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First Tennessee Bank v. Snell

718 So. 2d 20

1970621

Alabama

Alabama Supreme Court

718 So. 2d 20 (1998) FIRST TENNESSEE BANK, N.A. v. Steve SNELL et al. 1970621. Supreme Court of Alabama. June 19, 1998. Michael L. Edwards and Gregory C. Cook of Balch & Bingham, L.L.P., Birmingham, for appellant. L. Andrew Hollis, Jr., and Emily H. Nelson of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham; Rufus R. Smith, Jr., Dothan; and Douglas M. Bates, Dothan, for appellees. R. Carlton Smyly of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for amicus curiae First Family Financial Services, Inc. Carl S. Burkhalter of Maynard, Cooper & Gale, P.C., Birmingham, for amicus curiae Beneficial National Bank U.S.A. SHORES, Justice. This appeal is from an order enforcing a judgment in a class action brought by purchasers of certain satellite television systems against the seller of the systems and First Tennessee Bank, N.A., which financed the transaction. The only question before this Court is whether certain language found in *21 Ex parte First National Bank of Jasper, 717 So. 2d 342 (Ala.1997) ("FNB of Jasper III"), voids a final judgment entered in a class action prior to December 16, 1997, the day FNB of Jasper III was announced. We hold that it does not, and we affirm. The plaintiffs Steve Snell, Tina Snell, and Dallas Snell filed the complaint in this case on November 15, 1996, in the Circuit Court of Houston County. The complaint alleged that Home Cable Concepts of Tennessee; its salesman, Ray Crain; and First Tennessee, which financed the transaction, were liable to the buyers of these satellite television systems as a result of their alleged joint fraudulent misconduct in connection with the sale and financing of the systems. The Snells asserted only claims based on state law. They sought damages on behalf of themselves and all other Alabama buyers of such systems within a designated period. On February 6, 1997, the trial court conditionally certified a defined group of Alabama purchasers as members of the class whose interests would be determined in this action. After both sides had conducted extensive discovery, they began settlement negotiations. In August 1997, the plaintiffs and First Tennessee submitted a settlement to the trial court for its approval. Judge Denny Holloway granted preliminary approval of the proposed settlement and ordered the parties to mail notices of the proposed settlement to all absent class members. After notice was given to the class, the trial court held a fairness hearing concerning class certification and final settlement. After the hearing, the trial court issued an opinion approving the class certification and the settlement, and it entered a final judgment on October 21, 1997. No appeal was taken from this final judgment. Under the settlement, First Tennessee agreed to pay the first portion of the damages called for by the settlement, by December 18, 1997. Two days before that initial payment was due, this Court released its opinion in FNB of Jasper III. In the FNB of Jasper III, this Court acknowledged that the rule established in Ex parte First National Bank of Jasper, 675 So. 2d 348 (Ala.1995), and First National Bank of Jasper v. Crawford, 689 So. 2d 43 (Ala.1997) (hereinafter FNB of Jasper I and FNB of Jasper II), had resulted in a race to certification in putative class action lawsuits. Lawyers representing plaintiffs in such cases often prematurely sought, and trial courts frequently granted, conditional class certification, in order to protect the interests of the parties and to retain the trial court's jurisdiction. Such action was entirely appropriate because, under the rule announced in FNB of Jasper I and II, the parties and the court were justified in protecting themselves against the possibility that another court might conditionally certify a substantially similar class action; if that other court beat them to certification, then the class action would proceed in that other court, notwithstanding that the complaint in that other court might have been filed later than the one in the forum court. In FNB of Jasper III, this Court sought to establish a workable procedure that would be fair to all litigants and that would promote the efficient delivery of justice by the trial courts in the ever-growing area of class action litigation. FNB of Jasper III acknowledged that the first-to-certification rule of FNB of Jasper I and II had failed to achieve the fairness and efficiency that are the goal in all class action litigation. Consequently, FNB of Jasper III overruled FNB of Jasper I and II to the extent that those earlier cases had held that the first plaintiff to obtain conditional certification was the winner of the race to the courthouse, regardless of when that plaintiff's complaint was filed. In FNB of Jasper III, we reaffirmed the general rule that has been followed for many years and that was expressly applied in the class action context in Ex parte Liberty Nat'l Life Ins. Co., 631 So. 2d 865, 867 (Ala.1993): (Quoted in FNB Jasper III, 717 So. 2d at 350; emphasis added in FNB of Jasper III.) This statement quoted from Liberty National is the holding of FNB of Jasper III. After quoting that statement from Ex parte Liberty National, we stated, in dicta: FNB of Jasper III, 717 So. 2d at 350. It is true that a prior-filed class action prevails over a later-filed class action involving substantially identical class allegations and requires the abatement of the later-filed action. In that sense, the court in which the second class action is filed lacks subject matter jurisdiction of that particular class action, assuming that the existence of the prior pending action is called to the attention of the court. The court in FNB of Jasper III sought to demonstrate by hypothetical example the operation and effect of this rule. The hypothetical assumed that the first class action was filed in Jefferson County. Before the Jefferson County court addressed the question of certification of the class, a second action was filed in Montgomery County, with substantially similar allegations. We said: 717 So. 2d at 351. This is the language, again dicta in FNB of Jasper III, that is now in question. First Tennessee did not pay by December 18, 1997, the first portion of the monetary class relief mandated in the settlement. After First Tennessee failed to make that deadline, the Snell plaintiffs filed a motion to enforce the judgment based on the settlement. First Tennessee opposed the motion because of the language in FNB of Jasper III. First Tennessee stated that May 9, 1996, an action had been filed in the United States District Court for the Middle District of Alabama by Brenda A. Myers and Clausezill Myers on behalf of themselves and all other similarly situated persons, against Home Cable Concepts of Tennessee and First Tennessee. The Myerses alleged in that action that First Tennessee and Home Cable Concepts had engaged in unfair and deceptive practices in connection with the sale of television satellite dishes. They also asserted federal claims under the Federal Truth-in-Lending Act (TILA) and RICO. Both First Tennessee and Home Cable Concepts filed motions to dismiss, upon which no ruling has been made. In opposition to the motion to enforce the judgment, First Tennessee acknowledged that no class certification had been made in that federal action, but it said it feared that, because of the language of FNB of Jasper III, the state judgment might be void and subject to collateral attack on the grounds of lack of subject matter jurisdiction. On December 23, 1997, Judge Holloway considered, and then granted, the plaintiff class's motion to enforce the judgment. On that date he issued this "Final Order Enforcing Final Judgment": Does FNB of Jasper III require a holding that the October 21, 1997, judgment entered in this case is void? Again, the answer is no. First, the holding in FNB of Jasper III was this: The first class action prevails over a second substantially similar case filed in another court. This means that the court with the second class action should refuse to exercise jurisdiction in that second case, once it is brought to the court's attention that a prior action is pending elsewhere. That did not happen in this case. Second, the language quoted above from FNB of Jasper III means only that the court in which the second class action is filed should refuse to exercise jurisdiction over the case once it is apprised of the fact that another court has assumed jurisdiction of substantially the same case (involving the same parties, the same issues, etc). The Court was trying in FNB of Jasper III to formulate a procedure for class action *24 litigation that would fairly and efficiently promote justice. That goal would not be advanced by holding that the October 21, 1997, judgment in this case was void ab initio simply because a substantially similar action had been filed in another circuit by other plaintiffs before the complaint was filed in this case. That prior-filed case has not proceeded beyond the filing of a complaint and motions to dismiss. While that prior-filed case remained pending in the federal district court, with little action, this present case proceeded to a final judgment in the Houston County Circuit Court. In FNB of Jasper III, we attempted to establish a class action procedure that would be fair to the lawyers, the litigants, and the trial courts; it appears that the application of the literal language of FNB of Jasper III (although not its holding) to the facts of this case would have just the opposite result. Its application would be grossly unfair to everyone the procedure was intended to serve. First Tennessee, as well as the plaintiffs, is justifiably concerned as to what effect the language of FNB of Jasper III has on the October 21, 1997, judgment in this case. We hold that, as this case is postured, FNB of Jasper III does not compel the conclusion that October 21, 1997, judgment is void. Perhaps the decision in FNB of Jasper III should be applied prospectively, or quasi-prospectively, only. There would be ample authority for such a holding. The United States Supreme Court has suggested certain factors a court should consider in deciding whether a judicial decision is to be applied nonretroactive. See Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (U.S.1971). We quoted the Chevron Oil factors in McCullar v. Universal Underwriters Life Ins. Co., 687 So. 2d 156 (Ala.1996): 687 So. 2d at 165 (quoting Chevron Oil, 404 U.S. at 106-07, 92 S. Ct. at 355, 30 L. Ed. 2d at 296 (1971)). We also noted in McCullar that under Alabama law, the first of these Chevron Oil factors will, in many cases, prove dispositive of the retroactivity issue. That first factor suggests that the retroactivity issue turns on the extent to which the new decision affects pending or preexisting rights. 687 So. 2d at 165. In the present case, the class certification was made on October 21, 1997, after a rigorous analysis by the trial court. That was the first certification of a class of Alabama purchasers of satellite television systems financed by First Tennessee. The plaintiff class and First Tennessee had every reason to believe, in reliance on Alabama law, that they could settle the case, and they did so. To apply the FNB of Jasper III language in this case would unfairly penalize the plaintiffs and First Tennessee, who had reasonably relied upon the law as it existed when the judgment was entered in this case. Alabama law supports maintaining the finality of a judgment. In Ex parte Americold Compressors Co., 684 So. 2d 140 (Ala.1996), this Court refused to reopen a final judgment in a workers' compensation case, despite a change in the law. The Court reasoned: "To reopen such matters not only would conflict with settled Alabama law, but also would defeat public policy considerations: `"[t]he quieting of litigation; the *25 public peace and repose; respect for judicial administration of the law, and confidence in its reasonable certainty, stability and consistency." Bibb v. Bibb, 79 Ala. 437, 444 (1885).'" 684 So. 2d at 144 (quoting Stallworth v. Hicks, 434 So. 2d 229, 230 (Ala. 1983)). No doubt there are cases with class action allegations pending all over the state.[1] No doubt they are in various stages. In some, classes have been conditionally certified, while in others classes have not been conditionally certified. Some have proceeded to expensive discovery, and others, as this one, may have proceeded to final judgment, all without regard to whether it was the first action filed that contained the particular class allegations. The rule announced in Ex parte Liberty National, supra, and reaffirmed in FNB of Jasper III will, of course, apply to all cases filed after FNB of Jasper III was announced. Whether that rule should be rigidly applied to other cases in various stages of litigation must be determined on a case-by-case basis. There is a finite number of cases that will involve this same question, although we do not know what that number is. Eventually, however, all of those cases will be resolved. Until then, in each case the trial judge, as Judge Holloway did here, must determine what effect, if any, the new rule has on the final disposition of the case. Our purpose remains the same: to establish a procedure whereby the trial courts are allowed to manage class action litigation in a manner that is fair to all parties, as well as to the court in the management of its docket. Lawyers and litigants, on either side, have an obligation to inform the court, at the earliest time possible, that substantially similar litigation is pending elsewhere, if that fact is known to them. It is difficult to imagine that a defendant would not be aware of prior pending litigation when it is served with the second complaint. In a second action, the fact of the pendency of the first action should be called to the attention of the court by a motion to dismiss. In this case, it appears that only after it had entered its October 21, 1997, judgment was the trial court informed that a prior complaint, containing similar class allegations, had been filed against these defendants by different plaintiffs. By noting this fact, we do not intend to suggest that First Tennessee, or any other defendant, was under an obligation to inform the court of the prior-filed action. After all, the law at that time gave preference to the class action that was first certified, not to the action that was first filed. Under the facts of this case, the trial court did not err by enforcing the judgment that had been entered by agreement of the parties in this class action litigation, notwithstanding the fact that a similar case had been filed in another court before the complaint was filed in this case. The order enforcing that judgment is affirmed. AFFIRMED. ALMON, HOUSTON, KENNEDY, and LYONS, JJ., concur. HOOPER, C.J., and MADDOX, COOK, and SEE, JJ., concur in the result. COOK, Justice (concurring in the result). I concur in the result reached by the majority in this case, but for reasons different from those expressed by the majority. The majority concludes that the rule we established in Ex parte First National Bank of Jasper, 717 So. 2d 342 (Ala.1997) ("FNB of Jasper III"), should apply on a "case-by-case basis" to those cases that were in various stages of litigation when FNB of Jasper III was released. 718 So. 2d at 25. However the specific problem presented by this case can be adequately addressed by recognizing the distinction between the situations in which the first-filed action was filed in a state court and those situationslike this onein which the first-filed action was filed in a federal court. There is no question that here the first-filed action was commenced in a federal court. Of course, the rule of FNB of Jasper III does not apply retroactively in a federal *26 courtit does not apply in a federal court at all. Indeed, it cannot apply to actions pending in federal courts. This is so because the courts of the United States are courts of another sovereign, over which the courts of Alabama have no supervisory control or jurisdiction. Even more fundamentally, the application of FNB of Jasper III to class actions pending in federal courts would be prohibited by U.S. Const. art. VI, cl. 2, the "Supremacy Clause," which states: "This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding." The rule set forth in FNB of Jasper III is a state law that is "contrary" to federal class-action law. Specifically, United States district courts, pursuant to the All Writs Act, 28 U.S.C. § 1651, readily exercise the power to enjoin competing class actions, whether those competing actions are pending in state courts or in other federal courts. See White v. National Football League, 822 F. Supp. 1389, 1433-34 (D.Minn.1993), aff'd, 41 F.3d 402 (8th Cir.1994), cert. denied sub nom. Jones v. National Football League, 515 U.S. 1137, 115 S. Ct. 2569, 132 L. Ed. 2d 821 (1995). They exercise this power regardless of the priority of filing. Id. They are aided, of course, in the discretionary exercise of this power by the Judicial Panel on Multidistrict Litigation, established pursuant to 28 U.S.C. § 1407an auxiliary feature notably absent from Alabama law. Not only is FNB of Jasper III "contrary" to federal law, but its application would literally oust a United States district court of jurisdictiona legal impossibility under the Supremacy Clause. As a cogent example of such a result, assume that, unlike the scenario involved in this case, an action containing class allegations is filed in a state court, followed by the filing of an action containing identical allegations in a United States district court. If FNB of Jasper III applied to class actions proceeding in federal courts, it would arguably deprive that district courtindeed, every United States district court in the nationof jurisdiction over class actions filed after the commencement of the Alabama state-court action, at least insofar as they included the same putative class members. This result is impossible under the Supremacy Clause. The rule of FNB of Jasper III has no application, therefore, to a class action commenced in a federal court. The settlement judgment in this case does not contravene the rule expressed in FNB of Jasper III. It is therefore enforceable under an approach that recognizes that the rule of FNB of Jasper III has no application to a class action commenced in a federal court. I therefore concur, but in the result only. SEE, Justice (concurring in the result). I concur in the result reached by the majoritythat this second-filed state action does not abatebut I write separately to explain my rationale. Under § 6-5-440, Ala. Code 1975, the first-filed federal action did not operate to abate the second-filed state action because the defendant, First Tennessee Bank, National Association ("First Tennessee"), did not assert abatement as a defense in the second-filed action. Section 6-5-440 provides: (Emphasis added.)[2] This Court has held that the phrase "the courts of this state" in § 6-5-440 includes federal district courts located in Alabama. Ex parte Myer, 595 So.2d *27 890, 892 (Ala.1992); Terrell v. City of Bessemer, 406 So. 2d 337, 339 (Ala.1981) (citing, e.g., Fegaro v. South Cent. Bell, 287 Ala. 407, 409-10, 252 So. 2d 66, 68 (1971); Orman v. Lane, 130 Ala. 305, 30 So. 441 (1901)). Thus, § 6-5-440 could have operated to abate the second-filed state action against First Tennessee based on the pendency of the first-filed action in the United States District Court for the Middle District of Alabama. Ex parte Myer, 595 So. 2d at 892 (requiring the abatement of a second-filed state action because of the pendency of a first-filed federal action).[3] Section 6-5-440, however, does not operate on the jurisdiction of the trial court. The statute does not provide that the trial court "is deprived of" jurisdiction over the second-filed action, or that the second-filed action "is void." Instead, § 6-5-440 provides that when two actions are commenced at different times, the pendency of the first-filed action "is a good defense" to the second-filed action. Thus, a defendant must raise the first-filed action as a defense in a motion to dismiss. See Ex parte Myer, 595 So. 2d at 891; Herrington v. City of Eufaula, 36 Ala.App. 348, 349, 55 So. 2d 758, 760 (1951). Because First Tennessee did not properly raise the first-filed federal action as a defense in a motion to dismiss the second-filed state action, § 6-5-440 does not operate to abate that second-filed state action.[4] MADDOX, J., concurs. [1] We are urged by amici curiae not to establish a rule giving automatic precedence to an earlier-filed class action in a federal court over a later-filed class action in an Alabama state court. We do not intend to do so by our holding today. [2] Of course, if a defendant properly raises the defense of abatement where the two actions were filed at different times, the plaintiff is not afforded an election of which action to abate. The second-filed action automatically abates. Section 6-5-440 provides a plaintiff an election of which action to abate only where the actions were "commenced simultaneously." Where the actions were "commenced at different times," § 6-5-440 provides that "the pendency of the former [action] is a good defense to the latter [action]." [3] I note that this Court has properly held that Alabama's statutory abatement rule does not operate where the first-filed action is pending in a state court and the second-filed action is pending in a federal court. The abatement statute does not provide for abatement of first-filed actions, and cannot abate federal court actions. See Johnson v. Brown-Service Ins. Co., 293 Ala. 549, 307 So. 2d 518 (1974) (explaining that Alabama's abatement rule applies only to abate second-filed state actions, not second-filed federal actions). [4] First Tennessee does not argue that the second-filed state action should be abated. That action resulted in a settlement with which First Tennessee is apparently satisfied. Thus, a principal purpose of § 6-5-440to protect the defendant from vexatious litigationwould not be served by abating this second-filed action. See Johnson v. Brown-Service Ins. Co., 293 Ala. 549, 551, 307 So. 2d 518, 520 (1974) ("The purpose of the [abatement] rule is to avoid multiplicity of suits and vexatious litigation.").

June 19, 1998

7d3957aa-4bd1-47ee-aca7-9b084cfb8bf1

Ex Parte Price

725 So. 2d 1063

1970372

Alabama

Alabama Supreme Court

725 So. 2d 1063 (1998) Ex parte Christopher Lee PRICE. (Re Christopher Lee Price v. State). 1970372. Supreme Court of Alabama. September 4, 1998. Rehearing Denied November 20, 1998. *1065 Joel L. Sogol, Tuscaloosa, for petitioner. Bill Pryor, atty. gen., and Sandra J. Stewart, asst. atty. gen., for respondent. MADDOX, Justice. Christopher Lee Price was convicted of capital murder for the intentional murder of Bill Lynn during the course of a robbery in the first degree. After a sentencing hearing, the jury returned an advisory verdict recommending, by a vote of 10 to 2, that Price be sentenced to death by electrocution. After holding a separate sentencing hearing, the trial court sentenced Price to death by electrocution. Price was also convicted of robbery in the first degree for the robbery of Bessie Lynn, Bill Lynn's wife, and the trial court sentenced him to life imprisonment, without parole, for that conviction. The Court of Criminal Appeals affirmed Price's convictions and sentences. Price v. State, 725 So. 2d 1003 (Ala.Cr.App.1997). This Court granted Price's petition for certiorari review pursuant to Rule 39(c), Ala. R.App. P. We affirm. Through the testimony of Bessie Lynn and the admission of a statement Price had given to authorities in Chattanooga, Tennessee, approximately one week after the alleged offenses, the State presented evidence tending to show the following: Price v. State, 725 So. 2d at 1011-1012. Before this Court, Price raises 23 issues, all of which were considered and rejected by the Court of Criminal Appeals. Although we have carefully reviewed and considered all of Price's arguments, we will address only one issue in this opinion: whether the trial court erred when it denied Price's motion to suppress any extrajudicial inculpatory statements Price gave to law enforcement authorities. Before trial, Price gave two statements to law enforcement authorities. He gave the first statement to Detective Michael Mathis of the Chattanooga, Tennessee, Police Department on December 29, 1991 (the "Tennessee statement"). The record indicates that Detective Mathis made audiotapes of that interview and later provided the audiotapes to Sheriff James Turner in Fayette County, Alabama. Sheriff Turner testified that his secretary prepared a typed transcript of the tapes of Detective Mathis's interview.[1] Price gave the second statement to Sheriff Turner on December 29, 1991, in Fayette County (the "Alabama statement"). Sheriff Turner testified that this interview was also recorded on audiotape and that a typed transcript was prepared.[2] Price filed a pretrial motion to suppress, requesting that the trial court suppress "[a]ny statements made by [Price], whether oral, written or videotaped, which the State intends to introduce into evidence or otherwise use at the trial of this case." Price did not specify in the motion why the statements should be suppressed. The trial court conducted a hearing on Price's motion on December 15, 1992, during which the State presented evidence regarding both statements. At the hearing, the trial judge denied Price's motion to suppress, as to both statements. On appeal, Price contends that both statements should have been suppressed because, he says: (1) with regard to both of the statements, the State failed to adequately demonstrate that the law enforcement authorities had properly advised him of his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 *1067 (1966)) before questioning him; and (2) the Tennessee statement was the product of an improper inducement. It is well established that extrajudicial confessions and other inculpatory statements are prima facie involuntary and that for such a statement or confession to be admissible the State must prove by a preponderance of the evidence that it was voluntary. Ex parte Singleton, 465 So. 2d 443, 445 (Ala. 1985). To satisfy this burden, the State must show: (1) that proper Miranda warnings were given before any questioning by the police and (2) that the statement was voluntary, i.e., that it was not procured through coercion or improper inducement. See Stariks v. State, 572 So. 2d 1301, 1304 (Ala.Crim. App.1990); McLeod v. State, 718 So. 2d 727, 729 (Ala.1998). The initial determination of admissibility is made by the trial court, and the trial court's determination will not be disturbed unless it is contrary to the great weight of the evidence or is manifestly wrong. McLeod, supra; Stariks, supra. Price argues that, with regard to both statements, the State failed to demonstrate that he was properly advised of his Miranda rights before being questioned. Although there is no talismanic incantation required to satisfy the requirements of Miranda, it is well settled that, before being questioned, an accused in custody must be informed in clear and unequivocal terms that he has the right to remain silent, that anything he says can be used against him in court, that he has the right to have counsel present at the interrogation, and that if he is indigent and cannot afford to pay a lawyer, the court will appoint one to represent him during the interrogation. See Ex parte Siebert, 555 So. 2d 780, 781-82 (Ala.1989), citing, California v. Prysock, 453 U.S. 355, 359-60, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981); Wallace v. State, 290 Ala. 201, 275 So. 2d 634 (1973). If the defendant is not advised of each of these rights before being questioned, then any statement he makes during the questioning is not admissible against him as evidence of guilt. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 429, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (statements made in response to custodial interrogation are inadmissible as evidence of guilt unless the defendant was advised of the rights established in Miranda). We will first consider whether the State demonstrated that Price had been properly advised of his Miranda rights before being questioned by Detective Mathis in Chattanooga. Price argues that this Court may consider only the evidence that was before the trial court when it denied the motion to suppress and, therefore, that it may not consider any additional evidence relevant to this issue that was produced subsequently at trial. He contends that the State did not actually produce evidence at the suppression hearing that precisely identified which rights were explained to him before he provided the Tennessee statement; therefore, he argues, the State failed to show that he was properly advised of his Miranda rights. However, Price has cited no legal authority or persuasive reason in support of a rule requiring this Court to consider only the evidence presented to the trial court at the pretrial suppression hearing. Accordingly, we will apply the long-standing rule that, in considering whether the trial court properly overruled a defendant's motion to suppress an extrajudicial confession or other inculpatory statement, a reviewing court may consider both the evidence presented at the pretrial suppression hearing and the evidence presented at trial. See, e.g., Henry v. State, 468 So. 2d 896, 899 (Ala.Crim.App.1984); United States v. Smith, 527 F.2d 692, 694 (10th Cir.1975) ("In passing on the correctness of the trial court's denial of [the defendant's] motion to suppress, we are not limited to a consideration of just the evidence introduced at the hearing on the motion to suppress. In addition thereto, we may also consider the evidence adduced at trial, even though such may *1068 not have been presented at the pretrial suppression hearing.").[3] "[B]efore he attempted to introduce the Tennessee statement into evidence at trial, the prosecutor questioned Detective Mathis. Detective Mathis testified that before he questioned Price, he informed Price of his constitutional rights and that he used the "standard rights form" required by the Chattanooga Police Department. He testified that he explained every portion of that form to Price and, before continuing, ascertained whether Price understood what was being read to him. Detective Mathis was then asked to describe specifically what he had told Price; he stated that Price was told: This statement complied with both Alabama and Federal law regarding the obligation to inform an accused in custody of his rights under Miranda. See Wallace, supra. Accordingly, after reviewing the complete record on this issue, we conclude that the State demonstrated that Price was properly advised of his Miranda rights before being questioned by law enforcement authorities in Chattanooga, Tennessee. We will next address Price's argument that the State failed to prove that he was properly advised of his Miranda rights before he gave the Alabama statement to Sheriff Turner in Fayette County.[4] At the outset, we note that the record indicates that the State did not seek to introduce this statement into evidence at trial; indeed, it appears from the record that neither the audiotape of the statement nor the typed transcript of that tape was ever considered directly by either the trial court or the jury. At first blush, therefore, it appears that Price was not prejudiced by any error in regard to this issue. However, the record does reflect that Sheriff Turner testified at trial that he had interviewed Price and that, during the interview, they had discussed the location of a .44 caliber pistol and a holster. Specifically, Sheriff Turner testified that Price gave him directions explaining how the police could locate these pieces of evidence. The State also presented evidence indicating that these two items had belonged to Bill Lynn. In short, the State introduced evidence tending to show that Price had provided a statement to Sheriff Turner and that this statement contained information concerning the location of items that had belonged to the victim. There can be no doubt that, by linking Price to the crime, this reference to the Alabama statement was inculpatory to some extent and contributed in at least some measure to Price's conviction. Accordingly, if the State failed to prove that Price had been properly advised of his Miranda rights before Sheriff Turner interviewed him, the State should not have been permitted to introduce evidence of *1069 that statement. See, e.g., Berkemer, supra.[5] The facts relevant to whether Price was fully informed of his Miranda rights before being questioned by Sheriff Turner are as follows: At the pretrial suppression hearing, Sheriff Turner was asked whether he had advised Price of his "constitutional right to counsel and to not give a statement and the other rights commonly referred to as Miranda rights." Sheriff Turner responded by saying that Price had been advised "of his rights" and that the audiotapes of the interview reflected that fact. However, the record of the suppression hearing does not show that the trial judge reviewed either the audiotapes or the typed transcript of Price's statement to Sheriff Turner before ruling on whether that statement should be suppressed; nor does the record show that Sheriff Turner read the typed transcript aloud at the suppression hearing. During her cross-examination of Sheriff Turner at the suppression hearing, Price's counsel asked Sheriff Turner whether Price had been given the Miranda warnings "from a form." Specifically, the record contains the following colloquy: After hearing further testimony regarding the voluntariness of the Alabama statement,[6] the trial judge denied Price's motion to suppress that statement. During the State's case-in-chief, the prosecutor questioned Sheriff Turner concerning his role in the investigation of Bill Lynn's murder and, as described above, specifically asked Sheriff Turner if he had interviewed Price. Sheriff Turner answered that he had interviewed Price. The prosecutor then asked Sheriff Turner: The record indicates that the evidence set out above is the only evidence presented that was relevant to the question whether Price was advised of his Miranda rights before being questioned by Sheriff Turner. Although Sheriff Turner testified at the pretrial suppression hearing that the Alabama statement had been audiotaped and that the tape reflected that Price had been informed of his rights, there is no indication in the record that either the audiotape or the typed transcript of the statement was introduced as evidence during the trial. We further note that, on cross-examination, Price's trial counsel did not ask Sheriff Turner any questions concerning what warnings the deputy actually gave Price. Her questions were limited to whether the warnings were given "from a form," and she did not ask what was printed on the form. The testimony set out above does not contain a complete statement of the rights provided by Miranda v. Arizona. For example, in his question to Sheriff Turner, the prosecutor did not ask him if Price had been advised that, if he could not afford an attorney, one would be appointed for him. See Miranda v. Arizona, 384 U.S. 436, 473, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) ("[i]n order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him"); Wallace, supra. Also, it is clear that, although Sheriff Turner presented testimony indicating that Price's rights were read to him from a preprinted card or form, Sheriff Turner did not read that card at trial. Cf. Carr v. State, 640 So. 2d 1064, 1070 (Ala.Crim.App.1994) (holding that the State demonstrated that the defendant had been fully informed of his Miranda rights, because a law enforcement officer testified at trial that he had orally informed the defendant of his Miranda rights by reading those rights from a preprinted card and read that card at trial). Furthermore, the testimony set out above provides no evidence that Price actually signed a waiver-of-rights form before being interviewed. In short, the State never articulated precisely which rights were explained to Price before he was questioned by Sheriff Turner. The question presented, therefore, is whether the State satisfied its burden of proving that Price was properly advised of his rights before he was questioned in Fayette County, when it presented Sheriff Turner's testimony that Price had been read his Miranda rights from a form or card, without specifying the contents of that form or card. Courts, attorneys, law enforcement officers, and the public frequently use the word "Mirandize" or a simple reference to the Miranda decision as a type of shorthand summary of all of the rights articulated in Miranda v. Arizona. See, e.g., Commonwealth v. Crowley, 160 Pa.Cmwlth. 324, 634 A.2d 826, 828 n. 5. (Pa.Commw.Ct.1993) (explaining that "[t]he term `Mirandized-by-T.V.' reflects the concept that, due to the popularity of television police shows and the exposure of the public to Miranda warnings on television and in the movies, people now have a general familiarity with their constitutional rights when accused of a crime"); State v. Ralston, [No. CA-957, May 11, 1983, n. 1] (Ohio Ct.App.1983) (unpublished opinion) ("[w]hile `Mirandize' is not a verb, yet, it succinctly describes the procedural warning required by Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694"). Indeed, it is not uncommon for appellate courts to assert that a given statement is admissible because the defendant was advised of his Miranda rights, without articulating in the opinion itself the precise rights that were explained to the defendant. See, e.g., Hold v. State, 485 So. 2d 801 (Ala.Crim. App.1986) (the defendant made his statement to the sheriff after he had been advised of his Miranda rights and had stated that he understood those rights; thus, the statement was admissible in the defendant's murder trial). *1071 However, the fact that knowledge concerning the rights established in Miranda has become widespread does not necessarily establish that a court may conclude that law enforcement authorities properly advised a suspect of his rights simply because an officer testifies that the suspect was advised of his "Miranda rights" from a form. In Ex parte Johnson, 620 So. 2d 709, 711 (Ala. 1993), this Court explained that in order to satisfy its burden of proving that a defendant was informed of his Miranda rights, the State must spell out with clarity and precision the specific Miranda warnings the police gave to the defendant, because "the general question of whether the Miranda warnings were given does not adequately establish whether the warnings were properly given and understood by the defendant." (Emphasis in original.) See also, Moll v. United States, 413 F.2d 1233, 1238 (5th Cir.1969) ("[t]he government's burden [of proving that proper Miranda warnings were given] may not be met by presumptions or inferences that when police officers read to an accused from a card they are reading Miranda warnings or that what is read, without revelation of its contents, meets constitutional standards"). The record in this case does not indicate precisely which rights were explained to Price. In the absence of any evidence indicating the contents of the form that was read to Price or explaining Sheriff Turner's understanding of what rights must be explained to a suspect, we are forced to conclude that there was no evidence from which the court could have properly concluded that Price was advised of each of the rights established in Miranda before he provided his statement to Sheriff Turner. For example, when Sheriff Turner elaborated at trial on the rights mentioned to Price, he did not articulate all of the rights provided for in Miranda; in particular, his testimony omits any indication that Price was advised that he had the right to have a lawyer appointed if he could not afford one. A court cannot fill in an evidentiary gap with supposition or a presumption concerning a witness's knowledge. In short, this Court cannot presume that Price was advised of all of his rights, based solely on testimony that Price was "Mirandized" from a form; therefore, the State failed to demonstrate that Price had been informed of his Miranda rights before being questioned by Sheriff Turner. Cf. United States v. Gilmer, 793 F. Supp. 1545, 1554-56 (D.Colo.1992) (holding that general, conclusory testimony from police officer that he had "advised [the defendant] of his Miranda rights," at 1555, without an explanation of the officer's understanding of the Miranda rights or of the exact statement of rights that was given to the defendant was insufficient to satisfy the burden of proving that proper Miranda warnings were given, and stating that "[t]he Government and its agents may not, by giving conclusory testimony, arrogate to themselves the decision as to whether adequate Miranda warnings were given," at 1556); People v. Parquette, 123 Ill.App.3d 233, 237-38, 78 Ill.Dec. 582, 462 N.E.2d 701, 705 (1984) (stating that officers' conclusory testimony that they had given the defendant his "Miranda warnings," which testimony did not specify the words actually employed to convey those warnings, was insufficient to show that the defendant had received adequate Miranda warnings); In re M., 70 Cal. 2d 444, 461-62, 75 Cal. Rptr. 1, 450 P.2d 296, 306-07 (1969) (a police officer's conclusory testimony that he gave the defendant advice "per accordance with the Miranda Decision" is inadequate to show that the defendant received full and complete Miranda warnings). We note that the record shows that, although Price filed a general pretrial motion to suppress any statement he had made to law enforcement authorities, Price's trial counsel did not object when the State asked Sheriff Turner whether he had interviewed Price. However, because Price was convicted of capital murder, this Court will review the record for plain error and, if it finds such error, correct it by "appropriate appellate action." See Rule 39(k), Ala. R.App. P. Therefore, having determined that the trial court erred in permitting the State to admit evidence of Price's statement to Sheriff Turner, we must determine whether this error was so egregious as to amount to plain error and thus require a reversal of Price's conviction for capital murder. In order *1072 to constitute "plain error," the error must be a particularly egregious one that seriously affects the fairness, integrity or public reputation of judicial proceedings. See, e.g., Kuenzel v. State, 577 So. 2d 474, 481-82 (Ala.Crim.App.1990), and cases cited therein. In addition, the claimed error must have had an unfair prejudicial impact on the jury's deliberation. Id. Our examination of the record in this case leads us to conclude that the admission of the evidence of Price's Alabama statement did not amount to plain error. As indicated above, the court did not admit into evidence the statement itself. Instead, the evidence at issue here consisted primarily of Sheriff Turner's testimony that he had interviewed Price and that, during the course of the interview, they had discussed the location of the .44 caliber pistol and the holster Price and his accomplice had taken from the victim's residence. There is no doubt that this evidence helped link Price to the crimes at issue. However, Price himself discussed these pieces of physical evidence with Detective Mathis in the Tennessee statement, which, as we discuss in Part VII, 725 So. 2d at 1072, was properly admitted into evidence. Moreover, the additional evidence connecting Price to the crimes was overwhelming. In the Tennessee statement, Price directly implicated himself in the crimes and provided law enforcement authorities with the location of most of the physical evidence linking him to the crimes. Because the State produced overwhelming evidence, beyond Sheriff Turner's testimony concerning the Alabama statement, connecting Price to the crimes, we conclude that the error in allowing Sheriff Turner to testify regarding the statement did not rise to the level of plain error. Cf. Bush v. State, 523 So. 2d 538, 557 (Ala.Crim.App. 1988) (holding that the erroneous admission of the defendant's first statement could not have contributed to the defendant's conviction because the first statement was merely cumulative of the evidence contained in the properly admitted second statement); Kinder v. State, 515 So. 2d 55, 69 (Ala.Crim.App. 1986) (any error in the admission of the defendant's statement was rendered harmless when the defendant admitted to the same facts on the witness stand).[7] Price also argues that his statement to Tennessee authorities was not voluntary and should have been suppressed because, he claims, it was the product of an improper inducement; specifically, Price contends that the statement was procured through a promise of leniency. It is well established that a confession, or any inculpatory statement, is involuntary if it is either *1073 coerced through force or induced through an express or implied promise of leniency. Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897). A court should examine the totality of the circumstances to determine if an implied promise of leniency caused the defendant to make a confession. Ex parte Gaddy, 698 So. 2d 1150 (Ala.1997). The test of involuntariness of a confession, or other inculpatory statement, is whether in his discussions with the police, which may have included bargaining, the defendant's will was overborne by the apprehension of harm or hope of favor. McLeod, supra, 718 So. 2d at 729. To determine whether a defendant's will has been overborne, it is necessary to assess "`the conduct of the law enforcement officials in creating pressure and the suspect's capacity to resist that pressure' [and] `[t]he defendant's personal characteristics as well as his prior experience with the criminal justice system are factors to be considered in determining [the defendant's] susceptibility to police pressures.'" McLeod, 718 So. 2d at 730 (quoting an earlier case). During cross-examination at the suppression hearing, Price's trial counsel asked Detective Mathis whether he had told Price that if he gave a statement it would go easier on him. Detective Mathis answered that he had not told Price that. Price's trial counsel then asked Detective Mathis whether he had told Price that he would give a good report as to his cooperation, and Detective Mathis answered: Price contends that this testimony shows that the Tennessee statement was not voluntarily given. We disagree. Looking at the totality of the circumstances in this case, we cannot conclude that Price's statement to Detective Mathis in Chattanooga was procured through an improper inducement. Detective Mathis testified he did not tell Price that it would be better for him to confess or to make a statement and that he did not offer him any kind of inducement to obtain the statement. Likewise, the evidence does not suggest that Price was threatened with physical intimidation or psychological pressure. Price was 19 years old when he gave his statement to the police, and Detective Mathis testified that Price told him he was about to graduate from high school and that he could read and write. Detective Mathis further testified that Price signed a waiver-of-rights form, and the transcript of the statement shows on its face that Price was fully informed of his Miranda rights. In addition, the record indicates that Price had had at least some measure of experience with the judicial system as a juvenile. The evidence shows that the Price was not held an inordinate length of time before being interviewed, and it shows that before and during the interview he was fed breakfast, was provided soft drinks, was permitted to smoke, and was permitted to use the rest room. Finally, we note that the interview lasted approximately one and a half hours and was therefore not inordinately long. We conclude that the possibility that Detective Mathis might have told Price that he would make Price's cooperation known was insufficient, given the totality of the circumstances, to make Price's confession involuntary. Cf. Ex parte Gaddy, supra; McLeod v. State, supra. In addition, as indicated above, we conclude that the State demonstrated that Price was fully informed of his Miranda rights before being questioned by Detective Mathis. Accordingly, we hold that the trial court properly denied Price's motion to suppress the Tennessee statement and properly admitted that statement into evidence at trial. We have carefully considered the remainder of Price's arguments and have found no reversible error with regard to either of Price's convictions. Moreover, we have reviewed the record in this case in order to answer the three questions set forth in § 13A-5-53(b), Ala.Code 1975. We conclude that no passion, prejudice, or other arbitrary factor influenced the imposition of the death *1074 penalty. We further conclude that the record supports the trial court's finding of two aggravating circumstancesthat the capital offense was especially heinous, atrocious, and cruel and that the capital offense was committed during the course of a robbery in the first degree. Although there was some mitigation, including Price's age and his limited prior involvement with the criminal justice system, our independent weighing of the aggravating circumstances and the mitigating circumstances does not indicate that the death sentence was inappropriate in this case. Finally, we note that the imposition of the death penalty in a case in which the defendant has been convicted of murder during the course of a robbery in the first degree and in which the evidence shows that the victim received over 30 wounds is not excessive or disproportionate to the penalty imposed in similar cases. The State failed to prove that Price had been adequately advised of his Miranda rights before he gave his statement to law enforcement authorities in Fayette County, Alabama; however, any error in this regard did not amount to reversible error. We note that our decision on the admissibility of the Alabama statement does not impact Price's noncapital conviction for robbery in the first degree based on the robbery of Bessie Lynn. As noted above, Price did not object at trial to the State's reference to the Alabama statement or to the admission of the physical evidence that was located in part because of that statement. Because Price's conviction for robbery in the first degree is not subject to the plain error rule, we do not review this issue with regard to that conviction. See Liberty Nat'l Life Ins. Co. v. Beasley, 466 So. 2d 935 (Ala.1985).[8] Furthermore, the record shows that the State met its burden of proving that the Alabama statement was voluntary.[9] Finally, we conclude that the State demonstrated that Price had been advised of his Miranda rights before he was interviewed by Detective Mathis in Chattanooga and that the Tennessee statement was voluntary. We have carefully reviewed the entire record and all of Price's arguments. Finding no reversible error, we affirm the judgment of the Court of Criminal Appeals. AFFIRMED. HOOPER, C.J., and HOUSTON, COOK, SEE, and LYONS, JJ., concur. [1] Ultimately, the State read the typed transcript of the statement, in its entirety, into evidence at trial. [2] Nothing in the record indicates that this statement was introduced into evidence at trial. [3] Because we conclude that it is appropriate to review the evidence adduced at trial, we express no opinion as to whether the evidence produced at the pretrial suppression hearing demonstrated that Price was properly advised of his Miranda rights. [4] Price has not contended that his statement given to Sheriff Turner in Fayette County was procured through force, intimidation, or inducement; therefore, the only issue with regard to the Alabama statement is whether it was preceded by an adequate Miranda warning. We note that the record in this case shows that the State met its burden of proving that the Alabama statement was voluntary. Sheriff Turner testified that Price was not threatened or offered any inducement or reward for providing a statement. He further testified that Price was not told that it would be better for him to make a statement. In the absence of any evidence to the contrary, we note that this testimony was sufficient to show that Price's statement to law enforcement officials in Fayette County was voluntary. [5] In light of the fact that the State introduced evidence of the statement itself, we do not address whether the trial court erred in admitting into evidence the physical items (i.e., the .44 caliber pistol and the holster) that were apparently located in part as a result of that statement. Cf. United States v. SanginetoMiranda, 859 F.2d 1501, 1518 (6th Cir.1988) (holding, pursuant to Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985), that cocaine found as a result of a Miranda violation was admissible even though the statement itself was not admissible, because "where police simply fail to administer Miranda warnings, the admissibility of nontestimonial physical evidence derived from the uncounselled statements should turn on whether the statements were voluntary within the meaning of the fifth amendment"); Baker v. State, 555 So. 2d 273, 280 (Ala.Crim.App.1989) (holding that clothing that was located based on information obtained during an improper interrogation was admissible under Elstad). Our review of this issue is limited to whether the State should have been permitted to present evidence of the statement itself. [6] See discussion, supra, note 4. [7] We note that in Taylor v. State, 337 So. 2d 773, 775 (Ala.Crim.App.1976), the Court of Criminal Appeals, relying on Lawn v. United States, 355 U.S. 339, 78 S. Ct. 311, 2 L. Ed. 2d 321 (1958), held that, in general, "once the court has ruled on a motion to suppress, supported by competent evidence as to the validity vel non of the search and seizure, it is not necessary for the defendant again at the trial to object to the evidence on constitutional grounds, and that the failure to do so does not constitute a waiver," unless special circumstances require further objection. See also Tillman v. City of Enterprise, 627 So. 2d 1160, 1161 (Ala.Crim.App.1993); Smith v. State, 612 So. 2d 1314 (Ala.Crim.App.1992) (applying rule to pretrial motion challenging photographic lineup), overruled on other grounds, Ex parte Thomas, 659 So. 2d 3 (Ala.1994). At first blush, this rule seems to contradict the general rule, expressed in Liberty Nat'l Life Ins. Co. v. Beasley, 466 So. 2d 935, 936 (Ala.1985), that "an appellant who suffers an adverse ruling on a motion to exclude evidence ... made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence or other matters and assigns specific grounds therefor at the time of trial, unless he has obtained express acquiescence of the trial judge that such subsequent objection to evidence proffered at trial and assignment of grounds therefor are not necessary." Because this issue has not been addressed by either the parties or the Court of Criminal Appeals, we decline to address whether the rule expressed in Taylor is a proper statement of the law and, if so, whether it is applicable to the case at hand. Moreover, Price did not specifically allege at the pretrial suppression hearing that the State failed to prove that he had been properly advised of his Miranda rights; therefore, an objection might have been required even if the rule described above is applicable to this case. In any event, it is clear that even if Price properly preserved this issue for appellate review, any error with regard to the admission of evidence of the Alabama statement was harmless in this case. Cf. Bush v. State, 523 So. 2d at 557; Kinder v. State, 515 So. 2d at 69. [8] See discussion, supra, note 7. [9] At the pretrial suppression hearing, Sheriff Turner testified that Price was not threatened or pressured, and was not offered any reward or inducement, to provide his statement.

September 4, 1998

cb357a2f-4189-4ac5-bf01-4aa8f5963356

EX PARTE KENNETH D. McLEOD, FAMILY LTD. PARTNERSHIP

725 So. 2d 271

1970102

Alabama

Alabama Supreme Court

725 So. 2d 271 (1998) Ex parte The KENNETH D. McLEOD, Sr., FAMILY LIMITED PARTNERSHIP XV, an Alabama limited partnership; and G. Monroe McLeod. (In re Katie N. McLeod v. The Kenneth D. McLeod, Sr., Family Limited Partnership XV, and G. Monroe McLeod.) 1970102 Supreme Court of Alabama. July 17, 1998. Rehearing Denied October 16, 1998. Thomas W. Underwood, Jr., of Chason & Underwood, P.C., Foley, for petitioners. W. Donald Bolton, Jr., Foley; and Fred K. Granade and Russell J. Watson of Stone, Granade & Crosby, P.C., Bay Minette, for respondent. *272 PER CURIAM. The issue on this certiorari review is whether a new trial is required when a trial judge fails to disclose to a party before her court a campaign contribution made to her by the opposing party. The Court of Civil Appeals held that the trial judge in this case had a duty to disclose the contribution to the noncontributing party and ordered a new trial based on her failure to meet that obligation. We reverse. On October 2, 1995, Katie McLeod filed a complaint against the Kenneth D. McLeod, Sr., Family Limited Partnership, seeking a partition and sale of certain real property that had been transferred to the partnership by her former husband, Monroe McLeod. On January 24, 1996, she amended her original complaint to name Monroe McLeod as a defendant. On February 23, 1996, Monroe McLeod contributed $200 to the trial judge's campaign for election to a state appellate court. The trial judge subsequently included this contribution in the "Summary of Contributions and Expenditures" she filed with the secretary of state on April 17, 1996, pursuant to the Fair Campaign Practices Act, Ala. Code 1975, §§ 17-22A-1 to -23. On April 1, 1996, Monroe McLeod answered and filed a counterclaim against Katie McLeod. The case was tried without a jury, in September 1996. On November 23, 1996, the trial court ordered that the property be partitioned and divided equally between Katie McLeod and Monroe McLeod and also awarded Monroe McLeod $47,222.70 on his counterclaim. Katie McLeod moved for a new trial or, in the alternative, to alter, vacate, or amend the judgment. Her motion was based in part on the campaign contribution made by Monroe McLeod while the case was pending. The trial court denied her motion. Katie McLeod appealed to the Court of Civil Appeals. On appeal, she asserted that she did not learn of the contribution until after the judgment had been entered. The Court of Civil Appeals refused to determine whether the trial judge should have recused herself from the case. Instead, it ruled that the trial judge should have at least disclosed to Katie McLeod the campaign contribution. According to the Court of Civil Appeals, the fact that the trial judge accepted a contribution from a party may or may not have warranted recusal, but her failure to disclose the contribution at a minimum "appears to create a perception of `potential bias or a lack of impartiality' on her part." McLeod v. Kenneth D. McLeod, Sr., Family Limited Partnership XV, 725 So. 2d 268 (Ala.Civ.App. 1997). The Court of Civil Appeals reversed and ordered a new trial, holding that, in the face of such an appearance of impropriety, the trial judge should have granted Katie McLeod's post-trial motion. We granted certiorari review on the petition of the McLeod Partnership and Monroe McLeod. At the outset of our analysis, we note that the trial court is vested with great discretion in ruling on a new trial motion. The trial court's ruling on a new trial motion should not be disturbed on appeal unless the trial court violated some legal right of the parties or abused its discretion. Everett v. Everett, 660 So. 2d 599 (Ala.Civ. App.1995). The Court of Civil Appeals held that this case presented an abuse of discretion on the part of the trial judge that required a new trial. We conclude, however, that no abuse of discretion occurred, and we reverse the judgment of the Court of Civil Appeals. While the Court of Civil Appeals declined to hold that the trial judge should have recused herself from hearing the case, it analyzed the standards governing recusal and interpreted them to impose a duty to disclose. This duty, it reasoned, flowed from the effects of nondisclosure on Katie McLeod. It held that the trial judge's failure to directly disclose to Katie McLeod the contribution effectively deprived her of the opportunity to seek the judge's recusal. Because Katie McLeod was thus deprived of the right to file a recusal motion, the Court of Civil Appeals held, the judge's actions amounted to an appearance of bias or of a lack of impartiality and required a new trial. We find this analysis to be flawed. The trial judge's failure to directly disclose to Katie McLeod the contribution in no way deprived Katie McLeod of the opportunity to move for recusal. The contribution made by *273 Monroe McLeod, along with all other contributions received by the trial judge in her campaign, was a matter of public record. By obtaining a copy of the trial judge's disclosure form, Katie McLeod easily could have learned that Monroe McLeod had made a campaign contribution to the judge hearing her case. It was no secret that the trial judge was campaigning for statewide office while this action was pending. It is certainly no secret that political campaigns are largely financed through the contributions of private persons. By securing a copy of the judge's disclosure form from the secretary of state's office, Katie McLeod or her attorneys could have discovered the contribution and could have used it as a basis for a recusal motion. We believe that these circumstances were sufficient to put Katie McLeod on notice that grounds for a recusal motion might exist and to impose on her a duty to inquire into the public record so that she could determine if such grounds were in fact present. For whatever reason, Katie McLeod and her counsel chose not to pursue such an inquiry for some time. Four months elapsed from the time the contribution was made public until the case was tried. In this time, Katie McLeod and her attorneys apparently made no attempt to discover any possible campaign contributions made by Monroe McLeod. Seven months elapsed from the time the trial judge disclosed the contribution until she entered the judgment in the case. Again, Katie McLeod apparently did nothing to investigate any possible grounds for recusal. It was only after eight months had expired that Katie McLeod raised the issue to the court in a Rule 59, Ala.R.Civ.P., post-judgment motion. Katie McLeod, in essence, asks us to insulate her from her failure to exercise reasonable diligence in the presentation of her cause. It was not the place of the Court of Civil Appeals, and it is not our place now, to protect any party who sleeps on her rights. We would also note that the trial judge not only did not abuse her discretion by denying the Rule 59 motion, but that she was affirmatively correct in denying it. The post-judgment motion stated only that "In addition, a review of the summary of contributions and expenditures of the trial judge [in her campaign] indicates that the defendant G. Monroe McLeod donated money to the trial judge on February 23, 1996 during the pendency of this action." Katie McLeod apparently was requesting a new trial based on newly discovered evidence suggesting that the trial judge perhaps could have been biased in favor of Monroe McLeod.[1] To succeed on this motion, Katie McLeod had to show not only that the campaign contribution was discovered after trial, but also that it could not have been discovered before trial by the exercise of due diligence. Adams v. State, 428 So. 2d 117 (Ala.Civ.App.1983). She failed to meet both of these requirements. The record contains no evidence showing that Katie McLeod did not discover the evidence of a contribution until after the trial. As we have said, Monroe McLeod's campaign contribution unquestionably could have been detected before the trial. Thus, Katie McLeod also failed to demonstrate that the contribution could not have been discovered with a diligent inquiry. Furthermore, we believe that the opinion of the Court of Civil Appeals would wrongly expand the duties of judges and would place an unreasonably heavy burden on the judiciary. While we share the concern of the Court of Civil Appeals that public confidence in the judicial system should be upheld and judicial integrity zealously protected, we do not believe judicial ethics mandate such a burden of direct disclosure as the Court of Civil Appeals would impose. If a judge failed altogether to publicly disclose the contributions she had received, or if she actively concealed them, then an appearance of impropriety would exist. But the judge in this case publicly reported the contribution and in no way attempted to cover up the fact that Monroe McLeod had made a contribution to her. When a judge has actual knowledge that a party before her has contributed to her, then, ideally, she should make this *274 fact known to the parties. The Court of Civil Appeals, 725 So. 2d at 270, cites the example of a judge who did disclose a contribution made to him by a party. See Ex parte Bryant, 675 So. 2d 552 (Ala.Crim.App.1996). We would encourage judges to follow this example when they are personally aware that a party to a proceeding has contributed to their campaigns, but this example is only an ideal, not a requirement imposed by law. The practical ramifications of the Court of Civil Appeals' decision are that a judge would have to daily check her docket against her list of campaign contributors and, if the judge found that in a particular case one party or both parties had contributed to her, then she would have to inform the parties so that they, or one of them, could file a recusal motion. In 1996, the circuit judges in Alabama decided an average of 1,382.2 cases each, according to the Annual Report of the Alabama Judicial System. That number rose to 1,405.5 cases per circuit judge in 1997. To expect a judge to remember each contribution she has received and to disclose it if the contributor comes before her court strikes us as somewhat unrealistic. To require a new trial every time a trial judge fails to make such a disclosure would be, at best, unrealistic and, at worst, a waste of judicial resourcesparticularly when that information is readily available to the parties. It is significant to note that the Alabama Legislature has refused to impose such a burden on the judiciary. In 1996, the Legislature attempted to deal with the question of judicial campaign contributions, by adopting § 12-24-1 and § 12-24-2.[2] Through this legislation, the burden of disclosing a campaign contribution has been placed on the donor partythe party who can most easily carry this burden and carry it at the least cost. Section 12-24-2(b), Ala.Code 1975. A judge, on the other hand, is required only to publicly file a statement of contributions with the secretary of state. Section 12-24-2(a), Ala.Code 1975. The burden imposed by the Court of Civil Appeals goes beyond even that imposed by the Alabama Legislature.[3] We cannot justify creating for trial judges a duty of direct disclosure when an inquiry by the party would accomplish the same end. We conclude that a new trial was not required by the trial judge's failure to disclose the campaign contribution she had received from Monroe McLeod. Considering the lack of diligence on Katie McLeod's part and the lack of any evidence of bias on the trial judge's part, we think the request for a new trial on the basis of the contribution even borders on the frivolous. Because the trial judge did not abuse her discretion by denying the motion for a new trial, the Court of Civil Appeals erred in reversing the judgment. Accordingly, we reverse the judgment of the Court of Civil Appeals and direct that court, on remand, to reinstate the judgment of the trial court. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON and SEE, JJ., concur. MADDOX, J., concurs specially. COOK and LYONS, JJ., concur in the result. SHORES, J., dissents. MADDOX, Justice (concurring specially). I agree that the trial judge in this case was under no duty to disclose to the wife that the husband had given the judge a $200 campaign contribution. Because Alabama continues to elect its judges in partisan elections, campaign contributions *275 to judicial candidates have been the subject of much public concern and public debate. The record, in my opinion, shows that the trial judge timely disclosed the fact of the contribution, on a report that the law required her to file with the secretary of state. Although a copy of this report was not filed in the county where the case was pending, there was no legal requirement for such a filing. The public and litigants have a legitimate interest in knowing who makes contributions to a judicial candidate and in knowing the amount of such contributions, but the present laws regulating the reporting of contributions are sufficient, I believe, to guarantee adequate notice to the public and litigants of such contributions. In view of the fact that it is undisputed that the trial judge reported the contribution as required by law, I do not believe she was under any further duty, under the particular facts of this case, to disclose the $200 contribution or to recuse herself because of it. [1] We note that Katie McLeod presented no evidence that the trial judge was in fact biased by Monroe McLeod's campaign contribution. She also offered no proof in support of her Rule 59 motion to show that the contribution had created even an appearance of bias. [2] Although this legislation became effective on January 1, 1996, it is inapplicable to the present case. The contribution at issue in this present case was made for an upcoming election. The disclosure provisions of § 12-24-2 apply only to contributions made in the last election. We would also note that "preclearance" of this act by the United States Justice Department is still pending. See Finley v. Patterson, 705 So. 2d 834, 835 (Ala.1997). [3] If and when that Act is cleared by the United States Justice Department, a contributing party will have the burden of disclosing any contributions made to the judge (trial or appellate) in that party's case. Therefore, it would be futile for this Court to impose on judges a duty to disclose contributions when, upon the Justice Department's approval of the new statute, that duty will shift to the contributing parties.

July 17, 1998

de30e257-0030-4cbc-9ec6-5a714f09bb74

Ex Parte Deramus

721 So. 2d 242

1970596

Alabama

Alabama Supreme Court

721 So. 2d 242 (1998) Ex parte Martin Eric DERAMUS. (In re Martin Eric Deramus v. State of Alabama). 1970596. Supreme Court of Alabama. July 2, 1998. Rehearing Denied August 21, 1998. *243 Virginia A. Vinson of Wilkinson & Vinson, Birmingham, for petitioner. Bill Pryor, atty. gen., and Sandra J. Stewart, asst. atty. gen., for respondent. HOUSTON, Justice. Martin Eric Deramus was convicted of trafficking in cocaine and was sentenced to 20 years' imprisonment. Deramus appealed, arguing that his conviction was void because, he contended, the jury that convicted him was not properly sworn. Although the circuit clerk administered an oath to the jury venire, the record does not indicate that the trial court administered an oath to the petit jury that was selected and empaneled to hear his case or reminded the jurors that they were still under oath, as required by Ala. Code 1975, § 12-16-170,[1] and Rule 18.5, Ala. R.Crim.P.[2] The Court of Criminal Appeals affirmed, Deramus v. State, 721 So. 2d 239 (Ala.Crim.App.1997). That court held that because the record affirmatively showed that the circuit clerk had administered to the jury venire an oath that tracked the language of Rule 12.1(c), Ala.R.Crim.P.,[3] and satisfied the oath requirement under § 12-16-170, the trial court's failure to remind the jurors of their previous oath or to administer a second oath pursuant to Rule 18.5, Ala.R.Crim.P., constituted harmless error. We granted Deramus's petition for certiorari review, to determine whether, as Deramus argues, the jury verdict was void on the basis that the petit jury that convicted him had not been properly sworn. After he had been found guilty and had been sentenced, Deramus moved for a new trial on the basis that the jury was never properly sworn. The State was allowed to supplement the record with an affidavit from the circuit clerk, which established that, pursuant to Rule 12.1(c), Ala.R.Crim.P, the clerk, in the presence of the trial judge, had *244 administered the following oath to all prospective jurors who were convened at the beginning of the jury week prior to the petit jury in this case being empaneled: It is well settled that it cannot be presumed from a silent record that the jury was sworn (Whitehurst v. State, 51 Ala.App. 613, 288 So. 2d 152, cert. denied, 292 Ala. 758, 288 So. 2d 160 (1973)); there must be in the record some affirmative showing that the oath was administered to the jury (Gardner v. State, 48 Ala. 263 (1872); Lacey v. State, 58 Ala. 385 (1877); Hill v. State, 582 So. 2d 1165 (Ala.Crim.App.1991); Marks v. State, 575 So. 2d 611 (Ala.Crim.App.1990); Porter v. State, 520 So. 2d 235 (Ala.Crim.App.1987)). See, also, Tarver v. State, 500 So. 2d 1232 (Ala.Crim.App.), aff'd, 500 So. 2d 1256 (Ala. 1986), cert. denied, 482 U.S. 920, 107 S. Ct. 3197, 96 L. Ed. 2d 685 (1987). The record clearly establishes that the jury venire, members of which composed the petit jury that was selected and empaneled to hear Deramus's case, was administered an oath. See, Fowler v. State, 261 Ala. 262, 74 So. 2d 512 (1954) (holding it essential that the jury be sworn and that if the jury, or any member thereof, was not sworn, then any verdict rendered is not that of a jury.) See, also, Slatton v. State, 49 Ala.App. 377, 381, 272 So. 2d 586, 589 (Ala.Crim.App.1973) (holding that "[a]n unsworn jury is but a congeries of persons, not an adjunct of the court"). Although the record does not establish that the oath was given a second time to the petit jurors who were selected and empaneled to hear Deramus's case, the record clearly establishes that the oath the clerk gave to the jury venire, which contained all those persons who later served on the petit jury, tracks the language of § 12-16-170 and Rule 18.5. Although § 12-16-170 and Rule 18.5 require that a petit jury be administered the specific oath contained therein, according to Ala.Code 1975, § 12-16-173, which is applicable only to criminal cases (see, Batson v. State, 216 Ala. 275, 113 So. 300 (1927)), "any defect in the administration of the oath" is reversible error only if "some objection was taken ... during the progress of the trial, based on [that] defect." See, e.g., Hellums v. State, 630 So. 2d 477 (Ala.Crim.App.1993). Section 12-16-173 provides: See Fowler v. State, supra, 261 Ala. at 263, 74 So. 2d at 513 (holding that Title 30, § 59, Code of 1940 (now § 12-16-173) "was enacted to remedy the situation where there was a defect in the oath and no objection thereto was made in the trial court"). In Fowler, the Court stated, "There is a difference in a situation where there is a defect in the oath and [a situation where there is] no oath at all." Id. at 263, 74 So. 2d at 513. Here, in view of the administration of the previous oath tracking the language of the required oath, we do not view this case as a "no oath at all" situation. The fact that the record is silent as to whether the trial court reminded the petit jurors that they were still under oath or administered another oath would be reversible error only if Deramus had objected to that defect "during the progress of the trial." Ala.Code 1975, § 12-16-173. The record does not show that Deramus did so; nothing in the record establishes that he objected to the trial court's failure to administer a second oath to the petit jurors who were selected and empaneled to hear his case, until after the verdict was returned against him. Thus, because Deramus did not "during the progress of the trial" object to the "defect in the administration of the oath," he failed to preserve that alleged error for appellate review. *245 The judgment of the Court of Criminal Appeals is affirmed. AFFIRMED. HOOPER, C.J., and ALMON, COOK, SEE, and LYONS, JJ., concur. [1] Ala.Code 1975, § 12-16-170, provides: "The following oath shall be administered by the clerk, in the presence of the court, to each of the petit jurors: `You do solemnly swear ... that you will well and truly try all issues which may be submitted to you during the present session ... and true verdicts render according to the evidence so help you God.' [2] Rule 18.5, Ala.R.Crim.P., provides: "(a) Oath. The court shall either remind the jurors that they are still under oath, or may give the jurors the following oath: "`You do solemnly swear, or affirm, that you will well and truly try all issues joined between the defendant(s) and the State of Alabama and render a true verdict thereon according to the law and evidence, so help you God.'" [3] Rule 12.1, Ala.R.Crim.P., provides: "(c) Qualifying the Venire. On the opening day of the term, or on such other day as the venire shall have been summoned to appear, the judge presiding shall proceed to organize the court, by: ".... "(2) Administering or causing to be administered to the jurors the following oath as required by law; "`Do you and each of you solemnly swear or affirm that you will well and truly answer all questions propounded to you touching your general qualifications as a juror, or qualifications as a grand juror or petit juror, and that you will well and truly try all issues and execute all writs of inquiry submitted to you and true verdicts render according to the law and evidence, so help you God?'"

