Mercantile's premises.  The complaint alleged that Genevieve Denmark was injured while shopping at Mercantile's store in Springdale Mall, when she "tripped [over] a roll of plastic shopping bags that was left lying on the floor by [Mercantile]."    Mercantile subsequently moved for a summary judgment, which the trial court granted. HOLDING:  The Supreme Court reversed the summary judgment in favor of Mercantile.  The Court noted that the evidence presented tends to establish that the roll of garment bags over which Denmark tripped was under the custody and control of Mercantile and had been placed in the display area by a Mercantile employee.  The Court noted that Mercantile offered no evidence indicating that the roll of garment bags was ever used or handled by anyone, other than Mercantile employees.  The Court held that Mercantile did not present sufficient evidence to support its "open and obvious" affirmative defense.)
*Download or view PDF version of opinion*
 
• Ex parte Pikeville Country Club, 

No. 1011244 (Ala. Sept. 13, 2002)
(venue; Pikeville Country Club, Inc. ("the Club") is an Alabama corporation located in Marion County, and it has never done business in Covington County.  Harry Green, a resident of Marion County, is a licensed, practicing attorney whose office is located in Marion County. He has never practiced law in Covington County.  Hugghins Sod Farms, Inc. ("Hugghins"), the plaintiff in this action, is a corporation  whose principal place of business is in Covington County.  Hugghins supplied sod to Southern Golf Development, Inc. ("Southern Golf"), the general contractor for renovations at the Club.  Hugghins advised the Club that Southern Golf had not paid Hugghins for the sod used in the renovations at the Club and that, therefore, Hugghins was asserting a lien against any unpaid balance due Southern Golf by the Club.  Green, on behalf of the Club, responded by a letter dated August 26, 1998, stating that no moneys were due Southern Golf and that final payment to Southern Golf had been made before Hugghins's attorney contacted the Club.   Green drafted the letter in his office in Marion County, and it was mailed from Marion County to Covington County.  After learning of Green's letter, Hugghins decided that it should not proceed to perfect a lien upon the Club's property in Marion County.  Hugghins then proceeded to attempt to collect from Southern Golf the balance due it.  On September 28, 1999, a Southern Golf employee gave deposition testimony indicating to Hugghins that the Club made its final payment to Southern Golf after August 26, 1998, the date of Green's letter.  Hugghins sued the Club and Green in the Covington Circuit Court, alleging that Green's letter contained misrepresentations.  The Club and Green filed motions to transfer the case to the Marion Circuit Court, contending that venue was not proper in the Covington Circuit Court.  The trial court denied the motions to transfer.  The Club and Green filed a petition for a writ of mandamus. HOLDING:  The Supreme Court granted the petition and issued the writ.  Relying on Ex parte SouthTrust Bank of Tuscaloosa County, N.A., 619 So.2d 1356 (Ala. 1993), the Court concluded that venue in this case is not proper in Covington County under either Ala. Code §6-3-7(a)(1) or §6-3-2(a)(3), because the event giving rise to Hugghins's claims -- the mailing of the letter containing the alleged misrepresentations -- occurred in Marion County, where the letter was mailed, and not in Covington County, where Hugghins received the letter.)
*Download or view PDF version of opinion*
 
• Ex parte Cobb, 

No. 1011892 (Ala. Sept. 13, 2002)
(The Supreme Court denied the petition for the writ of certiorari without opinion, but stated that 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*

Back to top

Opinions Released September 6, 2002

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

 
• Ronnie Smith's Home Ctr., Inc. v. Luster, 

Nos. 1000856 & 1000978 (Ala. Sept. 6, 2002) (plurality opinion)
(arbitration; merger rule; the trial court denied the defendants' motions to compel arbitration; HOLDING: the Supreme Court affirmed the trial court's denial of the motions to compel arbitration on the authority of Belmont Homes, Inc. v. Law, No. 1010854 (Ala. June 28, 2002), stating that "[t]he merger rule applies as well as to prior or contemporaneous writings as to oral agreements")
*Download or view PDF version of opinion*
 
• Commercial Union Ins. Co. v. DeShazo, 

Nos. 1002083, 1002084 & 1002099  (Ala. Sept. 6, 2002)
(negligent inspection; asbestos exposure; the defendants were  Commercial Union Insurance Company, CNA Insurance Company, and Fireman's Fund Insurance Company, which were liability and workers' compensation insurance carriers for Sepco Corporation; from 1975 to 1984, the plaintiffs were employed by an independent contractor who provided janitorial services for Sepco; the plaintiffs claim that while working in Sepco's facilities they were exposed to fibrous asbestos dust, which, they say, subsequently caused asbestosis and other illnesses; all of the policies issued by the defendants contained "inspection and audit" clauses, which stated that any inspections conducted by the insurer would not be for the benefit of the insured or anyone else and would not constitute an undertaking to ensure that the inspected facilities were safe; the plaintiffs sued Commercial Union, CNA, and Fireman's Fund, alleging that the insurers failed to detect unsafe working conditions during their inspections of the Sepco facilities; the trial court denied the defendants' motions for summary judgment, and the Supreme Court granted permission for an interlocutory appeal; HOLDING: the Supreme Court held that Commercial Union, CNA, and Fireman's Fund, by undertaking inspections pursuant to their general liability policies, did not assume the duty to provide the plaintiffs with a reasonably safe workplace because the "inspection and audit" clauses in the policies all stated that they were not undertaking "to determine or warrant that such property or operations [or workplaces, operations, machinery or equipment] are safe or healthful"; the Court also noted that the "inspection and audit" clauses also indicate that any inspection was solely for the benefit of the defendants, and not, as described in the clauses, made "on behalf of or for the benefit of the named insured or others"; the Court noted that its decision is not based upon an "exception" to Restatement (Second) of Torts § 324A (1965), but, rather, it is based on the fact that, in this situation, § 324A, as a conduit of liability, is rendered wholly unavailable to the plaintiffs because there was no "undertaking ... to render services for another"; the Court reversed the trial court's order denying the defendants' motions for summary judgment and rendered a judgment for the defendants)
*Download or view PDF version of opinion*
 
• Hannah v. Gregg, Bland & Berry, Inc., 

Nos. 1002094 & 1002095  (Ala. Sept. 6, 2002) (on application for rehearing)
(on rehearing, Gregg, Bland & Berry, Inc. ("GB&B"), argues that the summary judgment in its favor was proper because, according to GB&B, it owed no duty to Hannah; GB&B contends that the contract it entered into with Reynolds Metals Company -- to convert the belt wrapper to its original overwind configuration -- did not obligate GB&B to include safeguarding around the belt wrapper; HOLDING: in an additional opinion issued on rehearing, the Supreme Court overruled the application for rehearing, noting that GB&B failed to include the contract on which it relies in the record on appeal; the Court)
(original opinion summary: wrongful-death action; summary judgment; expert testimony; contributory negligence; claims are based upon the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") and theories of  negligence, wantonness, and breach of warranty; Jerry Hannah was crushed to death between two large industrial machines --  a "belt wrapper" and a "recoiler" -- at a plant operated by  Reynolds Metals Company ("Reynolds"); the belt wrapper and recoiler were manufactured in the mid-1960s by the McKay Machinery Company; the belt wrapper was modified to wind the aluminum in an under-wind direction, but in 1985 or 1986 Reynolds hired Greg, Bland & Berry, Inc. ("GB&B") to convert the belt wrapper to its original overwind configuration; GB&B reconfigured the belt wrapper in accordance with Reynolds's specifications, which did not include a barrier guard to protect persons working between the belt wrapper and the recoiler, and GB&B did not suggest to Reynolds that it include a barrier guard in the specifications; Westinghouse Electric Corporation ("Westinghouse") supplied the electrical controls for the continuous annealing line ("CAL"), including the belt wrapper, in the 1960s; on the day of the accident, Hannah was inspecting the recoiler, which he had previously done twice that day, and he signaled for Roy Gieske to stop the recoiler and then signaled for Gieske to turn the recoiler slowly; however, Gieske pressed the wrong button; when Gieske saw the belt wrapper moving toward Hannah he immediately pressed the retract button, but the belt wrapper did not retract; the belt wrapper lifted Jerry Hannah and pushed him into the recoiler; Hannah died from his injuries; neither Roy Gieske nor Hancock noticed whether the safety pin was in place at the time of the accident, and when Reynolds engineers inspected the accident site, they did not find the safety pin in place;  Judy Hannah, Jerry Hannah's widow, sued several defendants, including Danieli Corporation (formerly McKay Corporation), GB&B, and Westinghouse, alleging negligence and breach of warranty based upon the failure of those defendants to include a safety feature, such as a barrier guard, an interlocking device, or a presence-sensing device, in the area between the belt wrapper and the recoiler; the trial court entered a summary judgment in favor of GB&B and Westinghouse; it denied Danieli's motion for a summary judgment; the trial court certified the summary judgments for GB&B and Westinghouse as final under Rule 54({b); HOLDING: the Supreme Court reversed and remanded the summary judgment in favor of the defendants on the AEMLD and negligence claims; the Court held that the mere fact that GB&B followed the plans and specifications supplied by Reynolds does not, in and of itself, shield GB&B from liability if GB&B should have been aware that complying with those plans and specifications would create an unreasonably dangerous condition, and Hannah submitted expert testimony stating that GB&B should have been on notice of the hazard of failing to include a barrier guard between the belt wrapper and the recoiler;  the Court held that the trial court also erred in entering summary judgment against Westinghouse because Hannah submitted the deposition testimony of two experts who agreed that Westinghouse failed to include appropriate safety devices in the design and installation of the electrical controls for the CAL; the Court held that the electrical controls could be a product for purposes of the AEMLD where Westinghouse designed the control system, the regulating system, and the tension and speed control of the CAL and where Westinghouse supplied motors, the control for the motors, desks, operators stations, control cabinets, the equipment to control the speed and tension of the process line, the logic solenoid, and the logic relays, all in accordance with the design of the electrical circuitry; the Court held that a manufacturer such as Westinghouse could be liable under the AEMLD where there was an alteration of the product if the alteration or modification did not in fact cause the injury, or if the alteration or modification was reasonably foreseeable to the manufacturer or seller, and Although Reynolds modified the electrical control system,  Westinghouse's expert admitted in his deposition that most of those modifications played no role in causing and did not contribute to the accident that killed Jerry Hannah; the Court held that Hannah presented substantial evidence creating a jury question as to whether Westinghouse owed a duty of care to Hannah; the Court rejected Westinghouse's contention that even if the control logic and the control panels are products under the AEMLD, Hannah failed to demonstrate that a feasible alternative design was available that would have reduced or eliminated Jerry Hannah's injuries, because Hannah's experts described five feasible alternative designs Westinghouse could have used in the design and construction of the electrical controls for the CAL; the Court noted that to establish contributory negligence as a matter of law such that summary judgment would be appropriate (as opposed to proving it sufficiently for a jury to find contributory negligence), a defendant seeking a summary judgment must show that the plaintiff put himself in danger's way and that the plaintiff had a conscious appreciation of the danger at the moment the incident occurred, and the Court held that this standard was not met because Hannah submitted evidence that would permit jury could conclude that at the time of his accident, Jerry Hannah was standing in what he may have believed to be a safe position, on the outer edge of the recoiler and that he did not appreciate the danger posed by the belt wrapper, and also that would permit a jury to conclude that Hannah may have inserted the safety pin, believing that it was set, but that the bend in the pin did not allow it to properly lock)
*Download or view PDF version of opinion*

--(the original opinion released on Apr. 26, 2002, in Hannah is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

• Ex parte J.A.P., 

No. 1010263  (Ala. Sept. 6, 2002)
(juvenile; criminal; first-degree rape; J.A.P., a 14-year-old male, was charged with the attempted first-degree rape of his 9-year-old half-sister, L.P.; the trial court found the charge to be true and adjudicated J.A.P. delinquent; the Court of Criminal Appeals affirmed; HOLDING: the Supreme Court reversed, holding that there was insufficient evidence of the element of "forcible compulsion"; the Court overruled B.E. v. State, 778 So.2d 863 (Ala. Crim. App. 2000), because the the Court of Criminal Appeals failed to acknowledge that the Supreme Court's forcible-compulsion analysis in Powe v. State, 597 So. 2d 721 (Ala. 1991), is limited to cases concerning the sexual assault of children by adults with whom the children are in a relationship of trust)
*Download or view PDF version of opinion*
 
• Potter v. First Real Estate Co., 

No. 1010339  (Ala. Sept. 6, 2002) (on application for rehearing; withdrawing and substituting the opinion released May 24, 2002)
(claims of misrepresentation, suppression, fraud, and promissory fraud arising out of the sale of a house; statute of limitations; reasonable reliance;  Joseph Potter and his then fiancée, Jamie, were looking to purchase their first house; Joseph and Jamie saw a "First Real Estate" sign in the yard in front of Kimberly Boler's house; they telephoned the number on the sign and spoke with Dawn Borden, a real-estate agent employed by First Real Estate; Borden acted as a "dual agent" in the sale of the house, representing both the buyer and the seller; Joseph Potter testified that during the first visit he asked Borden if the house was located in a flood plain, and Borden responded that to her knowledge it was not, but that she would check on a survey she had in her office; Borden told Joseph and Jamie that they could obtain another survey if they wished, but that the one she had was a recent one and that they could save money if they used it; Joseph Potter testified that when Borden showed him the survey of the property that she purportedly had obtained from a prior owner, it was hard to read and "almost illegible," so he took her at her word; on July 7, 1998, Joseph executed an eight-page "Financed Sales/VA Contract" for the house, and the contract stated that the property was not located in a flood plain; at that July 7 meeting, Jamie asked if the property was in a flood plain, and Borden replied, "No"; the sales contract also included a disclaimer stating that "they have not relied upon the advice or representations of Broker ..."; at the closing, Joseph was given a copy of the survey of the property which contained the words "the property described herein (is) (is not) located in a special flood hazard area" and had a slightly diagonal handwritten line moving from the lower left to the right over the words "is not"; Joseph testified that the copy of the survey he was given at the closing was another copy of the same survey he described as "almost illegible"; the Potters testified that they first learned their property was in a flood plain on September 2, 1999, when they received a letter from their mortgage company stating that the property was in a flood plain and that they were required to purchase flood insurance; Joseph contacted an insurance agent and purchased flood coverage for the structure of the house; in March 2000, after heavy rains, the Potters' house flooded; the Potters filed this action; Borden and First Real Estate moved for summary judgment, and the Potters unsuccessfully attempted to postpone consideration of Borden's and First Real Estate's motions for a summary judgment to allow further discovery; the trial court entered a summary judgment for Borden and First Real Estate, stating that the plaintiffs were put on notice that the property in question was in a flood hazard zone; HOLDING:  the Supreme Court held, based upon the documents in the record that clearly show the words "is not" to have been struck through by a hand-drawn line, that the trial court did not err in reading the survey as giving the Potters notice that the property is situated in a flood plain; the Court held that under the reasonable-reliance standard, evidence showing that a single clear and unambiguous document was submitted to a literate person at the time of closing does not always trigger the running of the statute of limitations, regardless of circumstances and events preceding the closing or events occurring at the closing; the Court held that it is consistent with Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala. 1997), to recognize a jury question in a fraud case where the plaintiff's ignorance of the contents of a document is reasonable under the circumstances; the Court held that the evidence of a special relationship between the Potters and Borden, evidence indicating that Joseph was unable to read an earlier version of a document that was presented again at the closing in a legible condition, and evidence of renewed assurances that the document presented at the closing was consistent with the previous document described by Joseph as almost illegible is sufficient evidence to warrant a determination by the jury that there was a "misrepresentation of the content of the agreement or the employment of trick or artifice" at the time of the closing that lulled the Potters into a "false sense of security"; the Court held that "the documents at issue are not as easily understood" as those in Foremost and that a jury, taking the Potters as reasonable first-time home buyers, could conclude that they reasonably relied on Borden's oral representations and the statement in the sales agreement that the property was not in a flood plain; the Court held that the trial court erred in entering a summary judgment based on a finding "that the Plaintiff was put on notice that the property in question was in a flood hazard zone"; the Court reversed the summary judgment entered in favor of Borden and First Real Estate)
*Download or view PDF version of opinion*

