Opinions Released September 26, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  SEPTEMBER 26, 2003

 
• Bradley v. Miller,

No. 1012133 (Ala. Sept. 26, 2003)
(medical malpractice; expert testimony; proximate cause; summary judgment;  While pregnant, Chrissy Tagert Bradley ("Chrissy") suffered preeclampsia, a pregnancy  disorder, which killed the fetus on May 23, 1999. To recover for the death of the fetus, Chrissy and her husband, Michael Bradley, sued Rebecca Miller, M.D. ("Dr. Miller"), Chrissy's obstetrician. The plaintiffs contended that Dr. Miller, a third-year-resident physician in obstetrics and gynecology ("OB/GYN") at the University of South Alabama ("USA"), breached the standard of care by: (1) failing to classify Chrissy's pregnancy as a high-risk pregnancy; (2) failing to ensure that the administrative staff of the USA Center Street OB/GYN Clinic, where Dr. Miller treated Chrissy, did not cancel Chrissy's May 6, 1999, appointment with Dr. Miller; (3) failing to "seek out" the results of an ultrasound performed on April 28, 1999, showing  that the fetus was experiencing growth retardation; and (4) failing to diagnose that the onset of Chrissy's preeclampsia was impending.  In moving for summary judgment, Dr. Miller contended that the plaintiffs could not produce the expert medical testimony regarding proximate cause required of plaintiffs to withstand summary judgment in a medical malpractice case because the evidentiary foundation for such expert medical testimony did not exist. Dr. Miller contended that the evidentiary foundation did not exist because: (1) the evidence established only that Chrissy did not suffer from preeclampsia when Dr. Miller saw her for the last time on April 15, 1999 and that Chrissy was suffering from preeclampsia when she was next seen by a physician on May 23, the day the child died, and (2) no evidence established when the onset of Chrissy's preeclampsia began or whether the onset was gradual or sudden. Dr. Miller contended that this state of the evidence foreclosed any expert medical opinion except mere speculation that the fetus probably would have been saved in the absence of the alleged breaches of the standard of care by Dr. Miller.  The trial court granted summary judgment in favor of Dr. Miller.  HOLDING:  The Supreme Court affirmed.  The Court held that the opinion of the plaintiffs' medical expert regarding proximate cause lacked an evidentiary foundation and, therefore, failed to meet the plaintiffs' burden of production.)
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• Brown v. City of Huntsville,

No. 1012183 (Ala. Sept. 26, 2003)
(provision of water service; The plaintiff, Rex B. Brown, appealed a judgment declaring that the defendants City of Huntsville and Huntsville Utilities (collectively "the Utility") owed no obligation to provide water service to Brown's property outside the Huntsville city limits unless the property was annexed into the city.  Brown proposed to develop a subdivision outside the Huntsville city limits. After the Utility denied Brown's request to provide water service to the subdivision unless the property was annexed into the city, Brown sued the Utility for a declaration that the Utility owed an unconditional obligation to provide water service to the proposed subdivision. Following a bench trial, the trial court ruled in favor of the Utility.  HOLDING: The Supreme Court affirmed, holding that trial court did not err in holding that the Utility did not discriminate against Brown or act unreasonably in conditioning provision of water service to Brown's property on annexation of Brown's property into the city.)
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• Ex parte State of Alabama (In re: Marshall v. State),

No. 1012217 (Ala. Sept. 26, 2003)
(criminal; postjudgment relief; Gary Lewis Marshall was convicted of murder and sentenced to life in prison.  Marshall filed his first Rule 32 petition in the Hale Circuit Court on April 21, 1998.  The circuit court dismissed Marshall's petition.  Marshall claims that he never received notice of the circuit court's dismissal of this petition and that he discovered that his Rule 32 petition had been denied after the time for taking an appeal had passed.  Marshall appealed the dismissal of his Rule 32 petition, arguing that his failure to appeal was through no fault of his own; the Court of Criminal Appeals dismissed his appeal as untimely, without an opinion.  On June 6, 2001, Marshall filed his second Rule 32 petition.  The circuit court dismissed the petition (1) because the petition was not filed within the two-year limitations period established in Rule 32.2(c), Ala.R.Crim.P., as that rule then provided; and (2) because it was a successive petition, presenting grounds previously presented in Marshall's first Rule 32 petition.  Marshall appealed the dismissal of his second Rule 32 petition to the Court of Criminal Appeals.  On appeal, he argued that, through no fault of his own, he had never received notice of the dismissal of his first Rule 32 petition and learned of that dismissal only through a family member sometime in November 2000, well beyond the time for taking an appeal.  He alleged that the circuit court did not send him a copy of the order dismissing the petition and that his counsel rendered ineffective assistance by failing to inform him that his first Rule 32 petition had been dismissed.  The Court of Criminal Appeals concluded "that Marshall was not informed of the dismissal of his first Rule 32 petition," a contention it says "neither the State nor the circuit court disputed," and held that Marshall was entitled to an out-of-time appeal, as requested in his second Rule 32 petition.  The Supreme Court granted the petition for writ of certiorari filed by the State to consider the State's argument that the Court of Criminal Appeals' decision conflicts with Ex parte Weeks, 611 So. 2d 259 (Ala. 1992), and Ex parte Johnson, 806 So. 2d 1195 (Ala. 2001), and to clarify the holding in Ex parte Fountain, 842 So. 2d 726 (Ala. 2001).  HOLDING: The Supreme Court reversed the Court of Criminal Appeals. The Court explained that if it were to hold that Marshall may properly request an out-of-time appeal in a Rule 32 petition, it would be, first, amending Rule 32 to provide a ground for relief that the rule does not currently provide and, second, acting contrary to its holdings in Ex parte Weeks, 611 So. 2d 259 (Ala. 1992), and Ex parte Johnson, 806 So. 2d 1195 (Ala. 2001), that mandamus is the only remedy in such a case.  In other words,  recognizing that a successive Rule 32 petition may be the vehicle for requesting an out-of-time appeal from the denial of a previous Rule 32 petition would create "another adequate legal remedy," ostensibly one "in addition" to a writ of mandamus.)
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• University Federal Credit Union v. Grayson,

No. 1020042 (Ala. Sept. 26, 2003)
(class action; class certification; Madalene Grayson is an employee of the University of Alabama at Birmingham, where she works as an administrative associate in the biology department.  Grayson is also a member of the University Federal Credit Union ("UFCU") and has maintained various accounts with UFCU since 1985.  Among other things, UFCU offers its members loans for the purchase of automobiles.  Since 1984, UFCU has required, in connection with "direct" automobile loans, a one-time charge of $2.50.  This charge was used to cover internal administrative expenses incurred in maintaining the borrower's file and in ensuring the vehicle's title was correct.  Before 1993, this charge was disclosed on the promissory notes evidencing the loans as a "prepaid finance charge."  Subsequently, UFCU changed the form of the promissory note and denoted the $2.50 charge as a "filing fee."  The promissory note did not explain the nature of this charge.  Grayson obtained automobile loans from UFCU in 1990, 1992, 1993, and 1998.  With each loan, Grayson paid the $2.50 charge.  On March 30, 2001, Grayson sued UFCU seeking certification of her action as a class action under Rule 23, Ala.R.Civ.P., and asserting numerous claims: breach of contract, breach of fiduciary duty, fraud, malicious conversion, deceit, deceptive trade practices, and negligence/negligent supervision.  Specifically, the complaint alleged that UFCU wrongfully charged Grayson and other members of the credit union the $2.50 fee because, the complaint alleged, the fee was not used to file anything.  Additionally, Grayson alleged that UFCU's method of deducting automobile loan payments from members' accounts was improper.  Grayson thus sought certification of two different classes: one made up of UFCU members who had paid the $2.50 charge, and the other made up of customers enrolled in the biweekly payroll-deduction plan.  On August 27, 2002, the trial court issued its class-certification order.  Although the trial court denied certification for Grayson's payroll-deduction class, it did certify the following Rule 23(b)(3) class: "Those members [of UFCU] who have made automobile loans with the defendant and who were charged, in connection with those loans, a $2.50 filing fee."  UFCU appealed.  HOLDING: The Supreme Court reversed.  The Court held that, because Grayson failed to produce evidence indicating that the common issues predominate over the individual issues with regard to the element of reliance, the trial court exceeded its discretion in certifying the fraud claim for class-action treatment.  The Court held that, because Grayson presented no evidence indicating that UFCU had a duty to disclose and failed to prove that the putative class members were induced by UFCU to act, the trial court exceeded its discretion in certifying the fraudulent suppression claim for class-action treatment.  With regard to the breach-of-fiduciary duty claim, the Court found that Grayson presented no evidence to indicate that UFCU owed the putative class members a fiduciary duty, that individualized determinations would be required as to each class member as to the nature of each member's relationship with UFCU, and that such individualized questions outweigh and predominate over common questions, thus making the breach-of-fiduciary-duty claim improper for class certification under Rule 23(b)(3).  With regard to certification of Grayson's negligent-supervision claim, the Court held that because the alleged wrongs underlying Grayson's negligent-supervision claim (i.e., fraud, suppression, breach of fiduciary duty) would require individualized determinations, the negligent-supervision claim likewise is unsuited for class-action certification.  With regard to Grayson's breach-of-contract claim, the Court held that the trial court exceeded its discretion by certifying a Rule 23(b)(3) class action without first determining the "threshold issue" whether the promissory note, and in particular the term "filing fee," is ambiguous.   The Court directed that on remand the trial court should determine what effect the ambiguity has on whether class certification is appropriate.  With regard to Grayson's malicious-conversion claim, the Court held that, because Grayson did not claim that UFCU's charging the $2.50 "filing fee" amounted to a conversion, the trial court exceeded its discretion in certifying that claim for class-action treatment.)
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• Akins Funeral Home, Inc. v. Miller,

Nos. 1020198 & 1020224 (Ala. Sept. 26, 2003)
(expert testimony; excessive damages; body switch/misidentification with cremation of wrong body; Nineteen-year-old Matthew Miller ("Matt") and two others were killed in an automobile accident that occurred on February 20, 2000.  All three bodies were transported to the Kilgore-Green Funeral Home in Jasper.  The Miller family decided to use Akins Funeral Home, Inc. ("Akins"), to handle Matt's funeral, and at the request of the family, Doil Akins traveled to Jasper and retrieved what had been identified as Matt's body; the body, however, was the body of Johnny Russell, who was also killed in the accident.  The Russell family arranged with Kilgore-Green to cremate Russell's body, although it was in fact Matt's body that was cremated.  That night, Akins embalmed the body of Johnny Russell.  On February 21, 2000, Megan, Teresa, and other members of the Miller family went to Akins Funeral Home to make the arrangements for Matt's funeral.  At the funeral home they met with Raymond Vernon, the funeral director, and Teresa signed a contract.  The evidence presented at trial by the plaintiffs, including the testimony of Teresa; Randy Calhoun, Matt's uncle; Tommy Miller; and Colburn, indicated that before the family left the funeral home, Teresa asked to view her son's body; Vernon told her that, until one-half of the funeral expenses were paid, she could not see the body and the body would not be delivered to the church for the funeral.  Evidence presented by the Millers indicated that Akins ultimately agreed to deliver the body to the church for the funeral where checks would be collected from various relatives to pay one-half of the funeral expenses.  Vernon disputed the evidence presented by the Millers regarding what took place at the funeral home.  He testified that no member of the immediate family asked to view the body, that he did not deny family members the privilege of viewing the body, and that he would have delivered the body to the church for the funeral regardless of whether the funeral expenses had been paid.  The funeral was scheduled to take place the evening of February 21, 2000, at the Thorptown Holiness Church, and Vernon transported the body to the church.  With approximately 400 mourners present, the casket was opened, and Teresa viewed the body for the first time.  It was at that time that all present realized that a mistake had been made and that the body in the casket was not Matt's body.  Vernon returned to Akins Funeral Home with the body, and telephoned Kilgore-Green Funeral Home.  During that telephone conversation Vernon learned that Matt's body had been cremated that afternoon.  Teresa and Megan each sued Akins, alleging negligence and wantonness, the tort of outrage, breach of contract, trespass, and abuse of a corpse.  In support of their claims, the Millers presented testimony regarding the traumatic effect the unintentional cremation of Matt's body had upon them.  Evidence was also presented to show the religious and moral objections to cremation Matt and his family shared.  At the conclusion of the trial, Megan's case was submitted to the jury on the counts alleging negligence, wantonness, and the tort of outrage.  Teresa's case was submitted to the jury on the counts alleging breach of contract, negligence and wantonness, and the tort of outrage.  The jury returned a verdict against Akins and in favor of both plaintiffs.  The jury assessed compensatory damages at $450,000 and punitive damages at $150,000, for a total of $600,000 in Megan's case; in Teresa's case, the jury assessed compensatory damages of $200,000 and punitive damages of $150,000, for a total of $350,000.  In each case, Akins filed a motion for a new trial and a motion to remit the punitive damages; those motions were denied.  HOLDING:  The Supreme Court affirmed.  The Court held that the trial court did not err in admitting the expert testimony of the plaintiff's expert who was a grief counselor.  The Court held that the trial court did not err in refusing to order a remittitur of compensatory damages.  The Court further held that the trial court did not err in refusing to remit the punitive-damages awards.  It should be noted that it appears Akins did not challenge on appeal the sufficiency of the evidence supporting any of the causes of action or claims on which the verdict's correctness could be questioned.)
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• Hart v. Pugh,

No. 1020300 (Ala. Sept. 12, 2003)
(fraudulent transfer of property; conspiracy to defraud; On December 19, 1992, several years before Donald A. Hart and Kay Allen Hart married, Donald and Donald's mother, Johnnie Ruth Brown, acquired lots 101 and 102 in Bear Point Estates in Orange Beach, Alabama (hereinafter referred to as "the Bear Point property"), as joint tenants with a right of survivorship.  On October 20, 1997, Donald and Kay were divorced by a judgment entered by the Mobile Circuit Court.  Under the terms of the divorce judgment, Donald was obligated to make various monthly payments to Kay; among those were child support and mortgage payments on the marital residence.  Donald was also required to execute "limited warranty deeds" to Kay conveying to her a one-half interest in real property located at 16501 Highway 9, Marlow, Alabama (hereinafter referred to as "the Fish River property"), as well as a one-half interest in real property located in Coden, Alabama, both of which were to be owned by Donald and Kay after the divorce as a joint tenancies with a right of survivorship.  Donald was responsible for any indebtedness on those properties and for paying all taxes and insurance associated with them.  Donald was to "retain, free and clear of any further claim or interest of [Kay] or her estate, all bank accounts, money market accounts, investment accounts, retirement accounts and real estate owned and maintained by [Donald] individually or jointly with his mother, except as otherwise provided herein."  The divorce judgment further stated: "All property received or retained by either party in this Agreement whether or not such property is specifically mentioned herein, shall be and remain the separate property of the party receiving or retaining that property and that property shall be free from any claim by the other or his estate."  About three months after the divorce, on or about January 27, 1998, Donald sold the Fish River property in its entirety without Kay's knowledge or consent, in violation of the divorce judgment.  Also in violation of the divorce judgment, Donald failed to pay child support and to make mortgage payments on the martial home.  On February 11, 1998, Donald executed a power of attorney in favor of Brown, which granted her the authority to, among other things, sell property owned by Donald.  Two days later, on February 13, 1998, Kay filed a motion seeking to hold Donald in contempt for failing to pay child support, failing to make the mortgage payments, and selling the Fish River property.  On that same day, Brown, acting on her own behalf and on behalf of Donald pursuant to the authority granted to her by the power of attorney, deeded the Bear Point property to Verlon J. Pugh, reserving  to herself a life estate in the property.  The consideration stated in the deed was $10 and other good and valuable consideration.  The total of the respective appraised values of the two lots constituting the Bear Point property, as shown by an appraisal by the Baldwin County revenue commissioner, was $80,400.  The deed conveying the Bear Point property to Pugh listed both Donald and Brown as the grantors.  Brown signed the deed both on her own behalf and as Donald's attorney in fact.  Brown later claimed that she conveyed the Bear Point property to Pugh in exchange for 10 acres of land in Robertsdale, Alabama, and $6,000.  It was not until April 14, 1998, that Pugh executed a deed for the 10 acres in Robertsdale, naming Brown as the only grantee.  The appraised value of that property as of a May 22, 2000, appraisal report, was $28,000.  Also, it was not until May 5, 1998, that Pugh issued a check for $6,000, payable to Brown.  That check was never negotiated.  On May 18, 1998, Kay obtained a judgment in the amount of $15,111 in her contempt action against Donald, representing the child-support arrearage, past due mortgage payments, her one-half interest in the sale of the Fish River property, costs, and attorney fees.  Subsequently, Kay sued Donald, Brown, and Pugh, asserting claims of fraudulent transfer of property and conspiracy to defraud.  The trial court granted summary judgments in favor of Pugh and Brown.  Kay appealed only the judgment in favor of Pugh.  HOLDING:  The Supreme Court affirmed.  The Court noted that Kay has not presented any evidence to show that Donald participated in Brown's decision to transfer the Bear Point property to Pugh.  Accordingly, the Court stated that it could not conclude that this case is distinguishable from Folmar & Associates, LLP v. Holberg, 776 So.2d 112 (Ala. 2000), because the evidence indicated that  Donald directed his attorney in fact, Brown, to transfer the property.)
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• Ex parte USX Corp.,

No. 1020684 (Ala. Sept. 26, 2003)
(workers' compensation; carpal tunnel syndrome; evidentiary standard; The Supreme Court granted certiorari review in this case to determine whether the burden of proof for all carpal-tunnel-syndrome claims is clear and convincing evidence.  The Court held that clear and convincing evidence is not the required burden of proof in all carpal-tunnel-syndrome claims.  The Court held that the clear-and-convincing-evidence burden of proof shall apply to injuries resulting from gradual deterioration or cumulative physical stress disorders and that the burden of proof that should apply depends upon whether the injury was caused by a traumatic accident or by a gradual deterioration or cumulative stress.  The Court held that if the trial court determines that the injury is not caused by gradual deterioration or cumulative stress but rather by a one-time acute trauma, or accident, the proper burden of proof is the  preponderance of the evidence.  The Court recognized that the majority of carpal tunnel injuries are caused by gradual deterioration or repetitive motion and, thus, that the clear-and-convincing-evidence burden of proof will apply.  However, the Court stated that it cannot ignore the medical possibility, as evidenced by the testimony in this case, that in some cases it is medically possible for carpal tunnel syndrome to result from a one-time acute trauma.)
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• City of Foley Board of Adjustments & Appeals v. H & S S. Graphics Sys., Inc.,

No. 1020730 (Ala. Sept. 12, 2003)
(zoning; billboards; H & S Southern Graphics Systems, Inc. ("Southern Graphics"), a company that owns advertising billboard structures, appealed from a decision of the City of Foley Board of Adjustments and Appeals ("the Board") holding that changes Southern Graphics had made in two of its billboards located along the Foley Beach Express, a toll road in Baldwin County, violated an ordinance of the City of Foley.  The case was tried before a jury, and at the close of Southern Graphics' case-in-chief, the Board moved for a judgment as a matter of law; it renewed the motion at the close of all the evidence.  The trial court denied both motions.  The jury returned a verdict for Southern Graphics, and the trial court entered a judgment on that verdict.  HOLDING:  The Supreme Court reversed.  The Court held that it is clear that the changes Southern Graphics made to the billboard structures violate the restriction in the ordinance that a sign could not be "[a]ltered, changed or moved in any manner that increases its size, shape, location, angle, or height," because the the signs were altered or changed to increase their size.)
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• Newman v. Savas,

No. 1021189 (Ala. Sept. 12, 2003)
(probate; will contest; subject-matter jurisdiction; In October 1990, attorney Chris Peters prepared a will for Joseph E. Kennedy and witnessed Kennedy's execution of the will.  Subsequently, the original will was lost or misplaced, and upon Kennedy's death on April 16, 2001, the original will remained lost.  In July 2001, Anna Belle Newman, the general administrator for Mobile County, filed a petition in the Probate Court for Mobile County to probate a copy of Kennedy's lost will.  In November 2001, Helen Kennedy Savas, Kennedy's daughter and his only natural heir, filed a will contest, alleging that the will presented for probate was invalid and that it did not reflect the true intentions of Kennedy.  On December 21, 2001, the probate judge admitted the lost will to probate.  On January 23, 2002, Savas filed a motion for a new trial, or, in the alternative, for a judgment as a matter of law in the probate court.  Subsequently, the probate court granted Savas's motion for a new trial, and, upon notice that the probate court had granted the motion, Savas filed, on February 14, 2002, an amended complaint contesting the will and a motion to transfer the will contest to the Mobile Circuit Court.  In response, Newman filed an objection to the motion to transfer, alleging that removal to the circuit court was untimely because it was made posttrial.  On April 19, 2002, the probate court issued an order denying Newman's motion to alter, amend, or vacate the order of the probate court granting the new trial. The April 19 order also granted Savas's motion to transfer the will contest to the circuit court.  In the circuit court, Newman filed a motion to dismiss for lack of subject-matter jurisdiction and asked that the contest be remanded to the probate court.  Savas then filed a response to the motion to dismiss; the trial court summarily denied the motion; and the parties then each filed a motion for a summary judgment.  After a hearing on the competing summary-judgment motions, the circuit court, in March 2003, entered an order granting Savas's summary-judgment motion and denying Newman's summary-judgment motion.  Newman appealed. HOLDING:  The Supreme Court reversed.  The Court concluded that the circuit court did not have subject-matter jurisdiction.  The Court concluded that Savas was required to demand the transfer of the will contest when she filed her initial pleading.  The Court stated that because Savas did not file a petition for removal with the initial notice of the will contest, she did not follow the procedural requirements of § 43-8-198 "exactly," and because the procedure was not explicitly followed, a petition for removal filed later in the action would have been untimely.  Thus, because Savas did not follow the statutory requirements for removing a will contest to the circuit court, the circuit court did not have jurisdiction over the will contest.)
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• Ex parte Buford,