July 2, 1998

224db647-6d9a-46d2-9c19-e75e085b40e6

Ex Parte Warren

718 So. 2d 45

1970645

Alabama

Alabama Supreme Court

718 So. 2d 45 (1998) Ex parte John W. WARREN and Debra A. Warren. (In re John W. WARREN and Debra A. Warren v. AMERICAN HOME PLACE, INC.). 1970645. Supreme Court of Alabama. July 10, 1998. *46 John A. Tinney, Roanoke, for petitioners. Amy J. Himmelwright of Samford, Denson, Horsley, Pettey & Martin, Opelika, for respondent. LYONS, Justice. John W. Warren and his wife Debra A. Warren petition this Court for a writ of mandamus directing the Randolph Circuit Court to vacate its order compelling arbitration of their claims against the defendant, American Home Place, Inc. We deny the writ. In January 1996, John Warren and American Home Place, Inc. ("American Home"), entered into a contract for the construction of a house on a parcel of land owned by Warren. The contract included an arbitration clause that provided, in pertinent part: (Emphasis added.) The contract identified John Warren as the "Owner" and American Home as the "Contractor," and it was signed only by John Warren and an agent for American Home.[1] *47 American Home began constructing the house; however, the parties disagree as to whether it ever fully completed the construction. The Warrens ultimately sued American Home. Their complaint alleged that they both had entered into the construction contract with American Home and that American Home had breached the contract by causing numerous delays in the construction and numerous flaws in the house. They further made a claim of "statutory fraud," alleging, among other things, that American Home had misrepresented in the contract the amount of time it would take to complete the construction of the house. American Home moved to compel arbitration of these claims, based upon the arbitration clause. The Warrens argued that the arbitration agreement could not be enforced because the arbitrator named therein, the National Academy of Conciliators, was no longer in existence. They further argued that even if the arbitration agreement could be enforced against Mr. Warren, it could not be enforced against Mrs. Warren, because she was not a signatory to the construction contract. The trial court ruled that the dissolution of the National Academy of Conciliators did not affect the validity of the arbitration clause, and that that clause was enforceable against both of the Warrens. The Federal Arbitration Act, 9 U.S.C. § 2 et seq. ("FAA"), mandates arbitration of a claim if a written agreement calls for arbitration and that agreement appears in a contract evidencing a transaction involving interstate commerce.[2] The Warrens first argue that, because Mrs. Warren did not sign the construction contract, she cannot be compelled to submit her claims against American Home to arbitration. They emphasize that arbitration is a creature of contract and that a party cannot be required to submit to arbitration any dispute that he or she has not agreed so to submit. Ex parte Isbell, 708 So. 2d 571 (Ala.1997). The Warrens point out that the arbitration clause specifically refers only to "Owner," identified as John Warren, and "Contractor," identified as American Home. The Warrens thus conclude that this arbitration clause is narrowly drawn and cannot be extended to include Mrs. Warren, who they say was not contemplated to come within its scope. However, the Warrens' argument reveals a flaw that undercuts Mrs. Warren's right to maintain her claims and that renders this issue moot. The record shows that both of the claims are based upon the construction contract.[3] Although the Warrens brought their claims as co-parties to the contract, Mrs. Warren concedes in her brief that she is "not a party to the contract containing the arbitration agreement," Warren reply brief at 4, and that she is not a third-party beneficiary of that contract. Warren reply brief at 7. The record confirms that the contract does not name Mrs. Warren as a party and that it does not refer to her. In her efforts to avoid arbitration,[4] Mrs. Warren has conceded that she has no right to recover under the contract, by disavowing any status as a party to the contract or as a third-party beneficiary. Also, because she has disavowed any status as a party to the contract, she has no claim based on fraud in the inducement of that contract. Because Mrs. Warren has disclaimed *48 any basis for recovery on her claims, any error in compelling arbitration of her claims would be harmless. She has failed to demonstrate a clear right to the relief she seeks; the mandamus petition is thus due to be denied as to her. The Warrens next argue that the arbitration agreement is void because the arbitrator that it specifies, the National Academy of Conciliators, is no longer in existence. The Warrens again emphasize that arbitration is a creature of contract and that, like any other contract, an arbitration agreement must be enforced in accordance with its terms. Koullas v. Ramsey, 683 So. 2d 415 (Ala.1996). The Warrens point out that American Home drafted the arbitration agreement, and they argue that it "cannot escape from the terms that it drafted simply because it now finds those terms inconvenient," quoting Crown Pontiac Inc. v. McCarrell, 695 So. 2d 615, 618 (Ala.1997). Under the Federal Arbitration Act, the fact that an arbitrator named in the arbitration agreement is unable to act as an arbitrator over the parties' controversy does not necessarily void the arbitration agreement. Section 5 of the FAA (9 U.S.C. § 5) provides: Based upon § 5, federal courts have established the general rule that, where the arbitrator named in the arbitration agreement cannot or will not arbitrate the dispute, a court does not void the agreement but instead appoints a different arbitrator. Astra Footwear Industry v. Harwyn Int'l Inc., 442 F. Supp. 907 (S.D.N.Y.1978); see, also, McGuire, Cornwell & Blakey v. Grider, 771 F. Supp. 319 (D.Colo.1991). In Astra, a Yugoslavian footwear manufacturer brought an action against a New York footwear distributor to compel arbitration of a contract dispute; the arbitration agreement specified that the arbitrator of the claims would be the Chamber of Commerce in New York. However, when the claims were brought, the Chamber of Commerce of New York had ceased to arbitrate disputes. The federal district court determined that where the arbitrator selected by the parties cannot or will not perform, a "lapse in the naming" of the arbitrator occurs and § 5 of the FAA is to applied, thus allowing the trial court to appoint a replacement arbitrator. Astra, 442 F. Supp. at 910. However, the federal courts have also recognized an exception to the general rule: where it is clear that a specific failed term of an arbitration agreement is not an ancillary logistical concern but, rather, is as important a consideration as the arbitration agreement itself, a court will not sever the failed term from the rest of the agreement and the entire arbitration provision will fail. Zechman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 742 F. Supp. 1359 (N.D.Ill.1990). Zechman, at 1364, quoting National Iranian Oil Co. v. Ashland Oil, Inc., 817 F.2d 326, 333 (5th Cir.1987) (where parties intended that the laws and procedures of a particular forum would govern arbitration between them, a federal court need not compel arbitration if that forum is unavailable). See, also, McGuire, Cornwell & Blakey v. Grider, supra (where there was no indication that the *49 naming of a specific arbitrator was central to the parties' agreement to arbitrate, the named arbitrator's unwillingness to arbitrate the parties' dispute did not void the arbitration agreement); In re Salomon Inc. Shareholders' Derivative Litigation, 68 F.3d 554 (2d Cir.1995) (because the dominant intent of the parties was to arbitrate before particular arbitrators, the failure of those arbitrators to perform voided the arbitration agreement). To determine this intent, courts look to the "essence" of the arbitration agreement; to the extent the court can infer that the essential term of the provision is the agreement to arbitrate, that agreement will be enforced despite the failure of one of the terms of the bargain. Zechman, supra. There is no evidence that John Warren or American Home intended their choice of an arbitrator to be an essential term of the contract; rather, there is only the inference that the parties agreed in general to submit their claims to arbitration. Section 5 of the FAA provides the necessary remedy for naming a replacement arbitrator; thus, the trial court correctly held that the failure of this choice does not void the arbitration agreement. The petition for the writ of mandamus is therefore denied. WRIT DENIED. HOOPER, C.J., and MADDOX and HOUSTON, JJ., concur. KENNEDY and SEE, JJ., concur in the result. [1] It is unclear from the record what, if any, legal interest Debra Warren had in the property when this contract was executed; however, the record shows that the Warrens executed a warranty deed granting themselves a joint tenancy with right of survivorship. [2] The FAA applies in a case involving a construction contract if materials manufactured outside the state are used in the construction. Ex Parte Costa & Head (Atrium), Inc., 486 So. 2d 1272 (Ala.1986). It is undisputed that the materials used in the building of the Warrens' home were manufactured outside the state of Alabama. Additionally, the Warrens have not contended that the FAA is inapplicable to this contract. [3] Count One alleges that the "defendant breached its contract with the plaintiffs by not constructing the home in a workmanlike manner and by not constructing the home within the time promised by the defendant." Count Two alleges: "The defendant ... represented to the plaintiffs that their home would be constructed and ready within four months. The plaintiffs believed this representation and in reliance upon the same entered into a contract with the defendant to purchase the same." This claim is thus essentially one alleging fraud in the inducement of the contract. [4] See Ex parte Dyess, 709 So. 2d 447 (Ala.1997) (nonsignatory plaintiff, who was a third-party beneficiary to an insurance policy containing an arbitration clause, could not both claim benefit of the contract and avoid the arbitration clause within it).

July 10, 1998

66419d47-af7f-40f7-95eb-fa455555be38

RJ Reynolds Tobacco Co. v. Cantley

717 So. 2d 751

1961972

Alabama

Alabama Supreme Court

717 So. 2d 751 (1998) R.J. REYNOLDS TOBACCO COMPANY and Lorillard Tobacco Company, Inc. v. Mikki CANTLEY, as Administratrix of the Estate of Harlon Godfrey, Deceased. 1961972. Supreme Court of Alabama. June 5, 1998. Samuel H. Franklin, Lee M. Hollis, and Stephen J. Rowe of Lightfoot, Franklin & White, L.L.C., Birmingham; and Charles R. Stephens, Jasper, for appellant R.J. Reynolds Tobacco Co. William C. Knight, Jr., and John C. Morrow of Burr & Forman, Birmingham; and Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellant Lorillard Tobacco Co. No brief filed for appellee. HOUSTON, Justice. Pursuant to Rule 5, Ala.R.App.P., we granted the defendants, Lorillard Tobacco Company, Inc. ("Lorillard"), and R.J. Reynolds Tobacco Company ("Reynolds"), permission to appeal the trial court's interlocutory order granting a Rule 60, Ala.R.Civ.P., motion to set aside a summary judgment that it had entered against the plaintiff, Mikki Cantley, in her capacity as administratrix of the estate of her father, Harlon Godfrey. We reverse and remand. This is the second time these parties have been before this Court. See Cantley v. Lorillard Tobacco Co., 681 So. 2d 1057 (Ala.1996), for a full explanation of the background of this litigation. For the purposes of this appeal, the following facts are pertinent: The *752 plaintiff filed a wrongful death action against Lorillard and Reynolds on April 2, 1993, alleging that they had caused Godfrey's death; Godfrey had been a smoker. The plaintiff originally pleaded three causes of action fraudulent suppression; liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") for failure to warn of an unreasonable hazard; and liability under the AEMLD for design defect. Lorillard and Reynolds filed separate summary judgment motions on May 30, 1995, and July 7, 1995, respectively. Those motions were based on federal preemption grounds, relying on 15 U.S.C. § 1334(b) and Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992). Essentially, those summary judgment motions were based on the argument that all of the plaintiff's claims that were based on alleged tortious conduct committed on or after July 1, 1969, were preempted by the Public Health Cigarette Smoking Act of 1969 ("the Labeling Act of 1969"), which amended the Federal Cigarette Labeling and Advertising Act of 1965. The effective date of the Labeling Act of 1969 was July 1, 1969. On July 17, 1995, before the trial court had ruled on the two pending summary judgment motions, Reynolds filed another motion for a summary judgment with respect to the plaintiff's claims that were based on alleged tortious conduct committed before July 1, 1969. Godfrey did not begin smoking Lorillard's brand of cigarettes until after July 1, 1969; therefore, Lorillard did not join in this motion. In support of the July 17 motion, Reynolds argued that, as a matter of law, cigarettes were not "defective" within the meaning of that term as it is used in the AEMLD. Following a hearing, the trial court, on November 21, 1995, granted Lorillard's May 30 summary judgment motion as to the plaintiff's fraudulent suppression and design defect claims. The trial court also granted Reynolds's July 7 summary judgment motion as to those two claims, to the extent that the plaintiff sought redress for alleged tortious conduct occurring on or after July 1, 1969. The plaintiff voluntarily dismissed her failure-to-warn claims, conceding that those claims were preempted under Cipollone. The claims alleging tortious conduct against Reynolds committed before July 1, 1969, remained pending. The trial court certified the November 21 summary judgment as final, pursuant to Rule 54(b), Ala. R.Civ.P.; the plaintiff appealed that judgment on January 3, 1996. On March 4, 1996, the attorney for Lorillard and Reynolds wrote the following letter to the trial court, requesting that a hearing be set on Reynolds's July 17 summary judgment motion: (Emphasis in original.) On March 29, 1996, the trial court granted Reynolds's July 17 summary judgment motion; however, the order it entered was based on preemption grounds the same grounds on which Lorillard and Reynolds had based their May 30, 1995, and July 7, 1995, summary judgment motions. On April 23, 1996, the attorney for Lorillard and Reynolds wrote a letter to the plaintiff's attorney explaining that he thought the trial court's order had been mistakenly based on the wrong grounds: In addition to that letter, the attorney for Lorillard and Reynolds also sent to the plaintiff's attorneys a proposed motion to alter or amend the March 29 judgment and a proposed revised order entering a summary judgment based on what Reynolds's attorney understood to be the proper grounds. On April 26, 1996, Reynolds filed the following motion to alter or amend the March 29 judgment: After the plaintiff's attorneys had had a chance to review the proposed revised summary judgment and the respective attorneys for Reynolds and the plaintiff had agreed on *754 the wording of the proposed judgment, the plaintiff's attorney personally presented the proposed judgment to the trial court on April 29, 1996. That proposed judgment, which the trial court signed that same day, read as follows: (Emphasis added.) On June 7, 1996, this Court ruled on the appeal of the November 21, 1995, summary judgment, holding that the fraudulent suppression claims were preempted by federal law, but that the design defect claims brought under the AEMLD were not. See Cantley v. Lorillard Tobacco Co., Inc., supra. Four days later, on June 11, 1996, the plaintiff filed a notice of appeal of the April 29 revised summary judgment. Reynolds filed a motion on June 21, 1996, to dismiss the appeal on the ground that it was untimely filed; the plaintiff voluntarily dismissed her appeal on July 17, 1996, stating in a letter to the clerk of this Court: "Please be advised that the plaintiff wishes to withdraw the appeal dated June 11, 1996, in light of the Supreme Court decision dated June 7, 1996." On December 20, 1996, Lorillard and Reynolds moved for a summary judgment on the only claims remaining in the case the design defect claims under the AEMLD that were based on conduct committed on or after July 1, 1969. Lorillard and Reynolds argued that the April 29 summary judgment, which had not been appealed, had held that cigarettes were not a defective product within the meaning of the AEMLD, as a matter of law. That holding, Lorillard and Reynolds argued, constituted the law of the case and made a summary judgment proper as to the remaining post-June 30, 1969, design defect claims. On February 28, 1997, approximately 10 months after the April 29 summary judgment had been entered, the plaintiff filed a motion under Rule 60(a) to vacate the April 29 summary judgment, arguing that she had never intended to stipulate, before that judgment, that cigarettes were not "defective" under the AEMLD. She took the position that she did not intend to dispose of her pre-July 1, 1969, claims; she argued, instead, that she had intended only to dispose of her post-June 30, 1969, claims on preemption grounds. Reynolds responded to the Rule 60(a) motion, arguing that the April 29 summary judgment stated exactly what the parties had agreed to. Reynolds pointed out that the April 29 summary judgment was *755 clear on its face; that the wording in that judgment had been agreed to by the plaintiff's attorneys; that the plaintiff's attorney had personally taken the proposed judgment to the trial court for entry; and that all of this had happened after the trial court had already disposed of the post-June 30, 1969, claims on preemption grounds in the November 21, 1995, summary judgment, which the plaintiff had appealed to this Court. The court held a hearing on the Rule 60(a) motion on March 6, 1997. At that hearing the plaintiff's attorney suggested that Rule 60(b)(6) could also provide a basis upon which to set aside the April 29 judgment. The plaintiff's attorney took the position again that the plaintiff had not intended to have a summary judgment entered on the pre-July 1, 1969, claims on the ground that cigarettes were not defective under the AEMLD, even though the April 29 summary judgment clearly stated otherwise. The attorney for Lorillard and Reynolds retraced for the trial court the events leading up to the entry of the April 29 judgment, pointing out that the plaintiff's attorneys had negotiated for and agreed to the wording in the April 29 summary judgment. For edification purposes, we quote a portion of the transcript of that hearing: The trial court granted the plaintiff's motion to set aside the April 29 judgment, without specifying which subsection or clause of Rule 60 it had found to be applicable, stating only that the judgment did not reflect what the court had intended to do. The trial court did not rule on Lorillard and Reynolds's December 20, 1996, motion for a summary judgment. Lorillard and Reynolds contend that the trial court had no legal basis upon which to set aside its April 29 summary judgment. Specifically, they argue that the April 29 summary judgment clearly reflected what the parties had agreed to. According to Lorillard and Reynolds, there is no logical explanation in the record as to how the plaintiff's attorneys could have misunderstood the nature of the April 29 summary judgment. They maintain that if, for whatever reason, the plaintiff's attorneys had made a mistake in agreeing to the entry of the April 29 summary judgment, then relief from the judgment could have been had under Rule 60(b)(1), which authorizes a court to set aside a judgment within four months for "mistake, inadvertence, surprise, or excusable neglect." According to Lorillard and Reynolds, Rule 60(a) was not available to the trial court as a basis upon which to set aside the judgment. Furthermore, Lorillard and Reynolds argue, Rule 60(b)(6) was not available to the trial court as a basis upon which to set aside the judgment because, they say, that clause cannot operate to the exclusion of another applicable clause in subsection (b), and because neither it nor Rule 60(a) can be used as a substitute for a timely appeal.[2] As Lorillard and Reynolds point out, the plaintiff did not seek relief under Rule 60(b)(1). It appears from the record that that clause would have been the most logical one to invoke if the plaintiff's attorneys actually had misunderstood the nature of the April 29 summary judgment. Clauses (2) through (5) of subsection (b) clearly were not applicable, and, because clause (1) was available as a possible means for relief, clause (6) was not available. See R.E. Grills, Inc. v. Davison, 641 So. 2d 225 (Ala.1994) (clause (6) is reserved for extraordinary circumstances and is mutually exclusive of the specific grounds of clauses (1) through (5), and a party may not obtain relief under clause (6) if it would have been available under clauses (1) through (5)). Because clause (6) operates exclusively of the specific grounds listed in clauses (1) through (5), this Court has held that a party may not escape the four-month limitation applicable to clauses (1) through (3) merely by characterizing the motion as one seeking relief under clause (6). R.E. Grills, Inc. v. Davison; Ex parte Hartford Ins. Co., 394 So. 2d 933 (Ala.1981). [3] Likewise, we can find no basis upon which to conclude that the April 29 summary judgment could be set aside as constituting a mere clerical error. The 1973 Committee Comments to Rule 60(a) state: See Great Atlantic & Pacific Tea Co. v. Sealy, 374 So. 2d 877 (Ala.1979); Cornelius v. Green, 521 So. 2d 942 (Ala.1988). If the plaintiff's attorneys stipulated to the April 29 summary judgment by mistake, as they indicated to the trial court they had done, then the error was not clerical, but substantive, going to the very heart of the judgment that was entered. On the other hand, based on the record one could conclude that the plaintiff's attorneys made a calculated decision to *759 stipulate to the entry of the April 29 summary judgment and that the trial court entered that judgment based on its understanding that it would amount to a consent judgment. The April 29 summary judgment is clear on its face. Although we could only speculate in this regard, the record suggests that the plaintiff's attorneys may have anticipated appealing the April 29 summary judgment and then petitioning this Court to consolidate that appeal with the pending appeal of the November 21, 1995, summary judgment. In any event, the plaintiff did not appeal the April 29 summary judgment. Neither Rule 60(a) nor Rule 60(b)(6) may be used as a substitute for a timely appeal. Cornelius v. Green, supra; Nowlin v. Druid City Hospital Board, 475 So. 2d 469 (Ala. 1985); Patterson v. Hays, 623 So. 2d 1142 (Ala.1993). This Court has also held that Rule 60(b)(6) cannot be used for the purpose of relieving a party from the free, calculated, and deliberate choice he has made. R.E. Grills, Inc. v. Davison, supra. For the foregoing reasons, the trial court's order setting aside the April 29, 1996, summary judgment is reversed and the cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, KENNEDY, COOK, SEE, and LYONS, JJ., concur. [1] The record indicates that the plaintiff is represented by more than one attorney; however, for ease of reference we will refer to the "plaintiff's attorney," unless the context requires otherwise. [2] The plaintiff has not filed a brief in this case. [3] We are unable to conclude from the record that the kind of extraordinary circumstances exist here that were discussed in R.E. Grills, Inc. v. Davison; Ex parte Oden, 617 So. 2d 1020 (Ala. 1992); Chambers County Comm'rs v. Walker, 459 So. 2d 861 (Ala.1984); Giles v. Giles, 404 So. 2d 649 (Ala.1981); and Rebel Oil Co. v. Pike, 473 So. 2d 529 (Ala.Civ.App.1985). Although the grounds for relief available under Rule 60(b)(1) generally cannot be valid grounds under Rule 60(b)(6), these cases recognized an exception when, in the interest of justice, aggravating circumstances may be considered sufficient to allow the trial court to treat what would otherwise be a Rule 60(b)(1) motion as a motion coming within Rule 60(b)(6). The application of this exception has generally been limited to circumstances where the judgment was the result of mistake, inadvertence, or neglect of counsel and where, despite all diligence exercised to protect his own interests, the client was unable to reasonably protect his interests because he was misled by his attorney as to the status or conduct of his case.

June 5, 1998

6e615783-e953-4fdb-946b-4eb923fd0ae4

Ex Parte Steiner

730 So. 2d 599

1970660

Alabama

Alabama Supreme Court

730 So. 2d 599 (1998) Ex parte Kenneth STEINER. (Re Kenneth Steiner v. AmSouth Bancorporation et al.). 1970660. Supreme Court of Alabama. June 19, 1998. William L. Howell and Brenda Drendel Hetrick of William L. Howell, P.A., Mobile, for petitioner. Edward A. Dean and Timothy D. Ryan of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for respondent AmSouth Bank. KENNEDY, Justice. The plaintiff, Kenneth Steiner, petitions for a writ of mandamus directing Judge Ferrill D. McRae of the Mobile County Circuit Court to grant Steiner's motion to compel the defendant AmSouth Bancorporation ("AmSouth Bank") to respond to discovery. We deny the writ. Steiner opened a checking account with AmSouth Bank in 1988. In October 1988, Steiner obtained a loan from AmSouth to purchase an automobile. In May 1991, Steiner filed a Chapter 13 bankruptcy petition. AmSouth was given notice of Steiner's bankruptcy proceeding and filed a proof of claim in the amount of $1,849.20. On or about June 28, 1994, the bankruptcy court closed Steiner's bankruptcy case and discharged him from all debts provided for by the plan. In August 1996, AmSouth debited Steiner's checking account in the amount of $204.67. Steiner notified AmSouth that the debt to AmSouth had been included in his bankruptcy proceeding and was discharged. Thereafter, AmSouth again debited Steiner's account in the amount of $223.90. On May 30, 1997, Steiner sued AmSouth Bank and several fictitiously named parties, alleging negligence, wantonness, conversion, defamation, and breach of fiduciary duty. Filed with the complaint were interrogatories and a request for production of documents. *600 Steiner's discovery request included the following interrogatories: On August 4, 1997, AmSouth responded to Steiner's requests for discovery, specifically objecting to interrogatories 7 and 8. After making several attempts to resolve the discovery dispute outside court, Steiner's attorney moved to compel AmSouth to answer the remaining discovery requests. After an ore tenus hearing, the trial court denied Steiner's motion to compel discovery. This petition for the writ of mandamus followed. A petition for a writ of mandamus is the appropriate vehicle for challenging a trial court's ruling on a discovery motion. Ex Parte Life Ins. Co. of Georgia, 663 So. 2d 929 (Ala.1995). Mandamus is an extraordinary remedy, and the petitioner must show that there is: (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex Parte Brooks, 572 So. 2d 409, 410 (Ala.1990); Ex Parte Johnson, 638 So. 2d 772, 773 (Ala.1994). In addition, the trial court is vested with a considerable amount of discretion regarding discovery matters, and the standard applied on mandamus review is whether the petitioner has made a clear showing that the trial court abused its discretion. Ex Parte Compass Bank, 686 So. 2d 1135, 1137 (Ala.1996). Steiner argues that AmSouth waived its objection to the discovery requests and that the information sought would provide potential evidence of motive, intent, practice, knowledge, absence of mistake, and scheme. However, AmSouth's objections were specific and timely, and we can find no merit to Steiner's waiver claim. As support for its position, AmSouth filed an affidavit indicating that providing the information requested would require the manual review of "tens of thousands of files." In 1997, AmSouth received approximately 2,500 notices of bankruptcy filings that related to loans. Interrogatories 7 and 8 would require AmSouth to cross-reference 10 years of bankruptcy filings with all of its checking and savings accounts for the same period. Putting aside the number of checking and savings account records, one could reasonably estimate that Steiner's discovery request would involve well over 20,000 bankruptcy records alone. The trial court has broad powers to control the use of the discovery process, and Steiner has not clearly shown that the trial court abused its discretion by denying his motion to compel discovery. Steiner's petition for the writ of mandamus is, therefore, denied. WRIT DENIED. HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, COOK, and SEE, JJ., concur. LYONS, J., recuses himself.[*] [*] Note from the reporter of decisions: This opinion was corrected on December 4, 1998, to reflect J. Lyons recusal.

June 19, 1998

b172106a-b301-459e-9a72-360b029ee778

Marsh v. Wenzel

732 So. 2d 985

1970352

Alabama

Alabama Supreme Court

732 So. 2d 985 (1998) Dixie MARSH v. Brian C. WENZEL, M.D., and Pathology Laboratory Associates, P.A. 1970352. Supreme Court of Alabama. December 11, 1998. Rehearing Denied April 16, 1999. *986 Peter F. Burns of Burns, Cunningham & Mackey, P.C., Mobile, for appellant. Michael A. Florie, Robert P. MacKenzie III, and Reed R. Bates of Starnes & Atchison, L.L.P., Birmingham, for appellees. LYONS, Justice. The plaintiff, Dixie Marsh, appeals from a summary judgment entered in favor of the defendants Brian C. Wenzel, M.D., and Pathology Laboratory Associates, P.A. ("the Laboratory"). We affirm. In February 1993, Marsh discovered a mass in her left breast. She had a mammogram, which did not reveal the mass but did reveal the presence of microcalcifications, which can suggest the early stages of a malignancy. Marsh consulted a surgeon, Dr. W. Rodgers Green. On March 12, Dr. Green performed a biopsy and excised certain tissue for examination. The excised tissue was delivered to the Laboratory, where Dr. Wenzel, a pathologist, examined it. Dr. Wenzel reported to Dr. Green that the tissue examined was not malignant. Dr. Green reported to Marsh that she did not have a malignancy. A mass in Marsh's breast still was present, however, and she continued to see Dr. Green throughout the summer of 1993. On September 28, 1993, Dr. Green removed the mass. A biopsy of that tissue revealed the presence of infiltrating ductal cell carcinoma. Marsh underwent a mastectomy, chemotherapy, and other treatment, including a bone-marrow transplant. On March 10, 1995, Marsh, acting pro se, sued Dr. Green and his professional corporation, W. Rodgers Green, M.D., P.C., charging Dr. Green with medical negligence in failing to remove the cancerous mass from her breast.[1] She filed her complaint within two years of the March 12, 1993, surgical procedure, and it included allegations against fictitiously named defendants. When the action was commenced, it was undisputed that six months after the initial procedure Marsh was found to have an aggressive and lethal tumor that had metastasized. The governing *987 statute of limitations for an action alleging medical negligence is found in the Alabama Medical Liability Act, § 6-5-480 et seq., Ala.Code 1975. A plaintiff must commence an action against a physician or other health-care provider within two years from the date of the act or omission complained of; however, when a plaintiff does not discover the cause of action, and could not reasonably have discovered it within two years, then the plaintiff may commence the action within six months of the date of discovery, but "in no event may the action be commenced more than four years after [the alleged medical negligence occurred]." § 6-5-482(a), Ala.Code 1975. Marsh initially did not sue Dr. Wenzel or the Laboratory. Dr. Green was deposed three years and two months after the date of the initial surgical procedure. He testified that at the time of the initial procedure he could not find, and did not remove, the mass that later was found to be cancerous; that at that time the breast tissue looked normal and not cancerous; and that the tissue he removed for analysis was not cancerous. The pathology report from Dr. Wenzel stated that the entire specimen had been submitted for microscopic examination and that it was benign. During the pendency of Marsh's action, Dr. Wenzel and the Laboratory continued to make and to disseminate to Dr. Green and his experts recut slides of the tissue removed during Marsh's initial biopsy. Dr. Wenzel reexamined the tissue when Marsh's cancer was discovered, which was some six months after the initial procedure; again two years and nine months after the procedure; and again three years and eight months after the procedure. He remained satisfied with the accuracy of his initial report and so advised Dr. Green. Approximately one month after the expiration of the four-year period during which an action alleging medical negligence could be commenced, the presence of cancerous tissue in the specimens removed during Marsh's initial procedure was detected for the first time. Dr. Green immediately contradicted his deposition testimony by amending his answers to interrogatories to state that the tissue removed during the initial procedure indeed had been cancerous. Marsh then deposed Dr. Wenzel. On June 3, 1997, Marsh amended her complaint to charge Dr. Wenzel and the Laboratory with medical negligence in failing to detect the cancerous tissue.[2] Marsh's amended complaint included allegations that the Laboratory had breached a fiduciary duty to her and had breached an implied contract when it disseminated slides of her tissue without her knowledge or consent. Dr. Wenzel and the Laboratory moved for a summary judgment, asserting that the statute of limitations barred Marsh's claims and asserting that the allegations relating to the dissemination of her tissue were insufficient, as a matter of law. The trial court entered a summary judgment based on both theories, and certified that judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Marsh argues that the entry of the summary judgment as to Dr. Wenzel and the Laboratory was error. Dr. Wenzel and the Laboratory contend that the rule of repose in § 6-5-482 allowing four years for the filing of a medical-liability action prohibits the application in a medical-liability case of the doctrine of relation back that normally is available pursuant to Rule 15(c)(4), Ala. R. Civ. P., when a plaintiff commences an action by suing both named and fictitious defendants. The trial court concluded that Marsh's amended complaint was barred by the rule of repose because it was filed more than four years after the act or omission that gave rise to Marsh's cause of action against Dr. Wenzel and the Laboratory for medical negligence. We disagree with that conclusion. The purpose of the doctrine of relation back is to provide a *988 plaintiff a mechanism for giving vitality to a later filing as if it had been made at the time of the initial action. Section 6-5-482 speaks of the commencement of an action as the necessary operative event. It does not expressly exclude the availability of fictitious-party practice and its doctrine of relation back. Once the plaintiff complies with Rule 9(h), Ala. R. Civ. P., in an action that otherwise is timely filed, the doctrine of relation back, set out in Rule 15(c)(4), permits the plaintiff to satisfy the prerequisite that the action "be commenced" as set forth in § 6-5-482. Because § 6-5-482 does not provide an absolute bar to Marsh's action against Dr. Wenzel and the Laboratory, we must determine whether Marsh satisfied the requirements of Rule 9(h) so as to entitle her to the benefits of the doctrine of relation back. The trial court concluded that she did not satisfy those requirements. Rule 9(h) provides: Marsh knew the identity of the pathologist before the expiration of the four-year period in which an action for medical malpractice must be commenced. Although she was ignorant of his identity when she commenced her action by suing Dr. Green, Dr. Wenzel's name was included on her medical records. Marsh cannot reasonably be deemed to have been ignorant of matters clearly set forth in the records. Miller v. Norwood Clinic, Inc., PC, 577 So. 2d 860 (Ala.1991). Even though Marsh commenced this action pro se,[3] we simply cannot relax the rules for pro se litigants. Boros v. Baxley, 621 So. 2d 240 (Ala.1993), cert. denied, 510 U.S. 997, 114 S. Ct. 563, 126 L. Ed. 2d 463 (1993). Thus, in order to use the relation-back principle of Rule 9(h), Marsh must demonstrate that when she filed her action containing allegations against fictiously named parties, she was ignorant of the cause of action she later stated against Dr. Wenzel and the Laboratory. The dispositive question is whether a plaintiff's ignorance of a cause of action against a particular defendant is to be treated the same as the plaintiff's ignorance of the identity of that defendant. If it is, then whether Marsh was ignorant of her causes of action against these two defendants and, if so, whether her ignorance was reasonable become questions for the jury. Cf. John Crane-Houdaille, Inc. v. Lucas, 534 So. 2d 1070 (Ala.1988) (the jury must resolve a disputed issue regarding the plaintiff's ignorance of the identity of a defendant designated as a fictitious party when the complaint was filed). Rule 9(h) was derived from a statute that had been construed in Roth v. Scruggs, 214 Ala. 32, 106 So. 182 (1925). In Roth, the Court described the fictitious-party statute as being an emergency statute intended primarily for cases in which the name of the defendant was unknown, including cases in which neither the name nor the identity of the defendant was known, such as cases in which only the cause of action is known. Soon after Rule 9(h) became effective, this Court held, in Hinton v. Hobbs, 349 So. 2d 28, 29 (Ala. 1977), that relation back was not available where the plaintiff had known the identity of a defendant but had lacked knowledge of facts giving him a cause of action against that defendant. Under such circumstances, the plaintiff was not "ignorant" within the meaning of Rule 9(h). Soon thereafter, in Browning v. City of Gadsden, 359 So. 2d 361 (Ala.1978), overruled on other grounds, City of Birmingham v. Davis, 613 So. 2d 1222 (Ala.1992), the Court, citing Roth and Hinton with approval, held that a plaintiff could amend a complaint to add a defendant whose *989 identity was known but as to whom the plaintiff was ignorant of facts giving rise to a cause of action. Does Browning introduce a general rule making Rule 9(h) available when the plaintiffs "ignorance" goes to the existence of a cause of action? No support for such a rule can be found in Columbia Engineering Int'l, Ltd. v. Espey, 429 So. 2d 955 (Ala.1983), where Justice Jones, who had concurred in Browning, wrote for this Court: 429 So. 2d at 959 (emphasis in original). The Court concluded that "Rule 9(h) was not meant to excuse ignorance of the identity of a cause of action, but only ignorance of the name of the party against whom a cause of action is stated." Id. at 960. For a similar holding, see Minton v. Whisenant, 402 So. 2d 971 (Ala.1981) (knowledge of the defendant's identity, and ignorance of a cause of action, not sufficient to allow relation back under Rule 9(h)). Marsh relies on a broad reading of Browning and Dannelley v. Guarino, 472 So. 2d 983 (Ala.1985), to support her argument that we should recognize a plaintiff's ignorance of a cause of action as justification for invoking the doctrine of relation back under Rule 15(c)(4). However, those two cases stand only for the proposition that one's ignorance of the existence of a relationship that could give rise to a duty is subsumed by the concept of "ignorance of identity." As this Court stated in Dannelley, "there is no evidence that the plaintiffs were aware or should have been aware at the time of the filing of the complaint that the duties of either defendant might, under certain circumstances, involve the safety inspection of city equipment." 472 So. 2d at 986. Any other construction would insulate all well-known public figures or even neighbors from joinder through fictitious-party practice, simply because of the fact that plaintiffs would be aware of their existence. Can Marsh satisfy the requirement that she show she was ignorant of a relationship that could give rise to a duty? Most closely analogous is Harmon v. Blackwood, 623 So. 2d 726 (Ala.1993), where the identity of a treating physician had been known to the plaintiff. This Court held: 623 So. 2d at 727. Marsh attempts to distinguish Harmon by asserting that she was ignorant of the identity of the pathologist when she filed her action. However, as previously noted, one could not reasonably conclude that she was ignorant of matterssuch as the name of the pathologist who examined the tissue samples that clearly were set forth in her medical records. Miller v. Norwood Clinic, 577 So. 2d at 864. Therefore, because the doctrine of relation back is not available to Marsh under the facts and circumstances of this case, we affirm the summary judgment as it relates to Marsh's medical-negligence claims against Dr. Wenzel and the Laboratory. We are not oblivious to the reality of these hard facts. But we are constrained by the time limits imposed by the legislature on the commencement of actions. Counsel's obligation to act in good faith and to act consistently with high ethical standards requires that counsel strike a balance between, on the one hand, the obligation to present, within the period of limitations, the full range of claims essential to protect the interests of a plaintiff, and, on the other hand, the competing obligation to refrain from bringing groundless or frivolous claims. Whether it would be wise to create an exception to the statute of limitations when a defendant has not been joined on account of counsel's good faith efforts to satisfy these competing obligations is not properly a question for this Court. We recognize that because we are declining to engage in a legislative function, a potentially liable defendant might have a valid statute-of-limitations defense under such circumstances. But this dilemma is as old as statutes of limitations. However, second-guessing the wisdom of any choice between these competing obligations should be undertaken only with a high degree of deference and great caution, lest we promote an unhealthy public policy of pressuring a plaintiff to assert claims that ought not be pursued. We now turn to Marsh's claims alleging breach of a fiduciary duty and breach of an implied contract, both claims arising from the Laboratory's providing samples of her tissue to an expert witness retained by Dr. Green. This Court held in Mull v. String, 448 So. 2d 952 (Ala.1984), that when a hospital's patient sued the hospital because of injuries suffered during treatment, the commencement of the action made the information that had passed between physician and patient subject to discovery and, therefore, caused a waiver of any right of action by the patient against the physician for the physician's disclosure of such information to the hospital. Marsh maintains that Mull should be narrowly construed so as to limit its application to its facts, i.e., that it should be construed only to allow disclosure of information to the defendant. Marsh contends that to apply the rule in Mull to the facts present in her case, so as to allow samples of her tissue to come into the hands of Dr. Green's expert witness, would, without justification, destroy her privacy. For example, she argues, Dr. Green or the Laboratory could have conducted tests for the presence of diseases that would be potentially embarrassing, and that might be wholly unrelated to the subject matter of her action. We agree that such a result is not contemplated by the rule applied in Mull, but we note that such facts as she suggests are not presented here, and we conclude that the appropriate means of preventing such an abuse should be by way of a motion asking the trial court for an order governing any activities of a defendant occurring outside of formal discovery and involving information or tissues generated during the plaintiff's physician-patient relationship. We also affirm the summary judgment as it relates to Marsh's claims against the Laboratory alleging breach of a fiduciary duty and breach of an implied contract. AFFIRMED. *991 HOOPER, C.J., and MADDOX, HOUSTON, and SEE, JJ., concur. ALMON, SHORES, KENNEDY, and COOK, JJ., dissent. COOK, Justice (dissenting). I respectfully dissent. The majority holds that the trial court properly entered the summary judgment for the defendants, Dr. Wenzel and Pathology Laboratory Associates, P. A., on the basis of § 6-5-482, Ala.Code 1975. I disagree. After Dr. Green performed the biopsy, he removed and forwarded tissue to be examined by Board-certified pathologist Dr. Wenzel, with Pathology Laboratory Associates. Dr. Wenzel reported that he found no tumor in the tissue he examined. Shortly thereafter, the plaintiff was diagnosed with cancer. On March 10, 1995, the plaintiff, acting pro se, instituted this action against Dr. Green, W. Rodgers Green, P.C., and certain fictitiously named parties. The plaintiff retained her present counsel six months after the initial filing of the lawsuit. The dispositive issue presented on appeal is whether the trial court erred in holding that the plaintiffs claim alleging medical negligence does not relate back to the date of the original complaint and therefore is barred by the statute of limitations. Dr. Green is a Board-certified surgeon with over 20 years' experience, and a major portion of his practice involves dealing with breast cancer. Dr. Green testified by deposition that he removed tissue from the plaintiff's breast and submitted the "entire specimen for microscopic examination." The affidavits of the plaintiff and her counsel establish that they believed and relied upon Dr. Green's sworn testimony indicating that there was no cancer in the tissue he removed. Subsequently, and to the plaintiff's surprise, Dr. Green contradicted his deposition testimony by amending his answers to interrogatoriesmore than four years after the initial malpractice is alleged to have occurredto state that the recuts of the tissue he removed on March 12, 1993, revealed that the tissue was cancerous. Consequently, the plaintiff arranged for the deposition testimony of the pathologist and moved for permission to amend her complaint to substitute the pathologist, Dr. Wenzel, and his group, Pathology Laboratory Associates. It is undisputed that the identity of Dr. Wenzel and that of Pathology Laboratory Associates were known to the plaintiff and her attorney before the expiration of statutory limitations period. The defendants, relying on § 6-5-482(b), argue that the plaintiff's medical-negligence claims against Dr. Wenzel and Pathology Laboratory Associates are absolutely barred by this statute of repose because those claims were added "more than four years after the act, omission, or failure complained of." In Eddings v. Volkswagenwerk, A.G., 835 F.2d 1369, 1372 n. 2 (11th Cir.1988), the court wrote that "[a] statute of repose `... does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action, from ever existing.'" (Quoting Rosenberg v. Town of North Bergen, 61 N.J. 190, 191, 293 A.2d 662, 667 (1972)). I agree with the Eleventh Circuit; thus, I feel that the doctrine of relation back is applicable in this case. The plaintiff, in stating her claims against Dr. Wenzel and Pathology Laboratory Associates,is not proceeding on a new cause of action that she had not asserted before the expiration of the statutory limitations period. She is specifically identifying parties whose identities she was ignorant of when she filed her original complaint, but whom she described fictitiously in the body of her original complaint. When she filed her original complaint, the plaintiff did not know, and could not have determined through the exercise of reasonable diligence, that Dr. Wenzel was a party that should be sued. The plaintiff is now attempting to substitute Dr. Wenzel for a fictitiously named defendant against whom she stated a *992 cause of action in the original complaint. Consequently, the plaintiff has complied with the relation-back principles of Ala. R.Civ.P. 9(h) and 15(b), under which she must meet these criteria: Clay v. Walden Joint Venture, 611 So. 2d 254, 255 (Ala.1992). As to the issue whether when she filed her original complaint the plaintiff knew, or should have known, or was on notice, that the later-substituted defendants were in fact the parties described fictitiously, the plaintiff cites Dannelley v. Guarino, 472 So. 2d 983 (Ala.1985). The plaintiffs in Dannelley were positioned as the plaintiff in this present case is: They knew the names of the defendants and the positions they held with the city at the time of the initial filing, but they were not aware when they filed their original complaint that the duties of the defendants might, under certain circumstances, involve safety inspection. Similarly, in Browning v. City of Gadsden, 359 So. 2d 361 (Ala.1978), the plaintiff knew the true name of the city, but she did not know that the city was responsible for maintenance of the sidewalk on which she had been injured; thus she was "ignorant of the name of [the] opposing party," within the meaning of that phrase in Rule 9(h), Ala.R.Civ.P., the rule permitting designation of parties by fictitious names. Marsh, the plaintiff in the instant case, attempted to determine who was responsible for her injuries, but the medical records provided by the pathologist, as well as the defendant surgeon's testimony, provided misinformation to her and her attorney. She argues that her case is not like Clay v. Walden Joint Venture, 611 So. 2d 254, 255 (Ala.1992), because she had no actual or constructive knowledge of the pathologist's error. Dr. Wenzel had represented to the plaintiff that he had microscopically examined the entire specimen and had found the tissue to be benign. The defendants also argue that the plaintiff did not exercise due diligence in learning the correct names of the fictitious parties. The defendants further argue that the plaintiff should not be afforded the benefit of relation-back principles to avoid the consequences of her failing to timely identify, and investigate the involvement of, Dr. Wenzel and Pathology Laboratory Associates, because, the defendants say, their identities were clearly documented in the plaintiff's medical records. Even if the plaintiff had known who Dr. Wenzel was, evidence did not exist before April 1997 that would form a basis for her to sue Dr. Wenzel. None of the slides that were in existence contained any cancer. Every expert who reviewed the slides and the recuts agreed with Dr. Wenzel's report. The plaintiff argues that, given these facts and given the prohibition against suing a health-care provider without substantial evidence, her counsel acted in a reasonably diligent manner and her amended complaint should relate back to the date she filed her original complaint. Based on the foregoing, I would reverse the summary judgment for the defendants Dr. Wenzel and Pathology Laboratory Associates. ALMON, J., concurs. [1] Marsh's claims against Dr. Green and his corporation remain pending and are not at issue in this appeal; those defendants are not appellees in this case. [2] Marsh's amended complaint also added other defendants. Those defendants are not appellees in this case, and this appeal does not involve her claims against them. [3] We note that Marsh has been represented by counsel since September 1995.

December 11, 1998

16dbf8b7-d48d-4c10-abd9-b4e4058fe23d

Phillips Petroleum Co. v. Stryker

723 So. 2d 585

1951920

Alabama

Alabama Supreme Court

723 So. 2d 585 (1998) PHILLIPS PETROLEUM COMPANY v. Dorothy J. STRYKER, et al.[1] 1951920 Supreme Court of Alabama. May 22, 1998. Rehearing Denied October 16, 1998. Fournier J. Gale III of Maynard, Cooper & Gale, P.C., Birmingham; C.C. Torbert, Jr., of Maynard, Cooper & Gale, P.C., Montgomery; Wesley Pipes and Norton W. Brooker, Jr., of Lyons, Pipes & Cook, P.C., Mobile; S.J. Laurie, Chatom; J. Bryan Whitworth and Clyde Lea of Phillips Petroleum Company, Bartlesville, Oklahoma; and Michael V. Powell of Locke Purnell Rain Harrell, Dallas, Texas, for appellant. Alva C. Caine and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham; William Scruggs and Allen Dodd of Scruggs, Jordan & Dodd, P.A., Fort Payne; and C. Robert Montgomery, Chatom, for appellees. Oakley Melton, Jr., of Melton, Espy, Williams & Hayes, P.C., Montgomery, for amici curiae Sonat Exploration Company, Taurus Exploration, Inc., Smackco Ltd., and Longleaf Energy Group, Inc. Owen L. Anderson, Norman, Oklahoma; Bruce M. Kramer, Lubbock, Texas; John S. Lowe, Albuquerque, New Mexico; Patrick H. Martin, Clinton, Louisiana; Tom R. Mason, Oxford, Mississippi; Ernest E. Smith, Austin, Texas; and Charles D. Cole, Birmingham, for amicus curiae Mid-Continent Oil & Gas Ass'n. Strudwick Marvin Rogers, asst. atty. gen. and counsel, for State Oil & Gas Board, for amicus curiae State Oil & Gas Board of Alabama. *586 Duane A. Graham of Armbrect, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for amicus curiae American Petroleum Institute. Patsy W. Thomley, Birmingham, for amicus curiae Mississippi/Alabama Division, Mid-Continent Oil & Gas Ass'n. Ken Wallis, general counsel, Montgomery, for amicus curiae Alabama Farmers Federation. PER CURIAM. Phillips Petroleum Company ("Phillips") appeals from a judgment based upon jury verdicts in favor of Dorothy J. Stryker, Doris J. Brown, and 45 other plaintiffs (all hereinafter collectively referred to as "the plaintiffs"), who possessed interests in property outside a parcel of land known as "the Chatom Unit" in Washington County. The plaintiffs alleged claims of fraud, negligence, wantonness, trespass, conversion, nuisance, and breach of implied lease covenants, stemming from Phillips's alleged drainage of the plaintiffs' lands by its oil and gas recovery operations on the Chatom Unit. The jury returned a verdict in favor of Phillips on the plaintiffs' claims alleging wantonness and breach of implied lease covenants. The jury returned four verdicts of $4,197,439.07 each on the fraud, nuisance, conversion, and negligence claims. It awarded $8,755,420.54 on the trespass claim and $16,519,661.40 in punitive damages for all of the claims. The plaintiffs requested that the court reduce the amount of compensatory damages, stating that the damages awarded on some of the claims were duplicative. Acceding to the plaintiffs' request, the trial court entered a judgment of $26,852,223.94. The trial court denied Phillips's motion for a JNOV or a new trial, and refused to order a remittitur of the punitive damages. The Chatom Unit is a parcel of property drilled for oil and gas by Phillips; it is an amalgamation of several parcels of land combined into one "unit" under the authority of the State of Alabama Oil and Gas Board for the purpose of creating a "secondary recovery" operation on the property. See Ala. Code 1975, § 9-17-13, regarding secondary recovery operations. The Board created the Chatom Unit on April 22, 1976, after being petitioned to do so by Phillips. Secondary recovery, in the context of this case, occurs when a company, such as Phillips, injects dry gas into the ground to stimulate an increase in the underground pressure, which in turn increases the amount of oil and gas that can be recovered from the property. A secondary recovery unit is formed by the Oil and Gas Board when it grants a petition from a party, such as Phillips, requesting the consolidation of certain property for the purpose of placing secondary recovery operations on that property ("unitization.") The petitioner for the unit provides the Oil and Gas Board with information concerning the property the petitioner requests to be placed inside the unit; then a public hearing is held on the proposed unitization. At least 75% of the royalty owners of the property within the proposed boundaries of the unit must agree to the unitization of the properties. § 9-17-84. The owners of the various properties share in royalties obtained from the drilling of the unit, and the ensuing pressure buildup from the secondary recovery operation benefits all of the property in the unit. The Oil and Gas Board's purpose in creating a unit is to prevent the waste of oil and gas and to prevent the drilling of unnecessary wells. See § 9-17-13(b) ("The board, in order to prevent waste and avoid the drilling of unnecessary wells, ... is also authorized to permit or require the introduction of gas or other substance into an oil or gas reservoir for the purpose of repressuring such reservoir, maintaining pressure or carrying on secondary recovery operations."). In its 1976 order creating the Chatom Unit, the Board authorized the unit as necessary to prevent the waste of the oil and gas. In creating the unit, the Board established the boundaries of the unit and the manner in which the unit production would be divided among Phillips and the owners of interests in the unit. Since 1976, the Chatom unit has been producing gas and gas condensate and Phillips has been distributing royalties to the owners of the properties within the unit. *587 The plaintiffs own interests in properties lying outside the Chatom Unit; the properties are in Sections 19 and 30.[2] When the unit was formed, Phillips held leases on Sections 19 and 30. The plaintiffs' claims against Phillips were based upon their allegations that Phillips had committed fraud by withholding from the Board information that would indicate that Sections 19 and 30 were productive; that Phillips had wrongfully drained their property; that Phillips had committed waste in its operation of the Chatom Unit by failing to recover all of the gas that lies under their property; and that Phillips's injection of gas into the ground constituted a trespass onto their property. Phillips argued that, when the unit was formed, it considered Sections 19 and 30 to be unproductive, and that the inclusion of those sections would have diluted the royalties stemming from the productive properties. In 1975, before the unitization in question, several of the plaintiffs, including Mr. and Mrs. Stryker and Mr. and Mrs. Brown (see note 1), employed an attorney to attempt to persuade Phillips to release its leases on Sections 19 and 30, which had been executed in 1969 and 1970. In a letter to Phillips, the attorney specifically noted that his clients had received materials concerning the proposed unitization of Chatom Field, and he declared that Sections 19 and 30 were being drained by Phillips's Chatom Field wells. Phillips did not agree to release the leases until 1982. Beginning at that time, the plaintiffs were able to lease their properties or to drill their property for oil and gas. In 1983, some of the plaintiffs formed a company in an attempt to start drilling on Sections 19 and 30. They requested that Phillips "farm out" (in oil and gas vernacular, to allow some of its leased land to be drilled by a second company) some of its property near the property in which they were interested in drilling, so that they could form a 640-acre drilling unit, but Phillips refused to do so. No further development arose from this attempt. In 1985, the plaintiffs executed new leases on their property to Gulf States Land Services, which asked Phillips to farm out some of its property; Phillips initially declined, but later agreed. Gulf States was unable to find investors for its drilling project. In 1987 Gulf States again requested Phillips to farm out acreage in order that it could place a new well drilled 660 feet from the Chatom Unit, rather than 1,320 feet as required by the Board, and Phillips did not agree with Gulf States' proposals regarding the project. Phillips was also unwilling to share with Gulf States its seismic research, a very expensive research usually treated as a trade secret. No drilling was ever done by Gulf States. In 1990, Hickox Oil Company became interested in drilling Section 19, and it requested Phillips to farm out some of its nearby acreage; Phillips declined to do so. Hickox never drilled on the property. No drilling from any company occurred on the plaintiffs' property. It should be noted that Phillips had no contractual or legal duty to farm out its property for the drilling purposes of other companies or individuals. In general, as noted above, the plaintiffs' claims alleged that Phillips had improperly drained their land of gas and gas condensate; that Phillips caused a waste of condensate; and that Phillips had acted fraudulently in failing to disclose the extent to which their property was being drained. According to the plaintiffs, Phillips had withheld data from the Board indicating a common pool of oil and gas shared by Sections 19 and 30 with the property included in the unit. Phillips also failed to file annual reports regarding pressure readings from the wells drilled in the Chatom unit in 1989, 1990, and 1991; the reports were finally submitted to the Board in 1992. Phillips maintained that no improper drainage had occurred, because of the "rule of capture"; it maintained that no waste was caused; and it denied withholding information from the Board. It admitted having failed to supply the Board with the pressure reports, but it pointed out that it caught up on its reports by filing them later, and it denied that any fraud had occurred. Phillips also argued that the plaintiffs had had the right to ask the Board to place their properties *588 within the confines of the Chatom Unit when it was formed, but failed to do so. Phillips contended that the plaintiffs had failed to exhaust their administrative remedies and that their action was an impermissible collateral attack on the Board's order creating the Chatom Unit. Phillips has raised numerous arguments on appeal, regarding these issues and others, for the reversal of the judgment in this case. We address only the propriety of this action against Phillips regarding the Chatom Unit (as noted above, Phillips argues that this action is an impermissible attack on the April 22, 1976, order of the Board creating the Chatom Unit) and Phillips's argument that the plaintiffs failed to exhaust their administrative remedies. "The prevention of waste of oil and gas and the protection of correlative rights are declared to be in the public interest. The purpose of this article is to prevent such waste and to protect correlative rights." Ala. Code 1975, § 9-17-2. The State of Alabama, in creating the Oil and Gas Board in Title 9, Chapter 17, Article 1, Ala. Code 1975, declared the preceding as the public policy of this State regarding oil and gas. The Oil and Gas Board regulates the Alabama oil and gas industry through an extensive statutory scheme, beginning with Ala. Code 1975, § 9-17-1, and it has, over all persons and property, such jurisdiction and authority as are necessary for the conservation of oil and gas. It has the power to investigate oil and gas operations, it maintains records and data concerning these operations, and it may make regulations and issue orders affecting the production of oil and gas. Ala. Code 1975, § 9-17-6. Among these powers, as discussed above, is the power to create units for the purpose of secondary recovery. § 9-17-13. The secondary recovery unit provides additional recovery of oil and gas in an efficient manner. Hemingway, Law of Oil and Gas § 7.13 (3d ed.1991). The creation of these units, which, as noted above, prevents waste and the drilling of unnecessary wells, precisely corresponds with the Oil and Gas Board's purpose of preventing oil and gas waste. It is an established fact that the maintenance of reservoir pressure is essential to secure the greatest ultimate recovery of oil and gas. Summers, Oil and Gas § 76 (2d ed.1954). Secondary recovery unitization, in the proper circumstances (i.e., when data gathered from a site indicates that secondary recovery operations are needed to prevent waste and increase production), should be encouraged in this State, and the Oil and Gas Board must be free to determine, in its discretion, the proper unitization of areas in need of those secondary recovery operations. In a situation such as that involved in this case, the unitization not only benefits the party petitioning for the unit (Phillips), but also the landowners or owners of mineral interests whose property or interests lie within the proposed unit. Clearly, actions such as that brought by the plaintiffs in this case, which directly concern a unit's alleged drainage of properties lying outside the unit, could substantially impede secondary recovery operations in this State. The plaintiffs' action seriously calls into question the substance of the Oil and Gas Board's orders regarding secondary recovery unitization. The primary basis for the plaintiffs' claims have been that Phillips has drained Sections 19 and 30 through its operations in the Chatom Unit. Many courts have addressed similar issues and have held that no viable cause of action existed under similar circumstances. Of particular interest is Baumgartner v. Gulf Oil Corp., 184 Neb. 384, 168 N.W.2d 510 (1969), cert. denied, 397 U.S. 913, 90 S. Ct. 914, 25 L. Ed. 2d 93 (1970). In that case, an oil and gas leaseholder sued a secondary recovery unit operator, alleging trespass and conversion and arguing that the unit had taken oil and gas from his property. The leaseholder had had the opportunity to join the unit, but had refused. After reviewing the Nebraska oil and gas statutes, the Nebraska Supreme Court reversed a judgment in favor of the leaseholder, stating: 184 Neb. at 393-94, 168 N.W.2d at 515. In California Co. v. Britt, 247 Miss. 718, 154 So. 2d 144 (1963), owners of mineral interests whose property lay outside a unit approved by the Mississippi Oil and Gas Board sued the unit's operator, alleging that the unit had drained their property. The mineral-interest owners had had the opportunity to join the Unit, but did not do so. The Mississippi Supreme Court held that the mineral-interest owners could not recover damages against the unit operator, stating: 247 Miss. at 726-27, 154 So. 2d at 147. (Citation omitted.) While the plaintiffs alleged that Phillips committed fraud by failing to disclose what they allege to be data indicating that a common reservoir extended from the Chatom Unit to Sections 19 and 30, it is clear that Dorothy Stryker, one of the two plaintiffs who testified, believed that her land was being drained, without any reliance on Phillips's disclosure or nondisclosure of such data. As noted above, the Strykers and Browns employed an attorney to write a letter, dated October 22, 1975, to Phillips, regarding Phillips's leases; in that letter, the attorney for the Strykers and the Browns stated: Marc Bradley, the other plaintiff who testified, attempted to obtain farm outs of the Phillips leases in Sections 19 and 30 before the years in which Phillips failed to file pressure reports with the Board. Thus, he could not have relied on Phillips's failure to file those reports. We conclude that, under the circumstances of this case, the plaintiffs' claims against Phillips amounted to an improper collateral attack on the Oil and Gas Board's order of April 22, 1976, creating the Chatom Unit. In that order, the Oil and Gas Board expressly *590 found that the Unit was being created to prevent waste and to protect the rights of all the owners of interests in the unitized area. The manner by which one may attack a rule, regulation, or order of the Oil and Gas Board is set out in Ala. Code 1975, § 9-17-15. In Mize v. Exxon Corp., 640 F.2d 637 (5th Cir.1981), the United States Court of Appeals for the Fifth Circuit examined § 9-17-15 in ruling on a dispute between landowners and a unit operator; the landowners had alleged that the unit operator had drained their land. The court stated: 640 F.2d at 639-41. (Emphasis added.) At no time did the plaintiffs attempt to comply with § 9-17-15. In addition to that statutory provision, § 9-17-85 provides for the Oil and Gas Board to amend its orders to extend the unit area; the plaintiffs had the right (and continue to have the right) under that section to petition the Board to conduct another hearing and to add Sections 19 and 30 to the unit, but they have not done so. Section 9-17-85(a) provides: The plaintiffs have never sought to have their property included in the Chatom Unit. The proposed unitization of Chatom Field in 1976 was preceded by adequate notice. As noted above, the Strykers and the Browns believed that Phillips's operations in the Chatom *591 Field were draining their properties in 1975, before the Chatom Unit was created; yet they never asked to have their interests included in the unit. Bradley, the only plaintiff who testified, other than Mrs. Stryker, also failed to petition to have his property included in the Chatom Unit. When questioned about his failure to do so, Bradley stated: Clearly, the plaintiffs had the opportunity to seek review of the Chatom Unit order, or to petition for inclusion in the Chatom Unit, but failed to do so. To hold Phillips liable for drainage of Sections 19 and 30 in these circumstances would run counter to this State's policy regarding secondary recovery unitization. An owner of interests outside a unit should not be entitled to damages from the operator of the unit if the circumstances are such that he can protect himself by engaging in an independent operation, or if he has been extended a fair opportunity to participate in the Unit. See Kuntz, Oil and Gas § 4.8(c) (2d ed.1987). We note that the plaintiffs have relied in part on this Court's holding in Sheffield v. Exxon Corp., 424 So. 2d 1297 (Ala.1982), for their argument against Phillips's contention that the plaintiffs' lawsuit is an improper collateral attack and its contention that the plaintiffs failed to exhaust their administrative remedies. That case, which is easily distinguishable from this case, simply held that lessors of a property containing oil and gas may litigate the issue whether the lessees acted as reasonably prudent operators in light of the implied covenant of protectionthe covenant that a lessee will do nothing to impair the value of the lease and will use reasonable care to protect the lessor from damage. Whether or not the lessees had violated that implied covenant by improperly draining the lessor's property was a proper issue for litigation. However, in this present case, there is no similar issue, because there are no findings of breached implied covenants between lessor and lessee, and Phillips held no leases on the plaintiffs' property after 1982. Unlike Sheffield, the judgment in this case declares that owners of interests outside a secondary recovery unit may recover for drainage by that unita unit in which those interest-owners could have attempted to join, but failed, for whatever reason, to do so. Because, under the circumstances of this case, this judgment constitutes an impermissible collateral attack on the Board's order creating the Chatom Unit, and because the plaintiffs failed to seek their remedies provided under the statutes governing the Oil and Gas Board, the judgment of the trial court is reversed and a judgment is rendered for Phillips Petroleum Company. REVERSED AND JUDGMENT RENDERED. HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, and SEE, JJ., concur. COOK, J., dissents. [1] In their brief, the appellees note that, at trial, Earnest H. Stryker and Cecil A. Brown, in their individual capacities, were dismissed from this action because they were not the legal owners of the subject property in this case; instead, their wives, Dorothy J. Stryker and Doris J. Brown, were the legal owners of the property. For this reason, although the filings of the appellant and those of the appellees are styled Phillips Petroleum Company v. Earnest H. Stryker, et al., this Court has named the appellees as Dorothy J. Stryker, et al. The trial court's judgment referred to the plaintiffs as "Earnest H. Stryker, et al.", while its order denying Phillips's post-judgment motions referred to the plaintiffs as "Dorothy J. Stryker, et al." As the appellees note, there are now 47 plaintiffs-appellees, rather than the original 49 plaintiffs at the trial court (those original 49 included the present appellees, and also the dismissed plaintiffs Earnest H. Stryker and Cecil A. Brown). Therefore, Earnest H. Stryker and Cecil A. Brown, in their individual capacities, are not parties to this appeal, although they still are plaintiffs, along with their wives, as co-trustees of their children's estates. [2] The Strykers and the Browns (see note 1) also own interests in property within the Chatom Unit and have received royalties from Phillips for production from their properties within the unit.

May 22, 1998

9cba7818-b9c3-4363-87b2-5c9bd7e966ff

Ex Parte CTF Hotel Management Corp.

719 So. 2d 205

1970340

Alabama

Alabama Supreme Court

719 So. 2d 205 (1998) Ex parte CTF HOTEL MANAGEMENT CORPORATION. (In re CTF HOTEL MANAGEMENT CORPORATION v. William G. PLETCH). 1970340. Supreme Court of Alabama. June 12, 1998. *206 Celia J. Collins of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for petitioner. Clifford C. (Kip) Sharpe, Mobile; and Maury Friedlander, Mobile, for respondent. HOUSTON, Justice. The trial court entered a default judgment against CTF Management Corporation ("CTF") in favor of William G. Pletch. After the trial court had denied its motion to set that judgment aside, CTF appealed; the Court of Civil Appeals affirmed without an opinion. CTF Hotel Management Corp. v. Pletch, (No. 2960873) ___ So.2d ___ (Ala. Civ.App.1997) (table). In its unpublished memorandum that court cited as authority Hughes v. Cox, 601 So. 2d 465 (Ala.1992). We granted CTF's petition for certiorari review. We affirm. The pertinent facts are as follows: On August 23, 1991, Pletch filed a three-count complaint in the Mobile County Circuit Court against "Stouffer Riverview Plaza Hotel," seeking damages based on allegations of false arrest, false imprisonment, malicious prosecution, and abuse of process. The complaint arose out of an incident that had occurred on July 19, 1989, when the hotel's manager had Pletch arrested for allegedly refusing to pay his bill. Pletch's complaint was served on Dorothy E. Allain, who worked under the supervision of the Stouffer Hotel Management Corporation ("Stouffer Hotel Management"), CTF's predecessor; Stouffer Hotel Management had contracted to manage the hotel for the hotel's owner, Riverview Plaza Associates, Inc. ("Riverview Plaza"), now known as AP Properties, Ltd.[1] The hotel's manager was an employee of Stouffer Hotel Management.[2] For reasons that are not fully apparent from the record, neither Stouffer Hotel Management nor Riverview Plaza answered *207 the complaint. The trial court, on November 1, 1991, entered a $100,000 default judgment against "Stouffer Riverview Plaza Hotel," which, as Pletch later discovered, was not a legal entity. "Stouffer Riverview Plaza Hotel" was, instead, a trade name under which Riverview Plaza owned the hotel and Stouffer Hotel Management operated it. Riverview Plaza had contracted with Stouffer Hotel Management for permission to use "Stouffer" as part of the hotel's name. On September 14, 1995, almost four years after the default judgment had been entered, Pletch moved to have the judgment amended to reflect the proper defendant. That motion read in pertinent part as follows: In response to this motion, the trial court amended the judgment by substituting CTF for "Stouffer Riverview Plaza Hotel" and adding $59,343 in interest. The total judgment entered against CTF was $159,343. The dispositive issue is whether, as CTF contends, the judgment entered against it is void for lack of personal jurisdiction. CTF argues that the complaint named as the only defendant "Stouffer Riverview Plaza Hotel," which, it argues, was the trade name under which the hotel's owner was doing business. Relying on Hughes v. Cox, supra, CTF argues that the complaint was not sufficient to give its predecessor notice that it was an intended defendant. Pletch, also relying on Hughes, contends that Stouffer Hotel Management was also doing business as "Stouffer Riverview Plaza Hotel" at the time he filed his complaint. He argues that Stouffer Hotel Management was the party he actually intended to sue and that CTF, as its successor, should be liable under the judgment. After reviewing the record and the briefs and after reexamining Hughes, we conclude that the trial court did not err in amending the default judgment to substitute CTF for "Stouffer Riverview Plaza Hotel." For a judgment to be void, the court rendering the judgment must have lacked jurisdiction of the subject matter or of the parties, or have acted in a manner that was inconsistent with due process. Smith v. Clark, 468 So. 2d 138 (Ala.1985). A motion challenging a judgment as void is not addressed to the discretion of the trial court. If the judgment is void, it must be set aside. Seventh Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala.1978). In Hughes, this Court upheld a default judgment against "Gearlene Hughes, d/b/a Hughes Realty or Hughes Realty of Clanton, Alabama," even though the complaint had named as a defendant only "Hughes Realty of Clanton, Alabama." Hughes argued on appeal that the judgment was void because the complaint did not name her as a defendant. Noting that the complaint had been personally served on Gearlene Hughes, this Court stated: 601 So. 2d at 471. In holding as it did, this Court further noted that the Rules of Civil Procedure were designed to give fair notice of the claim against the defendant and that such notice is apparent on the record when the individual served with the complaint and the person doing business by the trade name under which the defendant was identified in the complaint are one and the same. This Court made it clear that when an individual or entity is sued under an assumed name or a trade name the due process protections afforded that individual or entity require, for a valid judgment to be entered against that individual or entity, that there be no question as to the identity of the proper defendant: 601 So. 2d at 470. See, also, Mitchell Brothers Contractors, Inc. v. Benson, 450 So. 2d 138, 140 (Ala.Civ.App.1984), wherein the Court of Civil Appeals stated: The record in the present case indicates that although Riverview Plaza owned the hotel at the time Pletch filed his complaint, Stouffer Hotel Management operated the hotel pursuant to a management agreement that it had with Riverview Plaza. The management agreement conferred extensive authority on Stouffer Hotel Management to oversee, for a fee, virtually every facet of the hotel's day-to-day operations"to direct, supervise, manage, and operate the hotel ... and [to] determine the programs and policies to be followed in connection therewith." *209 Subject to Riverview Plaza's reserved right to approve major deviations from the policies and standards followed at other hotels managed by Stouffer Hotel Management, Stouffer Hotel Management had the authority to "implement its own standard administrative, accounting, budgeting, marketing, personnel, and operational policies and practices relating to or affecting hotel operations," provided that these policies and practices did not violate another provision in the agreement. Also, as noted, the agreement authorized Riverview Plaza to use the "Stouffer" trade name as part of the hotel's name. The agreement also provided in part as follows: Exhibit C to the agreement specified that signs bearing the name "Stouffer Hotels" would be placed in various locations on the interior and exterior walls of the hotel. Based on the particular facts before us, we conclude that both Riverview Plaza, which was in the business of owning hotels, and Stouffer Hotel Management, which was in the business of managing hotels, did business under the trade name "Stouffer Riverview Plaza Hotel." We agree with CTF that Hughes did not specifically deal with a situation such as this one. However, even though Hughes dealt with perhaps a more common situation involving an action filed against a defendant named by the trade name of a sole proprietorship, certainly nothing in Hughes precludes us from holding that when two corporate entities mutually agree to conduct their respective businesses under one trade name, a default judgment entered against a defendant named by that trade name is a judgment against either entity, provided that the entity sought to be bound was properly served with the complaint. Contrary to CTF's assertions, we cannot agree that Riverview Plaza was the only entity closely enough identified with "Stouffer Riverview Plaza Hotel" to be bound by the judgment. In this respect, we point out that the rationale for upholding the judgment in Hughes is equally applicable here. There was no question in Hughes as to the identity of the person intended to be sued; there was no way Gearlene Hughes could not have understood that she was the defendant named in the complaint. In the present case, Pletch alleged in his complaint that "Stouffer Riverview Plaza Hotel" had on July 19, 1989, unlawfully arrested and imprisoned him and that that alleged wrongdoing had caused him damage. When they received the complaint, it should have been apparent to the on-site representatives of Stouffer Hotel Management that Pletch had stated claims for damages against the entity or entities doing business under the trade name "Stouffer Riverview Plaza Hotel," based on the alleged wrongful acts of the hotel's manager. The hotel's manager was an employee of Stouffer Hotel Management. This Court in Hughes stated that "one doing business in a trade name has fair notice that a complaint alleging a cause of action arising out of his business may lead to personal liability." 601 So. 2d at 471. The record indicates that answers had been filed in numerous other actions (tort actions, workers' compensation actions, and garnishment actions) against "Stouffer Riverview Plaza Hotel" and that those actions were resolved by Stouffer Hotel Management. We find unpersuasive CTF's argument that its predecessor could not reasonably have known that it had been sued. The judgment of the Court of Civil Appeals is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, ALMON, SHORES, KENNEDY, COOK, and LYONS, JJ., concur. SEE, J., concurs in the result. [1] We note that there is no issue as to CTF's liability for the torts of its predecessor. We also note that the particular facts of this case dictate that throughout the opinion we refer separately to CTF and Stouffer Hotel Management. [2] The management agreement set out in the record indicates that salaried workers at the hotel were employees of Stouffer Hotel Management, and that workers paid by the hour were employees of Riverview Plaza. The hotel's manager was a salaried employee; the record does not disclose how Allain was paid. We note that Pletch attached to his brief as an appendix a copy of a March 30, 1987, amendment to the management agreement. That document, which does not appear in the record and, therefore, is not properly before us, indicates that "salaried and hourly wage rate employees and personnel necessary for the operation of the hotel" were employees of Stouffer Hotel Management.