--(the original opinion released on May 24, 2002, in Potter is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

• Scott & Scott, Inc. v. City of Mountain Brook, 

No. 1010524  (Ala. Sept. 6, 2002)
(business license taxes; the City of Mountain Brook sued several defendants, collectively referred to as the "Scotts" seeking to collect allegedly owed and unpaid business license taxes; the City alleged that the Scotts were in the business of leasing property within the City and that they had failed to pay the business license taxes required for the operation of such a business; the Scotts answered the City's complaint by asserting that their ownership of leased real property within the City was not a "business" within the ambit of the City's ordinances imposing the business license tax; after both sides filed motions for summary judgment, the trial court entered summary judgment for the City; after a series of discovery disputes concerning damages, the trial court entered an "Order and Judgment," awarding the City damages in the total amount of $85,595.30; HOLDING: the Supreme Court affirmed the judgment of the trial court; the Court held that the business license tax ordinances are not unconstitutionally vague; the Court rejected the Scotts' overbreadth argument because the Court found that the Scotts have not shown that the ordinances impose an unnecessary and unreasonable burden upon useful activity and because the Scotts have presented no evidence indicating that the City's actions were unreasonable, arbitrary, or capricious; the Court rejected the Scotts' argument that the ordinances, as written, do not apply to them because their ownership of the commercial real property was "passive"; the Court rejected the Scotts' argument that the ordinances effectively imposed double taxation because, they argued, the ordinances "required individuals engaged in leasing as well as leasing agents to pay a business license tax")
*Download or view PDF version of opinion*
 
• Ex parte Orkin Exterminating Co., 

No. 1010533 (Ala. Sept. 6, 2002)
(petition for writ of mandamus denied without opinion; special concurring opinions by Justices Lyons and Harwood; dissenting opinion by Justice Houston; Ala. Code §6-5-440; simultaneous actions; class actions)
*Download or view PDF version of opinion*
 
• Ex parte Hall, 

No. 1010573 (Ala. Sept. 6, 2002) (on application for rehearing; withdrawing and substituting the opinion of June 14, 2002)
(criminal; release on bail; necessity of a hearing; Tarus Hall filed this petition for a writ of mandamus or, in the alternative, a writ of habeas corpus after the Montgomery Circuit Court, without a hearing, denied his request to be released on bail; on September 5, 2001, Hall was arrested pursuant to a warrant charging him with murder, an offense made capital because the murder was committed during a robbery in the first degree; on October 5, 2001, Hall filed a motion to be released on bail; in his motion he requested a hearing; the State filed no response to the motion; without a hearing, the trial court denied the motion; Hall filed a petition for a writ of habeas corpus in the Court of Criminal Appeals; in response to that petition, the State submitted voluminous evidentiary materials, none of which had been submitted to the trial court; the Court of Criminal Appeals denied Hall's petition, without an opinion; Hall then filed his petition in the Supreme Court of Alabama; in response, the State admits that the trial court denied bail apparently without conducting a hearing, but relying upon the evidentiary materials first submitted to the Court of Criminal Appeals, the State argues that Hall is not entitled to bail, because "the proof is evident" that Hall is guilty of capital murder; HOLDING: the Supreme Court said it is well established that a person accused of a capital offense must overcome the presumption of his guilt by proof, in order to be entitled to bail; the Court held that by denying, without a hearing,  Hall's motion to be released on bail, the trial court denied him the opportunity to offer the proof necessary to overcome that presumption; the Court held that while the State has attempted to cure that procedural deficiency by submitting evidentiary materials, first to the Court of Criminal Appeals and then to the Supreme Court, a proper record must be developed in the trial court before such evidence can be considered by an appellate court; the Court granted the petition, directed the trial court to set aside its order denying bail, and directed the trial court to schedule a bail hearing)
*Download or view PDF version of opinion*

--(the original opinion released on June 14, 2002, in Hall is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. web site)--
 

• Moore v. Prudential Residential Servs. Ltd. Partnership, 

No. 1010767 (Ala. Sept. 6, 2002)
(real estate; caveat emptor; fraud; claims of breach of contract, fraudulent misrepresentation, fraudulent suppression, conspiracy, breach of fiduciary duty, negligence, and wantonness in connection with the sale of a house;  Bobby L. Moore and Melba Jean Moore asked Lou Thorne, their real estate agent, to schedule an appointment for them to view the house that is the subject of this action; Thorne contacted Nancy Rogers, the listing agent for the house, at Prudential South O'Town Realty, Inc. ("South O'Town") and arranged for the Moores to view the house; David F. Lundy and Cherry Ann Lundy, the occupants of the house, were selling the house because David Lundy was being transferred  by his employer; David Lundy's employer had an agreement with Prudential Relocation, a division of Prudential Residential, pursuant to which Prudential Relocation assisted transferred employees in selling their homes; Rogers identified Prudential Relocation as the seller of the house, and she testified that she represented Prudential Relocation in the transaction; when the Moores walked through the house and inspected each room,  some portions of the walls were not visible because of furniture; neither the Moores nor Thorne asked Rogers or Cherry Lundy to move any of the furniture so they could view the portions of the walls hidden behind the furniture; Melba Moore testified that, while they were inspecting the basement den, she asked Rogers if there was "any type of water problem in this basement" and that Rogers said, "No"; Bobby Moore also testified that while he was in the basement, he asked Cherry Lundy, "Have you ever had any water come through the walls?  And [Cherry Lundy] said, 'No, sir, we have never had any water problems in the basement'"; Thorne testified that she asked both the Lundys and Rogers if there were any water problems with the house, that she heard the Moores ask the Lundys on at least three occasions if there were any water problems with the house, and that Cherry Lundy responded that they had never had any water problems; the Moores decided to make an offer for the house; the Moores' offer was to be subject to a "conventional appraisal," not "as is"; the Lundys counter-offered with an increased price and by writing "as is" on the contract; Thorne prepared another copy of the sales contract, which both parties accepted; the contract provided, among other things, that "Purchaser has the obligation to determine any and all conditions of the Property material to Purchaser's decision to buy the Property, including, ... the roof and the basement, including leaks therein ...," and that "Purchaser has inspected the Property, ... and, without relying on any representation or warranty from Seller or Broker ... accepts the Property in its present 'as is' condition,"; after the Moores took possession of the house, they discovered a number of defects in the house, including a number of defects related to water leakage; the Moores sued, and the trial court entered summary judgment in favor of all defendants who did not settle, even though the Lundys never filed a motion for summary judgment; HOLDING: the Supreme Court held that because the Moores have cited no authority in support of their arguments that Prudential Residential and Prudential Homes are liable for negligence and are vicariously liable for Rogers's actions, it will not consider those arguments; the Court also noted that because the Moores do not address in their brief on appeal their conspiracy, wantonness, suppression, or breach-of-contract claims, those issues are deemed waived; the only issues considered by the Court are whether the trial court properly entered a summary judgment in favor of Rogers on the Moores' fraudulent-misrepresentation claim against her and whether the trial court properly entered a summary judgment in favor of the Lundys despite their failure to move for a summary judgment; thus, the Court affirmed the trial court's summary judgments in favor of Prudential Residential, Prudential Homes, South O'Town, and Sanders; the Court affirmed the summary judgment in favor of Rogers because where a purchaser's direct inquiry would otherwise impose a duty of truthful disclosure, a purchaser's fraud claim is precluded by language in a sales contract stating that the purchase is "as is"; because the Moores did not ask the Court to overrule the cases establishing this rule of law, because of "the state of the briefs in this appeal," and because the Moores are a former real estate agent and an insurance adjuster with experience in evaluating water damage to houses, the Court declined on this occasion to revisit the rule holding that "as is" language in a contract for the purchase of used residential real estate precludes a fraud claim; the Court also held that Rogers was  entitled to a summary judgment because the Moores presented no evidence indicating that Rogers knew that the house had any water problems; the Court reversed the summary judgment as to the Lundys because Rule 56 requires, at the least, that the nonmoving party be provided with notice of a summary-judgment motion and be given an opportunity to present evidence in opposition to it, and the trial court violates the rights of the nonmoving party if it enters a summary judgment on its own, without any motion having been filed by a party)
*Download or view PDF version of opinion*
 
• Wetterhan v. Vesta Ins. Group, Inc., 

No. 1010780 (Ala. Sept. 6, 2002)
(breach of employment contract; termination without cause; race discrimination in jury selection; after the Supreme Court reversed a summary judgment in favor of the employer, Vesta Insurance Group, the case was tried to a jury; at the charge conference a special interrogatory, which the trial court announced it would give to the jury, was discussed; the plaintiff, Wetterhan, did not object to this special interrogatory at the charge conference, but he stated to the court that he thought the court had "correctly stated the issue in the special interrogatories referring to terminated without cause"; after the trial court thoroughly instructed the jury on the special interrogatory and after the jury retired to begin its deliberations, Wetterhan objected to the charge that the jury must find that Wetterhan was terminated in order for him to recover; the trial court held that Wetterhan had waived any objection he had to submitting the special interrogatory to the jury; HOLDING: the Supreme Court held that the trial court did not err in holding that Wetterhan had waived any objection he had to submitting the special interrogatory to the jury; the Court held that there was substantial evidence to support the jury's finding that Wetterhan was not terminated without cause by his employer; the Court held that the trial court did not err in holding that reason proffered by the defendant for the challenged strikes -- that they were the only veniremembers whose husbands were "on disability" -- was a race-neutral reason; the Court affirmed the judgment in favor of the employer)
*Download or view PDF version of opinion*
 
• Water and Wastewater Bd. v. Anderson, 

No. 1010896 (Ala. Sept. 6, 2002)
(the trial court issued a writ of mandamus directing the Water and Wastewater Board of the City of Madison to provide water service to property owned by G. Walton Anderson; the service area the Water Board purchased in 1990 from the Madison County Commission included Anderson's property; on January 8, 1996, the Water Board adopted a resolution that limited its service area; Anderson did not file a formal application for water service with the Water Board until July 1, 1999; HOLDING: the Supreme Court held that after the Water Board limited its service area in 1996, it no longer held itself out to serve potential customers outside the Madison city limits except under certain specified circumstances, and Anderson failed to show that the Water Board's policy of requiring annexation of property contiguous to Madison's city limits had been applied in an arbitrary or discriminatory manner with regard to him as compared with any other person or entity; accordingly, the Court concluded that Anderson did not have a clear legal right to have the Water Board provide water service to his property; the Court also held that mandamus relief is inappropriate because Anderson had at least one other remedy available to him -- a declaratory-judgment action; the Court reversed the trial court's writ of mandamus)
*Download or view PDF version of opinion*
 
• Stabler v. City of Mobile, 

No. 1010944 (Ala. Sept. 6, 2002)
(tort of outrage; timeliness of notice of claim; plaintiff James A. Stabler, Jr., was employed by the City of Mobile as a police officer; his supervisor was the defendant Curtis Robinson, a sergeant with the Mobile Police Department; Stabler applied to the Baldwin County Sheriff's Department for a job as a deputy sheriff; on April 28, 1999, Robinson wrote and signed a letter, written on "Mobile Police Department" letterhead, to Chief Larry Milstead, of the Baldwin County Sheriff's Department, stating that "Officer Stabler has problems following rules, procedures and regulations," that Stabler "has a record that reflects an abuse of sick time," that he "has a rash of citizen complaints filed against him on his demeanor and excessive force," that he "was the center of a racial incident with a black officer and disciplinary actions are pending," that he "has a problem with truthfulness," that he "is not dependable or trustworthy," that his performance was "inept," and that he "has displayed a bad attitude that reflects prejudicialness [sic] against minorities"; the Mobile Police Department investigated Robinson's actions in writing the letter, and Robinson was suspended without pay for a period of 10 consecutive workdays; Robinson appealed that ruling to the Mobile County Personnel Board, and the personnel board found that Robinson had violated police department rules and procedures, but determined that Robinson's discipline was too severe, and reduced his suspension to three workdays; Stabler filed a "charge of discrimination" with the Equal Employment Opportunity Commission ("EEOC") naming as respondents the City of Mobile, the Mobile Police Department, and Sgt. Curtis Robinson; Stabler sued his supervisor, Sgt. Robinson, the City of Mobile, and the City of Mobile Police Department, claiming that the letter contained false and defamatory statements, asserting the tort of outrage, alleging that the City failed to use reasonable care in adequately supervising and monitoring the actions of Curtis Robinson, and alleging that the sending of the letter was malicious, wanton, and/or negligent conduct; the City and the Police Department (collectively  the "City") moved to dismiss, alleging that Stabler had failed to comply with the provisions of Ala. Code §§ 11-47-23 and 11-47-192 because he did not file a sworn statement of claim with the City within six months of the injury alleged in the complaint; the City attached an affidavit of the City's clerk; Robinson filed a motion for a partial summary judgment alleging that plaintiff failed to comply with the required prerequisites to recovery of punitive damages as mandated by Alabama Code § 6-5-186 and that the allegations made by plaintiff are insufficient as a matter of law to support an outrage claim; the trial court granted the City's motion to dismiss and  made the order of dismissal final pursuant to Rule 54(b), Ala. R. Civ. P.; the trial court also dismissed "the claim for punitive damages" and entered partial summary judgment for Robinson on the tort-of-outrage claim; HOLDING: the Supreme Court held that Sgt. Robinson's behavior in writing the letter was not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency" and affirmed the partial summary judgment on Stabler's tort-of-outrage claim; the Court noted that, although styled a motion to dismiss, the City attached an affidavit, and Stabler, in his response to the motion, attached a copy of the charge of discrimination he had filed with the EEOC; thus, the Court reviewed the dismissal of the claims against the City as a summary judgment; the Court held that the filing of the EEOC charge does not constitute compliance with a municipal notice-of-claim statute; thus, the Court also affirmed the dismissal/summary judgment in favor of the City) 
*Download or view PDF version of opinion*
 
• Jones v. Hooks, 

No. 1010948 (Ala. Sept. 6, 2002)
(Certified Questions from the United States District Court for the Northern District of Alabama: (1) Does Alabama law authorize the governor to grant a commutation of a sentence of life without parole to a sentence of life with the possibility of parole?; (2) If so, what guidelines, if any, apply to the decision-making process?; (3) Is a hearing before the governor required at which the prisoner can present his case?; (4) May the denial of a grant of commutation or the refusal to rule on a request for commutation be challenged and, if so, in what forum, controlled by what rules or procedures?; HOLDING: the Supreme Court answered the first question in the negative, stating that there is no constitutional or statutory provision "authoriz[ing] the governor to grant a commutation of a sentence of life without parole to a sentence of life with the possibility of parole"; the Court held that because it answered the first question in the negative, it need not answer the remaining questions) 
*Download or view PDF version of opinion*
 