No. 1021372 (Ala. Sept. 12, 2003)
(The Supreme Court denied the petition for writ of certiorari without opinion, but the Court stated that in denying the petition for the writ of certiorari, it did not wish to be understood as approving all the language, reasoning, or statements of law in the Court of Civil Appeals' opinion.)
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Opinions Released September 19, 2003

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

 
• Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C.,

 No. 1010070 (Ala. Sept. 19, 2003)
(Commerce Clause; taxation; The State of Alabama levies excise taxes on wine under the Alabama Table Wine Act, Ala. Code §28-7-1 et seq.  It formerly levied excise taxes under the Alabama Native Farm Winery Act, Ala. Code §28-6-1 et seq.  Historically, all wine sold in Alabama was taxed under the general taxation provisions in Ala. Code §28-3-200 et seq.  In 1979, the Legislature passed the Native Farm Winery Act, which levied an excise tax of $.05 per gallon on all native farm wine sold in Alabama or dispensed as free samples at a native farm winery.  Ala. Code §28-6-4(b).  The Native Farm Winery Act also exempted native farm wine from all other taxes, including those levied under Ala. Code §28-3-200 et seq.  Ala. Code §28-6-4(b).  In 1980, the Legislature enacted the Alabama Table Wine Act.  The Table Wine Act levied an excise tax of $.45 per liter on all table wine "sold to [a] wholesale licensee or [the Board], to be collected from the purchaser by the [Board] or by a licensed retailer."  Ala. Code §28-7-16.  The Table Wine Act stated that "the tax levied is in fact a levy on the consumer." Ala. Code §28-7-16(b).  The Table Wine Act repealed all other taxes on wine, but it did not repeal the tax-exemption provision in the Native Farm Winery Act.  Ala. Code §28-7-24.  In March 2001, Henri-Duval Winery, L.L.C. ("Duval"), sued the  Board, alleging that §28-7-16 imposed an unconstitutional excise tax on wine moving in interstate commerce in violation of the Commerce Clause.  Duval argued that Alabama's table-wine tax scheme discriminated against wine produced outside Alabama because it exempted from the excise tax Alabama native farm wine.  Duval sought a declaration that §28-7-16 was unconstitutional.  Duval also sought injunctive relief, a refund of wrongfully collected taxes, and certification of a class composed of all producers, manufacturers, importers, and distributors of table wine to participate in any damages award.  The Board filed a counterclaim stating that the excise-tax provisions of the Table Wine Act do not discriminate against foreign wine, and arguing that if the trial court found Alabama's excise-tax scheme for table wine unconstitutional, the trial court should uphold the excise tax in the Table Wine Act, §28-7-16, and instead find the tax exemption in the Native Farm Winery Act, §28-6-1 et seq., unconstitutional.  Duval moved for a partial summary judgment on the issue whether §28-7-16 violated the Commerce Clause and was therefore unconstitutional.  The trial court granted Duval's motion and held that the excise tax in §28-7-16 was discriminatory and unconstitutional; that the Native Farm Winery Act, §28-6-1 et seq., is not subject to the Commerce Clause because it regulates intrastate commerce; and that the  Board lacked standing to contest the constitutionality of the Native Farm Winery Act.  The trial court certified that summary judgment as final pursuant to Rule 54(b), Ala.R.Civ.P., and ordered that all taxes collected pending the appeal of its decision be placed in escrow.   HOLDING: The Supreme Court reversed.  The Court held because Duval challenged the constitutionality of Alabama's table-wine excise tax, and  because the State has an interest in preserving the integrity of its regulatory framework for the sale and taxation of wine, the Board has standing to bring a counterclaim challenging the constitutionality of the tax exemption for native farm wine enacted in the Native Farm Winery Act.    The Court reversed the trial court's finding that §28-7-16 is unconstitutional because it found that §28-7-16, standing alone, merely enacts a nondiscriminatory excise tax on table wine.  The Court held that Alabama's scheme of taxation for table wine embodied in the Table Wine Act read together with the Native Farm Winery Act violates the Commerce Clause.  The Court further held that it would have been proper for the trial court to cure the constitutional defect in the tax scheme by striking only the tax-exemption provision in §28-6-4.)
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• Wooten v. Ivey,

Nos. 1011384 & 1011385 (Ala. Sept. 19, 2003)
(nuisance; right to trial by jury; claims for damages and equitable relief; On September 7, 1999, Toney Ivey, Brenda Ivey, and Casey Ivey sued Jeffrey Wootten, Marty Wootten, and Gold Kist, Inc. (hereinafter collectively referred to as "the defendants"), alleging that their land had been damaged as a result of the defendants' operation of a hog farm near the Iveys' property.  The Iveys alleged, among other things, that the defendants' operation of the hog farm created a nuisance, and they sought money damages, injunctive relief, and attorney fees.  The Iveys' complaint included a general demand for a jury trial.  On January 31, 2000, the complaint was amended to add 16 plaintiffs who also claimed to have suffered damage from residing in close proximity to the defendants' hog farm.  On October 2, 2000, a jury trial was conducted and the trial court submitted the nuisance claim and the request for money damages to the jury for deliberation.  On October 2, 2000, a jury trial was conducted and the trial court submitted the nuisance claim and the request for money damages to the jury for deliberation.  On October 12, 2000, the jury returned a verdict in favor of the defendants as to each plaintiff's claim for nuisance.  Based on the jury's verdict, the trial court, on October 13, 2000, entered a judgment in favor of each of the defendants and against all of the plaintiffs as to the nuisance claim seeking money damages.  The trial court amended its October 13, 2000, judgment to add the following statement: "This [October 13, 2000] judgment shall be, and is hereby, deemed a judgment on the damage[s] claims only, and not a judgment on the claims for equitable relief asserted in this case."  The court stated that it would determine whether equitable relief was warranted in this case by considering the evidence presented at trial, "together with such other evidence as may be presented by the parties at the hearing hereinafter scheduled."  The court explicitly stated that the October 13, 2000, order was not a final order and scheduled an additional hearing to allow the plaintiffs to again attempt to prove to the trial court that the defendants' hog-farming operation constitutes a nuisance.   The trial court then conducted hearings at which additional evidence was presented that had not been presented at trial.  The trial court then appointed a special master to monitor the operation of the defendants' hog farm, and the judge and the special master made personal visits to the hog farm.  On January 9, 2002, the trial court entered a judgment on the plaintiffs' claim for injunctive relief, finding that the defendants' hog farm constituted a nuisance and enjoining, as of April 1, 2002, the defendants from restocking their hog farm until the defendants submitted an odor-management plan to the trial court and received court approval of the plan.  HOLDING: The Supreme Court reversed.  The Court held that the trial court correctly submitted the issues of the existence of a nuisance and money damages to the jury; however, once the jury decided that the hog farm did not constitute a nuisance, the trial court erred in entering an order enjoining the defendants from restocking their hog farm pending the submission and approval of an odor-management plan.)
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• Onzell v. Howorth,

No. 1012339 (Ala. Sept. 19, 2003)
(medical malpractice; lack of consent; informed consent; negligence; summary judgment; Onzell V. Cain sued Dr. Graham L. Howorth, a board-certified orthopedic surgeon, and his professional corporation, Graham L. Howorth, M.D., P.C., on various claims of medical malpractice arising from a hip-replacement operation Dr. Howorth performed on Cain.  Cain was working as a nurse's aide at Coosa Valley Medical Center when she fell and sustained "a fracture of the left femoral neck displaced."  She was taken to the emergency room of that hospital and given her choice of two doctors; she chose Dr. Howorth because "he did the majority of the surgery there."  On December 30, 1997, he performed a bipolar hip arthroplasty on her.  In a post-hospitalization clinic note, dated October 6, 1998, Dr. Howorth stated that Cain reported that she was still experiencing pain and that he "had discussed with her that the only alternative with her at this point would be to revise her total hip arthroplasty and [he did] not feel that this need[ed] to be performed."  On November 30, 1998, because of continued pain in her hip, Cain sought a second opinion from Dr. Featheringill, who informed her that she had not undergone a total hip arthroplasty (hereinafter "THA"), which she alleges she thought she had undergone, but rather she had undergone a bipolar hip arthroplasty (hereinafter "BHA").  On February 17, 1999, Dr. Featheringill performed surgery on Cain and revised the BHA Dr. Howorth had performed on her left hip, converting it to a THA.  Dr. Featheringill recorded in his "report of operation" that "[t]here was no acetabulum cartilage present.  Whether this had been reamed from the previous procedure or whether it had just worn away, was uncertain."   Cain asserts that Dr. Howorth advised her that she needed to undergo a THA and he recommended only that procedure to her.  Dr. Howorth filed a motion for a summary judgment, supporting it with his deposition testimony and affidavit.  In his affidavit, Dr. Howorth refuted every claim asserted against him in Cain's complaint.  Cain filed a response to Dr. Howorth's motion, and attached the affidavit of Dr. Steven Nehmer, a board-certified orthopedic surgeon and her expert witness; Dr. Howorth's deposition testimony, as well as her own; his office notes concerning her; the hospital records for her admission and the  surgery by Dr. Howorth; and office and hospital medical records of Dr. John Featheringill, another orthopedic surgeon.  On August 19, 2002, the trial court entered summary judgments for Dr. Howorth as to all claims.  HOLDING:  The Supreme Court held that Cain did not assert any claims for lack of informed consent.  The Court noted that nowhere in Cain's complaint, her other submissions to the trial court, or her deposition testimony did she ever contend that she had consented to a BHA but that her consent to that procedure was not informed.  Rather, she adamantly insisted throughout that the only procedure identified and recommended to her by Dr. Howorth, and the only procedure she consented to, was a THA.  The Court held that a lack-of-consent claim explicitly pleaded and argued does not embrace the separate concept of "lack of informed consent," the latter requiring averment and proof that the doctor failed to inform the patient of the "significant perils," or "all material risks," associated with the procedure for which consent was given.  The Court concluded that Cain presented substantial evidence indicating that she did not consent to a BHA, but consented only to a THA. Thus, the Court reversed the summary judgment on the lack-of-consent claim.  The Court further concluded that Cain established by substantial evidence genuine issues of material fact as to all elements of her claim that Dr. Howorth negligently or wantonly performed a BHA.  Therefore, the Court reversed the summary judgment as to that claim.  However, the Court held that the issue of fact created as to the claim of negligent or wanton performance of a BHA does not supply substantial evidence supportive of the alternative theory that he negligently performed an attempted THA but then abandoned that attempt and completed a BHA.  The Court held that the trial court did not err in entering a summary judgment in favor of Dr. Howorth as to Cain's claim that he had negligently or wantonly performed a THA.  The Court held that because none of the other claims pleaded by Cain were brought forward in her briefs, they were waived.)
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• Liberty Nat'l Life Ins. Co. v. University of Ala. Health Servs. Found., P.C.,

No. 1012346 (Ala. Sept. 19, 2003)
(standing; insurance; joinder of necessary parties; prima facie tort; declaratory judgment; immunity; Liberty National Life Insurance Company ("Liberty National") sued the University of Alabama Health Services Foundation, P.C., University of Alabama at Birmingham Hospital, and UAB Health System (hereinafter collectively referred to as "UAB").  Liberty National's complaint presented claims alleging "prima facie tort"; violation of Ala. Code §22-21-7; intentional interference with Liberty National's "contractual and/or business relationships" with its insureds; and a claim seeking a declaratory judgment under the Alabama Declaratory Judgment Act ("the Act").  Liberty National alleged that UAB's billing statements to its patients who are also Liberty National policyholders often contain charges for various services that exceed the amounts UAB has accepted or will accept as full payment for those services;  thus, Liberty National claims that UAB causes it to pay its policyholders amounts in reimbursements for services performed by UAB that exceed what UAB accepts as full satisfaction of those services. Liberty National sought an injunction to prevent UAB from continuing its allegedly improper billing practice, an award of compensatory and punitive damages, and a judgment declaring that UAB's billing practices violated Ala. Code §22-21-7.   UAB filed a motion to dismiss.  In its motion UAB asserted that the "Board of Trustees of the University of Alabama for its Division, University Hospital" was the correct designation for the defendant  designated in Liberty National's complaint as "University of Alabama at Birmingham Hospital."  This defendant is referred to hereinafter as "UAB Hospital." UAB asserted lack of subject-matter jurisdiction arising from Liberty National's lack of standing to bring any of the claims except the claim alleging intentional interference with contractual and/or business relationships; failure to state a claim upon which relief could be granted as to the prima facie tort claim and the claim asserting a violation of §22-21-7;  failure to join policyholders as necessary parties; and UAB Hospital's  immunity from Liberty National's claims against it by virtue of Ala. Const. art. I, § 14.  The trial court granted UAB's motion to dismiss the case, on the ground that the court lacked jurisdiction over the action because Liberty National lacked standing to bring it.  HOLDING: The Supreme Court affirmed the trial judge's judgment insofar as it found that Liberty National lacked standing to bring the claim for violation of Ala. Code §22-21-7.   The Court held, however, that given the broad standard used to determine standing, it cannot conclude that there is no possible situation in which Liberty National might show the requisite injury as to its other claims.  The Court concluded that the subject policyholders have a legally protected interest that will be affected by the outcome of Liberty National's asserted claims, that if those policyholders are not joined in this action and are not bound by its outcome, the issue whether Liberty National may reduce the amount of cancer benefits it provides those policyholders under its cancer policies, in the event of an outcome favorable to Liberty National, could be subject to relitigation by a policyholder, potentially resulting in an outcome inconsistent with the outcome of this case. Accordingly, the Court concluded that the group of Liberty National policyholders composed of persons who have primary health insurance coverage of the sort discussed are necessary parties within the meaning of Rule 19(a), Ala.R.Civ.P.  The Court noted that the record is devoid of information sufficient to inform it as to the feasibility of joinder of the affected Liberty National policyholders, so it held that the trial court would have to conduct further proceedings to develop that information and make a finding as to the feasibility of joinder.  The Court declined to determine whether a claim for prima facie tort should be a recognized cause of action in Alabama.  The Court noted that while UAB Hospital is protected by the doctrine of sovereign immunity from Liberty National's claims against it, the UAB Health Services Foundation is a nonprofit, independent professional corporation that, in part, attends to the billing for UAB Hospital, and the complaint, the parties submissions to the trial court, and the briefs submitted to the Supreme Court do not state what type of entity UAB Health System is or the purpose it serves.  Accordingly, the Court concluded that because the Health Services Foundation and the UAB Health System are entities separate and distinct from UAB Hospital and have not been shown to qualify for sovereign immunity, they are not protected by that doctrine.)
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• Aldridge v. Olive,

No. 1020443 (Ala. Sept. 19, 2003)
(breach of contract; incidental damages; specific performance; real estate; Sometime in December 1999, Randall E. Aldridge entered into an oral agreement with Richard E. Olive; pursuant to that agreement Olive was to sell Aldridge a mobile home and 4.86 acres of real property on which the mobile home was located.  The purchase price of the mobile home and the real property was $110,000.  Under the terms of the oral agreement, Olive was to receive $18,762.13 as a down payment, and Aldridge was to assume a promissory note Olive had executed to First Southern Bank, which was secured by a mortgage on the 4.86 acres, and, in addition, to assume a second promissory note Olive had executed to AmSouth Bank, secured by a security interest in the mobile home.  Aldridge sued Olive on February 14, 2001, seeking specific performance of the oral agreement, and in his complaint he sought incidental damages, including lost profits, he claimed he suffered as a direct result of Olive's failure to perform.  Aldridge claimed that he was purchasing the 4.86 acres to establish a retail sales lot in a joint venture with SouthTrust Bank in order to sell mobile homes that SouthTrust Bank had repossessed.  One of Aldridge's main arguments in the trial court and on appeal is that he is entitled to recover incidental damages for the harm he allegedly suffered because Olive refused to timely schedule a closing date.  After a trial, the trial court rendered a judgment in favor of Aldridge and the other plaintiffs on March 21, 2002, in which it granted specific performance of the oral agreement and also at that time awarded incidental damages of $80,000.  But on April 29, 2002, Olive filed a motion for relief from judgment and asked the trial court for additional time to submit additional argument, which the trial court granted.  On July 29, 2002, after Olive had submitted his additional argument, the trial court entered an amended judgment, again granting specific performance; in this order, however, it denied the plaintiffs any incidental damages.  HOLDING: The Supreme Court affirmed.  The Court held that a trial court, so long as it does not exceed its discretion, has the power to determine whether to award incidental damages when it orders specific performance of a real-estate sales contract.
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• Birmingham Bd. of Educ. v. Boyd,

No. 1020990 (Ala. Sept. 19, 2003)
(justiciable controversy; Fair Dismissal Act; due process; Dorothy Boyd is a school-bus driver for the Birmingham Board of Education ("the Board").  On August 13, 2002, the Board proposed to terminate Boyd's employment because she was no longer insurable on account of  extensive traffic violations and minor accidents.  On October 8, 2002, Boyd filed a complaint in the Jefferson Circuit Court seeking a declaratory judgment, damages for breach of contract, and injunctive relief.  Specifically, Boyd alleged that the Board failed to give her proper notice of her rights regarding the proposed termination.  Boyd also alleged that the Board's termination policy violated Ala. Code §§36-26-103 and -104, a part of the Fair Dismissal Act; the Alabama Constitution of 1901; and the due-process requirements discussed in Allen v. Bessemer State Technical College, 703 So.2d 383 (Ala. 1997).  The Board filed a motion to dismiss Boyd's complaint.  In the motion, the Board asserted that Boyd had failed to exhaust all of her administrative remedies under the Fair Dismissal Act.  Further, the Board stated that its termination policy (policy no. 3121) conformed with the due-process requirements of Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), and that the due-process requirements articulated in Allen were inapplicable in this case.  On October 29, 2002, the date set for the Board's administrative hearing, the trial court granted a preliminary injunction mandating that the Board conduct Boyd's termination hearing in compliance with several specific procedural requirements.  The Board canceled the hearing and subsequently filed a motion for a summary judgment and a motion to dissolve the preliminary injunction, or, alternatively, to clarify the injunction.  In its summary-judgment motion, the Board reasserted its claims that its procedures in terminating Boyd were adequate and lawful.  Further, the Board stated that it could have proceeded with Boyd's termination hearing without violating the injunction, but that it refrained from doing so to obtain clarification about the requirements of the injunction.  The trial court denied the Board's motions, stating that the Board's termination policy was ambiguous and inadequate according to the requirements set out in Allen.  Four months after it denied the Board's summary-judgment motion, the trial court entered an order making the preliminary injunction permanent.  Throughout this litigation, Boyd has been suspended with pay; her termination was never effectuated.  HOLDING: The Supreme Court dismissed the appeal because the case does not present a justiciable controversy.)
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• Serra Toyota, Inc. v. Johnson,

No. 1021051 (Ala. Sept. 19, 2003)
(arbitration; interstate commerce; unconscionability; Rebecca Johnson purchased a used 1999 Toyota Avalon automobile and a used 1992 Toyota Camry automobile from Serra Toyota.  Johnson executed a contract entitled a "Retail Buyers Order" in connection with the purchase of each vehicle.  Those contracts contained identical arbitration agreements. She later sued Serra Toyota and the salesman employed by Serra Toyota.  Serra Toyota, later joined by its salesman, moved to compel arbitration, supporting its motion with an affidavit from its finance manager that discussed the various connections to interstate commerce of the transaction with Johnson.  In response to the motion to compel arbitration, Johnson filed only a brief; she did not submit any evidence.  She stated in her brief that she and both defendants were all Alabama residents.  She argued that she should not be compelled to arbitrate her claims against Serra Toyota and the salesman because, she argued, her transactions did not have a substantial effect on interstate commerce.  She also argued that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("the FAA"), "does not preempt state contract defenses" and that the arbitration provision in the contracts she signed was unconscionable because, she says, she did not have a meaningful choice, the arbitration agreements did not meet the basic elements of a contract, the American Arbitration Association is biased in favor of institutions that form its client base, and the arbitration clause is "buried" in the documents she signed.  The trial court concluded that the vehicles were sold to Johnson in "a strictly intrastate transaction" and that "[f]or an intrastate transaction to 'involve' interstate commerce within the meaning of the FAA, the defendants must have introduced evidence proving that the plaintiff's purchase of the vehicle involved a transaction that substantially affected interstate commerce."  Based on that conclusion, the trial court denied the motion to compel arbitration.  HOLDING:  The Supreme Court reversed.  The Court held that under Citizens Bank v. Alafabco, Inc., 123 S.Ct. 2037, 2040 (2003), the transaction sufficiently involved interstate commerce.  The Court further held that because Johnson did not submit evidence in support of her argument that the arbitration agreements are unconscionable, she did not preserve that argument for appellate review.)
(NOTE:  The successful appellants in this case were represented by Coy Macoy and Mike Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C.)
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• Chunn v. Whisenant,