June 12, 1998

7f308254-621a-4e76-aba0-0d7169e70b9d

Ex Parte Jones

773 So. 2d 989

1962127

Alabama

Alabama Supreme Court

773 So. 2d 989 (1998) Ex parte John Edward JONES. (Re John Edward Jones v. State). 1962127. Supreme Court of Alabama. June 19, 1998. John Edward Jones, petitioner, pro se. Bill Pryor, atty. gen., and Cedric B. Colvin, asst. atty. gen., for respondent. SEE, Justice. We granted this petition for the writ of certiorari to address one issue: Whether John Edward Jones timely filed his notice of appeal from the trial court's denial of his Rule 32, Ala. R.Crim. P., petition. Because we hold that Jones did timely file his notice of appeal, we reverse and remand. Jones pleaded guilty to trafficking in cocaine. The trial court sentenced him to 15 years in prison. On February 21, 1996, Jones filed a Rule 32 petition with the trial court. After reviewing the arguments of the parties, the trial court denied the petition, by a written order, on February 5, 1997. On March 17, Jones handed his notice of appeal to a prison official at the Limestone Correctional Facility, where Jones was imprisoned. Jones paid to have the notice of appeal sent by certified mail. It was sent by certified mail, and on March 21the 44th day after the February 5 denial of the petitionthe Tuscaloosa County circuit clerk's office received Jones's envelope containing his notice of appeal. The Court of Criminal Appeals dismissed Jones's appeal, by an unpublished memorandum, stating that Jones's notice of appeal was untimely. Jones v. State, (No. CR-96-1203) 717 So. 2d 903 (Ala.Crim.App.1997) (table). We disagree. Rule 4(b)(1), Ala. R.App. P., provides in pertinent part: (Emphasis added.) In the context of post-conviction relief, the 42-day appeal period runs from the date of the trial court's denial of the Rule 32 petition. Barfield v. State, 703 So. 2d 1011, 1012 (Ala.Crim.App. 1997). The 42d day after the trial court's February 5, 1997, denial of Jones's Rule 32 petition was March 19. Relying on Holland v. State, 621 So. 2d 373 (Ala.Crim.App. 1993), Jones argues that his notice of appeal *990 should be deemed to have been "filed" on the day he gave the notice of appeal to the prison official, that is, on March 17 the 40th day after the entry of judgment. Although this Court has never addressed the issue of when an incarcerated pro se appellant's notice of appeal is considered "filed," in Ex parte Williams, 651 So. 2d 569, 571 (Ala.1992), we held "that under Rule 25[, Ala. R.App. P.,][1] a pro se prisoner's filings [with an appellate court] shall be deemed filed upon the prisoner's tendering them to prison officials." Further, in Ex parte Powell, 674 So. 2d 1258 (Ala.1995), this Court reasoned that a pro se incarcerated petitioner's filing of his Rule 32 petition was not barred by the limitations period of Rule 32, because he had given his petition to prison officials one day before the two-year limitations period expired. This Court, relying on the reasoning of the Supreme Court of the United States in Houston v. Lack, 487 U.S. 266, 270-72, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988), held that a pro se incarcerated petitioner "files" a Rule 32 petition when he hands the petition over to the prison authorities. Powell, 674 So. 2d at 1259. The record contains a copy of the envelope that contained Jones's notice of appeal. The envelope was sent by certified mail to the office of the Tuscaloosa County circuit clerk, and it was postmarked March 17, 1997two days before the 42-day period for appeal would have expired. Further, Jones's certificate of service for the notice of appeal was dated March 17. Thus, the record indicates that on or before March 17, Jones had given a prison official his notice of appeal to be mailed. Cf. Mims v. State, 650 So. 2d 619, 621 (Ala.Crim.App.1994) (holding that a mere unverified assertion by a prisoner that he timely gave his Rule 32 petition to prison officials is insufficient to show the date of filing). The circuit clerk's office received Jones's envelope on March 21. Because Jones was incarcerated and was filing his notice of appeal pro se, his notice of appeal should have been considered "filed" on March 17, the day he gave it over to the prison authorities. The Court of Criminal Appeals erroneously dismissed Jones's appeal. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the case for that court to review on the merits Jones's appeal of the denial of his Rule 32 petition. REVERSED AND REMANDED.[*] HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, COOK, and LYONS, JJ., concur. [1] Rule 25, Ala. R.App. P., provides in pertinent part: "(a) Filing. Papers required or permitted to be filed in an appellate court shall be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing shall not be timely unless the papers are received by the clerk within the time fixed for filing, except that papers shall be deemed filed on the day of mailing if certified, registered, or express mail of the United States Postal Service is utilized." [*] Note from the reporter of decisions: On October 2, 1998, on remand from the Alabama Supreme Court, the Court of Criminal Appeals affirmed, without opinion. On November 20, 1998, the Court of Criminal Appeals denied rehearing, without opinion. On May 12, 2000, the Supreme Court denied certiorari review, without opinion, docket no. 1980382.

June 19, 1998

b6238d0a-ae50-4273-a590-7c34ca8cb2af

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kirton

719 So. 2d 201

1970152

Alabama

Alabama Supreme Court

719 So. 2d 201 (1998) MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.; and Jerome T. Jordan v. Margaret KIRTON. 1970152. Supreme Court of Alabama. June 5, 1998. A. Inge Selden III, Carl S. Burkhalter, and T. Louis Coppedge of Maynard, Cooper & Gale, P.C., Birmingham, for appellants. Lange Clark, Birmingham; Archie C. Lamb, Jr., of Levin, Middlebrooks, Mabie, Thomas, Mitchell, Papantonio & Lamb, Birmingham, for appellee. HOUSTON, Justice. Merrill Lynch, Pierce, Fenner & Smith, Inc., and Jerome T. Jordan, a financial consultant for Merrill Lynch (hereinafter collectively referred to as "Merrill Lynch"), appeal from the trial court's order denying their motion to compel arbitration of Margaret Kirton's claims. We reverse and remand. Paul Burgess Adamson, Sr. ("Paul Sr."), died in 1986, leaving a wife, Alice Eliot Adamson; a son, Paul Burgess Adamson, Jr. ("Paul Jr."); and a daughter, Margaret Adamson Kirton. Pursuant to Paul Sr.'s will, Paul Jr. was appointed executor of his father's estate and trustee of a testamentary trust ("the Family Trust"). Thereafter, Ms. Adamson executed a revocable trust indenture ("the revocable trust"), in which she named Paul Jr. as trustee. This trust was funded with individual assets of Ms. Adamson. Ms. Adamson was the income beneficiary *202 of the two trusts, and Paul Jr. and Ms. Kirton were the residual beneficiaries of the trusts. Both trust instruments gave Paul Jr. broad authority to execute documents on behalf of the trust beneficiaries. In 1989, Paul Jr., exercising his authority as trustee for the two trusts, opened two Merrill Lynch "cash management accounts" and executed two cash management account agreements, which contained broadly worded arbitration clauses. Paul Jr. signed these agreements in his capacity as trustee. In 1995, after having discovered that substantially all of the money was missing from the trust accounts, Ms. Adamson sued Paul Jr., alleging that he had made unauthorized use of the funds from the trusts for his own benefit. Ms. Adamson then obtained a restraining order requiring the immediate dissolution of the revocable trust and the disbursement of its corpus "jointly to [her] and [Ms. Kirton]." Thereafter, Ms. Adamson and Ms. Kirton opened a Merrill Lynch joint account in their names and executed an "investor credit line service client agreement" ("the 1995 customer agreement"). Ms. Kirton's attorney was present when she executed the 1995 customer agreement. Paragraph 13 of the 1995 customer agreement contained a broadly worded arbitration provision, the pertinent parts of which are as follows: (Emphasis added.) In the 1995 customer agreement, immediately above Ms. Kirton's signature, the following appeared: (Emphasis added.) Ms. Adamson later amended the complaint in her action against Paul Jr., by adding Ms. Kirton as a plaintiff and adding Merrill Lynch, Pierce, Fenner & Smith, Inc., and Jerome T. Jordan as defendants. In the amended complaint, Ms. Adamson and Ms. Kirton alleged that Merrill Lynch owed them a fiduciary duty that it had breached, that it had converted a portion of the trusts' assets, and that it had fraudulently handled the trusts. Merrill Lynch filed a motion to compel arbitration and a motion for a stay pending arbitration. The trial court granted the motion to compel arbitration as to Ms. Adamson, but denied the motion to compel arbitration as to Ms. Kirton.[1] Merrill Lynch appealed, challenging the trial court's refusal to compel arbitration as to Ms. Kirton. In denying Merrill Lynch's motion to arbitrate Ms. Kirton's claims against it, the trial court wrote: Merrill Lynch maintains that the trial court erred in refusing to compel arbitration of Ms. Kirton's claims, in light of her execution of the broadly worded arbitration agreement in 1995. According to Merrill Lynch, the holding of the trial court overlooks the clear terms of the arbitration clause in the 1995 customer agreement, which, it says, "are decidedly not limited to disputes involving [Ms. Kirton's] joint account." (Emphasis in original.) Rather, Merrill Lynch argues, the breadth of the language of the arbitration clause is "quite clear" and requires the arbitration of "all controversies which may arise between [Merrill Lynch and Ms. Kirton], including but not limited to those involving any transaction or the construction, performance, or breach of this or any other agreement between [Merrill Lynch and Ms. Kirton], whether entered into prior [to], on, or subsequent to the date hereof." We agree. Ms. Kirton and Ms. Adamson executed the 1995 customer agreement in connection with the creation of their joint account at Merrill Lynch. At her deposition, Ms. Kirton testified that before she signed that agreement, she had just "glanced at it" but that no one had prevented her from reading it. Moreover, she testified, she was represented by counsel when she signed that document. See Burroughs v. Jackson Nat'l Life Ins. Co., 618 So. 2d 1329, 1332 (Ala.1993) ("When the plaintiff... [consults an expert in a field] ... [t]he knowledge and understanding of [that] expert are attributed to the plaintiff."). She also testified that she had no personal knowledge whatever of any wrongdoing by Merrill Lynch. Furthermore, Ms. Kirton and Merrill Lynch made no exceptions to their agreement that would have specifically excluded certain types of claims from arbitration. See Ex parte Dyess, 709 So. 2d 447 (Ala.1997); Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So. 2d 332 (Ala.1991); H.L. Fuller Constr. Co. v. Industrial Dev. Board of the Town of Vincent, 590 So. 2d 218 (Ala. 1991); Ex parte Warrior Basin Gas Co., 512 So. 2d 1364 (Ala.1987). See, also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985). The 1995 customer agreement contains a broadly worded arbitration clause that is clear on its faceit covers "any" and "all" controversies that may arise between Merrill Lynch and Ms. Kirtonand, like unambiguous statutes, it leaves no room for interpretation. See, Allied-Bruce Terminix Companies, Inc. v. Dobson, 684 So. 2d 102, 103 (Ala.1995) (discussing the rule that general principles of contract law apply to the interpretation of an arbitration provision); Coastal Ford, Inc. v. Kidder, 694 So. 2d 1285, 1286 (Ala.1997) (holding that the language of an arbitration clause applying to "all claims, demands, disputes, or controversies of every kind or nature that may arise ... concerning the vehicle" was not ambiguous and was broad enough to encompass the claims at issue); Ex parte Lorance, 669 So. 2d 890, 892-93 (Ala.1995) (holding that the language of the arbitration clause"`[a]ny controversy or claim arising out of ...'" was broad enough to encompass the plaintiff's claim alleging fraud in the inducement of the contract); Ex parte Dickinson, 711 So. 2d 984 (Ala.1998) (holding that a clause providing for arbitration of "all claims ... and controversies of every kind or nature that may arise between [the Buyer and the Dealer]" was broad enough to cover the plaintiff's claims of conversion and wrongful repossession); Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra (holding that language in a Merrill Lynch "customer account agreement" that the plaintiff signed upon opening the first accountproviding for arbitration of "any controversy ... arising out of [its] business"applied to the disputed second account even though the plaintiff did not *204 sign a separate customer account agreement for the second account). See, also the following cases, from other jurisdictions, addressing the effect of broadly worded arbitration provisions on the scope of arbitration: Levine v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 1986 WL 8317 (No. 85 Civ. 8354, S.D.N.Y., July 22, 1986) (not reported in F.Supp.) (in which the district court enforced a similar agreement, stating that "[i]t is difficult to imagine language broader" than the phrase "any controversy"); Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1114 (3d Cir.1993) (in which the Court of Appeals considered arbitration language virtually identical to the language in the 1995 customer agreement now before us and noted that "[c]ourts have broadly construed similar agreements, interpreting them to apply to all disputes between signatories"; Belke v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 693 F.2d 1023 (11th Cir.1982), abrogated on other grounds by Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S. Ct. 1238, 84 L. Ed. 2d 158 (1985) (in which the Court of Appeals held that Merrill Lynch's arbitration provision was expansive enough to reach controversies that had occurred before the execution of the arbitration agreement); Trott v. Paciolla, 748 F. Supp. 305 (E.D.Pa.1990) (in which the district court held that Merrill Lynch's arbitration agreement contained "broad, sweeping terms [that] clearly encompass claims relating to the [customer account at issue]"); Rand Bond of North America, Inc. v. Saul Stone & Co., 726 F. Supp. 684, 688 (N.D.Ill.1989) (in which the district court held that an arbitration agreement that extended to "any controversy or claim" covered a dispute that had matured before the agreement was signed); Bernstein v. Shearson/American Exp., Inc., 1987 WL 16964 (No. 86 Civ. 5055, S.D.N.Y., Sept. 10, 1987) (not reported in F.Supp.) in which the district court held that an arbitration agreement that covered "any controversy" applied to "disputes regarding transactions in previously established accounts"). Based on the foregoing, we conclude that the language of the arbitration clause in the 1995 customer agreement is broad enough to encompass Ms. Kirton's claims against Merrill Lynch that Merrill Lynch seeks to arbitrate. That is, we conclude that the language of the arbitration provision in the 1995 customer agreement entered into between Merrill Lynch and Ms. Kirton is sufficiently broad to include any and all controversies between them, regardless of the kind of controversy or the date on which the controversy occurred. Therefore, we hold that the trial court erred in refusing to compel arbitration of Ms. Kirton's claims against Merrill Lynch. Because of our resolution of this question, we pretermit any discussion as to whether Paul Jr., as the trustee of the two trusts of which Ms. Kirton was a residual beneficiary, bound Ms. Kirton to arbitration and as to whether Ms. Kirton was bound by the arbitration provision in the 1989 customer agreements even though she was not a signatory to those agreements. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, SEE, and LYONS, JJ., concur. ALMON, SHORES, and KENNEDY, JJ., dissent. KENNEDY, Justice (dissenting). I dissent. The standard of review applicable to cases like this one is the "abuse of discretion" standard. Capital Inv. Group, Inc. v. Woodson, 694 So. 2d 1268 (Ala.1997). Both federal courts and state courts have consistently held that the duty to arbitrate is a contractual obligation and that a party cannot be required to submit to arbitration any dispute that he did not agree to submit. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986); Capital Inv. Group, Inc. v. Woodson, supra. Moreover, this Court recently held, in Ryan Warranty Services, Inc. v. Welch, 694 So. 2d 1271, 1273 (Ala.1997), that "[a] party to a contract can be forced to arbitrate only those issues he or she specifically agrees to submit to arbitration." In its order denying Merrill Lynch's motion to compel Kirton to arbitrate her claims, the trial court found, in pertinent part, the following: I agree. In Capital Inv. Group, Inc. v. Woodson, 694 So. 2d 1268 (Ala.1997), with Justice Houston concurring in the result, this Court dealt with a factually comparable arbitration case in which a plaintiff investor's claims against his broker arose before the plaintiff saw or signed an agreement containing an arbitration provision. In Woodson, this Court specifically stated: "We cannot hold that Woodson agreed to submit anything to arbitration under the Customer Agreement before the agreement was even presented to him." 694 So. 2d at 1270. This case is similar to Woodson in that Kirton's claims against her broker, Merrill Lynch, stem from actions that occurred before Kirton was presented with, or signed, the new account documents that contained the arbitration provision. Accordingly, I am of the opinion that this Court should follow the holding established in Woodson and hold that it was not an abuse of discretion for the trial court to deny Merrill Lynch's motion to compel arbitration of Kirton's claims because there was no agreement by Kirton to arbitrate the claims she has brought in this action. ALMON, J., concurs. [1] In the same order, the trial court stayed all proceedings in the case and transferred the entire action to the "administrative docket" pending the outcome of Ms. Adamson's arbitration. The trial court's basis for ordering arbitration of Ms. Adamson's claims is not at issue in this appeal.

June 5, 1998

defdccee-ad71-415d-aae6-219f9edb403d

Ex Parte Adams

721 So. 2d 148

1961705

Alabama

Alabama Supreme Court

721 So. 2d 148 (1998) Ex parte Barbara Ann ADAMS. (Re Barbara Ann ADAMS v. Jennings Jay ADAMS). 1961705. Supreme Court of Alabama. February 6, 1998. Opinion Overruling Rehearing April 24, 1998. W. Gregory Hughes, Mobile, for petitioner (on original submission and on application for rehearing). Mayer W. Perloff and T. Dwight Reid of Reid, Friedman, Perloff & Ross, P.C., Mobile, for respondent (on original submission). Mayer W. Perloff and T. Dwight Reid of Reid, Friedman, Perloff & Ross, P.C., Mobile; and Robert S. Edington, of counsel, for respondent (on application for rehearing). KENNEDY, Justice. We granted certiorari review in order to determine whether the husband's suicide divested the trial court of jurisdiction to enter an order enforcing an agreement entered in a divorce case in which the parties had settled all matters regarding the divorce, including a disposition of the marital property. The couple was married in 1984. On October 23, 1995, the wife filed a divorce complaint alleging incompatibility and seeking a division of the marital assets. On October 24, 1995, the husband placed his assets in an irrevocable trust for his 2 sons from his prior marriage. He also changed the locks on their home. The wife moved for an order to hold the husband in contempt for violation of the status quo order. The trial court ordered that the wife be allowed to move back into the home and enjoined the parties from interfering with the other. The case then proceeded to trial. At trial on June 21, 1996, the parties reached a final settlement. The agreement was read into the record. The trial court *149 then entered an order directing the wife's attorney to draft a judgment of divorce incorporating the agreement. The trial court also ordered that the terms of the agreement be effective immediately. On June 25, 1996, the husband filed a motion to set aside the agreement and to set the case for a second trial because the husband claimed he could not pay what he had agreed to pay as alimony in gross. On July 11, 1996, the trial court denied the husband's motion. On August 10, 1996, the husband committed suicide. The trial court had not signed the judgment of divorce at the time the husband committed suicide. Subsequently, the wife filed a motion to add necessary parties, to enjoin disposition of funds, and seeking declaratory relief. The declaratory relief she requested sought to have the trial court enforce the agreement that was read into the record as a valid divorce decree or a valid enforceable agreement. The trial court refused to enforce the agreement, finding that the divorce action was abated by the husband's death. The Court of Civil Appeals affirmed without an opinion. Adams v. Adams, 720 So. 2d 1062 (Ala.Civ.App.1997) (table). The wife argues that the agreement that was read into the record was enforceable as there was nothing left for the trial court to do except to sign the formal decree. The disposition of all the assets and liabilities was fixed by the agreement as read into the court record. She further argues that her declaratory judgment motion was not an effort to revive the divorce or to continue with the divorce litigation, but was rather for the purpose of ascertaining her rights under the facts and circumstances of this case. The wife distinguishes a case wherein we held that a temporary order in a divorce proceeding providing for a subsequent transfer of title to the marital residence subject to certain unfulfilled conditions was insufficient to vest a property right as to the residence. In that case, Jones v. Jones, 517 So. 2d 606 (Ala.1987), the trial court entered a temporary order in a divorce action by the wife; by that temporary order, the wife was to surrender the house to the husband while the husband was to release the wife from any debt. Neither condition had been fulfilled when the husband was killed in an automobile accident. The trial court held that the temporary order did not vest in the deceased husband's estate a property right to the residence. We affirmed, noting that because the order was temporary, there were many issues left to be decided by the court at a later date and that the parties had not intended for the temporary order to have full force and effect from its date without any resolution of issues involving alimony and the division of other property. In this present case, counsel for the husband's estate does not dispute that there was a final agreement read into the record and that all that remained to be done was for the trial judge to sign the divorce decree. Counsel's argument is that the husband's death dissolved the marriage and that the divorce action should be abated. Because a cause of action for divorce is purely personal, it is generally recognized that, upon the death of either spouse, such a cause of action terminates or, if divorce action has been commenced, the action abates. However, we agree with the wife's argument that her action was not abated under the particular facts of this case. The trial court's denial of the husband's motion to set aside the agreement supports the proposition that the trial judge found that the agreement was final. There were no other issues to be decided and all that remained was for the trial court to sign the judgment. We find several cases from other jurisdictions persuasive. In Pavluvcik v. Sullivan, 22 Mass.App. 581, 495 N.E.2d 869 (1986), the husband and wife had entered into a comprehensive and final settlement of the financial relations, not only covering matters affecting their immediate situations, including alimony, custody, child support, payment of medical and educational expenses, maintenance of life insurance, but also dividing their assets and resolving their inheritance rights and their responsibilities for each other's indebtedness. The trial court found that the marriage had irretrievably broken down and ordered the parties to comply with the separation agreement, which was to be incorporated and merged into a judgment nisi was entered. *150 The wife died before the judgment nisi was entered. The husband contended that the wife's death abated the action and voided the separation agreement. The Appeals Court of Massachusetts found that the parties had intended for the separation agreement to have full force and effect from the date the parties signed it and the court approved it. In In re Marriage of Mallory, 55 Cal. App. 4th 1165, 64 Cal. Rptr. 2d 667 (1997), the California Court of Appeals held that after the death of one of the parties to a divorce action the trial court was empowered to enter a judgment nunc pro tunc with respect to all issues, including marital status, that had been submitted to the court for decision before the party's death, notwithstanding the general rule that the death of a party abates an action for termination of the marital status. In Mallory, the trial of the divorce action was held in October 1987 and final written arguments were submitted to the court for a decision in January 1988. On April 25, 1988, the husband was found dead in his home at 8:50 a.m. That same day, at 3 p.m., the trial court entered an order purporting to dissolve the marriage and to decide the property issues. The appeals court concluded that in a marital dissolution action a trial court has the power to enter a judgment on all substantive issues submitted to the court for a final decision before the death of a party. Kresnak v. Kresnak, 190 Mich.App. 643, 476 N.W.2d 650 (1991), a property settlement agreement was placed in the record, but the husband died before the court had entered a judgment of separation. The Michigan court held that the husband's death, after he had agreed to the property settlement, did not divest the court of jurisdiction to enter a judgment of separate maintenance implementing the property agreement. The personal representative's ratification of the property settlement agreement entered into by the husband prior to his death but before entry of the separation judgment related back to the time the agreement was reached and read into the record so as to allow the entry of a judgment for separate maintenance. Under the peculiar facts of this case, we conclude that the husband's death did not make the final agreement unenforceable. According, we hold that the trial court erred in dismissing the case. The judgment of the Court of Civil Appeals is reversed, and the cause is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, and SEE, JJ., concur. COOK, J., concurs in the result. BUTTS, J., dissents. PER CURIAM. APPLICATION OVERRULED. NO OPINION. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, and SEE, JJ., concur. COOK, J., concurs specially. COOK, Justice (concurring specially). Under the specific facts in this case, even though Jennings Adams had died before the trial judge signed the divorce judgment, the trial court erred in dismissing this declaratory judgment case. To enforce the agreement of the parties reached before the death of Mr. Adams would not conflict with long-standing and established Alabama caselaw holding that death abates a divorce action. After the trial on June 21, 1996, the parties reached a final settlement, and the agreement was read into the record. The trial court directed the wife's attorney to draft the judgment of divorce and ordered that the terms of the agreement be effective immediately. As the opinion of February 6, 1998, indicates, the legal theories that support the enforcement of the agreement between the parties do not conflict with the abatement principle. In Pavluvcik v. Sullivan, 22 Mass.App. 581, 495 N.E.2d 869 (1986), the Court of Appeals of Massachusetts determined that the parties had intended that the separation *151 agreement have full force and effect from the date the parties signed it and the court approved it; the judgment of divorce had not been signed before the death of one of the parties. In In re Marriage of Mallory, 55 Cal. App. 4th 1165, 64 Cal. Rptr. 2d 667 (1997), a California appeals court held that after the death of one of the parties to a divorce action the trial court could enter a judgment of divorce nunc pro tunc, when the action had been submitted to the court before the party's death. The facts of this present case suggest that the parties intended the separation agreement to be effective on June 21, 1996. There is no dispute that the trial court ordered that the agreement be effective immediately. The record supports the enforcement of the settlement agreement nunc pro tunc. As a Special Alabama Supreme Court recently stated, quoting federal authority: Hornsby v. Sessions, 703 So. 2d 932, 942-43 (Ala.1997). The agreement of the parties was therefore enforceable under the principle that the agreement was in force and effect before the death of Mr. Adams. I agree with the February 6, 1998, opinion that the trial court improperly dismissed the claim for declaratory relief made after Mr. Adams's suicide, given that all matters regarding disposition of the marital property had been settled.

April 24, 1998

92b7ba7b-a96d-458c-9197-52eda365d19c

Ex Parte Alabama Dept. of Human Resources

719 So. 2d 194

1962164

Alabama

Alabama Supreme Court

719 So. 2d 194 (1998) Ex parte ALABAMA DEPARTMENT OF HUMAN RESOURCES. (In re Patricia HARRIS v. LIBERTY NATIONAL LIFE INSURANCE COMPANY). 1962164. Supreme Court of Alabama. May 29, 1998. *196 J. Coleman Campbell and James E. Long, asst. attys. gen., Department of Human Resources, for petitioner. Robert H. Rutherford and David A. Elliott of Burr & Forman, L.L.P., Birmingham, for respondent. LYONS, Justice. The Alabama Department of Human Resources ("DHR") petitions this Court for relief from a discovery order. Although DHR has styled its petition to this Court as a petition for a writ of certiorari to the Court of Civil Appeals, we believe it is more appropriate to treat the petition as one for a writ of mandamus directed to the circuit court. In March 1996, Patricia Harris sued Liberty National Life Insurance Company, stating fraud claims and other claims related to her exchange of one type of Liberty National cancer insurance policy for another type of Liberty National cancer insurance policy. Harris alleged that she was receiving Medicaid benefits when she purchased the policies. Under Alabama's Medicaid statute, Ala.Code 1975, § 22-6-6.1, the benefits from such policies owned by a Medicaid recipient are assigned to the State to the extent the policy benefits duplicate Medicaid coverage. One of Harris's claims is that § 22-6-6.1 has the effect of making the cancer insurance policies worthless to her and that Liberty National fraudulently failed to disclose that fact to her even though it was aware that she was a Medicaid beneficiary. She filed her complaint on her behalf and on behalf of a putative class of similarly situated Liberty National customers in Alabama. In defense of this lawsuit, Liberty National subpoenaed the custodian of records at DHR, a nonparty, to appear at trial and to produce the following documents: Liberty National contended that Harris received Medicaid coverage as a part of the Aid to Families with Dependent Children ("AFDC") benefit package and that the DHR records would show that she had signed a statement assigning all her insurance rights to Medicaid as a condition of eligibility. Liberty National asked the trial court to order DHR to produce the entirety of its file on Harris who, Liberty National said, had not objected to production of the DHR documents. DHR responded by moving the trial court for a protective order. DHR asserted that the documents sought by Liberty National were confidential and were protected from discovery by Ala.Code 1975, § 38-2-6(8). DHR argued that Liberty National did not have a legitimate need for all the information it sought, and it requested the trial court to quash the subpoena or to modify the subpoena in order for the trial court to perform an in camera inspection of the documents so that only limited information would be disclosed to Liberty National. In June 1997, Judge Edward Ramsey of the Jefferson Circuit Court entered the following order: DHR then petitioned the Court of Civil Appeals for a writ of mandamus directing Judge Ramsey to quash or modify Liberty National's subpoena for DHR records. The Court of Civil Appeals denied the mandamus petition, without opinion. Ex parte Alabama Dep't of Human Resources, (No. 2961223) ___ So.2d ___ (Ala.Civ.App.1997) (table). DHR has now petitioned this Court for a writ of mandamus. See Rule 21, Ala. R.App. P. A writ of mandamus will be issued only if there is: "1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Service Stations, Inc., 628 So. 2d 501, 503 (Ala.1993). A trial court is vested with broad discretion to control discovery, and its ruling on discovery matters will not be reversed absent a clear abuse of discretion. Ex parte Wal-Mart Stores, Inc., 682 So. 2d 65 (Ala.1996). A mandamus petition is a proper means of review to determine whether a trial court has abused its discretion in discovery matters. Ex parte Life Ins. Co. of Georgia, 663 So. 2d 929 (Ala.1995). Thus, if DHR has a "clear legal right" to withhold the documents requested by Liberty National, then the trial court abused its discretion in ordering their production and we will grant the petition for the writ of mandamus. We must determine the effect of Ala.Code 1975, § 38-2-6(8), on Liberty National's subpoena for DHR records. Section 38-2-6 states: (Emphasis added.) In addition, certain DHR rules specifically relate to the discovery of DHR records. Section 660-1-6-.03 of the Rules of the Department of Human Resources states: (Emphasis added.) DHR argues that because its benefits and service records are made confidential by § 38-2-6(8), Rule 45, Ala.R.Civ.P., prohibits their disclosure, unless an exception applies.[1] DHR says that no waiver or statutory exception applies to the records at issue, but it acknowledges that the constitutional principle of due process creates an exception as to certain limited information in its records that it admits may be material to the issues in litigation. DHR contends that the trial court erred in issuing a subpoena that, DHR says, is much broader than what the law allows. It says that Liberty National initially stated that it was seeking a subrogation statement signed by Harris when she applied to DHR for Medicaid and AFDC benefits. DHR says that thereafter Liberty National claimed it needed to see DHR's entire record on Harris because the record might contain information that would aid Liberty National's defense of Harris's lawsuit. DHR contends that Liberty National simply wants its entire record on Harris for a "fishing expedition," and, DHR says, that is exactly what § 38-2-6(8) was intended to prevent. DHR argues that the trial court, in ordering that the records be made available to Liberty National after Harris had inspected them and determined whether she objected to the release of any confidential information, failed to recognize that the statutory privilege created by the legislature belongs to DHR and not Harris. It claims that Harris cannot waive the privilege at issue because, DHR says, the privilege is intended to protect much more than Harris's own privacy. DHR says the privilege created by § 38-2-6(8) is critical to effectively continuing the State's public assistance program. It makes the following argument in its brief to this Court: *199 "Public assistance in the nature of aid to families with dependent children is intended for the support of dependent children in the household. See, Code of Alabama 1975, § 38-4-1(d). Upon receiving an application for assistance: "Code of Alabama 1975, § 38-4-2(a). Section 38-4-1(d) requires that an investigation look into income and resource issues as well as child dependency and need issues. Such a broad investigation requirement necessarily requires DHR to obtain a lot of information from sources other than the household. Income and resource information from employers, banks, and a myriad of governmental agencies, such as the Social Security Administration and the Alabama Department of Industrial Relations and local probate offices, may indeed be included in the files. Health and medical records to establish need and dependency may also be included in the files. Furthermore, verification of circumstances information through confidential interviews and documents from others in the community, are also included in the files. "A privilege to waive access to DHR public assistance information should not be given to recipients of public assistance. To do so would have a chilling effect on DHR's ability to investigate applications and allegations of fraud in the receipt of public assistance. The myriad of sources which provide information to DHR would become more hesitant to provide such information if they [knew] that the applicant [could] simply walk into the DHR office and see everything they stated and provided to DHR. For these very same reasons, contrary to the assertions of Liberty National, DHR has a valid reason for objecting to any attempt by Plaintiff to legitimate access to the files." DHR asks that the trial court be ordered to modify its subpoena so as to limit the documents DHR must make available to Liberty National, either by making a ruling based on the arguments as to the information needed in light of the claims in the case, or based on an in camera inspection of the records. In response, Liberty National first argues that it needs all the documents in DHR's file on Harris in order to defend itself against Harris's lawsuit. Liberty National argues that the DHR records could reveal, in addition to possible subrogation agreements, that Harris went off Medicaid at some point or that she was never entitled to Medicaid benefits. Liberty National contends that it must be able to review all of DHR's records on Harris because, it says, it is unable to determine what documents it needs to defend the lawsuit until it has had the opportunity to review them all. Liberty National argues that the purpose of § 38-2-6(8) is to protect the rights of persons such as Harris, not DHR. It contends that it is Harris and not DHR who has the right to waive the privilege. Liberty National claims that Harris has impliedly waived the privilege because, it says, she did not object to the subpoena to DHR or to the trial court's order denying DHR's motion to quash the subpoena. Thus, Liberty National says that DHR has no basis on which to object to the production of its records on Harris. Moreover, Liberty National says that the trial court's order requiring Harris to review the records and to advise the court if she has an objection to producing any part thereof, provides the same protection as the in camera trial court review DHR seeks. Liberty National also argues that Rule 45(c)(3)(A)(iii), Ala. R. Civ. P., does not protect DHR from releasing its entire file on Harris because, it says, Rule 45 notes that exceptions can apply. Liberty National says that exceptions exist in DHR's own rules, *200 particularly in § 660-1-6-.03(2)(a) and (b).[2] Liberty National says that in light of these rules, which DHR drafted, DHR's mandamus petition has no merit. The relevant portion of § 38-2-6(8), creating a statutory privilege for confidential information in DHR records, states: We conclude that this clear language expresses an intent by the legislature to prohibit disclosure of confidential information contained in DHR files in cases that are not subject to an investigation by the State of a person's receipt of public assistance. Moreover, the language of § 38-2-6(8) does not indicate that the legislature intended to give DHR or any person the ability to waive that prohibition of disclosure. Thus, the trial court erred when it ordered DHR to produce to Liberty National its entire file on Harris, subject to Harris's reviewing the file and advising the court of any objections she might have to production of the documents. The remaining issue is what is meant by the term "confidential information." The legislature did not intend that every document in DHR's files should be shielded from disclosure; Section 38-2-6(8) contemplates "the use of such records, papers, files, and communications by any other agency or department of government" and then provides for limitations on such use. DHR also anticipates such disclosure, as is evident from § 660-1-6-.03(2) of the DHR rules; this section provides an exception allowing disclosure of DHR records and other confidential information in litigation such as this, upon order of the court. Section 38-2-6(8) refers to "[c]onfidential information concerning children and their families and applicants for and recipients of public assistance, including, but not limited to, payments or services," and it prohibits the use of such information except in circumstances not here presented. We do not find an intrusion into "[c]onfidential information concerning ... payments or services" by allowing Liberty National to discover any subrogation agreements signed by Harris, information specifically relating to whether Harris was ever "off" Medicaid, and other similar information relating to her status as a Medicaid beneficiary. Section 38-2-6 states the "aim of the state department" as "the promotion of a unified development of welfare activities." We see no frustration of this goal by allowing disclosure of DHR records going directly to the question of the standing of a participant in the AFDC program to assert fraud claims as a representative of a class in an action against an insurance carrier. In sum, we believe that § 38-2-6(8), when interpreted in hand with Rule 45(c)(3)(A)(iii), Ala. R. Civ. P., prohibits the wholesale discovery of DHR records by Liberty National. However, because the legislature properly recognized that not all DHR records are confidential and, in so doing, harmonized the statute with the right to due process protected by § 6, Ala. Const. of 1901, we recognize that certain records are available to Liberty National so that it may adequately defend itself in Harris's action. Any subrogation agreements signed by Harris, information specifically relating to whether Harris was ever "off" Medicaid, and other similar information relating to her status as a Medicaid beneficiary are appropriate matters for disclosure. We believe that the trial court is in the best position to determine what documents in DHR's records on Harris are truly needed by Liberty National in order to defend itself in Harris's lawsuit. In sum, we conclude that DHR has a clear legal *201 right to the relief it seeks and we grant DHR's petition for the writ of mandamus. We direct Judge Ramsey to conduct an in camera inspection of DHR's file on Harris, and to allow Liberty National discovery of those documents, redacted if necessary, that contain information relevant and material to Liberty National's defense of Harris's lawsuit. WRIT GRANTED. HOOPER, C.J., and MADDOX, ALMON, HOUSTON, KENNEDY, and COOK, JJ., concur. SEE, J., concurs in the result. SHORES, J., recuses herself. [1] Rule 45(c)(3)(A), Ala. R. Civ. P., states: "On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it ".... "(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies...." [2] Section 660-1-6-.03 states: "(2) Notwithstanding 660-1-6-.03(1) above, disclosure and release of departmental records or other confidential information in cases not referred by the Department may be allowed: "(a) Upon an order of a court of competent jurisdiction. "(b) As part of ongoing court litigation."

May 29, 1998

d3cc86ad-4a41-4411-b7c9-ff27cc97bddc

Ex Parte JMF

730 So. 2d 1190

1970224

Alabama

Alabama Supreme Court

730 So. 2d 1190 (1998) Ex parte J.M.F. (In re J.B.F. v. J.M.F.). 1970224. Supreme Court of Alabama. June 19, 1998. Rehearing Denied August 28, 1998. *1191 Robert L. Austin, Birmingham, for petitioner. David Gespass and Kathleen M. Johnson of Gespass & Johnson, Birmingham, for respondent. LYONS, Justice. This Court granted the father's petition for certiorari review in this child custody case in order to determine whether the Court of Civil Appeals erred in reversing the trial court's judgment granting a change of custody of the parties' minor child from the mother to the father. See J.B.F. v. J.M.F., 730 So. 2d 1186 (Ala.Civ.App.1997). We conclude that it did so err, and reverse its judgment and remand. The parties were divorced in January 1993, after a six-year marriage, and the trial court awarded custody of the parties' minor daughter to the mother. Shortly thereafter, the mother began a homosexual relationship with G.S., and in April 1992 she and her daughter moved into an apartment with G.S. Although the apartment had three bedrooms, the mother began sharing a bedroom with G.S. The father was aware of the relationship but, according to him, his conversations with the mother led him to believe that the mother and G.S. would maintain a discreet relationship, *1192 that they would not share a bedroom, and that they would represent themselves to the child and others as being merely roommates. The father subsequently remarried, and the child regularly visited him and his new wife in their home. During the course of these visits, the father learned that his former wife and G.S. were sharing a bedroom, that the child occasionally slept with them in their bed, and that they kissed in the presence of the child. The father also noticed one instance where the child, while playing a game with her stepmother, grabbed the stepmother's breast in a way that appeared to him to be inappropriate. During visitation, the child remarked to the father that "girls could marry girls and boys could marry boys." After the father learned that the mother and G.S. were not conducting a discreet relationship but were, in fact, openly displaying their affair to the child, and after observing the effect that this was having upon the child, he moved to modify the divorce judgment in order to obtain custody of the daughter. The child underwent expert psychological evaluation and was represented in the modification proceedings by a guardian ad litem. The evidence presented during the ore tenus proceeding shows that since the divorce, the mother and G.S. have not conducted their relationship with discretion and have not concealed the nature of their union from the child. The mother and G.S. have exchanged rings and have a committed relationship as "life partners" that includes ongoing sexual activity. The mother and G.S. share a bed and the child has at times slept in the bed with them. They kiss and show romantic affection for each other in the child's presence.[1] The mother has explained to the daughter that she and G.S. love each other the way that the child's father and stepmother love each other. The mother and G.S. testified that G.S. shares in the child's upbringing in the way of a devoted stepmother and that the child accepts and loves her as a parental figure. G.S. regularly attends school functions and meetings with the mother, accompanies the child on school field trips, and eats lunch with the child at school twice a month. The record contains evidence indicating that the child has remarked several times that girls may marry girls and that boys may marry boys. The mother and G.S. have homosexual couples as guests in their home, and they have taken the daughter with them on an overnight trip to visit a male homosexual couple; during this visit, the child slept with the mother and G.S. in one room, while their hosts shared a bedroom. During her testimony, the mother repeatedly denied that her lifestyle had resulted in, or would result in, problems for the child. She denied that other children would shun the child based upon the obvious relationship between her mother and G.S., which they regularly display to those at the child's school. The mother stated in deposition testimony that if others showed "prejudice" against the child it would be "up to the child" to decide how to deal with it because "kids have to deal with peer pressure in their own ways anyway." The mother pointed out that children reject other children for a variety of reasons and that her daughter was "going to have to learn about prejudice in her daily life anyway." The mother was confident that the child could decide for herself what to tell her friends and that whatever the child was comfortable with would be fine. The other evidence adduced during the trial showed, without dispute, that the child has a loving relationship with her father and her stepmother and that she accepts the stepmother as a parental figure. It is undisputed that she enjoys visiting them in their home and that the father and stepmother share in the care of the child when she is with them. The stepmother testified as to her love for the child and her commitment to sharing the responsibility of her upbringing. The father and the stepmother are both employed and can make satisfactory arrangements for the care of the child while they are *1193 working; the father, in particular, has a flexible work schedule in his job as an electrician that allows him to be available to care for the child. There was also expert testimony at trial from the psychologists who examined the child. Dr. Sharon Gotlieb, who was the child's primary therapist, opined that the child's relationship with her mother is excellent, that the two are well bonded, and that the child exhibited no pathology or mental illness. She also stated that the child had a good relationship with G.S. and that the relationship is beneficial to the child. Dr. Gotlieb expressed concern that a change in custody would have a substantial detrimental effect on the child, perhaps causing her to have immediate and/or long-term behavior problems, school problems, or depression. Dr. Gotlieb did testify that a child is best served by having both a male and a female role model in the house, rather than two male, or two female, role models; however, she qualified this statement by opining that the gender of a new adult introduced into the home of a custodial parent after the biological parents divorced would make no difference to the child because the principal role models in her life would remain her parents. Dr. Daniel McKeever, a pastoral counselor, testified that the father brought the child to him to be evaluated after observing her touching herself "excessively" in the genital area. He testified that, utilizing play therapy, he detected that the child might have issues of anger and sexuality, based upon his perceptions of the child's play with anatomically correct dolls. He also expressed a suspicion that the child might have experienced sexual abuse; however, he also stated that he had only two appointments with the child and that the father's suspicion of sexual abuse stemmed from the fact of the mother's lesbianism. Dr. McKeever did not interview the mother, G.S., or the child's stepmother. Dr. Karen Turnbow, the court-appointed psychologist, stated in her report to the court that her evaluation of the child revealed no indication of sexual abuse or exposure to sexual acts. She reported that she spent time with both parents, with G.S., and with the child's stepmother, and concluded that the child has a good relationship with each of them and is resilient. Dr. Turnbow stated that, based upon her review of available literature on the subject of a child being reared by an openly homosexual parent, she did not think the homosexuality of a parent should be the sole consideration in a custody situation; rather, she said, the literature suggested that custody should be determined on the basis of individual character and parenting skills. Dr. James B. Collier testified on behalf of the mother concerning scientific studies as to the effect growing up in a homosexual household had on children. He testified that he had reviewed at least 50 articles, all from journals that are subject to peer review, and that these studies consistently found no adverse consequences for children growing up in such a household. In addition to the foregoing evidence, the trial court also had before it the report of Terry M. Cromer, the child's appointed guardian ad litem; the report summarized the evidence and scientific studies submitted to the court and presented Cromer's own observations. Cromer confirmed the unanimous opinion of all the psychologists that the child was pretty, well-groomed, intelligent, energetic, healthy, and generally happy. He also confirmed that the child is bonded with both parents and enjoys a loving relationship with both. He recognized that, as Dr. Collier and Dr. Gotlieb had stated, there were studies that had determined that there is generally no significant difference in various factors between a child who has been reared by a heterosexual couple and one who has been reared by a homosexual couple. He also pointed out that there are studies that come to the opposite conclusion and that the child's therapist, Dr. Gotlieb, appeared reluctant to consider studies which suggest that a child reared by homosexual parents could suffer exclusion, isolation, a drop in school grades, and other problems. After summarizing the evidence, Cromer recommended to the trial court that it grant the father's motion to change custody. After considering all the evidence, the trial court entered an order changing custody to the father, finding that the change would *1194 materially promote the child's best interests and setting forth the mother's visitation rights. The trial court initially restricted the mother's visits by ordering that she not "exercise her right of visitation with the minor child of the parties in the presence of a person to whom she is not related by blood or marriage." However, upon motion of the mother, the trial court modified the order to provide that the restriction "shall not apply and be considered as being applicable to the general public, casual, professional, platonic or business relationships." In reviewing the trial court's judgment, the Court of Civil Appeals pointed out that, in Alabama, evidence of a parent's heterosexual misconduct cannot, in itself, support a change of custody unless the trial court finds that the misconduct has a detrimental effect upon the child. 730 So. 2d at 1189. The Court of Civil Appeals emphasized that this standard has been applied in other jurisdictions to cases involving homosexual conduct on the part of a custodial parent, and it adopted this standard for use in such cases in Alabama. 730 So. 2d at 1189. In applying this standard, the Court of Civil Appeals determined that the record contained no evidence indicating that the mother's relationship with G.S. has a detrimental effect upon the child, and it thus concluded that the trial court had improperly changed custody based solely upon the mother's homosexuality. 730 So. 2d at 1190. It is, of course, well established that a noncustodial parent seeking a change of custody must show not only that he or she is fit to have custody, but that the change would materially promote the child's best interests. Ex parte McLendon, 455 So. 2d 863 (Ala.1984). This requires a showing that the positive good brought about by the modification would more than offset the inherently disruptive effect caused by uprooting the child. McLendon. Where a parent seeks a change of custody based solely upon the heterosexual misconduct of the custodial parent, our law requires that there be an additional showing that the misconduct has a detrimental effect upon the child. Taylor v. Taylor, 563 So. 2d 1049 (Ala.Civ.App.1990). In this case, however, the father has not sought to change the custody of the child based upon the fact that the mother is engaged in a homosexual affair; indeed, the father was aware of the mother's feelings for G.S. at the time of the divorce and was aware that they cohabitated thereafter, but he did not immediately seek a change of custody. The father sought custody of the child only after he had remarried and had discovered that the mother and G.S. were not conducting a discreet affair in the guise of "roommates" but were, instead, presenting themselves openly to the child as affectionate "life partners" with a relationship similar to that of the father and the stepmother. This is, therefore, not a custody case based solely upon the mother's sexual conduct, where the "substantial detrimental effect" element might be applicable.[2] Rather, it is a custody case based upon two distinct changes in the circumstances of the parties: (1) the change in the father's life, from single parenthood to marriage and the creation of a two-parent, heterosexual home environment, and (2) the change in the mother's homosexual relationship, from a discreet affair to the creation of an openly homosexual home environment. The father was not, as the Court of Civil Appeals erroneously held, required to show that the mother's relationship with the child was having a "substantial detrimental effect" upon the child. 730 So. 2d at 1189. Rather, he was required to establish that, based upon the changes in the circumstances of the parties, a change in custody would materially promote the child's best interests and that the positive good brought by this change would more than offset the inherently disruptive effect of uprooting the child. McLendon. Having held that the trial court applied the appropriate standard in this case, *1195 we must now review the correctness of its conclusion. We begin by noting that a trial court in this state has broad discretion in determining custody matters, that the judgment of the trial court rendered after an ore tenus custody proceeding is presumed to be correct, and that such a judgment will not be reversed unless it is shown to be an abuse of discretion. Gamble v. Gamble, 562 So. 2d 1343 (Ala.Civ.App.1990). It is not the province of an appellate court to reweigh the evidence in order to replace the trial court's judgment with its own; rather, an appellate court must determine whether the judgment is plainly and palpably wrong and, if it is not, affirm it. Gamble. The trial court was presented with evidence of two important changes in the circumstances of the parties that had occurred since their divorce; we will address both of those changes. There is evidence that the mother had expressed feelings for G.S. just before the divorce and that the father was aware of this. There is evidence that, when the mother subsequently moved into a three-bedroom apartment with G.S. and the child, she represented to the father that she and G.S. would not share a room and would represent themselves to be roommates. However, the mother and G.S. subsequently established an open lesbian relationship, which they explained to the child and which they demonstrate with affection in the presence of the child on a regular basis. The mother has testified that she has not had any significant concern about the adverse effect her transformation from a married heterosexual to a committed homosexual could have on the child. The mother has repeatedly denied that the child will suffer any ill effects from the mother's choice of lifestyle; however, the mother has also testified that it will be up to the child to cope with any ridicule or prejudice that the child might suffer as she gets older, because, she said, "all children have to cope with prejudice anyway." The mother and G.S. have homosexual couples as guests in their home, and the evidence suggests that the child believes that "girls can marry girls." Both the mother and G.S. have testified that they would not discourage the child from adopting a homosexual lifestyle. In short, the mother and G.S. have established a two-parent home environment where their homosexual relationship is openly practiced and presented to the child as the social and moral equivalent of a heterosexual marriage.[3] The trial court also heard evidence indicating that the father is no longer a single parent, but has now established a happy marriage with a woman who loves the child, assists in her care, and has demonstrated a commitment to sharing the responsibility of rearing the child should the father gain custody of her. The child has consistently expressed love for the stepmother and acceptance of her as a parental figure. The father and the stepmother have a house with ample room for the child, and they are able to provide for her material needs, as well as her emotional and physical needs. In short, the father and the stepmother have established a two-parent home environment where heterosexual marriage is presented as the moral and societal norm. The trial court had before it a number of scientific studies as to the effect of child-rearing by homosexual couples, and much of the information presented by those studies suggests that a homosexual couple with good parenting skills is just as likely to successfully rear a child as is a heterosexual couple.[4] The trial court was also presented with studies *1196 indicating that a child reared by a homosexual couple is more likely to experience isolation, behavioral problems, and depression and that the optimum environment for rearing a child is one where both a male and a female role model are present, living together in a marriage relationship. There was evidence that the child displayed conduct that gave her father cause for concern. After carefully considering all of the evidence, we simply cannot hold that the trial court abused its discretion in determining that the positive good brought about by placing the child in the custody of her father would more than offset the inherent disruption brought about by uprooting the child from her mother's custody. While the evidence shows that the mother loves the child and has provided her with good care, it also shows that she has chosen to expose the child continuously to a lifestyle that is "neither legal in this state, nor moral in the eyes of most of its citizens." Ex parte D.W.W., 717 So. 2d 793, 796 (Ala.1998).[5] The record contains evidence from which the trial court could have concluded that "[a] child raised by two women or two men is deprived of extremely valuable developmental experience and the opportunity for optimal individual growth and interpersonal development" and that "the degree of harm to children from the homosexual conduct of a parent is uncertain... and the range of potential harm is enormous." Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. Ill. L.Rev. 833, 895 (1997). While much study, and even more controversy, continue to center upon the effects of homosexual parenting, the inestimable developmental benefit of a loving home environment that is anchored by a successful marriage is undisputed.[6] The father's circumstances have changed, and he is now able to provide this benefit to the child. The mother's circumstances have also changed, in that she is unable, while choosing to conduct an open cohabitation with her lesbian life partner, to provide this benefit. The trial court's change of custody based upon the changed circumstances of the parties was not an abuse of discretion; thus, the Court of Civil Appeals erred in reversing the trial court's judgment. We note that the mother raised before the Court of Civil Appeals the issue whether the restrictions the trial court placed upon her visitation rights are unsupported by the evidence or are otherwise improper. The Court of Civil Appeals pretermitted any consideration of that issue, based upon its reversal of the order changing custody. Because the Court of Civil Appeals has not yet addressed that issue, it is not in a reviewable posture before us. The judgment of the Court of Civil Appeals is reversed and the cause is remanded for that court to enter a judgment affirming the trial court's order insofar as it changes custody and to consider the issue regarding the restrictions placed upon the mother's visitation rights. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, ALMON, and HOUSTON, JJ., concur. KENNEDY and SEE, JJ., concur in the result. [1] The record contains no evidence indicating that the mother and G.S. have displayed any sexual activity in the presence of the child, other than hand-holding and kissing that is not prolonged. [2] Because the standard applicable in a change-of-custody case arising from heterosexual misconduct does not apply in this case, the Court of Civil Appeals'"adoption" of that standard for cases involving homosexual misconduct of the custodial parent is dictum. [3] Act 98-500, Ala. Acts 1998, approved by the Governor on May 1, 1998, forbids the issuance of a marriage license "in the State of Alabama to parties of the same sex" and provides that the State of Alabama "shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred" anywhere else. [4] We note that there has been criticism of the methods by which the results of these studies are reached, based upon substantial methodological and analytical flaws. See Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. Ill. L.Rev. 833, 845 (1997), citing Philip A. Belcastro et al., A Review of Data Based Studies Addressing the Affects of Homosexual Parents on Children's Sexual and Social Functioning, 20 J. Divorce & Remarriage 105, 110 (1993). [5] Under Ala.Code 1975, § 13A-6-65, it is a Class A misdemeanor to engage in consensual "deviate sexual intercourse with another person"; this statute was specifically altered by the legislature from the original draft of the "Alabama Criminal Code" proposed to the legislature, so as "to make all homosexual conduct criminal." See Commentary to § 13A-6-65 and § 13A-1-1. In addition, Alabama has established that "[c]ourse materials and instruction" in the public schools "that relate to [sex] education" shall emphasize, "in a factual manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under the laws of the state." Ala.Code 1975, § 16-40A-2(c)(8). [6] "The institution of marriage has played a critical role both in defining the legal entitlements of family members and in developing the decentralized structure of our democratic society. In recognition of that role, and as part of their general overarching concern for serving the best interests of children, state laws almost universally express an appropriate preference for the formal family." Lehr v. Robertson, 463 U.S. 248, 256-57, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983).