• Harper v. Brown, Stagner, Richardson, Inc., 

Nos. 1011109 & 1011205 (Ala. Sept. 6, 2002)
(Rule 60(b); finality of judgments; Brown, Stagner, Richardson, Inc. ("Brown") initially sued Harper Sales Company, Inc. ("Harper Sales"), and the jury returned a verdict in favor of Brown and awarded damages of $113,115.34; the judgment against Harper Sales became final on July 17, 2000, when the trial court dismissed with prejudice the counterclaim filed by Harper Sales against Brown, and there was no appeal from that judgment; more than eight months after the entry of final judgment, Brown filed a motion, stating that "pursuant to Ala. R. Civ. P. 60(b)[, it] moves this court for an order amending the complaint ... to add Rolfe C. Harper, III as a party defendant"; Brown attached to its motion an amended complaint against Harper, which it described as an "action to pierce the corporate veil" in order to impose personal liability upon Harper; the trial court granted Brown's motion; Harper moved to dismiss arguing that Brown's use of Ala. R. Civ. P. 60(b) "to assert new claims against a new defendant" was improper; the trial court denied Harper's motion; later, the trial court entered a summary judgment in the amount of $113,115.34  for Brown and against Harper; HOLDING: the Supreme Court held that the trial court erred in granting Brown's Rule 60(b) motion, noting that Rule 60 contains no provision contemplating its use as a means to add new claims against a new defendant after a final judgment has been entered; the Court noted that Brown's motion did not attack the judgment in its favor against Harper Sales, and the motion sought no relief from that judgment; instead, the Court noted, Brown's motion sought only to amend its complaint to add Harper as a defendant, relief clearly not contemplated by Rule 60; the Court noted that, although there were differences in the facts of the cases, its decision in this case is consistent with its decision in the recent case of Pratt Capital, Inc. v. Boyett, No. 1001653 (Ala.  June 28, 2002); the Court reversed the summary judgment in favor of Brown against Harper)
*Download or view PDF version of opinion*
 
• Ex parte Bryant, 

No. 1011111 (Ala. Sept. 6, 2002)
(criminal; unlawful possession of a controlled substance (i.e., cocaine); Sedina Lashay Bryant and Kenneth Edward Moffitt were convicted of unlawful possession of a controlled substance (i.e., cocaine), a violation of Ala. Code §13A-12-212(a); an officer discovered and seized the cocaine pursuant to a warrantless entry into an apartment shared by Moffitt and Bryant; in Ex parte Moffitt, No. 1001739 (Ala.  Feb. 22, 2002), the Supreme Court held that the warrantless entry was unlawful because, "[a]fter reviewing the undisputed facts, we conclude[d] that the State did not carry its burden to show the existence of probable cause"; the Court also held in Moffitt that the trial court had erred in denying Moffitt's motion to suppress the evidence of the cocaine, and that the Court of Criminal Appeals had erred in affirming the trial court's judgment; HOLDING: the Supreme Court held that, for the same reasons expressed in Moffitt, it must conclude that the trial court erred in denying Bryant's motion to suppress the cocaine evidence, and that, therefore, the Court of Criminal Appeals erred in affirming the trial court's judgment)
*Download or view PDF version of opinion*
 
• Ex parte Employers Mut. Cas. Co., 

No. 1011202 (Ala. Sept. 6, 2002)
(affirmative defense; discovery; attack on consent judgment by nonparty insurer; fraud and collusion with respect to a consent judgment; Nadia, Inc. filed an action against the respondents, Computer Equipment and Service Company, Inc., and its employee Robert Todd Barwick (hereinafter referred to collectively as "CESCO") alleging damage to one of Nadia's computers by CESCO; CECSO referred the complaint to Employers Mutual Casualty Company, Inc. ("EMC"), CESCO's liability insurer, but EMC, asserting that CESCO was not entitled to coverage, refused to provide a defense; CESCO eventually consented to a judgment against it and in favor of Nadia for $1,100,000; before the entry of the consent judgment, CESCO filed a separate action against EMC and Nadia alleging, among other things, that EMC's failure to provide a defense amounted to a breach of contract, negligence, and the tort of outrage; After the entry of the consent judgment, Nadia filed a cross-claim against EMC, and EMC filed a counterclaim against CESCO and a cross-claim against Nadia, seeking a declaratory judgment on the issue whether there was collusion to defraud involved in the consent judgment; the trial court dismissed EMC's counterclaim and cross-claim; EMC then essentially restated its claim of collusion to defraud by amending its answer to add the claim as an affirmative defense against both CESCO and Nadia; the trial court struck the defense on the same basis it dismissed EMC's counterclaim and cross-claim, namely, because EMC failed to intervene as a party and challenge or appeal the consent judgment; the trial court also granted CESCO's and Nadia's motions for protective orders, barring EMC from deposing CESCO's and Nadia's lawyers regarding the circumstances surrounding the consent judgment; EMC argues that it is entitled to a writ of mandamus directing the trial court to allow EMC to maintain, and to seek discovery regarding, its asserted affirmative defense; HOLDING: the Supreme Court held that the trial court clearly erred in striking EMC's affirmative defense alleging collusion to defraud in obtaining the consent judgment; the Court held that EMC was not required to intervene in first case resolved by the consent judgment in order to challenge the consent judgment because judgments are binding only upon parties thereto and their privies; thus, the Court held that the trial court erred in striking EMC's affirmative defense of "fraud and collusion"; the Court held that  the scope of discovery in light of its ruling was a matter to be addressed by the trial court, so it did not issue a writ of mandamus as to the discovery issue)
*Download or view PDF version of opinion*
 
• Neal v. Neal, 

Nos. 1991439 & 1992202 (Ala. Sept. 6, 2002)
(trusts; relief from judgment; res judicata;  necessary or indispensable parties; in 1941, W.T. Neal executed a will creating a trust and which appointed three coexecutors, Ed Leigh McMillan, Violet H. Neal, and W.T. Neal, Jr. (hereinafter "W.T. Jr."), the son of the testator and trustor, and likewise appointed the same three as cotrustees of the trust; the terms of the trust required the trustees to pay $3,000 per year to each of W.T. Jr. and Violet H. Neal while both lived and, after Violet's death, $6,000 per year to W.T. Jr. while he lived, and then to his children or their descendants per stirpes; in 1950, W.T. Neal died; in 1955, W.T. Jr. married Sara Olivia Beall Weaver, who already had two sons, Leon Terrill Weaver II (hereinafter "Terrill"), and James Willett Weaver (hereinafter "James"); in 1956, appellant John Stewart Neal (hereinafter "John")  was born to W.T. Jr. and his wife Sara Olivia; on March 3, 1960, the Escambia County Circuit Court declared John to be the only living descendant of W.T. Jr.; sometime after March 3, 1960, a daughter, Lauren, was born to W.T. Jr. and his wife Sara Olivia; in 1963, a second daughter, Kate, was born to W.T. Jr. and his wife Sara Olivia; on September 13, 1973, the Adult Adoption Act, codified at Ala. Code §§ 43-4-1 through -4, became effective; on September 17, 1973, W.T. Jr. petitioned to adopt his two adult stepsons, his wife Sara Olivia's two adult sons from her former marriage, Terrill and James; on December 21, 1973, and on December 31, 1973, final orders of adoption were issued for Terrill (then 25 years old) and James (then 21 years old), respectively; on November 14, 1990, W.T. Jr., the last surviving original cotrustee of the trust, died; surviving him were, among others, his three natural children, John, Lauren, and Kate, all born to W.T. Jr. and his wife Sara Olivia, and his two adopted sons, Terrill and James, born to Sara Olivia during her prior marriage; the successor cotrustees began dividing among these five issue of Sara Olivia the $6,000 per year in trust benefits payable to the children or descendants of W.T. Jr.; W.T. Jr.'s death triggered the termination clause of the trust provisions of the will, and the trust will terminate on November 14, 2010, 20 years from the November 14, 1990 date of W.T. Jr.'s death; on January 1, 1991, the repeal of the Adult Adoption Act, Ala. Code §§43-4-1 through -4, became effective; in 1996, the successor cotrustees, N.Q. Adams, Kate Neal McNeel, and Lauren Neal Shepard, petitioned the Escambia County Circuit Court for a partial settlement of the trust from "January 1, 1956, through December 1, 1996" and for a declaration that Terrill and James were "children" and "descendants" of W.T. Jr. as contemplated by the will and trust and that they and their descendants as their interests would appear were beneficiaries and remaindermen of the trust; Terrill and James filed an answer, counterclaim, and cross-claim; in their counterclaim they sued the successor cotrustees, and in their cross-claim they sued John, for the very same declaration of their status and their descendants' status as the declaration sought by the successor cotrustees in their petition for partial settlement; John filed his own answer and counterclaim to the petition for partial settlement;  in his counterclaim he sought a declaration that Terrill and James were neither "children" of W.T. Jr., grandchildren of W.T. Neal, nor "descendants" of either W.T. Neal or W.T. Jr. entitled to distributions of assets or income from either the estate or the trust; John also sought an accounting of the assets of the trust, sought removal and replacement of the successor cotrustees, sought an injunction prohibiting the successor cotrustees from distributing trust assets and income to "recipients not entitled to receive the same,"  and sought damages for the successor cotrustees' alleged breaches of fiduciary duties, distribution of trust assets or income "to parties not entitled to the same," and suppression of facts about improper distribution of trust assets; John also sought attorneys' fees; in 1997, John, the successor cotrustees, and other parties entered into a settlement agreement; on the very same day John executed the settlement agreement, January 17, 1997, he also executed, but did not promptly file or otherwise disclose, an affidavit (hereinafter "'duress' affidavit"); on January 30, 1997, the Escambia County Circuit Court entered a Rule 54(b), Ala. R. Civ. P., final judgment pursuant to the settlement agreement, the settlement hearing, and the evidence introduced at the settlement hearing; the judgment granted all of the relief contemplated by the settlement agreement, including the constructions of W.T. Neal's will and its trust provisions, and including the dismissal of John's counterclaim, and including the approval of the successor cotrustees' accounting and the settlement of the trust through December 31, 1996; the judgment specifically held that W.T. Jr.'s adoptive sons Terrill and James, and their descendants, like W.T. Jr.'s three natural children and their descendants, were entitled to share in the income and the remainder of the trust; no appeal was taken from the judgment; on October 16, 1998, the successor cotrustees petitioned for a partial settlement of the trust from January 1, 1997 through December 31, 1997; in response to this petition, John filed an answer, counterclaim, and cross-claim and, later, an amended answer, counterclaim, and cross-claim contesting the findings and holdings of the January 30, 1997 judgment and the validity of that judgment itself; the successor cotrustees and Terrill and James filed their respective answers to John's counterclaim and cross-claim as amended and their respective motions for summary judgment on his claims; among John's evidentiary materials, not filed until August 20, 1999, was the "duress" affidavit he had sworn and executed two years and seven months earlier, on January 17, 1997; the trial court entered partial summary judgment on each of the two motions for summary judgment, first by interlocutory order, and then by final Rule 54(b) appealable order; John timely appealed each of the summary judgments; after the records on appeal were completed by the trial court and filed with the Supreme Court, and after all of the appellate briefs were filed with the Supreme Court, John then filed a "Motion to Supplement the Submission of these Consolidated Appeals"; John's motion states that, after the summary judgments were appealed to us, the Judicial Inquiry Commission, upon inquiries by the trial judge, issued two advisory opinions indicating that the trial judge should be disqualified; the trial judge also entered an order recusing himself; HOLDING:  the Supreme Court held that John's motion to supplement which seeks relief from the January 30, 1997 final judgment on the ground of the trial judge's disqualification is not properly before the Court; the Court held that John cannot receive any appellate relief on the merits of his claims to oust Terrill and James and their descendants as beneficiaries and remaindermen of the trust or his claims to recover damages from, or equitable relief against, the successor cotrustees for the various torts John alleges they committed before the date of the January 30, 1997 judgment, unless that judgment is either void for want of personal jurisdiction, subject-matter jurisdiction, or due process of law; the Court held that the judgment was not void for failure to join the Florida attorney general because neither the Florida attorney general nor any other person or entity in Florida seems to have been a necessary or indispensable party to the proceedings on the 1996 petition for partial settlement in the case; the Court held that the attorney general of Alabama, who did receive notice, was the only proper party, and the attorney general of Florida was neither an indispensable party, a necessary party, nor even a proper party, to enforce the charitable aspect of the trust; the Court held that the trial court had subject-matter jurisdiction of the issues framed by the successor cotrustees' 1996 petition for partial settlement and by the claims and other pleadings filed by Terrill, James, and John in that same litigation; the Court held that the the misinterpretations and misapplications of law that John ascribes to the aspects of the January 30, 1997 judgment about the distributions to and the status and rights of Terrill, James, or their descendants did not deprive John of due process of law; the Court held that because John received notice, employed counsel who advised and represented him, actively litigated his cause, entered the January 17, 1997 settlement agreement, attended (through counsel) the hearing on the 1996 petition for partial settlement, interposed no objections at the hearing, obtained the January 30, 1997 judgment conforming to the settlement agreement, and did not appeal that judgment, he can hardly contend that the judgment is void for a deprivation of due process of law; the Court held that the last sentence of Ala. Code §19-3-5 contemplates only mistakes of material fact, not mistakes of law, made by the trial judge and incorporated in the judgment, and John claims only mistakes of law, not mistakes of material fact, by the trial court; the Court held that John has not established fraud as a ground for revising or vacating the January 30, 1997 judgment, pursuant to Ala. Code §19-3-5; the Court held that in promoting the January 30, 1997 judgment and concealing his January 17, 1997 "duress" affidavit from the court during the proceedings culminating in that judgment, John himself participated in any fraud, if any, on the court; the Court held that John is not due relief from invited error; the Court rejected John's Rule 60(b)(6) claim based on duress because John describes his duress, in essence, as that he had already spent all of his own money and about $7,700,000 of other people's money, and the successor cotrustees would not lend or distribute still more money to him; the Court held that both summary judgments against John and in favor of the appellees must be affirmed, and John's "Motion to Supplement the Submission of these Consolidated Appeals" must be denied)
*Download or view PDF version of opinion*

Back to top

Opinions Released September 4, 2002

• DECISION ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON WEDNESDAY,  SEPTEMBER 4, 2002 

 

Back to top

Opinions Released August 30, 2002

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  AUGUST 30, 2002 

 
• Ex parte Shelby County Health Care Auth., 

No. 1001647 (Ala. Aug. 30, 2002)
(workers' compensation; question of first impression: whether an employee who falls asleep and is injured in an automobile accident while driving her personal vehicle home after having worked two 16-hour shifts with an 8-hour break between shifts can sustain a workers' compensation claim or negligence and wantonness claims against her employer; Debra L. Britt was employed at Shelby County Health Care Authority d/b/a Shelby Medical Center (hereinafter referred to as "the Hospital"); she worked weekend double shifts -- 16 hours on Saturday and 16 hours on Sunday, with an 8-hour break between shifts; Britt completed her second 16-hour shift for the weekend, and because Britt had complained of a bad headache that evening, some of her friends from work offered to drive her home; Britt refused their offers and attempted to drive herself home; as she was driving, Britt fell asleep and was seriously injured when her car crossed the median and overturned; Britt filed an action against the Hospital, asserting a workers' compensation claim and a claim alleging that the Hospital negligently and/or wantonly failed to maintain a safe workplace; the trial court entered a summary judgment in favor of the Hospital on Britt's negligence and wantonness claims; after a bench trial, the court entered a judgment in favor of the Hospital, finding that Britt's claim was not covered by the Alabama Workers' Compensation Act, Ala. Code §25-5-1 et seq. (hereinafter referred to as "the Act"); the Court of Civil Appeals affirmed the trial court's judgment as to the workers' compensation claim, but reversed the trial court's summary judgment as to Britt's negligence and wantonness claims; HOLDING: the Supreme Court held that because the relevant facts in this case are undisputed, the ore tenus rule does not apply to the trial court's ruling; the Court held that the injuries resulting from Britt's car accident, which occurred while she was driving home from work, are not covered under the Act; the Court held that Britt is not precluded from bringing a tort claim against the Hospital under the facts of this case; the Court held that although Ala. Code §25-5-53 bars an employee from bringing an action against an employer for injuries sustained by the employee while in the service of the employer, the accident that resulted in Britt's injuries did not proximately result from, and occur while she was engaged in, the actual performance the duties of her employment; the Court held that the plain language of Ala. Code §25-1-1, places the duty to maintain a safe workplace on employers only so far as they have control over the physical conditions of the workplace and the premises of the workplace; the Court declined to hold that the duties placed on an employer under Ala. Code §25-1-1 extend to scheduling work hours for employees in an attempt to ensure their safety traveling home from work; therefore, the Court reversed the Court of Civil Appeals to the extent that it reversed the trial court's summary judgment in favor of the Hospital on Britt's negligence and wantonness claims)
*Download or view PDF version of opinion*
 