No. 1021180 (Ala. Sept. 19, 2003)
(equitable lien on improvements made to real estate by lessee; In 1991, Kathryn Whisenant owned a building in Huntsville, in which an adult lounge had operated for several years.  By an instrument dated August 1, 1991, Whisenant agreed to lease the property to Betty Chunn for six months.  Chunn began operating an "adult cabaret" on the premises, known as "Chick's Lounge."  By its terms, the lease expired on January 31, 1992; it was never renewed in writing.  However, Chunn continued to operate the lounge under an oral arrangement ("the arrangement") until 1997.  On April 13, 1997, the property was damaged by a fire.  Because the property was uninsured and unusable in its damaged state, Chunn and Whisenant discussed the future of the arrangement.  When Whisenant indicated that she did not intend to repair the building, they discussed whether Chunn could pay for the repairs.  Whisenant also said that if she ever sold the property, she would give Chunn the "first opportunity to buy it."  Chunn paid $42,514 for repairs to the building.  In June 1997, the lounge reopened and continued in operation for the next four years.  By an instrument dated August 24, 2001, Whisenant agreed to sell the property to Ernestine Morrow and her husband, Don Morrow, for $119,270.  It is undisputed that Whisenant never offered to sell the property to Chunn for that price.  According to the unrefuted testimony, at or about the time of the offer to the Morrows, Whisenant offered to sell the property to Chunn for $179,000.  Chunn declined the offer and did not discover the substance of the offer to the Morrows until after the sale.  Subsequently, in October 2001, discussions occurred between the Morrows and Chunn regarding the future of Chick's Lounge.  At that time, according to Don Morrow's deposition, he proposed to Chunn that she sell him "her equipment," including poker machines, a cooler, tables and chairs, and liquor.  He presented Chunn with an instrument, styled "Agreement for Purchase and Sale of Assets" ("the Agreement"), pursuant to which he agreed to buy the equipment for $19,000.  Morrow told her that if she did not sign the Agreement, she would have to remove her equipment from the premises.  During the discussion, Chunn asked Morrow about the $42,514 she had invested in the premises.  Morrow told her that he "didn't know anything about that, [and that] she would have to take that up with [Whisenant]."  Chunn did ask Whisenant to reimburse her for the improvements, and Whisenant refused to pay her anything, stating: "I didn't tell you to put it in there, you done it on your own."  Chunn and Don Morrow signed the Agreement on October 15, 2001.  On February 7, 2002, Chunn sued Whisenant and Don Morrow.  The complaint, as last amended, named as defendants Whisenant; Don Morrow and Ernestine Morrow; and River Valley Properties, Inc., which, it was alleged, was owned by the Morrows and had some interest in the property.  The complaint contained claims against Whisenant alleging (1) fraud, (2) misrepresentation, (3) breach of contract, (4) a quasi-contract theory of recovery, (5) "interference with contractual or business relations," and (6) promissory estoppel.  It contained claims against Ernestine Morrow alleging breach of contract, and against Don Morrow and Ernestine Morrow alleging (1) breach of fiduciary duty and (2) "interference with contractual or business relations."  It sought various species of equitable relief, including (1) an "equitable lien against the premises," (2) damages in quantum meruit, and (3) annulment of the sale of the premises to the Morrows.  On August 29, 2002, Chunn moved for a summary judgment on her breach-of-contract and promissory-estoppel claims against Whisenant.  On November 18, 2002, Don Morrow and Ernestine Morrow moved for a summary judgment as to Chunn's claims against them and River Valley Properties.  On February 25, 2003, Whisenant moved for a summary judgment.  Whisenant's motion challenged specifically only the breach-of-contract claim, asserting that the claim was barred by the Statute of Frauds, Ala. Code §8-9-2.  On February 28, 2003, the trial court -- citing only the Agreement -- granted the motions of the Morrows and Whisenant and denied the motion of Chunn.  HOLDING: The Supreme Court stated that it cannot reach the conclusion that Morrow purchased the right to assert an equitable lien against property owned by him because the purchase of such a right would have been in essence a "release," and the Agreement does not purport to be a "release."  The Court noted that Whisenant's promise to give Chunn the "first opportunity to buy" the property was not a "lease" in any sense, but a "right of first refusal" in the form of a side agreement.  It was supported by consideration independent of the lease, namely, Chunn's promise to repair the real estate.  Thus, the Court held that the Agreement has no effect on claims arising out of the alleged breach of the right of first refusal and that the trial court erred in relying on the Agreement as a basis for its summary judgment.  The Court reversed the summary judgment in favor of Whisenant, and remanded the case for further proceedings.  The Court noted, however, that Chunn made no argument and cited no authority in support of any of her claims against the Morrows or River Valley Properties.  Thus, the Court deemed as abandoned any challenge to the summary judgment in favor of the Morrows and River Valley Properties.  The summary judgment in favor of Don Morrow, Ernestine Morrow, and River Valley Properties was, therefore, affirmed.)
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• Hyche Landfill, LLC v. Winston County,

No. 1021192 (Ala. Sept. 19, 2003)
(denial of application to expand landfill service area; On June 4, 1999, Hyche Landfill, LLC ("Hyche") filed with the Commission, pursuant to Ala. Code §22-27-48, a request for "local approval" to expand its landfill service area ("the application").  At that time, Hyche was operating a facility in Winston County known as the Hyche Construction and Demolition Landfill ("the landfill"), pursuant to local approval and a permit issued in 1997 by the Alabama Department of Environmental Management ("ADEM").  The 1997 permit allowed Hyche to process at the landfill construction and demolition waste originating in Franklin, Marion, and Winston Counties.  The application sought local approval of a proposed expansion of Hyche's service area to include "all counties that are touched by a 40-mile radius from the [landfill]."  The proposed expansion encompassed the counties of Blount, Colbert, Cullman, Fayette, Franklin, Jefferson, Lauderdale, Lawrence, Limestone, Madison, Marion, Marshall, Morgan, Walker, and Winston.  The Commission conducted a duly noticed public hearing on the proposed expansion on July 27, 1999.  On August 9, 1999, the Commission considered the application at a regularly scheduled meeting.  Members of the public opposed to the application attended both the hearing and the meeting.  At the close of the regular meeting, the Commission rejected the application.  Two of the three  commissioners, Hayes and Humphries, had voted against the application; Hood had abstained.  The commissioners stated no reasons for denying the application.  On November 9, 1999, Hyche sued Winston County, the Winston County Commission, and the three individual members of the Commission, namely, Roger Hayes, its chairman, and Commissioners Jeff Hood and Quinton Humphries, in their representative capacities (Winston County, the Commission, and its members are hereinafter referred to collectively as "the County").  The complaint alleged, among other things, that in denying the application, the County failed to comply with Ala. Code §22-27-48(a).  Hyche sought an injunction against "further violations" of that Code section, and an order compelling the County to "approve the requested expansion to the [l]andfill's service area."  The parties agreed to submit the case for final resolution on "stipulations and [documentary] evidence in lieu of [a] trial."  On March 14, 2003, the trial court entered a final judgment affirming the denial of the application.  In its judgment, the trial court stated: "To strictly conform with [§22-27-48(a)], the Winston County Commission shall within ten (10) days supplement its minutes of August 9, 1999, to set forth the reason(s) for the denial of the [application]."  HOLDING: The Supreme Court affirmed.  The Court held that the Commission, which denied the application on August 9, 1999, did not "fail to act," within the meaning of §22-27-48(a).)
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Opinions Released September 12, 2003

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

 
• Alfa Life Ins. Corp. v. Green,

No. 1011798 (Ala. Sept. 12, 2003)
(fraud; reasonable reliance; Andy Green and Bonnie Green ("the Greens") sued Alfa Life Insurance Corporation ("Alfa") alleging fraud, suppression, and negligent or wanton failure to procure insurance.  The claims arose out of the Greens' purchase of a $500,000 whole-life insurance policy on Bonnie Green's life.  The Greens voluntarily dismissed their negligence and wantonness claims.  On December 14, 2001, the jury returned a verdict for the Greens, awarding them $300,000 in compensatory damages and $3,000,000 in punitive damages.  On motion of Alfa, the trial court reduced the punitive-damages award to $900,000 in accordance with Ala. Code §6-11-21.  On January 14, 2002, Alfa filed a posttrial motion for a judgment as a matter of law, or, alternatively, for a new trial and a motion seeking a remittitur.  The trial court denied all of Alfa's motions. HOLDING:  The Supreme Court reversed.  The Court held that the Greens failed to demonstrate that their reliance on Alfa's representations to them regarding a whole-life insurance policy was reasonable.)
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• Zaden v. Elkus,

No. 1012149 (Ala. Sept. 12, 2003)
(discovery; relevancy; existence of insurance; medical malpractice; Helen Zaden sued Dr. Richard Elkus, an orthopedic surgeon, asserting claims of medical malpractice based on an injury she allegedly suffered during the course of a surgical procedure performed by Dr. Elkus.  A jury rendered a verdict in favor of Dr. Elkus and the trial court entered a judgment on that verdict.  The dispositive issues presented in this case are whether the trial court improperly refused to allow Zaden discovery from a potential witness, who later testified at trial, concerning  a possible bias on the part of some of the physicians who had treated Zaden, assuming that the physicians had been provided with attorneys hired by Dr. Elkus's medical-liability insurer, and whether the ex parte interviews Dr. Elkus's attorneys conducted with certain of Zaden's treating physicians were improper.  Zaden contends that the trial court committed reversible error by preventing her from conducting discovery of the existence of liability insurance for the purpose of showing that Dr. Elkus's medical-liability insurer was providing lawyers to her treating physicians who were deposed, thereby raising an inference of witness bias. HOLDING:  The Supreme Court affirmed.  The Court held that two questions Zaden argues Dr. O'Neal should have been compelled to answer are not "relevant" because they sought to explore a possible overlap of professional liability carriers for Dr. O'Neal and Dr. Elkus.  Those two questions were: "Do you know whether or not your liability insurance is the same as the company that represents Mr. Elkus?" and "Do you know who your insurance is with?"  Those questions would not lead to "other evidence that will be admissible," because, even assuming that it might have been shown that Dr. O'Neal and Dr. Elkus both had liability insurance and that it was with the same insurance carrier, that information would not have been admissible at trial.  The Court also noted that the record is devoid of any information showing that that Dr. O'Neal and Dr. Elkus were covered by the same liability insurance carrier.  The Court noted that the three remaining questions posed to Dr. O'Neal -- (1) "Did you hire the gentleman here –- the lawyer here, that's representing you today?"; (2) "Are you the person that's going to pay the lawyer that's with you here today, Doctor?"; and (3) "How did you come to meet the gentleman, the lawyer here, that's representing you here today?" – do not directly raise an insurance issue.  However, the Court noted that it had no basis for assessing error, if any, in the trial court's refusal to require Dr. O'Neal to answer those questions because Zaden did not make any preverdict offer of proof concerning her expected answers to the questions, nor did she attempt to develop any evidence concerning those questions in connection with her motion for a new trial.)
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• Washington v. Bill Heard Chevrolet, Inc.,

No. 1020285 (Ala. Sept. 12, 2003)
(arbitration; dismissal; Floyd Washington sued Bill Heard Chevrolet, Inc. for fraud and sued Chevy Chase Bank, FSB for declaratory relief.  With regard to Chevy Chase Bank, he claimed that a retail installment contract as forged by someone and not sighed by him.  The trial court granted a motion to compel arbitration as to Bill Heard Chevrolet and dismissed the claim by the plaintiff for a judgment declaring the "forged" third retail installment sale contract void and unenforceable.  HOLDING:  The Supreme Court reversed the dismissal of the claim for declaratory relief against Chevy Chase Bank.  The Court concluded that the complaint does state a justiciable controversy, and the trial court committed reversible error in entering the Rule 12(b)(6) dismissal.  The Court noted that, according to the allegations of the complaint, the balloon payment of the third retail installment sale contract exceeds the balloon payment of the second; and, for aught that appears in the complaint, the third retail installment sale contract does not relieve the plaintiff from the obligations of the second.  The Court noted that, for aught that appears, the plaintiff will be bound to pay both retail installment sale contracts unless the trial court declares the third void as a forgery, as the complaint alleges it is, or unless the trial court otherwise addresses the apparent existence of the two putative contracts.  Therefore, the Court concluded that within the allegations of the complaint, the plaintiff may prove that he will suffer real harm in the absence of a declaratory judgment.  The Court affirmed the order granting the motion of Bill Heard Chevrolet to compel the plaintiff to arbitrate his claims against that company.)
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• Avis Rent A Car Sys., Inc. v. Heilman,

No. 1020667 (Ala. Sept. 12, 2003)
(class action; claims of breach of contract, unjust enrichment, and conspiracy; Cindy Wiegel Heilman and Rosalind Davis Meyer each rented automobiles from Avis or licensees of Avis at the airports in Birmingham and Montgomery, respectively, and paid, in addition to a fee for a rental period, charges described in their "transaction" documents as (1) an "8% tax recovery surcharge" ("the surcharge"), and (2) a 10% "concession fee recoupment" ("the recoupment").  When Heilman and Meyer took possession of their rented vehicles, they each received a "rental document," stating that they would be charged, among other things, "10.00% CONCESSION FEE RECOUP [line break]  TAX: .000%  [line break] 8% TAX RECOVERY SURCH."  Heilman and Meyer each signed her respective rental document.   The rental document was accompanied by a "rental jacket," containing a list of "rental terms and conditions."  It stated, in part, "I'll pay all sales, use, rental, and excise taxes, including tax-related surcharges."  Finally, upon the return of each car, the renter received a "return record."  The return record listed the itemized charges, including the surcharge and the recoupment.  Heilman was subsequently reimbursed by her employer, Douglas Stewart Company, Inc. ("Stewart"), for the cost of the rental.  On March 13, 2000, Heilman and Meyer sued Avis and the licensees on behalf of themselves and "all others similarly situated," alleging that the surcharge and the recoupment were unauthorized by law and that they had been assessed in violation of the terms of the transaction documents.  They sought compensatory and punitive damages under several theories, including breach of contract, fraud, suppression, and misrepresentation.  The complaint also contained a conspiracy count.  On July 30, 2002, Heilman and Meyer moved to certify the action as a class action, pursuant to Rule 23(b)(3).  On December 17, 2002, the trial court entered an order certifying a class on the breach of contract, unjust enrichment, and conspiracy claims.  The trial court declined to certify the fraud-based claims for class treatment.  Avis and the licensees appealed, contending that the trial court's analysis and holding fail to satisfy the Rule 23 requirements of class certification. HOLDING:  The Supreme Court held that the trial court erred in certifying the unjust-enrichment claim and the conspiracy claim for class-action treatment.  The Court held that the trial court also erred in including in the class corporations and "corporate travelers."   To that extent, the Court vacated the class-certification order.  The Court held that the trial court did not err, however, in certifying for class-action treatment the breach-of-contract claims of the "individual renters."  To that extent, the Court affirmed the class-certification order.)
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• Tyson Foods, Inc. v. McCollum,

No. 1020829 (Ala. Sept. 12, 2003)
(workers' compensation;  retaliatory discharge; Martha McCollum began work on July 29, 1997, at a  chicken processing plant owned and operated by Hudson Foods, Inc.  Tyson Foods acquired Hudson Foods in January 1998.  On July 21, 1998 (almost one year after McCollum started working for Hudson Foods and six months after Tyson acquired Hudson Foods), McCollum sustained an on-the-job injury to her finger while working a sealing machine on a bag line conveyor.  Tyson paid for all of the medical expenses McCollum incurred as a result of this injury, and McCollum received $3,100 in workers' compensation benefits related to this injury.  McCollum returned to work in September 1998, but, because of her injury, she was physically unable to perform her job on the bag line conveyor.  Tyson placed her in a different job, allowing her to work in its laundry room where she was able to undergo physical therapy three times a day for her finger.  As she felt able, McCollum would help out in the laundry room by hanging smocks worn by the employees while they worked.  About a month after McCollum returned to work, a Tyson nurse told McCollum that McCollum's doctors felt that she was ready to return to regular work and asked her if she would be willing to try to do so.  McCollum agreed, and Tyson placed her in the marinated raw breaded ("MRB") department, where her job was to check chicken that had been processed into "fingers" on a conveyor belt.  McCollum remained in this job for only three or four days, because the work, where the chicken products were conveyed on the belt at a fast speed, made her dizzy.  McCollum informed Jerry Phillips, Tyson's human resources manager, that she could not perform the work because it made her dizzy.  McCollum testified that Phillips told her that Tyson did not have any other type of work that McCollum could perform, so Phillips suspended McCollum without pay for three days.  McCollum also testified that she was asked to present a doctor's excuse, and that she later presented one stating that she could not work on fast-moving production lines involving small products.  McCollum also testified that three days after her meeting with Phillips, Tyson's nurse told her that Phillips did not understand the situation and to come back to work on Monday.  After McCollum presented the doctor's excuse, Tyson placed her in the position McCollum had requested -- a checker on the bag line in the MRB department.  McCollum did not suffer from dizziness on this line because the bags on the line were large.  Her duties in this new position involved checking to make sure that the bags were correctly sealed and coded, and, like her prior position, it was in a cold-work environment.  Twelve other employees worked on this line with McCollum.  McCollum testified that up until her assignment as a checker on the MRB line, no one at Tyson had harassed or mistreated her in any way.  After working on the MRB line for a time, McCollum decided to try a job in the debone department.  She tried the job but did not like it because she could not operate the machine well with one hand and because it was colder in the debone department than it was in the MRB department. She requested to be, and was, returned to her job in the MRB department.  On March 10, 2000 (approximately 18 months after she had returned to work following the injury for which she received workers' compensation benefits and approximately 20 months after she had filed her claim for those benefits), while working on the evening shift, she became sick; she was sneezing and coughing, and she had a temperature.  The illness had nothing to do with the 1998 injury to her hand for which she had received workers' compensation benefits.  McCollum went to the clinic at the plant and saw the nurse.  After she saw the nurse, McCollum told her supervisor, Joe Carroll, that she was ill and needed to go home.  Carroll told her that he needed to get David Smith, a processing superintendent, but before going to get Smith, Carroll moved McCollum down the line away from any blowing air.  McCollum moved, but told Carroll that moving away from the blowing air would not help because she was already sick.  Carroll left to find Smith, and Smith then came up and stood next to McCollum on the line.  McCollum testified that she told Smith that she was ill, advised him that she had seen the plant nurse, and informed him that she needed to go home.  Smith would not authorize her leaving and told her that if she left, it would be an unauthorized leave.  McCollum replied: "Do you mean I'm fired?"  Smith answered: "Yes, you will lose your job if you leave."  At this point, the power in the entire plant went off as the result of a thunderstorm, and Smith left McCollum.  Smith testified that before leaving McCollum to go check on the power outage, Smith told her, "Wait just a minute."  However, McCollum did not wait; rather, she told Carroll what Smith had said and advised him that she was sick and was going home.  Carroll replied "okay," and McCollum left.  When Smith returned 25 to 30 minutes later after checking on the power outage, he learned that McCollum had left.  Smith then filled out a separation notification form, which stated that McCollum had "walked off the job."  He checked the block indicating that she was "not eligible for rehire," and he described the circumstances on this form as follows:  "Martha [McCollum] walked off of her job and left."  It is undisputed that Smith was aware that McCollum had previously sustained an injury at work, but he claimed that he was unaware that she had instituted or maintained an action or had even filed a claim for workers' compensation benefits.  McCollum testified that she returned to Tyson on March 17, 2000, to pick up her paycheck.  A Tyson employee presented her with an exit-interview form and instructed her to fill it out to indicate that she had quit her employment.  She adamantly refused to sign this statement because she claimed that she had not quit, but that she had been fired.  She was then asked to complete the form by stating the reason for the cessation of her employment.  She wrote on the form that she was fired for asking to leave work because she was sick.  She presented the form to Cindy Light, an assistant personnel manager, and Light stated that "there's something wrong" and she requested that McCollum wait a few minutes while Light spoke with Jerry Phillips, Tyson's human resources manager.  McCollum then met with Phillips and Jeanette Masters, a union representative who happened to be in the plant at the time.  Phillips inquired about the circumstances leading to the termination of McCollum's employment. She explained the circumstances to him, and Phillips stated that Smith, McCollum's supervisor, did not have the authority to fire McCollum, that he should not have terminated her, and that terminating her was the wrong thing to do.  McCollum replied that she did not want to work at Tyson because she was frightened of the harassment she claimed to have experienced while she was employed at Tyson.  Phillips asked her to return to work, requesting that she take a few days to think about it and that she then advise him of her decision.  She telephoned several days later to advise him that she would not return because she was afraid to do so.   After a trial on McCollum's retaliatory discharge claim against Tyson, the trial court entered a judgment against Tyson and in favor of McCollum.  Tyson moved for judgment as a matter of law, and that motion was denied. HOLDING:  The Supreme Court reversed, holding that the trial court erred in denying Tyson's postjudgment motion for a judgment as a matter of law.)
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• Ex parte First Alabama Bank,