June 19, 1998

4c328a4f-0a65-4ede-ae5e-ef6895e87ef0

Ex Parte Clark

728 So. 2d 1126

1951368

Alabama

Alabama Supreme Court

728 So. 2d 1126 (1998) Ex parte Andrew Bert CLARK. (Re Andrew Bert Clark v. State). 1951368. Supreme Court of Alabama. May 15, 1998. *1127 Charles D. Decker, Dothan, for petitioner. Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent. COOK, Justice. We granted Andrew Bert Clark's petition for the writ of certiorari to review his capital murder conviction and his sentence of death by electrocution. Clark was convicted of murder made capital pursuant to § 13A-5-40(2), Ala.Code 1975, because the murder occurred during the commission of a first degree robbery. Following a sentencing hearing, the jury, by a 9 to 3 vote, recommended that Clark be sentenced to life imprisonment without parole. The trial judge, pursuant to the authority given him by § 13A-5-47(e), overrode *1128 the jury's recommendation of life without parole and sentenced Clark to death by electrocution. The Court of Criminal Appeals affirmed Clark's conviction and sentence, and, in its opinion, set forth the following facts: Clark v. State, 728 So. 2d 1117 (Ala.Cr.App. 1996). In affirming Clark's conviction and sentence, the Court of Criminal Appeals addressed the following issues: whether the trial judge erred in denying Clark's motion for recusal; whether the trial court erred in refusing to strike a prospective juror for cause; whether the trial court erred in allowing photographs of Posey's body into evidence; whether the trial judge erred in failing to instruct the jury on the lesser included offense of manslaughter; and whether there was sufficient evidence to convict Clark of capital murder. The Court of Criminal Appeals adequately addressed these issues in its opinion and we, therefore, adopt the reasoning and holding of the Court of Criminal Appeals on those issues as part of the opinion of this Court. We will address the following additional issues raised by Clark in this Court. Clark contends that the prosecutor impermissibly directly and indirectly referred to the fact that Clark did not testify at the trial. Clark argues that during closing arguments the prosecutor made a direct reference to his failure to testify, when the prosecutor told the jury: R.T. at 917. Clark argues that this comment directly referred to his failure to testify at trial and, consequently, was reversible error. The record indicates that the comment made by the prosecutor during closing arguments was made after the following comment made by the defense: R.T. at 912-13. The defendant did not object at trial to the prosecutor's statement during closing argument. This Court has written: Ex parte Payne, 683 So. 2d 458, 465 (Ala. 1996). *1130 In Ex parte Brooks, 695 So. 2d 184 (Ala. 1997), this Court wrote: 695 So. 2d at 188-89. The statement made by the prosecutor in this case was clearly in response to the earlier comment made by defense counsel. The prosecutor's statement was, in our opinion, an attempt to clarify the type of evidence the State had offered during the trial. While the prosecutor's comment indirectly referred to the fact that the defendant did not take the stand to testify, the statement, "viewed in the context of the evidence presented in the case and the entire closing arguments made to the juryboth defense counsel's and the prosecutor's," did not constitute plain error. Clark also submits that the prosecutor's statements during the trial that Clark exhibited no remorse were also indirect references to his failure to testify and should mandate a reversal of his conviction. We disagree. The statements, made during closing arguments of the guilt phase of the trial, were as follows: R.T. at 874. R.T. at 881. Neither of these comments was objected to; thus, they are subject to review for plain error. See Kuenzel v. State, 577 So. 2d 474, 481-82 (Ala.Cr.App.1990), aff'd, 577 So. 2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991). In Harris v. State, 632 So. 2d 503, 536 (Ala.Cr.App. 1992), the Court of Criminal Appeals held that a reference to the defendant's lack of remorse during the sentencing stage of the trial was not improper because, it said, the comment Likewise, in Dobyne v. State, 672 So. 2d 1319 (Ala.Cr.App.1994), the Court of Criminal Appeals held that a prosecutor's comment, during the sentencing phase of the trial, on the defendant's lack of remorse was a comment "on the appellant's demeanor when he made his statement to police." 672 So. 2d at 1349. Although the comments made by the prosecutor in Clark's case were made during the guilt phase of the trial, we find no error. The second comment clearly was a proper inference drawn from the defendant's actions following the murder. The first comment was a reference to the defendant's demeanor. Neither comment constituted plain error. Clark argues that the trial judge erred by not suppressing statements Clark made to Headland police officer Lynnwood Stokes. Clark contends that he made these statements without having been properly advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). At trial, Stokes testified that he read Clark his rights on April 21, 1994, before taking a taped statement from Clark. Stokes, however, testified that Clark had made incriminating statements to him on April 19 after having been transported from Montana to Headland, Alabama. While Stokes did testify that Clark had been advised of his rights on April 17 by another *1132 officer, Clark contends that Stokes did not set forth the Miranda warnings with sufficient clarity to overcome the presumption of inadmissibility. See Ex parte Johnson, 620 So. 2d 709 (Ala.1993), citing Swicegood v. State, 50 Ala.App. 105, 277 So. 2d 380 (Ala.Cr. App.1973). Furthermore, Clark argues that the length of time between any Miranda warnings given to him on April 17 in Montana and incriminating statements made by him on April 19, in Alabama, was significant and, therefore, rendered his statements inadmissible. The statements Clark now challenges were made pursuant to conversations with Lt. Stokes, which were initiated by Clark. Worthington v. State, 652 So. 2d 790, 792-93 (Ala.Cr.App.1994). The court did not err in admitting Clark's statements into evidence. Clark argues that the State was impermissibly allowed to present evidence of extraneous crimes allegedly committed by Clark. He contends that the evidence of these crimes was irrelevant to the present crime for which he was accused and was highly prejudicial. Specifically, Clark complains that the prosecutor stated during opening arguments: R.T. at 488. Clark also argues that the following testimony given by Henry County District Judge Woodham was irrelevant to the facts of the case, was highly prejudicial, and, therefore, was erroneously admitted: R.T. 525-27. This testimony, Clark contends, brought two extraneous crimes to the attention of the jury and magnified their importance because Clark, as a consequence of those crimes, was banished from Henry and Houston Counties except for a brief period when he was allowed to return to consult with his attorney. Clark did not object to the testimony of Judge Woodham. Any error, therefore, is subject to review pursuant to the plain error rule. Guthrie v. State, 616 So. 2d 914, 922 (Ala.Cr. App.1993). The State contends that the evidence indicating that Clark had committed collateral crimes was both relevant and necessary to establish the facts in this case and that it was admissible as an exception to the exclusionary rule. In particular, the State submits that the fact that Posey posted Clark's bond is a relevant fact necessary to show the relationship between the accused and the victim before the murder. Furthermore, the State argues that the fact that Clark was "banished" from Henry and Houston Counties was relevant because his initial arrest in Montana was based on a violation of that order. We agree. We note that the State was not allowed to introduce evidence directly related to the other crimes allegedly committed by Clark, only evidence that Clark had been released into Posey's custody after Posey had posted Clark's bond and that Clark's arrest in Montana was based on a violation of a release order. Both facts were logically relevant to the case. Clark argues that the trial judge improperly denied a continuance to allow him additional time to obtain his mental health records from Charter Woods Hospital. On April 7, 1995, ten days before the trial, the defendant filed a motion for a continuance, wherein he stated: C.R. at 84. The defendant's medical records had been subpoenaed from Charter Woods Hospital in Dothan, Alabama, at the time of the sentencing hearing; however, Charter Woods had refused to comply with the subpoena. The lack of this evidence, Clark contends, caused the trial judge not to give proper weight to the mitigating factors offered by the defendant. The result, Clark claims, was that the trial judge overrode the jury's recommendation of life imprisonment without parole. In particular, Clark contends that the continuance requested would have allowed him to provide important evidence indicating that he had been severely abused as a child and that his mental and/or emotional problems should have been given considerable weight as mitigating factors. Fortenberry v. State, 545 So. 2d 129, 138 (Ala. Cr.App.1988). In denying the motion for a continuance, the trial court stated, "Well, I will deny the motion to continue. The case has been pending a year.... [T]here is nothing the State has done or any outside set of circumstances that's caused it. It's been his hesitancy to provide this information." *1135 C.R. at 20. We agree with the trial court that any delay in obtaining Clark's mental health records was caused by Clark's own refusal to divulge their existence to his counsel. Thus, the trial court did not abuse its discretion in refusing a continuance. Clark also claims that the trial court erred in failing to instruct the jury with regard to the lesser included offenses of robbery and felony murder. He first argues that the jury could have determined that the evidence supported a finding that Clark committed a first degree robbery, but did not intend to murder Posey, i.e., that the jury could have found him guilty of felony murder. The refusal of the trial judge to charge the jury with regard to this lesser included offense, Clark claims, resulted in his unwarranted conviction for capital murder. The judge's failure to charge the jury with regard to felony murder is subject to review under the plain error rule. Based on our review of the record, we conclude that a conviction of felony murder would have been inconsistent with the evidence presented at trial because "[t]he [victim's death was] not `unintended [death] caused by [the defendant's] dangerous conduct.'" Taylor v. State, 666 So. 2d 36, 55 (Ala.Cr.App.1994) (citations omitted). Clark maintained at trial that he could not be guilty of capital murder because, although he said he did commit the murder, he did not rob the victim. Clark's attorney stated in closing argument: R.T. at 891-93. Thus, Clark admitted to the murder, but claimed that he did not rob Posey. Based on the evidence offered at trial, a jury charge on felony murder would have been inappropriate. For the same reasons, the trial court's failure to give a jury instruction on the lesser included offense of robbery was also not plain error. Citing Ex parte Weaver, 678 So. 2d 284 (Ala.1996), Clark argues that the trial judge's instruction on flight led the jury to believe that the only conclusion that could be drawn from Clark's flight was that Clark was guilty. The trial judge gave the following instruction to the jury regarding flight: R.T. at 950. Clark argues that at the time the murder was committed he was under a court order not to be in Henry or Houston County and that the jury could have inferred *1136 that he was simply complying with the court order rather than fleeing to escape prosecution. This Court discussed the law regarding flight in Ex parte Jones, 541 So. 2d 1052 (Ala.1989): 541 So. 2d at 1055-57. (Citations omitted; some emphasis added.) This material quoted from Ex parte Jones has also been quoted in Rogers v. State, 630 So. 2d 88, 90-92 (Ala. 1992). The facts of Weaver are distinguishable from the facts of this case. In Ex parte Weaver, the defendant Weaver murdered the victim in December 1989 and left the state in September 1990. When Weaver left the state, he was not aware that he was under suspicion for the crime for which he was later accused. Clark, on the other hand, left the state almost immediately after the crime and traveled extensively, using the victim's automobile and credit cards. The immediacy of his departure, coupled with his attempt to take money from Posey's account before that departure, clearly, in our opinion, made flight pertinent for the jury to consider. Clark argues that the trial court erred in finding, as an aggravating circumstance, that the murder was "especially heinous, atrocious or cruel." § 13A-5-49(8), Ala.Code 1975. For the following reasons, we agree. In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the Supreme Court of the United States held that the application of certain state death penalty *1138 statutes violated the Eighth Amendment[1] to the United States Constitution as applied to the states through the Due Process Clause of the Fourteenth Amendment.[2] The Supreme Court held that those statutes' lack of principled standards to prevent the sentencing authority from arbitrarily and capriciously imposing capital punishment rendered the application of the sentencing scheme constitutionally infirm. E.g., id. at 310, 92 S. Ct. 2726 (Stewart, J., concurring); id. at 311, 92 S. Ct. 2726 (White, J., concurring). Since Furman, many states have revised their death penalty statutes to require that the sentencing authority consider aggravating and mitigating circumstances, thus limiting the discretion of the sentencing authority. See Maynard v. Cartwright, 486 U.S. 356, 362, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988). The Supreme Court's post-Furman cases make it clear that to survive Eighth Amendment scrutiny, a factor used as an aggravating circumstance in a capital punishment statute must provide a "principled way to distinguish" cases in which the death penalty is appropriate from cases in which it is not. See, e.g., Godfrey v. Georgia, 446 U.S. 420, 433, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980). The Supreme Court has held that the "especially heinous, atrocious, or cruel" aggravating circumstance provides such a principled distinction only where the state appellate courts employ a consistent and narrow interpretation of that circumstance to channel the discretion of the sentencer. See Cartwright, 486 U.S. at 365-66, 108 S. Ct. 1853 (upholding the Oklahoma Court of Criminal Appeals' interpretation of the "especially heinous, atrocious, or cruel" aggravating circumstance to require, before a death sentence is imposed, a finding that the victim was tortured or was caused to suffer serious physical abuse). In Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir.1989), the United States Court of Appeals for the Eleventh Circuit upheld this Court's application of the "especially heinous, atrocious or cruel" aggravating circumstance[3] because this Court's application of it provided a "principled way to distinguish" cases in which the death penalty is appropriately imposed from cases in which it is not. Id. at 1513, 1515 (upholding our application of Ala. Code 1975, § 13A-5-49(8) and quoting Godfrey, 446 U.S. at 431, 100 S.Ct. 1759). The Eleventh Circuit emphasized that the Alabama appellate courts' interpretation of § 13A-5-49(8) passed muster under the Eighth Amendment because this Court and the Court of Criminal Appeals had consistently defined "especially heinous, atrocious or cruel" to include only "those conscienceless or pitiless homicides which are unnecessarily torturous to the victim." Lindsey v. Thigpen, at 1514 (quoting Ex parte Kyzer, 399 So. 2d 330, 334 (Ala.1981)) (emphasis added). In Bush v. State, 695 So. 2d 70 (Ala.Cr.App. 1995), affirmed, Ex parte Bush, 695 So. 2d 138 (Ala.1997), the Court of Criminal Appeals addressed the defendant Bush's argument that his crime, an execution-style murder, was not "especially heinous, atrocious or cruel" and that the trial court therefore erred in finding the aggravating circumstance: 695 So. 2d at 84. In Bush, the trial court made the following findings in its sentencing order: Bush v. State, 695 So. 2d at 84-85 (emphasis added). This Court has affirmed findings that certain "execution style" murders were "especially heinous, atrocious or cruel." See, Rieber v. State, 663 So. 2d 985, 992-93 (Ala.Cr. App.1994), aff'd, 663 So. 2d 999 (Ala.1995) (the victim had been stalked by the defendant before the murder; the victim was very much afraid of the defendant; she was robbed and was shot in the wrist and then in the head; she was alive when she was found, but subsequently died); Wright v. State, 494 So. 2d 726, 744 (Ala.Cr.App.1985), aff'd, 494 So. 2d 745 (Ala.1986) (trial court found that the two victims were murdered "in order that they would not be witnesses" and that they "were each shot in the head [and] slowly died in a pool of blood"); Lawhorn v. State, 581 So. 2d 1159, 1174 (Ala.Cr.App.1990), aff'd, 581 So. 2d 1179 (Ala.1991) (victim was run down and was "confronted with the barrel of a shotgun in his face"; he was shot and shot again after getting back up; he was then shot three times while lying on the ground "trapped and making gurgling noises"). In those cases cited here, the victims were aware of what was happening to them. The victim in this case sustained five shots to the back and the head, with a final sixth shot behind the ear. Although the prosecution *1140 tried to imply during the trial that the victim had tried to "run for the woods" (R.T. at 875), the record indicates that whether Posey was in fact even conscious and aware after the initial shots were fired would be a matter of mere speculation. Dr. Alfredo Paredes testified on cross-examination: R.T. at 621-25. The State urges us to hold that the "execution-style" murder in this case, for which the record does not reflect torture of the victim, is nonetheless "especially heinous, atrocious or cruel." Such an expansion of the aggravating circumstance set out in § 13A-5-49(8) to encompass a murder not involving torture, merely because the State labels the murder an "executionstyle" slaying would abandon the very interpretation that the Eleventh Circuit held critical to the constitutional application of that aggravating circumstance. Indeed, the Supreme Court of the United States has held that a state supreme court's failure to apply its previously recognized limiting construction of an aggravating circumstance, which required a finding of torture or aggravated battery of the victim, rendered the application of the aggravating circumstance unconstitutional. Godfrey, 446 U.S. at 429, 432, 100 S. Ct. 1759. We cannot depart from the established meaning of the words enacted by the Legislature *1141 "especially heinous, atrocious or cruel"and apply those words to include murders that do not involve the infliction of torture on the victim.[4] Such a departure would abandon the essential characteristic that made our previous applications of § 13A-5-49(8) compatible with the Eighth Amendment. We are bound to retain the interpretation of "especially heinous, atrocious or cruel" that has provided a consistent and principled distinction between those murders for which the death sentence is appropriate and those for which it is not. See Cartwright, 486 U.S. at 363, 108 S. Ct. 1853; Godfrey, 446 U.S. at 433, 100 S. Ct. 1759. We agree that this murder, like all murders, is a terrible crime; nevertheless, given our consistently applied narrow interpretation of the phrase "especially heinous, atrocious or cruel," we cannot hold that this murder was, in comparison, "especially heinous, atrocious or cruel." After thoroughly reviewing the record and considering the issues raised, we find no reversible error as to Clark's conviction of capital murder. As to the conviction, the judgment of the Court of Criminal Appeals is affirmed. As discussed in Part VII of this opinion, however, the principles established by the federal courts mandate that we reverse as to the sentence and remand this case for the Court of Criminal Appeals to direct the trial court to reconsider all aggravating and mitigating circumstances, excluding the aggravating circumstance set out in § 13A-5-49(8), in determining whether the death sentence is appropriate in this case. AFFIRMED AS TO THE CONVICTION; REVERSED AS TO THE SENTENCE; AND REMANDED. MADDOX, SHORES, HOUSTON, KENNEDY, SEE, and LYONS, JJ., concur. HOOPER, C. J., concurs in part and dissents in part. HOOPER, Chief Justice (concurring in part and dissenting in part). I agree with the majority that Clark's conviction is due to be affirmed, but I cannot agree that this murder was not especially heinous, atrocious, or cruel. I am aware of the constitutional limits on the use of this aggravating circumstance, but I believe that Clark's actions were indeed heinous. It is undisputed that Clark shot his victim six timesthree times in the chest, three times in the headwith the final shot to his victim's brain clearly intended to be the coup de grace stilling him permanently. I would find that Clark's acts evince a disregard of human life and of the suffering of his victim great enough to constitute a particularly heinous, atrocious, or cruel crime properly punishable by the death penalty. [1] The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." [2] The Due Process Clause provides: "No State shall ... deprive any person of life, liberty, or property, without due process of law...." The Supreme Court of the United States has held that the Due Process Clause makes the Eighth Amendment's prohibition against cruel and unusual punishments applicable to the states. See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 374, 91 L. Ed. 422 (1947). [3] Ala.Code 1975, § 13A-5-49 (1994 repl. vol.), provides in pertinent part: "Aggravating circumstances shall be the following: ". . . . "(8) The capital offense was especially heinous, atrocious or cruel compared to other capital offenses." [4] Unlike the Alabama Legislature, the Florida Legislature has amended its death penalty statute to include a distinct aggravating circumstance for "cold, calculated, and premeditated" murders. Fla. Stat. Ann. § 921.141(5)(i) (West 1998). We note that execution-style murders generally implicate the "cold, calculated, and premeditated" aggravating circumstance, not the "heinous, atrocious, or cruel" circumstance. Hartley v. State, 686 So. 2d 1316, 1323 (Fla.1996) (discussing Fla. Stat. Ann. § 921.141(5)(i) and (h)), cert. denied, ___ U.S. ___, 118 S. Ct. 86, 139 L. Ed. 2d 43 (1997).

May 15, 1998

20ffc94f-002f-4989-995f-24b12813ec86

Ex Parte City of Gadsden

718 So. 2d 716

1970523

Alabama

Alabama Supreme Court

718 So. 2d 716 (1998) Ex parte The CITY OF GADSDEN and Brent Brewer. (In re The CITY OF GADSDEN and Brent Brewer v. Layne K. LAWDER). 1970523. Supreme Court of Alabama. June 5, 1998. *717 H. Edgar Howard of Ford & Associates, P.C., Gadsden, for petitioners. Thomas E. Davis, Gadsden, for respondent. Joseph Kettler, asst. league counsel, Alabama League of Municipalities, for amicus curiae Alabama League of Municipalities, in support of the City of Gadsden. HOUSTON, Justice. The City of Gadsden prosecuted Layne K. Lawder for plumbing without a license, in violation of a city ordinance. The municipal court convicted Lawder of the charge; however, Lawder appealed to the Etowah Circuit Court, where a jury found him not guilty. Lawder then sued the City and Brent Brewer, the City's plumbing inspector, seeking damages based on allegations of malicious prosecution on the part of Brewer and fraud on the part of Brewer and the City. A jury returned a verdict in favor of Lawder and against Brewer on the malicious prosecution claim and a separate verdict against both the City and Brewer on the fraud claim. The jury awarded $20,000 in compensatory damages and $10,000 in punitive damages for malicious prosecution, and $50,000 in compensatory damages for fraud; the trial court entered a judgment on those verdicts. The City and Brewer appealed to this Court, which transferred the appeal to the Court of Civil Appeals, pursuant to Ala.Code 1975, § 12-2-7(6). The Court of Civil Appeals, with one judge concurring in the result and one judge dissenting, affirmed the judgment. See Brewer v. Lawder, 718 So. 2d 707 (Ala. 1997), for a better understanding of the circumstances surrounding this case. We granted the City and Brewer's petition for certiorari review to consider whether the Court of Civil Appeals erred in holding that the evidence was sufficient to submit the malicious prosecution and fraud claims to the jury. We reverse and remand. The following pertinent facts, as set out in the opinion of the Court of Civil Appeals, are undisputed: 718 So. 2d at 710. In addition to these facts, we note that the record indicated, without dispute, that Brewer discussed Lawder's work with Brian Harbison, Brewer's supervisor, and that Harbison instructed him to obtain a warrant for Lawder's arrest. The malicious prosecution claim was based on allegations that Brewer lacked probable cause to have Lawder arrested. Lack of probable cause is an essential element of a cause of action for malicious prosecution, see S.S. Kresge Co. v. Ruby, 348 So. 2d 484 (Ala.1977), and it was incumbent upon Lawder to present clear evidence to overcome the presumption of probable cause that was created when the municipal court convicted him of violating the City's ordinance. See Kmart Corp. v. Perdue, 708 So. 2d 106 (Ala.1997); Delchamps, Inc. v. Larry, 613 So. 2d 1235 (Ala.1992); Gunter v. Pemco Aeroplex, Inc., 646 So. 2d 1332 (Ala.1994) (a conviction is prima facie evidence of probable cause for initiating the prosecution, even if the conviction is later overturned). "This Court has defined the term `probable cause' as that term is used in malicious prosecution actions as `such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.'" Delchamps, Inc. v. Morgan, 601 So. 2d 442, 445 (Ala.1992), quoting Birwood Paper Co. v. Damsky, 285 Ala. 127, 134, 229 So. 2d 514, 521 (1969). Brewer contends that whether he had probable cause to have Lawder arrested was contingent on whether he reasonably could have believed that Lawder had committed a crime. The City's ordinance stated: According to Brewer, he based his decision to have Lawder arrested on his interpretation of Ala.Code 1975, § 34-37-15, which the City had incorporated into its ordinance, and which, at the time this problem arose, provided in pertinent part: (Emphasis added.) Brewer interpreted this statute as prohibiting any kind of plumbing by an unlicensed property owner, on the outlet side of a trap, that would eventually have to be tied into the City's waste or sewer lines. Lawder took the position that no violation could have occurred under the statute until he had actually tied his plumbing into the city waste and sewer lines. The evidence indicated that Lawder had installed a PVC pipe, although he had not connected it to any appliance. *719 The evidence also indicated that no "trap" (a p-trap, installed under a sink to form a water seal) had been installed; therefore, Lawder insisted that his work could not have been on the outlet side of a trap, which, he argued, was necessary to constitute a violation of the statute. The trial court agreed with Lawder's interpretation and concluded, as did the Court of Civil Appeals, that a jury question was presented as to whether Brewer reasonably could have believed that Lawder had committed a crime. Brewer contends, however, that all of the pertinent facts surrounding his decision to have Lawder arrested were undisputed and that, because the question of probable cause centered around his interpretation of a statute, it was one for the court, not the jury. The record indicates that there were no material facts in dispute concerning the nature or the extent of Lawder's plumbing work. The primary dispute concerned whether Lawder had violated § 34-37-15. Under these circumstances, the question whether the facts constituted probable cause was one of law for the court and not an issue for the jury to decide. Delchamps, Inc. v. Larry, supra; Gulf States Paper Corp. v. Hawkins, 444 So. 2d 381 (Ala.1983). We note that both Brewer and Lawder spent a great deal of time arguing to the trial court that his own interpretation of § 34-37-15 was the correct one. They have made the same arguments to this Court. Indeed, the interpretation of the statute is certainly a central issue in this case, for if the statute meant what Brewer says it meant, then, as a matter of law, Brewer had probable cause to have Lawder arrested. However, we find it unnecessary to interpret § 34-37-15, which, as we have noted, has since been amended. See n. 1, supra. The basic question here is not whether Lawder was in fact guilty of plumbing without a license, in violation of the City's ordinance and § 34-37-15, but whether Brewer reasonably could have believed that he was, i.e., whether Brewer could have entertained an honest and strong suspicion that Lawder was in violation of the law. See Delchamps, Inc. v. Larry, supra; Kmart Corp. v. Perdue, supra. After examining the record, the briefs, and the statute, we conclude that even if the statute meant what Lawder says it meant, Brewer still had probable cause to have Lawder arrested. The statute provided that plumbing work by an unlicensed property owner was legal, but only if the work did not "necessitate tying into waste or sewer lines on the outlet side of a trap." "Necessitate" is defined as "to make necessary." Webster's Collegiate Dictionary (10th ed.1997). "Necessary" is defined as "of an inevitable nature; logically unavoidable; absolutely needed." Id. Assuming, without deciding, that the statute was ambiguous, we nonetheless conclude that Brewer's interpretation of it (i.e., that it prohibited any kind of plumbing by an unlicensed property owner, on the outlet side of a trap, that would eventually have to be tied into the City's waste or sewer lines) was entirely reasonable, notwithstanding the fact that a court, or even the Legislature, might ultimately reach a different conclusion as to its meaning. The undisputed facts in this case indicated that Lawder's plumbing work (which consisted of permanent drainage, waste, or vent piping) would have been on the outlet side of a trap once Lawder had installed the trap, and that the plumbing he had installed eventually would have had to be tied into the City's waste or sewer lines in order to be functional. Brewer testified that it would be impossible to install a p-trap without the prior installation of the kind of piping Lawder had installed. Brewer's interpretation of the statute was approved by his supervisor, who instructed him to secure the arrest warrant. We hold, based on the undisputed facts, that Brewer reasonably could have believed that Lawder had committed a crime by doing plumbing work without a license (or without hiring a licensed plumber) and without a permit, and, therefore, that Lawder failed to present sufficient evidence to overcome the presumption of probable cause that resulted from his municipal court conviction. The trial court erred to reversal in submitting the malicious prosecution claim to the jury. The fraud claims were based on allegations that Brewer had made a false representation *720 to Lawder in his January 10, 1992, letter. That letter stated: Brewer testified that he intended to have Lawder arrested if he did not within 10 days become a licensed plumber and secure a permit or hire a licensed plumber and secure a permit. Over the objections of Brewer and the City, the trial court submitted Lawder's fraud claims (based on allegations of mistaken and reckless misrepresentation) to the jury, on the basis of Lawder's argument that the letter created the false impression that if he ceased work on his plumbing no legal action would be taken against him. It was this false impression, Lawder says, that constituted the false representation as to Brewer's intentions. According to Lawder, the false representation was of a material, existing fact that fact being Brewer's intention to have Lawder arrested if he did not within 10 days become a licensed plumber and secure a permit or hire a licensed plumber and secure a permit. Lawder has reiterated that argument in this Court. Brewer and the City contend that even if the letter could have led Lawder to believe that stopping work would insulate him from prosecution, Lawder's allegations of fraud were nonetheless promissory in nature, involving a future acta promise not to prosecute. They argue that the evidence could not support a verdict on the mistaken and reckless misrepresentation claims (because Lawder's allegations of fraud were actually promissory in nature and, thus, sought recovery for an intentional tort), and that the City could not be liable for an intentional tort, as a matter of law. A false representation is an essential element of a fraud claim. P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928 (Ala.1985). Finding sufficient evidence of a false representation, the Court of Civil Appeals held as follows: 718 So. 2d at 712. We question the holding of the Court of Civil Appeals that the letter, read reasonably, could have led Lawder to believe that if he ceased work he would not be prosecuted;[2] however, we are convinced that Lawder's allegations of fraud can only be characterized as promissory in nature, that is, they allege that the City, through Brewer, had promised in the January 10, 1992, letter not to prosecute Lawder if he would stop his plumbing work immediately. We note that even if, as Lawder argues, the January 10, 1992, letter is characterized as containing a false representation as to the City's existing legal position, Lawder's claim is nonetheless based on allegations that Brewer falsely represented in the letter that he would abstain from some act in the futureprosecuting Lawder. Such a claim is unquestionably one of promissory fraud. See Cabnetware, Inc. v. Birmingham Saw Works, Inc., 614 So. 2d 1034 (Ala.1993) (defining promissory fraud). Promissory fraud is an intentional species of fraud, requiring proof of an intent to deceive. Section 11-47-190, Ala.Code 1975, absolves a city from liability for an intentional tort committed by one of its agents, including a tort such as promissory fraud. Altmayer v. City of Daphne, 613 So. 2d 366 (Ala.1993). Based on the above, we hold that the trial court erroneously submitted Lawder's fraud claims to the jury. The judgment of the Court of Civil Appeals is reversed and the case is remanded. REVERSED AND REMANDED. MADDOX, ALMON, SEE, and LYONS, JJ., concur. HOOPER, C.J., concurs in the result. KENNEDY, J., dissents. [1] This section was amended by Ala. Acts 1992, Act No. 92-182. It now provides, in pertinent part, as follows: "(a) The following acts, work, and conduct may be performed by anyone, without [a] license or certificate ...: "(1) Plumbing work done by a property owner in or about a building owned or occupied by him or her." [2] The letter informed Lawder that he was "in direct violation of local and state plumbing codes"; that he either had to become a licensed plumber and secure a permit or hire a licensed plumber and secure a permit; that he had to "stop work" until he met the requirements for becoming a licensed plumber and secured a permit or hired a licensed plumber and secured a permit; and that he had 10 working days "to make the necessary corrections" in order to avoid legal action. The words "to make the necessary corrections" appear to refer to Brewer's admonition to Lawder earlier in the letter to comply with the local and state plumbing laws by becoming a licensed plumber himself and securing a permit or by hiring a plumber and securing a permit.

June 5, 1998

de5c2d63-3a9c-4f96-a4b3-9df2cb395b49

State v. Alabama Mun. Ins. Corp.

730 So. 2d 107

1961555

Alabama

Alabama Supreme Court

730 So. 2d 107 (1998) STATE of Alabama, et al. v. ALABAMA MUNICIPAL INSURANCE CORPORATION, et al. 1961555. Supreme Court of Alabama. May 22, 1998. Rehearing Denied February 19, 1999. Jeff Long, asst. atty. gen.; and John M. Johnson, Madeline H. Haikala, and Robin H. *108 Graves of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellants. Richard A. Ball, Jr., and Fred B. Matthews of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellees. MADDOX, Justice. This appeal involves a question of the constitutionality of Alabama statutes that create tax credits in favor of insurance companies that issue property and casualty insurance policies. Eight insurance companies contend that §§ 27-4A-3(a)(3)d.1. and d.2., Ala.Code 1975, which create tax credits that result in a reduction of the insurance premium tax, are discriminatory when applied and that they, therefore, violate §§ 1 and 35 of the Alabama Constitution of 1901 and/or the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The parties raise the following specific questions: In the early 1980s, a group of foreign insurance companies challenged the constitutionality of the insurance premium tax then in effect, on the grounds that it violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The tax scheme then in effect imposed either a 3% or a 4% premium tax on an out-of-state insurer, depending on the kind of insurance the company sold, but only a 1% tax on a domestic insurer, without regard to the kinds of insurance the domestic company sold. Although the Alabama statutes then applicable allowed for the reduction of the tax rate on foreign insurers if those companies met certain requirements (e.g., investing a percentage of their assets in Alabama), there was no method under the old taxing scheme for a foreign insurer to achieve parity with a domestic insurer on the tax rate charged on premium collections. Alabama's old taxing scheme was challenged on constitutional grounds in Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 105 S. Ct. 1676, 84 L. Ed. 2d 751 (1985). The United States Supreme Court held that Alabama's insurance premium taxing scheme was unconstitutional, on the ground that it discriminated against foreign insurers. After the Supreme Court rendered its decision in Ward, the out-of-state insurance companies involved in that case entered into a settlement with the State. Under the terms of the settlement agreement, the out-of-state companies, as plaintiffs, consented to the dismissal of their action in exchange for legislation that would redesign the tax system relating to the insurance premium tax. Accordingly, the Legislature enacted the Insurance Premium Tax Reform Act of 1993 (the "Act") (Act No. 93-679, Ala. Acts 1993; codified at Ala.Code 1975, § 27-4A-1 to -7); that Act contains the sections that the eight plaintiffs in this case now challenge as violating both the State Constitution and the Federal Constitution. Because the Act made major revisions to the State's premium taxing scheme, we briefly describe how it was designed to be applied. The Act first provided that every insurer, whether foreign or domestic, is taxed at a rate of 3.6% on property and casualty insurance premium income. Despite the equalization of the basic premium tax rates under the new system, the plaintiffs filed this action in the Montgomery Circuit Court in March 1995, against the State and Michael DeBellis, insurance commissioner for the State of Alabama (collectively the "State"), charging that the new tax system violates the Fourteenth Amendment to the United States Constitution and §§ 1 and 35 of the Alabama Constitution. Specifically, they charged that two tax credits included in *109 the premium tax statute are discriminatory and, therefore, unconstitutional. The plaintiffs first challenged the tax credit designated as the "Alabama Insurance Office Facilities Credit" (the "Office Credit"), which provides for incremental reductions in an insurer's tax rate for each office that it operates within the state, with the amount of the reduction per office dependent on the number of employees working in that office.[1] The plaintiffs also challenged the tax credit designated as the "Alabama Real Property Investment Credit" (the "Property Credit"), which provides for incremental reductions in an insurer's tax rate based on the amount of investment in real property the insurer has made within Alabama.[2] The trial court held that the tax credit formula was unconstitutionally discriminatory because it was easier for larger companies with more offices and more employees to take advantage of the tax credit. The trial court specifically held: Because the trial court held that the two credits were integral to the premium taxation scheme, it held the entire premium tax unconstitutional and ordered refunds for the plaintiffs; it did not order refunds for similarly situated insurance companies, holding instead that its judgment was to be prospectively applied to all other such companies. *110 The trial court held that the challenged tax credits violated what it called the "equal protection" provisions of the Alabama Constitution, i.e., §§ 1 and 35, and accordingly did not reach the question whether they also violated the United States Constitution. The defendants appealed. We have carefully reviewed the briefs of the parties and have carefully considered the oral arguments. Based on the reasons discussed below, we reverse and remand. In our analysis of whether the challenged tax credits violate §§ 1 and 35 of the Alabama Constitution, we must first note that, as a general principle, acts of the legislature are presumed by this Court to be valid and that this Court "seek[s] to sustain rather than strike down the enactment of a coordinate branch of the government" and that it will not hold such an act unconstitutional "unless it is clear beyond reasonable doubt that [the act violates] the fundamental law." Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944). In McAdory, this Court also stated that when a court is passing upon the constitutionality of a legislative act, "questions of propriety, wisdom, necessity, utility, and expediency [of the act] are held exclusively for the legislative bodies, and are matters with which the [court has] no concern." 246 Ala. at 9, 18 So. 2d at 815. Regarding the taxing power, we also note that "`in taxation, even more than in other fields, legislatures possess the greatest freedom in classification.'" Thorn v. Jefferson County, 375 So. 2d 780, 786 (Ala.1979), quoting Madden v. Kentucky, 309 U.S. 83, 88, 60 S. Ct. 406, 84 L. Ed. 590 (1940). This Court has discussed the taxing power as follows: Haden v. Watson, 270 Ala. 277, 281, 117 So. 2d 694, 696 (1960). Similarly, as the Court of Civil Appeals has written: Barron-Leggett Elec., Inc. v. Department of Revenue, 336 So. 2d 1124, 1127 (Ala.Civ.App. 1976) (citations omitted). The burden the plaintiff must meet in showing that a taxation statute is unconstitutional is stringent. Thorn, 375 So. 2d at 787. The plaintiffs here urge this Court to apply the "means-ends" test of State ex rel. Galanos v. Mapco Petroleum, Inc., 519 So. 2d 1275 (Ala.1987), to the facts of this case. As the State correctly points out, this Court has not previously applied the "means-end" test to cases involving the constitutionality of taxation statutes. In Mapco, this Court enunciated a rule to be used in determining whether certain statutes violated the protections embodied in the Alabama Constitution. However, a review of Mapco makes it evident that this Court was not in that case formulating a test for determining whether taxation statutes were constitutional. In a thorough opinion, the Mapco Court examined the development of constitutional analysis of economic statutes, but it did not discuss the *111 long line of cases in which this Court has considered the constitutionality of taxation statutes. Further, in that section of Mapco where this Court set out the test described by some as the "means-ends" test, this Court introduced that test with the following: 519 So. 2d at 1284. Based upon our understanding of this Court's holding in Mapco, we can conclude only that in that case this Court did not overrule its long line of precedents governing our consideration of the constitutionality of taxing statutes. Having determined that we should not apply the Mapco test, we apply the principles this Court has previously applied in cases involving questions of the constitutionality of taxation statutes. Applying those principles, we conclude that it is not clear beyond a reasonable doubt that the tax credits at issue violate either the Alabama Constitution or the Federal Constitution. The plaintiffs have not shown that, because they are unable to take advantage of the tax credits, the application of the tax credits has produced an inequality that is "actually and palpably unreasonable and arbitrary." McAdory, 246 Ala. at 12, 18 So. 2d at 817. The statute in question imposes a flat premium tax rate on all insurers, foreign and domestic, without exception. The credits challenged are based on objective, clearly ascertainable criteria. Although we recognize that some companies are economically unable at this time to qualify for the credits, we must also recognize that their inability to qualify is a result of their own business decisions and their own economic performance. We are not unaware of the argument that some insurers are prevented from investing the maximum amount in Alabama real estate because their total assets are too low. However, we note that the conditions prevailing today are not necessarily constant. Those companies could grow and thus be able to invest more. We find persuasive the State's argument that the statute does not discriminate, in that it does not create classes of insurers to be treated differently from other classes. A statement of the Minnesota Supreme Court, in a case where it rejected an equal protection challenge to a taxing statute, could be applied in this case: John Hancock Mutual Life Ins. Co. v. Commissioner of Revenue, 497 N.W.2d 250, 254 (Minn.1993). In this present case, the insurance company taxpayers who meet the clear and objective criteria have been treated equally. A party challenging a tax statute as unconstitutionally discriminatory must show that the discrimination embodied in the taxing statute is unreasonable and must negate every factor offered as a reasonable basis supporting the classification. The plaintiffs have not met that heavy burden in this case; therefore, we reject the plaintiffs' argument that the challenged tax credits violate the provisions of the Constitution of Alabama. Although the trial court did not reach the question whether the challenged tax credits violate the Equal Protection Clause of the United States Constitution, we note that the federal constitutional issue was argued before this Court in the parties' briefs and at oral argument. Furthermore, if this case were remanded to the trial court for further consideration, that court would necessarily have to rule on the federal constitutional issue. Therefore, we have decided to address that issue now. When a court is analyzing the constitutionality of a taxation statute under Equal Protection Clause jurisprudence, the appropriate test for the court to apply is the "rational relationship" test. Western & Southern Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, 657, 101 S. Ct. 2070, 68 L. Ed. 2d 514 (1981). Under that test, a court must ask whether a challenged statute "is rationally related to *112 achievement of a legitimate state purpose." Id. The key question in determining whether the challenged statute meets that test has been subdivided by the Supreme Court of the United States as follows: "(1) Does the challenged legislation have a legitimate purpose? and (2) Was it reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose?" Id. at 668, 101 S. Ct. 2070. Taxpayers arguing that a state taxation statute violates the Equal Protection Clause of the Federal Constitution carry a heavy burden. For example, the Supreme Court has stated that "[p]arties challenging legislation under the Equal Protection Clause cannot prevail so long as `it is evident from all the considerations presented to [the legislature], and those of which [the court] may take judicial notice, that the question [whether the rational relationship test was met] is at least debatable.'" Id. at 674, 101 S. Ct. 2070, quoting United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S. Ct. 778, 82 L. Ed. 1234 (1938). The Act creating the tax credits challenged here was adopted in direct response to the decision of the United States Supreme Court in Ward. The State contends that one of the purposes of the legislation was to encourage competition among insurers in rural areas of the state, thereby providing greater access to insurance for citizens of rural areas. This goal, the State argues, is met because insurers will be encouraged by the Office Credit to open more offices in the state, some of which will presumably be in areas not already dominated by their competitors, i.e., in rural areas. The State also argues that the Office Credit was designed to encourage the employment of Alabama citizens. The State contends that the Property Credit is designed to encourage all insurance companies, foreign and domestic, to invest in Alabama property. Upon our consideration of the arguments made by the State and those made by the plaintiffs, and in light of the standards set out above, we conclude that the challenged credits do not violate the Equal Protection Clause of the Fourteenth Amendment. The tax credits employed reasonable classifications designed to reach the legitimate legislatively determined goals of encouraging investment in the state and encouraging insurers to employ Alabama citizens and to open offices in rural areas. Whether the challenged tax credits are rationally related to these goals is "at least debatable." It was reasonable for the members of the legislature to believe that these goals would be promoted by the adoption of the credits. Consequently, we conclude that the challenged credits do not violate the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution. The plaintiffs principally argue that the trial judge's ruling should be affirmed because, they say, the property and casualty section of the 1993 Acti.e., § 27-4A-3(a)(3) was structured to benefit "large" property and casualty insurers and unconstitutionally intrudes on their "economic rights." The State's argument is summed up in its reply brief, as follows: After considering all of the arguments, we agree with the State that under either the rational relationship test or the tests applied in determining compliance with the Alabama Constitution of 1901, the plaintiffs have not shown that the challenged statute is unconstitutional. Under settled principles of law, a court cannot substitute its judgment for that of the people's elected representatives. We conclude that the challenged tax credits have not been shown to violate either the Alabama Constitution or the Federal Constitution; we reverse the judgment of the trial court and remand the cause for further proceedings or an order consistent with this opinion. Because we reverse and remand, we need not consider the remaining questions presented by the parties concerning severability and prospective or quasi-prospective application of the trial court's ruling. REVERSED AND REMANDED. HOOPER, C.J., and SHORES and KENNEDY, JJ., concur. HOUSTON and LYONS,[3] JJ., concur in part and concur in the result in part. SEE, J., concurs in the result. HOUSTON, Justice (concurring in part and concurring in the result in part). I concur in that portion of the main opinion holding that the statutes have not been shown to violate the United States Constitution. Insofar as that opinion addresses the Alabama Constitution of 1901, I concur in the result. It is my firm and unwavering judicial opinion that the Constitution of Alabama of 1901 does not provide for equal protection, and that in Alabama, since the ratification of the 1901 Constitution, the only equal protection is that provided by the 14th Amendment to the Constitution of the United States. Smith v. Schulte, 671 So. 2d 1334, 1338-39 (Ala.1995) (Houston, J., dissenting); Pinto v. Alabama Coalition for Equity, 662 So. 2d 894, 901-10 (Ala.1995) (Houston, J., concurring in the result); Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 174-81 (Ala.1991) (Houston, J., concurring in the result). I refuse to strike down a duly enacted statute based upon a nonexistent constitutional provision. LYONS, J., concurs. [1] The statute provides: "1. Alabama Insurance Office Facilities Credit. "For each office owned or leased by an insurer in the State of Alabama and used for insurance operations, an insurer shall be entitled to a credit against the [premium tax] according to the following schedule: "The total credit allowable for Alabama insurance office facilities shall not exceed one percent of an insurer's Alabama premiums taxable at the rate specified in paragraph a. of this subdivision (3)." § 27-4A-3(a)(3)d.1., Ala.Code 1975. [2] The statute provides: "2. Alabama Real Property Investment Credit. "For each $1,000,000 in value of real property investments in the State of Alabama, an insurer shall be entitled to a credit of 0.10 percent of its Alabama premiums taxable at the rate specified in paragraph a. of this subdivision (3). The total credit allowable for Alabama real property investments shall not exceed 1 percent of an insurer's Alabama premiums taxable at the rate specified in paragraph a. of this subdivision (3)." § 27-4A-3(a)(3)d.2., Ala.Code 1975. [3] Justice Lyons was not a member of the Court when the case was orally argued, but he has listened to the tape of the oral arguments.

May 22, 1998

4ca15343-4130-4a97-909c-794525976047

Dent v. State

714 So. 2d 988

1970540

Alabama

Alabama Supreme Court

714 So. 2d 988 (1998) Ex parte State of Alabama. (Re James Henry DENT and One 1993 Chrysler Van, VIN 1C4GH54R2PX526032 v. STATE of Alabama). 1970540. Supreme Court of Alabama. April 24, 1998. Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for petitioner. No brief filed for respondent. Prior report: Ala.Civ.App., 714 So. 2d 985. ALMON, Justice. WRIT DENIED. SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur. HOOPER, C.J., and MADDOX, SEE, and LYONS, JJ., dissent. MADDOX, Justice (dissenting). I respectfully dissent from the denial of certiorari review. In order to explain my reasons for doing so, I will briefly set out the facts of this case. On September 22, 1995, officer B.C. Cooper of the Headland Police Department stopped James Henry Dent for speeding. After Mr. Dent gave consent, officers called to the scene searched his van, recovering approximately 5.5 grams of marijuana. Dent subsequently pleaded guilty to a misdemeanor possession charge; he was given a 12-month suspended sentence and was fined $250. During the same period, the Henry County Sheriff's Department instituted forfeiture proceedings against the van Dent had been driving. The trial court applied the "instrumentality" test put forward by Justice Scalia in Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993) (Scalia, J., concurring in part and concurring in the judgment), and ordered that the van, valued at $18,000, be forfeited. Dent appealed, arguing that the forfeiture was excessive and thus violated the Eighth Amendment to the United States Constitution. In Austin, Justice Scalia wrote that "an in rem forfeiture goes beyond the traditional limits that the Eighth Amendment permits if it applies to property that cannot properly be regarded as an instrumentality of the offense." Austin, 509 U.S. at 627-28, 113 S. Ct. at 2815. To determine whether an object was an "instrumentality" of the offense, the relevant question Justice Scalia would raise is: Was the relationship of the object "close enough [to the crime] to render the property, under traditional standards, `guilty' and hence forfeitable"? 509 U.S. at 628, 113 *989 S. Ct. at 2815. Therefore, according to Justice Scalia, "[t]he question is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense." 509 U.S. at 628, 113 S. Ct. at 2815. In Austin, however, a majority of the Supreme Court did not set forth a test to be used for determining whether a civil forfeiture violates the Eighth Amendment. In this case, the Court of Civil Appeals reversed the forfeiture order, holding that the "proportionality" test of United States v. One Parcel Property Located at 427 and 429 Hall Street, Montgomery, Montgomery County, Alabama, 74 F.3d 1165 (11th Cir. 1996), rather than the "instrumentality" test, should be applied. In One Parcel, the 11th Circuit held that a court engaging in an excessiveness analysis in a civil forfeiture case must ask: 74 F.3d at 1172. In Bennis v. Michigan, 516 U.S. 442, 116 S. Ct. 994, 134 L. Ed. 2d 68 (1996), the Supreme Court reexamined the forfeiture issue from a slightly different perspective. In that case, the Court, in a 5-4 decision, affirmed the forfeiture of a wife's interest in a jointly owned automobile in which her husband had been caught engaging in illicit sexual activity. Although Bennis has been severely criticized, it remains the law. I realize that in Bennis the Supreme Court did not state which test a court should apply when engaging in an excessiveness analysis; however, I believe that the decision is nonetheless informative. Because we are, at this point, merely deciding whether to review the holding of the Court of Civil Appeals, I do not need to finally conclude whether the "instrumentality" test or the "proportionality" test ought to be applied. I do believe, however, that we should, at least, grant certiorari review in order to further consider the issues presented in this case. Consequently, I respectfully dissent. LYONS, J., concurs.

April 24, 1998

89ba1709-595d-409a-b0f9-3939a9814d41

Ex Parte Brown & Root, Inc.

726 So. 2d 601

1970009

Alabama

Alabama Supreme Court

726 So. 2d 601 (1998) Ex parte BROWN & ROOT, INC. (Re Brown & Root, Inc. v. Jeanette Brown, dependent widow of Carl M. Brown). 1970009. Supreme Court of Alabama. June 19, 1998. Rehearing Denied August 21, 1998. Richard W. Vollmer III and Tracy S. Guice of Killion & Vollmer, P.C., Mobile, for petitioner. Bob Sherling of Sherling, Browning & York, P.C., Mobile, for respondent. KENNEDY, Justice. Jeanette Brown sued Brown & Root, Inc., to recover benefits under the Alabama Workers' Compensation Act, after her husband, Carl M. Brown, died of a dissecting aortic aneurysm while attending a safety *602 meeting at his job site. At the time of his death, Mr. Brown was employed by Brown & Root, Inc., and was working at a Champion Paper Company facility in Harris County, Texas. The trial court held that Mrs. Brown was entitled to benefits for the death of her husband. The Court of Civil Appeals affirmed, without opinion. Brown & Root, Inc. v. Brown, (No. 2960368) 723 So. 2d 112 (Ala. Civ.App.1997) (table). We granted certiorari review to consider several of the issues raised by Brown & Root, but, because we hold that the plaintiff did not meet the notice requirements of § 25-5-78, Ala.Code 1975, we address only the issue relating to notice. Section 25-5-78 states: (Emphasis added.) This section requires that an employer be given written notice of a job-related injury so that the employer can "make a prompt examination, provide proper treatment, and protect itself against simulated or exaggerated claims." Russell Coal Co. v. Williams, 550 So. 2d 1007, 1012 (Ala.Civ. App.1989). However, written notice is not required if the employer had actual knowledge that the employee was injured in the scope of his or her employment. Wal-Mart Stores, Inc. v. Elliott, 650 So. 2d 906, 908 (Ala.Civ.App.1994). The employer must have actual knowledge that the employee's injury was connected to the employee's work activities. Id. "The fact that an employer is aware that an employee [suffers from] a medical problem is not, by itself, sufficient to charge the employer with actual knowledge." Russell, 550 So. 2d at 1012. The plaintiff testified that, although she suspected her husband's death was related to his employment, she did not notify Brown & Root or any of its employees of the possible connection. She argues that direct notice was not required, because, she contends, Brown & Root had actual knowledge sufficient to put reasonable minds on notice that her husband's death was connected to his work activities. An employer can "be put on reasonable notice to investigate [an injury] further," if the employer "has some information connecting work activity" with the employee's injury or death. Id. "The employee has the burden of proving that the employer had notice or knowledge of the injury." Wal-Mart, 650 So. 2d at 908. The record contains no evidence indicating that Brown & Root had actual knowledge sufficient to dispense with the statutory notice requirement. Mr. Brown's job was to supervise the construction of a tube conveyor used to transport bark between various portions of the paper plant. He was required to inspect the conveyor on a daily basis, but he did not participate in the actual construction of the unit. On the morning of his death, Mr. Brown and a fellow supervisor had spent 20 to 30 minutes inspecting a 250-foot section of the conveyor. Temperatures were moderate, and Mr. Brown died approximately 1 hour later, after being seated in an air-conditioned office building for 30 minutes. The Brown & Root employees present that morning testified that Mr. Brown had been in good spirits and had given no appearance of physical stress or discomfort. The death certificate indicated that Mr. Brown died of a dissecting aortic aneurysm caused by a genetic condition the trial court described as cystic medial degeneration. The information available to Brown & Root appears to have indicated that Mr. Brown died of a degenerative condition that was unrelated to his employment. The record does not indicate that Brown & Root had *603 cause to reasonably suspect that Mr. Brown's death could be work-related until a year later, when Mrs. Brown filed her first workers' compensation claim. One cannot recover workers' compensation benefits without meeting the notice requirements of § 25-5-78. Therefore, the judgment of the Court of Civil Appeals is reversed. This case is remanded for the Court of Civil Appeals to direct a dismissal of the action. REVERSED AND REMANDED. HOOPER, C.J., and ALMON, SHORES, HOUSTON, COOK, and SEE, JJ., concur. MADDOX and LYONS, JJ., concur in the result.

June 19, 1998

3f86f7de-b733-4f2b-932f-e647e6a4be81

Ex Parte Johnson

715 So. 2d 783

1970335

Alabama

Alabama Supreme Court

715 So. 2d 783 (1998) Ex parte Kenneth Lance JOHNSON. (In re Sharon Brown JOHNSON v. Kenneth Lance JOHNSON). 1970335. Supreme Court of Alabama. May 22, 1998. *784 Alvin T. Prestwood and Daniel L. Feinstein of Volz, Prestwood & Hanan, P.C., Montgomery, for petitioner. Donald M. Briskman, Mobile, for respondent. HOUSTON, Justice. Kenneth Lance Johnson petitions for a writ of mandamus directing the Mobile Circuit Court to vacate its order granting his former wife's motion to set aside their divorce judgment. We grant the writ. On December 8, 1995, Johnson, a professional baseball player, was divorced from his wife, who resumed the use of her maiden nameSharon J. Brown; the divorce judgment incorporated an agreement dividing their marital property. On January 5, 1996, 28 days after the entry of the judgment, Ms. Brown filed a motion entitled "Motion to Set Aside the Judgment"; that motion read as follows: (Emphasis in original.) On February 18, 1997, more than 13 months after the motion to set aside the judgment had been filed, Johnson filed a motion to dismiss the proceedings for lack of subject matter jurisdiction. In that motion, Johnson contended that the January 5, 1996, motion was a Rule 59(e), Ala.R.Civ.P., motion and that it had been denied by operation of law after 90 days, pursuant to Rule 59.1, Ala.R.Civ.P. After conducting a hearing, the trial court ruled that because the substance of the January 5, 1996, motion concerned alleged misrepresentations made by Johnson, that motion should be treated as one made pursuant to Rule 60(b)(3), Ala.R.Civ.P., which authorizes relief from a judgment procured through fraud or other misconduct of an adverse party. The Court of Civil Appeals, with Judge Crawley dissenting, denied Johnson's request for mandamus relief. See Ex parte Johnson, 707 So. 2d 251 (Ala.Civ.App. 1997). He then filed this petition, pursuant to Rule 21, Ala.R.App.P. We note, initially, that a lack of subject matter jurisdiction may be raised at any time, see Forrester v. Putman, 409 So. 2d 773 (Ala.1981); Norton v. Liddell, 280 Ala. 353, 194 So. 2d 514 (1967); and Rule 12(h)(3), Ala.R.Civ.P.; we note, too, that the question of subject matter jurisdiction is reviewable by a petition for a writ of mandamus. See Ex parte Alfa Mutual General Ins. Co., 684 So. 2d 1281 (Ala.1996). The dispositive issue here is whether the trial court erred in treating the January 5, 1996, motion to set aside the judgment as one made pursuant to Rule 60(b)(3), rather than as one made pursuant to Rule 59(e). If the motion was a Rule 59(e) motion, then it was denied by operation of law after 90 days and the trial court, at the end of the 90th day, lost jurisdiction to set aside the judgment. On the other hand, if the motion was a Rule 60(b)(3) motion, then Rule 59.1 was not applicable. Ex parte Alfa Mutual General Ins. Co., supra. After examining the record and the briefs, we conclude that the trial court erred in treating the January 5, 1996, motion as a Rule 60(b)(3) motion. It is well settled that this Court looks to the essence of a motion, not necessarily to its title, to determine how the motion is to be considered under the Alabama Rules of Civil Procedure. Ex parte Alfa Mutual General Ins. Co., supra. This Court has held on several occasions that a motion filed within the 30-day limitation of Rule 59(e), seeking relief from a judgment that is available under Rule 59(e), should be treated as a Rule 59(e) motion to alter, amend, or vacate the judgment. See Ex parte Alfa Mutual General Ins. Co., supra; Sexton v. Prisock, 495 So. 2d 581 (Ala.1986); Holt v. First National Bank of Mobile, 372 So. 2d 3 (Ala.1979). See, also, Evans v. Waddell, 689 So. 2d 23 (Ala.1997) (noting that this Court has repeatedly construed a "motion to reconsider" a judgment, when it has been filed within 30 days after the entry of a final judgment, as a Rule 59(e) motion). A Rule 60(b) motion to set aside a judgment cannot *786 be substituted for a Rule 59 motion so as to avoid the operation of Rule 59.1. See Matkin v. Smith, 531 So. 2d 876 (Ala.1988); Ingram v. Pollock, 557 So. 2d 1199 (Ala.1989). The Court of Civil Appeals has also recognized these principles. See, e.g., Conway v. Housing Authority of the Birmingham District, 676 So. 2d 344 (Ala.Civ.App.1996); Ex parte Adams, 534 So. 2d 626 (Ala.Civ.App.1988); Simmons v. Simmons, 390 So. 2d 622 (Ala.Civ.App.1980). The January 5, 1996, motion does not specifically refer to Rule 60; it does, however, specifically request that the divorce judgment be "set aside" or "modified." This language is consistent with that of Rule 59(e). Cannon v. State Farm Mutual Automobile Ins. Co., 590 So. 2d 191 (Ala.1991). The January 5 motion was also filed within the 30 day limitations period set out in Rule 59(e) (a factor this Court has emphasized in similar cases when the nature of a post-judgment motion was at issue, see Lockhart v. Phenix City Investment Co., 488 So. 2d 1353 (Ala. 1986); Textron, Inc. v. Whitfield, 380 So. 2d 259 (Ala.1979)), and the motion sought relief that was available under Rule 59(e). A divorce judgment incorporating a property agreement may be altered, amended, or vacated under Rule 59(e) if one party procures the agreement by fraud or conceals assets or liabilities. See Barganier v. Barganier, 669 So. 2d 933 (Ala.Civ.App.1995); Ayres v. Ayres, 466 So. 2d 979 (Ala.Civ.App.1985); Nelson v. Nelson, 408 So. 2d 101 (Ala.Civ. App.1981). Based on our previous decisions, we hold that the January 5, 1996, motion should have been treated as a Rule 59(e) motion. In so holding, we note that the 90-day period allowed for the trial court to rule on that motion could have been extended either through the mutual consent of the parties or by an order of the Court of Civil Appeals, pursuant to Rule 59.1; however, no consent of the parties appears of record and the Court of Civil Appeals did not extend the time. We also note that the divorce judgment could have been appealed after the expiration of the 90 days. Permitting a motion filed under Rule 59(e) to be subsequently construed as a Rule 60(b)(3) motion for the purpose of avoiding the operation of Rule 59.1 (which was designed to remedy the inequities arising from the failure of the trial court to dispose of postjudgment motions for unduly long periods), would run afoul of the intent of the Rules by substantially nullifying Rule 59.1 and rendering the provisions of Rule 59 uncertain. See Carnes v. Carnes, 365 So. 2d 981 (Ala.Civ.App.1978); Ex parte Adams, supra; Simmons v. Simmons, supra. Although we agree with Ms. Brown that "this Court is committed to the proposition that ... a [trial] court is not without jurisdiction to exercise its inherent power to set aside and vacate a judgment because of supervening invalidity based on fraud practiced on the court by a party in the procurement of a judgment," Brice v. Brice, 340 So. 2d 792, 795 (Ala.1976), a trial court is without power to so act once it has lost jurisdiction over the case.[1] WRIT GRANTED. HOOPER, C.J., and MADDOX, ALMON, SHORES, KENNEDY, COOK, SEE, and LYONS, JJ., concur. [1] Because we hold that Rule 59 and not Rule 60 governs, we do not address whether Ms. Brown would be entitled to relief from the judgment under Rule 60(b)(6). Our holding should not be construed as foreclosing a Rule 60(b)(6) motion containing allegations along the lines suggested in R.E. Grills, Inc. v. Davison, 641 So. 2d 225, 229 (Ala.1994).

May 22, 1998

7cc589e3-b399-4708-8083-b779cbbf3d59

Ex Parte Federal Exp. Corp.

718 So. 2d 13

1962109

Alabama

Alabama Supreme Court

718 So. 2d 13 (1998) Ex parte FEDERAL EXPRESS CORPORATION. (In re The GREENE COUNTY NEWSPAPER COMPANY, INC., et al. v. FEDERAL EXPRESS CORPORATION). 1962109. Supreme Court of Alabama. May 29, 1998. *14 John H. Morrow and Matthew H. Lembke of Bradley, Arant, Rose & White, L.L.P., Birmingham; and Robert H. Turner, Marion, for petitioner. J.L. Chestnut, Jr., of Chestnut, Sanders, Sanders & Pettaway, P.C., Selma; Joseph W. Phebus of Phebus & Winkelmann, Urbana, IL; Hugh V. Plunkett III and Robert K. Shelquist of Plunkett, Schwartz, Peterson, P.A., Minneapolis, MN, for respondents. Judge Eddie Hardaway, Jr., respondent, pro se. Evan M. Tager and Adam C. Sloane of Mayer, Brown & Platt, Washington, DC; and Phillip E. Stano, American Council of Life Ins., Washington, DC, for amicus curiae American Council of Life Ins., in support of the petitioner. Warren B. Lightfoot, Samuel H. Franklin, and Stephen J. Rowe of Lightfoot, Franklin & White, L.L.C., Birmingham; and Hugh F. Young, Jr., Product Liability Advisory Council, Inc., Reston, VA, for amici curiae Product Liability Advisory Council and Chemical Mfrs. Ass'n, in support of the petitioner. H. Hampton Boles, Alan T. Rogers, and Gregory C. Cook of Balch & Bingham, L.L.P., Birmingham, for amici curiae Alabama Bankers Ass'n and Business Council of Alabama, in support of the petitioner. Robert Digges, Jr., ATA Litigation Center, Alexandria, VA; and Robin G. Laurie of Balch & Bingham, Montgomery, for amici curiae Alabama Trucking Ass'n, Inc.; American Trucking Ass'ns, Inc.; and Cargo Airline Ass'n, in support of the petitioner. Matthew C. McDonald of Miller, Hamilton, Snider & Odom, Mobile, for amicus curiae Alabama Civil Justice Reform Committee. C. Lee Reeves of Sirote & Permutt, Birmingham; Douglas E. Winter of Bryan Cave, L.L.P., Washington, DC; and Charles A. Newman of Bryan Cave, L.L.P., St. Louis, MO, for amici curiae American Auto. Mfrs. Ass'n, Inc.; and Association of Int'l Auto. Mfrs., Inc., in support of the petitioner. Robert H. Shulman, Helen K. Michael, and Elizabeth B. McCallum of Howrey & Simon, Washington, DC, for amici curiae Chamber of Commerce of U.S.; National Ass'n of Mfrs.; International Ass'n of Defense Counsel; Lawyers for Civil Justice; Amoco Oil Co.; Champion Int'l Corp.; Chevron U.S.A., Inc.; Exxon Corp.; Georgia-Pacific Corp.; International Paper Co.; Masonite Corp.; Solutia, Inc.; Star Enterprise; and Witco Corp., in support of the petitioner. LYONS, Justice. Federal Express Corporation, the defendant in an action pending in the Greene Circuit Court, has petitioned this Court for a writ of mandamus directing Judge Eddie Hardaway to grant its motion to vacate his order of August 16, 1996, conditionally certifying the plaintiffs' action as a class action. *15 Judge Hardaway conditionally certified the action as a class action on the same day the complaint was filed, without holding an evidentiary hearing or even receiving a responsive pleading from the defendant. In addition to asking this Court to order the conditional class certification vacated, Federal Express asks this Court to order Judge Hardaway to allow it 120 days to seek discovery from its customers, the potential members of a nationwide class, before he holds an evidentiary hearing on the request for class certification. This Court has recently rejected the practice of conditional certification of a class action based solely on the allegations of a complaint and without an evidentiary hearing. Ex parte First National Bank of Jasper, 717 So. 2d 342 (Ala.1997); Ex parte American Bankers Life Assurance Co. of Florida, 715 So. 2d 186 (Ala.1997); Ex parte Citicorp Acceptance Co., 715 So. 2d 199 (Ala. 1997); Ex parte Equity National Life Ins. Co., 715 So. 2d 192 (Ala.1997); Ex parte Mercury Finance Corp. of Alabama, 715 So. 2d 196 (Ala.1997); Ex parte Frontier Corp., 709 So. 2d 1197 (Ala.1998). Those opinions dictate that we grant Federal Express's petition for the writ of mandamus. Thus, we direct Judge Hardaway to vacate his order conditionally certifying the action as a class action and to allow Federal Express at least 120 days in which to undertake discovery on class-certification issues before he holds an evidentiary hearing on the request for class certification. PETITION GRANTED. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, and SEE, JJ., concur. COOK, J., concurs in the result.

May 29, 1998

b703dd7a-fa7f-4789-87bb-3e785edbf683

Sampson v. Cansler

726 So. 2d 632

1971293, 1971376

Alabama

Alabama Supreme Court

726 So. 2d 632 (1998) Jesse SAMPSON and Terence J. Sampson v. Maud CANSLER, as executrix of the estate of Neil Cansler, deceased. William Todd Atkinson et al. v. Maud Cansler, as executrix of the estate of Neil Cansler, deceased. 1971293 and 1971376. Supreme Court of Alabama. December 4, 1998. Gerald D. Colvin, Jr., of Bishop, Colvin, Johnson & Kent, Birmingham, for appellants Jesse Sampson and Terence J. Sampson. Bert S. Nettles, Mark D. Hess, and Peter D. LeJeune of London & Yancey, L.L.C., Birmingham, for intervenors/appellants William Todd Atkinson and Fite, Davis Atkinson, Guyton & Bentley, P.C. Terry L. Dempsey and F. David Lowery of Lowery & Dempsey, Russellville, for appellee. KENNEDY, Justice. These appeals are from an order denying a Rule 60(b)(6), Ala.R.Civ.P., motion for relief from a default judgment. We reverse and remand. On September 11, 1996, Neil Cansler was driving his farm tractor on Highway 5 in Franklin County when his tractor was struck from behind by a automobile driven by Terence Sampson. Mr. Cansler was thrown from the tractor, and he later died from injuries he suffered in the accident. Maud Cansler, administratrix of his estate, sued Terence Sampson and his father, Jesse Sampson, who had cosigned a note with Terence for Terence to finance the purchase of *633 the car he was driving at the time of the accident. Ms. Cansler alleged negligence against Terence Sampson and negligent entrustment against his father. Ms. Cansler also sued Auto-Owners Insurance Company and Alfa Mutual Insurance Company for uninsured motorist benefits, based on Neil Cansler's policies. Ms. Cansler later settled with the two insurance companies. Service of process was made on Jesse Sampson by certified mail on December 23, 1996, and Terence Sampson was personally served on January 22, 1997, after the plaintiff had tried to serve him by certified mail. According to Jesse and Terence Sampson, they contacted William Todd Atkinson of the law firm of Fite, Atkinson, Guyton, & Bentley, P.C., and asked him to represent them. Atkinson never made a formal appearance in the lawsuit. Atkinson states that he never filed a formal appearance because, he says, he had agreed only to telephone Terence Sampson's insurance company, Integon Insurance Company, and inform it of the lawsuit. Atkinson did contact Ms. Cansler's attorney and told him of his limited representation and asked that Ms. Cansler's attorney allow the Sampsons time to obtain a defense from Terence's insurer. In April 1997, Terence's insurance carrier, Integon, notified Atkinson by mail that shortly before the accident Terence Sampson's policy had been canceled for nonpayment of premiums and that Integon, therefore, would provide no coverage or defense. The court entered a default judgment against Jesse and Terence Sampson, and it held a hearing to determine the damages. It entered a $5,000,000 judgment against Jesse and Terence Sampson on September 15, 1997. On December 2, 1997, a writ of garnishment was served on Jesse Sampson and on his employer, Alabama Power Company. According to Jesse Sampson, his wife contacted Atkinson after the garnishment and Atkinson told them that he had undertaken only a limited representation, a representation limited solely to informing Terence's insurance carrier of the accident, in an effort to obtain a defense, and that upon notifying the insurance carrier he had completed his limited representation. On February 9, 1998, Jesse Sampson contacted an attorney and asked the attorney to represent both him and Terence in regard to the default judgment and the garnishment. That attorney filed a Rule 60(b)(6), Ala. R. Civ. P., motion to set aside the default judgment and a motion to stay the enforcement of the writ of garnishment. The motion alleged that the Sampsons' failure to answer was attributable to legal malpractice on the part of Mr. Atkinson. Atkinson and his law firm asked for, and were granted, permission to intervene. On April 3, 1998, the trial court denied the Rule 60(b)(6) motion. It granted the motion to stay the enforcement of the writ of garnishment pending appeal by the Sampsons and the intervenors, Atkinson and his law firm. The Sampsons and the intervenors appealed the denial of the Rule 60(b) motion. In Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600 (Ala.1988), this Court held that the trial court has broad discretion in determining whether to grant or to deny a defendant's motion to set aside a default judgment, but that that discretion is not boundless. The trial court must balance two competing policy interests associated with default judgmentsjudicial economy and the defendant's right to defend on the merits. Kirtland, 524 So. 2d at 604. These interests must be balanced under the two step process set out in Kirtland. Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so. This presumption exists because the right to have a trial on the merits ordinarily outweighs the need for judicial economy. Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider "1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant's own culpable conduct." Kirtland, 524 So. 2d at 605. Although Kirtland involved a Rule 55(c) motion to set aside a default judgment, we also apply the Kirtland analysis to Rule 60(b) motions to set aside default judgments. *634 Rooney v. Southern Dependacare, Inc., 672 So. 2d 1 (Ala.1995). In its order denying the motion to set aside the judgment, the trial court found that the Sampsons had negligently failed to protect their own interest and to make inquiry as to the status of their case. The court also found that the Sampsons did not have a meritorious defense of legal malpractice because there was no proof that Atkinson undertook to represent them other than to the limited extent of telephoning Terence Sampson's insurance carrier and informing it of Ms. Cansler's claims. The court stated: "After learning that Jesse Sampson's coverage had been canceled, that no defense of indemnity would be provided and advising the Sampsons, accordingly, [Atkinson] was relieved of any further duty or obligation to them and committed no legal malpractice." (C.R.148.) (C.R.149.) The Sampsons argue that they did not have to prove the legal malpractice they alleged on the part of Atkinsononly to prove that the alleged malpractice was possiblein order to present the "meritorious defense" required by Kirtland. Additionally, the Sampsons argue that they presented to the trial court evidence indicating that the accident was not caused by negligence on the part of Terence Sampson. Atkinson and his law firm argue that the Sampsons had a meritorious defensethat Terence Sampson did not negligently cause the accident. The first Kirtland factor is whether the defaulting party presented a meritorious defense. To present a meritorious defense, for Rule 55(c) purposes, does not require that the movant satisfy the trial court that the movant would necessarily prevail at a trial on the merits, only that the movant show the court that the movant is prepared to present a plausible defense. Kirtland, 524 So. 2d at 605. Kirtland, 524 So. 2d at 606. Based on the record before us, we agree with the trial court that the Sampsons failed to present evidence of legal malpractice. However, the Sampsons did present evidence indicating that Terence Sampson did not cause the accident. Three affidavitsan affidavit from the state trooper who investigated the accident, Terence Sampson's own affidavit, and the affidavit of Terence Sampson's passengerall indicate that the accident was Cansler's fault. Thus, the defendants presented sufficient evidence that, if accepted by the factfinder as true, would constitute a *635 defense. This issue regarding the cause of the accident warrants submitting the case to a jury. The second Kirtland factor is whether the plaintiff will be unfairly prejudiced by setting aside the default judgment. The prejudice must be substantial. Ex parte Gilliam, 720 So. 2d 902 (Ala.1998). Mere delay or increased costs are not sufficient to justify a refusal to set aside a default judgment. Gilliam. Ms. Cansler has not argued prejudice except in the form of delay and increased costs. The third Kirtland factor is whether the default judgment was the result of the defendant's own culpable conduct. Gilliam, 720 So. 2d at 904, quoting Kirtland, 524 So. 2d at 608. We agree with the trial court that the Sampsons negligently failed to protect their interest and to inquire as to the status of their case. However, the record contains no evidence indicating that their negligent actions were undertaken in bad faith or willfully. The judgment of the trial court is reversed and the case is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, SHORES, and SEE, JJ., concur.

December 4, 1998

7044b62b-c463-4282-91a7-1f5d8ca53993

Ex Parte Conference America, Inc.