• Ex parte Southern United Fire Ins. Co., 

No. 1002027 (Ala. Aug. 30, 2002)
(arbitration; Southern United Fire Insurance Company ("Southern United"), Time Payment Plan ("TPP"), and The Rider Agency petitioned for a writ of mandamus directing the Baldwin County Circuit Court to vacate its order compelling them to attend and to participate in an arbitration proceeding the respondent, Bobby E. Dewrell, Jr., unilaterally scheduled with an arbitrator unilaterally selected by him; Southern United, TPP, and The Rider Agency also appealed the trial court's order denying their motion to compel arbitration; Dewrell visited The Rider Agency to obtain automobile insurance coverage, and he completed an application for coverage with Southern United and an application for premium financing from TPP; the insurance agent calculated the total annual premium amount for Dewrell's automobile to be $1,952.60; Southern United alleges that when it processed Dewrell's application, it discovered that Dewrell had misrepresented his driving history, and it sent Dewrell a letter requesting an additional premium and notifying him that failure to submit the additional premium within the requested time would result in its canceling the policy; because Southern United alleges Dewrell failed to submit the additional premium within the time specified, it canceled the policy on that date for nonpayment of premiums; Southern United subsequently denied coverage for Dewrell's December 16, 2000, automobile accident; Dewrell sued Southern United, TPP, and The Rider Agency, alleging breach of contract, bad faith, negligence, and wantonness; Southern United moved to compel arbitration pursuant to the arbitration agreement contained in the Southern United insurance policy; Dewrell's attorney wrote counsel for Southern United, stating that Dewrell could not "agree to arbitrate this case under the provisions set forth in the policy or the rules because Mr. Dewrell was never provided a copy of the policy and had no opportunity to reject the provisions of arbitration set forth therein as specified in the application," that Dewrell "agree[d] to arbitrate this case under the arbitration provisions disclosed to Mr. Dewrell in the application," and that Dewrell had scheduled an arbitration before an arbitrator unilaterally selected by Dewrell for August 24, 2001; Southern United wrote that it would not participate in the August 24, 2001, arbitration because, Southern United said, it had not been scheduled in accordance with the terms of the arbitration provision contained in the insurance policy; Dewrell moved the court to compel Southern United and the other defendants to attend and participate in the scheduled arbitration; TPP also moved to compel Dewrell to submit the claims against it to binding arbitration; the trial court granted Dewrell's motion and ordered the defendants to attend and participate in the arbitration that Dewrell had scheduled; the trial court also denied the motions to compel arbitration filed by Southern United and TPP as moot; HOLDING: the Supreme Court held that although Dewrell contends that he did not, and could not, accept the terms of the Southern United policy because he did not receive a copy of either the policy or the arbitration rules referenced in the policy, it is undisputed that he is seeking to recover damages based on allegations that, among other things, Southern United breached the contract of insurance, and if Dewrell wants to recover for a breach of the insurance policy, he has no choice but to pursue his remaining claims under the terms of that contract -- including the arbitration provision in the policy; thus, the Court held that arbitration in this case must comply with the terms outlined in the Southern United policy and the arbitration rules referred to in that policy; accordingly, the Court held that the trial court erred when it compelled Southern United, TPP, and The Rider Agency to attend and to participate in the arbitration unilaterally scheduled by Dewrell because that arbitration did not comply with the terms of the arbitration agreement in the insurance policy; the Court held that Southern United and TPP's motions to compel arbitration are not moot; accordingly, the Court reversed the trial court's order denying their motions to compel as moot and remanded the case for the trial court to consider and to rule upon those motions)
*Download or view PDF version of opinion*
 
• Ex parte Organized Community Action Program, Inc., 

No. 1010316 (Ala. Aug. 30, 2002)
(age discrimination; Elizabeth White was employed as a Head Start teacher for the Organized Community Action Program, Inc. ("OCAP"); on August 23, 1999, OCAP notified White that because she had failed to comply with OCAP's career-development requirements, it would not rehire her at the beginning of the school year; on March 1, 2000, White formally filed an age-discrimination charge with the Equal Employment Opportunity Commission ("EEOC") against OCAP; her charge stated that the discrimination occurred on August 23, 1999; in June 2000, White filed a complaint against OCAP in the Monroe County Circuit Court alleging age discrimination in employment in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"); OCAP moved for a summary judgment, asserting that White's claim was time-barred because she did not file an age-discrimination charge with the EEOC within 180 days after the date of the alleged unlawful employment practice; White filed her own affidavit in opposition to the summary-judgment motion, alleging that she had sent a letter to the EEOC before the 180-day deadline for filing her charge had passed, that on February 15, 2000, an EEOC representative had telephoned her to discuss her claims, and that "[her] written letter which contained [her] claim of age discrimination was received by the EEOC in Birmingham in late January or early February, 2000, which was less than six months after [her] discharge from employment";  White did not produce a copy of her letter; in February 2001, the trial court entered a summary judgment for OCAP; White did not appeal; on April 10, 2001, she filed what she styled as a "motion for new trial or rehearing"; more than two months later, on June 21, 2001, White filed with the trial court a copy of her original letter to the EEOC and the affidavit of an EEOC employee, Donald Burris; OCAP moved to strike White's filing as untimely; The trial court scheduled a hearing on White's Rule 59(e) motion for July 16, 2001, but after the hearing was scheduled, the trial court realized that it had set the hearing date after the expiration of the 90-day period in which a trial court can dispose of pending postjudgment motions; rather than deny the motion through inaction, the trial court, without a hearing, granted the motion to avoid prejudicing White; OCAP moved for reconsideration of the decision to grant White's motion, and it moved to strike Burris's affidavit; the trial court denied OCAP's motions after a hearing and found that the Donald Burris affidavit creates a genuine issue of material fact on whether the Plaintiff's EEOC charge was timely filed; OCAP petitioned for a writ of mandamus directing the trial judge to vacate the order granting White's motion and to reinstate the summary judgment for OCAP; HOLDING:  the Supreme Court held that because the trial court stated that the belatedly submitted evidence was the sole basis for granting what it construed as a Rule 59(e) motion to vacate, alter, or amend the summary judgment, the grant of White's motion was based on evidence that the trial court should not have considered; therefore, the Court granted OCAP's petition for the writ of mandamus and directed the trial court to vacate its order granting White's motion and to reinstate the summary judgment for OCAP
*Download or view PDF version of opinion*
 
• Greene v. CSX Transp., Inc., 

No. 1010357 (Ala. Aug. 30, 2002)
( Federal Employers' Liability Act ("FELA"); statute of limitations; the "latent-illness-discovery rule"; this case presents the issue of whether the "latent- illness-discovery rule" applies to actions brought by the personal representatives of deceased railroad employees, under 45 U.S.C. §59, for personal injuries allegedly suffered by the employees in the course of their employment; Edward L. Parker, Jr., was employed by CSX Transportation, Inc. ("CSX"), from 1947 to 1971; Edward Parker's brother, Charles Parker, also worked for CSX; Edward Parker died of lung cancer on April 6, 1971; in 1997, Charles Parker was diagnosed with mesothelioma, a form of lung cancer, from which he subsequently died; Dr. Alan Stansfield, one of Charles Parker's physicians, attributed the illness to exposure to asbestos, and suggested a possible connection between the illness and his employment; Martha P. Johnson, Edward Parker's daughter, sued CSX on January 10, 2000, as "personal representative with the will annexed of Edward L. Parker, deceased"; her complaint alleged that Parker's fatal cancer resulted from exposure to asbestos and other toxic substances in the course of his employment with CSX and alleged violations of various federal acts, including FELA, 45 U.S.C. §51 et seq., the Locomotive Boiler Inspection Act, 45 U.S.C. §22 et seq., and the Federal Railroad Safety Act, 45 U.S.C. §421 et seq.; Johnson sought compensation for Parker's personal injuries, pursuant to 45 U.S.C. §59; joining Johnson in the complaint was Roxanne Greene, as the administratrix of the estate of George Greene, her deceased husband, asserting parallel claims; CSX moved for a summary judgment as to the claims of both plaintiffs, on the ground that their claims were barred by the limitations period in 45 U.S.C. §56; the trial court granted the motion, and the plaintiffs appealed; HOLDING: the Supreme Court held that cause of action can accrue no later than the date of the employee's death; the Court noted that if it adopted the rule advocated by the plaintiffs, a wrongful-death action would accrue upon the death of the employee, but the personal-injury claim would accrue only when the personal representative, whenever such individual could be identified and qualified, discovered, or should have discovered, the occupational nature of the illness; the Court noted that under such a rule, liability for the wrongful death of an employee would be extinguished three years after the death of the employee, while liability for the personal injury of that same employee could be held in abeyance indefinitely; the Court concluded that there is something logically amiss in the notion that a cause of action for personal injury can "accrue" decades after the employee, who has died, can neither discover, nor suffer, anything further; thus, the Court concluded that death is sufficiently significant to trigger the accrual, not only of a cause of action for wrongful death, but also of a cause of action for personal injuries; as such, the Court held that the Urie-Kubrick discovery rule applies only to discovery by the railroad employees themselves, and not to discovery by the personal representatives of deceased railroad employees, bringing actions, under 45 U.S.C. §59, for personal injuries allegedly incurred in the course of their employment; the Court therefore held that because the claims of Johnson and Greene were brought more than three years after the deaths of the CSX employees on whose behalf they were asserting the claims, their claims are barred by the statute of limitations; the Court affirmed the judgment of the trial court)
*Download or view PDF version of opinion*
 
• City of Huntsville v. Tack, 

No. 1010459 (Ala. Aug. 30, 2002)
(affirmed without opinion; dissenting opinion by Justice Woodall, joined by Chief Justice Moore, concluding that the trial court erred in granting the Ala. R. Civ. P. 24(b)(2) motion for permissive intervention of Sheila Tack, Loyce Fisher, and Katherine Nagel because they have no legally protectable interest)
*Download or view PDF version of opinion*
 
• Black v. State of Alabama, 

No. 1010599 (Ala. Aug. 30, 2002)
(affirmed without opinion; special concurring opinion by Justice Houston, joined by Justice See, concluding that the plaintiffs waived an objection to the fees imposed against them pursuant to the Alabama Investment in Justice Act of 1999, Act No. 99-427, Ala. Acts 1999, by failing to challenge the fees in the courts that imposed them on the plaintiffs)
*Download or view PDF version of opinion*
 
• Alafabco, Inc. v. Citizens Bank, 

No. 1010703 (Ala. Aug. 30, 2002)
(arbitration; interstate commerce; Alafabco, Inc., and three of its officers or employees, sued the Citizens Bank and a number of its employees (hereinafter referred to collectively as "the Bank"); the complaint alleged that in 1986, the plaintiffs and defendants entered into a quasi-contractual relationship wherein the plaintiffs secured construction contracts and the defendants provided the necessary operating capital to complete the project; the complaint alleged that upon completion of a project, the plaintiffs repaid the funds, together with accrued interest, to the defendants; the complaint alleged that plaintiffs continued to operate under the implied agreement until 1998, at which time the defendants encouraged plaintiffs to bid on a large project and then, when plaintiffs' bid was accepted and plaintiffs began work, the defendants refused to provide the necessary operating capital for the completion of the contract; the complaint alleged that as a result of the defendants' breach of the agreement, the plaintiffs began to incur massive debt; according to Alafabco, it attempted to compensate for the alleged breach by using the monies provided by the Bank in the prior funding, but it became delinquent in repaying its existing obligations to the Bank; subsequently, the parties negotiated an agreement, under which "all of the loans with the Plaintiffs were restructured and redocumented through various notes dated May 3, 1999; along with the "renewal notes" executed as a result of these negotiations, the parties signed a document containing an arbitration agreement; subsequently, Alafabco defaulted on its payments under the "renewal notes," and, it alleges, the Bank published notices of foreclosure on its property; Alafabco filed for bankruptcy protection, but that matter was settled and the bankruptcy was dismissed; that settlement involved a second debt restructuring, evidenced by a second set of renewal notes; the parties also executed an arbitration agreement containing provisions functionally identical to the arbitration agreement signed on May 3, 1999 (collectively the "Arbitration Agreements"); the plaintiffs filed an 18-count complaint nearly a year after the execution of the second set of renewal notes; the Bank moved to compel arbitration of the dispute, based on the Arbitration Agreements; the trial court granted the motion; HOLDING:  the Supreme Court rejected the plaintiffs' characterization of the Arbitration Agreements as postdispute agreements rather than predispute agreements; the Court held that the Federal Arbitration Act ("FAA") focuses on the narrow concepts of acts, omissions, or agreements, not on concepts such as the nature of the parties' businesses or the  general course of dealings between the parties; thus, the Court held that the facts that the Bank routinely conducts business in interstate commerce, that Alafabco owns and uses materials manufactured outside the state of Alabama, and that Alafabco operates its business with funds borrowed from the Bank cannot support arbitrability of this dispute; the Court held that the interstate communications services and sundry federal regulations on which the Bank seeks to rely touch this transaction so remotely and tangentially as to warrant no consideration; the Court wrote that holding that a transaction is subject to the FAA simply by virtue of the ordinary use of interstate communication media in its furtherance, or by congressional regulation of some aspect of one party's business, would effectively transform every local transaction into a national one; the Court held that the loans which the record demonstrated were involved in interstate activities occurred three years before the occurrence of any of the events made the basis of Alafabco's complaint or of the alleged defaults that precipitated the debt restructuring and that there was no evidence indicating that Alafabco defaulted on either of those loans; thus, the Court concluded that the Bank failed to carry its burden of proof on the interstate-commerce issue because it did not show that any portion of the restructured debt was actually attributable to interstate transactions, that the funds comprising that debt originated out-of-state, or that the restructured debt was inseparable from any out-of-state projects; the Court therefore held that the trial court erred in granting the Bank's motion to compel Alafabco to arbitrate its dispute with the Bank)
*Download or view PDF version of opinion*
 