No. 1020855 (Ala. Sept. 12, 2003)
(judicial estoppel; Donald Vincent sued First Alabama Bank, now known as Regions Bank ("the Bank") and his wife, alleging negligence, breach of contract, conversion, and wantonness claims.  Vincent alleged that he had rented two safe deposit boxes from the bank and had placed $500,000 in cash and certificates of deposit in the boxes.  However, he claims that when he opened the boxes on November 21, 1991, the boxes were empty.  Vincent alleges that Betty Jo Vincent, his wife, gained unauthorized access to the boxes and removed the money.  The case was tried to a jury but later reversed on appeal by the Court of Civil Appeals on the grounds that the trial court erroneously excluded evidence that should have been admitted.   On remand, the Bank filed a motion for summary judgment asserting, among other things, that Vincent's claims were barred by the doctrine of judicial estoppel because he had, according to the Bank, represented under oath in previous bankruptcy proceedings and in divorce litigation with a former wife, Billie Vincent, that he did not have the $500,000 that he claimed Betty Vincent had removed from the safety-deposit boxes at the Bank.  In September 2001, the trial court entered a summary judgment in favor of the Bank and Betty Vincent.  In its summary-judgment order, the trial court relied primarily upon the doctrine of judicial estoppel, although it also cited a release as an alternative ground.   The Court of Civil Appeals reversed.  The Supreme Court granted certiorari review to consider the issue of judicial estoppel only.  HOLDING:  The Supreme Court reversed the Court of Civil Appeals (i.e., it affirmed the trial court's summary judgment on grounds of judicial estoppel).  The Court held that the argument based on judicial estoppel was not waived because the Bank had asserted the defense of "estoppel" in its answer.  The Court reevaluated the propriety of limitations upon the availability of the doctrine of judicial estoppel found in some of its earlier cases, and it held that reliance and privity are components that fit easily under the heading of equitable estoppel, but should not be essential elements of the doctrine of judicial estoppel.  The Court noted that application of the strict standards endorsed in earlier cases would require it to reject the Bank's defense of judicial estoppel on two grounds -- want of involvement of the Bank in the antecedent litigation and absence of reliance on the part of the Bank upon the result in the previous litigation -- but noted that such a result in this case is simply offensive because Vincent would be permitted to have it both ways, successfully denying ownership of an asset in the earlier proceedings and seeking its recovery in this proceeding.  Thus, the Court "embrace[d] the factors set forth in New Hampshire v. Maine[, 532 U.S. 742 (2001),] and join[ed] the mainstream of jurisprudence in dealing with the doctrine of judicial estoppel.  The Court expressly overruled Porter v. Jolly, 564 So. 2d 434 (Ala. 1990), and cases consistent with Porter that have not  heretofore been sub silentio overruled.)
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• Capitol Chevrolet & Imports, Inc. v. Payne,

No. 1021027 (Ala. Sept. 12, 2003)
(arbitration; scope of the arbitration agreement; claims of fraud and conversion; Jean A. Payne, purchased a used 1997 Cadillac Catera automobile from Capitol Chevrolet & Imports, Inc.   Capitol financed the purchase of the Catera, and both Payne and Capitol signed a "Retail Installment Sale Contract" and an accompanying arbitration agreement.  In September 2002, Payne sued Capitol and a Capitol salesperson, Jason Golden, alleging fraud and conversion.  According to Payne's complaint, approximately one month after she purchased the Catera, she returned the Catera to Capitol in reliance on Golden's representation that Capitol had a willing buyer for the vehicle.  Payne relinquished possession of the Catera to Capitol and stopped making payments on the car.  Payne alleged that Golden, while acting in the line and scope of his employment with Capitol, misrepresented to her that Capitol had a buyer for the Catera, and that, when Payne relinquished the Catera to Capitol in reliance on that misrepresentation, Golden converted the Catera for his personal use.  Payne's complaint alleged that, as a result of the misrepresentation, she lost the use of her vehicle, suffered severe mental anguish, and suffered an adverse credit rating once she stopped making payments on the Catera.  Capitol moved to compel arbitration based on the arbitration agreement Payne signed when she purchased the Catera.  Payne, however, argued that her claims, which alleged fraud and conversion, were outside the scope of the arbitration agreement.  The trial court agreed with Payne and denied the motion to compel arbitration. HOLDING:  The Supreme Court affirmed.  The Court concluded that a fair reading of the arbitration agreement signed by Payne and Capitol leads to the conclusion that the agreement covers only disputes that more closely relate to the initial purchase and financing of the Catera, and the negotiations and sale of other services incident to the initial sale of the Catera.)
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• Ex parte Troncalli Chrysler Plymouth Dodge, Inc.,

No. 1021135 (Ala. Sept. 12, 2003)
(personal jurisdiction; David J. Case sued Troncalli Chrysler Plymouth Dodge, Inc. ("Troncalli") and Alexander Dodge Chrysler Plymouth, Inc. asserting claims of (1) "conspiracy to commit fraud," (2) bad faith, (3) misrepresentation, (4) deceit, and (5) breach of contract.  Troncalli filed a "Special Appearance for the Purpose of Alleging Lack of Personal Jurisdiction."  Troncalli alleged that it "had no contact with the State of Alabama in this transaction," and moved to dismiss the complaint on that ground.  Troncalli subsequently supported the motion with a brief and the affidavit of Ryan Troncalli, its general manager.   Case filed a response to the motion to dismiss and an "Alternative Motion to Continue to Allow the [Case] to Conduct Limited Discovery."  On March 3, 2003, the trial court denied the motion to dismiss.  Troncalli then filed a petition for writ of mandamus, asking the Supreme Court to direct the trial court to vacate its order denying Troncalli's motion to dismiss the complaint and to direct the trial court to grant its motion to dismiss for lack of personal jurisdiction. HOLDING:  The Supreme Court granted the petition.  The Court held that a "computer database locator," which, Case contended allowed other Chrysler dealers to know Troncalli's inventory for the purposes of making a sale to their customers, was not an act made by Troncalli purposefully directed to Alabama entities.  The Court held that the allegations of Case's complaint do not support a colorable claim of general jurisdiction, and he was therefore not entitled to discovery.)
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Opinions Released September 5, 2003

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

 
• Jones v. Alfa Mut. Ins. Co.,

No. 1010565 (Ala. Sept. 5, 2003)
(insurance; bad faith; statute of limitations; On October 6, 1995, under an Alfa farmowner's insurance policy ("the policy"), the Joneses submitted to Alfa a claim for wind damage inflicted by Hurricane Opal on their home, garage, and barn earlier that month. On December 3, 1998, after Alfa had paid only parts of the claim, the Joneses sued Alfa for  breach of contract; bad faith; negligent hiring and supervision of employees and agents; negligent or wanton inspection of the Joneses' damaged property; misrepresentation grounded on alleged misrepresentations by Bradshaw, an Alfa adjuster; misrepresentation grounded on alleged misrepresentations by Wendell Sanders ("Sanders"), an Alfa agent; suppression; tortious cancellation of the policy; and conspiracy. In the same case, the Joneses sued Bradshaw; Engineer Jones, an independent structural engineer engaged by Alfa; and Jones Associates, Engineer Jones's corporation, for negligently or wantonly inspecting the Joneses' damaged property.  The defendants moved for dismissal under Rule 12(b)(6), Ala. R. Civ. P. They contended that the applicable statutory periods of limitations had expired before the Joneses filed their lawsuit.  The trial court considered only the pleadings and did not treat the Rule 12(b)(6) motion as a summary-judgment motion. The trial court dismissed only the claims for bad faith and negligent hiring and supervision. The Joneses do not appeal the dismissal of their claim for negligent hiring and supervision but do appeal the dismissal of their claim for bad faith.  The defendants moved for summary judgment on the remaining claims. The trial court entered  summary judgments for all of the defendants on all of the remaining claims, and the Joneses appeal these summary judgments on all of these claims. HOLDING:  The Supreme Court reversed the Rule 12 (b)(6) dismissal of the Joneses' bad faith claim against Alfa.  The Court affirmed the summary judgments for Bradshaw, Engineer Jones, and Jones Associates.  The Court held that the Joneses' claims for negligent or wanton inspection, suppression,  misrepresentation, and conspiracy were subject to summary judgment because one or more essential elements of each of those claims lacked supporting substantial evidence, and the defendants' motions for summary judgment aptly challenged these evidentiary failures.  Thus, the Court affirmed the summary judgments on those claims.)
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• Huntsville Utilities v. Consolidated Constr. Co.,

No. 1020195 (Ala. Sept. 5, 2003) (on application for rehearing; withdrawing and substituting the opinion of May 23, 2003)
(arbitration; interstate commerce; The Court reversed its previous decision that affirmed the denial of a motion to compel arbitration -- that is, it is now reversing the trial court's denial of a motion to compel arbitration.  The change in its previous decision is based on the U.S. Supreme Court's decision in Citizens Bank v. Alafabco, Inc., 123 S. Ct. 2037 (2003).)
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--(The original withdrawn opinion released May 23, 2003, in Huntsville Utilities is also available on the website of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Hudson v. Outlet Rental Car Sales, Inc.,

No. 1020231 (Ala. Sept. 5, 2003)
(arbitration;  fraud in the factum; C.T. Hudson sued Outlet Rental Car Sales, Inc. ("Outlet"), and others, asserting various claims stemming from Hudson's acquisition of a used truck from Outlet.  Hudson argued that Outlet committed fraud in the factum in that he was deceived as to the true nature of what he signed: he actually signed a lease contract when he thought he was signing a purchase contract. The trial court granted Outlet's motion to compel arbitration.  HOLDING:  The Supreme Court reversed.  The Court held that Hudson's fraud- in-the-factum claim is to be resolved by the trial court because fraud-in-the-factum claims test the "very existence of a contract" and are not subject to arbitration.)
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• Ex parte Evans,

No. 1020381 (Ala. Sept. 5, 2003)
(domestic relations; grounds for divorce; adultery; need for hearing on Rule 59 motion; In 2001, after 22 years of marriage, David J. Evans ("the husband") and Carol R. Evans ("the wife") were divorced by the Marshall Circuit Court, following the presentation of ore tenus evidence.  The wife alleged that the husband was engaged in "an open adulterous affair."  Also, the complaint alleged "a complete incompatibility of temperament ... between the parties" and "an irretrievable breakdown of the marriage."  In her demand for judgment, the wife sought relief in the form of a "divorce ... on the grounds of adultery."  In his answer, the husband admitted "a relationship with a third party."  Also, he admitted "a complete incompatibility of temperament" and "an irretrievable breakdown of the marriage," and in his counterclaim he sought a judgment of divorce on those grounds.  On May 23, 2001, the trial court entered a final judgment of divorce.  The judgment did not mention the husband's adultery, and it did not specify any ground for the divorce.  The other terms of the judgment are not relevant to our review of this matter.  On June 22, 2001, the wife filed a Rule 59 motion, requesting that the trial court "set a hearing in this matter."  In that motion, the wife alleged, in pertinent part, that the trial court had exceeded its discretion "by failing to state the grounds for divorce as being the adulterous conduct of the [husband]," and by failing to award her a larger share of the marital property and a larger amount of periodic alimony.  The trial court did not schedule a hearing on the wife's Rule 59 motion.  Instead, on July 17, 2001, the trial court entered an amended judgment of divorce, which differed very little from its earlier judgment, and in only one relevant respect.  The amended judgment added a ground for the divorce, stating that the husband and the wife "are forever divorced from each other for and on account of irretrievable breakdown of the marriage."  From that amended judgment of divorce, the wife appealed.  The Court of Civil Appeals affirmed the judgment of the trial court, without opinion. HOLDING:  The Supreme Court reversed.  The Court held that it is apparent that the trial court erred in failing to grant a hearing on the wife's Rule 59 motion.  The Court further concluded that the trial court's error in not granting a hearing on the wife's Rule 59 motion was not harmless, because it found "probable merit" in the wife's contention that the trial court should have granted the divorce on the ground of adultery and should have considered the husband's adultery in dividing the marital property and making its award of alimony.)
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• Moore v. John Hancock Life Ins. Co.,

No. 1020405 (Ala. Sept. 5, 2003)
(standing; trusts; insurance; John A. Moore and Susan L. Moore married in 1972.  They had two children, J. Ryan Moore and Barbara Ann Moore.  On April 27, 1999, John and Susan were divorced.  Susan has remarried and is now known as Susan Moore Davis.  On April 26, 1984, John created the John A. Moore Family Trust ("the Trust").  The Trust designated Susan as its trustee.  By its terms, the Trust was created for the benefit of Susan, as John's wife, and Ryan and Barbara Ann, as John's children.  Susan, as the trustee, was given broad rights with respect to any insurance policies forming any part of the trust estate.  Also, the Trust included a provision addressing the possibility that John and Susan might divorce, providing that "upon the date that such divorce decree becomes final, Grantor's wife, if then serving as a Trustee hereunder, shall no longer remain as Trustee, but, on the contrary, shall be required to resign forthwith and to transfer, deliver and pay over all assets included in the trust to the successor Trustee named herein."  In 1987, John Hancock issued a policy of life insurance, designating John as the insured.  The policy was issued to Susan, as trustee of the Trust, and, in that same capacity, Susan was designated the owner and sole beneficiary of the  policy.  Beginning in 1990, John, by his own admission, obtained loan proceeds from John Hancock by signing Susan's name to the necessary loan-request forms.  John admittedly used the loan proceeds to pay his personal financial obligations, after intercepting the loan checks, which were payable to Susan, as trustee of the Trust.  John and Susan were divorced in April 1999.  After the divorce, John continued to obtain loan proceeds from the policy for his personal use by signing Susan's name, as trustee, to the necessary loan-request forms.  In March 1999, International Oil stopped paying the premiums on the John Hancock policy.  As a result, the policy's cash value began to diminish by virtue of the fact that the cash was being used to pay the premiums.  John decided in early 2000 to cash surrender the John Hancock life insurance policy.  However, under the terms of both the Trust and the John Hancock policy, only Susan, acting in her capacities as trustee of the Trust and as owner of the policy, was entitled to surrender the policy for cash.   Barbara Ann and Ryan were aware of John's plans to obtain the cash-surrender proceeds and to use them to pay his personal financial obligations and living expenses.  Neither of the adult children objected to John's plans.  John and John Hancock agree that Susan initially agreed to obtain the cash-surrender benefits for John, as both he and their children had requested.  However, they also agree that Susan changed her mind, deciding, instead, to surrender the policy for cash for her personal benefit.  On February 14, 2000, Susan, as owner of the policy, signed the cash-surrender form, requesting that John Hancock make its check payable to "Policy/Contract Owner" and that it mail the check to her at a new address.  John Hancock received Susan's cash-surrender form on February 16, 2000.  On February 18, John Hancock issued its check for the cash-surrender value of the policy.  The check was payable to "Susan L. Moore, Trustee," and was mailed to Susan at the new address.  John had attempted to prevent Susan's cash surrender of the policy.  On February 15, 2000, a former John Hancock agent, at John's request, had an employee telephone John Hancock to notify it that there was a "dispute" over the ownership of the policy.  On February 16, 2000, the former agent faxed copies of the Trust and the divorce judgment to John Hancock.  On December 6, 2000, John, Ryan, and Barbara Ann filed a complaint against John Hancock and Susan, in which they "sought compensatory and punitive damages against John Hancock and [Susan] for the wrongful cash surrender of [the] life insurance policy insuring the life of John A. Moore and held in trust for J. Ryan Moore and Barbara Ann Moore."  The complaint stated claims alleging negligence, wantonness, conversion, fraudulent misrepresentation, breach of contract, bad faith, fraudulent suppression, and conspiracy.  John Hancock filed a motion for a summary judgment, which, after oral arguments and the submission of briefs, the trial court granted on August 15, 2002, stating, in part, that the "[p]laintiffs lack standing to bring this action against John Hancock."  The trial court later made the summary judgment for John Hancock final, pursuant to Ala.R.Civ.P. 54(b).  HOLDING:  The Supreme Court vacated the summary judgment and dismissed the appeal.  The Court noted that John conceded in the trial court that he has no standing to sue John Hancock and that when a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.  The Court held that the absence of subject-matter jurisdiction renders void any judgment entered in the action, and a void judgment will not support an appeal.  The Court also concluded that the other plaintiffs lacked standing.)
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• BE&K, Inc. v. Baker,

No. 1020594 (Ala. Sept. 5, 2003)
(appellate procedure; permissive appeal; BE&K, Inc., BE&K Properties, Inc., Polar Real Estate Corporation, and Polar Property Development, Inc. (hereinafter referred to collectively as "the counterclaim defendants"), appeal, pursuant to Ala. R. App. P. 5, from the trial court's interlocutory order denying their motions for judgment on the pleadings.  In its Rule 5(a) certification, the trial court identified what, in its opinion, is the "controlling question of law" in this case: "Specifically, the issue presented is whether the claims asserted in the counterclaim relate back as to [the counterclaim defendants] under Ala. Code § 6-8-84."  The Supreme Court granted permission to appeal.  HOLDING:  The Supreme Court dismissed the appeal without prejudice.  The Court stated that under the undisputed facts, the trial court has not identified "a controlling question of law," and that §6-8-84 is irrelevant to any consideration of the compulsory counterclaims asserted by the Baker defendants.  The Court noted that, on appeal, the counterclaim defendants sought to redefine the issue presented for review, effectively abandoning the issue stated by the trial court.)
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• SouthTrust Bank v. Copeland One, L.L.C.,

No. 1020727 (Ala. Sept. 5, 2003)
(interpretation of a lease agreement; ambiguity; This case involves the interpretation of a provision in a lease between SouthTrust Bank ("SouthTrust") and Copeland One, L.L.C. ("Copeland One"). The lease, drafted by SouthTrust, provided for a freestanding automated teller machine ("ATM") to be operated by SouthTrust on property owned by Copeland One (the "ATM lease").  The trial court determined that the provision in the ATM lease was ambiguous and entered a judgment for Copeland One.  HOLDING:  The Supreme Court affirmed.  The Court held that because SouthTrust drafted the ATM lease, any ambiguity in that lease must be construed against it.)
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• Ex parte J.C.,

No. 1020824 (Ala. Sept. 5, 2003)
(criminal; youthful offender; constructive possession; trafficking in marijuana; The petitioner, J.C., was convicted as a youthful offender of trafficking in marijuana and possession of drug paraphernalia.   Leslie Woodall, an Alcoholic Beverage Control Board agent who participated in the search, testified that, during the search, he could smell marijuana throughout the house.  However, all the marijuana found during the search, which totaled more than 17 pounds, was found in the father's bedroom.  Leslie Woodall, an Alcoholic Beverage Control Board agent who participated in the search, testified that, during the search, he could smell marijuana throughout the house.  However, all the marijuana found during the search, which totaled more than 17 pounds, was found in the father's bedroom.  The trial judge stated that, even though all 17 pounds of marijuana was found in the father's bedroom, the strong odor of marijuana in the house and the paraphernalia and marijuana seeds found in J.C.'s bedroom satisfied the judge beyond a reasonable doubt that J.C. knew the marijuana was in the house.  Accordingly, the trial court found J.C. guilty of trafficking in marijuana.  He was sentenced to three years' imprisonment on the trafficking charge and to one year's imprisonment on the drug-paraphernalia charge.  The trial court suspended the sentences and ordered J.C. to attend a disciplinary-rehabilitation program, to be followed by three years of probation.  The Court of Criminal Appeals affirmed both convictions by an unpublished memorandum.  HOLDING:  The Supreme Court reversed.  The Court held that the evidence presented at trial was not legally sufficient to show that J.C. constructively possessed the marijuana found in his father's bedroom.)
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• Ex parte Sawyer,