713 So. 2d 953

1961750

Alabama

Alabama Supreme Court

713 So. 2d 953 (1998) Ex parte CONFERENCE AMERICA, INC., an Alabama corporation. (Re CONFERENCE AMERICA, INC., an Alabama corporation v. NCI INFORMATION SYSTEMS, INC., a foreign corporation; and James U. Tindell). 1961750. Supreme Court of Alabama. April 24, 1998. *954 James M. Sizemore, Jr., Montgomery, for petitioner. Julian L. McPhillips, Jr., and Kenneth Shinbaum of McPhillips, Shinbaum, Gill & Stoner, Montgomery, for respondents. SEE, Justice. Conference America, Inc., petitions for a writ of mandamus directing the trial court to vacate its order compelling arbitration of its claims against NCI Information Systems, Inc., and its employee, James Tindell (collectively, "NCI"). Conference America maintains that arbitration is inappropriate because its claims, though related to a prior contract that did contain an arbitration clause, directly arise from a subsequent contract that did not contain an arbitration clause. The subsequent contract clearly stated that it constituted the "entire agreement" between the parties. We grant the petition. In February 1996, Conference America entered into its first contract with NCI (the "February Contract"). The February Contract provided that NCI was to perform a detailed analysis of Conference America's business and to develop and present to Conference America a "System Engineering Design" plan and a "Software Developmental Plan" (collectively, the "Plans"), for $8,190. The February Contract included an arbitration clause, which stated: (Emphasis added.) NCI completed the February Contract to Conference America's satisfaction, and Conference America paid NCI in full. In April 1996, after NCI had completed its analysis of Conference America's business and had developed the Plans, Conference America entered into a second contract with NCI (the "April Contract"), in the form of a purchase order.[1] The April Contract was separate and distinct from the February Contract; it provided that NCI would perform the extensive work necessary to implement the Plans, in exchange for $223,210. Each of the Plans was expressly incorporated into the April Contract. The April Contract did not include an arbitration clause. It did, however, include an "entire agreement" clause, which provided in pertinent part: (Emphasis added.) NCI did not complete the April Contract to the satisfaction of Conference America, and Conference America did not pay NCI in full for the implementation of the Plans. In December 1996, Conference America sued NCI, alleging breach of contract and fraud. Specifically, Conference America alleged that NCI had failed to properly implement the Plans and that NCI had misrepresented to Conference America that NCI had the staff expertise to perform the April Contract. The trial court granted NCI's motion to stay the proceeding and compel arbitration. Conference America filed this mandamus petition. A writ of mandamus is an extraordinary remedy, requiring the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court. Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989). Mandamus relief is appropriate when a party has been compelled to arbitrate a claim it did not agree to arbitrate.[2] Section 2 of the Federal Arbitration Act provides in pertinent part: 9 U.S.C. § 2 (emphasis added). Accordingly, federal law mandates the arbitration of claims encompassed by an arbitration clause that is contained in a binding contract that involves interstate commerce. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986). Although federal policy favors arbitration, that policy cannot operate without regard to the wishes of the parties as expressed in the terms of the contract. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 56, 115 S. Ct. 1212, 131 L. Ed. 2d 76 (1995). The terms of the February Contract prove that the parties intended to arbitrate "all claims ... arising from or relating to this Agreement." (Emphasis added.) Were this the only language before us, we would have little difficulty concluding that Conference America's claims would be subject to arbitration. Conference America's claims concern the proper implementation of the Plans that NCI produced pursuant to the February Contract. Thus, the subject matter of Conference America's claims concerning the implementation of the Plans clearly "relates to" the February Contract under which NCI produced those Plans. See Reynolds & Reynolds Co. v. King Automobiles, Inc., 689 So. 2d 1, 3-4 (Ala.1996) (stating that an "arbitration clause that applies to claims `arising out of or relating to `the contract ... has a broader application than an arbitration clause that refers only to claims `arising from' the agreement"); see generally Ex parte Gates, 675 So. 2d 371, 374 (Ala.1996) (stating that an arbitration clause including the phrase "all disputes ... arising from or relating to this contract" is very broad). The February Contract, however, is not the only contract between the parties. The subsequent April Contract, from which the claims directly arise, contains no arbitration clause. Still, absent indications to the contrary in the April Contract, we would hold that Conference America's claims would be subject to the arbitration clause in the February Contract, because of the close relation of the subject matter of both contracts. See *956 J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 319 (4th Cir.1988) (holding that where prior agreements contained arbitration clauses, claims arising from subsequent related contracts were subject to arbitration even though the subsequent contracts did not contain arbitration clauses). The April Contract, however, contains an "entire agreement" clause, which states that the April Contract "shall constitute the entire agreement between us." (Emphasis added.) General canons of contract construction require that "if in its terms a contract is plain and free from ambiguity, then there is no room for construction and it is the duty of the court to enforce it as written." Ex parte South Carolina Ins. Co., 683 So. 2d 987, 989 (Ala.1996). Thus, because Conference America and NCI expressly stated that the April Contract constitutes the "entire agreement" between them, we will enforce the plain meaning of those words by treating the April Contract as the entire agreement between the parties. Moreover, this Court has specifically applied the plain meaning interpretation of "entire agreement" clauses to determine whether parties agreed to arbitrate claims. In Crown Pontiac, Inc. v. McCarrell, 695 So. 2d 615, 618 (Ala.1997), this Court refused to enforce an arbitration clause that was included in a preliminary handwritten "buyer's order form" contract, because the final contract expressly excluded consideration of all terms not set forth in that contract. This Court held that the final contract constituted the entire agreement between the parties. Id.; accord, e.g., Lakehead Pipe Line Co. v. Investment Advisors, Inc., 900 F. Supp. 234, 236 (D.Minn.1995) (recognizing that arbitration clause in first contract was negated by "entire agreement" clause of the second contract with respect to claims arising out of the second contract). Thus, the "entire agreement" clause in the April Contract negated the effect of the arbitration clause in the February Contract with respect to claims arising out of the April Contract. Conference America and NCI did not agree to arbitrate claims arising out of the April Contract. They did not include an arbitration clause in the April Contract. They did not expressly or by implication incorporate the February Contract and its arbitration clause into the April Contract. See Ben Cheeseman Realty Co. v. Thompson, 216 Ala. 9, 12, 112 So. 151, 153 (1927) (stating that where a contract contains references to other documents, those documents are incorporated into the contract). Instead, the parties agreed that the April Contract, in which they included no arbitration clause, was the "entire agreement." Therefore, the trial court erred in ordering arbitration of Conference America's claims regarding the implementation of the Plans. Conference America has demonstrated a clear legal right to the order sought. The trial court is directed to vacate its order compelling Conference America to arbitrate its claims against NCI. WRIT GRANTED. HOOPER, C.J., and MADDOX, HOUSTON, and LYONS, JJ., concur. ALMON, SHORES, KENNEDY, and COOK, JJ., concur in the result. [1] The parties agree that the purchase order and its attachments constitute a binding contract. See Kennedy v. Polar-BEK & Baker Wildwood Partnership, 682 So. 2d 443, 446 (Ala.1996) (stating that the essential elements for a contract are an agreement, consideration, two or more contracting parties, a legal object, and capacity). [2] A petition for the writ of mandamus is the generally accepted method of review when the trial court grants a motion to compel arbitration. Ex parte Alexander, 558 So. 2d 364, 365 (Ala. 1990). A direct appeal is the generally accepted method of review when a trial court denies a motion to compel arbitration. A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360 (Ala. 1990).

April 24, 1998

05547090-b56b-4493-b6e2-1c29dbc638af

Weakley v. State

721 So. 2d 235

1961092

Alabama

Alabama Supreme Court

721 So. 2d 235 (1998) Ex parte State of Alabama. (Re Nettie Mae WEAKLEY v. STATE). 1961092. Supreme Court of Alabama. May 8, 1998. *236 Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for petitioner. Joseph S. Rushing of Daniel E. Boone & Associates, Florence, for respondent. COOK, Justice. We granted the State's petition for the writ of certiorari to review the judgment of the Court of Criminal Appeals reversing the conviction of Nettie Mae Weakley for distribution of a controlled substance in violation of § 13A-12-211, Ala.Code 1975. We address the issue whether the lack of counsel at Weakley's arraignment mandates that her conviction be reversed, even though she was represented by counsel at a rearraignment. Because we conclude that it does not, we reverse the judgment of the Court of Criminal Appeals and remand. On March 14, 1996, Nettie Mae Weakley pleaded not guilty, without counsel. On June 7, 1996, she was rearraigned, with the benefit of counsel; at the rearraignment she signed a plea agreement and an "explanation of rights and plea of guilty" form and pleaded guilty to one count of unlawful distribution of a controlled substance. She was found guilty of the offense charged. On August 1, 1996, she was ordered to serve five years in the state penitentiary. The Court of Criminal Appeals reversed the conviction and remanded the case, holding, in reliance on Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961), that because Weakley was not represented by counsel at her initial arraignment, her conviction must be reversed. See Weakley v. State, 721 So. 2d 233 (Ala.Cr.App.1997). The State contends that Weakley is not entitled to a reversal of the conviction because of her initial lack of counsel, because she did not preserve that error for review and because she was rearraigned with the benefit of counsel. However, Weakley contends that her constitutional rights were violated by the absence of counsel at her initial arraignment, and she contends that, pursuant to Hamilton and a line of subsequent cases, her conviction was due to be reversed. Although the record is not clear as to whether Weakley was in fact not represented by counsel at her initial arraignment, the record strongly suggests that Weakley did not have a lawyer; at arraignment the trial court entered on the case action summary sheet a notation that Weakley "will hire an attorney." Consistent with Weakley's argument, we will assume that she did not have counsel at the initial arraignment. The right of a defendant to have counsel present at arraignment is a jurisdictional prerequisite to a conviction. See Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Stokes v. Singletary, 952 F.2d 1567 (11th Cir.1992). In Hamilton, supra, a capital offense case, a defendant was sentenced to death for breaking and entering a dwelling at night with intent to ravish. 368 U.S. at 52, 82 S. Ct. 157-58. At arraignment, the defendant pleaded not guilty, without the benefit of counsel; the defendant was not subsequently rearraigned with counsel. Id. Holding that arraignment is such a critical stage in a criminal proceeding that denial of counsel at *237 that stage nullifies a conviction, the United States Supreme Court reversed the conviction. The Court reasoned that "[a]vailable defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes." Id. at 54, 82 S. Ct. 157. The Court stated, "In Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 158, the Court said that an accused in a capital case `requires the guiding hand of counsel at every step in the proceeding against him,'" and "When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted." 368 U.S. at 54-55, 82 S. Ct. 157 (citations omitted). However, in this noncapital case we are compelled to review the circumstances and to determine if the rearraignment cured the error of lack of counsel at the initial arraignment. The purpose of an arraignment is to formally charge a defendant with an offense and to allow a plea. O'Neal v. State, 494 So. 2d 801 (Ala.Cr.App.1986). As previously stated, the record is not clear as to whether Weakley appeared for her initial arraignment on March 14, 1996, without an attorney. However, the court's case action summary sheet contains this entry: "The defendant appeared in court and pled not guilty. Will hire an attorney. Trial set April 15, 1996, at 8:30 a.m., with pretrial April 10, 1996, at 8:30 a.m." (Emphasis added.) On April 9, 1996, a lawyer, G. Jean Darby, was appointed to represent Weakley. On June 7, 1996, Weakley appeared at a rearraignment, with the benefit of counsel. At that time, the purpose of arraignment was met. Weakley was advised of the offense of which she was charged and was shown a copy of her plea agreement and the "explanation of rights and plea of guilty form" that she had previously signed. During an extensive colloquy with the court, Weakley stated that she had voluntarily and knowingly entered into these agreements, and she acknowledged her signature on them. The court also advised Weakley of her unqualified constitutional right to a trial by jury. The court orally asked Weakley how she pleaded to the charged offense, and she responded, "Guilty." After entering a plea of guilty, Weakley was adjudged to be guilty. Weakley's attorney was also present at her sentencing hearing. Although error occurred at Weakley's initial arraignment, the error was cured at her rearraignment; therefore, we find no violation of the rule set out in Hamilton v. Alabama. It would be burdensome and redundant to require a reversal of the conviction in this case and have yet another arraignment. Weakley's rearraignment was sufficient, and no prejudice resulted from the error at the first arraignment. The judgment of the Court of Criminal Appeals is reversed and the case is remanded for an order or proceedings consistent with this opinion. REVERSED AND REMANDED.[*] HOOPER, C.J., and MADDOX, ALMON, SHORES, and HOUSTON, JJ., concur. SEE and LYONS, JJ., concur specially. SEE, Justice (concurring specially). I concur in the majority's conclusion that Nettie Mae Weakley's second hearing constituted a rearraignment on the charge of distribution of a controlled substance and cured the error of allowing her to enter a plea without counsel at the first arraignment. I write specially to explain more fully the proper assessment of a first arraignment without counsel when it is followed by a second arraignment with counsel and when it is not. In Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961), the Supreme Court of the United States reversed a capital conviction where the defendant was not afforded the benefit of counsel at his arraignment. The Supreme Court emphasized that in Alabama arraignment was a "critical stage" in the criminal proceeding because certain defenses and pleas could be lost if not made at the arraignment. Id. at 53-54, 82 S. Ct. 157. Similarly, in White v. Maryland, *238 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963), the Supreme Court held that where a capital defendant's preliminary hearing was defective because counsel was not present, a subsequent formal arraignment where counsel was present did not cure the defect because the preliminary hearing itself was a "critical stage" in the criminal proceeding. At Weakley's initial arraignment, the trial court properly determined whether she had counsel; she did not. See Rule 14.2(a)(1), Ala. R.Crim. P. (requiring that at the arraignment the court determine whether the defendant is represented by counsel and, if not, that the court appoint counsel). When Weakley's attempts to hire counsel proved unsuccessful, the trial court properly appointed counsel for her. See id. Error occurred at the initial arraignment, however, because Weakley entered her plea a plea of not guilty at a critical stage of the proceedings without benefit of counsel. See Hamilton, 368 U.S. at 54, 82 S. Ct. 157. The trial court then held a second hearing, at which Weakley entered a plea of guilty. This hearing constituted, in effect, a rearraignment. Weakley was informed of the charge against her. See Rule 14.2(a)(2), Ala. R.Crim. P. (requiring the trial court to determine, at an arraignment, that the defendant or the defendant's attorney is informed as to the charge or charges against the defendant); White v. State, 294 Ala. 265, 270, 314 So. 2d 857, 861 (indicating that the main purpose of an arraignment is to notify the defendant of the charges against him, by reading or explaining the indictment in open court), cert. denied, 423 U.S. 951, 96 S. Ct. 373, 46 L. Ed. 2d 288 (1975). At the second hearing, the trial court determined that Weakley's counsel was in court representing her. See Rule 14.2(a)(1). Weakley entered a plea of guilty. See Rule 14.2(c)(1) (stating that the defendant may enter a plea of guilty at the arraignment). In my view, when the defendant is afforded a second arraignment that is free from defects, no act or omission by the defendant at the first arraignment should be deemed to waive any defense, plea, or other opportunity to assert a right or defense, and no incriminating evidence from the first arraignment should be admissible at trial. Cf. White v. Maryland, 373 U.S. at 60, 83 S. Ct. 1050. Thus, Weakley's first arraignment without counsel did not constitute a "critical stage" and her second arraignment with counsel completely cured the initial error. See United States ex rel. Maisenhelder v. Rundle, 349 F.2d 592, 594 (3d Cir.1965) (holding that lack of counsel at preliminary hearing was cured by appointment of counsel, opportunity to consult with counsel, and presence of counsel at subsequent formal arraignment); State v. Hogue, 15 Ariz.App. 434, 435, 489 P.2d 281, 282 (1971) (holding that question whether defendant waived counsel at first arraignment was moot because defendant was represented by counsel at rearraignment). Where the defendant does not have a proper second arraignment, however, the proper appellate assessment depends on whether the defendant was charged with a capital crime or was charged with a noncapital crime. In Hamilton, 368 U.S. at 55, 82 S. Ct. 157, the Supreme Court specifically stated: "When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted." (Emphasis added.) In Coleman v. Alabama, 399 U.S. 1, 10-11, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970), however, the Supreme Court remanded a noncapital case, in which the defendant was not represented by counsel at a preliminary hearing, for a determination of prejudice. Accord Anderson v. United States, 352 F.2d 945 (D.C.Cir.1965) (stating that lack of counsel at arraignment on a noncapital charge did not require reversal where no prejudice had resulted); Macey v. Commonwealth, 352 Mass. 519, 226 N.E.2d 225 (1967) (same). Thus, where the defendant is not afforded counsel at an arraignment for a noncapital crime, I would canvass the record to determine whether the defendant had suffered actual prejudice that would warrant a reversal of the conviction and a remand for rearraignment. LYONS, J., concurs. [*] Note from the reporter of decisions: On June 19, 1998, after the remand from the Supreme Court, the Court of Criminal Appeals affirmed the judgment of the circuit court, without opinion.

May 8, 1998

86af51d4-f1cb-4429-971d-947102894d03

Ex Parte City of Guntersville

728 So. 2d 611

1961595

Alabama

Alabama Supreme Court

728 So. 2d 611 (1998) Ex parte CITY OF GUNTERSVILLE and the Municipal Workers' Compensation Fund, Inc. (Re City of Guntersville and the Municipal Workers' Compensation Fund, Inc. v. Maylond T. Bishop). 1961595. Supreme Court of Alabama. May 22, 1998. *612 Tom Burgess and Murray H. Gibson, Jr., of Burgess & Hale, L.L.C., Birmingham, for petitioners. Robert W. Lee, Jr., and Ashley P. Norton of Robert W. Lee & Associates, P.C., Birmingham; and Wayne Wolfe of Wolfe, Jones & Boswell, Huntsvillle, for respondent. John J. Coleman III, Gregory C. Cook, and Tom S. Roper of Balch & Bingham, L.L.P., Birmingham, for amicus curiae Alabama Self-Insured Workers' Compensation Fund. Rhonda Pitts Chambers of Rives & Peterson, P.C., Birmingham, for amicus curiae Alabama Council of Association Workers Compensation Self Insurers Funds. MADDOX, Justice. The central issue presented in this case is whether § 25-5-77(a), Ala.Code 1975, requires an employer and/or its workers' compensation insurance carrier to furnish a disabled claimant with a motor vehicle. That section provides, in part: § 25-5-77(a), Ala.Code 1975 (emphasis added). The central issue, therefore, may be broken down into two principal subparts: We conclude that a motor vehicle does not come within the term "other apparatus" as that term is used in this statute. Because of this conclusion, we do not address whether *613 the purchase of a motor vehicle would be "reasonably necessary" in this case. Maylond T. Bishop was a policeman employed by the City of Guntersville. On July 16, 1993, Bishop was shot in the back while he was on duty. As a result, he was rendered paraplegic, and he is now confined to a wheelchair. He sued for workers' compensation benefits, and on June 16, 1995, the trial court entered findings of fact, conclusions of law, and a judgment in Bishop's lawsuit against the City and its workers' compensation insurance carrier, Municipal Workers' Compensation Fund, Inc. (collectively, the "City"). Bishop and the City had stipulated, and the trial court found: (1) that Bishop was an employee of the City of Guntersville when he sustained his injury; (2) that the injury arose out of and in the course of his employment; (3) that Bishop is permanently and totally disabled as a result of the injury; (4) that the City received prompt and immediate notice of the injury; and (5) that all Bishop's medical expenses and temporary total disability benefits have been, or will be, paid. As a result, the trial court entered a final judgment setting Bishop's weekly lifetime benefit payments at $328.87. Before the trial court entered its judgment, Bishop had purchased a Chevrolet van for approximately $24,500. After the trial court entered its judgment, Bishop requested that the City reimburse him for the full purchase price of the van. The City agreed to pay for the cost of installing a wheelchair lift in the van, but denied that it was responsible for the full purchase price of the vehicle. The City subsequently sued Bishop in the Marshall Circuit Court, seeking a judgment declaring that § 25-5-77(a) did not require the City to reimburse Bishop for the purchase price of the van. The circuit court entered a judgment declaring that the City was responsible for the full purchase price of the van. The Court of Civil Appeals affirmed. City of Guntersville, Municipal Workers' Compensation Fund v. Bishop, 728 So. 2d 605 (Ala.Civ.App.1997). We granted certiorari review. In support of his contention that he should be reimbursed for the price of the van, Bishop presented letters from two physicians, both of whom are associated with the Department of Rehabilitative Medicine at the University of Alabama at Birmingham ("UAB") School of Medicine. Both physicians wrote, in essence, that it was necessary for Bishop to have a van with a wheelchair lift to facilitate transportation. Specifically, Dr. Laura Kezar[1] wrote, in part: (Emphasis added.) Dr. C.T. Huang[2] wrote: (Emphasis added.) At the trial of this case, the parties entered into the following joint stipulation of facts: (Emphasis added). The trial court entered a judgment declaring that the City was responsible for the full purchase price of the van. In affirming, the Court of Civil Appeals, noting that it was bound to "liberally construe the Act," 728 So. 2d at 610, determined that the van came within the statutory term "other apparatus" and that it was "reasonably necessary" under the facts of this case. 728 So. 2d at 606. The two dissenting judges wrote, however, that, while they "agree[d] that a wheelchair lift would be an `other apparatus' under Ala. Code 1975, § 25-5-77(a), [they did not] agree that the Legislature intended that the entire cost of a wheelchair-accessible van be included in that term." 728 So. 2d at 611. Consequently, they would have adopted the reasoning of the West Virginia Supreme Court of Appeals in Crouch v. West Virginia Workers' Compensation Comm'r, 184 W.Va. 730, 403 S.E.2d 747 (1991). In that case, the West Virginia court held that because the injured employee testified that he would have owned an automobile had he not been injured, the value of a mid-priced automobile of the same model year as the van the employee purchased should have been deducted from the amount awarded by the court as compensation for the purchase price of the van. This case presents a question of first impression: Does a motor vehicle come within the meaning of the term "other apparatus" as that term is used in § 25-5-77(a)? The authors of a workers' compensation treatise have written the following regarding the subject: Jack B. Hood, Benjamin A. Hardy, Jr., and E.J. Saad, Alabama Workers' Compensation § 10-3 (3d ed.1993) (footnotes omitted; emphasis added). Whether a motor vehicle may be included in the same category as crutches, artificial limbs, or a wheelchair lift is not a question one would intuitively answer in the affirmative. However, the question here is what the Legislature intended the term "other apparatus" to mean. To determine what the Legislature intended, we must examine both the history of the workers' compensation statute and the policies underpinning it. Although this issue is one of first impression in this Court, it has been considered and *615 decided by the courts of several other states with similar statutes. Those courts that have considered this issue appear to be divided into three groups: (1) those holding that the purchase price of a motor vehicle is not compensable; (2) those holding that it is compensable; and (3) those holding that, while the full purchase price may not be compensable, some part of it may be. Courts in Pennsylvania, Colorado, South Carolina, Maryland, New York, and North Carolina have determined that the purchase price of a motor vehicle is not reimbursable under those states' respective workers' compensation statutes. See Bouge v. SDI Corp., Inc., 931 P.2d 477 (Colo.App.1996) (statute providing that the employer "shall furnish... medical, hospital, and surgical supplies, crutches and apparatus" does not include a van, because a van does "nothing to care for or remedy the quadriplegia"); Petrilla v. Workmen's Compensation Appeal Board, 692 A.2d 623 (Pa.Commw.Ct.1997) (statute requiring employer to pay for "medicines and supplies, hospital treatment, services and supplies and orthopedic appliances and prostheses" does not require employer to pay for van, although modifications to van to allow claimant to use it are covered); Strickland v. Bowater, Inc., 322 S.C. 471, 472 S.E.2d 635 (Ct.App.1996) (statute providing that an employer must pay for "other treatment or care" does not require that an employer pay for a van); R & T Constr. Co. v. Judge, 323 Md. 514, 594 A.2d 99 (1991) (statute requiring employer to provide "other prosthetic appliance[s]" does not require employer to pay for van); McDonald v. Brunswick Elec. Membership Corp., 77 N.C.App. 753, 336 S.E.2d 407 (1985) (neither statutory provision requiring employer to provide "other treatment or care" nor provision requiring it to provide "rehabilitative services" required employer to pay for van); Nallan v. Motion Picture Studio Mechanics Union, Local No. 52, 49 A.D.2d 365, 375 N.Y.S.2d 164 (1975), rev'd on other grounds, 40 N.Y.2d 1042, 391 N.Y.S.2d 853, 360 N.E.2d 353 (1976) (van not a "medical apparatus or device" under New York statute). Courts in Arizona, Iowa, Florida, Maine, and Mississippi have held that an employer may be required to reimburse a claimant for the purchase price of a motor vehicle under certain circumstances. See Brawn v. Gloria's Country Inn, 698 A.2d 1067 (Me.1997) (statute entitling claimant to "reasonable and proper medical, surgical and hospital services, nursing, medicines, and mechanical, surgical aids, as needed" requires employer to provide a van); Mississippi Transp. Comm'n v. Dewease, 691 So. 2d 1007 (Miss. 1997) ("where there is evidence that a wheelchair van is reasonably necessary, it may qualify as an `other apparatus' for which medical benefits shall be paid"); Manpower Temporary Services v. Sioson, 529 N.W.2d 259 (Iowa 1995) (statute requiring employer to provide "reasonable surgical, medical, ... ambulance and hospital services and supplies... and ... reasonably necessary transportation expenses" does not require employer to provide van except in rare circumstances); Kraft Dairy Group v. Cohen, 645 So. 2d 1072 (Fla.Dist.Ct.App.1994) ("vehicle may constitute `other apparatus'" as that term is used in workers' compensation statute, but only if it would improve the condition caused by the accident or aid in recovery from injuries); Terry Grantham Co. v. Industrial Comm'n of Arizona, 154 Ariz. 180, 741 P.2d 313 (Ct. App.1987) ("[w]here an industrial injury necessitates the modification or substitution of an automobile in order to accommodate a wheelchair or artificial member and to restore in part a claimant's former ambulatory ability, such costs may be awarded as `other apparatus'"). Courts in North Dakota and West Virginia have taken a middle route. Those courts require that an employer reimburse a claimant for the difference between the purchase price of a van and the purchase price of a regular automobile. See Meyer v. North Dakota Workers Compensation Bureau, 512 N.W.2d 680 (N.D.1994); and Crouch v. West Virginia Workers' Compensation Comm'r, 184 W.Va. 730, 403 S.E.2d 747 (1991). Although an analysis of the positions of our sister states on this issue is informative, to answer the question before us we must look to the origins and purposes of our own workers' compensation statute. As Professor Larson has written, "[t]he necessity for *616 workers' compensation legislation arose out of the coincidence of a sharp increase in industrial accidents attending the rise of the factory system and a simultaneous decrease in the employee's common-law remedies for his or her injuries." 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, § 4.00 (1997). In an effort to meet changing societal needs more efficiently than they were being met by the common law and early statutory law, the states began enacting workers' compensation statutes, in their modern form, in the first part of this century. Larson, § 5.30. In doing so, the states created a new system that was delicately balanced between the interests of employees and the interests of employers. Under this new system, the employer is automatically responsible for paying medical and disability benefits to employees who are injured on the job. "[T]he employee and his or her dependents, in exchange for ... modest but assured benefits, give up their common-law right to sue the employer for damages for any injury covered by the act...." Larson, § 1.10(e). "A correctly balanced underlying concept of the nature of workers' compensation is indispensable to an understanding of current cases and to a proper drafting and interpretation of compensation acts." Larson, § 1.20. The Alabama Legislature incorporated that balanced concept in our workers' compensation statute. Understanding that balance is, of course, a constant challenge for courts. In deciding the issue at hand, we must determine how to best effectuate the intended aims of the compensation statute while maintaining the balance upon which it was based. To adopt the position that Bishop would have this Court adopt would, we believe, disturb the balance of interests that is at the heart of the workers' compensation system. While we recognize our duty to liberally construe the statute,[3] we must nonetheless hold that a motor vehicle does not come within the term "other apparatus" as that term is used in § 25-5-77(a). The facts are undisputed. The parties stipulated that Bishop purchased the van "[i]n order to facilitate his transportation in a wheelchair." They further stipulated that "the van is medically necessary for `transportation,' including regularly scheduled visits to his doctors." Bishop urges this Court to hold that his van is a reasonably necessary "other apparatus" under the statute because he uses it for transportation to and from his doctors' offices, rehabilitation clinics, etc. We note, however, that in § 25-5-77(f) the Legislature specifically provided for expenses associated with transportation to and from such offices. In that section, the Legislature provided that an employer must pay a claimant's transportation costs, based on the distance the claimant travels to and from medical and rehabilitative treatment. The City argues, and we agree, that, because the Legislature specifically provided for transportation costs in § 25-5-77(f), it would not be logical to conclude that the Legislature intended for the more general language of § 25-5-77(a) to cover costs related to transportation as well. The parties also agree that the van is necessary "for restoring [Bishop's] mobility `to the highest possible level' of independent functioning." It is important to note that the parties further stipulated that "[o]ther than as stated, there are no other medical purposes for the van." If we held that the workers' compensation statute required reimbursement of a claimant's expenses where the sole purpose of those expenses was to enhance the claimant's independent functioning, we believe we would be dangerously disturbing the balance of interests that the Legislature built into the workers' compensation system. Our workers' compensation system was designed to provide limited, but guaranteed, benefits to employees injured on the job. In addition to those benefits, employers are required to pay for medical and rehabilitative treatment. However, we hold that those benefits do not include the purchase price of a motor vehicle. Put simply, a motor vehicle is not a device that, in and of itself, can serve to improve a disabled claimant's condition. Its only use is to improve the claimant's independent functioning. While *617 human concern would cause one to wish that a disabled person would reach the maximum possible level of independent functioning, we believe that allowing reimbursement for such costs as are claimed in this case would stretch the workers' compensation statute beyond its intended meaning. Consequently, we hold that a motor vehicle is not within the term "other apparatus" as that term is used in § 25-5-77(a), Ala.Code 1975. Because we make that determination, we need not consider whether a motor vehicle would be "reasonably necessary" in this case if it were such an apparatus. The judgment of the Court of Civil Appeals is reversed and the cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and SHORES, HOUSTON, COOK, SEE, and LYONS, JJ., concur. [1] Dr. Kezar is an assistant professor of rehabilitation medicine in the Department of Rehabilitation Medicine. [2] Dr. Huang is a physician in the Department of Rehabilitation Medicine. [3] Riley v. Perkins, 282 Ala. 629, 213 So. 2d 796 (1968).

May 22, 1998

44252b48-c902-4b9b-83f5-18f0f174e1bb

Ex Parte Dickinson

711 So. 2d 984

1961017

Alabama

Alabama Supreme Court

711 So. 2d 984 (1998) Ex parte David DICKINSON and Sandra Dickinson. (Re David DICKINSON and Sandra Dickinson v. CHRIS MYERS PONTIAC-NISSAN-GMC, INC., et al.). 1961017. Supreme Court of Alabama. February 13, 1998. Rehearing Overruled March 20, 1998. Opinion Dissenting from Overruling of Rehearing March 20, 1998. *985 L. Daniel Mims and James A. Johnson of L. Daniel Mims, P.C., Mobile, for petitioners. David P. Shepherd and Mark S. Gober of Law Offices of David P. Shepherd, Fairhope, for respondents. COOK, Justice. David Dickinson and Sandra Dickinson petition for a writ of mandamus directing Judge Douglas I. Johnstone of the Mobile Circuit Court to vacate an order compelling arbitration of a dispute between the Dickinsons and Chris Myers Pontiac-Nissan-GMC, Inc. ("Chris Myers"). We grant the petition in part and deny it in part. In January 1996, the Dickinsons, husband and wife, began negotiating with employees of Chris Myers for the purchase of a new automobile. On January 25, 1996, the parties reached an agreement, according to which the Dickinsons would trade in their 1983 Buick Regal, with a trade-in value of $2200, on the purchase of a 1996 Nissan Sentra. The Dickinsons were then presented with a number of form documents to complete. Those documents included a "Retail Installment Sales Contract" and a "Retail Buyer's Order." The Retail Installment Sales Contract *986 included the negotiated terms, such as the descriptions of the vehicles; the price of the new vehicle; the trade-in value of the old vehicle; the amount to be financed; the annual percentage rate for the interest on the loan; the amount and number of installment payments; and the total amount of the payments. The Retail Installment Sales Contract also provided that the contract would be assigned to Aegis Auto Finance, Inc. ("Aegis"), for financing of the purchase. It was signed by both David and Sandra Dickinson. The Retail Buyer's Order contained some of those terms, namely, the descriptions of the vehicles; the price of the new vehicle; the trade-in value of the old vehicle; and the difference in value between the trade-in and the new car. However, it differed from the Retail Installment Sales Contract in two significant respects. First, it contained something not found in the Retail Installment Sales Contractan arbitration clause. Second, the Retail Buyer's Order was signed only by David Dickinson. The Dickinsons left their Buick at Chris Myers and drove away in the new Nissan. The events that followed this transaction and when they occurred are controverted. The Dickinsons state: "Several days later, [a Chris Myers employee] telephoned [them]... and asked them to bring in some additional documents relating to their financial condition and to sign some new paperwork. When questioned, [he] indicated that this was standard operating procedure and that there was no problem with the financing." Petition for Writ of Mandamus, at 4. Chris Myers states that it first telephoned the Dickinsons after it received notice from Aegis that Aegis had "rejected" the Retail Installment Sales Contract on the ground that the transaction was "over financed." Chris Myers also says that Aegis demanded "verification" of the Dickinsons' lease payments and their salaries. The parties do agree that Mrs. Dickinson responded to the telephone call by visiting the Chris Myers dealership. The Dickinsons state that Mrs. Dickinson visited Chris Myers "to drop off the information that [was] requested." During that visit, she executed a second Retail Installment Sales Contract, which "correct[ed] the over financing on the original contract." Brief in Opposition to Petition for Writ of Mandamus, at 4. The second Retail Installment Sales Contract, which, like the first, does not include an arbitration clause, contains signatures purporting to be those of David and Sandra Dickinson. The Dickinsons, however, contend that David Dickinson's signature on that document was forged by someone at Chris Myers. The Dickinsons also state that some days later, they received another telephone call from Chris Myers, the caller this time "ask[ing] them to bring the [automobile] back to the lot so that Chris Myers could make some minor repairs to [it] while the paperwork was being processed." Petition for Writ of Mandamus, at 4. They further state: Id. at 4-5. Chris Myers, on the other hand, maintains that the Dickinsons "failed to provide the additional financial information requested by Aegis" and that, because of their "continued failure to provide the documentation required by Aegis, the contract was ultimately rejected." Brief in Opposition to Petition for Writ of Mandamus, at 4. Chris Myers says the Dickinsons were "asked to retrieve the nonfunctional 1983 Buick Regal which they had traded in when they attempted to purchase the 1996 Nissan Sentra automobile," *987 but that they refused to do so. Id. After several weeks, Chris Myers had the Buick towed away. On July 29, 1996, the Dickinsons sued Chris Myers and certain of its employees, alleging fraud, breach of contract, conversion, and "wrongful repossession." On October 18, 1996, Chris Myers moved to compel arbitration of the dispute and to stay all proceedings and discovery. On February 21, 1996, the trial judge granted the motion to compel arbitration. The Dickinsons filed their petition in this Court, asking for a writ of mandamus directing the trial judge to vacate the arbitration order. They contend (1) that the arbitration clause is not broad enough to encompass their claims alleging conversion of the trade-in vehicle and wrongful repossession of the new car; (2) that Chris Myers waived its right to compel arbitration; (3) that the trial court should allow discovery to proceed; and (4) that Sandra Dickinson, who did not sign a document containing an arbitration clause, should not be compelled to arbitrate her claims. We disagree with the Dickinsons' contention that the arbitration clause is not broad enough to encompass their claims alleging conversion of the 1983 Buick and wrongful repossession of the 1996 Nissan. The Retail Buyer's Order provided in part: (Emphasis added.) The Retail Buyer's Order also contained the following provisions: For their 1983 Buick, the Dickinsons were credited $2200 on the purchase price of the new car. The value of the Buick represented a portion of the purchase price and was a natural and material aspect of the "negotiations leading to the sale of the vehicle," and represented one of the key "terms and provisions of the sale." As for the wrongful repossession claim, the Retail Buyer's Order expressly addresses the contingency of "financing approval" and specifically requires the buyer "to immediately return the vehicle to the Dealer" in the event the contingency fails. The "disputes" that have developed in this case are, therefore, precisely the sort of "controversies" that contracting parties such as these would expect to "arise between them" in regard to the right to possess and control a trade-in vehicle and in regard to the failure of the financing contingency. We conclude, therefore, that the Dickinsons' claims are within the scope of the arbitration clause in the Retail Buyer's Order. The Dickinsons' waiver argument also focuses on the manner in which Chris Myers gained and maintained control of the Nissan and the Buick, respectively. They quote from Companion Life Insurance Co. v. Whitesell Manufacturing, Inc., 670 So. 2d 897, 899 (Ala.1995), the following rule: (Emphasis added.) The essence of the Dickinsons' waiver argument is that Chris Myers resorted to subterfuge to gain possession of the vehicles, and, by doing so, manifested "an intention to abandon the right" to arbitrate. Chris Myers should have, the Dickinsons suggest, "allowed the [Nissan] to remain in the possession of the Plaintiffs pending a resolution of any disputes among the parties by an arbitrator." Petition for Writ of Mandamus, at 13. They insist that "[t]he actions of the Defendants have resulted in prejudice to the Plaintiffs in that not only do the Plaintiffs not have the new vehicle they purchased, but, in addition, the trade-in vehicle used to make the purchase is ... in the possession of the Defendants or has been sold." Id. The problem with the Dickinsons' argument is that it confuses self-help with "judicial process." The rule is that a party may waive the right to compel arbitration by "invok[ing] the litigation process" in lieu of arbitration. Companion Life Insurance Co., supra, 670 So. 2d at 899. (Emphasis added.) The rule is not that a party waives the right by relying on the self-help process. By definition, self-help is not "judicial process," and we decline to extend the rule to encompass self-help. Thus, we conclude that Chris Myers had not waived the right to compel arbitration. The Dickinsons summarize their discovery argument as follows: Petition for Writ of Mandamus, at 18 (emphasis added). Chris Myers's response is that "[t]here is no factual issue with regard to the arbitrability of the claims set forth in the ... complaint." Brief in Opposition to Petition for Writ of Mandamus, at 24 (emphasis added). Indeed, the Dickinsons do not state, or even suggest, what specific facts, relevant to the issue of arbitrability, might be found during further discovery. In short, we decline to issue a writ of mandamus directing the trial judge to vacate his order compelling the arbitration of David Dickinson's claims. The claims of Sandra Dickinson, however, stand on different ground. The sole basis for Chris Myers's motion to compel arbitration was the arbitration clause in the Retail Buyer's Order, which was signed only by David Dickinson. Procedurally, therefore, the issue whether Sandra Dickinson, a nonsignatory, is bound by this arbitration clause is fundamentally different from the issues in other cases in which this Court has recently considered whether nonsignatories were bound; see, e.g., Ex parte Isbell, 708 So. 2d 571 (Ala.1997), in which a nonsignatory was attempting to rely on an arbitration clause to compel a signatory of the contract to arbitrate the signatory's claims against the nonsignatory. Here, a signatory, Chris Myers, is attempting to compel a nonsignatory, Sandra Dickinson, to arbitrate. The Federal Arbitration Act ("FAA"), 9 U.S.C. § 2, provides: (Emphasis added.) By these express terms, the FAA preserves traditional principles of contract law. "It is hornbook contract law that someone who is not a party to a contract cannot be bound by the contract." Lakeshore Drive Recreation Club, Inc. v. United States Fidelity & Guaranty Co., 398 So. 2d 278, 284 (Ala.1981) (Torbert, C.J., dissenting). "Therefore, `a party cannot be required to submit to arbitration any dispute he has not agreed to submit.'" Old Republic Ins. Co. v. Lanier, 644 So. 2d 1258, 1260 (Ala.1994). Procedurally, this case is postured identically with Thomson-CSF, S.A. v. American Arbitration Ass'n, 64 F.3d 773 (2d Cir. 1995), in which the Court of Appeals for the Second Circuit refused to compel arbitration. Id. at 780. In that case, as in this one, the signatory was seeking to compel a nonsignatory to arbitrate. The court considered that procedural distinction to be an important factor. Id. at 779. After considering Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753 (11th Cir.1993), cert. denied sub nom., Sunkist Growers, Inc. v. Del Monte Corp., 513 U.S. 869, 115 S. Ct. 190, 130 L. Ed. 2d 123 (1994); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315 (4th Cir.1988); and McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342 (11th Cir.1984)cases that have been cited in dissenting opinions by Justices of this Court, see, e.g., Ex parte Stripling, 694 So. 2d 1281 (Ala.1997)(Maddox, J., dissenting); Ex parte Martin, 703 So. 2d 883 (Ala. 1996) (Hooper, C.J., dissenting); and Ex parte Jones, 686 So. 2d 1166 (Ala.1996)(Maddox, J., dissenting), Thomson 5 noted that "the circuits have been willing to estop a signatory from avoiding arbitration with a nonsignatory when the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed." Id. at 779 (emphasis in original). It then distinguished those cases, with the following explanation: Id. at 779 (emphasis added). Sandra Dickinson, like Thomson, never agreed to arbitrate anything. Yet Myers, as E & S sought unsuccessfully to do in Thomson, seeks to compel her to arbitrate, and it seeks to compel her simply on the ground that Myers and David Dickinson had agreed to arbitrate. That is not the law of contracts in this state. The mere fact that the Nissan was apparently to be owned jointly by David and Sandra Dickinson is not dispositive. In Peterson v. David "Spud" Bishop Contractor, Inc., 547 So. 2d 492 (Ala.1989), for example, we held that a wife, who was not a signatory to a contract for the renovation of a home owned jointly with her husband, was not obligated to pay for renovations done pursuant to the contract her husband signed. Id. at 493. We explained: "If we held otherwise, then a husband or wife would rarely be able to enter a contract of this nature with a third party *990 without the spouse's being deemed to have ratified the contract." Id. For these reasons, we grant the petition to the extent the trial court's order compels arbitration of Sandra Dickinson's claims. Because she was not a signatory to a contract containing an arbitration clause, she cannot be compelled to arbitrate. Otherwise, the petition is denied. PETITION GRANTED IN PART AND DENIED IN PART. ALMON, SHORES, and KENNEDY, JJ., concur. BUTTS, J., concurs in the result. HOOPER, C.J., and MADDOX, HOUSTON, and SEE, JJ., concur in part and dissent in part. MADDOX, Justice (concurring in part and dissenting in part.) I concur with the portion of the main opinion that affirms the trial court's order compelling David Dickinson to submit his claims to arbitration; however, I must respectfully dissent from the main opinion's conclusion that Sandra Dickinson's claims are not subject to arbitration. The undisputed facts are that both David and Sandra Dickinson were present at the execution of the Retail Buyer's Order;[1] that David voluntarily signed the order; and that Sandra observed the signing and did not object to the terms of the contract, in which she was listed as a "co-buyer." The plaintiffs signed various other documents on the day of the purchase.[2] The documents were signed by David, or Sandra, or both. Chris Myers argues that the Dickinsons sought joint ownership of one automobile through one transaction, which was witnessed and assented to by both parties. The Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., provides, in pertinent part: 9 U.S.C. § 2. Under 9 U.S.C. § 3, a party may seek a stay of proceedings pending arbitration, but in order to do so, must show (1) that a valid written arbitration agreement exists; (2) that the issues in the action are referable to arbitration under the agreement; and (3) that the party is not in default in seeking arbitration.[3] Under the provisions of § 2 of the FAA, a party seeking arbitration must show that the agreement in question involves interstate commerce. Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). The United States Supreme Court recognizes a strong federal policy favoring arbitration and recognizes that the provisions of the FAA preempt any state substantive or procedural policies to the contrary. See Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 22, 103 S. Ct. 927, 940, 74 L. Ed. 2d 765 (1983). The Supreme Court has stated that the effect of the FAA "is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act." Id., 460 U.S. at 24, 103 S. Ct. at 941. Under this policy and under federal caselaw, *991 one does not have to be a signatory to a contract to be bound by the provisions of an arbitration clause. Several federal courts have addressed this issue and have held, based upon the theory of estoppel, otherwise known as the "close relationship test," that "[a] signatory was bound to arbitrate with a nonsignatory at the nonsignatory's insistence because of `the close relationship between the entities involved, as well as the relationship of the alleged wrongs to the nonsignatory's obligations and duties in the contract ... and [the fact that] the claims were `intimately founded in and intertwined with the underlying contract obligations.'" Thomson-CSF, S.A. v. American Arbitration Ass'n, 64 F.3d 773, 779 (2d Cir.1995); see also Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993), cert. denied, 513 U.S. 869, 115 S. Ct. 190, 130 L. Ed. 2d 123 (1994); McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 320-21 (4th Cir.1988).[4] Sandra Dickinson, the nonsignatory, is suing for damages, based on the very contract in which the arbitration agreement is found. Can she pick and chose which parts she affirms and which she disavows? Stated differently, can she recover damages for an alleged breach of the contract and disavow the arbitration agreement that forms a part of the contract? I think not. The facts of this case are similar to those of Ex parte Gray, 686 So. 2d 250 (Ala.1996), where this Court required the plaintiff to arbitrate claims against an automobile dealer's salesman even though the salesman had not signed the Retail Buyer's Order. Also, the scope of the Dickinsons' arbitration clause is the same as that in Gray. Sandra Dickinson's acting jointly with her husband to purchase the automobile, her signing several documents individually during its purchase, and her presence and lack of objection during the signing of the Retail Buyer's Order, which contained her name as a co-buyer, all reflect an intention on the part of Sandra Dickinson to be bound by the agreement, even though she did not sign it. My opinion, based upon the facts in this case, is that under Alabama and federal law, Sandra Dickinson's relationship to the parties is sufficiently close, and her claims so "intimately founded in and intertwined with the underlying contract obligations," as to make her subject to the arbitration clause. Thomson-CSF, S.A., supra. See Ex parte Stripling, 694 So. 2d 1281 (Ala.1997) (noting that there are exceptions to the general rule that a nonsignatory cannot be bound by an arbitration agreement or compel arbitration); Prudential Securities, Inc. v. Micro-Fab, Inc., 689 So. 2d 829 (Ala.1997) (recognizing and applying the "close relationship" test, Sunkist, supra); Palm Harbor Homes, Inc. v. Crawford, 689 So. 2d 3 (Ala.1997) (holding that Palm Harbor had waived its right to compel arbitration but not holding that, absent a waiver, Palm Harbor, a nonsignatory, did not have the right to compel arbitration); Ex parte Gray, supra, 686 So. 2d at 251 (holding that an agent, even though a nonsignatory, was entitled to compel arbitration, based upon the principle that "[a] party should not be able to avoid an arbitration agreement merely by suing an employee of a principal"); Ex parte Martin, [Ms. 1951420, November 8, 1996] 703 So. 2d 883 (Ala.1996) (holding that the arbitration clause was not broad enough to allow Palm Harbor, a nonsignatory, to compel arbitration); Ex parte Jones, 686 So. 2d 1166 (Ala.1996) (holding that one must be a signatory to a contract to compel arbitration); Ex parte Gates, 675 So. 2d 371 (Ala. 1996) (holding that a nonsignatory could compel arbitration where the arbitration clause was sufficiently broad to encompass its claim); Ex parte Stallings & Sons, Inc., 670 So. 2d 861 (Ala.1995) (holding that a party could not compel arbitration when the contract did not contain an arbitration agreement and specifically required written consent to arbitrate). Based on the foregoing, I dissent from that portion of the opinion directing the trial court to vacate its order compelling Sandra Dickinson to arbitrate her claims. HOOPER, C.J., and HOUSTON and SEE, JJ., concur. COOK, Justice. APPLICATION OVERRULED. ALMON, SHORES, KENNEDY, and BUTTS, JJ., concur. HOOPER, C.J., and MADDOX, HOUSTON, and SEE, JJ., dissent. MADDOX, Justice (dissenting). Chris Myers Pontiac-GMC, Inc., admittedly filed its application for rehearing in reliance upon Boyd v. Homes of Legend, Inc., 981 F. Supp. 1423 (M.D. Ala.1997), in which the plaintiffs claimed that they were not bound by the provisions of an arbitration agreement because they had not signed the agreement. Chief Judge Myron Thompson, in an accurate and very well-reasoned interpretation of the Federal Arbitration Act as it relates to nonsignatories of an arbitration agreement, held that a person who claims benefits under a contract that contains an arbitration clause, as Sandra Dickinson does in this case, can be compelled to arbitrate even though that person did not actually sign the arbitration agreement. The holding in Boyd is consistent with the federal cases holding that a nonsignatory to a contract can be compelled to arbitrate any claim that is "intimately founded in and intertwined with the underlying contract obligations." Thomson-CFS, S.A. v. American Arbitration Ass'n, 64 F.3d 773, 779 (2d Cir. 1995). As I stated in my special writing on original deliverance, "Sandra Dickinson, the nonsignatory, is suing for damages, based on the very contract in which the arbitration agreement is found." 711 So. 2d at 991 (emphasis original). HOOPER, C.J., and HOUSTON, J., concur. [1] On that order the following names and designations appear at the top: "David R. Dickinson, Buyer" and "Sandra L. Dickinson, Co-Buyer." [2] These documents include: "Buyer's Order," "Financing Contract," "Powers of Attorney," and "Odometer Disclosure Statement." [3] The FAA provides, at 9 U.S.C. § 3: "If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration." See Complaint of Hornbeck Offshore (1984) Corp., 981 F.2d 752, 754 (5th Cir. 1993). [4] See Ex parte Jones, 686 So. 2d 1166 (Ala.1996) (Maddox, J., dissenting).

March 20, 1998

e2211bd2-cf00-435e-a702-ac17c73179f4

Ex Parte Segrest

718 So. 2d 1

1961338

Alabama

Alabama Supreme Court

718 So. 2d 1 (1998) Ex parte Philip Dale SEGREST. (Re Tracy F. Hudmon SHIVER v. Kenneth R. HUDMON). 1961338. Supreme Court of Alabama. May 8, 1998. *2 Robert M. Weinberg, asst. atty. gen., for petitioner. Macbeth Wagnon, Jr., of Bradley, Arant, Rose & White, L.L.P., Birmingham, for Thomas L. Rountree. SEE, Justice. This petition for a writ of mandamus arises from the refusal of an attorney, Thomas Rountree, to appear in the Circuit Court of Chambers County to answer a charge of contempt. The attorney petitioned the Court of Civil Appeals for a writ of prohibition, challenging the trial court's jurisdiction to hold him in contempt. That court issued the writ. Ex parte Rountree, 694 So. 2d 13 (Ala. Civ.App.1997). The trial judge then petitioned this Court for a writ of mandamus directing the Court of Civil Appeals to set aside its writ. Rule 21(e), Ala. R.App. P. Because we conclude that the trial court had jurisdiction to hold contempt proceedings concerning the attorney, we grant the trial judge's petition for the writ of mandamus. Underlying this proceeding is a claim in the Circuit Court of Chambers County filed against Kenneth Hudmon by his ex-wife for payments, including delinquent child support payments, she alleges were due under a divorce judgment. On October 2, 1996, Hudmon asked Rountree, an attorney in Lee County, to represent him at a hearing that was scheduled for October 3.[1] Rountree told Hudmon that he could not represent him on that day because of a scheduling conflict, but Rountree advised Hudmon that if Hudmon could obtain a three- to four-week continuance then Rountree would represent him at that time. On the same day, October 2, 1996, Rountree contacted the attorney for Hudmon's ex-wife to discuss a continuance. Rountree offered to have Hudmon pay $1,000 of the delinquent child support payments if the ex-wife would agree to a three-to four-week continuance. When Rountree was advised that Hudmon's ex-wife would not agree to a continuance, he wrote a letter, dated October 2, explaining to the trial court that he was willing to represent Hudmon if the court would grant a continuance for three or four weeks. The letter stated in pertinent part: Rountree gave the letter to Hudmon, asking him to hand deliver it to the trial court at the hearing scheduled for the next day, October 3. On the morning of October 3, 1996, before the delivery of Rountree's letter to the trial court, Hudmon's ex-wife agreed to a continuance. Her attorney prepared a proposed order granting the continuance, but left blank the date of the next hearing. The proposed order listed Rountree as Hudmon's current attorney. The trial court, believing that Rountree was Hudmon's attorney, and unaware that Rountree had requested a three- to four-week continuance, completed and issued the order, rescheduling the hearing for October 8. On Saturday, October 5, 1996, Rountree received a copy of the order granting the five-day continuance. On Monday, October 7, Rountree contacted the ex-wife's attorney and told him that he could not represent Hudmon at that time and that he could not attend the hearing scheduled for October 8. Rountree also informed Hudmon that Hudmon *3 either would have to find another attorney or would have to represent himself at the October 8 hearing. Rountree did not, however, inform the trial court that he would not appear for the October 8 hearing. At the hearing on Tuesday, October 8, 1996, Hudmon gave the trial court Rountree's October 2 letter requesting a three- to four-week continuance. The trial court expressed surprise at Rountree's absence and at his failure to inform the court on Monday, October 7, that he would not attend. Under questioning from the trial court, Hudmon admitted that he still did not have the funds to meet his delinquent child support obligations. Hudmon also stated that Rountree was familiar with numerous details regarding Hudmon's inability to make the child support payments. The trial court entered a judgment against Hudmon for the amounts past due, but was unwilling to punish Hudmon with a jail sentence for nonpayment, because Hudmon was not represented by an attorney at that hearing. Because the trial court was unsatisfied with the reasons for Rountree's absence and with his failure to contact the trial court, it cited Rountree for contempt and ordered him to appear at the next hearing. The trial court continued the case until October 29 (27 days after Rountree's October 2 request for a three- to four-week continuance). When Rountree learned that he had been cited forcharged withcontempt, he telephoned the trial judge and informed him that he did not represent Hudmon. Nonetheless, the trial judge orally ordered Rountree to appear on October 29, 1996, to explain why he had not attended the October 8 hearing. In a letter dated October 17, Rountree explained to the trial judge that he did not represent Hudmon. The trial judge responded with a written order dated October 22, withholding judgment on the October 8 contempt citation, but directing Rountree to appear on October 29 to explain why he should not be held in contempt of court. On October 28, 1996, Rountree mailed to the Court of Civil Appeals a petition for a writ of prohibition directing the trial court not to proceed on the contempt citation at the hearing scheduled for October 29. Rountree did not attend the October 29 hearing. At the October 29 hearing, Hudmon was represented by another attorney; at that hearing he reached a settlement with his ex-wife, which prevented his being jailed for noncompliance with the trial court's previous order to pay the child support. The trial court contacted the Court of Civil Appeals, confirmed that it had not received a petition for a writ of prohibition from Rountree, and then cited Rountree a second time for contempt and issued a warrant for Rountree's arrest. The trial court did not, however, enter a judgment of contempt. Later on the day of October 29, 1996, the Court of Civil Appeals ordered a stay of the contempt proceeding. With an opinion dated April 25, 1997, the Court of Civil Appeals issued a writ of prohibition directing the trial court to withdraw its order requiring Rountree to appear and respond to the contempt citations. The Court of Civil Appeals concluded that because Rountree did not represent a party to the proceeding, had not filed an appearance in the trial court, and was not an official attorney of record in the case, the trial court's inherent contempt powers were not broad enough to reach Rountree. See Rountree, 694 So. 2d 13. The trial judge then filed in this Court this petition, styled as a petition for the writ of prohibition, but which we treat as a petition for the writ of mandamus, asking this Court to direct the Court of Civil Appeals to set aside its writ. The attorney general, on behalf of the trial judge, first asserts that a writ of prohibition is not available to address anticipated errors in a contempt proceeding where those errors may be remedied on appeal. Specifically, he asserts that we should order Rountree to appear at a contempt hearing, allow him to complete the proceedings on the contempt citations, and then on appeal review the judgment, or judgments, if he is found in contempt. Rountree responds by arguing that a writ of prohibition is appropriate because he challenges the trial court's jurisdiction over him. The Court of Civil Appeals held that a writ of prohibition was the proper *4 procedure for challenging the jurisdiction of the trial court to hold a person in contempt. We agree. The attorney general correctly states that Alabama provides a statutory right to appeal from a judgment of contempt. Section 12-1-11, Ala.Code 1975, provides for such an appeal, and that section states that "[o]n such appeal the question shall be whether the appellant was guilty of contempt." The question here, however, is not whether Rountree is guilty of contempt, an issue yet to be determined, but whether the trial court had the jurisdiction to make such a determination. A writ of prohibition is a preventive measure, rather than a corrective remedy. Ball v. Jones, 272 Ala. 305, 315, 132 So. 2d 120, 128 (1961). Its purpose is to prevent a lower court from acting outside its jurisdiction. State v. Crossman, 687 So. 2d 817, 818 (Ala.Crim.App.1996). Accord Ex parte City of Tuskegee, 447 So. 2d 713, 716 (Ala.1984); Ex parte State ex rel. Bragg, 240 Ala. 80, 85, 197 So. 32, 36 (1940). Accordingly, we hold that Rountree's petitioning the Court of Civil Appeals for a writ of prohibition was the proper procedure for challenging the trial court's jurisdiction in this contempt proceeding.[2] The attorney general also argues that the trial court has the inherent authority to hold contempt proceedings with respect to attorneys because attorneys are officers of the court. The attorney general further argues that Rountree's material involvement in the trial proceedings subjected him to jurisdiction in a contempt proceeding. Rountree responds by arguing that the inherent jurisdiction of the trial court to hold contempt proceedings cannot extend to him because he never made an official appearance in the case. Lee v. Martin, 533 So. 2d 185 (Ala. 1988); Maner v. Maner, 279 Ala. 652, 189 So. 2d 336 (1966). The Court of Civil Appeals noted that "Rountree did not represent any of the parties in the underlying case before the trial judge ... [and] ... Rountree was not an attorney of record in the underlying case [and did not] make an appearance in that case." Rountree, 694 So. 2d at 18. Thus, that court concluded that the trial court did not have jurisdiction over Rountree. We disagree. A properly crafted jurisprudential test must advance the intrinsic legal interests at stake and must prove amenable to practical application by the bench and bar. See generally Benjamin N. Cardozo, The Nature of the Judicial Process 28, 40-41, 48 (1926) (emphasizing that a jurisprudential rule must accurately embody the fundamental conceptions of the interests at stake and stating that the rule will be reframed if it does not); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407-08, 52 S. Ct. 443, 76 L. Ed. 815 (1932) (Brandeis, J., dissenting) (stating that a judicial standard should be modified or replaced if it fails to withstand the force of better *5 reasoning); Swift & Co. v. Wickham, 382 U.S. 111, 116, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965) (stating that a jurisprudential standard that has proven unworkable in practice should be replaced). The test articulated by the Court of Civil Appeals limited the trial court's contempt jurisdiction to those persons with an official connection to the case. This test provides a workable standard, but it fails to adequately advance the intrinsic interests of the judiciary in the effective and efficient conduct of its proceedings. Requiring that an attorney have an official connection to a particular case before his actions will bind a litigant principally advances the due process interests of that litigant in receiving effective notice of legal proceedings. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950) ("An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."); Alabama Alcoholic Beverage Control Bd. v. State ex rel. Krasner, 247 Ala. 469, 471, 25 So. 2d 30, 32 (1945) (stating that due process requires that a party have adequate notice of a proceeding before that party can be bound by that proceeding). For example, in Maner, 279 Ala. 652, 189 So. 2d 336, this Court considered whether notice sent to a Florida attorney bound a litigant in an Alabama proceeding. This Court held that because the Florida attorney was not the litigant's attorney of record in the Alabama proceeding, the notice to the Florida attorney was insufficient to bind that litigant to the judgment of the Alabama court. Id. at 658, 189 So. 2d at 342. See Lee, 533 So. 2d at 186 (defining an "appearance" not to include mere negotiation between parties and counsel outside of court, but to include the filing of some writing with the court). Thus, the "official connection" test used by the Court of Civil Appeals advances the interests of the litigants in receiving notice of judicial proceedings that may bind them. While the official connection test adequately advances the due process interests of the litigants, those interests are not at issue in this case. Instead, this case concerns the interests of the Judicial Branch of government in the effective and efficient conduct of court proceedings. The Constitution of Alabama of 1901 vests the judicial power in the Unified Judicial System. Ala. Const.1901, amd. 328, § 6.01(a).[3] The judicial power, at its core, is the power to render final judgments in cases before the courts. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995) (stating that the Constitution gives the "Judiciary the power, not merely to rule on cases, but to decide them"); Sanders v. Cabaniss, 43 Ala. 173, 177 (1869) (stating that the judicial power requires the exercise of judgment in a case or controversy). Inherent in the constitutional obligation to render final judgments is the power to conduct judicial proceedings in an efficient and effective manner. See Ex parte Wetzel, 243 Ala. 130, 132, 8 So. 2d 824, 825 (1942) (stating that a court has the "inherent power" to punish for contempt); Hall v. Hall, 485 So. 2d 747, 749-50 (Ala.Civ.App.1986) (stating that the Judiciary's authority to protect its adjudicatory processes is fundamental to its ability to effectively and efficiently administer justice). The interests implicated in effectively and efficiently conducting a judicial proceeding are not adequately served by limiting the exercise of judicial power to those who have an official connection to the proceeding. The administration of a judicial proceeding may be adversely affected by persons with no official connection to the proceeding. For example, in Coleman v. Roberts, 113 Ala. 323, *6 21 So. 449 (1896), this Court stated that all who were present, whether by court order or voluntarily as mere bystanders or spectators, were subject to the contempt jurisdiction of the court, insofar as was necessary for the preservation of its order and decorum. Also, in Ex parte Mayor of Birmingham, 134 Ala. 609, 33 So. 13 (1902), this Court held that a trial court's contempt power extended to the prohibition of pedestrian travel along a street immediately in front of the courthouse, when the travel interfered with the administration of justice. The key interest to be protected by the contempt power, then, is a court's freedom from interference in the conduct of a judicial proceeding, whether that interference is caused by persons having an official connection to the proceeding, or by others. See, e.g., Ex parte Mayor of Birmingham, 134 Ala. 609, 33 So. 13. There are three prerequisites to the trial court's use of the contempt power to protect its proceedings from interference: (1) jurisdiction over an underlying legal proceeding;[4] (2) jurisdiction over the subject matterthe contempt;[5] and (3) jurisdiction over the personthe contemnor. Robertson v. State, 20 Ala.App. 514, 526, 104 So. 561, 573 (1924) (citing Ex parte Creasy, 243 Mo. 679, 699, 148 S.W. 914, 920 (1912)).[6] To the extent there has been interference with a court's judicial proceeding, that court has subject matter jurisdiction over that interference. By virtue of the interference, the trial court has personal jurisdiction over any person who is a significant cause of that interference. An assessment of each of these elements should be set forth in the trial court's order or in transcripts of a hearing, to facilitate proper appellate review. The issue in this case is the degree of interfering contact a person must have with a judicial proceeding to invest the court with personal jurisdiction over him. We hold that the personal jurisdiction of a court to charge a person with contempt extends to those persons who have caused significant interference with the orderly and efficient conduct of that court's judicial proceedings. To decide whether the trial court may exercise its contempt power against Rountree, we must examine the facts and circumstances and determine whether each of the prerequisites for the exercise of such power exists. First, none of the parties disputes the trial court's jurisdiction over the underlying child support case. Robertson, 20 Ala. App. at 526, 104 So. at 573. Second, the delay of both the October 8, 1996, hearing *7 and that portion of the October 29 hearing concerning Rountree constituted interference, and thus conferred subject matter jurisdiction on the trial court. See Northern v. Hanners, 121 Ala. 587, 588, 25 So. 817, 817 (1899) (noting that delay of justice has long been punished by contempt). Third, Rountree engaged in conduct that caused significant interference with the trial court's proceedings; thus, the trial court had personal jurisdiction over him. Robertson, 20 Ala.App. at 526, 104 So. at 573. The trial court held a hearing on October 8, 1996, but postponed imposing punishment on Hudmon for nonpayment of child support until October 29, because of Rountree's failure to inform the trial court of his inability to attend the October 8 hearing. Although he received a copy of the trial court's order stating that the hearing was set for Tuesday, October 8, Rountree, an attorney and officer of the court, made no effort to inform the trial court that he would not attend that hearing. See Jackson v. State, 337 So. 2d 1281, 1284 (Ala.1976) ("If conflicts in scheduling arise, prompt, considerate notice to the judge should be provided....").[7] Moreover, Rountree affirmatively interjected himself into the proceeding by sending a hand-delivery letter to the trial court stating that he would represent Hudmon if granted a three-to four-week continuance. After Rountree had received the three- to four-week continuance he had requested, and after he had received oral and written orders from the trial court to appear at the October 29, 1996, hearing, he nevertheless failed to appear. Further, he did not file a copy of his petition for a writ of prohibition with the trial court before the date set for the hearing. Thus, the trial court engaged in a further proceeding a portion of which could have been avoided if Rountree had filed a copy of his writ of prohibition with the trial court before October 29. See Jackson, 337 So. 2d at 1283-84 (requiring notice to the judge); Northern, 121 Ala. at 588, 25 So. at 817 (providing that delay of judicial proceedings is punishable by the contempt power). We hold that these delays constitute significant interference with the trial court's proceedings and that they are therefore sufficient to confer on the trial court personal jurisdiction over Rountree.[8] Rountree contends that if we hold that the trial court does have jurisdiction over him, then we should order the trial judge to refer the contempt proceeding to another judge. Rountree states that referral is required because of heated exchanges he says have occurred between the trial judge and Rountree and Hudmon. Rule 70A(f), Ala. R. Civ. P., provides in pertinent part: Although a motion for transfer would normally be made first to the trial court, see generally Ex parte Crawford, 686 So. 2d 196 (Ala.1996), our careful review of the materials before us indicates that the trial judge was involved in the sequence of events that led to the discord below and that he will probably be a witness regarding his out-of-court communications with Rountree. Thus, referral under Rule 70A(f) is proper. *8 Because Rountree was subject to the contempt jurisdiction of the trial court, we grant the trial judge's petition for the writ of mandamus. We direct the Court of Civil Appeals to vacate its writ of prohibition and to enter an order instructing the trial judge to refer the contempt proceeding to another judge. PETITION GRANTED. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, and LYONS, JJ., concur. COOK, J., concurs in the result. KENNEDY, J., dissents. [1] Rountree had previously represented Hudmon in an unrelated matter. [2] We note that there are generally four prerequisites to the issuance of a writ of prohibition: "(1) usurpation or abuse of power by an inferior judicial or quasi-judicial tribunal, (2) lack of another adequate remedy, (3) injury to the petitioner, and (4) presentation of the question before the inferior tribunal before resorting to the writ." Barber Pure Milk Co. v. Alabama State Milk Control Bd., 274 Ala. 563, 565, 150 So. 2d 693, 695 (1963). However, "the petitioner need not make application to an inferior tribunal before resorting to the writ of prohibition where it is apparent that objection would be unavailing." Id. at 566, 150 So. 2d at 695. While ordinarily it would be necessary for Rountree to appear before the trial court as directed, before he could petition for a writ of prohibition, our review of the materials before us indicates that submitting the jurisdictional question to the trial judge would have been unavailing in this case. Before filing the petition for writ of prohibition with the Court of Civil Appeals, Rountree twice had attempted to avoid the October 29, 1996, hearing, asserting that he had never made an official appearance in the case. Unconvinced, the trial judge responded with oral and written orders demanding his appearance at the October 29 hearing. After Rountree had filed his petition for the writ of prohibition, the trial judge remained steadfast in his position, explaining in a letter dated November 18 that he was "well within [his] rights in dealing with all matters involving Mr. Rountree." This demonstrates that it would have been unavailing for Rountree to submit the jurisdictional issue to the trial judge before petitioning for the writ of prohibition. [3] Section 42 of the Constitution of Alabama of 1901 provides: "The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative to one; those which are executive, to another; and those which are judicial, to another." [4] This Court has previously held that parties to a proceeding as to which the trial court lacked jurisdiction were not within the contempt jurisdiction of the court. See State v. Thomas, 550 So. 2d 1067 (Ala.1989). The power to protect the orderly and efficient administration of judicial proceedings does not extend to interference in proceedings that are extrajurisdictional and illegal. See Board of Revenue v. Merrill, 193 Ala. 521, 68 So. 971 (1915); see generally, P.H. Vartanian, Annotation, Right to Punish for Contempt for Failure to Obey Court Order or Decree Either Beyond Power or Jurisdiction of Court or Merely Erroneous, 12 A.L.R.2d 1059 (1950). [5] We note that "contemptuous interference" may take many forms. "Indirect" interference may consist of willful disobedience or resistance to orders or process of the court. In re Tarpley, 293 Ala. 137, 300 So. 2d 409 (1974). "Direct" interference make take several forms, including: "(1) Disrespectful, contemptuous or insolent behavior in court, tending in any way to diminish or impair the respect due to judicial tribunals or to interrupt the due course of trial; "(2) A breach of the peace, boisterous conduct, violent disturbance or any other act calculated to disturb or obstruct the administration of justice, committed in the presence of the court or so near thereto as to have that effect; "(3) The misbehavior of any officer of the court in his official transactions or the disobedience or resistance of any officer of the court, party, juror, witness or any other person to any lawful writ, process, order, rule, decree or command thereof; "(4) Deceit or the abuse of the process of the proceedings of the court by any person or party or any unlawful interference with the process or proceedings of the court...." Ala.Code 1975, § 12-1-8. [6] In Tetter v. State ex rel. Baxley, 358 So. 2d 1043, 1045 (Ala.Crim.App.1977), the Court of Criminal Appeals overruled Robertson on the narrow issue concerning appellate jurisdiction to review criminal contempt convictions arising out of purely civil proceedings. In Tetter, the Court of Criminal Appeals held that it did not have appellate jurisdiction to review criminal contempt judgments arising out of purely civil proceedings. Accord Tetter v. State, 358 So. 2d 1046 (Ala.1978). [7] In Jackson, 337 So. 2d at 1283-84, this Court elaborated on the special relationship courts have with attorneys, who are officers of the court: "Considering the human effort and monetary expense involved in arranging courtroom hearings, the least a court may expect from its officers is appearance on schedule and full preparation for the dispatch of court business. If conflicts in scheduling arise, prompt, considerate notice to the judge should be provided so that those in attendance may not be unnecessarily inconvenienced and the business of the court may continue without interruption." [8] We, of course, do not address the merits of the contempt charges, and we recognize that Rountree may present justifiable reasons for the actions that resulted in the delays.