• Lewis v. Conseco Fin. Corp., 

Nos. 1010772 & 1010752 (Ala. Aug. 30, 2002)
(arbitration; interstate commerce; Billie and Jackie Lewis purchased a mobile home from WLS, Inc.; in connection with that purchase, Billie Lewis executed a purchase agreement and an installment agreement; the installment agreement, which contained an arbitration provision, was subsequently assigned to Conseco Finance Corporation, which financed the purchase; approximately one year after purchasing the mobile home, the Lewises sued Conseco, WLS, and various WLS officers and employees, asserting claims of fraud and suppression, breach of express warranty, breach of implied warranty, and violations of the Magnuson-Moss Warranty Act; both Conseco and the WLS defendants filed motions to compel arbitration; the trial court initially granted both motions, but, following the Lewises' filing of a motion to alter, amend, or vacate, which relied primarily on the decision in Ex parte Thicklin, No. 1000224 (Ala. Jan. 11,  2002), the trial court vacated its order compelling arbitration with respect to the WLS defendants;  the Lewises appealed the grant of Conseco's motion to compel arbitration, and the WLS defendants appealed the denial of their similar motion; HOLDING: the Supreme Court noted that the Lewises do not point to any evidence that contradicts the affidavit submitted by Conseco regarding Conseco's corporate status and structure or its statement that payment to WLS, Inc., was made from a bank in Minnesota, and the Lewises do not dispute that they submitted several payments to an address in Kentucky; accordingly, the Court concluded that the transaction sufficiently involved interstate commerce; because the WLS defendants relied on Conseco's involvement in the transaction to meet the interstate commerce factor, the Court likewise concluded that the WLS defendants met their burden of demonstrating that the transaction substantially affected interstate commerce; the Court rejected the Lewises' argument that the trial court erred in specifically enforcing the arbitration agreement because, they contend, WLS, Inc., breached the installment agreement; the Court held that this argument by the Lewises is in reality a challenge to the enforceability of the installment agreement as a whole and, therefore, is properly resolved by an arbitrator -- not by the court; the Court held that because the Lewises did not produce a written warranty given by the WLS defendants, any defense to arbitration stemming from the decision in Ex parte Thicklin is unavailable;  the Court held that because Ex parte Thicklin is inapplicable to the claims against the WLS defendants, it is inapplicable to the Lewises' claims against Conseco; the Court affirmed the trial court's order granting Conseco's motion to compel arbitration, and it reversed the trial court's order denying the WLS defendants' motion to compel arbitration)
*Download or view PDF version of opinion*
 
• Federal Ins. Co. v. Travelers Cas. & Surety Co., 

No. 1010895 (Ala. Aug. 30, 2002)
(insurance; duty of good faith by primary carriers and excess carriers; certified questions from the United States Court of Appeals for the Eleventh Circuit: (1) "Whether, absent any specific contractual duty, a primary insurance carrier owes a duty of good faith in each, or all, of the following duties to an excess carrier in its conduct of the defense of an insured who is insured by both: duty of good faith to settle; duty of good faith in deciding whether to settle; and duty of good faith to keep the excess carrier informed of settlement negotiations and adverse developments"; (2) "Whether an excess carrier, whose insured was "never subject to a final judgment ordering the payment of money that [the insured] personally -- and not his insurer -- would have to pay," can be equitably subrogated to the rights of the insured arising out of any of the foregoing duties against the primary carrier in the conduct of its defense of the mutual insured"; the case arises from a judgment entered on a $4.5 million jury verdict in a wrongful-death action against Pearce Construction Company, Inc. (hereinafter "Pearce"), in the Morgan Circuit Court; the case had gone to trial after the parties had failed to reach a settlement; however, there was evidence indicating that the case could have been settled before trial for $350,000; while the appeal was pending in the Supreme Court of Alabama, a settlement was reached in the amount of $4.6 million -- $1 million was paid by Pearce's primary insurer, Travelers Casualty and Surety Company (hereinafter "Travelers"), and the remaining $3.6 million was paid by Pearce's excess insurer, Federal Insurance Company (hereinafter "Federal"); Federal and Pearce sued Travelers in federal district court alleging equitable subrogation, refusal to settle resulting in extracontractual damages, negligent and/or wanton failure to settle, assumption of duties wrongfully performed, and  recovery against Travelers by way of an assignment by Pearce of claims Pearce could assert against Travelers; the district court entered a summary judgment in favor of Travelers, noting that the Supreme Court of Alabama has "not expressly adopted the doctrine of equitable subrogation between a primary and excess insurer" and that the Supreme Court of Alabama has  not decided "whether a primary insurance carrier owes a duty of good faith to an excess insurance carrier of its insured"; HOLDING: the Supreme Court held that, in the absence of contrary contractual obligations, a primary insurer owes no duty of good faith to an excess insurer with respect to the settlement of a lawsuit against an insured; the Court concluded that the reasons which undergird Alabama's tort of bad faith, currently available to insureds against their insurers, are not present in the primary-insurer/excess- insurer scenario where, as here, contractual duties with regard to settlement of a claim are absent; therefore, the Court answered the first question in the negative; the Court concluded that, because an insured will never be able to assert a bad-faith-failure-to-settle claim against an insurer where the insured is never subject to a final judgment ordering the payment of money that the insured personally -- and not his insurer -- would have to pay, equitable subrogation is not available to an excess insurer whose insured is subject to no such final judgment; therefore, the Court answered the second question in the negative)
*Download or view PDF version of opinion*
 
• Kid's Care, Inc. v. Alabama Dep't of Human Resources, 

No. 1011272 (Ala. Aug. 30, 2002)
(standing; justiciability; jurisdiction; the plaintiffs, Kid's Care, Inc. and Rainbow Daycare Center, Inc., operate day-care centers and receive federal and state subsidies for some of the children in their centers to help offset the cost of day care for those children; the plaintiffs allege that, over the years, annual adjustments to the reimbursement rates provided to the day care operators have supposedly been made based upon the results of annual new market rate surveys that have been performed and that these surveys are sent to actual day care providers in the state of Alabama to ascertain their actual costs of providing day care services to the subsidy recipient children; Alabama Act 98-496,  the annual appropriations act for fiscal year 1999, requires that such a local market rate survey shall be established on a biennial basis based upon a representative sample of licensed childcare providers; Alabama Act 99-441, the annual appropriations act for fiscal year 2000, also requires that the local market rate study survey be performed, but on an annual basis, and it too provides that a representative sample of licensed childcare providers be used and that the reimbursement rates be established at the 75th percentile of the market rate study survey; Alabama Act 2000-408,  the annual appropriations act for fiscal year 2001, requires the same annual local market rate study survey and 75th percentile rate adjustment; after the lawsuit was filed, the Alabama Legislature removed the requirement for the annual market rate study survey and resulting adjustment from Appropriations Act, for the fiscal year ending in 2002, Act 2001-52; the trial court entered a summary judgment in favor of the defendants Alabama Department of Human Resources ("DHR") and its commissioner, Bill Fuller, and DHR employees Frances Arnold and Margaret Bonham, individually, and in their official capacities, on all claims; HOLDING: the Supreme Court noted that while the plaintiffs allege they are child-care providers, they do not state whether they have been reimbursed for child- care services at "their published rate for the particular category of care" or at "the 75th percentile of the local market rate"; the Court noted that because the plaintiffs are entitled to only the lesser sum of those two rates, it cannot ascertain how they could be injured by the failure of the DHR or its employees to establish the local market rate; the Court held that the plaintiff's lacked standing because they do not allege any injury, and the trial court therefore lacked jurisdiction; the Court held that the trial court's judgment was void for lack of jurisdiction and that a void judgment will not support an appeal; therefore, the Court dismissed the appeal)
*Download or view PDF version of opinion*
 
• Grayson v. Hanson, 

No. 1011352 (Ala. Aug. 30, 2002)
(real estate; action to quiet title; Troy Grayson alleges that, on December 1, 1949, his father, T.L. Grayson, purchased a parcel of property, which included the property in question; according to Grayson, on October 27, 1955, his father sold a portion of the property, approximately 48.63 acres, to F.C. Huyck & Sons, a New York corporation; Grayson alleges, his family constructed a fence to separate the property sold to F.C. Huyck & Sons from the property his family retained; according to Grayson, his father used the property within the perimeter of the fence as additional farmland until his death in 1981; Grayson alleges that, on January 9, 1982, the property formerly owned by his father was conveyed to him; Grayson alleges that, since 1949, he and his family have exercised open, notorious, hostile, continuous, peaceable, and exclusive possession of the disputed property; according to Horace B. Hanson III and others (hereinafter referred to collectively as "the Hansons"), the disputed property was a part of the old "Hanson Homeplace," which was mortgaged to the Federal Land Bank of New Orleans in 1922; the Hansons allege that the Land Bank foreclosed on the Hanson Homeplace, but the Hanson Homeplace was later reconveyed to the Hanson family; the Hansons allege that they have paid property taxes on the disputed property for the past 23 years;  the parties agreed to settle the action after approximately four hours of testimony during a bench trial; the Hansons' attorney read the agreement into the record; the agreement provided that Grayson would quitclaim to the Hansons "tract number three as described in the Tax Assessor's records," which consisted of the west half of the disputed property, and that the Hansons would quitclaim to Grayson "the property described on Exhibit Number 11," which consisted of the east half of the disputed property; the agreement also provided that Grayson would grant the Hansons a 20-foot-wide-easement, which was to be located on the south side of Grayson's property line; the Hansons and Grayson told the trial court that after they agreed upon the "flagging" of the property by a surveyor, indicating the location of the easement and the boundary lines of their respective parcels of the disputed property, they would finalize the agreement and the trial court could then enter an order based upon that agreement; the parties could not agree on an additional .32 acres to the property Grayson had agreed to quitclaim to the Hansons and the location of the easement, Grayson filed a motion to set aside the agreement, alleging that both parties had agreed at trial that there would be no agreement until both parties agreed on the surveyor's flagging and that both parties had not agreed on the flagging; however, trial court entered a final judgment, incorporating into that judgment the Hansons' third proposed agreement; Grayson appealed, arguing that the trial court erred when it denied his motion for a summary judgment and when it incorporated the Hansons' proposed agreement into its final judgment; HOLDING: the Supreme Court noted that settlement agreements, like other agreements, are not valid when there has been no meeting of the minds with regard to the final terms of the agreement or when the parties have merely agreed to later agree; the Court held that the transcript of the parties' discussion of the proposed settlement agreement unambiguously reflects that the agreement was not final until both Grayson and the Hansons agreed on the location of the easement and the boundary lines of their respective properties as established by the surveyor's flagging; the Court concluded that each party had to agree upon the flagging before it became bound by the settlement agreement; thus, the Court held that the trial court erred when it failed to grant Grayson's motion to set aside the agreement and entered the judgment incorporating the agreement submitted by the Hansons; the Court did not reach the trial court's order denying Grayson's motion for a summary judgment as to the original complaint, because he amended his complaint after the trial court denied the motion and did not renew the motion)
*Download or view PDF version of opinion*
 
• Ex parte Little, 

No. 1011563 (Ala. Aug. 30, 2002)
(criminal; petition for writ of certiorari denied without opinion; special concurring opinion by Chief Justice Moore to make it clear that Act No. 2001-977, Ala. Acts 2001, effective December 1, 2001, permits Ala. Code §13A-5-9(c)(3) to be applied retroactively "based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court," and to note that Terry Little did not submit to the court "evaluations performed by the Department of Corrections")
*Download or view PDF version of opinion*
 
• Ex parte Ballard, 

No. 1011866 (Ala. Aug. 30, 2002)
(criminal; petition for writ of certiorari denied without opinion; dissenting opinions by Justice Johnstone and Justice Harwood; the issue as stated by Justice Johnstone is whether Department of Public Safety ("DPS") records, certified only by an officer of that department, are admissible as evidence of prior convictions in a felony DUI trial; the issue as stated by Justice Harwood is "[w]hether the DUI convictions, certified as Public Records of the Alabama Department of Public Safety, were properly admitted to be used as enhancement for sentencing on a Felony DUI, when such records were not certified by the lower court that entered the judgment of conviction.")
*Download or view PDF version of opinion*
 
• Ex parte Skinner, 

No. 1011869 (Ala. Aug. 30, 2002)
(criminal; petition for writ of certiorari denied without opinion; dissenting opinion by Justice Johnstone stating that the Court should grant the writ and review the decision by the Court of Criminal Appeals to the extent that it overrules Williams v. State, 665 So.2d 955 (Ala. Crim. App. 1994), and to the extent that it holds the omission of allegations of enhancement factors in an indictment not to be a jurisdictional bar to enhancement of a sentence)
*Download or view PDF version of opinion*

Back to top

Opinions Released August 23, 2002

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  AUGUST 23, 2002 

 
• Byrd v. Bentley, 

No. 1010528 (Ala. Aug. 23, 2002)
(employment; statute of frauds; securities; evidence; claim of breach of contract arising out of an employment contract; Mark Bentley sued Wood Byrd, and Bacadam, Inc. asserting claims of fraud and breach of contract and alleging that an oral contract of employment existed between him and the defendants in which he was to receive an 8 percent commission from his sales and a 30 percent ownership interest in Bacadam in the event that he met certain goals in increasing Bacadam's business; Bentley also asserted that the parties had agreed that, in order to expand Bacadam's business, he would receive a 50 percent ownership interest in any company he located for Bacadam to purchase, and that he had arranged for the purchase by Bacadam of another company, Reach Advertising; Bentley further alleged that Byrd sold all the assets of Bacadam and purchased Reach Advertising, but that Bentley never received an ownership interest in Bacadam or Reach Advertising; the defendants asserted counterclaims alleging breach of contract, fraud, and violations of the Alabama Trade Secrets Act, Ala. Code §8-27-1 et seq., based upon their allegations that Bentley had not devoted his full attention to Bacadam as agreed and that he had engaged in business in competition with Bacadam; at trial at the close of the defendants' case, Bentley filed a motion for a judgment as a matter of law in regard to the defendants' counterclaims, and  the trial court granted that motion; Bentley voluntarily dismissed his fraud claim; the jury returned a verdict awarding Bentley $1,350,000.00; the trial court denied the defendants' postjudgment motions; HOLDING:  the Supreme Court held that the employment agreement was an employment contract, not a contract for the sale of securities, and was not subject to the Statute of Frauds, Ala. Code §8-9-2; the Court concluded that there was sufficient evidence to support the jury's verdict and the trial court's denial of the defendants' postjudgment motion; the Court held that the trial court did not err in admitting a duplicate audio recording; the Court affirmed the judgment)
*Download or view PDF version of opinion*
 
• Runyans v. Littrell, 

No. 1010803 (Ala. Aug. 23, 2002)
(dram shop; Open House Party statute, Ala. Code §13A-11-10.1; John Runyans, Sr. ("Runyans"), brought this action under the Dram Shop Act, Ala. Code §6-5-71, seeking to recover from Allan Littrell and Penny Littrell ("the homeowners") damages resulting from injuries to Runyans's minor son, John Runyans, Jr. ("Jay"); the homeowners allowed their daughter to have a high school graduation party at their residence; seventeen-year-old Jay was one of approximately 150 to 200 students at the party; some of the students, including Jay, brought alcoholic beverages to the party; the homeowners did not provide the minors with alcoholic beverages; many of the students, including Jay, openly consumed alcoholic beverages at the party; the homeowners were present during the party and saw persons they knew to be minors consuming alcoholic beverages; during the party, Jay fell from a porch of the Littrells' house while holding a glass bottle in his hand; the bottle shattered, resulting in serious lacerations to his left wrist, which required three surgeries to repair; the trial court entered summary judgment in favor of the homeowners; HOLDING: the Supreme Court held that Ala. Code §13A-11-10.1 does not impose Dram Shop Act liability upon homeowners who did not provide the minor with the alcoholic beverages the minor consumed, with their knowledge, on their premises; thus, the Court held that the trial court properly entered the summary judgment for the homeowners)
*Download or view PDF version of opinion*
 