No. 1020897 (Ala. Sept. 5, 2003)
(immunity; state-agent immunity; qualified immunity; In September 1999, Edna Moseley, a resident at the Mary Starke Harper Geriatric Center at Bryce Hospital in Tuscaloosa, was injured when she was attacked by another patient.  Joyce Marsh, in her capacity as Edna Moseley's guardian, sued the Alabama Department of Mental Health and Mental Retardation ("DMHMR") and  Kathy Sawyer, commissioner of DMHMR, in her individual and official capacities, seeking  damages, injunctive relief, and declaratory relief.  Marsh alleged that Sawyer had negligently or intentionally violated the policies and procedures of DMHMR by refusing to provide Marsh with information regarding the assault; that Sawyer's actions violated Moseley's civil rights under 42 U.S.C. § 1983; that Sawyer had negligently failed to correct the pattern of abuse of patients by workers at Bryce Hospital; and that Sawyer had failed to perform numerous legal duties and ministerial acts to protect mental-health patients at Bryce Hospital.  The trial court dismissed the claims against Sawyer in her official capacity, but it denied her motion for a summary judgment as to claims against her in her individual capacity.  Sawyer filed this petition for a writ of mandamus directing Judge Price to dismiss the claims asserted against her in her individual capacity.  HOLDING:  The Supreme Court concluded that Sawyer is protected under the doctrine of State-agent immunity because the actions for which Marsh is seeking to hold her liable occurred while she was acting as the commissioner of DMHMR.  The Court concluded that there is insufficient evidence indicating that Sawyer acted "willfully, maliciously, fraudulently, [or] in bad faith" in discharging her duties.  The Court further concluded that Sawyer was engaged in a discretionary function and that nothing in the record  indicates that Sawyer did not believe her actions at the time were lawful in light of the law and the information she possessed at that time.  The Court therefore granted the writ of mandamus and directed the trial court to enter a summary judgment in favor of Sawyer on the claims against her in her individual capacity.)
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• Watts v. Sentry Ins.,

No. 1020995 (Ala. Sept. 5, 2003)
(uninsured/underinsured-motorist insurance; workers' compensation; Michael Raymond Watts was driving a motor vehicle owned by his employer, Johnson Controls, Inc., when the vehicle was struck by a utility trailer that had come loose from a vehicle driven by William J. Rupe and owned by Rupe's employer, Dwight's Lawn & Garden Equipment, Inc., d/b/a A & D Distributors; the utility trailer was owned by Dwight's Lawn & Garden Equipment, Inc.  The accident occurred while Watts was acting within the line and scope of his employment.  Watts fractured his right tibia and injured his left knee, shoulders, and back in the accident.  Watts received from his employer, Johnson Controls, workers' compensation benefits and expenses for medical and surgical treatment under Ala. Code §25-5-77.  Watts sued Rupe and others, including Sentry Insurance ("Sentry") (but not Johnson Controls), to recover compensatory damages and punitive damages as a result of the accident.  Watts alleged that he was insured by, or was the beneficiary of, policies of motor-vehicle insurance issued by Sentry, pursuant to which Sentry was to provide Watts protection against bodily injury caused by an uninsured/underinsured-motorist in consideration of a premium paid to Sentry by Watts's employer, Johnson Controls.  Watts alleged that the injuries and damage he suffered were proximately caused by the negligent or wanton conduct of Rupe, an underinsured motorist, and that Sentry had failed to pay Watts benefits under the policy.  Sentry moved for a summary judgment, alleging that Watts was an employee of Johnson Controls; that Watts was operating a vehicle owned by Johnson Controls within the line and scope of his employment at the time of the accident; that Watts was injured as a result of that accident; that Watts and Johnson Controls were subject to the provisions of the Alabama Workers' Compensation Act; that Watts had made a claim for and received workers' compensation benefits from Johnson Controls; that Sentry is the underinsured-motorist carrier for Johnson Controls, but not its workers' compensation carrier; and that Watts sued Sentry (Johnson Controls' underinsured-motorist carrier) seeking underinsured-motorist benefits after he had filed a workers' compensation claim to recover benefits from Johnson Controls' workers' compensation carrier.  The trial court entered summary judgment in favor of Sentry.  HOLDING:  The Supreme Court reversed.  The Court held that an employee who is receiving workers' compensation benefits from his employer for injuries he sustained in a motor-vehicle accident that occurred while the employee was driving a vehicle belonging to the employer can recover underinsured-motorist benefits from the employer's automobile liability insurer (which is not the employer's workers' compensation insurer), if the employee's injuries were proximately caused by the negligence or wantonness of an underinsured driver, who was not a co-employee, but subject to the employer's right to reimbursement for the compensation paid on account of the employee's injury to the extent of the employee's recovery of damages against the third-party tortfeasor.  The Court held that nothing in the Alabama Code or Alabama caselaw shelters Sentry from its liability for underinsured- motorist coverage under the facts of this case.)
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• Clement Contracting Group, Inc. v. Coating Sys., L.L.C.,

No. 1021337 (Ala. Sept. 5, 2003)
(arbitration; Clement Contracting Group, Inc. is a general contractor.  Coating Systems, L.L.C.  is a painting subcontractor.  According to Coating Systems' articles of organization, Mark Underwood is the sole member and the manager of the company.  In February 2000, Clement and Coating Systems entered into a contract pursuant to which Coating Systems would be responsible for painting a building Clement was constructing.  Underwood signed the contract with Clement, writing the word "member" under his signature.  A dispute arose concerning the work performed by Coating Systems and the amount of payment due under the contract, and Clement initiated arbitration proceedings against Coating Systems and Underwood pursuant to an arbitration clause in the contract.  Clement sought to have Coating Systems and Underwood held liable for breach of the contract.  Coating Systems and Underwood then filed a complaint for a judgment declaring the parties' rights under the arbitration provision in the contract and an ex parte motion to stay the arbitration proceedings while the declaratory-judgment action was pending.  They also asked the trial court to find that Underwood "is not personally liable and individually subject to the arbitration clause of said [contract] and that the dispute and arbitration is between Clement and Coating Systems."  The trial court issued an order granting Coating Systems and Underwood's motion to stay the arbitration proceedings pending a resolution of the declaratory-judgment action.  Clement then filed a motion to compel arbitration, a motion to dissolve the stay, and a motion for a summary judgment in the declaratory-judgment action. In response to Clement's motions, Coating Systems and Underwood filed a motion for a summary judgment.  Clement filed a response and a brief in opposition to Coating Systems and Underwood's motion for a summary judgment.  After a hearing on the motions, the trial court denied Clement's motions for a summary judgment and to compel arbitration.  The trial court also entered a summary judgment in favor of Coating Systems and Underwood, concluding that "Underwood is not subject to arbitration in his individual capacity."  The trial court further stated that "arbitration may proceed between [Clement] and [Coating Systems]."  Clement appealed. HOLDING:  The Supreme Court affirmed.)
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Opinions Released August 29, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  AUGUST 29, 2003

 
• Alafabco, Inc. v. Citizens Bank,

No. 1010703 (Ala. Aug. 29, 2003)
(arbitration; interstate commerce; In accordance with the June 2, 2003, opinion and order of the United States Supreme Court, Citizens Bank v. Alafabco, Inc., 123 S. Ct. 2037 (2003), the Supreme Court of Alabama vacated its previous judgment which reversed the trial court's order granting the motion of The Citizens Bank ("the Bank") to compel Alafabco, Inc., to arbitrate its dispute with the Bank and its employees.  The Court affirmed the trial court's order directing the parties to proceed to arbitration.)
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--(The U.S. Supreme Court's  opinion released June 2, 2003, in Citizens Bank v. Alafabco, Inc., 123 S. Ct. 2037 (2003), is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. website)--

--(The reversed opinion released on August 30, 2002, by the Supreme Court of Alabama in Citizens Bank v. Alafabco, Inc., No. 1010703, is also available on the Wallace, Jordan, Ratliff & Brandt, L.L.C. website)--
 

• Lanier Worldwide, Inc. v. Clouse,

No. 1011194 (Ala. Aug. 29, 2003)
(arbitration; Kim Clouse, d/b/a Southern Printing, financed the lease of a Lanier Worldwide, Inc. ("Lanier") copier with Green Tree Vendor Services Corporation, now Wells Fargo Financial Leasing, Inc.  Pursuant to the tripartite agreement, Lanier  "shipped the [copier] across state lines to deliver it to Southern Printing in Alabama" and installed the copier at Southern Printing.  Clouse, d/b/a Southern Printing, executed an "ORDER AGREEMENT" for service by Lanier on specified parts of the leased copier.  Near the top of the "Order Agreement" appears the statement, "AGREEMENT CONSISTS OF THIS PAGE AND THE GENERAL TERMS AND CONDITIONS ATTACHED AND THE PAGE OF SPECIFIC TERMS AND CONDITIONS CHECKED ABOVE."  The Order Agreement is not signed by Lanier.    The "GENERAL TERMS AND CONDITIONS" printed on the back of the Order Agreement state that "This Agreement is subject to approval by Lanier at Lanier's Home Office in Atlanta, Georgia.  Written confirmation indicating acceptance will be mailed to Customer by Lanier."  The general terms and conditions also contain an arbitration provision.  Clouse sued Lanier and Wells Fargo Financial Leasing, Inc., for breach of implied warranty of merchantability, fraudulent misrepresentation and suppression, and conspiracy.   Lanier moved to compel Clouse to arbitrate her claims against Lanier.  Clouse contended that because Lanier did not sign the Order Agreement or mail Clouse "[w]ritten confirmation indicating acceptance" of the Order Agreement as its terms require for  Lanier to have accepted the Order Agreement, Lanier never accepted the Order Agreement, which contained the arbitration provisions.  Clouse contended, therefore, that the absence of acceptance by Lanier prevented the formation of a contract and thereby rendered the arbitration provisions unenforceable.  After a hearing, the trial court denied the motion to compel arbitration.  HOLDING:  The Supreme Court reversed.  The Court held that because the party "to be charged" by enforcement of the contract is Clouse, d/b/a Southern Printing, the lack of a signature by an agent of Lanier on the Order Agreement does not render the arbitration provisions unenforceable in this case.  The Court held that the performance by Lanier can and does evidence its acceptance.)
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• Balentine v. Reynolds Metals Co.,

No. 1011598 (Ala. Aug. 29, 2003)
(The Court reversed the summary judgment in favor of the appellees because the appellees admitted that the material facts of the decision in Weaver v. Kimberly-Clark Corp., No.  2991238 (Ala. Civ. App. Nov. 30, 2001), are indistinguishable from the facts of the present case, and because the Supreme Court reversed Weaver in Ex parte Weaver, No. 1010582 (Ala.  June 27, 2003).)
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• Ex parte M.P. (In re: Adoption of J.C.P.),

No. 1012260 (Ala. Aug. 29, 2003)
(adoption; The Supreme Court denied the petition for writ of certiorari without opinion, but the Court stated that in denying the petition for the writ of certiorari, the Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.)
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• Cashion v. Torbert,

No. 1020449 (Ala. Aug. 29, 2003)
(res judicata; probate; attorneys' fees; This appeal arises out of a "fairly convoluted procedural history."  On July 12, 2000, the Montgomery County Department of Human Resources petitioned for protective placement for Dot C. Smith, an elderly woman with multiple physical and mental disabilities.  The matter was assigned to Montgomery Circuit Judge Tracy McCooey, who entered an order filed on August 31, 2000, directing that Smith "remain in her current nursing home placement" and appointing Mary Dixon Torbert as conservator of Smith's estate.  On November 30, 2000, Smith died.  Kathy Lou Tipler of Rossville, Tennessee, a relative of Smith's, filed a petition to probate Smith's will with the judge of probate of Montgomery County on January 23, 2001.  James W. Cameron cosigned the petition as Tipler's attorney. The probate judge, the Honorable Reese McKinney, granted letters testamentary to Tipler on January 23, 2001.  On February 7, 2001, Torbert filed in the Montgomery Circuit Court a petition for final settlement as conservator.  Torbert filed her "Application for Attorney's Fees" accompanied by a copy of her five-page itemized statement of services rendered.  Torbert certified that copies of both filings were hand-delivered to Cameron on February 6, 2001.  On February 8, Judge McCooey entered an order granting the petition for final settlement, and, among other things, discharging Torbert and the surety on her conservator's bond "from all further liability."  On that same day, Judge McCooey entered a separate order awarding Torbert attorney fees in the amount of $15,298.75.  Copies of both orders were served on Cameron.  On February 13, 2001, Cameron, in his capacity "as Counsel for Kathy Lou Tipler, executrix of the estate of Dot C. Smith," acknowledged receipt of various items from Torbert, consisting of various keys, three rings, and three boxes containing, but not limited to, "pleadings, correspondence, bills, checkbooks[,] bank information [and] personal papers belonging to the Estate."  The date of Cameron's receipt of those items, whether on February 13, or on or before February 8, is thus uncertain.  When Tipler subsequently was unable to continue as executrix, Amanda Linn Cashion, a niece of Smith's and a resident of Memphis, Tennessee, was appointed successor executrix on April 12, 2001.  On October 10, 2001, Cashion signed under oath her "Report of Insolvency," which declared that the estate had assets of only $18,511.46 and claims against it totaling $31,064.13, not including the expenses and fees of Tipler and Cashion, which totaled $5,800.  Judge McKinney conducted a hearing on the insolvency report on January 9, 2002, and declared the estate insolvent.  Cashion served a "Brief in Support of Report of Insolvency" in which, among other things, she alleged that Torbert had exaggerated the net worth of the conservatorship estate in her final accounting to Judge McCooey and had misrepresented and omitted certain assets and liabilities.  Judge McKinney issued a "Decree of Insolvency," declaring the estate insolvent and ordering that Amanda Linn Cashion, as executrix, appear and make a statement of her administration for final settlement of said estate.  Judge McKinney issued his "Order on Final Settlement," in which he found, "upon consideration of all the evidence, testimony, and briefs," that the available assets of the estate amounted to $18,511.46, and that they should be disbursed to satisfy certain claims and expenses of the estate, including Torbert's claim, reduced  from the $15,298.75 awarded by Judge McCooey to $15,286.11.  Further, Torbert was ordered to pay out of that amount two other claims, totaling $2,548.79.  Judge McKinney concluded his order by stating that upon the ordered disbursements being made, the estate would be "fully and completely settled."  Cashion signed a notice of appeal with respect to Judge McKinney's order on final settlement, her "Request for Findings of Fact and Conclusion of Law" directed to him, and an "Action to Set Aside Judgment Procured Through Fraud upon the Court and Complaint for Breach of Fiduciary Duty."  The action to set aside Judge McCooey's order and her complaint alleging breach of fiduciary duty were filed in the Montgomery Circuit Court on April 11, 2002.  The matter was assigned to Judge Eugene Reese.  On May 20, 2002, Torbert filed a motion to dismiss Cashion's proceedings in the circuit court.  On July 15, Cashion filed with Judge Reese a motion to consolidate,  noting that her appeal to the Montgomery Circuit Court of Judge McKinney's order on final settlement had been assigned to Judge William A. Shashy, and stating that the appeal and the case pending before Judge Reese involved common questions of law and fact.  Torbert filed a reply to Cashion's opposition to her motion to dismiss, and two of the principal legal issues argued were the defenses asserted by Torbert in her motion to dismiss of res judicata and collateral estoppel.    The parties stipulated that the motion to dismiss would be treated as a motion for a summary judgment, because of the various exhibits attached to it.  On October 10, 2002, Judge Reese denied the motion to consolidate the cases and granted Torbert's motion for a summary judgment on the grounds of res judicata and collateral estoppel.  Cashion appealed. HOLDING:  The Supreme Court affirmed Judge Reese's summary judgment and the order dismissing Cashion's independent action filed on October 10, 2002.  The Court concluded that Judge Reese was authorized to accord res judicata effect to Judge McKinney's order on final settlement in the probate proceeding, as affirmed by Judge Shashy.)
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• Gill v. Burrell,

No. 1021130 (Ala. Aug. 29, 2003)
(appellate jurisdiction; The appellant is appealing the trial court's order dismissing his civil claim pursuant to Ala. Code §6-5-260 wherein the appellant sought return of $2,700 which he alleged was taken from his person incident to two separate arrests in 1990.  The appeal was originally filed with the Court of Criminal Appeals and then transmitted to the Court of Civil Appeals, because this is an appeal  from the dismissal of a civil claim.  The Court of Civil Appeals transferred the appeal to back to the Court of Criminal Appeals for lack of subject-matter jurisdiction, but did not state any basis for its determination.  The Court of Criminal Appeals indicated it believed the determination by Court of Civil Appeals was based upon the Court of Civil Appeals' misinterpretation of State v. Baker, 703 So. 2d 333 (Ala. 1997).  The Court of Criminal Appeals then transferred the appeal to the Supreme Court of Alabama.  HOLDING:  The Supreme Court ordered that the record and briefs be returned to the Court of Criminal Appeals.  The Supreme Court held that because the plaintiff-appellant Robert C. Gill has filed a civil action to recover monies, or compensation for monies, that have never been introduced into evidence in any criminal proceeding, if any appellate court has appellate jurisdiction of the instant case, the Court of Civil Appeals is the one.  The Supreme Court noted that neither the instant case nor its procedural posture meets the criterion of Ala. Code §12-1-4 or the criteria of  Ala. Code §12-3-14 for transfer to the Supreme Court.  The Court noted that under these circumstances, Ala. Code §12-1-4 authorizes only a retransfer to the Court of Civil Appeals.  Thus, the Court returned the record and briefs to the Court of Criminal Appeals for it to retransfer the case to the Court of Civil Appeals.  The Court further noted that when the case finally returns to the Court of Civil Appeals, that court may want first to determine whether the amount in controversy met the minimum threshold for the subject matter jurisdiction of the circuit court, Ala. Code §12-11-30, where Gill filed this civil action. Unless the circuit court had such subject matter jurisdiction, its power was limited to transferring the case to the district court, see Ala. Code § 12-11-9,  and the power of the Court of Civil Appeals would be limited to addressing this jurisdictional defect in the order by the circuit court.)
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Judicial Inquiry Commission Complaint Released August 22, 2003

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

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• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  AUGUST 22, 2003

 
• Whatley v. Reese,

No. 1011485 (Ala. Aug. 22, 2003)
(caveat emptor; William S. Reese contracted with James H. Whatley, Jr.,  and Whatley Construction Company, Inc. (collectively "the Whatley defendants") for the construction of a home on a vacant lot he owned. When the home was completed, Reese moved into the home and has lived there alone continuously ever since. In 1998, Reese deeded legal title to the home to his mother, Hilda Hyche, but Hyche never occupied the home. In 1999, Hyche deeded legal title back to Reese.  Reese sued the Whatley defendants, among others, for breach of contract, negligence, wantonness, and fraud.  To recover for damage to the home allegedly caused by the exterior insulation and finishing system ("EIFS") applied to the home when it was built, Reese sued the Whatley defendants for breach of contract, negligence, wantonness, fraud, breach of warranty under the Alabama Uniform Commercial Code and violations of the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD"). Moving for summary judgment, the Whatley defendants asserted that the doctrine of caveat emptor applied to Hyche's claims because she was not the first owner of the home. They asserted also that the doctrine of caveat emptor applied to Reese's claims because he had deeded legal title to the home to Hyche.  The trial court granted summary judgment on all of Hyche's claims. Holding that EIFS constituted neither "goods" nor a "product," the trial court also granted summary judgment on Reese's claims under the Alabama Uniform Commercial Code and the AEMLD. However, the trial court held that caveat emptor did not apply to Reese's claims because he was the first purchaser of the home from the Whatley defendants and was the exclusive occupant at all times thereafter despite the temporary transfer of legal title to Hyche. Accordingly, the trial court denied summary judgment on Reese's claims for breach of contract, negligence, wantonness, and fraud.  The Whatley defendants sought and were granted permission under Rule 5, Ala. R. App. P., to appeal the interlocutory order denying them summary judgments.   HOLDING:  The Supreme Court affirmed.  The Court reasoned that because Reese contracted with the Whatley defendants for construction of the home, he was in privity of contract with them, and Reese's temporary transfer of legal title to Hyche did not alter the privity of contract that existed between Reese and the Whatley defendants.)
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• Bank of America Corp. v. Edwards,

No. 1011559 (Ala. Aug. 22, 2003)
(default judgment; motion to set aside; Addie L. Edwards sued several defendants in the Mobile Circuit Court; one of those defendants was Bank of America Corporation.  Because Bank of America is a foreign corporation, Edwards served the corporation by certified mail at an address in Irving, Texas.  Bank of America filed nothing in response, and on October 1, 2001, the Mobile Circuit Court entered a default judgment against Bank of America and awarded Edwards $85,000.  While researching an unrelated legal matter in Alabama, counsel for Bank of America discovered the default judgment.  On December 3, 2001, Bank of America moved the Mobile Circuit Court to vacate the default judgment pursuant to Rule 60(b)(4), Ala.R.Civ.P.  Specifically, Bank of America argued that the trial court's judgment was void because, it argued, the trial court lacked jurisdiction over Bank of America.  Bank of America alleged that the Irving, Texas, address to which the summons and complaint were sent was not Bank of America's usual place of business; instead, Bank of America alleged that its usual place of business was in Charlotte, North Carolina.  Bank of America further averred that the Irving, Texas, address was the usual place of business for one of its subsidiaries, NationsCredit Financial Services Corporation ("NationsCredit").  The Mobile Circuit Court denied Bank of America's motion to vacate the default judgment.  HOLDING:  The Supreme Court reversed.  The Court held that the trial court lacked jurisdiction because Bank of America was never properly served pursuant to Rule 4(c)(6), Ala.R.Civ.P., thereby rendering the judgment void.)
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• Ex parte Davis,