May 8, 1998

fd3b8ee9-6489-496d-a597-2f37ccd83d08

Ex Parte Creel

719 So. 2d 783

1961931

Alabama

Alabama Supreme Court

719 So. 2d 783 (1998) Ex parte Deborah Maudlin CREEL. (Re The ESTATE OF Joseph David CREEL, Sr., deceased). 1961931. Supreme Court of Alabama. May 29, 1998. Rehearing Denied July 17, 1998. *784 Robert L. Bowers of Bowers & Bowers, Clanton, for appellant. Richard W. Bell of Bell & McRight, P.C., Birmingham, for appellee Joyce Creel. William P. Boggs of Boggs & Hill, Clanton for appellee James A. Creel and Cherry Parmer. COOK, Justice. Deborah Maudlin Creel, who was appointed by the probate court as administratrix of the estate of Joseph David Creel, Sr., petitions for a writ of mandamus directing the circuit court to vacate its order remanding these estate proceedings to the probate court for the appointment of a different administratrix or administrator. We grant the petition. Joseph David Creel, Sr., died in February 1997. Two petitions for letters of administration of Creel's estate were filed with the Chilton County Probate Court: one by the petitioner, alleging that she was Creel's widow by virtue of a common law marriage; and one by the decedent's daughter, Cherry Creel Parmer. After a hearing, the probate court granted letters of administration to the petitioner in an order holding, in part: Pursuant to Ala.Code 1975, § 12-22-21, the decedent's daughter appealed from the order of the probate court to the Chilton County Circuit Court.[1] After a hearing, the circuit court held that the probate court did not have the authority to determine the existence of a common law marriage and remanded the cause to the probate court. The circuit court wrote: Deborah Maudlin Creel filed a motion to alter, amend, or vacate the remand order, arguing that the circuit court had "failed to give attention and weight" to Ala.Code 1975, § 12-13-1(b)(3) (establishing the jurisdiction of the probate court) and had ignored this Court's decision in Adams v. Boan, 559 So. 2d 1084 (Ala.1990). In a written order denying Deborah Maudlin Creel's motion, the circuit judge stated that he had reviewed § 12-13-1(b)(3) and had concluded that that statute did not place the establishment of common law marriages within the jurisdiction of the probate court. The order also cited Ex parte Slade, 382 So. 2d 1127 (Ala.1980), as further support for the remand order. This Court has held that the probate court's jurisdiction extends only to those matters given to it by statute, Wallace v. State, 507 So. 2d 466, 468 (Ala.1987), and that because a probate court is a court of law, it "generally does not possess jurisdiction to determine equitable issues." Lappan v. Lovette, 577 So. 2d 893, 896 (Ala.1991). However, the probate court has "original and general jurisdiction in practically all matters having to do with probate and administration of decedents' estates." Opinion of the Justices, 280 Ala. 653, 657, 197 So. 2d 456, 460 (1967). See, also, Holyfield v. Moates, 565 So. 2d 186 (Ala.1990); Broughton v. Merchants National Bank of Mobile, 476 So. 2d 97 (Ala.1985). The petitioner contends that the determination of whether a common law marriage existed between a decedent and an alleged spouse seeking appointment as administrator or administratrix is vested in the probate court pursuant to § 12-13-1(b)(3): We agree with the petitioner. In Rogers v. McLeskey, 225 Ala. 148, 142 So. 526 (1932), the Probate Court of Etowah County denied the appellant's right of homestead and exemption from the decedent's will, based on its finding that she was not the decedent's common law wife and, therefore, not his widow. On appeal, however, the jurisdiction and authority of the probate court were not at issue, and the decision addressed the issue of sufficiency of the evidence to support the probate court's judgment that the appellant was not the widow of the decedent. *786 Similarly, in Kelly v. Kelly, 247 Ala. 316, 24 So. 2d 265 (1945), the Jefferson County Probate Court (before the enactment of the legislation granting that court equity jurisdiction; see footnote 2) granted a "widow's" petition for letters of administration and conducted a hearing when the decedent's brother filed a contest claiming that the deceased had been an unmarried man. The probate court held that a common law marriage existed between the decedent and the petitioner; the brother appealed to the circuit court. This Court affirmed the circuit court's reversal of the order of the probate court on the ground that the probate court judgment was wrong and unjust. There was, however, no objection to, or issue raised concerning, the jurisdiction of the probate court to determine the existence of a common law marriage and to base the issuance of letters of administration thereon. This Court's decision in Slade, supra, is the only authority we find for the proposition that the probate court lacks jurisdiction to determine the existence of a common law marriage. In Slade, the petitioner claimed that the Probate Court of Henry County had judicially determined that she was the common law wife of the decedent and had previously appointed her as the decedent's guardian on the ground of his mental incompetency. The petitioner sought injunctive relief from an order granting the decedent's brothers the right to remove the decedent's body from the state for burial. This Court denied the petitioner's request for a writ of mandamus: Ex parte Slade, 382 So. 2d at 1128-29 (emphasis added). Despite the language in Slade, we must conclude that, pursuant to the provisions of § 12-13-1, the probate courts of Alabama are vested with the authority to determine the existence vel non of a common law marriage as a "controversy" that relates "to the right of executorship or of administration" of a decedent's estate. We do not expand the jurisdiction of the probate court; rather, by refusing to ignore the reality of the scope of § 12-13-1(b)(3), we simply recognize that Alabama probate courts have authority over "[a]ll controversies in relation to the right of executorship or of administration" of decedents' estates, including the determination of the existence of a common law marriage. The portion of Ex parte Slade, 382 So. 2d 1127 (Ala.1980), that conflicts with our decision in this case is hereby overruled. We note that a judgment of the probate court holding that a common law marriage does, or that it does not, exist carries with it the safeguard of either removal or appeal to the circuit court, as guaranteed by § 12-11-41 and by §§ 12-22-20 and -21, respectively. Because the writ of mandamus is a drastic and extraordinary remedy, this writ is issued only when the petitioner shows 1) a clear legal right to the order sought; 2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) the proper invocation of the jurisdiction of the court. Ex parte Holland, 692 So. 2d 811 (Ala.1997). The petitioner has met these criteria. The petition for the writ of mandamus is granted. PETITION GRANTED. *787 HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, SEE, and LYONS, JJ., concur. [1] Joyce E. Creel, the decedent's ex-wife, filed a motion in the circuit court to remand the cause to the probate court and to appoint her as the administratrix of the decedent's estate. This motion was not ruled on by the circuit court. [2] The circuit court is apparently referring to the Probate Courts of Jefferson and Mobile Counties. Act No. 974, Ala. Acts 1961, granted general equity power to the Mobile County Probate Court, that power to be concurrent with that of the circuit court. Act No. 1144, Ala. Acts 1971, granted general equity power to the Jefferson County Probate Court, that power to be concurrent with that of the circuit court.

May 29, 1998

aa53f6e4-3353-406b-be0f-96e213717fef

Lyons v. Norris

727 So. 2d 780

1961601, 1961602, 1961603, 1961604, 1961642

Alabama

Alabama Supreme Court

727 So. 2d 780 (1998) G. Sage LYONS, director of finance, et al. v. John NORRIS, et al.[*] Robert Childree v. Michael Crespi. Robert Childree v. Robert L. Turner. G. Sage Lyons, et al. v. Paul D. Brown. John Norris, et al. v. G. Sage Lyons, et al. 1961601 to 1961604 and 1961642. Supreme Court of Alabama. April 20, 1998. A. Lee Miller, general counsel, Department of Finance, and Robert M. Weinberg, asst. atty. gen., for G. Sage Lyons and Robert L. Childree. Michael Crespi, pro se. Allen W. Howell and Vonda S. McLeod of Shinbaum & Howell, P.C., Montgomery, for John Norris et al. It appearing to the Court that these causes are within the appellate jurisdiction of the Court of Criminal Appeals, It is, THEREFORE, ORDERED that these causes are transferred to the Court of Criminal Appeals. HOOPER, C.J., and ALMON, SHORES, HOUSTON, KENNEDY, COOK, and SEE, JJ., concur. MADDOX, J., dissents. MADDOX, Justice (dissenting). I respectfully dissent from the order transferring these cases to the Court of Criminal Appeals. The plaintiffs in these cases, in essence, sought a declaration of their rights under § 15-12-21(d), Ala.Code 1975, to be reimbursed for certain expenses they had incurred in representing indigent defendants. Although that statute is included in Title 15 of the Code, the part of the Code dealing with criminal procedure, that fact does not alter the nature of these cases. Declaratory judgment actions are authorized by § 6-6-223, Ala.Code 1975, which provides, in part, that "[a]ny person ... whose rights ... are affected by a statute... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status or other legal relations thereunder." The provisions of this statute are to be "liberally construed." § 6-6-221, Ala.Code 1975. Cf. Sparks v. Parker, 368 So. 2d 528 (Ala. 1979), in which this Court, although not discussing which appellate court had jurisdiction, held that the proper procedure for review of a trial judge's order establishing an indigent defense system in fulfillment of a duty to establish and administer such a system, imposed upon him by the provisions of §§ 15-12-2 and -3, Ala.Code 1975, was by appeal, not by petition for the writ of mandamus. On the question which appellate court has jurisdiction, the determinative issue is the nature of the action. For example, even though a forfeiture of property can arise out of a criminal proceeding, a forfeiture of property is a civil action. See, e.g., Weldon v. State, 718 So. 2d 52 (Ala.Civ.App.1997). Declaratory judgment actions are, by their nature, civil actions; they are thus not among the types of cases falling within the appellate *781 jurisdiction of the Court of Criminal Appeals. See Ala. Const. of 1901, amd. 328, § 6.03; § 12-3-9, Ala.Code 1975. Based on the foregoing, I must disagree with the majority's order transferring these cases to the Court of Criminal Appeals. [*] Note from the reporter of decisions: When this action of the Supreme Court was released for publication, this case was pending in the Court of Criminal Appeals, docket no. CR-97-1396.

April 20, 1998

1460f871-f4f8-4145-94a1-11043985112e

Dillard v. Pittway Corp.

719 So. 2d 188

1951422, 1951423

Alabama

Alabama Supreme Court

719 So. 2d 188 (1998) Phillip Carl DILLARD and Kathy Lynn Dillard v. PITTWAY CORPORATION and Gadsden Fire Extinguisher & CO2 Service, Inc. 1951422, 1951423. Supreme Court of Alabama. April 24, 1998. Opinion Modified on Denial of Rehearing June 19, 1998. *190 Michael L. Roberts of Floyd, Keener, Cusimano & Roberts, Gadsden, for appellants. William H. Mills of Redden, Mills & Clark, Birmingham, for appellee Pittway Corporation. Dorothy A. Powell and John M. Bergquist of Parsons, Lee & Juliano, P.C., Birmingham, for appellee Gadsden Fire Extinguisher & CO2 Service, Inc. KENNEDY, Justice. Phillip Carl Dillard and his wife, Kathy Lynn Dillard, sued Gadsden Fire Extinguisher & CO2 Service, Inc. ("Gadsden Fire"), and Pittway Corporation, claiming that a smoke detector manufactured by Pittway and sold by Gadsden Fire had failed to work properly during a fire. Phillip's claims were based on personal injuries, and his wife's claims were based on loss of consortium. The trial court entered a summary judgment in favor of the defendants. The Dillards appeal. A summary judgment is proper when there is "no genuine issue of material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c), Ala.R.Civ.P. The movant has the burden of showing that this standard is met. If the movant has made a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to present evidence creating a genuine issue of material fact. Foremost Ins. Co. v. Indies House, Inc., 602 So. 2d 380 (Ala.1992). To do this, the nonmovant must produce "substantial evidence" in support of his or her claim or defense. § 12-21-12, Ala.Code 1975. "Substantial evidence" is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Viewed in the light most favorable to the nonmovant, as we must view it, the evidence suggests the following facts: Phillip Dillard's sister, Kathy Richey, operated a boarding home for the elderly in Etowah County. In 1989, she contacted Gadsden Fire about purchasing smoke detectors. She told its employee Calvin Boggs that she wanted the "best" smoke detectors because she was operating a boarding home. Boggs testified that he knew that the smoke detectors were to be used in a boarding home. Gadsden Fire did not usually keep smoke detectors in stock. It was Gadsden Fire's custom that when a customer asked for a smoke detector, a Gadsden Fire employee would purchase a smoke detector from a hardware store, add on a $4 or $5 charge for the service of choosing a smoke detector, and then sell it to the customer. Boggs purchased Pittway model 83R ionization smoke detectors for Richey. The smoke detectors were installed in the home, and new batteries were placed in the detectors approximately two weeks before the fire occurred. *191 On the morning of April 27, 1991, Richey was asleep in the living room of the home. Barbara Lemons, a sister of Kathy Richey and Phillip Dillard, came to the home around 7:00 a.m. to wash and dry clothes. She put some clothes in the washer and made coffee. She then went into the living room, where she saw smoke and fire coming out of a closet. Her screams awakened Richey. Richey opened the closet and threw the burning clothes outside the front door. One of the smoke detectors was near the closet, but the alarm had not sounded. It was not until after Richey was trying to wake the others in the home that the alarm sounded. Phillip Dillard, who lived approximately one block from the home, ran to help. He rescued one of the boarders. He then attempted to save his father, who was a boarder in the home. A portion of the roof fell in, injuring Dillard and killing his father. Another boarder, Mary Brock, was also killed in the fire. The administratrix of the estate of Mary Brock filed a wrongful death action against Kathy Richey, Gadsden Fire, and Pittway. In a separate action, Kathy Richey and Phillip Dillard sued Gadsden Fire and Pittway, based on the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), for damages based on personal injuries they had received in the fire. In that second action, Phillip Dillard's wife Kathy Lynn Dillard also sued for damages, claiming a loss of consortium; and Phillip Dillard, as executor of his father's estate, also filed a wrongful death claim against Gadsden Fire and Pittway. The trial court consolidated the actions and entered a summary judgment for Gadsden Fire and Pittway on Phillip's claims alleging personal injuries and on his wife's derivative claim alleging loss of consortium. The trial court denied Pittway and Gadsden Fire's summary judgment motions as to the other plaintiffs. The court made Gadsden Fire and Pittway's summary judgment final, pursuant to Rule 54(b), Ala.R.Civ.P. Phillip Dillard and his wife Kathy Lynn Dillard appeal. When Pittway and Gadsden Fire filed their summary judgment motions, discovery was not yet completed. Pittway and Gadsden Fire conceded the existence of a question of fact as to whether there had been a defect in the smoke detector. (R.T. 16, 37-38; C.R. 336; Pittway's brief, p. 15.) Suffice it to say, the plaintiffs presented expert evidence indicating that the smoke detectors chosen by Gadsden Fire were not the "best" type of smoke detector available. They presented evidence indicating that Pittway model 83R smoke detectors had malfunctioned, that they had been the subject of numerous consumer complaints, and that a component contained within them was the subject of a recall when it was used in another model. Specifically, the same horn used in the alarm of the model 83R smoke detectors was the subject of a recall (because corrosion had caused the horn not to work) when it was used as a component of other models. The plaintiffs also presented evidence that model 83R smoke detectors were set at a 20% obscuration level (zero is clean air and 100% is totally smoke-filled and impossible to see through). According to documents obtained during discovery, the model 83R smoke detector should have had a 7% obscuration level. Gadsden Fire argues that it is not in the business of selling smoke detectors, as that concept is employed in the AEMLD. It also argues that there was no causal relation between its handling of the smoke detector and the defect, because it merely resold the smoke detector in the same condition it was in when Gadsden Fire received it from Pittway. We disagree with both arguments. Gadsden Fire is in the business of providing fire safety products. It knew that Kathy Richey wanted the "best" smoke detectors, and, in particular, Gadsden Fire knew that the smoke detectors were going to be installed in a home where elderly people were living and that those people would need the earliest possible warning of a fire. Boggs said he went to a store and purchased a smoke detector that he perceived as being a "good brand" that should let someone know immediately if there was a fire. Boggs stated in his deposition that his "general practice" was to charge $4 or $5 for the "service" *192 of choosing a smoke detector. Additionally, there was evidence that Gadsden Fire did occasionally have smoke detectors in stock. Gadsden Fire is not entitled to a judgment based on a "no-causal-relation" defense. If the seller of a product has an opportunity to inspect the product that is superior to the opportunity of the consumer, or has knowledge of the product that is superior to that of the consumer, then it is not entitled to a "no-causal-relation" defense, even where it did not contribute to the defective condition of the product. Caudle v. Patridge, 566 So. 2d 244 (Ala.1990). In Caudle, the seller of a four-wheel-drive "conversion kit" to be installed on a truck was not entitled to a no-causal-relation defense, because he had, at the very least, a superior knowledge of the nature of the trucks on which such kits had been installed. Gadsden Fire was in the business of selling fire safety products. It undertook to choose a smoke detector for Richey. Boggs opened the smoke detector and explained to Richey how it was to be used and where it should be placed. We conclude that the trial court erred in entering the summary judgment in favor of Gadsden Fire as to the personal claims of Phillip Dillard and his wife Kathy Lynn Dillard. Pittway argues that Phillip and Kathy Lynn Dillard's injuries were not proximately caused by a defect in the smoke detectors. The purpose of a smoke detector is to provide notice of a fire. Pittway contends that Phillip had notice of the fire when he ran inside the home to help. Therefore, it argues that Phillip's personal injuries did not result from a lack of notice of the fire. In essence, Pittway is arguing that Phillip assumed the risk or was contributorily negligent by attempting the rescue. Pittway argues that Phillip was not the ultimate user or consumer of the smoke detector and that it therefore owed no duty to him; Pittway says the ultimate users or consumers were the occupants of the home. Pittway also argues that it owed no duty to Phillip under the "rescue doctrine." Proximate cause is an act or omission that in a natural and continuous sequence, unbroken by any new and independent causes, produces an injury or harm and without which the injury or harm would not occur. Thetford v. City of Clanton, 605 So. 2d 835 (Ala.1992). Foreseeability is the cornerstone of proximate cause. General Motors Corp. v. Edwards, 482 So. 2d 1176 (Ala.1985). The first question we must answer is whether it is reasonably foreseeable that a smoke detector's failure to timely sound would result in injuries. Wassman v. Mobile County Commun. Dist., 665 So. 2d 941, 945 (Ala.1995), quoting Prosser and Keeton on the Law of Torts § 41, p. 263 (5th ed.1984). As Pittway notes, a smoke detector is a safety device and its purpose is to give early notice of fire. Certainly, it is foreseeable that a person could be hurt if a smoke detector fails to give notice for all to exit the house or if the warning is delayed because of a defect in the detector. "It would be wholly inconsistent to allow the manufacturer of a safety device ... to design a defective product and then allow that manufacturer to escape liability when the product is used for an intended use...." Dennis v. American Honda Motor Co., 585 So. 2d 1336, 1340 (Ala. 1991). In a similar case involving heat detectors, we held: A "delay" in an emergency situation can give rise to proximate cause. In Wassman, supra, we held that the defendant's 39-minute delay in returning a "911" emergency telephone call was the proximate cause of the victim's death. The victim was a ventilator-dependent quadriplegic child. His mother was changing his ventilator tube when she had trouble inserting the tube. She dialed 911 but received no answer. She then telephoned an ambulance service located near her home. The service's ambulance had mechanical problems, so the service sent an ambulance from another location; the ambulance did not arrive for 30 minutes. By the time it arrived, the victim's tissues were so swollen that a tube could not be inserted. Shortly after the ambulance arrived, the defendant returned the 911 call. The victim died because of a lack of oxygen. In this present case, we conclude that it is foreseeable that a person could be injured by the delay of a smoke detector's warning. Pittway next argues that Phillip Dillard was not the ultimate user or consumer of the smoke detector, because he was not living in the home. We note that the ultimate user or consumer who seeks recovery in an AEMLD action need not have purchased the product, but could be a family member, friend, employee, guest, or donee of the purchaser. Atkins v. American Motors Corp., 335 So. 2d 134 (Ala.1976). The next question is whether a rescuer can sue under the AEMLD. The Dillards argue that they are entitled to recover for their personal injuries under the rescue doctrine in a product liability case. Pittway correctly asserts that one who is aware of danger and fails to exercise ordinary care to avoid injury cannot recover from the person whose negligence was responsible for the peril. However, under the "danger invites rescue" doctrine, one who attempts to rescue another who has been placed in peril by the defendant stands, for purposes of determining causation, in the position of the person being rescued. 57A Am.Jur. Negligence § 689 (1990). The rescue doctrine arose as a way to establish causal relation between the action of the defendant and the harm to a rescuer and to prohibit the negligent defendant from using the affirmative defenses of assumption of the risk and contributory negligence against the rescuer. Govich v. North American Systems, Inc., 112 N.M. 226, 814 P.2d 94 (1991). The rescue doctrine extends, for the benefit of the rescuer, the liability the defendant may have toward the person he placed in peril. Essentially, the rescue doctrine provides that it is always foreseeable that someone may attempt to rescue a person who has been placed in a dangerous position and that the rescuer may incur injuries in doing so. Thus, if the defendant has acted negligently toward the person being rescued, he has acted negligently toward the rescuer. Alabama has adopted the rescue doctrine as a bar to the affirmative defenses of contributory negligence and assumption of the risk. "Neither contributory negligence nor assumption of risk is charged to him who comes to the rescue of others in peril without their fault, unless the act of the rescuer is manifestly rash and reckless to a man of ordinary prudence acting in emergency." Seaboard Air Line Ry. v. Johnson, 217 Ala. 251, 254, 115 So. 168, 170 (1927); cert. dismissed, 278 U.S. 576, 49 S. Ct. 95, 73 L. Ed. 515 (1928). Atlantic Coast Line R.R. v. Jeffcoat, 214 Ala. 317, 107 So. 456, cert. denied, 271 U.S. 688, 46 S. Ct. 639, 70 L. Ed. 1152 (1926). In other words, unless the rescuer's own conduct in attempting the rescue is wanton, then the rescuer may recover from the negligent defendant. In Seaboard Air Line Ry., the plaintiff was injured when he attempted to stop a train car from striking his fellow employees. This Court held that the defendant could not defend on the doctrine of contributory negligence or assumption of the risk. Other jurisdictions have allowed the rescuer to sue the defendant under a product liability theory if the defendant's product had put the person being rescued in danger. See McCoy v. American Suzuki Motor Corp., 86 Wash. App. 107, 936 P.2d 31, review granted, *194 133 Wash. 2d 1027, 950 P.2d 478 (1997) (motorist on highway who was struck by hit-and-run driver when he stopped to aid passengers in overturned car could sue manufacturer of the overturned car under the rescue doctrine); Williams v. Foster, 281 Ill.App.3d 203, 217 Ill.Dec. 9, 666 N.E.2d 678, appeal denied, 168 Ill. 2d 628, 219 Ill.Dec. 578, 671 N.E.2d 745 (1996) (rescuer sued manufacturer of water heater based on injuries suffered while rescuing family from burning home); Welch v. Hesston Corp., 540 S.W.2d 127 (Mo. Ct.App.1976) (injured volunteer fireman sued manufacturer of haystacker machine); Govich v. North American Systems, Inc., 112 N.M. 226, 814 P.2d 94 (1991) (plaintiff sued manufacturer of coffee maker and component based on harm suffered while attempting rescue of a dog from a burning house); Guarino v. Mine Safety Appliance Co., 25 N.Y.2d 460, 255 N.E.2d 173, 306 N.Y.S.2d 942 (1969) (estate of rescuer who died of gas asphyxiation sued manufacturer of gas mask; court held that manufacturer committed culpable act by making and distributing defective oxygen-producing mask); Conaway v. Roberts, 725 S.W.2d 377 (Tex.Ct.App.1987) (rescuer sued manufacturer based on injuries suffered when he came to the aid of a neighbor trapped under a riding lawnmower). The archetype rescue case is Wagner v. International Ry., 232 N.Y. 176, 133 N.E. 437 (1921). In that case, the rescuer was seriously injured in an attempt to rescue his cousin from a moving tram; the tram was moving as a result of the railway company's negligence. The rescuer lost at trial, and an intermediate appellate court directed a judgment on the verdict for the railway company. The New York Court of Appeals reversed, rejecting the railway's primary arguments that the rescuer's attempt was outside the chain of causation and that the rescuer was contributorily negligent. Judge Benjamin Cardozo stated: 232 N.Y. at 180, 133 N.E. at 437-38. Rather than penalize the commendable human urge to rescue another in peril, we reaffirm the rescue doctrine. Therefore, we conclude that the trial court erred in entering the summary judgment in favor of Pittway as to the claims of Phillip Dillard and his wife Kathy Lynn Dillard. REVERSED AND REMANDED. HOOPER, C.J., and ALMON, SHORES, COOK, and LYONS,[*] JJ., concur. MADDOX and SEE, JJ., dissent. [*] Although Justice Lyons was not a member of this Court when this case was orally argued, he has listened to the tape of the oral argument.

June 19, 1998

839b2d1f-4173-4e81-b085-f0032c0cb435

Ex Parte Scott

728 So. 2d 172

1961460

Alabama

Alabama Supreme Court

728 So. 2d 172 (1998) Ex parte William David SCOTT. (Re William David Scott v. State). 1961460. Supreme Court of Alabama. March 20, 1998. Rehearing Denied January 15, 1999. *174 John Knowles, Geneva, for petitioner. Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent. COOK, Justice.[*] William David Scott was convicted of theft of property and of murder made capital because *175 it was committed during a burglary (§ 13A-5-40(a)(4), Ala.Code 1975) and was committed for a pecuniary consideration (§ 13A-5-40(a)(7)). The jury, voting 12-0, recommended that for the murder Scott be sentenced to life imprisonment without the possibility of parole. The trial judge overrode the jury's recommendation and sentenced Scott to death. The Court of Criminal Appeals affirmed the murder conviction and the sentence of death. Scott v. State, 728 So. 2d 164 (Ala.Cr.App.1997). We have granted certiorari review as to the murder conviction. We affirm. The Court of Criminal Appeals, in its opinion of January 17, 1997, set forth the following set of facts: 728 So. 2d at 165-166. The Court of Criminal Appeals addressed the following six arguments in its opinion: Scott makes these arguments and 21 more on this certiorari review. We have combined some of Scott's arguments for discussion purposes in this opinion. Not all of the arguments raised by Scott will be discussed in this opinion. Scott contends that the only testimony at trial connecting him to the murder was the testimony of two accomplices to the crime, James Linder and James Fletcher. He argues that their testimony was not corroborated by any other evidence at trial. Section 12-21-222, Ala.Code 1975, states: The Court of Criminal Appeals has written: Steele v. State, 512 So. 2d 142, 143-44 (Ala. Crim.App.1987). See also Herring v. State, 540 So. 2d 795, 799 (Ala.Cr.App.1988). This Court has defined the verb "to corroborate," in the context of § 12-21-222. Ex parte Bankhead, 585 So. 2d 112, 119 (Ala. 1991). See also Hergott v. State, 639 So. 2d 571, 573 (Ala.Cr.App.1993). If the testimony of the accomplices, Linder and Fletcher, is eliminated, the following evidence remains: The testimony of Rita Boyette, whose car was stolen on the night of the murder and, upon recovery, had the defendant's fingerprints in it; Naomi Stevens's testimony that she was employed at a produce stand owned and operated by Griffin and that approximately one week before the murder Scott had inquired of her as to the whereabouts of J.W. Griffin;[2] and the testimony of Blanche Kay Klapper, a friend of Scott's, who indicated that he confided to her upon his return to Ocala, from "a job," that he could be "looking at facing the [penitentiary] or maybe the [electric] chair because somebody was killed." Scott v. State, 728 So. 2d at 166. The testimony of Rita Boyette and the prints found in her car placed Scott, who was from Florida, very near the scene of the crime on the night it occurred. Chevere v. State, 607 So. 2d 361, 366 (Ala.Cr. App.1992). Considered together, Ms. Boyette's testimony placing the defendant near the crime scene, Ms. Stevens's testimony that the defendant had inquired regarding Griffin's whereabouts, and Ms. Klapper's testimony that the defendant had confided to her when he returned to Ocala that he could be "looking at facing the pen or maybe the chair because somebody was killed," Scott v. State, 728 So. 2d at 166, the evidence remaining after we subtract the accomplices' testimony tended to connect Scott with the murder of Griffin. Chevere v. State, 607 So. 2d 361, 365 (Ala.Cr. App.1992). The defendant next argues that the trial court did not adequately instruct the jury that neither Linder's testimony nor Fletcher's testimony could be used to corroborate the testimony given by the other. We conclude that the jury instructions were not erroneous. Ex parte Musgrove, 638 So. 2d 1360, 1365 (Ala.1993). The entire instruction to the jury on the question of accomplice testimony was as follows: R.T. at 902-05. Scott claims that the jury was misled to believe that Linder's testimony could be used to corroborate Fletcher's testimony *180 and vice versa. However, the trial judge specifically charged the jury as follows: R.T. at 903-04. We find no error in these instructions. The defendant next contends that the State used the testimony of Officer Jimmy Hand to provide the "reason" the murder occurred. Most of Hand's testimony, according to the defendant, constituted hearsay and should not have been admitted into evidence. Hand's testimony provided the jury the following information surrounding the murder: J.W. Griffin, the victim, had been an informant in an investigation of Jesse Richburg. In addition, Griffin's former wife, Rhonda Bohannan, was romantically involved with Richburg, and a dispute had arisen as to the paternity of Bohannan's child. Finally, Hand's testimony indicated that Ms. Bohannan knew that Griffin had been informing on Richburg. Jimmy Hand, who, in addition to being an investigator, was Griffin's nephew, testified at trial regarding Ms. Bohannan's marriage to Griffin and their subsequent divorce. During questioning, the defendant objected to questions asked by the prosecution regarding a paternity dispute involving Bohannan's child. These objections were sustained; therefore, as to these questions there is nothing for this Court to review. Weaver v. State, 682 So. 2d 488, 492 (Ala.Cr.App. 1996). Next, the defendant argues that the trial court erred in allowing Hand to testify as follows: R.T. at 769-71. Scott did not object to Hand's testimony. Kuenzel v. State, 577 So. 2d 474, 489 (Ala.Cr. App.1990). While it was error for Hand to testify as to the thought processes of Bohannan, i.e., that Bohannan "knew" Griffin was informing on Richburg (see Dyson v. State, 591 So. 2d 559, 563 (Ala.Cr.App.1991)), the *181 entire transcript of the testimony from Hand, who said he had seen Bohannan with Richburg before Griffin's death, as well as afterwards, indicates that Hand had inferred her knowledge from the other facts as to which he testified. Any error in this regard, therefore, did not rise to the level of plain error. Scott contends that the two counts alleging capital murder were improperly joined with the theft count. He argues that the capital counts and the theft count were not of the same character or of a similar character, that they were not based on the same conduct, and that they could not have been properly consolidated as related to parts of a common plan or scheme. See Rule 13.3(a), Ala.R.Crim.P.; Yelder v. State, 630 So. 2d 92, 95-96 (Ala.Cr.App.1991). He submits that geography is the only factor connecting the two crimes and that, because of the joinder, he was forced to concede the theft. We disagree. Gagliardi v. State, 695 So. 2d 206, 207 (Ala. Cr.App.1996). Furthermore, Snell v. State, 677 So. 2d 786, 789 (Ala.Cr. App.1995). In this case, Rita Boyette's car was stolen immediately after the murder and was used by the defendant to transport himself away from the vicinity of the crime to Florida. According to the evidence, the car was apparently stolen after Linder, who was supposed to park his truck and wait for Scott to return after the killing, was questioned by the police and was told to move along. Clearly, the two crimes were "[connected] in their commission" and were "part of a common scheme or plan." Gagliardi v. State, 695 So. 2d 206, 207 (Ala.Cr.App.1996), quoting Yelder v. State, 630 So. 2d 92 (Ala.Cr.App. 1991), rev'd on other grounds, 630 So. 2d 107 (Ala.1992). Thus, no error occurred in regard to the joinder of the murder charges and the theft charge. Scott contends that the fingerprints lifted from the stolen vehicle and offered into evidence were improperly admitted because, *182 he argues, the State failed to establish a proper chain of custody for those fingerprints. In support of this claim, he cites Knight v. State, 659 So. 2d 931 (Ala.Cr.App. 1993), which reversed a criminal conviction because the State had not established a proper chain of custody for pieces of glass from which the defendant's fingerprints were lifted. In that case, the Court of Criminal Appeals reversed a conviction for receiving stolen property in the first degree, stating: Knight v. State, 659 So. 2d at 932. Scott did not object at trial as to the chain of custody, and he did not make this claim in the Court of Criminal Appeals; therefore, we will consider his argument under the "plain error" rule. See Kuenzel v. State, 577 So. 2d 474, 489 (Ala.Cr.App.1990). In Magwood v. State, 494 So. 2d 124 (Ala. Crim.App.1985), aff'd, 494 So. 2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 599 (1986), the Court of Criminal Appeals held that fingerprint evidence was properly admitted where the prints were identified by the persons who took them and those persons testified that the prints were in substantially the same condition when offered at trial as when they were taken from the crime scene: 494 So. 2d at 144. At Scott's trial, the State offered the testimony of James Bryan Gettemy, a senior crime laboratory analyst, who testified as follows: R.T. at 592-95. Robert Vanhorn, an employee at the Geneva County jail, testified: R.T. at 598-99. Following Vanhorn's testimony, Gloria Waters, a certified latent print examiner for the Alabama Department of Public Safety, testified, in part: R.T. 603-08. We conclude that the court did not err in admitting the fingerprints. The State attempted to show that Scott committed the killing for pecuniary gain, but in showing that it did not call Jesse Richburg to testify. Instead, according to Scott, the State relied on statements made by him to his accomplices, James Linder and James Fletcher, regarding "future jobs" that might be offered him after the murder of J.W. Griffin. The State argues that the testimony regarding "future jobs" was admissible in order to show the defendant's motive for killing Griffin. We agree. In Jordan v. State, 629 So. 2d 738 (Ala.Crim.App.1993), cert. denied, 511 U.S. 1112, 114 S. Ct. 2112, 128 L. Ed. 2d 671 (1994), the Court of Criminal Appeals held that evidence that "the appellant stated that he wanted to move up in rank with his gang and that he knew that committing crimes could earn him a higher rank" was admissible to establish motive. 629 So. 2d at 741. The testimony at Scott's trial was properly admitted to show that one of his motives for committing the crime was the promise of "future jobs." During their deliberations, the jurors requested clarification on the evidence: Grayson v. State, 675 So. 2d 516, 523 (Ala.Cr. App.1995) (emphasis added). Furthermore, "[t]he decision to allow the jury to rehear testimony rests with the trial judge." Collins v. State, 611 So. 2d 498, 502 (Ala.Cr.App. 1992) (citing Fitchard v. State, 424 So. 2d 674 (Ala.Cr.App.1982); Hammes v. State, 417 So. 2d 594 (Ala.Cr.App.1982); Martin v. State, 504 So. 2d 335 (Ala.Cr.App.1986), and United States v. Sims, 719 F.2d 375 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S. Ct. 1304, 79 L. Ed. 2d 703 (1984)). The two requests made by the jurors did not indicate confusion as to a legal issue. See Deutcsh v. State, 610 So. 2d 1212, 1218 (Ala.Cr.App. 1992). Rather, the requests seemed to be, as the State argues, requests to rehear a substantial portion of the case. The trial judge did not abuse his discretion in refusing the jurors' requests. The defendant contends that the State "use[d] refreshing recollection as a guise for introducing the contents of an otherwise *185 inadmissible writing." According to the defense, the State questioned James Linder and "apparently hoped he would tell the jury that Mr. Scott admitted the killing." The defense says that when Linder did not so testify, the State had Linder basically read excerpts from an earlier interview, without testifying to a revival of his independent recollection thereof. Linder testified as follows: R.T. at 533-36. The trial court did not err in allowing Linder to look at his earlier statement. Hagood v. State, 588 So. 2d 526, 535 (Ala.Cr. App.1991), quoting C. Gamble, McElroy's Alabama Evidence, § 116.02(6) (3d ed.1977). As to the defendant's claim that Linder did not testify that his memory had been revived after he had looked at the earlier statement, we conclude that his statement, "Yeah, I'm remembering now" sufficiently indicates that the statement had refreshed his memory. The defendant next contends that the transcript in this case is flawed because during voir dire examination of the prospective jurors the names of some venire-members answering questions were omitted and that this flaw requires a reversal of his capital conviction. He argues that these omissions make it impossible for a reviewing court to determine whether certain veniremembers should or should not have been struck for cause. Although the defendant did seek to supplement the record with the missing names, the court reporter's "response to motion to supplement the record" states that "the [prospective juror's] name is not included if the juror failed to announce it before answering a question."[3] *186 In Hammond v. State, 665 So. 2d 970 (Ala. Cr.App.1995), the Court of Criminal Appeals reversed a conviction because portions of the examination of veniremembers had been omitted from the record: 665 So. 2d at 973. This case is not like Hammond. In this case, there are no missing portions of the record; the names of some of the veniremembers simply were not stated for the record during the voir dire examination. We have reviewed the record of the voir dire examination, and we conclude that the fact that some names are missing has not adversely affected the defendant's right to a complete record for the purposes of appellate review. Scott argues that the trial court erroneously refused to strike for cause two veniremembers who indicated that they believed an innocent defendant would testify in his own behalf. Scott did not object at trial; therefore, we consider this argument under the plain error rule. The defendant's questions to the venire were as follows: R.T. at 67-69. The questions by the defense and the responses from the two veniremembers, as indicated by the responses of Mr. C., indicated what the veniremembers themselves would do under the circumstances described by the defense. Mr. C., in particular, differentiated between what he would do and his ability to apply the law in this case. The answers to the questions asked of both jurors did not "[import] absolute *187 bias or favor, [leaving] nothing to the discretion of the trial court," Nettles v. State, 435 So. 2d 146, 149 (Ala.Crim.App.), aff'd, 435 So. 2d 151 (Ala.1983). Thus, the trial judge's failure to sua sponte strike them for cause was not error. Next, Scott argues that the prosecutor improperly commented on his failure to testify. The prosecutor commented during closing argument: "There's been no testimony why he was up here except from James Linder and that was to do murder." R.T. at 873. Scott contends that the only other person who could possibly have offered testimony as to "why he was up here" was the defendant Scott himself. Citing Windsor v. State, 593 So. 2d 87 (Ala.Cr.App.1991), and Ex parte Purser, 607 So. 2d 301 (Ala.1992), Scott claims that this statement by the prosecutor was a reference to Scott's failure to testify. The context in which this comment was made was as follows (quoting here the prosecutor's closing argument): R.T. a t 872-74. It is clear to this Court that the context in which the prosecutor's comment was made reflected not a comment on the defendant's failure to testify, but, rather, a reminder that the defense attorney's closing argument was not testimony or evidence and should not be considered as such by the jury. The defendant next argues that the trial court erred in conducting voir dire examination of jurors in open court without privately asking questions of jurors who indicated they had certain beliefs or personal views on any of the issues in the case. The defendant never requested individual voir dire, and any alleged error with regard to this issue must be considered pursuant to the plain error rule. Hallford v. State, 548 So. 2d 526, 538-39 (Ala. Crim.App.1988), aff'd, 548 So. 2d 547 (Ala.), cert. denied, 493 U.S. 945, 110 S. Ct. 354, 107 L. Ed. 2d 342 (1989). The veniremembers in this case were questioned in three panels. Our review of the record indicates no abuse of discretion in the trial judge's failure to order individual voir dire of prospective jurors. Although at trial the defendant made no objection in this regard, he now contends that it was improper for the trial judge to admit into evidence the voice identification of Scott made by Ronnie Thomas. Thomas testified at trial that he recognized Scott's voice during a telephone conversation wherein he was instructed to pick up a burned truck and tow it to his garage. Scott claims that this voice identification was not properly authenticated. In particular, he claims that no basis for comparison was offered. We disagree. Thomas testified that he had known Scott for two to three years before he received the telephone call; thus, the requirement of a basis for comparison was satisfied. See Odom v. State, 356 So. 2d 242, 245 (Ala.Cr.App.1978): (Emphasis added.) See also Favors v. State, 437 So. 2d 1358 (Ala.Cr.App.), aff'd, 437 So. 2d 1370 (Ala.1983). The admission of Thomas's testimony was not plain error. Scott contends that the trial court erred in admitting photographs of the victim's body, as well as an ax and a gun found at the crime scene. Those photographs and the ax and the gun, he argues, were inflammatory, and he says the only purpose for introducing them was to prejudice the jury against him. Parker v. State, 587 So. 2d 1072, 1090 (Ala. Crim.App.1991). The trial judge did not abuse his discretion in allowing the photographs, because they were used to corroborate the testimony of an investigator from the Alabama Bureau of Investigation concerning the location of the victim's wounds. As to the ax and the gun, the investigator testified that neither the ax nor the gun had anything to do with the crime. Thus, any error concerning them was harmless error. See Freeman v. State, 681 So. 2d 245, 246 (Ala.1995), wherein this Court stated: Scott next contends that at trial the State ignored the fact that the trial court had *189 granted a defense motion to prohibit any mention of illegal drugs found in his possession when he was arrested. According to Scott, the State ignored the trial court's directive and elicited testimony from James Linder that he and Scott had been snorting cocaine on the night of the murder. Scott argues that this evidence was used solely to prove that he was of a bad character. See Tabb v. State, 553 So. 2d 628 (Ala.Crim.App. 1988). In Tabb, the defendant's capital murder conviction was reversed because at trial the State offered evidence that the defendant took drugs; the Court of Criminal Appeals held: 553 So. 2d at 630. (Footnote omitted.) The State, on the other hand, argues that it did not violate the judge's order because, it says, the motion had been granted only as to cocaine found in a bag Scott had with him when he was arrested. Furthermore, the State argues, James Linder testified that he and Scott had taken drugs on the night of the crime. This evidence was relevant to show Scott's mental state at the time of the crime. We agree. See Hunt v. State, 659 So. 2d 933, 940 (Ala.Crim.App.1994), aff'd, 659 So. 2d 960 (Ala.1995); Brown v. State, 492 So. 2d 661, 663-64 (Ala.Crim.App.1986). We have reviewed the remaining issues raised by Scott regarding his conviction for capital murder, and we have found no error. In addition, we have searched the record for plain error as to his conviction and have found none. We now must consider whether Scott's sentence of death by electrocution is appropriate. § 13A-5-53(a), Ala.Code 1975. At the sentencing hearing, the State attempted to prove three aggravating circumstances: (1) that the murder was committed during a burglary; (2) that it was committed for pecuniary gain; and (3) that it was committed to hinder law enforcement. See Ala.Code 1975, § 13A-5-49. At oral argument before this Court, Scott's main contention regarding the sentencing hearing concerned the testimony of Jimmy Hand, who, Scott argues, gave "hearsay upon hearsay" testimony regarding the relationship between Jesse Richburg, Rhonda Bohannan, and Griffin. Scott argues that Hand's hearsay testimony was not rebuttable because, he says, Richburg and Bohannan were fugitives from justice and Griffin was dead. After reviewing the transcript of the sentencing hearing, we conclude that if any error occurred it was harmless, for the following reasons: First, the jury voted 12 to 0 to recommend that Scott be sentenced to life imprisonment without the possibility of parole. Thus, obviously, Hand's testimony did not adversely affect the recommendation of the jury. See Giles v. State, 632 So. 2d 568, 574 (Ala.Cr.App.1992), aff'd, 632 So. 2d 577 (Ala.1993), citing Rule 45, Ala.R.App.P. Second, our review of Hand's testimony indicates that its only value was to attempt to prove the third aggravating circumstance the State was arguing, i.e., that the murder was committed to hinder law enforcement. The trial court, in its extensive order, did not find this to be an aggravating circumstance: C.R. at 184-87. In rejecting the jury's unanimous recommendation that Scott be sentenced to life imprisonment without parole, the trial court found only two aggravating circumstances. The trial court did not find the third aggravating circumstance the State had sought to provethat the murder was committed to hinder law enforcement; thus, any error in admitting Hand's testimony was harmless. This Court must make an independent weighing of the aggravating circumstances and the mitigating circumstances to determine if death is the appropriate sentence in this case. § 13A-5-53(b), Ala.Code 1975. We have considered the facts as shown by the evidence in this case; the advisory verdict of the jury recommending that Scott be sentenced to life imprisonment without parole; and the extensive order of the trial judge. We note that this is not the first time a trial court has overridden a unanimous jury's recommendation that the defendant be sentenced to life imprisonment without parole. See Bush v. State, 695 So. 2d 70 (Ala.Cr.App.1995), aff'd, Ex parte Bush, 695 So. 2d 138 (Ala.1997); Carr v. State, 640 So. 2d 1064 (Ala.Cr.App.1994.)[4] Nor is this the first case wherein a defendant has been sentenced to death for the capital crime of murder committed for pecuniary gain or for hire or murder committed during a burglary. See, e.g., Sockwell v. State, 675 So. 2d 4, 12 (Ala.Cr.App.1993), aff'd, 675 So. 2d 38 (Ala. 1995) (defendant convicted of "murder ... for pecuniary gain or for valuable consideration or pursuant to a contract or for hire"); Harris v. State, 632 So. 2d 503 (Ala.Cr.App. 1992), aff'd, 632 So. 2d 543 (Ala.1993), aff'd, 513 U.S. 504, 115 S. Ct. 1031, 130 L. Ed. 2d 1004 (1995) (defendant convicted of murder committed for pecuniary gain and committed against an on-duty deputy sheriff); Haney v. State, 603 So. 2d 368 (Ala.Cr.App.1991), aff'd, 603 So. 2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S. Ct. 1297, 122 L. Ed. 2d 687 (1993) (defendant convicted of murder committed for hire and during a robbery); Land v. State, 678 So. 2d 201 (Ala.Crim.App.1995), aff'd, 678 So. 2d 224 (Ala.1996) (defendant convicted of murder during a burglary in the first degree and during a kidnapping in the first degree). Based on the foregoing and on our independent weighing of the aggravating circumstances and the mitigating circumstances, we find no error in the trial court's sentencing of William David Scott to death. Therefore, we affirm the judgment of the Court of Criminal Appeals affirming Scott's conviction and sentence of death by electrocution. AFFIRMED. HOOPER, C.J., and MADDOX, SHORES, KENNEDY, BUTTS, and SEE, JJ., concur. HOUSTON, J., concurs specially. HOUSTON, Justice (concurring specially). I write specially only to address the following argument of the defendant: The jury unanimously recommended life imprisonment without parole. The Constitution of Alabama of 1901, upon its ratification, expressly conferred upon juries the power to impose either the sentence of death or the sentence of life imprisonment for defendants found guilty of murder in the first degree (Ala.Code 1897, § 4858). In my dissent in Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala.1993), I expressed my concern that the majority's interpretation of § 11 of the Constitution ("[t]hat the right to trial by jury shall remain inviolate") would make what is now Ala.Code 1995, §§ 13A-5-1 through -59, "Punishments and Sentences," unconstitutional. In Ex parte Giles, 632 So. 2d 577, 583 (Ala.1993), cert. denied, 512 U.S. 1213, 114 S. Ct. 2694, 129 L. Ed. 2d 825 (1994), the majority of this Court, by legal reasoning I could not follow, held: This is correct only if the jury's right to sentence a defendant to death or to life imprisonment for murder in the first degree or to a term of imprisonment for defendants found guilty of murder in the second degree (Ala.Code 1897, § 4858), manslaughter (§ 4862), rape (§ 5444), robbery (§ 5479), and other offenses (§§ 5050, 4420, 4758) did not become inviolate upon the ratification of the Constitution of 1901. Section 11 applies to both civil cases and criminal cases. How the majority of this Court interpreted § 11 the way it did in criminal cases, in which punishment and deterrence are involved and in which one party's life, liberty, or property is at stake; and another way in civil cases involving punitive damages, in which punishment and deterrence are involved and in which no party's life or liberty, but only the defendant's property interest, is at stake, causes me grave concern. Henderson v. Alabama Power Co., 627 So. 2d at 904-07 (Houston, J., dissenting); Ex parte Giles, 632 So. 2d at 587-89 (Houston, J., concurring in the result); Smith v. Schulte, 671 So. 2d 1334, 1366-68 (Ala.1995) (Houston, J., dissenting), cert. denied, 517 U.S. 1220, 116 S. Ct. 1849, 134 L. Ed. 2d 950 (1996); Ex parte Jackson, 672 So. 2d 810, 811-13 (Ala.1995) (Houston, J., concurring in the result), cert. denied, 517 U.S. 1247, 116 S. Ct. 2505, 135 L. Ed. 2d 195 (1996). [*] Although Justice Cook was not present at oral argument, he has listened to the tape of the oral argument. [**] Note from the reporter of decisions: The opinion of the Court of Criminal Appeals spells this person's name "Jessie Richburg." [1] The Court of Criminal Appeals has stated: "The purpose of § 12-21-222 was to ensure that the testimony of a guilty party testifying in return for leniency from the state would not alone be sufficient to convict another." Hergott v. State, 639 So. 2d 571, 573 (Ala.Cr.App. 1993). [2] Stevens had previously identified Linder as the person who inquired about Griffin's whereabouts; however, at trial, she said that Scott was the man who came to the produce stand and asked where Griffin was. [3] Most of the times when a veniremember's name was omitted, the defense was questioning the venire. [4] Because of the defendant Carr's death, this Court did not review his case.

March 20, 1998

03e7e74f-8f10-45fe-a9ba-d7f4c7019ed1

Ex Parte Toyokuni & Co., Ltd.

715 So. 2d 786

1961687

Alabama

Alabama Supreme Court

715 So. 2d 786 (1998) Ex parte TOYOKUNI & CO., LTD. (Re Raymond HOLLINGSWORTH, as administrator of the estate of Junior G. Hollingsworth v. RIVAL MANUFACTURING COMPANY, INC.). 1961687 Supreme Court of Alabama. May 22, 1998. *787 Ray Morgan Thompson and P. Vincent Gaddy of Armbrecht, Jackson, DeMouy, Crowe, Homes & Reeves, Mobile, for petitioner. Richard H. Taylor of Jackson, Taylor & Martino, P.C., Mobile, for respondent. ALMON, Justice. Junior G. Hollingsworth died of smoke inhalation in a house fire on December 25, 1994, while he was the overnight guest of Ronald and Barbara Stults. Raymond Hollingsworth, as administrator of Junior Hollingsworth's estate, alleges that a kerosene heater in the Stultses' house malfunctioned and caused the fire. The Stultses had purchased the heater sometime before 1985. The administrator filed an action against Toyokuni & Co., Ltd., the manufacturer of the kerosene heater, and others, under the Alabama Wrongful Death Statute and the Alabama Extended Manufacturer's Liability Doctrine. Toyokuni is a corporation organized under the laws of Japan, with its principal place of business in Osaka, Japan. Toyokuni does not have offices or employees in Alabama or in the United States. The administrator was granted leave to perfect service on Toyokuni by private process through the procedure established by the Hague Convention. The complaint was translated into the Japanese language and then served upon Toyokuni on December 10, 1996. Toyokuni answered the complaint on January 9, 1997. In a letter to Toyokuni's counsel, the administrator's counsel recommended that Toyokuni representatives travel to Los Angeles, California, for the corporate deposition of Toyokuni. Toyokuni rejected this recommendation, taking the position that the administrator should travel to Japan. In response, the administrator filed a motion to compel Toyokuni to produce its corporate *788 representatives and documents in Mobile County. On the same day, the administrator also filed a notice of a deposition pursuant to Ala. R. Civ. P. 30(b)(5) and (6), which identified 36 matters on which testimony and documents were requested.[1] In opposition, Toyokuni filed a motion requesting the circuit court to issue a protective order and to quash the deposition notice. After the motions were argued, Judge Edward B. McDermott, of the Mobile Circuit Court, denied Toyokuni's motion and issued an order compelling Toyokuni to appear in Mobile County pursuant to the administrator's deposition notice. Judge McDermott later denied a motion to reconsider that order. Toyokuni has petitioned this Court for a writ of mandamus directing Judge McDermott to vacate his order requiring that Toyokuni's deposition take place in Mobile and ordering that the deposition and document production take place at Toyokuni's principal place of business in Osaka, Japan. The issue before us is whether the circuit judge abused his discretion by denying Toyokuni's motion for a protective order and by ordering Toyokuni to bring witnesses and documents from Japan to Mobile. Mandamus is a proper means to determine if a trial court abused its discretion in discovery matters. See, e.g., Ex parte Nissei Sangyo America, Ltd., 577 So. 2d 912, 913 (Ala.1991). A writ of mandamus is extraordinary relief and will not issue unless the right to the relief sought is clear and certain, with no reasonable basis for controversy. Id. at 914 (citing Ex parte Dorsey Trailers, Inc., 397 So. 2d 98 (Ala.1981)). Alabama cases regarding petitions for writs of mandamus on discovery issues generally state the law thus: Ex parte Old Mountain Properties, Ltd., 415 So. 2d 1048, 1050 (Ala.1982) (quoting Campbell v. Regal Typewriter Co., 341 So. 2d 120, 123 (Ala.1976)) (citations omitted). "`An appellate court may not decide whether it would, in the first instance, have permitted the prayed for discovery.'" Ex parte Nissei Sangyo America, Ltd., 577 So. 2d at 914 (quoting Assured Investors Life Ins. Co. v. National Union Assocs., Inc., 362 So. 2d 228, 232 (Ala.1978)). Because of the broad discretion afforded trial courts in discovery matters, appellate courts are reluctant to find abuse. This Court has stated the general rule regarding the location of depositions of nonresident corporate defendants: The circuit judge was faced with a difficult situation in this case and, under the circumstances, we conclude that he did not abuse his discretion. It is a matter of common knowledge among the bar that these matters are usually agreed upon for the mutual benefit of all parties. Indeed, the administrator attempted to reach such an agreement when he suggested that the parties meet in Los Angeles. Toyokuni rejected this suggestion and, therefore, the administrator was forced to invoke the court's aid to resolve this dispute. Faced with Toyokuni's lack of cooperation, manifested by its refusing to present itself for depositions in a convenient intermediate location, the circuit judge did not, under all the circumstances, abuse his discretion in ordering Toyokuni to come to Mobile for depositions. The action is pending in the Circuit Court of Mobile County, and Toyokuni's counsel and the administrator's counsel practice law in the city of Mobile, located in Mobile County. In addition, the Stultses, who are also defendants, have filed a cross-claim against Toyokuni, seeking to recover for property damage, and their counsel practice in Mobile. The administrator argues that it would be less expensive for Toyokuni representatives to travel to Mobile than for the other parties and their counsel to travel to Japan; all parties are represented by counsel in Mobile. See Turner v. Prudential Ins. Co. of America, 119 F.R.D. 381, 383 (M.D.N.C.1988). It could be a greater financial burden to all parties to conduct the deposition at a location other than the forum. Moreover, Japan's system of discovery is very different from our "open discovery" system. Under Japanese law, judicial officers conduct all pretrial questioning of witnesses and discovery is basically limited to voluntary depositions. See In re Honda American Motor Co., Inc. Dealership Relations Litigation, 168 F.R.D. 535, 538 (D.Md.1996). It could be unfair to make the administrator conduct the deposition under Japan's strict discovery procedures, especially since, at the same time, Toyokuni would have access to our more open discovery methods. An attempt to compel discovery pursuant to our rules on Japanese soil could infringe foreign judicial sovereignty. Id. at 538. Therefore, the circuit judge did not abuse his discretion in declining to order that the deposition take place in Japan. The administrator argues that holding the deposition in Japan would thwart the circuit court's control of this case. Conducting the deposition in the forum would allow the circuit court to have greater control over the discovery process if disagreements arose. See Ex parte Nissei Sangyo America, Ltd., 577 So. 2d at 915. The administrator was required to obtain an order to compel Toyokuni to answer earlier interrogatories propounded to it. Given that fact, and given the absence of open discovery in Japanese practice, we think it conceivable that a dispute might arise. If a dispute arises over the right to discover certain information, or if the defendant refuses to cooperate, by failing to answer certain questions or to produce certain documents, then, with the deposition taking place in Mobile, the circuit court will be in a much better position to resolve any conflict. Having the deposition take place in Mobile and thus allowing the circuit court to exercise its control will serve the clear interest that the United States in general and Alabama in particular have in maintaining the integrity of our judicial system and in exercising the jurisdiction of this state and this nation over persons whose products are *790 distributed in the United States and in Alabama. See In re Honda American Motor Co., 168 F.R.D. at 539. Based upon the totality of the circumstances, we conclude that the circuit court did not abuse its discretion. Therefore, the writ of mandamus is denied. WRIT DENIED. MADDOX, SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur. HOOPER, C.J., and LYONS, J., dissent, with opinion by LYONS, J. LYONS, Justice (dissenting). I do not believe that considerations surrounding the fundamental fairness of requiring a party to defend in the courts of this state when that party "should have been able to reasonably anticipate being haled into court here," as was recognized in Bryant v. Ceat S.p.A., 406 So. 2d 376, 378 (Ala.1981), cert. denied, 456 U.S. 944, 102 S. Ct. 2008, 72 L. Ed. 2d 466 (1982), are the same considerations applicable when the issue is whether the defendant must bring witnesses to the forum twice, once for discovery and again for the trial. The plaintiff argues that this hardship is, like the defense of the action, an attribute of foreign trade. But, on this record, it appears that the defendant has no connection with the United States other than once having had a relationship with a corporation in Ohio that is not shown to have any other connection to the defendant. It indeed would have been reasonable for the parties to meet each other halfway in Los Angeles, California, but under the circumstances here presented I am not satisfied that reasonableness is coextensive with that which is lawfully required. The appropriate standard is set forth in Chief Justice Torbert's dissent in Ex parte Old Mountain Properties, Ltd., 415 So. 2d 1048, 1051 (Ala.1982), cert. denied, 459 U.S. 909, 103 S. Ct. 215, 74 L. Ed. 2d 171 (1982), where he noted the fundamental unfairness, absent peculiar facts and circumstances, in requiring a nonresident defendant to leave his place of business and travel at this own expense to the site of the deposition so that it can be taken more conveniently and less expensively to the plaintiff. Examples of "peculiar facts and circumstances" include relative hardships (here the burden appears equal, if not heavier on the defendant, given the scope of the request for witnesses); conflict in the evidence as to the defendant's principal place of business (in this case there is no such conflict); the fact that corporate officers regularly come to the forum (here it is undisputed that they never come); and the fact that the plaintiff is impecunious (here, there is no such showing). The majority relies on In re Honda American Motor Co., Inc. Dealership Relations Litigation, 168 F.R.D. 535 (D.Md.1996). First, other than commonality of Japanese origin, the similarities between this defendant and Honda American Motor Company are negligible. Second, it is not apparent from this record that this defendant asserted the applicability of Japanese discovery rules, as Honda American did. Indeed, the trial court's order is grounded in part on the perceived difficulties of managing discovery disputes should they occur in Japan; this fact suggests that the parties and the trial court contemplated control of the discovery process by the Circuit Court of Mobile County, even if discovery occurred in Japan. The trial court and the majority cite Ex parte Nissei Sangyo America, Ltd., 577 So. 2d 912 (Ala.1991), to support the holding that the circuit court's convenience in managing disputes justified requiring that the depositions of the defendant's representatives take place in Mobile. Similarities between this present case and the case involving Nissei Sangyo America ("NSA") are, beyond Japanese origins, also thin. NSA was qualified to do business in Alabama and had operations in Alabama. The subject of the discovery predominantly related to trade secrets and confidential information, factors not at issue here. The trial court ordered that the deposition take place in Huntsville, not Chicago. I can see that in this present case the 14-hour time difference between Japan and Mobile would present difficulties. However, a telephone call from Japan at the commencement of the business day in Japan would be received in *791 Mobile at 6:00 p.m. on the previous day. Problems that might arise during the day could be thrashed out by a late evening call from Japan that would take place in Mobile early on the same business day. While I am not unmindful of the petitioner's burden of showing an abuse of discretion, I believe that there are alternatives less oppressive than requiring production of the defendant's witnesses for deposition in Mobile. For example, if the depositions take place in Japan and the defendant obstructs them by a disregard of Alabama discovery rules, then the trial court could order that they be retaken in Mobile, with all costs incurred in the previous and subsequent depositions, including travel expenses, taxed against the defendant. Further, the trial court could grant the defendant's motion for a protective order, conditioning the order upon the defendant's bringing in any witness it desires to use at trial sufficiently early to allow the plaintiff to take the witness's pretrial deposition. I cannot help wondering how we would react if an Alabama manufacturer with a Japanese agent and no other connection to Japan was required to send its witnesses to Japan twice, first for discovery and then send them back later if it wanted live testimony at trial. I respectfully dissent. HOOPER, C.J., concurs. [1] Ordinary discovery procedures are entirely appropriate in this case even though the complaint was served through the procedure established by the Hague Convention. There is no requirement that the administrator comply with the provisions of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Cases. The language of this treaty is permissive rather than mandatory. See Societe Nationale Industrielle Aerospatiale v. United States Dist. Court, 482 U.S. 522, 541, 107 S. Ct. 2542, 2554, 96 L. Ed. 2d 461, 482 (1987). Toyokuni has raised no issue regarding that treaty, and, without any argument that Japanese law would be offended, ordinary discovery should proceed. See Murphy v. Reifenhauser KG Maschinenfabrik, 101 F.R.D. 360 (D.Vt.1984).

May 22, 1998

e6f709c7-09f2-447d-b5f7-11bc3b35679b

Ex Parte Chevron Chemical Co.