• Ex parte Avery, 

No. 1011764 (Ala. Aug. 23, 2002)
(election; criminal investigation; voter fraud; dispute over the possession of certain election materials from the Democratic primary election in Hale County held in June 2002; after the June 2002 Democratic primary election, James "Buster" Brown, the losing candidate for Hale County commissioner, district four, filed an election contest with the Hale County Democratic Party Executive Committee; the Democratic Executive Committee requested that Probate Judge Avery turn over to it all election materials from the June election; Judge Avery did not comply with the Democratic Executive Committee's request because he had received information regarding voting irregularities in the June election; the Hale County district attorney filed a motion in the Hale Circuit Court requesting that Judge Avery be instructed to turn over the election materials to the district attorney's office so that it could conduct a criminal investigation of allegations of voter fraud in the June election; Hale Circuit Judge Marvin W. Wiggins issued an order requiring that all election materials from the June election be given to the circuit clerk of Hale County; Judge Avery did not comply with Judge Wiggins's order; Judge Wiggins then entered a second order (1) holding Judge Avery in contempt of court for failing to turn over the election materials, (2) issuing a warrant for Judge Avery's arrest, and (3) ordering that the election materials be seized by law-enforcement officials and taken to the clerk's office; the district attorney filed an objection to Judge Wiggins's order; Judge Avery then filed a declaratory-judgment action in the Hale Circuit Court requesting that that court determine the appropriate disposition of the election materials; the district attorney subpoenaed Judge Avery to appear before the district attorney and to provide any and all absentee ballots, affidavits, applications, and assorted documents pertaining to the June election; Judge Avery then petitioned the Supreme Court for an emergency writ of mandamus directing Judge Wiggins to vacate his orders; four days later, James "Buster" Brown, the candidate contesting the June election, filed a motion to dismiss his contest; HOLDING:  the Supreme Court granted the writ of mandamus; the Court held that the district attorney has a right to the election materials because he is conducting a criminal investigation of the June election; the Court held that Judge Wiggins had no jurisdiction or authority to issue an order directing that the election materials be given to the clerk; the Court noted that although the Democratic Executive Committee would be entitled to the election materials if the election to which those materials were pertinent was being contested by a candidate in the election, the contest has been dismissed, and the Democratic Executive Committee has no lawful interest in the election materials; the Court noted that Judge Wiggins failed to submit a response to this petition for the writ of mandamus after the Court ordered him to answer, so the allegation that Judge Wiggins erred in issuing the two orders was deemed admitted by Judge Wiggins)
*Download or view PDF version of opinion*

Back to top

Opinions Released August 16, 2002

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  AUGUST 16, 2002 

 
• Sessions v. Nonnenmann, 

No. 1000628 (Ala. Aug. 16, 2002)
(personal injury; negligence; premises liability; construction; civil procedure; the plaintiff, a plumbing subcontractor, sued the general contractor for damages resulting from severe injuries the plaintiff suffered when he fell through an opening for a stairwell in the second floor of the building the parties were constructing; the trial court entered summary judgment for the defendant general contractor; HOLDING: the Supreme Court affirmed the summary judgment; in response to the plaintiff's argument that the summary judgment is erroneous because the defendant's motion for summary judgment failed to contain the narrative summary of undisputed material facts required by Rule 56(c)(1), the Court noted that defendant's motion for summary judgment did incorporate by reference and attachment the narrative summary of undisputed facts contained in another motion for summary judgment filed by another party who is not before us in this appeal, and the Court said that Rule 56(c)(1) allows attachments and does not prohibit incorporation by reference; the Court held that the record contains abundant undisputed evidence that the hazard of the unguarded stairwell was open and obvious; the Court held that a general contractor is not responsible to a subcontractor for injury from defects or dangers which the subcontractor knows of, or ought to know of; the Court noted that the premises owner has no duty to warn the invitee of open and obvious defects in the premises, which the invitee is aware of or should be aware of through the exercise of reasonable care; the Court held that the plaintiff failed to demonstrate that the violation of an OSHA regulation would translate into a duty recognized by Alabama law)
*Download or view PDF version of opinion*
 
• Hornady Truck Line, Inc. v. Meadows, 

Nos. 1010955, 1010956, 1011005 & 1011006 (Ala. Aug. 16, 2002)
(wantonness; negligence; negligent entrustment; excessiveness of compensatory damages; consolidated cases all arising out of a single automobile accident; the defendants are Stephen Lawrence Martin, the Alabama Education Association ("AEA"), and Hornady Truck Line, Inc. ("Hornady"); the jury found that negligence and wantonness on the parts of Martin, the AEA, and Hornady combined to cause the accident and the plaintiffs' injuries; the following compensatory damages were awarded to the plaintiffs: Don Meadows – $2,000,000, Sandra Meadows – $1,000,000, Chantz Meadows – $1,500,000, and Mildred Dorman – $1,750,000; the injuries to the Meadowses and Dorman occurred when an  automobile, owned by the AEA and being driven by Martin, an AEA employee acting in the line and scope of his employment, which was headed north on Interstate 65, crossed the grass median separating the northbound and southbound lanes of traffic, entered the southbound lane, and crashed into the Meadowses' vehicle, which was traveling in the southbound lane; the Meadowses' vehicle was being driven by Don at a speed of between 50 and 55 miles per hour (less than the 70 miles per hour posted speed) because of weather conditions; Don testified that the AEA vehicle looked like a "silver blur" before it crashed into the Meadowses' vehicle, injuring the occupants –  Don, Sandra, and Chantz; Mildred Dorman, a passenger in the front seat of the AEA vehicle, was also injured; it is undisputed that Don could have done nothing to avoid the accident;  Lonnie Johnson, an employee of Hornady who was driving a Hornady truck and acting within the line and scope of his employment, and Martin, who was driving an AEA-owned Ford Crown Victoria automobile, were both traveling north on I-65 during a severe thunderstorm; Martin was driving the AEA automobile at a speed of a little less than 70 miles per hour, or almost 20 miles per hour beyond the speed at which total hydroplaning can occur;  Johnson testified that, although he was driving the Hornady tractor-trailer truck at a speed of 65 miles per hour, he was aware that "[y]ou can hydroplane at 45 miles an hour"; despite the facts that the vehicles were approaching a bridge and that visibility was poor as a result of the rain and the spray from the tractor-trailer truck, Martin elected to pass the truck; as Martin was passing the Hornady tractor-trailer truck, in the spray of standing water thrown up by the tractor-trailer truck's nine left-side tires, his vehicle collided with the tractor-trailer truck; according to Martin and Dorman, as Martin was attempting  to pass the Hornady truck, the truck moved into the left lane without warning, struck the AEA vehicle on the passenger side, and knocked the vehicle across the grass median into the southbound lanes of I-65 and directly into the path of the Meadowses' vehicle; HOLDING: the Supreme Court held that the jury could reasonably have found that the speeds at which Martin and Johnson were driving were unsafe, although they were both driving within the posted speed limit; the Court held that the jury could have found that Johnson made a lane change without checking his side-view mirrors to ensure that the lane into which he was moving was clear and that he moved into the lane occupied by the AEA vehicle; the Court held that the jury could also have found that Martin, once Johnson started to encroach into his lane, instead of moving further to the left or slowing down to make room for the truck or blowing his horn, hydroplaned because of his speed, his use of cruise control (i.e., his foot was not on the pedals), poor visibility, and the wet road conditions, and lost control of his vehicle and collided with the Hornady truck, and then with the Meadowses' vehicle; the Court held that because Martin knew the road conditions, knew his speed when he opted to pass Hornady's tractor-trailer truck, and knew that if he hydroplaned in the direction of the truck he would put Dorman, who was on the right side of the AEA vehicle next to the tractor-trailer truck, in harm's way; the Court held, therefore, that there was sufficient evidence to allow the case to go to the jury against Martin and the  AEA on the wantonness claim; the Court held that speed of the Hornady tractor-trailer truck, coupled with the weather conditions, the failure of the driver of the tractor-trailer truck to check his side-view mirrors, Martin's testimony that without warning the tractor-trailer truck moved into the left lane and into the AEA automobile, was sufficient to permit the trial court to submit the wantonness claim against Hornady to the jury; the Court held that the trial court did not err in submitting the negligent-entrustment claim against the  AEA to the jury because Martin had been cited for speeding six times since July 1996, because Martin's driver's license had been suspended once during that time, because on all of those occasions Martin was driving an AEA vehicle, and because the AEA was notified of Martin's violations; the Court reviewed the evidence presented supporting the injuries, medical expenses, pain, and suffering of the plaintiffs and affirmed the damage awards)
*Download or view PDF version of opinion*
 
• Campbell v. Naman's Catering, Inc., 

No. 1011207 (Ala. Aug. 16, 2002)
(claims of breach of contract, fraud, and conversion; Eric T. Campbell  was employed by Naman's Catering, Inc. from January 1999 to October 2000; during his employment, Campbell elected to have Naman's withhold approximately $65 per month from his earnings to pay the premiums for life and disability insurance; Campbell's insurance coverage began in March 1999, but lapsed in February 2000, because, without Campbell's knowledge, Naman's had ceased paying the premiums in October 1999; although Naman's discontinued paying the premiums, it continued to withhold $65 per month from Campbell's pay through May 2000; Campbell also had elected in January 2000 to have Naman's withhold $50 per week from his earnings to be deposited into a Christmas Club savings account; no deposits were made to the account from the end of March 2000 to the end of October 2000; in June 2000, Campbell discovered that Naman's had ceased paying the premiums on his insurance; on October 25, 2000, after Campbell had retained an attorney, Naman's reimbursed Campbell $518.06, which represented the premium payments it had withheld from his earnings but had not paid to the insurer plus interest at the rate of 10%; additionally, before Campbell filed his complaint, Naman's had reimbursed Campbell all of the money it had withheld for his Christmas Club account, but that reimbursement included no amount representing interest; the trial court entered summary judgment in favor of Naman's; HOLDING: the Supreme Court held that summary judgment was proper as to the breach-of-contract claim relating to the insurance because all of the money withheld by Naman's was returned to Campbell (plus interest at the rate of 10%), because Campbell filed no insurance claim that could have been paid under the policies, and because Campbell has provided no evidence of damages stemming from the failure to pay the insurance premiums; the Court held that the trial court erred in entering summary judgment as to the breach-of-contract claim relating to the Christmas Club account because Campbell produced substantial evidence of damages -- namely, the interest that he lost when the money withheld from his paycheck was not deposited into Campbell's Christmas Club account; the Court held that the trial court erred in entering summary judgment on Campbell's promissory fraud claim because he presented substantial evidence of intent to deceive or not to perform in the way of affidavits of other employees of Naman's indicating that Naman's had made it a practice to promise its employees that it would withhold money from the employees' paychecks and use the withheld moneys to pay insurance premiums and to fund Christmas Club accounts but would then, at some point, cease releasing the withheld moneys for those purposes; the Court held that the trial court did not err in entering a summary judgment in favor of Naman's with respect to Campbell's conversion claim because Campbell did not produce substantial evidence indicating that the money Campbell claims he is entitled to is "specific money capable of identification," as required when one asserts a claim of conversion of money)
*Download or view PDF version of opinion*
 
• Ex parte Canidate, 

No. 1011656 (Ala. Aug. 16, 2002)
(appellate procedure; petition for the writ of certiorari denied without opinion; concurring opinion by Justice Johnstone stating that while the decision by the Court of Civil Appeals appears to conflict with Carlisle v. State, 512 So.2d 150 (Ala. Crim. App. 1987), quoted at pages 1-7 of the petitioner's brief, the petitioner failed to invoke Rule 39(a)(1)(D), Ala. R. App. P.,  "conflict" as a basis for certiorari jurisdiction)
*Download or view PDF version of opinion*

Back to top

Opinions Released August 9, 2002

• DECISION ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  AUGUST 9, 2002 

 

 
 
 

No written opinions were released by the Supreme Court of Alabama on August 9, 2002.

Back to top

Opinion Released August 2, 2002

• DECISION ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  AUGUST 2, 2002 

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

No. 1010273 (Ala. Aug. 2, 2002) (plurality opinion) (opinion withdrawn and substituted with a majority opinion on Nov. 22, 2002, on rehearing)
(taxation; property tax referendum; at a meeting of the Chambers County Commission held on August 20, 2001, the Chambers County Board of Education ("the Board"), in conjunction with the Board of Education for the City of Lanett, presented a resolution requesting that the Commission call a special election to propose the imposition of a special school district tax in Chambers County; the resolution specified that the election be held on November 13, 2001, and that the assessment be at the rate of 5 mills and that it be imposed for 20 years; the Commission did not act on the resolution but instead tabled the issue; the Commission noted that it did not have the money to fund such a special election and that funds for such a special election had not been included in the budget for Chambers County; the day after the Commission tabled the issue, the Board instituted this action, seeking a writ of mandamus compelling the Commission to hold the special election; the Board asserted that, pursuant to Amendment No. 3 and Amendment No. 202 to the Alabama Constitution of 1901, the Commission was required to call the special election, under the terms requested by the Board, for the purpose of considering the special school district tax; the Board asserted that, Amendment No. 3 and Amendment No. 202 authorized it to set the rate and term of any assessment considered for public school purposes and to specify the date for the special election;  the Board of Education for the City of Lanett was added as a petitioner; the trial court entered an order issuing the writ of mandamus and holding that Amendment No. 3 and Amendment No. 202 of the Alabama Constitution required the Commission to call a referendum in accordance with the terms in the Boards' resolution; the trial court held that the Commission could not ignore its constitutionally mandated duty, regardless of the financial ramifications of performing that duty; PLURALITY OPINION: the plurality opinion held that the Boards have no authority to specify the rate or the term of a special ad valorem assessment proposed pursuant to Amendment No. 202; the plurality opinion further concluded that the Boards have no authority to specify the date upon which such a special assessment must be presented to the qualified voters of the county for consideration; the plurality opinion held that the Commission, as the governing body of Chambers County, is the only entity empowered to levy and collect the taxes authorized by Amendment No. 202 of the Alabama Constitution of 1901; the plurality opinion concluded that the last sentence of Amendment No. 202 contains an obvious, self-correcting scrivener's error, and that that sentence should be corrected to read as follows:  "The election provided for herein shall be called, held, conducted, paid for, and governed otherwise in the manner provided for an election on the special county tax authorized in constitutional amendment III.";  the Court reversed the trial court's order of September 6, 2001, issuing the writ of mandamus)
*Download or view PDF version of opinion*
   
--(The substituted opinion released on rehearing on Nov. 22, 2002, is also available on the web site of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--