No. 1012402 (Ala. Aug. 22, 2003)
(criminal; criminal procedure; discovery; prior bad acts; notice by State; Vincent Edward Davis was convicted of five counts of theft of property in the first degree.  Davis served the prosecutor with  a copy of his discovery motion and that included in the motion was Davis's request that the State inform him of the general nature of all evidence of other crimes, wrongs, or acts the State intended to introduce at trial.  After voir dire examination, Davis made a motion in limine, seeking to exclude evidence of his alleged deceptive acts other than those charged.  Davis argued that the State had not provided him with notice of its intent to use this evidence as required by Rule 404(b), Ala.R.Evid.  The trial court informed Davis that the court file did not contain the discovery motion in which Davis alleged he had requested that the State notify him of the evidence the State intended to introduce of other crimes, wrongs, or acts he had committed.  The trial court rejected Davis's argument and admitted the evidence offered by the State.  Later in the trial, Davis informed the trial court that he had located his copy of the discovery motion and that he had not filed it with the circuit court clerk because he did not know the circuit court case numbers for the cases against him.  The trial court allowed Davis at that time to file the motion in open court. HOLDING:  The Supreme Court affirmed.  The Court held that the prosecution is not required to comply with any request contained in a discovery motion until the discovery motion is filed in the trial court under Rule 16, Ala.R.Crim.P., which specifically provides that the State must comply within 14 days after a discovery motion "has been filed in court."  The Court held that when a defendant requests notice pursuant to Rule 404(b) and places that request in a discovery motion, the defendant must file the motion in the trial court before the State is required to comply.)
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• McDole v. Alfa Mut. Ins. Co.,

No. 1020539 (Ala. Aug. 22, 2003)
(insurance; uninsured/underinsured-motorist coverage; settlement; George Johnson was driving collided with a truck being driven by Jimmy Brown, an employee of Builders Transport, Inc.  Johnson was seriously injured as a result of the collision.  Johnson alleged that Brown was responsible for the accident, and he sought to recover damages for his injuries from the liability insurer for Builders Transport.  At the time of the accident, Builders Transport was self-insured for the first $1 million of liability resulting from motor-vehicle accidents.  After that amount was exhausted, Builders Transport had an annual aggregate deductible in the amount of $1 million.  This meant that Builders Transport was itself liable for the next $1 million of all claims entered against it on a nationwide basis in a given calendar year.  After Builders Transport met this annual aggregate deductible, Reliance Insurance Company provided up to $1 million in excess coverage to Builders Transport.  After the claims exhausted Reliance Insurance Company's $1 million excess coverage, Gulf Insurance Company provided another layer of excess coverage to Builders Transport in an amount up to $13 million.  Gulf Insurance's coverage would apply in this case only if Johnson's damages exceeded $3 million.  Johnson had two automobile-insurance policies with Alfa that were in effect on the date of the collision.  Each policy included uninsured/underinsured-motorist coverage in the amount of $20,000.  Builders Transport filed a petition in bankruptcy seeking protection under Chapter 11 of the Bankruptcy Code.  McDole and Johnson obtained relief from the automatic bankruptcy stay, and their claims against Builders Transport were allowed to proceed but only to the extent "coverage is available under any insurance policy issued to or covering the liability of [Builders Transport], provided, however, that McDole may not execute any judgment so obtained against any asset of [Builders Transport's] bankruptcy estates."  Lula McDole, in her capacity as the conservator of Johnson's estate, and George Johnson, individually, sued Builders Transport and Alfa.  McDole and Johnson (McDole and Johnson are hereinafter referred to collectively as "McDole") alleged that Brown, while acting as an agent for Builders Transport, had negligently or wantonly operated a motor vehicle so as to cause Johnson's injuries.  McDole also alleged that Builders Transport had negligently or wantonly entrusted its vehicle to Brown.  Against Alfa, McDole alleged a bad-faith failure to pay uninsured- or underinsured-motorist benefits.  Alfa filed a motion to dismiss the action as to it; in the motion Alfa admitted that the automobile-insurance policies it had issued to Johnson provided uninsured- and underinsured-motorist coverage, but it alleged that McDole's complaint failed to state a claim upon which relief could be granted and failed to state any set of existing facts under which Alfa could be liable to McDole for uninsured- or underinsured-motorist benefits.  In May 2001, the commissioner of insurance for the Commonwealth of Pennsylvania petitioned the Commonwealth Court of Pennsylvania to place Reliance Insurance Company into rehabilitation.  The Pennsylvania court granted this petition.  The court subsequently declared Reliance to be insolvent and ordered the commissioner to liquidate Reliance's assets.  A mediation session was held on June 28, 2002, to try to resolve the dispute between McDole and Builders Transport.  Gulf Insurance Company attended this mediation session.  At the mediation session, McDole argued that the future costs to care for Johnson would be in the range of $2.5 million.  McDole argued that Johnson's past, present, and future lost wages totaled $355,000 and that his medical bills totaled approximately $85,400.  As a result of the mediation, McDole and Builders Transport entered into a settlement agreement pursuant to which Builders Transport agreed to pay $750,000.  Gulf Insurance Company provided the funds for this settlement.  In its order approving the settlement, the trial court noted that the settlement agreement entered into by McDole and Builders Transport was limited to "[McDole's] release and discharge of the defendants named herein and the parties released in the separate Settlement Agreement and Release referenced above and that this settlement and Order shall in no way affect [McDole's] rights to proceed with any claims against Johnson's uninsured motorist carrier, Alfa Mutual Insurance Company, and/or Reliance Insurance Company, its predecessors or affiliated companies, and the South Carolina Guaranty Fund."  In August 2002, McDole filed a second amended complaint, asserting additional claims and/or clarifying the claims previously asserted against Alfa.  She alleged that Alfa had breached the insurance contracts it had issued to Johnson by refusing to pay him uninsured-motorist benefits; that Alfa was guilty of the tort of outrage; and that Alfa was guilty of bad faith in refusing to pay the uninsured-motorist claim.  That same month, Alfa filed an action seeking a declaration of the rights and responsibilities of the parties under the automobile-insurance policies it had issued to Johnson.  Alfa's declaratory-judgment action was consolidated with McDole's action.  Alfa again filed a motion to dismiss McDole's claims, arguing that McDole had failed to state a claim upon which relief could be granted.  The trial court granted Alfa's motion.  HOLDING:  The Supreme Court affirmed.  The Court noted that Builders Transport carried its own bodily-injury liability insurance, and it could not define Builders Transport as "uninsured" under Ala. Code §32-7-23.  The Court concluded that the "policy limits" issued by Builders Transport -- $2 million -- clearly exceed the minimum policy limits required for bodily injury in Ala. Code §32-7-6.  The Court held that it was unable to apply subsection (b)(3) of § 32-7-23 to find that Builders Transport was "uninsured" for purposes of Brown's November 1, 1997, accident with Johnson.   The Court held that although the amount she received as a result of the settlement may not have been the full amount McDole believed Builders Transport was liable for, McDole voluntarily entered into the settlement agreement and accepted the amount agreed upon.  The Court held that it could not find any allegations in McDole's complaint that would support her tort-of-outrage claim.  The Court held that because McDole's breach-of-contract claim fails as a matter of law, her claim alleging a bad-faith refusal to pay an insurance claim also fails as a matter of law.)
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• Love v. Fleetway Air Freight & Delivery Serv., L.L.C.,

No. 1021094 (Ala. Aug. 22, 2003)
(dispute over LLC agreement; Bobby Love, James M. Adkinson, and Billy J. Fuller formed Fleetway Air Freight & Delivery Service, L.L.C. by filing articles of organization with the judge of probate of Houston County.  Adkinson, Fuller, and Love were the only members of the limited liability company.  The articles of organization identified Love as the initial managing member of Fleetway.  On that same date, Adkinson, Fuller, and Love entered into a contractual agreement entitled "Operating Agreement of Fleetway Air Freight & Delivery Service, L.L.C.," which set forth the rights, duties, and relationships of the members and set forth the manner in which Fleetway's business would be conducted.  This operating agreement defined certain pertinent terms and addressed, among other things, such matters as capital contributions by the members, allocations and distributions to the members, memberships and dispositions of interests, the management of the company, and the procedure for dissolving, liquidating, and terminating Fleetway.  An exhibit attached to the operating agreement provided that each member had contributed $1,000 in capital to Fleetway and that each member was credited with one unit of membership interest in Fleetway.  On September 7, 1999, Adkinson, Fuller, and Love  entered into another agreement, entitled "Member's Agreement," which contained additional restrictions and obligations.  In the member's agreement, Adkinson, Fuller, and Love agreed that in the event that any member should withdraw or retire from the Company during the thirty-six (36) month period following the date set forth that withdrawing member's right, title and interest in the Company and in the assets of the Company shall be forfeited in equal shares to the continuing members and the continuing members shall continue the business of the Company under its present name by themselves and shall pay to the withdrawing member the $100.00 for his interest in the Company.  It also provided that such withdrawing member shall thereby give up all of his right, title, and interest in the Company and in the assets of the Company.  It also provided that in consideration for such, "the continuing Members shall take the appropriate measures necessary to release the withdrawing Member from any further personal liability in regard to the debts of the Company or any debts made for the benefit of the Company, and shall indemnify and hold the withdrawing Member harmless therefrom."  In July 2000, Adkinson and Fuller, who were dissatisfied with the manner in which Love was managing Fleetway, decided that Love should be dismissed as manager effective July 31, 2000.  Adkinson advised Love of their decision.  On August 9, 2000, Adkinson sent Love written confirmation of his dismissal as manager of Fleetway.  Adkinson and Fuller assert that they orally advised Love that pursuant to the member's agreement he was entitled to $100 for his interest in Fleetway and to be  released from further liability for Fleetway's debts.  Fleetway, Adkinson, and Fuller apparently are contending that Love's dismissal constituted his withdrawal from Fleetway and that, therefore, he was entitled to nothing more for his membership interest.  Love refused the terms offered by Adkinson and Fuller.  He denied that he had withdrawn from Fleetway or that he had forfeited his interest in the company.  On August 20, 2002, Love sued Fleetway, Adkinson, and Fuller in the Houston Circuit Court.  In his complaint, Love asserted that Fleetway, Adkinson, and Fuller had breached the operating agreement, converted his income from Fleetway, and committed fraud by  representing to him, or causing to be represented to him, in October 2000 that he continued to enjoy the same membership rights as did Adkinson and Fuller. Fleetway, Adkinson, and Fuller moved for a summary judgment.  The trial court granted the summary-judgment motion filed by Fleetway, Adkinson, and Fuller.  HOLDING:  The Supreme Court reversed.  The Court held that the term "withdraw" is usually considered to require a voluntary act, and stated that it could find nothing in the member's agreement or in the operating agreement that persuades it to give the terms "withdraw" and "withdrawing member" anything other than their ordinary and usual meanings.  The Court held that that Fleetway, Adkinson, and Fuller have not met the burden required of them under Rule 56, Ala.R.Civ.P., to establish that no genuine issue of material fact exists in this case.)
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Order Released August 21, 2003

• In the Matter of Compliance with Writ of Injunction of the United States District Court for the Middle District of Alabama (relating to the "Ten Commandments monument"),

Order No. 03-01 (Ala. Aug. 21, 2003)
(In accordance with an injunction from U.S. District Court Judge Myron Thompson, the eight associate justices of the Supreme Court of Alabama directed the manager of the Alabama judicial building to take all steps necessary to comply with the injunction requiring the removal of the "Ten Commandments monument" from the judicial building.)
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Opinions Released August 15, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  AUGUST 15, 2003

 
• Reynolds v. Colonial Bank,

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

• Ex parte State of Alabama (In re: Smith v. State),

No. 1021238 (Ala. Aug. 15, 2003)
(The Court denied the petition for writ of certiorari without opinion, but stated that in denying the petition, the Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion.)
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• Ex parte Austin Apparel, Inc.

No. 1021341 (Ala. Aug. 15, 2003)
(The Court denied the petition for writ of certiorari without opinion, but stated that in denying the petition, the Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.  The Court noted in denying the petition that the phrase "to the extent permitted by applicable law" appears immediately before the words "for environmental consultants" in paragraph 15 of the loan agreement.)
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Opinion Released August 8, 2003

• DECISION ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  AUGUST 8, 2003

 
• Cunningham v. Lavoie,

No. 1012232 (Ala. Aug. 8, 2003)
(timeliness of filing of claim against decedent's estate; necessity of filing fee at time of claim; statute of limitations; Lucy B. Cunningham died on August 28, 2001. Lucy's will named Helen C. Lavoie, Lucy's daughter, as her personal representative.  The will also called for Lucy's house to be sold immediately and the proceeds distributed equally among Lucy's five children, including Ronald Michael Cunningham and Helen Lavoie. However, the will also gave Ronald, who was living with Lucy in her house before she died, the option to "continue to reside in [the house] and make the payments due on the mortgage for the house and utilities (not to be reimbursed) for a period not to exceed nine months or until the house is sold."  On September 25, 2001, Helen filed a petition in the Mobile County Probate Court to probate the will. Letters testamentary were issued to Helen on November 6, 2001.  Ronald exercised his option under the will to remain in Lucy's house.  On February 19, 2002, Helen filed a motion in the probate court seeking possession of the house, alleging that Ronald had failed to make any mortgage payments on the house since Lucy's death. The trial court found that Ronald had failed to make the mortgage payments and had failed to cooperate with Helen in her attempt to sell the house. The trial court granted Helen's motion and ordered Ronald to deliver possession of the premises to Helen.  On May 3, 2002, Ronald's attorney, on Ronald's behalf, filed a notice of claim against Lucy's estate in the "judicial division" of the Mobile County Probate Court.  No filing fee was paid at that time.  The notice of claim alleged that Lucy's estate owed Ronald $45,500 for services he performed in caring for Lucy before her death. Helen received a copy of the notice of claim in the mail "a few days" after it was filed.  On May 28, 2002, Helen filed a motion to dismiss the notice of claim. In her motion, Helen argued that the claim was not filed in accordance with Ala. Code §§43-2-350 and 43-2-352, because, she argued, the claim, which was filed in the "judicial division" rather than the "recording division," was not filed "in the office of the judge of probate" as required by those Code sections. Additionally, Helen claimed that under §43-2-350(b) the limitations period in which to file a claim against the estate expired on May 6, 2002. In response, Ronald's attorney refiled the notice of claim in the "recording division" of the probate court on June 4, 2002. Ronald paid a filing fee with this second filing.  The probate court conducted a hearing on Helen's motion to dismiss the notice of claim, and on July 15, 2002, the court issued an order dismissing Ronald's claim against the estate.  HOLDING:  The Supreme Court reversed.  The Court held that Ronald substantially complied with Ala. Code §§43-2-350 and 43-2-352, because he filed the notice of claim in the "office of the judge of probate" from which the letters testamentary were granted.  The Court noted that those Code sections do not specify that the claim must be filed in a specific "division" of the probate court, and it concluded that Ronald's claim against the estate was properly filed on May 3, 2002, which is within six months of the date on which Helen was granted letters testamentary.  The Court noted that while Ala. Code §12-19-90 states that a fee "shall" be paid, it does not, like §12-19-70, require that the fee be collected from the claimant at the time the claim is filed, and it also noted that neither §43-2-350(b) nor §43-2-352 requires that a fee be paid in order to file a claim.  The Court rejected the probate court's conclusion that a claim is not considered filed for purposes of the limitations period until the filing fee is paid.)

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Opinions Released August 1, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  AUGUST 1, 2003

 
• Tanner v. State Farm Fire & Cas. Co.,

No. 1010888 (Ala. Aug. 1, 2003)
(declaratory-judgment action; Wayne R. Mitchell, a partner in two partnerships named MASCO I and MASCO IV, sued the other partners, including Elton O. Tanner, Jr., for suppression; breach of fiduciary duty; conversion; and intentional, reckless, and innocent misrepresentation.  Mitchell alleged that Tanner and the other partners had swapped the maritime vessels constituting the principal assets of the partnerships for replacement vessels without Mitchell's knowledge; that Tanner and the other partners had concealed these swaps from Mitchell; that Tanner and the other partners had misled Mitchell concerning these swaps; and that Tanner and the other partners had withheld information and documents Mitchell had requested relating to MASCO I and MASCO IV.  Subsequently, Mitchell amended his complaint to add separate claims against Tanner, who was also Mitchell's accountant, for accounting malpractice allegedly committed in rendering accounting services that related to Mitchell's investments in MASCO I and MASCO IV.  On receiving Mitchell's lawsuit papers, Tanner requested that State Farm defend and indemnify him under a policy of liability insurance.  State Farm refused Tanner's request and, instead, brought this declaratory judgment action for a declaration that the policy did not afford Tanner coverage for Mitchell's claims. Meanwhile, in Mitchell's lawsuit, Tanner's accounting-malpractice insurer, Interstate Insurance Company, defended Tanner.  Tanner effectively counterclaimed for a declaration that Tanner was due defense and indemnification under the State Farm policy.  Mitchell amended his complaint again to add Tanner & Co., Tanner's professional corporation, as an additional defendant.  State Farm then amended its complaint in this declaratory judgment action to add Tanner & Co. as an additional defendant and to seek a declaratory judgment that Tanner & Co. was not entitled to coverage either.  State Farm declined to participate in settlement negotiations in Mitchell's lawsuit. When Tanner notified State Farm that he intended to settle Mitchell's claims for $50,000, State Farm refused to contribute any of the settlement funds. Interstate Insurance Company contributed $20,000 of the settlement funds, and Tanner paid the remaining $30,000.  After Tanner settled Mitchell's lawsuit, State Farm  moved for summary judgment.  The trial court entered summary judgment for State Farm and held that State Farm owed no duty to defend Tanner or Tanner & Co. in Mitchell's lawsuit and that State Farm owed no duty to indemnify Tanner or Tanner & Co. for Mitchell's claims.  HOLDING:  The Supreme Court reversed the summary judgment insofar as it declares that State Farm did not owe a duty to defend Tanner and Tanner & Co. against Mitchell's claims for innocent misrepresentation, reckless misrepresentation, and suppression.  The Court affirmed the summary judgment insofar as it declares that State Farm did not owe a duty to defend Tanner or Tanner & Co. against Mitchell's claims for intentional torts and accounting malpractice.   The Court directed the trial court to grant the cross-motion of Tanner and Tanner & Co. for summary judgment to the extent that it seeks a declaration that State Farm owed Tanner and Tanner & Co. a defense against Mitchell's claims for innocent misrepresentation, reckless misrepresentation, and suppression and to deny the cross-motion insofar as it seeks a declaration that State Farm owed a duty to defend  Mitchell's claims for intentional torts and accounting malpractice.  The Court held that the trial court erred in entering summary judgment for State Farm on the duty to indemnify.)
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• Giambrone v. Douglas,

No. 1020234 (Ala. Aug. 1, 2003)
(State-agent immunity; educators; Jake Giambrone was a 15-year-old freshman at Auburn High School and had recently become a member of the school's wrestling team.  Michael Douglas , a certified teacher and the head wrestling coach, scheduled a team practice for December 27, 2000.  At the practice, Jake and Douglas were "kidding around" and "poking fun" about whether Jake could win a wrestling match against Douglas.  Douglas weighed approximately 200 pounds, and Jake weighed approximately 130 pounds.  Although Jake testified that he did not know who initiated the challenge match, Douglas testified that Jake challenged him to wrestle at practice and that he accepted the challenge because he believed it would be "motivational" for his wrestling team.  While wrestling, Douglas attempted a "cement job," an offensive move that involved Douglas's wrapping his arm underneath Jake's arm in an effort to roll Jake over and bring him down to the mat.  However, as Douglas was performing this move, he heard a "pop," and he released Jake.  Jake testified that immediately following the move he could no longer feel his feet.  Jake was transported to the hospital;  it was determined that he had suffered a severe spinal-cord injury.  As a result, he is a quadriplegic. Jake testified that when Douglas attempted to perform the "cement job," Douglas failed to properly encircle Jake's arm and that that failure to execute the move properly led to his injury.  However, Douglas, along with an assistant coach and other team members, testified that Douglas had performed the move properly.  Susan Giambrone, individually, and as mother and next friend of Jake Giambrone, brought this action alleging that Douglas was negligent and wanton in wrestling with Jake without having the proper qualifications or training and that athletics director Charles Furlow and principal Dr. Cathy Long were negligent and wanton in failing to provide a qualified coach for the wrestling team.  The faculty members filed a summary-judgment motion.  The trial court entered a summary judgment in the faculty members' favor based on State-agent immunity.  HOLDING:  The Supreme Court noted that Douglas's "broad authority" to exercise judgment in the safe conduct of his wrestling team practices was limited by the guidelines and rules furnished and imposed by Furlow.  The Court noted that challenge match between Douglas and Jake violated the code of conduct for coaches contained in the Athletic Directories, which Douglas, as mandated by Furlow, was required to follow.  The Court stated that it could not determine that Douglas's technique while engaging in the challenge match with Jake was proper according to the guidelines provided by the AHSAA and the NFW rules.  The Court held that the guidelines and rules imposed by Furlow removed Douglas's judgment in determining whether he should participate in a "full speed" challenge match with a student who was less experienced, much younger, and smaller than Douglas.  Because a trier of fact could determine that Douglas performed an illegal move during an "inequitable" challenge match, thereby failing to discharge his duties pursuant to "detailed rules or regulations," the Court held that it cannot determine at this stage in the proceedings that Douglas is entitled to State-agent immunity.   Thus, the Court reversed the summary judgment as to Douglas.  The Court noted that Furlow and Long "were left to exercise broad judgment" in making their respective decisions regarding the appropriate level at which to supervise personnel, the qualifications required in a wrestling coach, and the safety measures that were to be provided at each wrestling practice.  The Court held that Furlow and Long met their burden of establishing that their actions and decisions involved functions entitling them to immunity.  The Court affirmed the summary judgment in favor of Furlow and Long.)
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Opinions Released July 25, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JULY 25, 2003