720 So. 2d 922

1961326

Alabama

Alabama Supreme Court

720 So. 2d 922 (1998) Ex parte CHEVRON CHEMICAL COMPANY (Re Don LAWLEY and Derrick Bryant v. CHEVRON CHEMICAL COMPANY). 1961326. Supreme Court of Alabama. May 15, 1998. Rehearing Denied July 17, 1998. *923 Joseph C. Sullivan, Jr., and David A. Boyett III of Hamilton, Butler, Riddick, Tarlton & Sullivan, P.C., Mobile, for petitioner. Sidney W. Jackson III and Scott E. Denson of Jackson, Taylor & Martino, P.C., Mobile, for respondents. Samuel H. Franklin and Stephen J. Rowe of Lightfoot, Franklin & White, L.L.C., Birmingham, for amicus curiae Chemical Manufacturers Ass'n. SEE, Justice. This case arises out of injuries suffered by Don Lawley and Derrick Bryant in the explosion of a plastic gas pipeline they were installing for their employer, Mobile Gas Company ("Mobile Gas"). Lawley and Bryant sued Chevron Chemical Company ("Chevron"), the manufacturer of the plastic pipe, alleging negligent failure to warn and alleging liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") for placing an unreasonably dangerous product on the market. The trial court granted Chevron's motion for summary judgment, noting that Chevron had warned Mobile Gas and that Mobile Gas had been aware of the risk involved in installing plastic pipe. The Court of Civil Appeals reversed, holding that whether Chevron had adequately warned Mobile Gas of the danger of fire caused by static electricity was a question for the jury. Lawley v. Chevron Chemical Co., 720 So. 2d 918 (Ala.Civ.App.1997). Because we conclude that Chevron did not have a duty to warn Lawley and Bryant or Mobile Gas of commonly known dangers, we reverse and render a judgment for Chevron. The evidence in this case is undisputed. Chevron sold plastic pipe to Mobile Gas to be used in a natural gas pipeline. The general danger that static electricity buildup can cause a fire and the specific danger of such a fire when wet rags are not used to ground the pipe during the purging process have been common knowledge in the gas pipeline industry for years. Nevertheless, Chevron provided Mobile Gas a bulletin that gave the following warning regarding the purging process: Mobile Gas had prepared for its employees who worked on pipelines a manual that stated in pertinent part: (Emphasis added.) Mobile Gas assigned the job of installing the new plastic pipe to two of its employees, Lawley and Bryant. In Lawley and Bryant's truck there was a copy of the manual with the quoted warning and precautionary procedure. Nonetheless, on the day of the accident neither Lawley, who had installed plastic pipe 200 times before, nor Bryant, who had installed plastic pipe 50 times before, took the precaution of grounding the plastic pipe with wet rags. While Lawley and Bryant were installing the plastic pipe and purging it with air, static electricity built up and ignited natural gas fumes. The resulting explosion injured both men. The parties agree that use of the wet rags to ground the plastic pipe would have prevented the explosion. Lawley and Bryant filed this action against Chevron, claiming: (1) that Chevron was liable under the principles established in § 388 of the Restatement (Second) of Torts (1965) for negligent failure to warn them of the danger of static electricity buildup; and (2) that Chevron was liable under those principles of § 402 A of the Restatement (Second) of Torts embodied in the AEMLD, for placing an unreasonably dangerous product (the plastic pipe) on the market without a warning. Because of the industry-wide knowledge both of the danger of static electricity buildup and of the precaution of using wet rags to prevent such a buildup; because of Chevron's warning in its bulletin to Mobile Gas; and because of Mobile Gas's warning in the manual to Lawley and Bryant, the trial court entered a summary judgment for Chevron. The Court of Civil Appeals, however, reversed, holding that the adequacy of the warning presented a jury question that precluded summary judgment. A summary judgment is appropriate in a case where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Vines v. Beloit Corp., 631 So. 2d 1003, 1004 (Ala.1994). We review motions for summary judgment in the light most favorable to the nonmovant, resolving all reasonable doubts in favor of the nonmovant. Id. To determine whether Chevron is entitled to a judgment as a matter of law, we must determine whether Chevron had a duty to warn Lawley and Bryant of the danger that caused the accident. See Rose v. Miller & Co., 432 So. 2d 1237, 1238 (Ala.1983) (stating that the existence of a legal duty is a question of law for the court, not the jury, to decide). Lawley and Bryant argue first that Chevron negligently failed to warn them, the ultimate users, of the dangers involved in installing the plastic pipe. Lawley and Bryant acknowledge that Chevron gave Mobile Gas a bulletin that stated, "Before You Start ... ground [pipe] with wet cloth to remove static electricity." Nevertheless, they argue that this warning to Mobile Gas was not adequate to notify them of the severity of the danger posed by static electricity. Chevron responds that it had no duty to warn Lawley and Bryant of a danger of which their employer, Mobile Gas, was already aware. The duty to warn end users of the dangers of products arises, in a pure negligence context, from § 388, Restatement (Second) of Torts, as adopted by this Court. See Purvis v. PPG Industries, Inc., 502 So. 2d 714, 719 (Ala.1987) (interpreting a negligent-failure-to-warn claim using § 388). Section 388 states: (Emphasis added.) We have held that the duty to warn contemplated by § 388(c) is triggered only when the supplier has "no reason to believe" that the user will realize the "dangerous condition" of the product referred to in § 388(b). See Gurley v. American Honda Motor Co., 505 So. 2d 358, 361 (Ala.1987) (stating that "[t]here is no duty to warn of every potential danger or to explain the scientific rationale for each warning, but only a duty to warn of those dangers which the owner or user would not be aware of under the particular circumstances of his use of the product in question"); Ford Motor Co. v. Rodgers, 337 So. 2d 736, 739 (Ala.1976) ("The objective of placing a duty to warn on the manufacturer or supplier is to inform a user of the danger [of] which he is not aware[;] therefore, there is no duty to warn when the danger is obvious."). Thus, the manufacturer is not required to provide a redundant warning, but only to provide a warning of those dangers that are not obvious to the user. Lawley and Bryant cite Hicks v. Commercial Union Insurance Co., 652 So. 2d 211 (Ala.1994), in support of their contention that Chevron had a duty to notify Mobile Gas notwithstanding the fact that Mobile Gas was aware of the danger posed by static electricity buildup and the fact that Mobile Gas had informed its employees of this danger. In Hicks, id. at 215, the manufacturer of a pipe stopper was sued after the pipe stopper dislodged during a hydrostatic pressure test and struck an employee.[1] The manufacturer had provided an instruction booklet with a warning that pipe stoppers are dangerous and that people should not stand in front of the pipe stopper during pressure testing. Id. at 217. The manufacturer presented evidence indicating that the danger of pipe stoppers coming loose was common knowledge among employees who used them. Id. This Court, however, focused on the lack of evidence of common knowledge that mismatching of the jaws of the pipe stopper would greatly increase the likelihood of an accident. Id. This Court held that the evidence indicating common knowledge of a general danger did not relieve the manufacturer of its duty to warn, and that there was a genuine issue of material fact as to the adequacy of the warning provided by the manufacturer. Id. This case is unlike Hicks, however, because the undisputed evidence in this case establishes that among installers of plastic pipe it was common knowledge that the failure to properly ground the pipe during the purging process would greatly increase the danger that static electricity would build up and ignite natural gas and cause a fire. The warning printed in Mobile Gas's manual expressly stated: Thus, not only was the specific danger of failure to ground the plastic pipes with wet rags during the purging process known in *926 the industry and known to the employer, Mobile Gas, an experienced user, but it was published by Mobile Gas in a manual given to the very employees who were injured.[2] That manual, with the specific warning, was in the truck by the work site where the injury took place. It is undisputed that had Lawley and Bryant followed the safety procedure described in the manual provided to them, and used wet rags to ground the pipe during the purging process, they would not have been injured. Accordingly, Chevron did not have a duty to provide Mobile Gas or its employees with a warning of a danger of which they already were, or had reason to be, aware.[3] See Gurley, 505 So. 2d at 361; Entrekin v. Atlantic Richfield Co., 519 So. 2d at 450 (Ala. 1987) (same); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 471 (11th Cir.1993) (same). Lawley and Bryant also contend that even if their failure-to-warn claim does not prevail under general negligence principles, it should prevail under the AEMLD. Essentially, they argue that Chevron is strictly liable for its failure to warn, under the AEMLD, which embodies principles of § 402 A of the Restatement (Second) of Torts. Chevron responds that the substance of the affirmative defense of a warning under the AEMLD is not distinct from the duty to warn under § 388.[4] See Casrell v. Altec Indus., Inc., 335 So. 2d 128, 130, 133 (Ala. *927 1976) (referring to Restatement (Second) of Torts § 402 A in establishing the AEMLD). Section 402 A reads: (Emphasis added.) Comment j to § 402 A states, in pertinent part: (Emphasis added.) Thus, it is clear that the drafters of the Restatement intended § 402 A's concept of an "unreasonably dangerous" product not to include a product the dangers of which the consumer could be expected to be aware of, an awareness that may be enlightened by a warning. Nonetheless, we recognize that some courts in other jurisdictions have held that the strict liability nature of § 402 A precludes any negligence-type analysis of the user's awareness of the product's danger. See generally, e.g., Alexander v. Morning Pride Mfg., Inc., 913 F. Supp. 362, 371 (E.D.Pa.1995) (refusing to incorporate negligence concepts into strict liability cases because "[t]he deterrent effect of imposing strict product liability standards would be weakened") (quoting Kimco Dev. Corp. v. Michael D's Carpet Outlets, 536 Pa. 1, 9, 637 A.2d 603, 606-07 (1993)); Beshada v. Johns-Manville Products Corp., 90 N.J. 191, 204, 447 A.2d 539, 546 (1982) (refusing to incorporate negligence principles in a strict liability action because "[s]trict liability focuses on the product, not the fault of the manufacturer").[5] Section 402 A and the AEMLD, however, are "strict" liability provisions only in the sense that the manufacturer's reasonable care in preparing the product and the user's privity with the manufacturer are not relevant. See Casrell, 335 So.2d at 133-34; Restatement (Second) of Torts § 402 A(2)(a) and (b). The drafters of the Restatement made it clear that the concept of an "unreasonably dangerous" product takes into account the user's awareness of the danger and *928 that awareness may be enlightened by a warning. The majority of courts that have interpreted § 402 A have stated that § 402 A requires consideration of the user's awareness of a danger, which may be enlightened by a warning, under the principles of § 388. See Anguiano v. E.I. DuPont De Nemours & Co., 44 F.3d 806, 811-12 (9th Cir.1995) (stating that "the question whether a manufacturer has a duty to warn under strict liability depends on the standards for determining a duty to warn under a negligence action pursuant to [Restatement (Second)] section 388"); Klem v. E.I. DuPont De Nemours Co., 19 F.3d 997, 1001-03 (5th Cir.1994) (holding that failure-to-warn claims in strict liability and in negligence duplicate one another); Werner v. Upjohn Co., 628 F.2d 848, 858 (4th Cir.1980) (stating that although the negligence and strict liability theories may be phrased differently the issue is generally the same: "was the warning adequate?"), cert. denied, 449 U.S. 1080, 101 S. Ct. 862, 66 L. Ed. 2d 804 (1981); Sterling Drug, Inc. v. Yarrow, 408 F.2d 978, 992-93 (8th Cir.1969) (holding that the duties imposed by §§ 388 and 402 A of the Restatement are the same regardless of characterization, because the manufacturer must give a warning that is reasonable under the circumstances); Sell v. Bertsch & Co., 577 F. Supp. 1393, 1397 (D.Kan.1984) (stating "A failure to warn may be negligence under Restatement § 388 or may make the product `defective' under Restatement § 402 A.... Under either theory, the duty to warn is one of ordinary care."); Leesley v. West, 165 Ill.App.3d 135, 139, 518 N.E.2d 758, 761, 116 Ill.Dec. 136, 139 (holding that where the issue regards a manufacturer's failure to warn, "the manufacturer's duty is essentially the same under either a negligence or [a] strict liability theory"), app. denied, 119 Ill. 2d 558, 119 Ill.Dec. 387, 522 N.E.2d 1246 (1988); Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 435, 601 A.2d 633, 640 (1992) (embracing negligence principles in strict liability causes of action for failure to warn); Hahn v. Richter, 543 Pa. 558, 673 A.2d 888 (1996) (stating that § 388's reasonable care standard was applicable to a cause of action alleging strict liability failure to warn).[6] The Supreme Court of California explained its rejection of the exclusion of warning concepts from § 402 A in these terms: Anderson v. Owens-Corning Fiberglas Corp., 53 Cal. 3d 987, 1002, 810 P.2d 549, 558, 281 Cal. Rptr. 528, 537 (1991). The user's awareness of a danger is implicated by both the "reasonable belief" component of § 388(b) and the "unreasonably dangerous" component of § 402 A. This Court, *929 therefore, has followed the majority rule in reading § 402 A's "unreasonably dangerous" component to include the concept of the plaintiff's awareness of the danger of a product. For example, in Hicks, 652 So. 2d at 215-17, the case cited by Lawley and Bryant in support of their negligent-failure-to-warn argument, this Court held that on an AEMLD claim a question of the adequacy of a warning created a jury issue. The standards for warnings developed under § 388 are properly applied to claims framed under both § 402 A and the AEMLD. Given the wealth of authority and the cogent rationale for interpreting § 402 A as the drafters of the Restatement wrote it, we are not disposed to adopt a more restrictive definition of the AEMLD. Accordingly, for the same reasons that Chevron has no legal duty to warn Lawley and Bryant under pure negligence principles, it has a complete affirmative defense under the AEMLD. We reverse the judgment of the Court of Civil Appeals and render a judgment for Chevron. REVERSED AND JUDGMENT RENDERED. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, COOK, and LYONS, JJ., concur. ALMON, J., concurs in the result. KENNEDY, J., dissents. [1] This Court described a "pipe stopper" as follows: "Pipe stoppers cover the opening of pipes extending from vessels for the purpose of pressurizing vessels for testing. A pipe stopper contains four `jaws,' which secure the pipe stopper to the pipe extending from the vessel by expanding with increased pressure. As the pressure increases, the jaws expand and grip the inside of the pipe. The jaws are manufactured in sets. Although the jaws within a set are apparently uniform in size, the size of the jaws of different sets varies slightly.... The jaws easily detach from the pipe stopper itself...." Hicks, 652 So. 2d at 215. [2] In addition, we note that the warning in the bulletin that Chevron gave to Mobile Gas was adequate to relieve Chevron of liability because Mobile Gas had the duty to warn its employees of known workplace dangers. See Ala.Code 1975, § 25-5-1 (requiring employers to provide employees with a safe place to work); 49 C.F.R. § 192.751 (requiring employers to "take steps to minimize the danger of accidental ignition of gas in any structure or area when the presence of gas constitutes a hazard of fire or explosion"); Hill v. Metal Reclamation, Inc., 348 So. 2d 493, 494 (Ala.1977) (stating that "it is the duty of the employer to exercise reasonable care to warn the employee of any risk of harm and to acquaint him with any dangerous features of the equipment, premises, or procedures with which he works"). [3] We note that Lawley indicated that he had failed to read the manual provided by Mobile Gas, even though he had once been reprimanded for failing to follow safety procedures. Lawley's choice not to read the warning in the manual does not impose a legal duty on Chevron to place a warning on the pipe itself. See E.R. Squibb & Sons, Inc. v. Cox, 477 So. 2d 963, 971 (Ala.1985) (stating that a plaintiff cannot maintain a failure-to-warn action where he simply chooses not to read a legible warning); Gurley v. American Honda Motor Co., 505 So. 2d 358, 361 (Ala.1987) (same); see also Vines v. Beloit Corp., 631 So. 2d 1003, 1006 (Ala.1994) ("a manufacturer who sells an industrial product to a sophisticated purchaser has no duty to provide warnings to the employee of that purchaser where the purchaser has an obligation to inform its employees"); McGhee v. Oryx Energy Co., 657 So. 2d 853, 855 (Ala.1995) (stating that "where a third party has an independent duty to warn the ultimate user of the dangers associated with the use of a product, the manufacturer is justified in relying upon that third party to perform its duty"); Restatement (Second) of Torts § 388 cmt. n (stating that the manufacturer is not required to inform the ultimate users of dangers when a third party has that duty). [4] This Court has previously stated that the user's awareness of a product's danger is an "affirmative defense" under the AEMLD and under § 402 A of the Restatement (Second) of Torts. Atkins v. American Motors Corp., 335 So. 2d 134, 143 (Ala. 1976); Entrekin v. Atlantic Richfield Co., 519 So. 2d 447, 450 n. 5 (Ala.1987). Because a trial court may consider affirmative defenses in ruling on a summary judgment motion, Bechtel v. Crown Cent. Petroleum Corp., 495 So. 2d 1052, 1053 (Ala.1986), this Court has also considered the user's knowledge of a dangerous condition in AEMLD cases under the label of the manufacturer's "duty" to warn, Hicks v. Commercial Union Insurance Co., 652 So. 2d 211 (Ala.1994). As Prosser and Keeton explain: "[Primary assumption of risk occurs] where the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation. He may then be regarded as tacitly or impliedly consenting to the negligence, and agreeing to take his own chances. Thus, he may accept employment, knowing that he is expected to work with a dangerous horse; or ride in a car with knowledge that the brakes are defective, or the driver incompetent.... [T]he legal result is that the defendant is simply relieved of the duty which would otherwise exist." Prosser & Keeton, The Law of Torts 481 (5th ed.1984) (second emphasis added) (footnotes omitted). The fine distinction between an affirmative defense and the lack of a duty to warn generally makes little, if any, difference in the assessment of the merits of a products liability action. [5] In Beshada, 90 N.J. at 204-05, 447 A.2d at 546-47, the Supreme Court of New Jersey cited a law review article by Professor Keeton for the proposition that § 402 A is a strict liability provision that is unaffected by the reasonableness of a warning. Page Keeton, Product LiabilityInadequacy of Information, 48 Tex. L.Rev. 398, 404 (1970). We note that the fifth edition of Prosser & Keeton, The Law of Torts 697-98 n.21 (1984), states that Professor Keeton has changed his position. See Page Keeton, The Meaning of Defect in Products Liability LawA Review of Basic Principles, 45 Mo. L.Rev. 579, 586-87 (1980). [6] We note that the Restatement (Third) of Torts, comment n (1997), provides in pertinent part: "A separate and more difficult question arises as to whether a case should be submitted to a jury on multiple theories of recovery. Design and failure-to-warn claims may be combined in the same case because they rest on different factual allegations and distinct legal concepts. However, two or more factually identical ... failure-to-warn claims ... should not be submitted to the trier of fact in the same case under different doctrinal labels. Regardless of the doctrinal label attached to a particular claim,... [failure-to-warn] claims rest on a risk-utility assessment. To allow two or more factually identical ... claims to be brought under different doctrinal labels would generate confusion and may well result in inconsistent verdicts." (Emphasis added.) See generally, e.g., Richard L. Cupp, Jr., The "Uncomplicated" Law of Products Liability: Reflections of a Professor Turned Juror, 91 Nw. U.L.Rev. 1082, 1090 (1997) (stating that the difference between negligence and strict liability failure to warn cases has been reduced to mere "rhetorical preference"); James A. Henderson, Jr., and Aaron D. Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn, 65 N.Y.U. L.Rev. 265, 272 (1990) (stating that "after years of frustration, many courts have finally abandoned the search and declared that, for all intents and purposes, strict liability, as applied to generically dangerous product cases, was simply negligence by another name").

May 15, 1998

2a1ba165-5e36-4b6a-a12f-43c3d45bd9da

Glenlakes Realty Co. v. Norwood

721 So. 2d 174

1962119

Alabama

Alabama Supreme Court

721 So. 2d 174 (1998) GLENLAKES REALTY COMPANY, et al. v. Thomas E. NORWOOD. 1962119. Supreme Court of Alabama. May 29, 1998. Rehearing Denied August 28, 1998. *175 Cavender C. Kimble and Spencer M. Taylor of Balch & Bingham, L.L.P., Birmingham; and Robert A. Wills of Wills & Simon, Bay Minette, for appellants. Mary E. Murchison and Spencer E. Davis, Jr., of Murchison & Sutley, L.L.C., Foley, for appellee. LYONS, Justice. The defendants, Glenlakes Realty Company, Yarborough Lakeview Corporation, Gorrie Lakeview Corporation, Murray Lakeview Corporation, Joseph Yarborough, Miller Gorrie, and Roger Murray, Jr., appeal from a judgment entered by the circuit court on a jury verdict in favor of Thomas Norwood. For the reasons explained below, we reverse the judgment and remand the cause for a new trial. *176 Glenlakes Realty Company is a partnership composed of three partners, Yarborough Lakeview Corporation, Gorrie Lakeview Corporation, and Murray Lakeview Corporation. The corporations are wholly owned and operated by the defendants Joseph Yarborough, Miller Gorrie, and Roger Murray, Jr., respectively, who are the presidents of the corporations. In 1991, Glenlakes Realty purchased the Lakeview Golf and Country Club ("LGCC"), approximately 150 residential lots in the surrounding Lakeview Estates, and additional undeveloped adjacent land. Approximately 200 other lots in Lakeview Estates had already been sold to individual owners when Glenlakes Realty purchased the remaining portion of the development. The entire development, including the LGCC, all the lots in Lakeview Estates, and the undeveloped land totalled approximately 820 acres. However, because more than half the lots in Lakeview Estates had already been sold to private owners, the amount of land purchased by Glenlakes Realty was only approximately 665 acres. In November 1991, Glenlakes Realty entered into an exclusive listing agreement with Norwood, a licensed real estate broker, who was to be its qualifying broker. The listing agreement was for "all properties located at Lakeview Estates and surrounding undeveloped parcels at Lakeview Golf and Country Club, totalling approx. 820 acres." The agreement was to expire on January 1, 1993. However, the agreement would pay Norwood a sales commission "if within 180 days of the expiration of this Sales Authority the property is sold by you, or Me/Us, or anyone else, if You [Norwood] produce a Purchaser ready, willing and able to purchase the property ... provided that you make known to Me/Us in writing the names of anyone to whom you have shown or presented the property." In April 1992, the Sycamore Group, an out-of-state real estate sales company that specialized in the sale of golf courses, contacted Harry Watkins, the general manager for Glenlakes Realty, and asked whether the LGCC was for sale. Watkins informed Yarborough, Gorrie, and Murray of Sycamore's interest in the LGCC. Glenlakes Realty first responded by informing Sycamore that it had no interest in selling the LGCC, but then it reconsidered. In June 1992, Glenlakes Realty entered into a listing agreement with Sycamore to pay it a commission if the LGCC was sold to a buyer found by Sycamore. Shortly thereafter, Watkins told Norwood that Glenlakes Realty had entered into a listing agreement with Sycamore and that he had been instructed not to tell Norwood about it. Although Norwood believed that he had an exclusive listing on the LGCC, he did not question Yarborough, Gorrie, or Murray about Sycamore, and Watkins did not report Norwood's belief to them. Watkins was terminated from his position as general manager of Glenlakes Realty in December 1992, and the position was not filled. The duties Watkins had performed were divided among the staff of Glenlakes Realty and the LGCC, and Norwood took on additional responsibilities without additional compensation. Although Norwood's listing agreement expired on January 1, 1993, he continued to sell residential lots in Lakeview Estates and was paid commissions for the sales. The purchase contract for each lot contained a provision for a sales commission to the selling agent. In January 1993, Sycamore named Links-Corp as a potential purchaser of the LGCC, and in March it brought several LinksCorp representatives to the LGCC for a tour of the facility. Then in June 1993, LinksCorp and Glenlakes entered into a nonbinding letter of intent for the sale of the LGCC. Also in June, Norwood entered into a new listing agreement with Glenlakes Realty for the sale of the remaining residential lots in Lakeview Estates. In September 1993, LinksCorp and Glenlakes Realty executed a purchase agreement. The agreement required certain "due diligence" work on the part of Glenlakes Realty. That work was performed by Norwood and, apparently, he was not compensated for it. In January 1994, the sale of the LGCC from Glenlakes Realty to LinksCorp closed and Glenlakes realty paid Sycamore a $232,000 sales commission. Norwood was not paid a commission with regard to the sale of the LGCC, and in February 1995 he wrote a letter to Murray *177 requesting that he be paid a commission. The defendants refused Norwood's request, and in January 1996 Norwood sued them. Norwood's complaint claimed damages for breach of contract, fraudulent misrepresentation, fraudulent suppression, conspiracy, and tortious interference with contract, and sought a recovery on the theory of quantum meruit. Norwood claimed a $290,000 sales commission, plus $1,000,000 in damages for mental anguish and $1,000,000 in punitive damages. The trial court denied the defendants' motion for summary judgment, and the case went to trial. At trial, the defendants moved for a pre-verdict judgment as a matter of law ("JML"),[1] but the court denied the motion and submitted all of Norwood's claims to the jury. The jury returned a general verdict in favor of Norwood for $200,000 in compensatory damages. The defendants then moved for a post-verdict JML, a new trial, or a remittitur. The trial court denied the motion and entered a judgment on the jury verdict. The defendants appealed. We must determine whether the trial court erred in denying the defendants' pre-verdict motion for a JML and their post-verdict motion for a JML, a new trial, or a remittitur. In Bussey v. John Deere Co., 531 So. 2d 860, 863 (Ala.1988), this Court stated: (Citations omitted.) In other words, viewing the evidence in a light most favorable to Norwood, we must determine whether he presented substantial evidence in support of his claims. Moreover, because the jury rendered a general verdict, we must determine whether Norwood presented substantial evidence in support of all the claims submitted to the jury. Palm Harbor Homes, Inc. v. Crawford, 689 So. 2d 3 (Ala.1997); Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981). If the trial court should have directed a verdict as to one or more of Norwood's claims, then we cannot assume that the jury's general verdict in favor of Norwood was returned on a "good" claim or on good claims and the judgment based on the jury's verdict must be reversed. Palm Harbor Homes, supra; Green Tree Acceptance, Inc. v. Tunstall, 645 So. 2d 1384 (Ala.1994). We first address the issue whether the trial court erred in denying the defendants' pre-verdict motion for JML and post-verdict JML motion as to Norwood's breach of contract claim. Norwood alleged that the exclusive listing agreement he made with Glenlakes Realty in November 1991 included the exclusive right to sell the LGCC, in addition to the residential lots and undeveloped property; that he was due a sales commission in relation to the sale of the LGCC; and that the defendants breached the agreement by refusing to pay him a commission. The defendants offer several arguments as to why they believe the trial court should have entered a pre-verdict JML or a post-verdict JML in their favor on Norwood's breach of contract claim. First, they say that the plain language of the property description in the November 1991 listing agreement between Glenlakes Realty and Norwood does not include the LGCC. They say it includes only the residential lots in Lakeview Estates and the undeveloped property and that the LGCC is mentioned in the description only as a point of reference for the undeveloped property. They further say *178 that the reference to 820 acres cannot be taken to mean literally 820 acres because Glenlakes Realty purchased only 665 acres and, thus, the mention of 820 acres does not mean that the LGCC was necessarily included. The defendants next argue that even if the property description in the exclusive listing agreement is considered ambiguous, any ambiguity should be construed against Norwood because, they say, he drafted it. In addition, the defendants argue that the listing agreement should not be interpreted to include the LGCC because, they say, it is undisputed that when the agreement was drafted they had no intention of ever selling the LGCC. As evidence of this fact they point out that Norwood never attempted to find a buyer for the LGCC. Thus, they say that there was never a meeting of the minds to include the LGCC in the listing agreement and that it should not be interpreted to conflict with the intention of the parties. The defendants next argue that even if the exclusive listing agreement with Norwood could be interpreted to include the LGCC, they did not breach the agreement because, they say, Norwood failed to meet the requirements necessary to earn a commission. They point out that the LGCC was sold to LinksCorp after the January 1, 1993, expiration of the listing agreement and that Norwood never listed LinksCorp as a prospective purchaser even though he was required to list prospective purchasers before the expiration of the listing agreement; and they say that the LGCC was not sold during the 180-day extension of the agreement. They contend that the earliest that it can be said there was a "sale" of the LGCC is September 1, 1993, when a purchase agreement was executed, 243 days after January 1, 1993. The defendants next argue that Norwood's exclusive listing agreement was not extended by implication beyond January 1, 1993, by the fact that Norwood was paid commissions for sales of residential lots in Lakeview Estates after that date. They say that the commissions were paid to Norwood based on provisions in the purchase contracts for the lots calling for commission payments and not because of an implied agreement to extend the exclusive listing agreement. They further note that Norwood and Glenlakes Realty entered into a second nonexclusive listing agreement on June 26, 1993, for sales of lots in Lakeview Estates, and they argue that the first listing agreement could not be extended by implication beyond that date, since both agreements relate to the same subject matter and an express agreement is controlling over an implied one. The defendants say that Alabama law requires that all real estate listing agreements have a fixed expiration date and that the law prohibits automatic extensions; they say this law reflects a public policy against implied extensions of such agreements. Thus, they argue that Norwood's first listing agreement could not be extended beyond its express January 1, 1993, expiration date, and certainly not beyond June 26, 1993. Finally, the defendants say that even if the first listing agreement was extended by implication, the implied extension could not include the LGCC, because Norwood was aware before the agreement's expiration date that Glenlakes Realty intended not to pay him a sales commission on the LGCC, precluding a meeting of the minds that the extension of the listing agreement included the LGCC. In response, Norwood contends that the exclusive listing agreement he entered into with Glenlakes Realty in November 1991 included the LGCC. He says that the property description in the listing agreement describing 820 acres was the same that was used in an earlier Wall Street Journal advertisement that first brought the property to the attention of Yarborough, Gorrie, and Murray, and that a marketing plan prepared subsequent to the listing agreement also listed the entire property as containing 820 acres. Thus, he argues that the use of the description "820 acres" meant that the LGCC was included in the exclusive listing agreement. Norwood further notes that the exclusive listing agreement was signed for Glenlakes Realty by Harry Watkins, the general manager, who had authority to bind the company and who testified at trial that he understood the listing agreement to include the LGCC. He notes that Watkins also testified that he would not have signed the listing agreement *179 if Yarborough, Gorrie, and Murray had not agreed to it. Norwood argues that the defendants are wrong in their contention that he drafted the property description in the listing agreement and in their argument that any ambiguity, therefore, should be construed against him. Norwood notes that Watkins testified that the description was jointly drafted by Norwood and Watkins, who represented Glenlakes Realty. Thus, Norwood says that the property description in the listing agreement cannot be construed against him and that it should be interpreted to include the LGCC. Norwood argues that he is due payment of a commission in relation to the sale of the LGCC to LinksCorp because, he says, the sale agreement between Glenlakes Realty and LinksCorp was negotiated in June 1993, during the existence of his sales authority. Norwood next argues that the first listing agreement was extended by implication past January 1, 1993, because the parties to the agreement, Norwood and Glenlakes Realty, continued their respective performances after the expiration date. Specifically, Norwood argues that after the express contract expired it was replaced with an implied one that, he says, encompassed the terms of the written agreement, and he argues that the existence of this agreement is at least a question of material fact precluding a pre-verdict JML on his breach of contract claim. He says that any necessity of putting an extension of the listing agreement in writing was waived by the defendants' acceptance of his continuing performance under the terms of the listing agreement. Norwood further argues that the second nonexclusive listing he signed with Glenlakes Realty in June 1993 did not terminate the implied extension of the first listing agreement, because, he says, the two do not cover the same subject matter. However, he contends that if the second listing agreement terminated the implied extension of the first, then the 180-day provision in the first listing agreement encompasses the sale of the LGCC. Alternatively, Norwood argues that an additional express contract extended the terms of the November 1991 exclusive listing agreement. He says that after January 1, 1993, he was told by the defendant Murray that Norwood's "deal" with Glenlakes Realty was fine with Yarborough, Gorrie, and Murray. Norwood contends that a contract between a seller of real estate and a broker need not be in writing and, thus, he says that there was at least a question of material fact as to whether an oral contract was formed that gave him a second express listing agreement after January 1, 1993. Having reviewed the November 1991 exclusive listing agreement between Glenlakes Realty and Norwood, we conclude that the property description is ambiguous. Although the first portion of the descriptive sentence appears to mention the LGCC as merely a reference point, its later mention of 820 acres creates doubt as to whether the parties intended to include the LGCC in the property description. Although the defendants contend that Norwood drafted the property description, and thus that any ambiguity should be construed against him, Watkins testified at trial that the description was jointly drafted by Norwood and Watkins, who represented Glenlakes Realty. Thus, we cannot construe any ambiguity in the description against Norwood and we cannot say that as a matter of law the description did not include the LGCC. When a contract is ambiguous, the meaning of the contract is to be determined by the trier of fact. Mass Appraisal Services, Inc. v. Carmichael, 404 So. 2d 666 (Ala.1981); Jones v. Chaney & James Construction Co., 399 F.2d 84 (5th Cir.1968). Even though the meaning of the property description in Norwood's exclusive listing agreement was properly to be determined by the jury, that fact is not conclusive on the issue whether the trial court erred in denying the defendants' motions for a pre-verdict JML and a post-verdict JML. Even if the exclusive listing agreement is read to include the LGCC, we conclude that Norwood failed to present substantial evidence indicating that he met the requirements set out in the agreement for him to receive a commission on the sale of the LGCC. In other words, it can be determined, as a matter of law, that Norwood failed to tender the *180 performance necessary to meet the terms of the contract. Specifically, Norwood would have had to list LinksCorp, the eventual purchaser of the LGCC, with Glenlakes Realty as a prospective purchaser of the LGCC, before January 1, 1993. It is uncontroverted that he did not do so. Moreover, the sale needed to occur within 180 days of January 1, 1993, and we conclude that, as a matter of law, the earliest it could be held that a sale of the LGCC occurred was September 1, 1993, when a purchase agreement between LinksCorp and Glenlakes Realty was executed.[2] Thus, we conclude that, as a matter of law, the prerequisites necessary for Norwood to receive a sales commission were not met. Moreover, we also conclude that Norwood failed to present substantial evidence in support of his claims based on an implied extension of the exclusive listing agreement and a separate oral listing agreement. In sum, we conclude that the trial court erred in denying the defendants' pre-verdict JML motion and post-verdict JML motion on Norwood's breach of contract claim. Having concluded that Norwood failed to present substantial evidence in support of his breach of contract claim, we also hold that he failed to present substantial evidence in support of his claims that the defendants fraudulently misrepresented that he was not due a commission on the sale of the LGCC, that the defendants fraudulently suppressed that he was due a sales commission, that the defendants tortiously interfered with his exclusive listing agreement, and that the defendants wrongfully conspired to deprive him of his right to a sales commission under the listing agreement. Those claims are all dependent upon the viability of Norwood's breach of contract claim, and, because we have concluded that the trial court erred in denying the defendants' motions for a pre-verdict JML and for a post-verdict JML on the breach of contract claim, we must also conclude that the court erred in denying the motions for a pre-verdict JML and for a post-verdict JML on those claims as well. However, we conclude that Norwood did present substantial evidence in support of his claim for a quantum meruit recovery in relation to the work he performed for Glenlakes Realty after Watkins was terminated from the position as manager. There is substantial evidence indicating that Norwood was not compensated for that work or was insufficiently compensated for it, although he did receive a residential lot from Glenlakes Realty that may be valued at $13,000 or more. See Hendrix, Mohr & Yardley, Inc. v. City of Daphne, 359 So. 2d 792, 795 (Ala. 1978) ("It is the settled law of this State that where one knowingly accepts services rendered by another, and the benefit and result thereof, the law implies a promise on the part of the one accepting ... to pay the reasonable value of [the] services rendered.") It is for the jury to determine the factual questions whether Glenlakes Realty was due to compensate Norwood for his additional work, whether Glenlakes conveyed the residential lot to Norwood as compensation for that work, and, if so, whether the conveyance of that property was sufficient compensation. Accordingly, the trial court properly denied the defendants' motions for a pre-verdict JML or a post-verdict JML as to this claim. Having concluded that the trial court erred in denying the defendants' motions for a pre-verdict JML or a post-verdict JML as to Norwood's claims alleging breach of contract, fraudulent misrepresentation, fraudulent suppression, tortious interference with contract, and conspiracy, we reverse the trial court's judgment based on the jury's general *181 verdict. We remand this cause for a new trial on the quantum meruit claim. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, ALMON, HOUSTON, KENNEDY, COOK, and SEE, JJ., concur. [1] Effective October 1, 1995, Rule 50, Ala. R. Civ. P., was amended to rename motions for directed verdict and motions for judgment notwithstanding the verdict as motions for judgment as a matter of law ("JML"). We will use the amended terminology and, so as to facilitate differentiation between a motion made at the conclusion of the plaintiff's case or at the conclusion of the evidence, on the one hand, and a motion made after the return of a verdict, on the other hand, we will use the limiting term "pre-verdict" or "post-verdict," as appropriate. [2] Although Norwood argues that the terms of the June 1993 letter of intent are substantially the same as those of the September 1993 purchase agreement and thus argues that it should be held that there was a sales agreement in June, an agreement to later enter into an agreement is not enforceable, Dixieland Food Stores, Inc. v. Geddert, 505 So. 2d 371 (Ala. 1987); Clanton v. Bains Oil Co., 417 So. 2d 149 (Ala.1982). Thus, the letter of intent cannot constitute a "sale" of the LGCC.

May 29, 1998

5fe2f8e2-a1f3-449f-91ff-fd08ee7d62d3

Ex Parte Water Works and Sewer Bd. of City of Birmingham

723 So. 2d 41

1971545

Alabama

Alabama Supreme Court

723 So. 2d 41 (1998) Ex parte The WATER WORKS AND SEWER BOARD OF the CITY OF BIRMINGHAM. (Re The Water Works and Sewer Board of the City of Birmingham v. American Water Works Association et al.) 1971545. Supreme Court of Alabama. October 30, 1998. *42 Charlie D. Waldrep, K. Mark Parnell, and Mary H. Thompson of Gorham & Waldrep, P.C., Birmingham; and Billy L. Church and Alan Lasseter of Church & Seay, P.C., Pell City, for petitioner. M. Clay Ragsdale and E. Ansel Strickland of Law Offices of M. Clay Ragsdale, Birmingham; A. Dwight Blair of Blair, Holladay & Parsons, Pell City; and Gayle Gear of Dawson & Gear, Birmingham, for respondent Larry Wallace. KENNEDY, Justice. The Water Works and Sewer Board of the City of Birmingham (the "Water Works") petitions for a writ of mandamus compelling Judge William E. Hereford, of the St. Clair Circuit Court, to vacate his order requiring production of certain documents. A petition for the writ of mandamus is the proper means for obtaining review of the question "whether a trial court has abused its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders." Ex parte Compass Bank, 686 So. 2d 1135, 1137 (Ala.1996). On May 9, 1997, the Water Works filed a declaratory judgment action in the Jefferson Circuit Court, seeking a declaration that expenditures totalling approximately $806,000 made by it to over 100 separate charitable entities between October 1993 and October 1996 were within its corporate powers, were in furtherance of a public purpose, and provided a corporate benefit. On July 1, 1997, the Jefferson Circuit Court granted motions to intervene filed by the attorney general and by Water Works customer Larry Wallace.[1] The attorney general and Wallace were realigned as plaintiffs against the Water Works. The court transferred the case to the St. Clair Circuit Court. On February 12, 1998, the Water Works and the attorney general moved for a consent order, attempting to settle the dispute between the Water Works and the attorney general. On February, 20, 1998, Wallace requested production of documents from the Water Works and the attorney general, asking for The Water Works and the attorney general objected to this discovery request. Following a hearing, the court entered an order denying the motion for a consent order and ordered the Water Works and the attorney general to immediately produce the documents requested by Wallace. The court also ordered that, "To the extent either the Attorney General or [the Water Works] contend[s] that the request includes materials within the attorney-client privilege, the producing parties are required to submit a privilege log identifying all documents withheld from production." On May 12, 1998, the Water Works filed a "motion to reconsider," along with a list of documents that it asserted were privileged. The attorney general did not join the motion to reconsider. The trial court denied the Water Works' motion to reconsider, holding that the communications between the Water Works and the attorney general were not privileged under either the work-product doctrine or the attorney-client privilege. The court noted that the attorney general was not then objecting to the production of documents in his file, but had not produced them yet. In its order, the trial court stated: In general, a party may obtain discovery of all matters, not privileged, that are reasonably calculated to lead to the discovery of admissible evidence. Rule 26(b)(1), Ala. R.Civ.P. Rule 26 vests in the trial court broad discretion to control the discovery process and to prevent its abuse by either party, but that discretion is not unbridled. The issue is whether the trial court abused its discretion in ordering the disclosure of the communications between the Water Works and the attorney general. Wallace argues that the communications go to the heart of the question whether the settlement was collusive and should be rejected by the court. Wallace contends that the documents may contain facts and/or admissions made during the settlement negotiations between the Water Works and the attorney general "which bear on the Water Works Board's liability." Wallace argues that if the Water Works and the attorney general can submit a consent order that could end all potential liability on the part of the Water Works, and which would likely be relied upon at a later date if it were approved, then the facts and representations upon which that proposed consent order are based should be discoverable. The Water Works argues that the communications are not discoverable, under the work-product doctrine. The protection of the work-product doctrine attaches to documents and other items produced by a party in anticipation of litigation. Rule 26(b)(3). The test to determine whether a document constitutes work product is whether it was prepared by the party or his representative in anticipation of litigation. The party seeking discovery must show that he has a substantial need of the materials and is unable, without undue hardship, to obtain by other means the substantial equivalent of the materials. Rule 26(b)(3); Ex parte Garrick, 642 So. 2d 951 (Ala.1994). The rule protects against revealing an attorney's mental impressions, conclusions, opinions, and legal theories. Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947); Ex parte Alabama Power Co., 280 Ala. 586, 196 So. 2d 702 (1967). The Water Works also contends that the communications are privileged under the attorney-client relationship. We note that under Rule 408, Ala.R.Evid., evidence of a compromise or offer to compromise "is not admissible to prove liability for or invalidity of the claim or its amount." Rule 408 also provides: "Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations." The Advisory Committee Notes to Rule 408 state, "Nothing in Rule 408 is intended to protect otherwise discoverable evidence simply because a party has offered such evidence during compromise negotiations." Before the Rules of Evidence became effective, on January 1, 1996, we had held that certain conversations in connection with settlement negotiations were inadmissible at trial. Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317 (Ala.1987). In Super Valu, the letters and conversations were found to be integral parts of the parties' negotiations. "The rationale and public policy underlying the privileged nature of settlement negotiations is the encouragement of extrajudicial settlement of disputes." 506 So. 2d 317, 324. The Water Works argues that this Court should apply the rationale of Bottaro v. Hatton Associates, 96 F.R.D. 158, 160 (E.D.N.Y. 1982), wherein the federal district court held that a party seeking discovery of documents relating to settlement negotiations must make a "particularized showing" that the requested documents are relevant and likely to lead to the discovery of admissible evidence. In Bottaro, the court stated that Rule 408, Fed.R.Evid.,[2] would not immunize documents or factual admissions merely because they were exchanged in the course of negotiating a settlement, if they were independently admissible either as preexisting documents or were provable by evidence other than *45 conduct or statements that make up compromise negotiations. Following Super Valu and Bottaro, we conclude that the communications sought by Wallace are not discoverable. Wallace has not made a particularized showing that the communications would lead to the discovery of admissible evidence. From materials in the petition, it appears that the communications were made as part of the settlement process and were not preexisting. Moreover, Wallace's reason for wanting discovery of the settlement communications is to see if the Water Works conceded liability, which he must prove by evidence other than conduct or statements that make up the negotiations. Additionally, we cannot say, merely because a municipal board and the attorney general agree to a settlement, that the settlement is collusive. The petition for writ of mandamus is granted. WRIT GRANTED. HOOPER, C.J., and MADDOX, SHORES, and SEE, JJ., concur. [1] Wallace sued the Water Works in St. Clair County, alleging conversion, fraudulent suppression, breach of fiduciary duty, and "felonious injury" in the expenditure of the funds to the charities. [2] The federal Rule is substantially the same as Rule 408, Ala.R.Evid.

October 30, 1998

9864b5a7-16ba-4914-bfd7-dffbd4b680e2

AALAR, Ltd., Inc. v. Francis

716 So. 2d 1141

1961560

Alabama

Alabama Supreme Court

716 So. 2d 1141 (1998) AALAR, LTD., INC. v. C.J. FRANCIS and F.N. Francis. 1961560. Supreme Court of Alabama. April 17, 1998. Rehearing Denied June 12, 1998. *1142 John D. Gleissner of Gleissner, Stallings & Rogers, Birmingham, for appellant. James L. North and J. Timothy Francis of James L. North & Associates, Birmingham, for appellees. HOUSTON, Justice. One of the defendants below, AALAR, Ltd., Inc. ("AALAR"), appeals from a judgment entered on a $60,000 jury verdict for the plaintiffs, C.J. Francis and his mother, F.N. Francis, in this action based on allegations of negligence and wantonness. We reverse and remand. The pertinent evidence, viewed in the light most favorable to the plaintiffs, indicates the following: AALAR, a Georgia corporation, is in the business of renting automobiles to the public. In Birmingham, AALAR does business as Birmingham Rent-A-Car; in Atlanta, it does business as Atlanta Rent-a-car. After one of AALAR's automobiles was stolen from one of its Atlanta branches in November 1995, the manager of that branch, Pandora Evans, reported the theft to the Atlanta Police Department. In accordance with standard procedure, the Atlanta Police Department listed the automobile on the National Crime Information Center ("NCIC") computer as a stolen vehicle. Evans was aware that this listing would be made. The stolen automobile was later discovered abandoned in Huntsville, Alabama. After being notified that the automobile had been located, Evans contacted AALAR's Birmingham area manager, Bill Moore, and requested that someone from one of the Birmingham branches retrieve the automobile. Moore had the automobile brought to Birmingham on or about November 27, 1995, where it was serviced and immediately placed back into the rental pool at one of the Birmingham branches. Both Moore and Evans were aware that the automobile's listing on the NCIC computer needed to be removed, and they both made several attempts to have that done. Moore contacted the Birmingham Police Department and was informed by a representative of that department that the Atlanta Police Department would have to remove *1143 the listing. Moore relayed this information to Evans and asked her to handle the matter in Atlanta. Evans contacted the Atlanta Police Department and was told that it would not remove the listing until someone with that department had actually seen the automobile and had prepared a recovery report. Evans relayed this information to Moore. Although each of them had had success in the past in removing various NCIC listings by telephone, both Moore and Evans were aware that the automobile's listing would not be removed from the NCIC computer until the automobile was brought to the Atlanta Police Department for proper processing. The evidence suggests that Moore and Evans each thought the other was handling the matter and that after a while the matter just "slipped through the cracks," as Moore put it. However, although he had no reason to think the proper steps had been taken to remove the listing from the NCIC computer, having received no confirmation from a police department or from Evans that the listing had been removed, Moore immediately rented the automobile; he continued to rent it and rented it numerous times until April 1, 1996, when he rented it to F.N. Francis. Both F.N. Francis and C.J. Francis are listed on the rental contract as authorized drivers of the automobile. Evans was not aware that Moore had begun renting the automobile while it was still listed on the NCIC computer. At approximately 1:00 a.m. on April 2, 1996, the automobile caught the attention of a police officer with the City of Trussville, when the officer observed the driver of the automobile, whom he knew to be C.J. Francis, remain longer than he thought was normal at a stop sign. The officer had the automobile's tag number checked on the NCIC computer. Because he knew where C.J. Francis lived, the officer did not follow him. When the officer later learned that the automobile he had seen was listed as stolen, he and several other police officers went to F.N. Francis's house, at approximately 3:00 a.m., and demanded entry to question her son, C.J. Francis. The officers remained in the house for 15 to 20 minutes; however, they stayed on the street in front of the house for several hours waiting on a truck to come and tow the automobile away. At one point while the officers were inside the house questioning the plaintiffs, C.J. Francis went outside to retrieve the rental papers from the glove compartment of the automobile. When he did this, an officer who had been assigned to secure and watch the automobile, being unsure of C.J. Francis's intentions, momentarily pulled his gun. Neither C.J. Francis nor F.N. Francis suffered any physical injury and neither was charged with a crime. The Francises sued AALAR, alleging that Moore and Evans had acted negligently or wantonly in failing to have the listing on the NCIC computer removed before the automobile was rented to F.N. Francis on April 1, 1996. The plaintiffs claimed both compensatory damages (for emotional distress only) and punitive damages. They also sued Moore, the City of Trussville, and two Trussville police officers; they did not sue Evans. The City of Trussville and its police officers settled with the plaintiffs for $5,000 and were dismissed. At trial, the court denied AALAR's motion for a judgment as a matter of law and submitted both of the claims (negligence and wantonness) to the jury. The jury was instructed that it could find against AALAR even if it did not find Moore's conduct to be culpable, provided it was satisfied that some employee of AALAR had acted negligently or wantonly. The jury found for Moore, but against AALAR; it awarded each plaintiff $30,000 in compensatory damages for emotional distress. AALAR appealed. AALAR presents two issues for our review: 1) Whether AALAR was entitled to a judgment as a matter of law with respect to both the negligence claim and the wantonness claim, on the ground that under Alabama law a plaintiff cannot recover compensatory damages for emotional distress absent some evidence that the plaintiff suffered physical injury; and 2) Whether AALAR was entitled to a judgment as a matter of law on the ground that the plaintiffs' evidence was not sufficient to support a verdict in the plaintiffs' favor. With regard to the first issue, AALAR contends that the plaintiffs' negligence claim *1144 was a claim alleging the negligent infliction of emotional distress, and that Alabama does not recognize such a cause of action. AALAR argues that damages for emotional distress are not recoverable in Alabama in actions based on allegations of negligence and wantonness, absent evidence of some corresponding physical injury. The plaintiffs contend that they did not attempt to claim damages based on a negligent-infliction-of-emotional-distress cause of action. They argue, instead, that they claimed damages based on negligence and wantonness recognized common law causes of action and that compensatory damages for emotional distress are recoverable in negligence and wantonness actions, even when there is no evidence of a corresponding physical injury. After examining the complaint and considering the arguments of the parties, we conclude that the trial court properly denied AALAR's motion for a judgment as a matter of law with respect to C. J. Francis's claim, a motion based on the ground that he sought to recover compensatory damages for emotional distress in the absence of any evidence of a corresponding physical injury. Alabama, historically, did not permit the recovery of compensatory damages for emotional distress in a negligence action, absent some evidence of a corresponding physical injury. However, in Taylor v. Baptist Medical Center, Inc., 400 So. 2d 369 (Ala.1981), this Court specifically rejected that long-standing rule, stating that "to continue to require physical injury caused by culpable tortious conduct, when mental suffering may be equally recognizable standing alone, would be an adherence to procrustean principles which have little or no resemblance to medical realities." 400 So. 2d at 374. In Taylor, the plaintiff's action against her physician was based on allegations that the physician had negligently failed to attend during her labor and her delivery of a child who either was stillborn or died within moments of birth. The plaintiff claimed no actual physical injury; she argued, instead, that she had suffered emotional distress as the result of going through an apparently difficult and painful labor and delivery without the personal assistance of her physician. This Court recognized the plaintiff's claim and reversed the summary judgment the trial court had entered in favor of the physician. Recently, in Flagstar Enterprises, Inc. v. Davis, 709 So. 2d 1132 (Ala.1997), this Court, citing Taylor, allowed the plaintiff to proceed on her claim for damages for emotional distress, based on allegations that a Hardee's restaurant had negligently served her food that had been tainted with human blood. Although Taylor held, and Flagstar recognized, that a physical injury is no longer a prerequisite to the recovery of damages for emotional distress in a negligence action, neither of those decisions was intended to establish a new and independent tort action for negligently inflicted emotional distress. Since Taylor, this Court has stated repeatedly that such an independent tort does not exist in Alabama. See Allen v. Walker, 569 So. 2d 350 (Ala.1990); Reserve National Ins. Co. v. Crowell, 614 So. 2d 1005 (Ala.1993), cert. denied, 510 U.S. 824, 114 S. Ct. 84, 126 L. Ed. 2d 52 (1993); Fitch v. Voit, 624 So. 2d 542, n. 3 (Ala.1993); Gideon v. Norfolk Southern Corp., 633 So. 2d 453 (Ala.1994); Morris v. Merritt Oil Co., 686 So. 2d 1139, 1146, n. 2 (Ala.1996). These statements illustrate that this Court has adhered to the principle that negligently causing emotional distress is not an independent tort in Alabama, but, rather, that it is part and parcel of the traditional tort of negligence. The traditional elements of a negligence cause of action are a duty to a foreseeable plaintiff, breach of that duty, causation, and damage. See Crowne Investments, Inc. v. Bryant, 638 So. 2d 873 (Ala.1994). Although the existence of a duty, in the context of a traditional negligence action, does depend upon the foreseeability of the risk of injury, see Ledbetter v. United American Ins. Co., 624 So. 2d 1371 (Ala.1993), this Court has not recognized a cause of action based on the existence of a broad, generalized duty to refrain from engaging in conduct that could foreseeably result in some form of emotional distress. Compare American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980), wherein this Court held that the intentional infliction of severe emotional distress by extreme and outrageous conduct *1145 constitutes a cause of action in itself, apart from any traditional tort. In the traditional negligence context, emotional distress is compensable only in connection with the defendant's breach of some duty imposed by law. In Taylor, the defendant's duty to the plaintiff was that owed by a physician to his patient to exercise the appropriate degree of care in delivering a baby. In Flagstar, the duty was based on a restaurant's well-established obligation to exercise reasonable care in preparing its food and in serving that food to its customers. However, contrary to a number of confusing statements this Court has made in post-Taylor cases, to the effect that Alabama recognizes no "cause of action" for negligently inflicted emotional distress, see Allen v. Walker, supra; Reserve National Ins. Co. v. Crowell, supra; Fitch v. Voit, supra; Gideon v. Norfolk Southern Corp., supra; Morris v. Merritt Oil Co., supra, we have recognized, since this Court's 1981 decision in Taylor, a right of recovery for mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought about by a physical injury. Although Taylor represented a major departure from established Alabama law, it nonetheless brought Alabama into line with the majority of states; most states do not require the existence of a physical injury as a prerequisite to the recovery of damages for emotional distress. In Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S. Ct. 2396, 129 L. Ed. 2d 427 (1994), the United States Supreme Court, in determining the proper standard for evaluating claims for negligently inflicted emotional distress brought under the Federal Employers' Liability Act, 35 Stat., as amended, 45 U.S.C. §§ 51-60, surveyed the evolution of the common law right to recover damages for emotional distress in negligence cases: 512 U.S. at 544-49, 114 S. Ct. 2396. As noted, this Court in Taylor abandoned the "physical impact" test. This Court has, however, refused to extend liability so far as to recognize a right of recovery in bystanders. See Gideon v. Norfolk Southern Corp., supra. Taylor recognized the existing right to recovery for emotional distress for plaintiffs who have suffered a physical injury as the result of another's negligence, and it expressly extended the right to recovery to those who have suffered emotional distress without also suffering a corresponding physical injury. Implicit in the Taylor holding is a recognition that damages for emotional distress alone may be awarded in negligence cases where the evidence suggests that emotional distress may have resulted from culpable tortious conduct. Taylor contemplated a limited right of recovery in those whose emotional distress was reasonably foreseeable. In Taylor, it was reasonably foreseeable that the plaintiff would be placed at risk of physical injury by the physician's failure to attend her delivery; thus, there was clearly a legal duty owed by the defendant physician to his patient. Likewise, in Flagstar, it was reasonably foreseeable that the plaintiff would be placed at risk of physical injury as the result of the restaurant's serving her food that had been tainted with human blood blood that put the plaintiff at risk of contracting HIV, the virus that causes the disease AIDS; thus, there was clearly a duty owed by the restaurant to its customer. As these cases demonstrate, the current state of Alabama law is consistent with the "zone of danger" test discussed in Gottshall, which limits recovery for emotional injury to those plaintiffs who sustain a physical injury as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct. The evidence indicates that F.N. Francis rented from AALAR an automobile that was listed on the NCIC computer as stolen. Both F.N. Francis and C.J. Francis were listed on the rental contract as authorized drivers of the automobile. The evidence indicated that AALAR owed both F.N. Francis and C.J. Francis a duty to have the NCIC computer listing removed before it allowed them to drive the automobile. The purpose of listing a stolen automobile with the NCIC is to facilitate its recovery by any law enforcement agency that may come across it. A reasonable person could conclude that AALAR could have foreseen that either F.N. Francis or C.J. Francis might be stopped and questioned by police officers as a result of the NCIC listing and that those police officers would approach them under an assumption that they had committed a felony. The evidence indicated that C.J. Francis was, in fact, approached and questioned by police officers from the City of Trussville and that as a result of that questioning he had a gun pulled on him while he was attempting to retrieve his rental papers from the automobile. Whether C.J. Francis should be allowed recovery for emotional distress under these facts (i.e., whether it was reasonably foreseeable to AALAR that C.J. Francis would be placed at risk of physical injury and whether he, in fact, suffered emotional distress), is a question for the trier of fact under the rule enunciated in Taylor. See Cherokee Electric Co-op. v. Cochran, 706 So. 2d 1188 (Ala.1997); Alabama Power Co. v. Alexander, 370 So. 2d 252, 254 (Ala.1979) ("[w]here the facts, upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury"). However, the undisputed evidence indicated that F.N. Francis was never at risk of suffering physical injury as a result of renting the automobile from AALAR. There *1148 is no evidence that the police physically threatened her by, say, pulling a gun in her presence or by verbally threatening her with physical violence. As with C.J. Francis, we do conclude that a fact question was presented as to whether F.N. Francis was a foreseeable plaintiff with a legally protected interest and, thus, was owed a duty by AALAR to exercise due care; however, this Court to date has not recognized emotional distress as a compensable injury or harm in negligence actions outside the context of emotional distress resulting from actual physical injury or, in the absence of physical injury, fear for one's own physical safety. See Pearson, Liability to Bystanders for Negligently Inflicted Emotional HarmA Comment on the Nature of Arbitrary Rules, 34 U.Fla.L.Rev. 477, 487 (1982) (discussing the separate liability and damages components of the "zone of danger" test and noting that "fear for one's own safety" has been recognized as "a discrete element of harm"). We hold, therefore, that the trial court erred in denying AALAR's motion for a judgment as a matter of law with respect to F. N. Francis's claims alleging emotional distress. In this respect, we note that the City of Trussville and its police officers settled with the plaintiffs for $5,000; therefore, F.N. Francis has been compensated for whatever emotional distress she may have incurred as the result of any improper conduct on the part of the police while they were at her house. With respect to the second issue, AALAR contends that the evidence was insufficient to support the jury's verdict. AALAR points out that the jury found that Moore had not acted negligently or wantonly in renting the automobile to F.N. Francis while it was still listed with the NCIC. Therefore, according to AALAR, the judgment has to stand or fall on the strength of the evidence of Evans's conduct. C.J. Francis argues that there was sufficient evidence of wantonness on Evans's part to support the verdict. After carefully examining the evidence, we conclude that there was sufficient evidence of negligence on the part of both Moore and Evans to submit C.J. Francis's negligence claim to the jury. The jury reasonably could have inferred from the evidence that both Moore and Evans failed to exercise reasonable care when they failed to remove the NCIC listing after the automobile was recovered. This is basically conceded by AALAR. We also conclude that there was sufficient evidence of wantonness on the part of Moore to allow the jury to find AALAR liable for Moore's conduct. The evidence indicated that Moore knew when he rented the automobile to F.N. Francis that its NCIC listing had not been removed. As previously noted, a reasonable person could infer that Moore, an experienced manager in the automobile rental business, rented the automobile knowing that there was a very real risk that the customer could be stopped and confronted by the police. The significant aspect of this case, however, is that the people who heard the evidence, and who were charged by law with finding the facts, did not find Moore to be guilty of either negligence or wantonness. Therefore, AALAR correctly argues that the judgment must stand or fall on the strength of the evidence with respect to Evans's conduct. After reviewing the testimony of both Moore and Evans (which is the only evidence of record that sheds any light on what Evans knew and did), we conclude that the evidence was not sufficient to support a finding of wantonness on Evans's part. Although we agree with C.J. Francis that the evidence indicated that Evans failed to exercise reasonable care in securing the removal of the NCIC listing, it is crucial, we think, that the undisputed evidence indicates that Evans did not know that Moore had begun renting the automobile to the public while they were still attempting to get the NCIC listing removed. The undisputed evidence indicated that the decision as to when to place the automobile back into rental service was discretionary with Moore, because the automobile was in the possession and control of one of AALAR's Birmingham branches. Wantonness is conduct that is carried on with a reckless or conscious disregard of the rights or safety of others. Ala.Code 1975, § 6-11-20. This Court has emphasized that wantonness requires some degree of consciousness on the part of the defendant that injury is likely to result from an act or *1149 omission. Coca-Cola Bottling Co. United, Inc. v. Stripling, 622 So. 2d 882 (Ala.1993). Although Evans may have "dropped the ball" in failing to follow up with Moore so as to ensure that the NCIC listing was removed, we cannot see how liability on AALAR's part can be predicated on allegations of wantonness on Evans's part, when the undisputed evidence indicates that Evans took no part in, and had no knowledge of, Moore's decision to rent the automobile while it was still listed with the NCIC. The judgment is due to be reversed and the cause remanded. AALAR specifically argued to the trial court that F.N. Francis's claims should not be presented to the jury and that there was insufficient evidence of wantonness on the part of any of its employees to allow the jury to predicate liability on their actions. The judgment, insofar as it pertains to the verdict for F.N. Francis, is due to be set aside as a matter of law. Insofar as it pertains to the verdict for C.J. Francis, it is also due to be reversed under the authority of Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981). The insufficiency of the evidence with respect to wantonness brings into play the "good count/bad count" rule discussed in Aspinwall; therefore, we cannot assume that the jury found AALAR liable to C.J. Francis based on a valid claim in the complaint. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, ALMON, SHORES, KENNEDY, COOK, SEE, and LYONS, JJ., concur.

April 17, 1998

63a1e8c2-18a1-4b42-ad74-ba5c68484357

Ex Parte George

717 So. 2d 858

1961426

Alabama

Alabama Supreme Court

717 So. 2d 858 (1998) Ex parte Larry Donald GEORGE. (Re Larry Donald George v. State). 1961426. Supreme Court of Alabama. April 17, 1998. Rehearing Denied June 26, 1998. Steven D. Giddens, Talladega (motion to withdraw granted Aug. 26, 1997); and Jeb Fannin, Talladega, for appellant. Bill Pryor, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee. *859 ALMON, Justice. Larry Donald George petitioned for a writ of certiorari to the Court of Criminal Appeals, for review of that court's judgment affirming his capital murder conviction and death sentence. We granted the petition, pursuant to Rule 39(c), Ala. R.App. P. This matter has been before this Court on an earlier petition. George v. State, 717 So. 2d 827 (Ala.1996). In that proceeding, this Court reversed the judgment of the Court of Criminal Appeals, George v. State, 717 So. 2d 827 (Ala.Cr.App.1996), insofar as it reversed the sentence of death. On remand, the Court of Criminal Appeals affirmed the conviction and sentence. George v. State, 717 So. 2d 849 (Ala.Cr.App.1997). George was convicted of two counts of capital murder: one count of murder made capital because two people were killed as the result of one course of conduct, and one count of murder made capital because the murders occurred during the course of a burglary in the first degree. See Ala.Code 1975, § 13A-5-40(a)(10) and (a)(4). George was also convicted of one count of attempted murder, which offense was committed during the same course of conduct as the two capital murders. After the sentence hearing, the jury recommended the death penalty, by a 10-to-2 vote. The circuit court then proceeded to determine the sentence, considering the jury's advisory verdict, the presentence investigation report, and other evidence that was presented in connection therewith. The circuit court found the existence of one aggravating circumstance that the murders were committed during a burglary, and one mitigating circumstance that George had no significant history of past criminal activity. After weighing these circumstances, the circuit court sentenced George to death by electrocution on the capital murder charges and to life imprisonment on the attempted murder charge. We have carefully reviewed all of the issues presented in the petition, the briefs, and the oral argument. All of the issues George raises have been fully addressed either by the Court of Criminal Appeals or by this Court in its earlier opinion. We have studied the opinions of the Court of Criminal Appeals and have examined the record for plain error. We find no error, plain or otherwise, in either the guilt phase or the sentencing phase of George's trial that would warrant a reversal of his conviction or his sentence. We therefore affirm the judgment of the Court of Criminal Appeals. AFFIRMED. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, COOK, and SEE, JJ., concur.

April 17, 1998

394a5a70-a8ef-4de0-86ed-0c8a0ce9c0db

Norwest Mortg., Inc. v. Nationwide Mut. Fire Ins. Co.

718 So. 2d 15

1960794

Alabama

Alabama Supreme Court

718 So. 2d 15 (1998) NORWEST MORTGAGE, INC. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY. 1960794. Supreme Court of Alabama. June 12, 1998. Sarah Y. Larson of Maynard, Cooper & Gale, P.C., Birmingham, for appellant. Barry W. Hair and Lynn Etheridge Hare of Hare, Hair & White, P.C., Birmingham, for appellee. *16 HOUSTON, Justice. Pauline Taylor executed an application for homeowner's insurance with Nationwide Mutual Fire Insurance Company ("Nationwide"). Taylor misrepresented in the application that she had not previously submitted claims for losses covered by insurance and that she had not had an insurance company refuse to renew another insurance policy. Unaware of these misrepresentations, Nationwide issued a policy to Taylor and her husband. Nor-west Mortgage, Inc. ("Norwest"), which held the mortgage on the Taylors' home, was covered under that policy, pursuant to the following clause: Norwest had no knowledge that the policy had been fraudulently procured. The Taylors' home was later damaged by fire. While investigating the loss, Nationwide discovered the misrepresentations and, based on Ala.Code 1975, § 27-14-7,[1] refused coverage to the Taylors and Norwest. Nationwide then filed this declaratory judgment action, seeking a determination that the entire policy was void ab initio as a result of the misrepresentations in the application. The Taylors counterclaimed, seeking damages based on allegations of breach of contract and bad faith refusal to pay an insurance claim. Norwest also counterclaimed, alleging breach of contract. All the parties agreed that the material facts were undisputed and that the action involved a pure question of law that should be decided on cross motions for summary judgment filed by all the parties. The trial court entered a summary judgment for Nationwide, holding that the policy was void as a matter of law. Norwest appealed.[2] We reverse and remand. *17 The dispositive issue in this case is whether, as Norwest contends, the clause quoted above is in effect a "union" or "standard" mortgage clause, which, under Alabama law, constitutes a separate contract between a mortgagee and an insurer that is not voided under § 27-14-7 by an insured's misrepresentations in an insurance application, or whether, as Nationwide contends, the mortgage clause is a simple "loss payable" clause, which, under Alabama law, does not constitute a separate contract between a mortgagee and an insurer and, as a result, is not protected from the nullifying effects of § 27-14-7. See Home Loan & Finance Co. v. Fireman's Fund Ins. Co. of San Francisco, 221 Ala. 529, 129 So. 470 (1930); Continental Ins. Co. of New York v. Rotholz, 222 Ala. 574, 133 So. 587 (1931); London & Scottish Assurance Corp. of London, England v. Smith, 229 Ala. 556, 158 So. 892 (1935); United States Fire Ins. Co. v. Hecht, 231 Ala. 256, 164 So. 65 (1935); Liverpool & London & Globe Ins. Co. v. Dickinson, 242 Ala. 107, 5 So. 2d 90 (1941); Piedmont Fire Ins. Co. v. Fidelity Mortgage Co. of Alabama, 250 Ala. 609, 35 So. 2d 352 (1948); Nationwide Mutual Fire Ins. Co. v. Wilborn, 291 Ala. 193, 279 So. 2d 460 (1973); Smith v. Aetna Ins. Co., 410 So. 2d 11 (Ala.1981); International Surplus Lines Ins. Co. v. Associates Commercial Corp., 514 So. 2d 1326 (Ala.1987); see, also, 43 Am.Jur.2d Insurance, §§ 1042-45 (1982). The primary disagreement between the parties centers on the fact that the mortgage clause does not specifically state that the "mortgagee's interests shall not be invalidated by any act or neglect of the mortgagor," which, Nationwide argues, is common language used in "standard" mortgage clauses. Nationwide argues that the mortgage clause is a simple "loss payable" clause because it states in the first paragraph that "a loss payable ... will be paid to the mortgagee and you [the homeowner/insured], as interests appear." According to Nationwide, this language defines the scope of the clause. Norwest contends, however, that other language in the clause clearly indicates that its interests under the policy survive wrongdoing on the part of the insured during the application process. After carefully examining the record and the briefs, we agree with Norwest that the mortgage clause constitutes a separate contract with Nationwide. The clause states that "[i]f we deny your [the homeowner/insured's] claim, that denial will not apply to a valid claim of the mortgagee," unless the mortgagee fails to comply with the requirements of several specific provisions. The record indicates that Norwest was not in default under any of those provisions. We view the mortgage clause as doing more than making Norwest an appointee of the insurance fund, whose right of recovery would be no greater than the right of the Taylors. See 43 Am.Jur.2d Insurance, supra, at § 1043. Based on the clear language in the mortgage clause, we hold that a separate contract was created between Norwest and Nationwidea contract that was not subject to the nullifying effects of § 27-14-7. The summary judgment is reversed and the cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, ALMON, SHORES, SEE, and LYONS, JJ., concur. KENNEDY and COOK, JJ., concur in the result. [1] Section 27-14-7 provides, in pertinent part: "(a) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by, or in behalf of, the insured or annuitant shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts and incorrect statements shall not prevent a recovery under the policy or contract unless either: "(1) Fraudulent; "(2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; or "(3) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract at the premium rate as applied for, or would not have issued a policy or contract in as large an amount or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise." [2] The Taylors did not appeal.