Back to top

Opinions Released July 26, 2002

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JULY 26, 2002 

 
• State Bd. of Educ. v. Waldrop, 

No. 1010120 (Ala. July 26, 2002)
(class action; attorneys' fees; catalyst theory; the "common-benefit" exception to the American rule governing the recovery of attorney fees;  in 1996, Ronald Waldrop filed an action in federal court, alleging that the discretion granted the local boards of education by Act No. 95-314, Ala. Acts 1995, known as the Foundation Program Fund Act and codified at Ala. Code § 16-13-230 et seq. (amended in 1997) (the act before its amendment is hereinafter referred to as "the Foundation Act") constituted an equal-protection violation pursuant to 42 U.S.C. §1983; Waldrop and the defendants subsequently entered into a joint stipulation, agreeing to dismiss, without prejudice, the pending federal action; in 1997, Waldrop filed an action in the state court, in which he asserted the same claims alleged in his federal action; Waldrop sought a judgment declaring a portion of the Foundation Act unconstitutional, back pay with interest, and an award of attorney fees and costs; the AEA proposed legislation that would modify the Foundation Act to eliminate that portion of the Foundation Act that granted a local board discretion to pay its teachers less than the State-mandated salary; this legislation was introduced in the Legislature on February 4, 1997, two weeks before Waldrop filed his state-court action; the legislation was approved by the Governor on April 29, 1997, Act No. 97-238, Ala. Acts 1997 (codified at Ala. Code §16-13-231.1)), after Waldrop had initiated his state-court action but before anything of substance had occurred in the action; more than one and one-half years after the amendment to the Foundation Act became law, the trial court entered a summary judgment in Waldrop's state-court action, declaring unconstitutional that portion of the Foundation Act that granted local boards the discretion to pay teachers an amount less than the State-mandated salary; on February 6, 2001, the trial court issued a "Final Order" that reaffirmed its holding as to the unconstitutionality of the Foundation Act and calculated damages for the plaintiff class at $91,508,074; the trial court, however, held that it was precluded from awarding the damages of $91,508,074, because the Board was protected by sovereign immunity from an award that would impact the State treasury; the trial court's order was silent on Waldrop's request for an attorney-fee award; Waldrop filed a Rule 59, Ala.R.Civ.P., motion, to alter, amend, or vacate the judgment requesting that the trial court reconsider its refusal to award damages to the plaintiff class; Waldrop's motion did not request the trial court to reconsider his claim for attorney fees; the trial court denied Waldrop's Rule 59 motion by an order entered on March 14, 2001; on April 26, 2001, Waldrop filed a notice of appeal, challenging the trial court's finding that sovereign immunity barred the award of damages against the Board; Waldrop subsequently withdrew his notice of appeal, asserting that because the trial court had not disposed of his pending request for attorney fees, the February 6, 2001, order was not a final order and therefore was not appealable; on June 21, 2001, Waldrop moved the trial court for a hearing on his attorney-fee request; on September 6, 2001, the trial court entered an order awarding Waldrop and members of the plaintiff class attorney fees in the amount of $287,500 and expenses in the amount of $13,303; the trial court concluded that Waldrop's action had prompted the Legislature to amend the Foundation Act and that the action had benefited the general public and rendered a public service; the defendants (hereinafter referred to as the "Board") appealed; HOLDING: the Supreme Court reversed the trial court's order requiring the Board to pay Waldrop's attorney fees; the Court held that because the trial court in this case did not receive ore tenus evidence regarding Waldrop's request for an award of attorney fees, it reviewed de novo the trial court's award of attorney fees; the Court Court concluded that the February 6, 2001, order entered in this case was a final decision on the merits, but the Court held that fact does not completely resolve the issue whether a trial court -- after it has issued a final order on the merits and awarded costs -- may consider a request for attorney fees, where the attorney-fee issue was pending at the time the case was decided on the merits but was not expressly reserved for later consideration; the Court held that the trial court's subsequent announcement that it did not intend to issue a final order until after the issue of attorney fees "was cleared up" could be interpreted as a nunc pro tunc amendment of its judgment, and if so, the trial court was not divested of jurisdiction when it issued its order awarding attorney fees; additionally, the Court said that it will not interpret the trial court's silence in its February 6, 2001, order as to Waldrop's request for attorney fees as a denial of that request, and stated that because it is inclined to reach the merits of the issue whether the trial court properly awarded attorney fees, it is unprepared to dispose of this case on the murky issue whether the trial court lacked jurisdiction to enter its September 6, 2001, order awarding attorney fees; the Court held that the record does not support the conclusion that Waldrop's efforts resulted in a common benefit to Waldrop and to the general public and that Waldrop's lawsuit rendered a public service because (1) Waldrop presented absolutely no evidence tending to establish any relationship between the filing of this action and the amendment of the Foundation Act, (2) even if the record adequately documented Waldrop's prior lawsuit and the Court accepted the argument that his filing of the federal lawsuit was the catalyst that prompted the AEA to review its position regarding the Foundation Act, the Court has previously rejected a similar argument in Battle v. City of Birmingham, 656 So.2d 344 (Ala. 1995), (3) the legislation was introduced in the Legislature two weeks before Waldrop's lawsuit was filed, (4) the trial court's finding that Waldrop's lawsuit resulted in a common benefit is unsupported by any evidence and could only be speculation as to what prompted the Legislature to amend the Foundation Act, (5) Waldrop and certain other public schoolteachers benefited from the amendment to the Foundation Act, but not necessarily the general public, and (6) even if the Court attributed some tangential benefit to the Board as a result of the amendment to the Foundation Act, the Board would be required to pay Waldrop's attorney fees with funds from its annual budget -- money allocated to the Board for the purpose of educating children enrolled in Alabama's public schools  -- and any award of attorney fees against the Board reduces the funds available for that purpose, making an award of attorney fees under the common- benefit exception is inappropriate in this case; the Court did not hold that attorney fees may never be awarded against the State Board of Education or against the local boards under a common-benefit theory)
*Download or view PDF version of opinion*
 
• Ex parte Carroll, 

No. 1010546 (Ala. July 26, 2002)
(criminal; capital murder; sentencing; Taurus Carroll and Mack Dailey robbed a dry-cleaning and coin-operated-laundry business in Birmingham on April 9, 1995; during the robbery, Betty Long, one of the owners of the business, was shot and later died as a result of the gunshot wound; the jury, by a vote of 10-2, recommended that Carroll be sentenced to life imprisonment without the possibility of parole, but the trial court overrode the jury's recommendation and sentenced Carroll to death; the case was appealed and remanded several times for resentencing, and the trial court again sentenced Carroll to death; HOLDING:  the Supreme Court held that the trial court improperly considered Carroll's incarceration for youthful-offender adjudications in negating the mitigating circumstance of no significant criminal history; the Court found, in light of the wish of the victim's family that Carroll not be sentenced to death, but that he instead be sentenced to life imprisonment without parole, that it was difficult to reconcile the trial court's reliance upon the "pain of the victim's family" as one of its reasons for overriding the jury's recommendation; the Court held that it appears that the trial court gave insufficient weight to the jury's recommendation that Carroll be sentenced to life imprisonment without parole, and in this case, the recommendation was entitled to considerable weight; the Court further explained the effect of a jury's recommendation of life imprisonment without the possibility of parole; the Court concluded that the trial court's override in this case of the jury's recommended sentence of life imprisonment without parole and that court's subsequent sentence of death were improper under the circumstances presented here; the Court reversed the judgment of the Court of Criminal Appeals as to Carroll's sentence and remanded the case for that court to instruct the trial court to resentence Carroll following the jury's recommendation of life imprisonment without the possibility of parole; the Court stated that issues as to the continuing validity of its stated conclusions regarding the effect of a jury's recommendation of life imprisonment without the possibility of parole and the authority of the trial court to override such a sentence and the scope of the appellate court's review in light of Ring v. Arizona, 122 S. Ct. 2428 (2002), must await another day)
*Download or view PDF version of opinion*

Back to top

Opinions Released July 12, 2002

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

 
• Mostella v. N & N Motors, 

No. 1010121 (Ala. July 12, 2002)
(arbitration; interstate commerce; sale of used automobile; Deborah Mostella visited N & N Motors in Alabama to purchase a used vehicle; Shane Nunn assisted Mostella in her purchase; Mostella ultimately decided to purchase a used 1989 Nissan Maxima automobile; Mostella traded in a 1987 Cadillac DeVille automobile; at the time of her purchase, the odometer on the Maxima showed that the car had been driven 108,000 miles; among the sale documents relating to Mostella's purchase of the Maxima is a document entitled "Alternative Dispute Resolution Agreement By Binding Arbitration"; shortly after purchasing the Maxima, Mostella discovered that the previous owner of the Maxima had brought it to that Express Oil Change location for servicing in July and in August 2000, and that the mileage noted on those occasions was 172,578 and 177,148 miles, respectively; Mostella then sued N & N Motors and Nunn, alleging fraudulent misrepresentation and fraudulent suppression concerning the actual mileage of the vehicle; N & N Motors and Nunn filed a motion to dismiss the action on the sole ground that, based on the arbitration agreement, Mostella's claims should be submitted to binding arbitration; other than the arbitration agreement, N & N Motors and Nunn submitted no evidence in support of their motion; at a hearing on the motion to dismiss, both Nunn and Mostella testified; Nunn testified that the Maxima had been manufactured in Japan, but that N & N Motors had acquired it from an Alabama resident as a trade-in vehicle; Nunn also testified that N & N Motors sold the Cadillac automobile Mostella had traded in at an auction held in Attalla, but he did not know who purchased the Cadillac; Mostella testified that she resides in Ashville, that after she purchased the Maxima she made one trip to Mississippi in it, and that she has driven it several times on Interstate Highway 65 ("I-65") within Alabama; the trial court dismissed the action with prejudice because it concluded that Mostella's claims were subject to arbitration; HOLDING: the Supreme Court held that an order compelling arbitration should not constitute an adjudication on the merits and that, therefore, a trial court should not dismiss with prejudice a case in which arbitration is ordered; the Court concluded that  N & N Motors and Nunn have not met their burden of introducing evidence proving that Mostella's purchase of the Maxima involved a transaction that substantially affected interstate commerce; the Court held that the sale by an Alabama automobile dealership of a used motor vehicle to an Alabama resident with financing by an Alabama entity was not a transaction that had a substantial effect upon interstate commerce; thus, the Court held that the trial court erred in dismissing Mostella's complaint)
*Download or view PDF version of opinion*
 
• Moore v. GAB Robins N. Am., Inc., 

No. 1010298 (Ala. July 12, 2002)
(summary judgment; Michael Moore sued insurance adjuster Wayne Hughes, Burkholder Insurance, Inc., GAB Robins North America, Inc., and certain underwriters at Lloyd's of London, based on the denial of his insurance claim for loss of use of his beach condominium during Hurricane Georges in the fall of 1998; the defendants each moved individually for a summary judgment, providing as support for the motions Moore's deposition testimony and the insurance policy issued by Lloyd's of London, which they allege did not cover loss of use; the trial court set a hearing date of September 21, 2001, for the summary-judgment motions; however, on August 13, 2001, Moore filed a petition for the writ of mandamus with the Supreme Court, seeking an order compelling GAB Robins North America, Inc., to produce documents requested in Moore's third amended request for production; the trial court sent all parties a statement that the hearing on the summary-judgment motions would not be set until after the Supreme Court ruled on Moore's petition for the writ of mandamus; however, on September 19, 2001, before the Supreme Court ruled on Moore's petition for the writ of mandamus, the trial court granted GAB Robins's and Wayne Hughes's motions for a summary judgment, and on September 24, 2001, it granted the summary-judgment motions filed by Burkholder Insurance and Lloyd's of London; Moore argued that the trial court's action in notifying the parties that it was suspending the hearing on the summary-judgment motions, originally set for September 21, 2001, until the Supreme Court ruled on the petition for the writ of mandamus, of necessity, also suspended Moore's two-day deadline for serving his materials in opposition to the summary-judgment motions, because Rule 56(c)(2), Ala.R.Civ.P., states that statements or affidavits in opposition to a motion for a summary judgment must be served at least 2 days before the hearing; HOLDING: the Supreme Court held that, while he may not ultimately prevail, Moore deserves the opportunity to raise a genuine issue of material fact through his opposition to the motions for a summary judgment; the Court said that to cut off Moore's opportunity to make a showing of disputed facts to the trial court is to prevent him from having his day in court; the Court reversed the summary judgments entered by the trial court)
*Download or view PDF version of opinion*
 
• Liberty Nat'l Life Ins. Co. v. Daugherty, 

No. 1010751 (Ala. July 12, 2002)
(defamation; employment; noncompetition agreement; Dean Daugherty was employed by Liberty National  as an insurance agent for more than 12 years; Daugherty serviced the insurance needs of the  community of Citronelle for six or seven years; Daugherty was one of Liberty National's top insurance agents, and he formed close relationships with his  customers in Citronelle; during his employment, Daugherty signed a noncompetition agreement, pursuant to which he agreed that if his employment with Liberty National terminated, he would not sell life insurance to Liberty National customers for a full year after the termination of his employment; on November 1, 1993, Daugherty resigned from Liberty National and started the Daugherty-Bailey Insurance Co., Inc.; before Daugherty's resignation, Perry Hartley, then a Liberty National district manager, had evaluated Daugherty's job performance, indicating that the reason for Daugherty's departure from Liberty National was that Daugherty had purchased an independent insurance agency, that Daugherty had handled Liberty National accounts satisfactorily, that Daugherty had good sales ability, and that Hartley would reemploy Daugherty if he decided to reapply for employment with Liberty National; Liberty National did not immediately hire an insurance agent to replace Daugherty, and after his departure, several of Daugherty's former customers began to contact him regarding the status of their life insurance policies; Daugherty told his former customers to contact Liberty National, and he provided them with a customer-service telephone number; when Liberty National failed to satisfy these customers, they again contacted Daugherty and requested that he provide them with life insurance; Daugherty sold several life insurance policies, issued by an insurance company other than Liberty National, to his former Liberty National customers; those customers then either canceled their Liberty National life insurance policies or allowed those policies to lapse; Perry Hartley contacted several of the Citronelle policyholders whose policies had lapsed and learned that many of those policyholders had purchased new life insurance policies through Daugherty; one such policyholder was Ouida Landrum; Landrum's niece, Lois Ott, was present when Hartley went to visit Landrum; according to Ott, Hartley told Landrum that Daugherty was one of the "sorriest" insurance agents Liberty National had ever had, that Daugherty was selling insurance policies he knew were no good, that Daugherty was "pocketing" the money from the sale of those policies, that Daugherty had sold one person seven cancer policies he knew were no good, and that Daugherty had been fired from Liberty National because he was stealing the company's money; Daugherty sued Liberty National Life Insurance Company and Perry Hartley, alleging defamation; Ott testified that she heard other people in the Citronelle community talking about similar remarks Hartley had made about Daugherty; at the close of Daugherty's case, the Liberty National defendants moved for judgments as a matter of law, arguing that Daugherty had not specifically pleaded slander per se, that only the statement regarding Daugherty "pocketing the premium from the sale of [insurance] policies" could constitute slander per se and that the other statements alleged in count one could have supported only a finding of slander per quod, which would have required Daugherty to plead and prove special damages; the Liberty National defendants renewed their motions for a judgment as a matter of law at the close of the evidence; the trial court denied those motions; the jury returned a verdict in favor of Daugherty on his defamation claim, awarding him $300,000 in compensatory damages, and the trial court entered a judgment on that verdict; Liberty National and Hartley renewed their motions for a judgment as a matter of law and filed a motion for a remittitur of the compensatory-damages award and a motion for a new trial; the trial court denied those motions; HOLDING: the Supreme Court noted that larceny falls within the definition of an indictable criminal offense involving infamy or moral turpitude and that, therefore, words that impute the offense of larceny are slanderous per se; the Court noted that an insurance agent who knowingly sells worthless insurance policies and appropriates the premiums paid on those policies to his own use is also guilty of the crime of theft by deception; the Court noted that the prior offenses of larceny and embezzlement and the offense of theft by deception are unified into the single offense of theft of property; the Court held that the commonly understood meaning of Hartley's statement was that Daugherty had sold worthless goods in a transaction that did not entitle him to keep the proceeds of the sale but that obligated him to pass them on to Liberty National Insurance Company in order for the purchaser to receive any benefit; thus, the Court concluded that Hartley's statements implied that Daugherty had committed the crime of theft, were slander per se, and relieved Daugherty of the requirement of proving actual harm to reputation or any other damages; the Court held that even if it were to conclude that Daugherty's testimony regarding his "excellent" reputation in the community was admissible as evidence "destroying, or at least seriously jeopardizing, the prevailing presumption of injury to reputation," when the plaintiff has proven slander per se, the law presumes injury to reputation and mental suffering; thus, the Court held that even if Daugherty's evidence concerning his good character negated any injury to his reputation, because the defamation involved in this case was slander per se, the law recognizes a right to recover for mental anguish; with regard to the motion for remittitur, the Court noted that because of the presumption of injury to reputation, it could not assume that the entire award should be viewed as related only to mental anguish; nevertheless, the Court held that the fact that the Liberty National defendants may not have succeeded in ruining Daugherty's reputation does not justify a reduction of the damages awarded for mental anguish sustained while worrying day and night as to whether the slanderous statements would gain traction in the community; thus, the Court affirmed the judgment)
*Download or view PDF version of opinion*
 