 
• Borders v. City of Huntsville,

No. 1020452 (Ala. July 25, 2003)
(immunity; discretionary immunity of peace officers; summary judgment; malicious prosecution; arguable probable cause; excessive use of force; false arrest; false imprisonment; assault and battery; timeliness of appeal; Ulysses Borders entered the Club Showcase, a nightclub located in the City of Huntsville, as a customer.  When he entered the nightclub, a dance contest was in progress on an elevated stage.  Only persons who had registered as contestants were allowed to be on stage during the dance contest.  Approximately five security guards were positioned in various locations around the nightclub.  Two of the security guards, Keith Earle and Lewis Hall, were both full-time police officers for the City.  They were wearing their police uniforms.  Earle served as the last line of protection against unauthorized persons who had gotten past the other security guards in their attempt to enter the stage.  After Borders entered the nightclub, he recognized Moses Eze dancing on the stage with a female partner.  Eze had previously dated Borders's sister and was the father of her child, but Eze was allegedly no longer involved in a relationship with Borders's sister.  Borders, who was not registered as a dance contestant, approached the stage.  The evidence is disputed as to what happened next, but an altercation ensued between Borders and some of the security guards, including Earle.  Borders was arrested on charges of disorderly conduct and resisting arrest.  He was acquitted of the charges by the Huntsville municipal court.  Borders then sued the City of Huntsville ("the City") and Earle.  Borders alleged that he was injured when Earle used what Borders says was excessive force to effectuate an allegedly unlawful arrest.  Borders asserted against Earle claims of excessive use of force, false arrest, false imprisonment, assault and battery, and malicious prosecution.  Borders asserted claims of vicarious liability against the City for Earle's alleged excessive use of force, false arrest, false imprisonment, and assault and battery.  Finally, Borders sought compensatory damages and attorney fees pursuant to 42 U.S.C. § 1983 based on allegations of excessive use of force, false/unlawful arrest, and false imprisonment.  The City filed a motion to dismiss Borders's complaint on the basis that pursuant to Ala. Code §11-47-190 and Ala. Code §6-5-338, the City was immune from all claims alleged in the complaint.  The trial court granted the motion and dismissed Borders's claims against the City.  Earle filed a summary-judgment motion.  The trial court entered a summary judgment in Earle's favor.  Borders then filed what he called a "Motion to Set Aside All Orders Entered and Motion to Recuse," alleging that the trial judge was disqualified from sitting in the present case because he served as a state senator during the time the Legislature enacted §6-5-338 and amended §11-47-190, both of which statutes form the basis of the City and Earle's immunity claims.  The trial court denied those motions. HOLDING:  The Supreme Court held that the "Motion to Set Aside All Orders Entered and Motion to Recuse" was a proper Rule 59 motion because a motion seeking a judge's recusal, if granted, could require that the trial court's judgment be vacated.  Thus, the Court held that Borders's postjudgment motion tolled the time for appeal and that his appeal was timely.  The Court held, however, that Borders's recusal ground lacked merit.  The Court noted that Borders stated in his reply brief that he "has never contended that Earle's conduct was done in malice, bad faith or with willfulness," but instead contended that Earle's conduct was actionable because of his "neglect, carelessness, or unskillfulness while acting in the line and scope of his duties."  The Court noted that, generally, arrests and attempted arrests are classified as discretionary functions.  The Court held that the standard of "arguable probable cause" should govern proceedings in this case.  The Court held that, viewing the evidence in the light most favorable to Borders, it could not determine, as a matter of law, that Earle was engaged in a discretionary function when he arrested Borders, that is, that Earle had arguable probable cause in that officers of reasonable competence in the same circumstances and with the same knowledge would disagree as to whether probable cause existed.  The Court found that the facts are disputed as to the conduct of the arrestee and the officer and that such disputed facts preclude a determination as to whether Earle was engaged in a discretionary function and instead present a jury question.  Thus, the Court held that the trial court's summary judgment  in favor of Earle was improper, and it reversed the summary judgment in favor of Earle with respect to Borders's claims that Earle used excessive force and his claims of false arrest, false imprisonment, and assault and battery.  However, as to Borders's claim of malicious prosecution against Earle, the Court  affirmed the summary judgment on the basis  of Borders's disclaimer in his reply brief for any liability arising out of Earle's intentional conduct.  The Court concluded that the City is not entitled to discretionary-function immunity under the principle of respondeat superior because the Court found that Earle is not entitled to discretionary-function immunity at this stage in the proceedings.  The Court held that the City is not immune from liability pursuant to Ala. Code §11-47-190 for Borders's claims of excessive use of force, false arrest, false imprisonment, and assault and battery, all of which are based upon Earle's alleged neglect, carelessness, and unskillfulness.  The Court held that the trial court improperly dismissed Borders's claims against the City that were based upon proof of negligence, i.e, Borders's claims of excessive use of force, false arrest, false imprisonment, and assault and battery.  The Court affirmed the summary judgment in favor of Earle and the ruling in favor of the City on the motion to dismiss with respect to Borders's § 1983 claims because Borders waived any issue related to those claims on appeal by not addressing them in his brief.)
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Opinions Released July 18, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JULY 18, 2003

 
• Newman v. Cole,

No. 1012110 (Ala. July 18, 2003) (plurality opinion)
(parental immunity; wrongful death; claims of negligence, wantonness, and willful and intentional conduct;  Clinton Patterson Cole ("Clinton") was 16 years old at the time of his death, which occurred during an altercation with his father, John Cole, over Clinton's failure to perform household chores.   Anna Belle Newman, the personal representative of Clinton's estate, asserts that the altercation ended with the father's striking Clinton repeatedly in the chest and then holding him on the ground in a "choke hold" while Clinton's stepmother, Tara Cole, sprayed him in the face with water from a garden hose.  The father held Clinton on the ground for approximately 20 minutes; he let go of Clinton when a police officer arrived.  Clinton was unconscious, and he was taken to a local hospital; he died the next day.  Newman, in her capacity as personal representative, sued John Cole and Tara Cole (the "Coles").  The Coles moved to dismiss the complaint based on the doctrine of parental immunity.  Under Alabama law, the parental-immunity doctrine prohibits all civil suits brought by unemancipated minor children against their parents for the torts of their parents. Only one exception to this rule has emerged -- when a child alleges sexual abuse by a parent, the parental immunity doctrine will not bar an action against the parent, although proof of the alleged conduct must be tested under a "clear and convincing" standard.  The trial court granted the Coles' motion to dismiss the complaint.  Newman appealed, arguing that this Court should abolish the doctrine of parental immunity. HOLDING:  The Supreme Court created an additional exception to the doctrine of parental immunity and held that that a further exception to the doctrine should be recognized where it is shown by clear and convincing evidence that a parent's willful and intentional injury caused the death of his or her child.  Accordingly, the Court affirmed the judgment of the trial court with respect to Newman's wrongful-death claims based on negligence and wantonness, and the Court reversed the judgment with respect to Newman's wrongful-death claim based upon willful and intentional conduct, to the extent that claim implicates a willful and intentional injury.)
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• Ex parte Haralson,

No. 1020783 (Ala. July 18, 2003)
(State immunity/sovereign immunity; Lubie W. Griffith sued Rufus Haralson, a Lowndes County deputy sheriff; the "Lowndes County Sheriff's Department"  ("the sheriff's department"); and other fictitiously named parties on theories of negligence and wantonness stemming from a motor-vehicle accident.  The accident occurred on June 30, 1999, on an unnamed public thoroughfare near Interstate 65 and U.S. Highway 31 in Montgomery County, when the vehicle driven by Deputy Haralson allegedly collided with Griffith's vehicle.  Griffith alleged that the sheriff's department owns the vehicle Deputy Haralson was driving at the time of the accident.  Deputy Haralson and the sheriff's department filed a motion to dismiss the complaint, asserting that they were protected from liability by State immunity.  The trial court denied that motion, and the defendants petitioned the Supreme Court for a writ of mandamus directing the trial court to dismiss Griffith's claims against them.  The Supreme Court granted the petition with respect to her claims against the sheriff's department.  The Court denied the petition with respect to the claims against Deputy Haralson because the lack of evidence indicating that at the time of the accident Deputy Haralson "was acting within the line and scope of his employment" precluded the Court from concluding that Deputy Haralson was entitled to sovereign immunity.  Ex parte Haralson, No. 1012071 (Ala.  Jan. 17, 2003) ("Haralson I").  Deputy Haralson then filed a motion for a summary judgment in the trial court; the motion was supported by his own affidavit.  Deputy Haralson's affidavit stated that he "was on-duty as a deputy sheriff with the Lowndes County Sheriff's Office," that he "was traveling in a vehicle owned by the Lowndes County Commission and assigned to the Lowndes County Sheriff's Office on an unnamed road near Interstate 65 and U.S. Highway 31 in Montgomery County," that he "was involved in a motor-vehicle accident with Lubie W. Griffith on that unnamed road," that he "was traveling to the Alabama Department of Forensic Sciences to drop off evidence in a case," and that he "was not conducting a personal errand."  The trial court denied Deputy Haralson's motion.  Deputy Haralson then filed this petition for the writ of mandamus directing the trial court to grant his summary-judgment motion.  HOLDING:  The Supreme Court granted the petition and directed the trial court to enter a summary judgment in favor of Deputy Haralson.)
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Opinions Released July 11, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON FRIDAY,  JULY 11, 2003

 
• Hales v. ProEquities, Inc.,

No. 1011015 (Ala. July 11, 2003)
(arbitration; waiver; Wayne Gregory, an agent of ProEquities, Inc., convinced the Frank J. Hales and Iva Jean P. Hales to put their life savings of $430,000 in an investment account with ProEquities.  Frank Hales, alone, signed a "New Account Application," an individual retirement account ("IRA") application, and an IRA beneficiary designation form. The contractual documents include a pre-dispute arbitration agreement.  On August 5, 1999, the Haleses sued ProEquities and Gregory for conversion, breach of contract, fraud, breach of fiduciary duty, and willfulness and wantonness.  On January 31, 2001, the trial court ordered the parties to mediate the dispute and to report to the court the status of mediation by March 1, 2001.  The court further ordered that, if mediation failed to resolve the case, the case would be set for trial within 60 days.  On May 25, 2001, ProEquities also noticed the deposition of Iva Hales for June 6, 2001 and included a request that she produce certain documents at her deposition.  On May 31, 2001, ProEquities answered the complaint and asserted various affirmative defenses.  On June 20, 2001, the Haleses amended their complaint to assert claims against ProEquities for negligent and wanton hiring, training, monitoring, supervision, and retention, and for negligent and wanton failure to adopt, to promulgate, or to enforce policies and procedures in accordance with the "Alabama Securities Commission Code."  On July 19, 2001, ProEquities noticed the deposition of Frank Hales for August 13, 2001 and included a request that he produce certain documents at his deposition.  On July 19, 2001, ProEquities re-noticed the deposition of Iva Hales for August 13, 2001 and included a request that she produce certain documents at her deposition.  On July 25, 2001, ProEquities answered the amended complaint and again asserted various affirmative defenses.  On August 13, 2001, the parties deposed Frank Hales.  Thereafter, the Haleses filed a second amended complaint.  On October 5, 2001, ProEquities answered the second amended complaint and again asserted various affirmative defenses.  For the first time, ProEquities moved to compel the Haleses to submit their claims to arbitration pursuant to the pre-dispute arbitration agreement signed by Frank Hales and moved to stay the Haleses' action pending the arbitration.  The Haleses contended that ProEquities had waived its right to arbitration by waiting over two years to move to compel arbitration and by failing to assert arbitration as an affirmative defense in its initial answer to the complaint.  The trial court rejected the Haleses' assertion that ProEquities had waived its right to compel arbitration and granted the motion to compel arbitration.  HOLDING:  The Supreme Court reversed.  The Court clarified that the abuse-of-discretion standard for reviewing the grant or denial of a motion to compel arbitration opposed on the ground of waiver is no longer applicable and that, absent the consideration of disputed ore tenus evidence, the grant or denial of a motion to compel arbitration opposed on the ground of waiver is subject to a de novo review on appeal.  The Court held that the failure of ProEquities to object to the trial setting; the over-two-year delay by ProEquities in moving to compel arbitration after the Haleses first filed suit; the participation of ProEquities in discovery by noticing the depositions of the Haleses, by requesting the production of documents by the Haleses at their depositions, and by deposing plaintiff Frank Hales; and the two-month delay by ProEquities in moving to compel arbitration after Frank Hales's deposition; together evidence an intention by ProEquities to abandon the right to compel arbitration in favor of the judicial process.  The Court further held that the actions and inactions by ProEquities caused the Haleses to expend moneys and efforts to prepare for trial and, thus, prejudiced the Haleses. Therefore, the Court concluded that ProEquities waived its right to compel the Haleses to arbitrate their claims.)
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• Petty-Fitzmaurice v. Steen,

No. 1020560 (Ala. July 11, 2003)
(new trial; communications with the jury by the judge outside the presence of counsel; failure to object in trial court to hearsay submitted in support of postjudgment motion; William Steen, while operating a Sea-Doo personal watercraft, was struck by another Sea-Doo personal watercraft operated by William Petty-Fitzmaurice.  The impact of Petty-Fitzmaurice's personal watercraft severed Steen's right leg below the knee.  Steen sued Petty-Fitzmaurice on the grounds that he negligently or wantonly operated the personal watercraft that struck Steen; and Bombardier, Inc., and Bombardier Motor Corporation of America, the manufacturers of the Sea-Doo personal watercrafts, on the grounds that they violated the Alabama Extended Manufacturer's Liability Doctrine and that they were negligent in designing, testing, distributing, selling, and failing to recall the personal watercrafts in question, and in failing to providing adequate warnings.   Steen's wantonness claim against Petty-Fitzmaurice was dismissed the first day of trial.  On the next-to-last day of trial Bombardier, Inc., and Bombardier Motor Corporation of America entered into a pro tanto settlement agreement with Steen.  Consequently, Petty-Fitzmaurice was the only remaining defendant when the case was submitted to the jury.  The jury returned a verdict in favor of Steen and awarded him  $3,430,000.  The trial court entered a judgment in favor of Steen and reduced the damages award  to $2,680,000, based on the pro tanto settlement agreement between Steen and Bombardier, Inc., and Bombardier Motor Corporation of America.  Petty-Fitzmaurice filed a renewed motion for a judgment as a matter of law, and alternatively, for a new trial or a remittur.  According to Petty-Fitzmaurice's counsel's affidavit filed in support of his motion for new trial, during its deliberations the jury had one or more questions for the trial court, which the trial court answered outside counsel's presence.  Counsel contends that he learned of the alleged communications during a conversation with Steen's counsel, which occurred approximately 7 to 10 days after the judgment was entered by the trial court.  Petty-Fitzmaurice's counsel states that he subsequently attempted to contact various members of the jury to determine whether the alleged communications between the jury and the trial court occurred.  According to counsel's affidavit, he had a telephone conversation with a juror who told him that "the jury did ask the [trial] court at least one question[, which] was asked orally in the jury room and was answered by the [trial] court without leaving the jury room, without placing the response on the record, and without attempting to contact [Petty-Fitzmaurice's counsel]."  Counsel's affidavit also states that Steen's counsel and the aforementioned juror told him that "at least one question related to whether the jury needed to apportion fault between [Petty-Fitzmaurice] and Bombardier, a settling defendant."  Petty-Fitzmaurice's counsel asserts that Steen's attorney told him that the trial court told the jury that it "'did not need to worry about that, that he would apportion damages between the two defendants.'"  Counsel further states in his affidavit that the juror with whom he spoke recalled that the trial court said that "'he would reduce the jury's award by the amount of the settlement entered into by Bombardier.'"  The trial court denied Petty-Fitzmaurice's motion without a hearing.  HOLDING:  The Supreme Court reversed and remanded for a new trial.  The Court held that Steen waived his argument that the affidavit is inadmissible hearsay by failing to object when the affidavit was presented to the trial court.  The Court held that a party cannot argue on appeal that an affidavit contains inadmissible hearsay when the party did not object to the affidavit when it was submitted to the trial court.  The Court noted that the affidavit of Petty-Fitzmaurice's counsel clearly states that the trial judge, during jury deliberations and outside the presence of Petty-Fitzmaurice and his counsel, answered at least one of the jury's questions dealing with apportionment of fault between Petty-Fitzmaurice and the settling defendants.  The Court held that this communication violates the general rule that a judge may not, in the absence of counsel, further instruct the jury, after its retirement, without making a reasonable effort to notify counsel or without some special circumstances or excuse being shown which reasonably prevented notice.)
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• Ex parte Ebbers,

Nos. 1020931 & 1021008 (Ala. July 11, 2003)
(stay of civil action where there are potential criminal proceedings against a defendant; This litigation arises out of the financial collapse of the telecommunications corporation WorldCom, Inc., which in July 2002 filed for protection under Chapter 11 of the United States Bankruptcy Code.  That financial collapse has spawned a number of other civil actions against one or more of the defendants in this case.   Forty WorldCom-related class actions were centralized under United States District Court Judge Denise L. Cote of the Southern District of New York (hereinafter "the WorldCom litigation").   Bernard J. Ebbers and Scott D. Sullivan are defendants in the WorldCom litigation, along with some of the entity defendants in this case.  Filed on July 15, 2002, this case is proceeding before Judge Charles Price in the Montgomery County Circuit Court under the allegations presented in the third amended complaint filed February 20, 2003.  The plaintiffs identify themselves in that pleading variously as public corporations, public retirement funds, or "other funds" and state that they are all instrumentalities or "arms" of the State of Alabama.  They designate themselves collectively as "The Retirement Systems of Alabama" (hereinafter "RSA").  Defendant Bernard Ebbers, a resident of Mississippi, is the former president and chief executive officer of WorldCom.  Defendant Scott D. Sullivan is the former chief financial officer of WorldCom.  Both also served on the board of directors of WorldCom.  Defendant Arthur Andersen, LLP, is identified in the complaint as an international accounting and consulting firm that provided various auditing, accounting, consulting, tax, and document-review services for WorldCom.  The other seven entity defendants are various investment and brokerage houses that RSA describes in its complaint as WorldCom's "principal Investment Banks."  Six of them jointly filed one of the petitions for a writ of mandamus (case no. 1021008) and are hereinafter referred to as "the Bank defendants"; the other petition was filed by Ebbers (case no. 1020931).  In its third amended complaint, RSA asserts claims against the defendants under the "strict liability" provisions of §§ 11 and 12(a)(2) of the Securities Act of 1933, under § 8-6-19(a), Ala. Code 1975, a part of the Alabama Securities Act, and under the statutory and common law of the State of Alabama.  RSA alleges that the defendants, either individually or in concert and conspiracy with WorldCom and certain of its top officers, principally Ebbers and Sullivan, engaged in various accounting machinations and irregularities  and issued various materially misleading financial reports and statements, so that WorldCom's earnings were overstated by $9,000,000,000 and its assets "must be written down by as much as sixty-six billion dollars ($66,000,000,000.00)."  RSA asserts that it was misled by the information generated or reported by the defendants to purchase various WorldCom securities, resulting in losses to RSA of more than $275,000,000.  RSA seeks to recover those losses as well as punitive damages.  In addition to being named as a defendant in both this case and the WorldCom litigation, Sullivan has been indicted by a federal grand jury in the Southern District of New York on charges of conspiracy to commit securities fraud, securities fraud, and making false filings with the Securities and Exchange Commission.  Ebbers has not been indicted, but he has been the subject of an ongoing criminal investigation. The probability/possibility of an indictment ultimately being returned against him was the subject of much discussion and argument before the Judge Price in this case.  Based on the indictment of Sullivan and the ongoing criminal investigation of Ebbers during the pendency of the RSA litigation, Sullivan and Ebbers each moved Judge Price to stay the RSA litigation as to them.  Although Ebbers asserted in his motion that a stay of the case as to him was necessary to preserve his rights "under the First, Fourth, Fifth, Sixth, and Ninth Amendments to the United States Constitution and the Alabama Constitution," he did not identify any applicable provision of the Alabama Constitution and in a supporting memorandum brief he referenced only the Fifth Amendment to the United States Constitution ("the Fifth Amendment").  All counsel referred only to the Fifth Amendment in arguing the stay motions before Judge Price.  Counsel for RSA advised the judge that the criminal charges against Sullivan were set for trial on September 8, 2003.  Sullivan's counsel confirmed that status and further advised the judge that U.S. District Judge Cote had granted Sullivan's motion for stay in the WorldCom litigation because of his indictment and pending criminal trial.  Ebbers, for his part, argued that the ongoing criminal investigation into his activities posed a sufficient risk of self-incrimination so as to implicate his Fifth Amendment right not to be compelled to be a witness against himself and that, if no stay of discovery was granted as to him in the RSA litigation, he would be forced to choose between either waiving that right and risking self-incrimination, or asserting it, in which event his refusal to respond could be the subject of adverse comment at trial in the RSA litigation.  On February 26, 2003, Judge Price entered an order that, relying on the fact that Sullivan was under indictment and "his trial is set for September 2003," granted Sullivan's motion for a stay, but only "until October 1, 2003."  On that same day, Judge Price entered a separate order denying Ebbers's motion to stay.  In his discussions with counsel at a later hearing, conducted on March 21, 2003, Judge Price made it clear that his opposite rulings on the two stay motions were based on the fact that Sullivan had been indicted but Ebbers had not.  On February 4, 2003, the Bank defendants filed a request for a stay in their favor "in the event" a stay was granted to either Sullivan or Ebbers.  By the time of the March 21 hearing, convened to hear the Bank defendants' stay motion, Judge Price had granted the stay as to Sullivan but had denied it as to Ebbers.  The Bank defendants argued at that hearing that RSA's pleadings identified Sullivan as "central to all of this litigation," described him as "the chief architect of all of the wrongful conduct," and characterized the Bank defendants as co-conspirators with him and Ebbers. They asserted that, "without the ability to get discovery from Sullivan and fully litigate the issues revolving around him, the Bank defendants will suffer extreme prejudice, and will be effectively denied their right to litigate and fully defend themselves in this case."  Their counsel represented that "[o]ur clients were misled by these people just as other parties were misled."  At the end of the March 21 hearing, Judge Price denied the Bank defendants' motion for a stay.  Ebbers and the Bank defendants now separately petition this Court for a writ of mandamus directing Judge Price to vacate the denials of their respective motions for a stay and to grant a stay of the RSA litigation as to them.  HOLDING:  The Supreme Court held, as to the denial of the stay sought by Ebbers, that a stay in favor of Ebbers paralleling the one granted Sullivan is in order.  The Court noted that Ebbers ran a clear risk of self-incrimination in the significantly overlapping criminal proceedings if he submitted to the broad discovery permissible in a civil case, and it reviewed a number of other factors and determined that  none of those other factors warranted allowing discovery to go forward as to him.  Therefore, the Court held that Judge Price exceeded his discretion in not granting Ebbers a stay coextensive with the stay granted Sullivan, extending until October 1, 2003.  Thus, the Court granted Ebbers's petition for writ of mandamus and directed Judge Price to vacate his order of February 26, 2003, denying Ebbers's motion for a stay and to enter an order granting a stay as to him until October 1, 2003.  As to the denial of the stay sought by the Bank defendants, the Court noted that Judge Price was not informed as to exactly how lack of access to discovery from Sullivan will thwart the ability of the Bank defendants to establish that they acted in good faith and with due diligence in investigating WorldCom's financial status, in the context of the deceptions practiced upon them by Sullivan and his co-conspirators.  The Court noted that it would seem that the Bank defendants are in a position, unchallenged by Sullivan or Ebbers, to state what they did, what they discovered, what they were told, and what they otherwise knew about WorldCom's situation and to defend their conduct and conclusions on the basis of reasonableness and conformity with "due diligence."  The Court reasoned that as it stands, Sullivan and Ebbers are not in a position to contradict anything the Bank defendants might assert concerning just what information was transmitted to them or withheld from them.  Accordingly, the Court stated that, for all that appears, the Bank defendants are as well off, or even better off, with Sullivan and Ebbers self-muzzled, than they would be if Sullivan and Ebbers could testify in opposition to the evidence offered by the Bank defendants.  The Court held that because Judge Price was presented only with general and conclusionary statements of the prejudice to the Bank defendants in the event they were precluded from conducting discovery as to Sullivan, he would not have exceeded his discretion in discounting those statements of potential prejudice.  The Court held that Judge Price did not exceed his discretion in denying a stay to the Bank defendants.  As such, the Court denied the Bank defendants' petition for writ of mandamus.)
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Opinions Released July 3, 2003

• DECISIONS ANNOUNCED BY THE SUPREME COURT OF ALABAMA ON THURSDAY,  JULY 3, 2003

 
• Waddell & Reed, Inc. v. United Investors Life Ins. Co.,

No. 1012054 (Ala. July 3, 2003) (on application for rehearing; opinion of April 18, 2003, is withdrawn and substituted)
(tortious interference with business relations; fraudulent suppression; fraudulent misrepresentation; conversion; United Investors Life Insurance Company ("UILIC") issues various types of insurance policies, including variable-annuity insurance policies.  A variable-annuity insurance policy is an investment vehicle that combines aspects of insurance and securities.  Waddell & Reed, Inc.; Waddell & Reed Financial, Inc.; Waddell & Reed Financial Services, Inc.; W&R Insurance Agency, Inc.; and W&R Insurance Agency of Alabama, Inc. (hereinafter referred to collectively as "W&R") are financial services organizations.  W&R sold and serviced the variable-annuity insurance policies issued by UILIC.  At the outset of the relationship, UILIC and W&R were related corporations under the common ownership of a parent company, Torchmark Corporation.  UILIC and W&R entered into a principal underwriting agreement ("PUA"), which authorized W&R to sell and service UILIC variable-annuity insurance policies and also provided that W&R would receive a commission on each policy sold.  The PUA expressly permitted W&R and UILIC to deal with other entities.  In 1998, W&R became an independent company; it began looking at variable-annuity products offered by other companies while continuing to work with UILIC on developing new products.  W&R contends that the UILIC variable-annuity insurance policies had become outdated.  When UILIC learned that W&R was searching for companies offering new products, it entered into negotiations with W&R.  W&R threatened mass replacement of the existing UILIC variable-annuity insurance policies W&R was servicing with those of another company.  UILIC wanted some restriction on W&R's ability to offer replacement policies to UILIC policyholders.  During early July 1999, UILIC'S chief executive officer, Anthony McWhorter, and W&R's chief executive officer, Robert Hechler, spoke twice by telephone and agreed to increase W&R's annual compensation to 25 basis points on new business and to pay 20 basis points on existing business; in essence, UILIC agreed to pay again for policy sales for which it had previously compensated W&R.  UILIC also agreed to develop a new variable-annuity insurance policy that W&R could promote instead of or in addition to the policy W&R claims was outdated.  Hechler said that he specifically refused the anti-replacement provisions.  McWhorter said Hechler recognized the necessity for restrictions on replacements and did not object to such restrictions.  McWhorter also said that Hechler agreed to amend the PUA to include anti-replacement language.  In a letter written the day after the telephone conversations, the parties agreed that W&R would be compensated for both old and new business.  The letter ends by saying that it "fully describes the items that we discussed regarding compensation and product features."  The letter was silent as to anti-replacement provisions.  The letter was signed by both McWhorter and Hechler.  For several months, attorneys for UILIC and W&R exchanged drafts of amendments to the PUA.  When the parties failed to agree upon a new contract, W&R told UILIC that it would treat the letter as the parties' definitive agreement.  UILIC insisted that it needed protection against widespread policy replacements.  Keith Tucker, chairman of W&R's board of directors, wrote a letter addressed to the chairman of Torchmark's board of directors.  Tucker stated:  "I hope that you will accept our good faith promise not to replace your [UILIC's] policies issued to our clients in lieu of the agreement you have proposed [restricting W&R's ability to replace UILIC's variable-annuity insurance policies]."  Tucker further stated that W&R had "no intention of replacing any policy issued by [UILIC], either now or in the future, unless circumstances require us to consider such a drastic measure."  UILIC says that, in view of those assurances, it took no steps to educate its policyholders regarding potential policy-replacement efforts.  Hechler said he never intended to agree to contract terms restricting W&R's capacity to replace UILIC policies.  W&R Target Funds, Inc. ("Target Funds"), was a mutual-fund company under the management of the officers of W&R.  When policyholders paid premiums to UILIC, UILIC purchased mutual-fund shares in Target Funds pursuant to elections by the policyholders.  UILIC held the shares in its name in trust for the policyholders.  UILIC received 90 basis points of compensation per policyholder for administrative expenses; this type of compensation is known as mortality and expense charges ("M&E charges").  Each month, Target Funds redeemed enough mutual-fund shares purchased by UILIC on behalf of its policyholders to pay that month's M&E charges owed to UILIC.  The proceeds from redeeming the shares were placed in Target Funds' bank account at United Missouri Bank ("UMB"), after which an amount of money equal to the month's M&E charges was wire-transferred from Target Funds' UMB account to a UILIC bank account.  UILIC then paid W&R the compensation it was due.  Beginning in February 2000, officers of W&R, acting in their capacities as managers of Target Funds, began diverting money from the M&E charges owed to UILIC to pay the sums W&R claimed were due it under the letter agreement.  >From January 2000 through April 2001, those officers caused more than $10,000,000 to be paid directly to W&R from the proceeds due UILIC for M&E charges.  UILIC sued the five W&R entities, requesting injunctive relief, a judgment declaring the parties' rights and liabilities under any contracts between the parties, and money damages.  W&R filed a counterclaim against UILIC.  Notwithstanding the pending litigation, the business relationship between W&R and UILIC continued, and W&R continued to sell UILIC variable-annuity insurance policies, including a new policy UILIC developed called the Advantage Gold policy.  Later in 2000, W&R entered into an agreement with Nationwide Life Insurance Company pursuant to which W&R began selling Nationwide variable-annuity insurance policies.  UILIC terminated the PUA on February 28, 2001, effective April 30, 2001, almost one year after litigation had begun.  The trial court entered a partial summary judgment in favor of UILIC holding: "[W]hatever obligation exists, if any, on the part of [UILIC] to pay compensation of 20 basis points on in-force variable annuity policies issued by [UILIC] and distributed by [W&R] on or before December 1, 1999, terminates as of the effective date of termination of the PUA, i.e., April 30, 2001 and [W&R] is not entitled to receive any such compensation after that date."  Shortly before the trial began, the trial court entered a partial summary judgment in favor of W&R as to any claims made by UILIC for tortious interference with business relations as to "acts occurring before the cancellation of the [PUA] on April 30, 2001."  The trial court denied W&R's motion for a summary judgment as to all other claims made by UILIC.  By the time trial began, W&R had replaced more than 7,000 UILIC policies.  The case proceeded to trial on UILIC's claims of tortious interference as to acts that occurred after April 30, 2001, breach of contract, conversion, and fraud; and on W&R's counterclaims of fraud, breach of contract, and unjust enrichment.  The trial resulted in a general verdict in favor of UILIC and against all five defendants on UILIC's claims and W&R's counterclaims and a separate verdict in favor of UILIC and against the defendants on W&R's counterclaims. The jury awarded $50 million in compensatory damages, but it awarded no punitive damages.  The trial court entered a judgment on the jury's verdicts.  W&R filed a postjudgment motion for a judgment as a matter of law ("JML") as to all claims, and also moving for a new trial.  The trial court entered an order denying W&R's postjudgment motion.  W&R then appealed.   HOLDING:  The Supreme Court held that the evidence presented in this case establishes that W&R was never a stranger to the relationships at issue.  The Court held that one cannot be guilty of interference with a contract even if one is not a party to the contract so long as one is a participant in a business relationship arising from interwoven contractual arrangements that include the contract.  The Court held that if a participant has a legitimate economic interest in and a legitimate relationship to the contract, then the participant enjoys a privilege of becoming involved without being accused of interfering with the contract.  The Court held that UILIC's tortious-interference claim as to acts occurring after April 30, 2001, should not have been submitted to the jury, and the trial court should have entered a JML as to that claim.  The Court further held that any initial reliance by UILIC upon the two alleged fraudulent promises, however arguably reasonable at the time, ceased to be reasonable by February 22, 2000, because by the time significant numbers of policy replacements began to occur in early 2001, UILIC could no longer have reasonably relied upon the alleged promises.  Thus, the Court held that UILIC's promissory-fraud claims should not have been submitted to the jury, and the trial court should have entered a JML in favor of W&R as to those claims.  The Court held that because UILIC did not prove an essential element of fraudulent suppression as to the loss of annuity business -- that W&R's suppression of its true plan either induced UILIC to act or to refrain from acting -- that portion of UILIC's fraudulent-suppression claim also should not have been submitted to the jury, and the trial court should have entered a JML in favor of W&R as to that portion of the fraudulent-suppression claim.  The Court held that, as to UILIC's claim that W&R's fraudulent suppression of its true intent caused it to spend $385,933 in developing a variable-annuity insurance policy (the Advantage Gold) that W&R had requested but that it did not intend to actively promote, UILIC produced substantial evidence creating a factual dispute as to that portion of its fraudulent-suppression claim requiring resolution by the jury.  As to the conversion claim, the Court held that nothing authorized W&R, acting through its officers who were also managers of Target Funds, to direct Target Funds to intercept funds historically collected for the payment of sums due UILIC for M&E charges, to deduct from those funds sums due W&R for commissions, and to cause those sums to be paid to W&R.  The Court held that, in so doing, W&R engaged in an unauthorized set-off not shown to be supported by the terms of the letter. The Court further held that those funds were sufficiently segregated and identifiable such that the jury could have determined that W&R had converted them.  Therefore, the Court held that UILIC's conversion claim was properly submitted to the jury, and the trial court properly denied W&R's motion for a JML as to that claim.  As to the claim for breach of contract through diversion of funds, the Court held that UILIC's breach-of-contract claim was properly submitted to the jury, and the trial court properly denied W&R's motion for a JML as to that claim.  Finally, the Court held that because the jury issued a general verdict and because the tortious-interference claim, the promissory-fraud claims, and the fraudulent-suppression claim concerning the loss of annuity business were improperly submitted to the jury, it had no choice but to reverse the judgment based on the jury verdict for UILIC.  The Court remanded the case for a new trial on UILIC's claims of conversion, breach of contract, and fraudulent suppression as to the development of the Advantage Gold policy.  The Court affirmed the judgment in UILIC's favor on W&R's counterclaims and affirmed the declaratory judgment in UILIC's favor concerning the July 1999 letter.)
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--(The original, withdrawn opinion released April 18, 2003, in Waddell & Reed is also available on the website of Wallace, Jordan, Ratliff & Brandt, L.L.C.)--
 

• Flannigan v. Jordan,

No. 1012355 (Ala. July 3, 2003)
(time for appeal to circuit court from probate court; tolling; "motion for reconsideration"; On November 9, 2001, Jeffrey Flannigan was killed on the job while working as a high-voltage electrician in Mississippi. On that same day, the appellants, Jeffrey's parents, Jerry and Charlotte Flannigan ("the Flannigans"), were appointed guardians of Jeffrey's only daughter, Erin-Lea Flannigan, by the Circuit Court of Escambia County, Florida, where the Flannigans and Erin-Lea reside. On November 10, 2001, Lynn Jordan petitioned to be appointed as administratrix of Jeffrey's estate on the basis that she was Jeffrey's common-law wife at the time of his death. The Montgomery County Probate Court granted letters of administration to Jordan on November 19, 2001. On November 30, 2001, Jordan filed a civil action on Jeffrey's behalf in Mississippi against Jeffrey's employer seeking damages for Jeffrey's death.  On February 1, 2002, the Flannigans, as guardians of Erin-Lea Flannigan and as personal representatives of Jeffrey's estate, petitioned the Montgomery County Probate Court for the removal of Jordan as administratrix of Jeffrey's estate, asserting three separate grounds for her removal. On May 14, 2002, the Montgomery County Probate Court held a hearing and heard testimony on the Flannigans' petition. On May 30, 2002, without specifying the grounds, the Probate Court of Montgomery County granted that petition and removed Jordan as administratrix of Jeffrey's estate.  On June 12, 2002, Jordan filed a "motion for reconsideration or, in the alternative, motion for clarification" of the probate court's order, seeking to learn which of the three grounds argued by the Flannigans was the basis for the order removing her as administratrix. The probate court denied that motion on June 17, 2002, and Jordan appealed to the Montgomery Circuit Court on June 21, 2002.  The Flannigans filed a motion in the Montgomery Circuit Court to dismiss Jordan's appeal as untimely because it was not filed within seven days of the date of the probate court's order removing Jordan as administratrix, i.e., May 30, 2002, under Ala. Code §12-22-21(3), thus depriving the Montgomery Circuit Court of subject-matter jurisdiction over the appeal. After a hearing on that motion on September 11, 2002, the Montgomery Circuit Court denied the Flannigans' motion and certified its order for an interlocutory appeal under Rule 5, Ala.R.App.P. HOLDING:  The Supreme Court held that a limitations period cannot be tolled after it has passed.  The Court noted that the Alabama Legislature has established the time in which a removed administratrix may appeal her removal by the probate court as "within seven days after such decree, judgment or order" under Ala. Code §12-22-21(3).  The Court further recognized that an appeal is not a vested right but rests on statutory grounds.  The Court held that when the probate court issued its order on May 30, 2002, Jordan had until June 6, 2002, to file an appeal with the circuit court, and because Jordan did not file her motion or her notice of appeal until after June 6, 2002, Jordan's appeal was untimely.  Thus, the Court held that the circuit court erred in determining that Jordan's motion could toll a limitations period that had already passed.)
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• Ex parte Moore,

No. 1020256 (Ala. July 3, 2003)
(divorce; division of marital property; alimony; attorneys' fees; In 2001, after 19 years of marriage, John P. Moore, Jr. ("the husband"), and Theresa V. Moore ("the wife") were divorced by the Houston Circuit Court, following the presentation of ore tenus evidence.  The trial court divided the marital property and the debts of the marriage and awarded the wife $ 4,000 in monthly periodic alimony, "until such time as the [wife] has become employed in her profession as a nurse anesthetist, but for no longer than twelve months from the date of [the] judgment."  The wife appealed, arguing that the property division was inequitable, that the alimony award was insufficient, and that the trial court had exceeded its discretion by failing to award her an attorney fee.  The Court of Civil Appeals reversed the trial court's judgment as to the award of periodic alimony and the division of the marital estate, stating its "conclu[sion] that the trial court's alimony award and its division of the marital estate, accumulated over the course of the ... marriage, was inequitable."  The Court of Civil Appeals affirmed the trial court's judgment insofar as the judgment failed to award the wife an attorney fee, "conclud[ing] that the trial court did not abuse its discretion in declining to award the wife an attorney fee."   The husband petitioned this Court for certiorari review of the decision of the Court of Civil Appeals insofar as that decision reversed portions of the trial court's judgment. HOLDING:  The Supreme Court held that the trial court's award of periodic alimony and its property division were not plainly or palpably wrong.  The Court reversed the judgment of the Court of Civil Appeals insofar as it reversed portions of the trial court's judgment.)
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• Yellow Dog Development, LLC v. Bibb County,

No. 1020374 (Ala. July 3, 2003)
(constitutionality of local act authorizing probate fee; Yellow Dog Development, LLC ("Yellow Dog") filed a two-count complaint containing class-action allegations against the Bibb County, the Bibb County Commission, and Jerry Pow, in his official capacity as Bibb County Probate Judge (hereinafter referred to collectively as "the County").  Count one sought a judgment declaring that Local Act No. 93-521, Ala. Acts 1993 ("the Act"), which authorized a "special transaction fee" ("the Fee") payable to the Bibb County Probate Judge, upon the transaction of any "public business" in that office, violated Ala. Const. 1901, §104(24), and Amendment No. 332, Ala. Const. 1901.  Yellow Dog claimed that the Act did not call for a vote of the people of Bibb County for approval of the special transaction fee and, as such, the Act, and all funds raised under the Act, were raised illegally.  Count two sought, among other things, "[t]he imposition of a constructive trust ... upon the ... monies obtained by the [County]," and "[a]n  award to Yellow Dog ... [of] damages for the [County's] conduct in the amount equal to the additional court costs and fees that [they were] forced to pay."  The Act provides, in pertinent part: "In addition to all other fees and costs provided by law, a special transaction fee not exceeding two dollars ($2) shall be paid to the Bibb County Judge of Probate when any public business is transacted in his or her office.  The special additional transaction fees shall be collected by the judge of probate and deposited in the county general fund for appropriation for the improvement and computerization of the probate office."  The trial court granted the County's summary-judgment motion, and Yellow Dog appealed.  HOLDING: The Supreme Court affirmed.  The Court concluded that the Fee at issue here is not paid to the probate judge as compensation, or otherwise for his use, but is to be used to upgrade and modernize the probate office.  As such, the Court held that Ala. Const. §104(24) has nothing to do with this case and that it is immaterial -- for the purposes of this appeal -- that the Fee was implemented without a referendum election.  The Court held that the Fee is not within the scope of §104(24); that compliance with Amendment No. 332 was, therefore, unnecessary; and that, in the context of the arguments presented in this case, the Fee is valid.)
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