• Ex parte Windom, 

No. 1010757 (Ala. July 12, 2002)
(venue; defamation; Stephen R. Windom petitioned the Supreme Court for a writ of mandamus directing the Walker County Circuit Court to grant Windom's motion to transfer the defamation action filed against him by Garfield Ivey to Mobile County; in response to allegations of Melissa Myers in 1998 accusing Windom of sexual and violent wrongdoing, Windom held a press conference in Montgomery denying Myers's allegations and stating that Myers had been paid by Ivey to fabricate the story; the next day, news of the press conference appeared in the Daily Mountain Eagle ("the Eagle"), a newspaper printed in Walker County; after the phrase "MOBILE (AP)," the Eagle reported on Windom's allegations concerning Ivey; Ivey sued Windom in Walker County, alleging defamation based in part on the news reports printed in the Eagle; Windom contended that venue was improper in Walker County and moved to transfer the case to Mobile County; the trial court denied Windom's motion to transfer; HOLDING: the Supreme Court noted that venue in this case is determined by Ala. Code §6-3-2(a)(3), and because Windom does not reside in Walker County, venue is proper in Mobile County, the county where Windom resides, unless the "act or omission complained of" occurred in Walker County; the Court noted that nowhere on the face of the complaint is there a suggestion that Windom made any of the defamatory statements in Walker County; the Court stated that it cannot draw from the plain meaning of the statute any basis upon which the conduct of a newspaper in reprinting in Walker County an account of remarks Windom made elsewhere would be relevant in determining venue; the Court concluded that had the action been filed in Montgomery County, the site of the press conference, venue would have been proper because Montgomery County was "the county in which the act or omission complained of may have been done or may have occurred"; the Court held that Windom, as the prevailing party on a motion to transfer the action for improper venue, is entitled to select the appropriate county to which the action must be transferred when venue is proper in more than one county; therefore, the Court held that the action is due to be transferred to Mobile County; the Court granted the writ of mandamus)
*Download or view PDF version of opinion*

Back to top

Opinions Released July 3, 2002

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON WEDNESDAY,  JULY 3, 2002 

 
• Triple D Trucking, Inc. v. Tri Sands, Inc., 

No. 1010553 (Ala. July 3, 2002)
(motion to set aside a default judgment; Tri Sands, Inc., sued Triple D Trucking, Inc., Dan Youngblood, and Danny Youngblood (hereinafter collectively referred to as "the defendants") seeking damages on claims alleging breach of contract and fraud; Tri Sands alleged that it had entered into an oral contract with the defendants, which, it says, the defendants breached, and it claimed damages of $127,357; Danny Youngblood and Triple D Trucking, respectively, acting pro se, filed answers and motions to dismiss that stated, in pertinent part, that "[t]he claim of the Plaintiff in this complaint is on [an oral] contract, barred by the Statute of Frauds, and cannot be enforced"; a few weeks later, attorney Roy M. Johnson filed an entry of appearance on behalf of the defendants; about 9 months later, and about 1 month before trial,  Johnson filed a motion to withdraw as the defendants' attorney, stating that the "Defendants have no objection to said withdrawal" and that the "Defendants have been informed that this case is set for trial on August 29, 2001"; the trial court granted Johnson's motion to withdraw and stated in its order that Johnson was to "[s]end the [defendants] a copy of this Order at the last known address" and to "[n]otify [the defendants] that any trial or hearing heretofore set in this cause will not be continued based upon the party not having counsel"; on August 29, 2001, Tri Sands and its counsel appeared for trial; the defendants failed to appear; after hearing testimony, the trial court entered judgment in favor of  Tri Sands, Inc., and against the defendants in the amount of $127,357.00 plus costs; on September 23, 2001, the defendants, represented by counsel, filed a motion to set aside, alter, or amend the trial court's default judgment against them; the defendants presented an affidavit of Carole Herman which stated that she was an employee of Triple D Trucking and that she had knowledge that the amount claimed by Tri Sands as damages could not be substantiated and that the most the plaintiff  could claim would be $18,909.99; the motion stated that "[t]he [d]efendants were mistaken and confused about the actual conduct of this case on the setting date";  the trial court denied the motion to set aside the judgment; HOLDING: the Supreme Court held that Herman's affidavit testimony does not support the Statute of Frauds defense previously asserted in Danny Youngblood's and Triple D Trucking's answers but, rather, the affidavit asserted only that the entire amount of damages claimed by Tri Sands could not be substantiated and that the most the plaintiff  could claim would be $18,909.99; therefore, the Court held that while defendants' motion does not contain a defense to liability under either of Tri Sands' claims for breach of contract or fraud but only challenges the amount of damages recoverable, it was sufficient to warrant submission of the case to the jury; the Court concluded that the defendants failed to meet their initial burden of showing that Tri Sands would not be prejudiced by setting aside the default judgment; the Court further noted that it could not ascertain any fact in the record to support an inference that the defendants' conduct was excusable negligence; accordingly, the Court concluded that the trial court did not abuse its discretion by denying the defendants' motion to set aside the default judgment)
*Download or view PDF version of opinion*
 
• Conseco Fin. Corp.-Ala. v. Salter, 

No. 1010657 (Ala. July 3, 2002)
(arbitration; waiver; John T. Salter purchased a mobile home from Southern Lifestyle Manufactured Housing, Inc.., located in Bay Minette, Alabama; in connection with this purchase, Salter executed a Manufactured Home Retail Installment Contract and Security Agreement ("the installment contract"), which reflected that it was to be assigned to Green Tree Financial Corp.-Alabama (now known as Conseco Finance Corp.-Alabama), located in Pensacola, Florida; the installment contract contained an arbitration provision; the arbitration provision contained a sentence stating: "The institution and maintenance of a lawsuit to foreclose upon any collateral, to obtain a monetary judgment or to enforce the security agreement shall not constitute a waiver of the right of any party to compel arbitration regarding any other dispute or remedy subject to arbitration in this contract, including the filing of a counterclaim in a suit brought by you pursuant to this provision."; Conseco instituted in the Baldwin County Circuit Court a replevin action against Salter seeking repossession of the mobile home, alleging that Salter was in default for failing to timely make the payments due under the installment contract; the trial court granted Conseco's request for a prejudgment seizure; however, after Conseco and Salter entered into discussions regarding Conseco's replevin action, Conseco requested that the trial court set aside the order authorizing the prejudgment seizure; Salter asserts that during the course of his discussions with Conseco, Conseco learned that Salter had made all of his payments in a timely manner and that his account had never been in default; Salter filed an answer and counterclaims in response to Conseco's complaint; Salter sought a judgment declaring that his account with Conseco was not in default and that all payments he lawfully owed Conseco had been paid;  Salter also asserted counterclaims alleging negligence and the tort of outrage arising out of Conseco's continued attempts to collect the purportedly delinquent payments; three days later, at a hearing on Conseco's request for repossession,  Conseco voluntarily withdrew its replevin action; Salter then filed a motion seeking to enjoin Conseco from further collection attempts and requesting an immediate hearing; the trial court granted Salter's motion and entered a preliminary injunction; on the day the trial court entered the preliminary injunction, Conseco filed its motion to compel arbitration of Salter's claims against Conseco and a supporting affidavit, seeking to enforce the arbitration provision contained in the installment contract; the trial court denied Conseco's motion, finding that Conseco had substantially invoked the litigation process and had thereby waived its right to enforce the arbitration provision; HOLDING: the Supreme Court held that although Conseco initiated this replevin action, the mere filing of a pleading does not constitute a waiver of the right to compel arbitration; the Court noted that, as evidenced by the express language of the arbitration provision in the installment contract, the parties specifically agreed that the filing of such an action would not constitute a waiver of Conseco's right to seek arbitration; the Court held that Conseco had not substantially invoked the litigation process by appearing at hearings held in its replevin action and by participating in discussions with Salter regarding the status of his account; the Court noted that once Salter asserted his counterclaims, Conseco's only filing in the trial court related to enforcement of the parties' agreement to arbitrate, and that was done within two months of the filing of the counterclaims; the Court held that the trial court erred in denying Conseco's  motion to compel arbitration and reversed the order denying arbitration)
*Download or view PDF version of opinion*
 
• Ex parte Estate of Matthew Ryan Cook, 

No. 1010711 (Ala. July 3, 2002)
(criminal; death of convicted person while appeal is pending; the estate of Matthew Ryan Cook (hereinafter referred to as "the Estate") petitioned the Supreme Court of Alabama for a writ of certiorari and presented an issue of first impression in Alabama:  what is the effect of a defendant's death upon a defendant's conviction for a crime when the death occurs while the defendant is challenging that conviction by an appeal taken as a matter of right?; Matthew Ryan Cook was convicted in the Gadsden Municipal Court of the offense of driving under the influence; Cook filed a notice of appeal to the Etowah County Circuit Court for a trial de novo; the case was tried to a jury, but the jury could not reach a unanimous verdict, and a mistrial was declared; before a second trial was conducted, counsel for Cook filed a suggestion of death and a motion to continue the trial; the circuit court granted the motion to continue; the City of Gadsden filed a motion seeking a dismissal of Cook's appeal to the circuit court and a remand of the case to the municipal court, and  counsel for Cook filed a motion to dismiss the City's prosecution of the driving-under-the-influence claim, arguing, in part, that Cook's death constituted an abatement of his prosecution and that the conviction in the municipal court was a nullity; the circuit court entered an order stating that Cook's death terminated his appeal to that court and that the Estate could not pursue an appeal, and it remanded the cause to the municipal court; the Estate filed a notice of appeal to the Court of Criminal Appeals; that court dismissed the appeal as moot; HOLDING: the Supreme Court held that the conviction abates from its inception; the Court said that it is a settled proposition of law in this state that when a criminal defendant dies during the course of an appeal, the appeal is abated, but the status of the underlying conviction being challenged by that appeal has never been addressed; the Court concluded that Cook's conviction in the municipal court is due to be vacated as a result of his death during the course of his de novo appeal to the circuit court)
*Download or view PDF version of opinion*
 
• Ex parte Alabama Dep't of Mental Health & Mental Retardation, 

No. 1011080 (Ala. July 3, 2002)
(discovery; statutory privilege; investigative materials; Marguerite Hicks, a patient at the Alabama Department of Mental Health and Mental Retardation's ("DMHMR") Emmett Poundstone Mental Health Facility, died; Hicks was allegedly strangled in her room at the facility; as a result of Hicks's death, Candace Lambert, the administratrix of the estate of Marguerite Hicks, sued DMHMR and Kathy Sawyer, the commissioner of DMHMR, among others; Lambert filed numerous interrogatories, requests for admission, and requests for production, including a request that DMHMR produce the investigation report produced by the  bureau of special investigations ("BSI"), the investigative  division of DMHMR, relating to Hicks's death; DMHMR objected to the production of the BSI investigation report, arguing that under Ala. Code §12-21-3.1 the report was not discoverable, except upon proof that Lambert was unable, without undue hardship, to obtain the substantial equivalent of the information in the report by other means; Lambert filed a motion to compel the production of the BSI report; without conducting a hearing on the matter or reviewing the contents of the report in camera, the trial court granted Lambert's motion to compel production of the report; DMHMR filed a motion to reconsider the court's order; with the motion, DMHMR submitted the affidavits of Richard E. Von Koerner and Michael Wilkerson, investigative officers with BSI, and the table of contents of the BSI report; the trial court denied DMHMR's motion to reconsider; DMHMR filed this petition for a writ of mandamus directing the trial court to vacate its order; HOLDING: the Supreme Court granted the petition; the Court noted that by its plain language, Ala. Code §12-21-3.1 is applicable to "law enforcement investigative reports"; the Court noted that BSI is charged with investigating incidents of criminal activity at state mental health facilities or hospitals and that DMHMR's investigators are authorized to act as "police officers" under Ala. Code §22-50-21; thus, the Court held that BSI investigative reports are "law enforcement investigative reports" within the meaning of §12-21-3.1, and are therefore entitled to protection from civil subpoena, except upon a showing that the information contained in the report cannot be obtained from other sources without undue hardship; the Court held that Lambert made no showing in the trial court of undue hardship and that a showing of undue hardship requires more than a mere conclusory statement by the party seeking the information that he or she could not obtain the equivalent of the information in the reports sought by discovery without undue hardship; the Court held that Lambert was required to show that she had at least tried to interview or depose the witnesses interviewed by BSI investigators; the Court further held that before the trial court granted Lambert's motion to compel production of the BSI report, the trial court should have conducted an in camera inspection of that report to determine whether the statements contained in the report are relevant and whether the information is such that it cannot be obtained from another source without undue hardship; the Court stated that it was not concluding that on remand DMHMR cannot be compelled to produce the BSI report)
*Download or view PDF version of opinion*
 
• Ex parte Alabama Dep't of Mental Health & Mental Retardation, 

No. 1011081 (Ala. July 3, 2002)
(discovery; statutory privilege; investigative materials; the Alabama Department of Mental Health and Mental Retardation ("DMHMR") petitioned for a writ of mandamus directing the Circuit Court of Montgomery County to vacate a discovery order it had entered in favor of Millie Vick, as guardian of John David Powell; the order directed DMHMR to produce the investigative report of the bureau of special investigations ("BSI"), the investigative division of DMHMR, relating to injuries Powell received while he was a resident at the Albert P. Brewer Developmental Center, a facility for habilitation of mentally retarded persons; DMHMR argues that the trial court erred in ordering it to produce the BSI investigation report because, according to DMHMR, BSI investigation reports are protected by § 12-21-3.1, Ala. Code 1975, from civil subpoena unless the court finds, by substantial evidence, that the party seeking the production of the report is unable, without undue hardship, to obtain the substantial equivalent of the information in the report by other means; HOLDING: the Supreme Court noted that the issue in this case is almost identical to the issue presented in Ex parte Alabama Department of Mental Health, No. 1011080, with the exception that, in the present case, the trial court held a hearing on the matter and entered a protective order regarding the release of the BSI report; however, the Court stated that a trial court may not, simply by ordering that those who receive access to the report maintain confidentiality, obviate the requirement that the moving party show "undue hardship"; thus, the Court held that DMHMR is entitled to the relief it seeks, and it granted the petition and issued the writ of mandamus; the Court held that DMHMR may be compelled to produce the BSI investigation report, but only after Vick has shown that she is unable, without undue hardship, to obtain the substantial equivalent of the information contained in the report by other means)
*Download or view PDF version of opinion*

 
Back to top

Back to top