June 12, 1998

571ae60d-ecad-49fb-9b13-6a5650f03f85

Ex Parte Dallas

711 So. 2d 1114

1961457

Alabama

Alabama Supreme Court

711 So. 2d 1114 (1998) Ex parte Donald DALLAS. (Re Donald Dallas v. State). 1961457. Supreme Court of Alabama. March 13, 1998. Jeffery C. Duffey, Montgomery; and Paul Christian Sasser, Wetumpka, for petitioner. Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent. MADDOX, Justice. Donald Dallas was convicted of the capital offense of murder during the commission of a kidnapping and a robbery. See §§ 13A-5-40(a)(1) and (2), Ala.Code 1975. By a vote of 11-1, the jury recommended that he be sentenced to death. The trial judge accepted the jury's recommendation and sentenced Dallas to death. The Court of Criminal Appeals affirmed Dallas's conviction and death sentence and subsequently overruled his application for rehearing. Dallas v. State, 711 So. 2d 1101 (Ala.Crim.App.1997). We granted certiorari review pursuant to Rule 39(c), Ala. R.App. P. Dallas raises the same issues here that he argued in the Court of Criminal Appeals. We have thoroughly reviewed the Court of Criminal Appeals' opinion, which addressed each of these issues on the merits, and we have considered the arguments made in Dallas's brief and advanced by his counsel during oral arguments. We have given specific attention to Dallas's argument that the trial judge erred in not instructing the jury on reckless murder and on criminally negligent homicide and that the judge erred in not granting a continuance. We have also examined the record for any plain error. Based on our review, we find no reversible errors in either the guilt phase or the sentencing phase of Dallas's trial. We therefore affirm the judgment of the Court of Criminal Appeals. AFFIRMED. HOOPER, C.J., and SHORES, HOUSTON, KENNEDY, COOK, BUTTS,[1] and SEE, JJ., concur. [1] Justice Butts was not present at oral argument, but on February 24, 1998, he listened to the tape of the oral argument.

March 13, 1998

bf45770d-5418-4d86-9bdc-d0efa2851e44

Husby v. South Alabama Nursing Home, Inc.

712 So. 2d 750

1970097

Alabama

Alabama Supreme Court

712 So. 2d 750 (1998) Albert F. HUSBY, as administrator of the estate of Flora Husby v. SOUTH ALABAMA NURSING HOME, INC., d/b/a Bay Manor Health Care Center; et al. 1970097. Supreme Court of Alabama. April 10, 1998. *751 M. Jack Hollingsworth and Lucian B. Hodges of Hollingsworth & Associates, Birmingham, for appellant. Davis Carr, W. Benjamin Broadwater, and Kathleen Cobb Kaufman of Carr, Alford, Clausen & McDonald, L.L.C., Mobile, for appellees. HOOPER, Chief Justice. This case involves an interpretation of the Alabama Medical Liability Act, specifically Ala. Code 1975, § 6-5-548. That section prescribes the burden of proof applicable in a case brought under the Act. The issue is whether the plaintiff presented competent expert testimony in opposition to the defendants' properly supported motion for summary judgment. The trial court entered a summary judgment for the defendants. We affirm. The plaintiff sued as administrator of the estate of Flora Husby. In May 1995, Flora Husby was a resident of Bay Manor Nursing Home, operated by South Alabama Nursing Home, Inc. (hereinafter referred to as "Bay Manor"). On May 21, 1995, she sustained a right-hip fracture. Knollwood Park Hospital performed surgery to repair her hip, and she was readmitted to Bay Manor upon completion of the surgery. From May 26, 1995, to May 30, 1995, the nurses at Bay Manor found Husby on the floor on four different occasions. Husby was supposed to be restrained to her bed. Each time they found her, the nurses attempted to prevent another fall by applying "roll belts" for restraint and a "Posey vest" to secure her to the bed. The nurses found no injuries after the first three falls. However, an X-ray indicated that the fourth fall caused a fracture of Husby's right femur. The nursing home transferred Husby to Knollwood Park Hospital for surgery. Husby died approximately six weeks after the femoral surgery. She was under the care of Knollwood Park Long-Term Care Hospital at the time of her death. Albert Husby filed a medical malpractice action against several parties. The only defendants pertinent to this appeal are Bay Manor and two employees of the nursing home, Wilson R. Hatfield and Posey Cook. Hatfield is the administrator at Bay Manor and Cook is its director of nursing. All of the other defendants have been dismissed. *752 The plaintiff alleges that the defendants failed to provide Husby with the requisite standard of care, by not properly monitoring her. He argues that Husby would not have fallen if she had been properly supervised by the nurses. To prove a breach of the standard of care, the plaintiff offered as expert testimony the testimony of Byron S. Arbeit, a nursing home administrator, and Dr. Frederick Ernst, an anesthesiologist. After deposing those experts, Bay Manor moved for a summary judgment, arguing that the plaintiff's experts were not qualified to testify about the standard of care allegedly breached. Bay Manor argued that these experts were not qualified to testify as to the standard of care applicable to securing a patient to the bed to prevent a fall. Bay Manor claimed that the plaintiff's evidence would not meet the burden of proof imposed by the Alabama Medical Liability Act. On May 5, 1997, the trial court heard oral argument on the motion for summary judgment. It deferred a ruling on the motion in order to allow the plaintiff to submit further information establishing his experts as "similarly situated health care providers," as required by the Alabama Medical Liability Act. Following the hearing, the plaintiff moved for leave to amend his complaint so as to add Hatfield and Cook as defendants. The trial court granted the motion, and the plaintiff added those individual defendants on May 16, 1997. Bay Manor, Hatfield, and Cook, objecting to the qualifications of the plaintiff's experts, moved for a summary judgment on June 3, 1997. On July 11, 1997, the trial court granted the defendants' motion for summary judgment. The plaintiff appeals. The trial court based the summary judgment on its conclusion that the plaintiff, in his attempt to present substantial evidence indicating that the defendants had breached the applicable standard of care, had not complied with the statutory requirements. Section 6-5-548(a) (1997 Cum.Supp.) states: The trial judge determined that "[n]o competent expert testimony of similarly situated health care providers was provided by the plaintiff as required by statutory and case law." The trial judge concluded that the experts used by the plaintiff were not "similarly situated health care providers" as that term is used in § 6-5-548. He based this decision on the fact that neither of the plaintiff's experts was a nurse qualified to give testimony regarding the standard of care of "hands on" health care providers in a long-term care facility. He also determined that a summary judgment was proper for Hatfield and Cook because they rendered no "hands on" care to Husby and any liability on their part would be derivative of those who did render such care. We agree with the trial judge. "In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988). When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). This Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990). Leonard v. Providence Hospital, 590 So. 2d 906, 907 (Ala.1991). First, we note that, for purposes of the Alabama Medical Liability Act, a nursing home is considered a hospital and, therefore, that Bay Manor is covered by the provisions of that Act. Ex parte Northport Health Service, Inc., 682 So. 2d 52, 55 (Ala.1996). The defendants cite Barton v. American Red Cross, 829 F. Supp. 1290 (M.D.Ala.1993), aff'd, 43 F.3d 678 (11th Cir.1994), for the proposition that the focus should be on the individual practitioner whose specific action is alleged to have fallen below the standard of care. We accept that proposition, and we conclude that the focus in this case should be on the standard of care owed by the nurses who rendered direct care to Husby. Also, when a defendant is not an individual, it is logical to limit the admissible expert testimony to that coming from witnesses who are, as to the specific individual whose actions formed the basis for the litigation, similarly situated. Thus, we will apply the same standard of care, that governing a nurse administering direct care, to all three defendants. In Medlin v. Crosby, 583 So. 2d 1290 (Ala.1991), this Court developed a test for determining whether an expert qualifies to testify in a case based on the Alabama Medical Liability Act. It is necessary to determine the standard of care the plaintiff says the defendant breached; to determine whether the defendant who is alleged to have breached the standard of care is a specialist in the area of care in which the breach is alleged to have occurred; and to determine whether the expert qualifies under the criteria set out in the statute. 583 So. 2d at 1293. In this case, the standard of care allegedly breached is the standard of care that a nurse would exercise in keeping a nursing home patient restrained to a bed. The plaintiff's experts are not specialists in "hands on" nursing care. Mr. Arbeit is a nursing home administrator and Dr. Ernst is an anesthesiologist. Therefore, we must turn to the statute to determine what qualifications are necessary for an expert who is not a specialist in the area of practice in which the alleged breach occurred. Section 6-5-548(b) lists criteria that a nonspecialist expert must meet in order to testify as to the standard of care allegedly breached. Section 6-5-548(b)(2) (1997 Cum.Supp.) requires that the expert be "trained and experienced in the same discipline or school of practice." Neither of the plaintiff's experts is trained or experienced in the area of "hands on" nursing care. Dr. Ernst is not qualified because the applicable standard of care does not involve the use of anesthetics. Mr. Arbeit is not qualified because the standard of care did not relate to the actual administration of the nursing home. The plaintiff is not claiming negligence in the administration of the nursing home. To establish a breach of the standard of care applicable in this case, the plaintiff should have offered the testimony of a nurse trained in the daily care of patients. Without testimony by a person familiar with the "hands on" care of patients, the plaintiff failed to meet the burden of proof imposed by § 6-5-548. The question whether a witness is qualified to give an expert opinion is customarily left to the discretion of the trial court, and the trial court's determination will not be disturbed on appeal absent a finding of abuse of discretion. Bell v. Hart, 516 So. 2d 562, 569 (Ala.1987). We conclude that the trial court did not abuse its discretion by determining that neither of the plaintiff's experts was a "similarly situated health care provider" and therefore that those experts were not qualified to testify about "hands on" nursing care. Also, we agree with the trial court that the liability of Hatfield and Cook is derivative of the liability of the individuals they supervised. The plaintiff did not present competent evidence to prove liability on the part of the persons supervised by these individual defendants. *754 The plaintiff argues that the summary judgment was improper with regard to the individual defendants because the trial court conducted the hearing on the initial summary judgment motion before the plaintiff added the individual defendants and granted the summary judgment motion without conducting another hearing. The plaintiff argues that the court erred in entering the summary judgment for the individual defendants because the trial judge never conducted a hearing while those individuals were defendants. We note that Rule 56 does not require a hearing on a motion for summary judgment because the trial judge has a range of discretion in applying the rule. See Lightsey v. Bessemer Clinic, P.A., 495 So. 2d 35 (Ala. 1986), and Pate v. Rollison Logging Equipment, Inc., 628 So. 2d 337, 341 (Ala.1993). This case illustrates the rationale behind not requiring a hearing for every summary judgment motion. A trial court typically allows a hearing on a summary judgment motion so that the nonmovant can present evidence in opposition to the motion. In this case, the plaintiff had, at the first hearing, presented evidence in opposition to the defendants' motion. That evidence did not qualify under the Alabama Medical Liability Act. The record does not indicate that the plaintiff intended to present new evidence after he added Hatfield and Cook as defendants. The trial court entered the summary judgment because the plaintiff did not present any testimony from a similarly situated health care provider to rebut the defendants' properly supported summary judgment motion. The evidence he presented did not qualify with respect to Bay Manor, nor did it qualify with respect to Hatfield and Cook. The evidence presented in opposition to the motion did not change from the time of the hearing to the time that the trial judge granted the motion. Thus, there was no need for a second hearing. We agree with the trial court that the plaintiff's expert testimony did not satisfy the burden of proof imposed on the plaintiff by the Alabama Medical Liability Act. The trial court properly entered the summary judgment for the defendants. That judgment is affirmed. AFFIRMED. MADDOX, SHORES, HOUSTON, KENNEDY, SEE, and LYONS, JJ., concur. COOK, J., concurs in the result.

April 10, 1998

4e28140f-b142-4cbc-a09a-b6565a903015

Ex Parte Empire Fire and Marine Ins. Co.

720 So. 2d 893

1970695

Alabama

Alabama Supreme Court

720 So. 2d 893 (1998) Ex parte EMPIRE FIRE AND MARINE INSURANCE COMPANY and Town and Country Autos. (In re Lorenzo SANDERS v. EMPIRE FIRE AND MARINE INSURANCE COMPANY et al.) 1970695. Supreme Court of Alabama. July 31, 1998. Travis Holzborn of Barnett, Bugg & Lee, Monroeville, for petitioners. Sidney W. Jackson III and Scott E. Denson of Jackson, Taylor & Martino, P.C., Mobile, for respondent. LYONS, Justice. Empire Fire and Marine Insurance Company ("Empire") and Town and Country Autos ("Town & Country") petition for a writ of mandamus directing Judge Harold Crow, of the Circuit Court of Clarke County, to grant their motion for a summary judgment in an action filed against them by Lorenzo Sanders. For the reasons discussed below, we deny the petition. In November 1992, Sanders entered into an automobile rental contract with Town & Country. As a part of that contract, Sanders purchased a "vehicle damage waiver" option, *894 whereby, for a fee, Town & Country waived its right to hold Sanders liable for any damage to the vehicle caused by him or by any other authorized driver. An exception to the damage waiver became effective if the vehicle was damaged while being driven by a person whose driving ability was impaired to any degree by intoxicating liquor or by any other substance. The vehicle subsequently was damaged while being driven by James Drinkard, who was listed on the rental contract as an authorized driver. The police report regarding the one-vehicle accident indicated that Drinkard was under the influence of alcohol at the time of the accident. Empire provided automobile collision insurance coverage to Town & Country, and it paid Town & Country for the damage to the automobile Sanders had rented. In 1993, Town & Country and Empire, as Town & Country's subrogee,[1] filed in the Clarke Circuit Court a complaint against Sanders[2] to recover the amount Empire had paid to Town & Country and the deductible Town & Country had paid under the policy. Sanders did not answer the complaint, and the trial court entered a default judgment against him. Sanders later filed a bankruptcy petition, and in his bankruptcy plan he included the amount of the judgment as a debt. In 1995, Sanders filed in Mobile County the present action against Empire and Town & Country.[3] His complaint contains counts arising from his automobile rental agreement and the damage waiver option with Town & Country and arising from the complaint filed against him by Empire and Town & Country those counts allege breach of contract, bad faith failure to pay an insurance claim, fraud, misrepresentation, and abuse of process. Empire and Town & Country responded by filing a motion to dismiss in which they contended, among other things, that venue was improper in Mobile County and that the complaint was due to be dismissed as a matter of law because, they argued, Sanders's claims were compulsory counterclaims that should have been raised in their 1993 action against him. The Mobile County circuit judge denied that motion; however, in response to a "motion to reconsider" filed by Empire and Town & Country, the judge later transferred the case to Clarke County. After the case was transferred, Empire and Town & Country moved for a summary judgment, arguing that they were entitled to a judgment because, they claimed, as a matter of law Sanders's claims against them should have been brought as compulsory counterclaims in their 1993 action against him. Judge Crow denied their summary judgment motion on August 25, 1997. On January 26, 1998, Empire and Town & Country filed this mandamus petition. A writ of mandamus is an extraordinary remedy, and it will be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So. 2d 252 (Ala.1991). It is well settled that "a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment." Ex parte Central Bank of the South, 675 So. 2d 403, 406 (Ala. 1996). *895 The petitioners, acting pursuant to Rule 5, Ala. R.App. P., could have filed a timely petition for permission to appeal from the interlocutory order denying the summary judgment. Ex parte State Farm Gen. Ins. Co., 549 So. 2d 484 (Ala.1989). They did not petition for an appeal by permission. When a final judgment is entered, Empire and Town & Country will have available an adequate remedy by appeal, if that final judgment is adverse to them. Ex parte Drill Parts, 590 So. 2d at 254. Because mandamus is not the appropriate means of review in this case, the petition is denied. We note, however, that our denial of the petition is not to be taken as any indication, one way or another, of our opinion as to the merits of the summary judgment motion. PETITION DENIED. HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, COOK, and SEE, JJ., concur. [1] In that 1993 action, the complaint named the plaintiffs as "Empire Fire and Marine Insurance Company, a Corporation, as Subrogee of Town & Country Rentals, and Town & Country Rentals." [2] Drinkard also was named as a defendant in that action; however, he was not a party to the subsequent action out of which this mandamus petition arises and he is not a party in this mandamus proceeding. [3] Sanders's complaint in the 1995 action named the defendants as "Empire Fire & Marine Ins. Co., Inc., a corporation, and Town & Country Autos." Apparently "Town & Country Rentals" is the same entity as "Town & Country Autos"; Sanders does not argue otherwise. The materials before this Court do not indicate the nature of that defendantwhether it is a corporation, a partnership, or a trade name used by an individual. Sanders's complaint also named several fictitious defendants.

July 31, 1998

9a63f72b-ba92-441b-b198-1142ae52b933

MUTUAL ASSUR, INC. v. Wilson

716 So. 2d 1160

1970030

Alabama

Alabama Supreme Court

716 So. 2d 1160 (1998) MUTUAL ASSURANCE, INC. v. Charles E. WILSON. 1970030. Supreme Court of Alabama. May 1, 1998. *1161 Thomas W. Christian, LaBella S. Alvis, and Rhonda Pitts Chambers of Rives & Peterson, P.C., Birmingham, for appellant. Warren B. Lightfoot, Madeline H. Haikala, and Robin H. Graves of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellee. HOUSTON, Justice. This action arose out of a contract dispute between Dr. Charles E. Wilson and his medical liability insurance carrier, Mutual Assurance, Inc. The issue presented is whether that dispute is arbitrable, pursuant to a predispute arbitration provision contained in Dr. Wilson's insurance policy. The following facts govern our resolution of this case: Dr. Wilson, who is a licensed Alabama physician, practices medicine in Lauderdale County, which borders the states of Mississippi and Tennessee. Dr. Wilson is also licensed to practice in Mississippi, and he treats patients from Mississippi and Tennessee in his Lauderdale County office. Mutual Assurance is an Alabama corporation with its principal place of business in Birmingham. After six of his patients had filed separate actions against him for damages, based on allegations that he had negligently injected a caustic cleaning solution into their bladders during surgery, Dr. Wilson turned to Mutual Assurance to handle their claims. Dr. Wilson also retained an attorney who was not affiliated with Mutual Assurance to represent him. Dr. Wilson's insurance policy provided for a $25,000 deductible per "medical incident." The policy also provided that "[t]he Company shall not make a settlement without the written consent of the Named Insured provided that: (1) The Named Insured shall not unreasonably withhold consent." When he learned that Mutual Assurance was attempting to settle the six malpractice actions, Dr. Wilson, through his attorney, informed Mutual Assurance that he would consent to settle the claims on two conditions, one of which was that he be allowed to make a one-time payment of $25,000 in order to "settle all of the cases." This correspondence came after Mutual Assurance had notified Dr. Wilson by letter that it would expect a $150,000 payment from him, i.e., the $25,000 deductible times the six medical negligence claims brought against him. Mutual Assurance rejected the conditions proposed by Dr. Wilson. Dr. Wilson nonetheless agreed to allow Mutual Assurance to settle the claims even though he and Mutual Assurance continued to disagree as to whether the policy called for a $25,000 deductible or a $150,000 deductible. *1162 Mutual Assurance eventually requested that Dr. Wilson submit their contract dispute to arbitration, pursuant to the arbitration provision contained in the policy. That provision reads as follows: Dr. Wilson, through his attorney, refused to submit the dispute to arbitration. Immediately thereafter, and without filing a written notice of a demand for arbitration with the Atlanta regional office of the American Arbitration Association, Mutual Assurance filed an action for a declaratory judgment in the Lauderdale Circuit Court, seeking an order compelling Dr. Wilson to arbitrate the contract dispute. Mutual Assurance sought alternative relief in the form of a judgment for $150,000 in accordance with its interpretation of the policy.[1] Dr. Wilson answered the complaint and asserted various affirmative defenses. Dr. Wilson also filed a counterclaim, based on allegations of breach of contract and fraud. Mutual Assurance answered the counterclaim, raised certain affirmative defenses, and served 21 requests for admission on Dr. Wilson, many of which related to the issue concerning the arbitrability of the dispute. Dr. Wilson responded to these requests. Mutual Assurance filed a separate motion seeking to compel Dr. Wilson to arbitrate. After receiving briefs and conducting a hearing, the trial court denied that motion, holding: Mutual Assurance appealed.[2] We reverse and remand. In Companion Life Ins. Co. v. Whitesell Manufacturing, Inc., 670 So. 2d 897, 899 (Ala.1995), this Court stated: In Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So. 2d 1, 2-3 (Ala.1986), this Court elaborated on the considerations a court must take into account in determining whether one has waived the right to arbitrate: Our cases continue to make it clear that, because of the strong federal policy favoring arbitration, a waiver of the right to compel arbitration will not be lightly inferred, and, therefore, that one seeking to prove waiver has a heavy burden. Ex parte Dyess, 709 So. 2d 447 (Ala.1997); Ex parte Phelps, 672 So. 2d 790 (Ala.1995). The basic question for this Court is whether, based on the facts before it, the trial court, relying on the ground of waiver, abused its discretion in denying Mutual Assurance's request to compel arbitration. Companion Life, supra, at 899. Mutual Assurance contends that there is nothing in the record from which one can reasonably conclude that it intended to abandon its right to seek arbitration in favor of pursuing an action for damages. It argues that the primary purpose of its declaratory judgment action was to compel Dr. Wilson to arbitrate their contract dispute. Mutual Assurance maintains that it had a legal right to seek a court order compelling arbitration when, it says, it became evident that, because of Dr. Wilson's refusal to cooperate, its pursuing arbitration through the American Arbitration Association would be a vain or useless act. Dr. Wilson contends that Mutual Assurance failed to follow the contractual requirement that it notify the American Arbitration Association of its desire to arbitrate and that, instead, it invoked the judicial process in order to litigate the merits of the contract dispute. Dr. Wilson suggests that he has been prejudiced by Mutual Assurance's filing the declaratory judgment action. After carefully considering the record and the briefs, we conclude that the trial court abused its discretion in holding that Mutual Assurance had waived its right to compel arbitration. The record indicates that Mutual Assurance resorted to the judicial process only after Dr. Wilson had rejected its request to submit their contract dispute to arbitration. Mutual Assurance was certainly following an acceptable procedure when it filed its declaratory judgment action, the primary purpose of which was to compel Dr. Wilson to arbitrate. See Allied-Bruce Terminix Cos. v. Dobson, 684 So. 2d 102 (Ala. 1995) (on remand from the United States Supreme Court) (noting that the procedure set out in § 4 of the Federal Arbitration Act, *1165 9 U.S.C. § 1 et seq. ("FAA"), for seeking a court order compelling arbitration is applicable in state courts). The mere act of filing a declaratory judgment action for the purpose of determining the issue of arbitrability does not, as a matter of law, constitute a waiver of one's right to arbitrate. Furthermore, merely engaging in limited discovery, most of which was directed toward the arbitration issue, has been held insufficient, without more, to constitute a waiver. Ex parte Merrill Lynch, Pierce, Fenner & Smith, supra. We further note that it is not apparent on the record that the American Arbitration Association possessed any authority judicial in nature to compel Dr. Wilson to participate in the arbitration process. In light of the circumstances here presented, we are not persuaded by Dr. Wilson's argument that an intent on Mutual Assurance's part to abandon its right to arbitrate can be inferred from its decision not to file with that association a notice of intent to arbitrate. From all that appears in the record, this would have been a useless act on Mutual Assurance's part. Alabama law does not require the performance of a vain or useless act. Owens v. National Security of Alabama, Inc., 454 So. 2d 1387 (Ala.1984); Goldman v. Jameson, 290 Ala. 160, 275 So. 2d 108 (1973); Rayborn v. Housing Authority of Washington County, 276 Ala. 498, 164 So. 2d 494 (1964). Furthermore, we are not persuaded by Dr. Wilson's assertion that he was prejudiced by Mutual Assurance's resort to the judicial process. As previously noted, Mutual Assurance filed its declaratory judgment action only after Dr. Wilson had refused to submit the dispute to arbitration. It appears that Mutual Assurance had little recourse but to seek a court order compelling Dr. Wilson to comply with the arbitration provision contained in the policy. It would be one thing if Mutual Assurance had belatedly sought to compel arbitration after filing an action for damages under the policy; it is quite another to seek judicial assistance in compelling the specific performance of a material contract provision, concomitant with a request for alternative relief in the form of money damages. Prejudice may be predicated on the former, but not the latter.[3] We also note that the trial court did not specifically rule that the FAA is applicable in this case. Although this Court will affirm a trial court's judgment if it is supported on any valid legal ground, even though the trial court may have given an erroneous reason to support its judgment, see Smith v. Equifax Services, Inc., 537 So. 2d 463 (Ala.1988), we decline to affirm the trial court's order denying Mutual Assurance's request to compel arbitration on the ground, urged by Dr. Wilson, that the FAA has no field of operation in this case. The FAA preempts contrary state law (based on statute and public policy) and renders enforceable a predispute arbitration agreement contained in a contract that "involves" interstate commerce. Jim Burke Automotive, Inc. v. Beavers, 674 So. 2d 1260 (Ala.1995); Lopez v. Home Buyers Warranty Corp., 670 So. 2d 35 (Ala.1995). Recently, in Hurst v. Tony Moore Imports, Inc., 699 So. 2d 1249 (Ala.1997), four Justices, in a plurality decision, explained that United States Supreme Court precedent indicates that an intrastate transaction nonetheless "involves" interstate commerce if it has virtually any tangible effect on the generation of goods or services for interstate markets and their distribution to the consumer. Hurst, supra, at 1255, 1257. The record in the present case indicates that although Mutual Assurance is an Alabama corporation and Dr. Wilson is licensed to practice in Alabama, the territorial reach of Dr. Wilson's policy extended beyond the Alabama state line. Dr. Wilson was licensed *1166 to practice in Alabama and in Mississippi. The liability policy issued by Mutual Assurance certainly made it possible, as a practical matter, for Dr. Wilson to practice medicine in Mississippi, and for him to treat Mississippi and Tennessee residents in Alabama. Thus, we think it is clear that Dr. Wilson's liability insurance policy had an "effect" on his ability to provide medical services in an interstate market. For the foregoing reasons, the trial court's order denying Mutual Assurance's request to compel arbitration is reversed and the cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, SEE, and LYONS, JJ., concur. SHORES, J., concurs in the result. ALMON and KENNEDY, JJ., dissent. KENNEDY, Justice (dissenting). Although I agree with the majority's holding that this contract involves interstate commerce, I think the trial court correctly denied Mutual Assurance's motion to compel arbitration. Therefore, I dissent. The arbitration provision, which was drafted by Mutual Assurance, states that if the company elects to institute arbitration, "written notice shall be filed with the Atlanta Regional Office of the American Arbitration Association and the named insured." (Emphasis added.) However, Mutual Assurance failed to adhere to thisits owncontractual provision and filed this lawsuit to compel arbitration. As a matter of law, a party has no legal right to seek judicial enforcement of the provisions of its contract until it has fulfilled its own requirements under the express terms of the contract, and courts should not interfere with that principle. Moreover, I suspect that if the situation were reversed, and it was Dr. Wilson who had failed to comply with the prerequisites of the contract, then Mutual Assurance would be far less likely to claim that compliance was unnecessary or futile. [1] The complaint sought "an order from [the trial] court requiring binding arbitration pursuant to the terms of the insurance policy." The complaint alternatively sought "an award of damages should the matter not be ordered into binding arbitration." [2] See Allied-Bruce Terminix Cos. v. Dobson, 684 So. 2d 102, 104-05 (Ala.1995); Long v. Industrial Development Board of the Town of Vincent, 619 So. 2d 1387 (Ala.1993); A.G. Edwards & Sons, Inc., v. Clark, 558 So. 2d 358 (Ala.1990) (an appeal is the proper procedure by which to challenge an interlocutory order denying a motion to compel arbitration). [3] We note that we have considered Ex parte Companion Life Ins. Co., supra; Ex parte Prendergast, 678 So. 2d 778 (Ala.1996); and Ex parte Smith, supra, cited by Dr. Wilson. Although a finding of waiver was upheld in each of those cases, none of them is factually similar to the present case. In each of those cases, the Court held that there was sufficient evidence of delay in invoking the right to arbitration and resulting prejudice to the opposing party to warrant a finding of waiver. We can find no persuasive evidence that Mutual Assurance intended to abandon its right to seek arbitration in accordance with the arbitration provision contained in the policy or that Dr. Wilson was prejudiced by Mutual Assurance's filing its declaratory judgment action. To the contrary, it appears to us, as we have noted, that Mutual Assurance's primary objective in invoking the judicial process was to compel Dr. Wilson to arbitrate the dispute over the proper deductible after Dr. Wilson had refused to submit the matter to the American Arbitration Association for resolution.

May 1, 1998

49ca9247-8a75-4796-ae07-b0ca049f1c5a

RAS v. State

718 So. 2d 117

1961990

Alabama

Alabama Supreme Court

718 So. 2d 117 (1998) Ex parte State of Alabama. (Re R.A.S. v. State). 1961990. Supreme Court of Alabama. May 29, 1998. *118 Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for petitioner. Michael A. Dasinger III of Hoiles & Dasinger, P.C., Robertsdale, for respondent. MADDOX, Justice. This case involves a prosecution of an alleged resident child molester in which there was evidence of multiple acts of alleged molestation that had occurred over an extended period of time, and it involves legal questions similar to those presented in R.L.G., Jr. v. State, 712 So. 2d 348 (Ala.Cr.App.1997), affirmed, Ex parte R.L.G., Jr., 712 So. 2d 372 (Ala.1998). Traditionally, Alabama follows a strict election rule, by which the State must elect the offense on which it will proceed when the evidence discloses two or more offenses growing out of distinct and separate transactions. In R.L.G. v. State, the Court of Criminal Appeals expanded the strict election rule in sexual abuse cases involving a resident abuser of small children where only generic evidence was presented, stating: *119 712 So. 2d at 367 (emphasis omitted). The "either-or" rule provides that the prosecution must elect which single act it is relying for a conviction or else the trial judge must give a specific unanimity instruction. This Court granted certiorari review in R.L.G. and affirmed the Court of Criminal Appeals' expansion of the strict election rule, stating: Ex parte R.L.G., 712 So. 2d at 373. In this case, the specific question presented is whether, in child molestation cases involving an alleged resident abuser and where there is both generic and specific evidence of sexual abuse, this Court should further modify or expand the exception to Alabama's long-standing rule requiring the State to make an election. R.A.S. was convicted of first degree sexual abuse of his stepdaughter A.M., § 13A-6-66(a)(3), Ala.Code 1975; first degree sodomy of A.M., § 13A-6-63(a)(3); second degree rape of A.M., § 13A-6-62(a)(1); first degree sexual abuse of his stepdaughter C.M., § 13A-6-66(a)(3); and first degree sodomy of C.M., § 13A-6-63(a)(3). The Court of Criminal Appeals reversed the defendant's conviction, R.A.S. v. State, 718 So. 2d 108 (Ala.Cr.App.1997), basing its reversal on this Court's holding in Ex parte King, 707 So. 2d 657 (Ala.1997), in which a majority of this Court declined to overrule or to make an exception to the long-standing doctrine of election as it was enunciated in Deason v. State, 363 So. 2d 1001 (Ala.1978), and Watkins v. State, 36 Ala.App. 711, 63 So. 2d 293 (1953). Even though the Court of Criminal Appeals reversed the defendant's conviction, it specifically urged this Court to consider extending the expansion of the strict election rule to apply to cases based upon generic and specific evidence, such as this one. The court wrote: 718 So. 2d at 116. We granted the State's petition for the writ of certiorari primarily to consider, as requested by the Court of Criminal Appeals, reexamining the holding in Ex parte King and to consider extending the expansion of the strict election rule to apply to cases based upon generic and specific evidence. *120 After reexamining the holding in Ex parte King and the holding in Ex parte R.L.G., we agree with the State that the strict election rule should be expanded in cases that, like this one, involve a resident child molester and in which there is both generic evidence and specific evidence indicating that multiple acts of molestation have occurred over an extended period. In R.L.G. v. State, supra, in which the Court of Criminal Appeals adopted an expanded election rule in cases involving only generic evidence, the court discussed many of the same legal issues that are presented in this case, such as (1) a defendant's due process right to fair notice of the charges against him and to a reasonable opportunity to defend against those charges; (2) a defendant's entitlement to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each offense charged; and (3) the right of a defendant to have his or her conviction sustained only if it is supported by substantial evidence. The Court of Criminal Appeals and this Court reviewed each of these issues in the R.L.G. cases, and we have reviewed them again in this case. In R.L.G. v. State, the Court of Criminal Appeals discussed at length the defendant's right to procedural due process, stating: 712 So. 2d at 362-63. The Court of Criminal Appeals correctly noted that any critical details that are available to the State could be gathered by the defendant through a preliminary hearing, a motion for a more definite statement, as authorized by Rule 13.2(e), Ala.R.Crim.P., or other pretrial discovery procedures. The court stated: R.L.G. v. State, 712 So. 2d at 363-364. After noting that an alibi defense would be unavailing to a resident abuser, given that the defendant would have lived with the victim for an extensive, uninterrupted period, day and night, and also given that certain of the illicit sexual conduct would have taken but moments to perform, the Court of Criminal Appeals, in R.L.G., quoting People v. Fernandez, 263 Cal. Rptr. 139, 147 (Cal.App. 1989), stated: "`[T]he similarity and repetition of the acts would make it difficult, if not impossible, for an adult, let alone a child, to pinpoint the specific circumstances of each act.'"[1] 712 So. 2d at 364. After reexamining the law, we agree with the Court of Criminal Appeals that an expansion of the strict election rule is needed in cases, like this one, that involve a resident child abuser, and we today adopt an expansion of that rule. In cases, such as this one, that involve both generic and specific evidence, where evidence of multiple culpable acts is adduced to prove a single charged offense,[2] jury unanimity must be protected. Therefore, in such a case, the defendant is entitled either to have the State elect the single act upon which it is relying for a conviction or to have the court give a specific unanimity instruction. If the State chooses not to elect the specific act, the trial court must instruct the jury that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, thereby assuring a unanimous verdict on one criminal act. Cf. State v. Petrich, 101 Wash. 2d 566, 571, 683 P.2d 173, 178 (1984) (where, in a factually similar case, the Washington Supreme Court required either that the State make an election or that the trial judge provide a unanimity instruction to the jury). See also, People v. Aldrich, 849 P.2d 821, 825 (Colo.App.1992) (where the court held that the defendant's right to a unanimous jury was ensured because, (1) "although the trial court denied the defendant's pre-trial motion to compel an election, at the close of the trial, the trial court did compel the prosecutor to elect the specific incidents of conduct upon which it relied," (2) "the jury ultimately was instructed as to the specific incidents upon which the charges were based," and (3) the jury "was also given a unanimity instruction" (emphasis omitted)). Both to assist the jury in its deliberations and to ensure jury unanimity, the trial judge could submit special interrogatories to the jury in cases like this one, even though it has been held that the submission of special interrogatories to the jury is not authorized by statute or by court rule.[3] The submission of special interrogatories would be helpful to the jury in reaching a just verdict and could protect the rights of a defendant to a unanimous jury verdict in those cases where the *123 trial judge elects to use the jury instruction alternative rather than compelling the State to make an election.[4] Now, we must determine whether the principle we adopt today applies in this particular case. When R.A.S. was convicted, a majority of this Court was applying the strict election rule in child molestation cases. In R.L.G, this Court adopted the so-called "either-or" rule in cases in which there was purely generic evidence involved. Today, as suggested by the Court of Criminal Appeals, we expand the "either-or" rule to apply in cases involving generic and specific evidence. Because we cannot say with certainty that the defendant's right to a unanimous verdict was guaranteed, we agree with the Court of Criminal Appeals that the trial court did not properly instruct the jury in this case, and we affirm the judgment of the Court of Criminal Appeals, but our affirmance is based upon the condition that if R.A.S. is retried, the new rule that we adopt today will be applicable in his trial.[5] AFFIRMED. SHORES, HOUSTON, KENNEDY, SEE, and LYONS, JJ., concur. HOOPER, C.J., concurs in the result. [1] For the California courts' treatment of Fernandez, see Judge Patterson's fn. 11 in R.L.G. v. State, 712 So. 2d at 364. [2] Whether the incidents are to be charged separately or brought as one charge is a decision within prosecutorial discretion. There are probably many factors the prosecutor weighs in making that decision, including the victim's ability to testify to specific times and places. Our decision today is not intended to affect that discretion or to encourage the bringing of multiple charges when, in the prosecutor's judgment, they are not warranted. Obviously, there may be times when the prosecutor's decision to bring only a single charge may indicate that the election of one particular act for prosecution is impractical. [3] Flowers v. State, 586 So. 2d 978 (Ala.Crim.App. 1991); Rule 22, Ala. R.Crim. P. [4] The options of allowing a special jury instruction and using special interrogatories are allowed because, in the majority of cases in which this issue will arise, the sexual abuse charge will involve crimes against children; in such cases the occurrence of multiple instances of criminal conduct with the same victim is a frequent, if not the usual, pattern. Although they do not involve charges of sexual abuse, some decisions of the United States Court of Appeals for the Ninth Circuit support the imposition of a requirement that the jury be given a specific unanimity instruction under circumstances similar to those in this case. See United States v. Echeverry, 719 F.2d 974, 975 (9th Cir.1983) ("When it appears ... that a conviction may occur as a result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice. To correct any potential confusion in such a case, the trial judge must augment the general instruction to ensure [that] the jury understands its duty to unanimously agree to a particular set of facts."). Also, see, United States v. Payseno, 782 F.2d 832, 836-37 (9th Cir.1986) (ruling that there was "the genuine possibility that some jurors may have believed [that the defendant] used extortionate means on one occasion while others may have believed that he was guilty of engaging in extortion at a different time and place"; stating that "Echeverry clearly sets forth the rule that we are not free to speculate about what the jurors agreed to in their ... deliberation over [the defendant's] guilt or innocence"; and, accordingly, holding that "[a] general unanimity instruction will not suffice when the possibility of such jury confusion exists" and that the trial court committed plain error in failing to give a specific unanimity instruction). Cf. United States v. Gilley, 836 F.2d 1206, 1211-13 (9th Cir.1988) (reaffirming Echeverry and Payseno and holding (1) there was "a genuine possibility that the jurors were not unanimous as to the conjunction of two of the material elements of the crime," (2) "[t]his [was] not a case ... `sufficiently simple and clear in its presentation that unanimity [could] be assumed based on the general [unanimity] instruction,'" (3) "[r]ather, it [was] a case involving a sufficiently complex set of facts requiring the judge sua sponte to give a specific unanimity instruction," (4) "[b]ecause the deficiency in the trial judge's instruction prejudiced the defendant's substantial right to a unanimous jury verdict ..., plain error occurred," and (5) "a conviction for conducting an illegal gambling business ... cannot stand where the guilty verdict cannot with reasonable certainty be said to stem from a unanimous verdict"). [5] The result we reach today is consistent with Justice Houston's special concurrence in Ex parte King, 707 So. 2d at 662 (on application for rehearing).

May 29, 1998

29bfe6c7-d75b-4646-ba99-8ffc91d9bd21

Haney's Chapel United Methodist Church v. UNITED METH. CHURCH

716 So. 2d 1156

1961162

Alabama

Alabama Supreme Court

716 So. 2d 1156 (1998) HANEY'S CHAPEL UNITED METHODIST CHURCH, et al. v. The UNITED METHODIST CHURCH, et al. 1961162. Supreme Court of Alabama. April 24, 1998. Rehearing Denied June 19, 1998. *1157 T.J. Carnes of Carnes & Carnes, P.C., Albertville, for appellants. Will Beard of Beard & Beard, Guntersville, for appellees. KENNEDY, Justice. This appeal involves a property dispute between the United Methodist Church and the congregation of a local church located in Haney's Chapel, Alabama. The trial court entered a judgment declaring the United Methodist Church[1] to be the equitable owner of the realty and buildings where the local church is located; the representative members of the local congregation[2] appealed. We reverse and remand. The United Methodist Church ("UMC") sued to quiet title to the local church property after a majority of the local congregation passed a resolution to withdraw from the Methodist Conference. The UMC claimed title to the property, based on the local church's hierarchical relationship with the national church and based on several sections of The Book of Discipline of the United Methodist Church ("The Discipline"). The Discipline contains the governing rules of the UMC, and it requires that all property held by an unincorporated local church be held, in trust, for the use of both the local church and the UMC. At trial, the defendant members of the local church argued that the property rules set out in The Discipline did not apply to the local church property for two reasons: (1) the local church had not been in a hierarchical relationship with the UMC and (2) the property on which the local church is located was conveyed to the community of Haney's Chapel, Alabama, in trust, for a nondenominational, union church. After an ore tenus hearing, the trial court found that, since 1931, the local church had been connected with the UMC and that it had agreed to be bound by the rules of The Discipline. Based on these findings and the holding in African Methodist Episcopal Zion Church of America, Inc. v. Zion Hill Methodist Church, Inc., 534 So. 2d 224 (Ala.1988) ("Zion Hill"), the trial court held the UMC *1158 to be the equitable owner of the property. On appeal, the representative members of the local church raise only one issue.[3] They contend that the trial court erred in not finding that the 1909 and 1978 deeds conveyed the property, in trust, for the benefit of the community of Haney's Chapel and that the property, therefore, could not be diverted from its charitable purpose by any agreement with the UMC. At the outset, we note that civil courts have general authority to resolve church property disputes; however, the First Amendment to the United States Constitution prohibits a court's resolving property disputes on the basis of religious practice or doctrine. Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969); Jones v. Wolf, 443 U.S. 595, 602, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979). Alabama courts have adopted the "neutral principles of law" approach applied in Hull, 393 U.S. at 449, 89 S. Ct. 601, and will consider, in purely secular terms, the language of the deeds, the charter of the local church, any applicable state statutes, and any relevant provisions contained in the discipline of the national church as a means of adjudicating the dispute. Trinity Presbyterian Church of Montgomery v. Tankersley, 374 So. 2d 861, 866 (Ala.1979); Zion Hill, 534 So. 2d at 225. Following this approach, we find no evidence in the record of a local church charter and there are no state statutes to be considered.[4] Therefore, we turn our attention to an examination of the deeds that allegedly conveyed the property at issue and to the property clauses contained in The Discipline. At this point, we note that the trial court made no findings with regard to these deeds and based its decision entirely on the requirements of The Discipline and the holding in Zion Hill. The Zion Hill case involved a local church that had withdrawn from its association with a national religious organization know as the African Methodist Episcopal Zion Church in America ("AMEZ"). Because of the lack of other considerations, this Court based its decision regarding the issue of ownership solely on whether the local church had been associated with the AMEZ and whether it had agreed to be bound by the AMEZ discipline. Id. The Court went on to find that the local church had agreed to be governed by the rules of the AMEZ, and it instructed the trial court, on remand, to declare the AMEZ to be the equitable owner of the local church property. Id. at 228. However, although it is initially similar to the facts of this case, Zion Hill did not involve a deed, and the opinion did not address the potential effect of such an instrument on a church property dispute. Our review, in this case, indicates that the property on which the local church is located was acquired in two transactions, each of which is evidenced by a recorded deed. The first deed, dated 1909, was made by several members of the Bain family; it purported to grant approximately 2 acres to "This Community for a Union Church ... To Have and to Hold to the said Community heirs and assigns, in fee simple, forever." The second deed, dated 1978 and issued by two descendants of the 1909 grantors, purported to transfer the same two acres as the 1909 deed and approximately two additional acres to "Simp Bain, Matheny Bain, and Mattie Ruth Brown as Trustees for the Union Chapel at *1159 Haney's Chapel, their successors in office and assigns." The members of the local church argue that both the 1909 deed and the 1978 deed convey the church property, in trust, for a nondenominational, union church. However, the 1909 deed does not contain a trust clause. In addition, the designation of the grantee as "This Community" is ambiguous; for a deed to serve as a successful conveyance, the grantee must be identifiable with certainty. Lilly v. Earl, 463 So. 2d 143, 145 (Ala.1984); 23 Am.Jur.2d Deeds § 35 (1964). Although the record contains a substantial amount of testimony regarding the definition of "This Community," there is no consistent or clear evidence regarding the intent of the grantors or the exact meaning of the designation. Therefore, the 1909 deed is void, and title to the original two acres on which the local church is located remained in the 1909 grantors. The 1978 deed purported to convey the same two acres as the 1909 deed and two additional acres to three named trustees, who were described as "Trustees for the Union Chapel at Haney's Chapel, their successors and assigns."[5] The UMC argues that the trustees named in the 1978 deed were trustees for Haney's Chapel United Methodist Church and were duly elected and recognized at a Methodist "charge conference." However, the members of the local church argue that the three trustees represented the community and were the trustees of the local, nondenominational union church. If the language of the 1978 deed was unambiguous, then this Court would have no option; it would have to enforce the plain terms of the deed, in order to give effect to the grantors' intent. However, the description of the three trustees as trustees for the Union Chapel at Haney's Chapel gives rise to an ambiguity that allows this Court to consider extrinsic evidence in order to ascertain the grantors' intent. Lietz v. Pfuehler, 283 Ala. 282, 215 So. 2d 723 (1968). In African Methodist Episcopal Church v. St. Paul Methodist Church of Selmont, 362 So. 2d 868 (Ala.1978), this Court affirmed the trial court's judgment granting the local church title to the church property, free from any interest by the national church. In St. Paul, extrinsic evidence was also used to determine the grantor's intent, because the deed conveying the property to the local church was ambiguous. Id. at 872. Despite the rules contained in the discipline of the national church, this Court held that the evidence supported the trial court's finding that the grantor had intended to convey the property to the local church free from any control of the national church. Id. Examining the circumstances existing when the 1978 deed was executed, it appears the grantors in this case, like the grantors in St. Paul, clearly intended to convey the property to the local church and to ensure that the national church could not gain title to the property. The best indication of this comes from the fact that the 1978 deed was prepared immediately after the 1978 grantors were told by the UMC that the national organization held equitable title to the local church property. In response to this, a local attorney was asked to draw up the 1978 deed in order to correct any problems that existed in the 1909 deed and to carry out the intent of the original 1909 grantors. The evidence also indicates that the trustees listed in the 1978 deed understood that the property belonged to the local church and was not to be transferred to the UMC. Mattie Brown, one of the trustees listed in the 1978 deed, testified that she and the other trustees were later asked by the UMC to "sign over the property to the Methodist Association," but that they refused to do so. Based on the UMC's own declaration, during oral arguments before this Court, that the 1978 deed was an attempt to keep the national organization from gaining any interest in the property, there appears to be no real dispute regarding the intent of the 1978 grantors. As in St. Paul, 362 So. 2d at 873, the evidence in this case indicates that the 1978 *1160 grantors intended to convey the property to the trustees of the local church and to exclude the involvement and control of the national church. Therefore, we find that the deed granted the property to the trustees of the local church; because the church is unincorporated, the trustees and their successors hold legal title for the beneficiary class of the congregation. Id. Accordingly, the judgment of the trial court is reversed and the case is remanded with instructions for the trial court to enter an order consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and ALMON and COOK, JJ., concur. SEE, J., concurs in the result. MADDOX, SHORES, and HOUSTON, JJ., dissent. MADDOX, Justice (dissenting). I dissent. I agree with Justice Houston that the ore tenus standard of review applies in this case and that the judgment of the trial court is due to be affirmed under that standard. It appears to me that there is sufficient evidence in the record to show that the original grantor intended that a church be constructed on the property. The history of the use of the property since the original grant convinces me that the trial judge did not err in his findings and his conclusions of law. I also believe that the equitable principles underlying the doctrine of adverse possession are informative. Cf. Pogue v. White Stone Baptist Church, 554 So. 2d 981 (Ala.1989); Shepherd v. Scott's Chapel, A.M.E. Zion Church, 216 Ala. 193, 112 So. 905 (1927). HOUSTON, Justice (dissenting). I dissent. The ore tenus rule is our standard of review, because the trial court based its judgment on ore tenus evidence presented at a hearing. The trial court's factual determinations are not clearly erroneous and without supporting evidence, manifestly unjust, or against the great weight of the evidence. SHORES, J., concurs. [1] The plaintiffs were the United Methodist Church, successor of the Methodist Church; the Board of Trustees of the North Alabama Conference of the United Methodist Church, Inc.; and the trustees of the Albertville District of the United Methodist Church. The list of plaintiffs included each hierarchical entity, within the United Methodist Church, that was related to the control of the local church. [2] The named defendants included Haney's Chapel United Methodist Church, Harry Kirkley, Joe Culbert, David Culbert, Phil Lusk, Betty Culbert, and Marie Lusk. No organization known as Haney's Chapel United Methodist Church ever filed an answer or made an appearance before the trial court. [3] As Justice Houston indicates in his dissent, the trial court held an ore tenus hearing in this matter and based its order on several findings of fact. These findings are clearly entitled to a strong presumption of correctness, and this opinion in no way attempts to reverse the trial court's factual determinations. At the trial court level, the local church contested its membership in the UMC but, after trial, the representative members declined to appeal the trial court's findings regarding their affiliation with the national organization. [4] Section 10-4-22, Ala.Code 1975, which is entitled "Independence of church corporations in control of real property," states that, unless clearly stated in the deed or voted on by a majority of the adult congregation, a church corporation organized under the laws of this state shall remain independent from the regulation of a higher church body insofar as the management, control, disposition or alienation of its property is concerned. However, the statute applies only to the rights of incorporated church bodies, and Haney's Chapel Church is unincorporated. [5] The 1978 grantors were heirs of the 1909 grantors, and they held title to the original two acres described in the 1909 deed.

April 24, 1998

430b82d2-6105-44ab-bc76-904a0fa4a988

Goodyear Tire & Rubber Co. v. Washington

719 So. 2d 774

1951582

Alabama

Alabama Supreme Court

719 So. 2d 774 (1998) GOODYEAR TIRE & RUBBER COMPANY v. Mary B. WASHINGTON. 1951582. Supreme Court of Alabama. March 13, 1998. Rehearing Denied July 17, 1998. *775 Gerald C. Swann, Jr., and Joana S. Ellis of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellant. Jock M. Smith, Tuskegee, and Gregory L. Davis, Montgomery (Attorney Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery, withdrew May 20, 1997), for appellee. SEE, Justice. The opinion of June 20, 1997, is withdrawn, and the following is substituted therefor. This fraud case arises from the alleged promises of Steve Floyd, the manager of Tire Pro, Inc., to Mary B. Washington concerning the sale of tires and automobile repairs and the alleged willful misrepresentation by Tire Pro that it was a "Goodyear Certified Auto Service" centerthat Goodyear Tire & Rubber Company ("Goodyear") "stood behind" Tire Pro's service. After paying $63 for several hundred dollars worth of tires and repairs, Washington sued Floyd, Tire Pro, and Goodyear, which had allowed Tire Pro to use its name in connection with certain of its services. Washington settled with Tire Pro and Floyd, and won a $187,500 judgment against Goodyear, based on a jury verdict. Goodyear appealed, arguing, among other things, that Washington failed to present substantial evidence of promissory fraud and failed to present substantial evidence that Tire Pro had an agency relationship with Goodyear. We conclude that there was not substantial evidence of promissory fraud, but that there was substantial evidence of an agency relationship. Because Goodyear did not in its directed verdict motion argue with specificity the lack of evidence on the promissory fraud claims (the "bad counts"), we affirm. Viewed most favorably to Washington, the evidence tends to show the following: Washington visited the Tire Pro store in 1992. After she was approved for credit, Washington told Floyd, the manager, that she wanted two tires that cost "30 something dollars" each for her daughter's automobile and two for her husband's automobile. Washington also agreed to a "Goodyear Courtesy Service Checkup," but she contends that she told Floyd not to do anything to her daughter's automobile until he had telephoned Washington for approval. Floyd obtained Washington's home and work telephone numbers. Washington went home and told her husband, Robert, and her daughter, Willie, to go to Tire Pro and have two tires installed on each of their respective automobiles. Robert had tires installed on his automobile and signed an invoice for approximately $120. Washington makes no complaint about Tire Pro's sales and service with respect to Robert's automobile. The next day, Willie went to Tire Pro. Willie testified that she told Tire Pro's assistant manager that she wanted "some white lettered tires." Willie also testified that while she was waiting for her automobile, a Tire Pro employee told her that her mother had telephoned and said that Tire Pro could "fix everything." Tire Pro installed two tires that had raised white letters and cost $67.95 each, and it also performed various repairs. When Tire Pro finished the work on her automobile, Willie signed an invoice for approximately $515. Willie testified that she gave the invoice to her mother the next day. When she received the invoice, Washington did not have her daughter return the more expensive tires, did not return to Tire Pro herself to complain, and did not telephone Tire Pro to complain. Instead, when she received her credit card bill, Washington wrote a letter to Goodyear's credit agency, stating that she did not think she should have to pay for the charges and contending that she did not authorize the work. After receiving advice from her attorney, Washington paid $63 of the $641.73[1] balance due on the credit card. *776 Goodyear's credit agency sent Washington a letter stating that it had reviewed her dispute and had found "no conclu[sive] evidence of wrongdoing by the store." Washington sued. She alleged, among other things: (1) that Floyd had fraudulently promised to have Tire Pro install "30 something dollar" tires on Willie's automobile; (2) that Floyd had fraudulently promised to have Tire Pro telephone Washington before making any repairs on Willie's automobile; and (3) that Goodyear had willfully misrepresented that Tire Pro was a "Goodyear Certified Auto Service" center. Washington also argued that Goodyear was liable for Floyd's alleged fraudulent promises because, she claimed, Tire Pro was Goodyear's agent. Before trial, Tire Pro and Steve Floyd settled with Washington for $62,500. The case went to trial against Goodyear. Goodyear filed a motion for a directed verdict at the close of Washington's evidence, and it filed another such motion at the close of all the evidence. The trial court denied both motions. The jury returned a general verdict for Washington, assessing compensatory damages of $100,000 and punitive damages of $150,000. The court denied Goodyear's motion for a judgment notwithstanding the verdict. The court entered a judgment against Goodyear for $187,500 ($250,000 minus the pro tanto settlement of $62,500). Goodyear argues that Washington failed to present substantial evidence of promissory fraud on the part of Tire Pro. To be entitled to a directed verdict, it was sufficient for Goodyear to show that, as to any of the elements of promissory fraud, Washington failed to present substantial evidence. Hosea O. Weaver & Sons, Inc. v. Towner, 663 So. 2d 892, 894 (Ala.1995). The elements of fraud are (1) a misrepresentation, (2) of a material existing fact, (3) on which the plaintiff relied, and (4) which proximately caused injury or damage to the plaintiff. Johnston v. Green Mountain, Inc., 623 So. 2d 1116, 1121 (Ala.1993). Also, to support a claim of promissory fraud, the plaintiff must show that at the time of the alleged misrepresentation (that is, the promise), the defendant intended not to do the act or acts promised, but intended to deceive the plaintiff. Id. The burden is on the plaintiff to prove that when the promise was made the defendant intended to deceive. Martin v. American Medical Int'l, Inc., 516 So. 2d 640 (Ala.1987); P & S Bus., Inc. v. South Cent. Bell Tel. Co., 466 So. 2d 928 (Ala.1985). The plaintiff cannot meet his burden merely by showing that the alleged promise ultimately was not kept; otherwise, any breach of contract would constitute a fraud. Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515, 519 (Ala.1983). It is well settled that "a jury does not have untrammeled discretion to speculate upon the existence of [the requisite] intent [for promissory fraud]." There must be substantial evidence of a fraudulent intent that existed when the promise was made. Martin, 516 So. 2d at 642 (quoting Purcell Co., 431 So.2d at 519). Beyond simply showing that Tire Pro's alleged promises regarding the price of the tires and the securing of approval for repairs were not fulfilled, Washington's evidence consists only of Willie's testimony that a Tire Pro employee said Washington had approved the repairs, and the invoices that Robert and Willie, instead of Washington, had signed relating to services performed on their respective vehicles. This is not substantial evidence indicating that Tire Pro, at the time it made promises to Washington, had the present intent not to perform those promises. Washington's evidence does not include direct documentary evidence, or direct testimony, indicating that Tire Pro's manager, Floyd, intended not to fulfill the promises made to Washington, nor does it include indirect evidence of similar promises made to Washington or to others. See Purcell Co., 431 So. 2d at 519 (holding no sufficient evidence of promissory fraud was shown, in part because of the absence of direct statements indicating present intent to defraud).[2] In *777 B.K.W. Enterprises, Inc. v. Tractor & Equipment Co., 603 So. 2d 989, 992 (Ala.1992), we held that evidence of a series of distinct, but consistent, promises by a lessor to delay or waive lease payments provided substantial evidence of a present intent to deceive regarding the plaintiff-lessee's ultimate liability for the lease payments. Here, there was no evidence that Tire Pro engaged in a consistent pattern of purposefully making distinct unkept promises to Washington or to other customers. On the contrary, the only other separate transaction Tire Pro had with Washington concerned the installation of tires on Robert's automobile, a transaction for which Washington does not contest that Tire Pro provided good, fair, and timely service. Further, the fact that Robert and Willie, instead of Washington, signed the invoices merely shows that Tire Pro, like any reasonable business, wanted the customer, or her representative, to approve work done before taking the automobile from the business premises. See Harris v. McDavid, 553 So. 2d 567, 569 (Ala.1989) (observing, in part, that actions not inconsistent with the fulfillment of a challenged promise do not support a finding of a present intent not to fulfill the promise). Thus, we hold that Washington failed to present substantial evidence from which a jury could reasonably infer that Floyd intended to deceive her at the time he made the promises. Goodyear also contends that Washington failed to present substantial evidence of an agency relationship between it and Tire Pro. Thus, Goodyear concludes that it is not liable for the actions of Tire Pro's employees, including any willful misrepresentation by those employees regarding Tire Pro's status as a "Goodyear Certified Auto Service" center. We disagree. Washington introduced evidence indicating: (1) that Goodyear knowingly allowed and encouraged Tire Pro to use Goodyear signs and to sell Goodyear products; (2) that Goodyear knowingly allowed Tire Pro to represent to customers, through logos on its invoices, that it was a "Goodyear Certified Auto Service" center; (3) that Goodyear's dealer sales manager testified that Goodyear intended for Tire Pro's customers to believe they were dealing with a Goodyear establishment; (4) that the tires sold to Washington's daughter were "Goodyear Eagles"; and (5) that the repairs effected on Washington's daughter's car were performed by Tire Pro as a "Goodyear Certified Auto Service" center. These combined showings constitute substantial evidence of an apparent agency relationship between Goodyear and Tire Pro. See generally Malmberg v. American Honda Motor Co., 644 So. 2d 888, 890-91 (Ala.1994) (holding that manufacturer's providing signs, logos, and literature to dealer and its knowing involvement with dealer's sale of its products under warranty established substantial evidence of an apparent agency relationship on which the manufacturer could be obligated to stand behind the dealer's representation regarding the manufacturer's warranty). Goodyear also cites § 6-11-20, Ala. Code 1975, for the proposition that even if there is substantial evidence that it had an agency relationship with Tire Pro, there is not "clear and convincing" evidence of such an agency relationship, and, thus, the award of punitive damages was error.[3] Section 6-11-20, however, does not require that evidence of an agency relationship (which is, of course, not wrongful in and of itself) be clear *778 and convincing. Section 6-11-20 requires that evidence of the wrongful conductthe willful misrepresentationbe clear and convincing. On appeal, however, Goodyear failed to challenge directly whether Washington presented clear and convincing evidence (or even substantial evidence) to support her underlying claim of willful misrepresentation regarding Tire-Pro's status and obligations as a "Goodyear Certified Auto Service" center, and what harm, if any, that misrepresentation caused her. Accordingly, these issues are not properly before this Court, and we do not address them. See Ex parte Riley, 464 So. 2d 92, 94 (Ala.1985) (stating that an appellate court will not address an issue not argued in the briefs on appeal); Kennesaw Life & Acc. Ins. Co. v. Old Nat'l Ins. Co., 291 Ala. 752, 754, 287 So. 2d 869, 871 (1973) (stating that an issue first raised in a reply brief will not be addressed on appeal); Lunney v. Southern Ry., 272 Ala. 611, 612-13, 133 So. 2d 247, 249 (1961) (same).[4] In its motion for a directed verdict, Goodyear did not challenge the "bad counts"the promissory fraud countswith specificity. Thus, because the jury returned a general verdict, we presume that the verdict was returned on the "good count"willful misrepresentation. See South Cent. Bell Tel. Co. v. Branum, 568 So. 2d 795, 798 (Ala.1990); Aspinwall v. Gowens, 405 So. 2d 134 (Ala. 1981). Therefore, we affirm the judgment for Washington. APPLICATION GRANTED; OPINION OF JUNE 20, 1997, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED. HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, and COOK, JJ., concur. BUTTS, J., recuses himself. [1] This amount was the sum of the charges for tires and repairs done on Willie's automobile ($515.31), the charges for the tires for Robert's car ($120.76), and a charge for credit insurance ($5.66). [2] We note that in Purcell, 431 So. 2d at 519, we held, applying the "scintilla rule" of evidence, that there was not sufficient evidence to find an intent to deceive at the time the promise was made. Since Purcell, Alabama has abandoned the scintilla rule in favor of the significantly higher evidentiary standard embodied in the "substantial evidence" rule. See Ala.Code 1975, § 12-21-12; Brown v. Gamble, 537 So. 2d 476, 477 (Ala.1989) (stating that cases filed after June 11, 1987, are subject to the substantial evidence rule instead of the scintilla rule). [3] Ala.Code 1975, § 6-11-20, provides in pertinent part: "(a) Punitive damages may not be awarded in any civil action, except civil actions for wrongful death pursuant to Sections 6-5-391 and 6-5-410, other than in a tort action where it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff." (Emphasis added.) [4] Goodyear also argues that the jury's award of $100,000 in compensatory damages was excessive because, it argues, Washington failed to present sufficient evidence of mental anguish. Our review of the record convinces us that the jury did not abuse its discretion in awarding damages for mental anguish. See Alabama Power Co. v. Mosley, 294 Ala. 394, 401, 318 So. 2d 260, 265 (1975); Birmingham Elec. Co. v. Thompson, 251 Ala. 465, 466, 37 So. 2d 633, 634 (1948).

March 13, 1998

e99b645f-5fca-4db0-8e3f-d263d65ef78d

Ex Parte O'Neal

713 So. 2d 956

1970091

Alabama

Alabama Supreme Court

713 So. 2d 956 (1998) Ex parte Alton O'NEAL. (Re Alton O'NEAL v. SAFEWAY INSURANCE COMPANY OF ALABAMA, INC., et al.). 1970091. Supreme Court of Alabama. May 8, 1998. *957 R. Leland Lesley, Birmingham, for petitioner. Jack M. Bains, Jr., of The McDaniel Firm, P.C., Birmingham, for respondents. COOK, Justice. Alton O'Neal, the plaintiff in an action pending in the Jefferson Circuit Court, petitions for a writ of mandamus directing the circuit court to require the defendant, Safeway Insurance Company of Alabama, Inc. ("Safeway"), to respond fully to certain interrogatories. O'Neal was involved in an automobile accident in February 1995. According to O'Neal, he immediately informed Safeway, his insurance carrier, of the accident. In June 1995, a Safeway representative took O'Neal's statement regarding the accident. O'Neal was sued as a result of the automobile accident and, according to O'Neal, although Safeway contacted him about his claims against his insurance policy, Safeway failed to pay O'Neal and refused to provide him with a defense in the lawsuit. O'Neal sued Safeway, alleging breach of contract, bad faith failure to pay insurance claims, bad faith failure to defend O'Neal, and fraud. O'Neal served Safeway with a second set of interrogatories, which contained the following requests: Despite the fact that O'Neal's lawyer made a written request that Safeway answer the interrogatories and later filed a motion to compel responses, Safeway failed to respond. After conducting a hearing on that motion, the trial court ordered Safeway to answer the interrogatories. Safeway still did not respond, and O'Neal filed a motion for sanctions. Before the court held a hearing on the motion for sanctions, Safeway filed these objections to the interrogatories: O'Neal claimed that Safeway's responses were inadequate, evasive, and incomplete, and he renewed his motion to compel complete responses. After a hearing, the trial court imposed a $250 sanction against Safeway and ordered Safeway to produce the information requested in the interrogatories, for a five-year period. Safeway made what it termed a "further response" to the interrogatories, but that response was in reality a continued objection: Safeway did, however, provide "a copy of claim numbers handled by Betty Nave in the time period requested," and a copy of Betty Nave's personnel file. O'Neal moved for a default judgment, claiming that Safeway had blatantly and willfully refused to answer the interrogatories. After a hearing, the trial court denied the motion for default judgment and ordered Safeway to produce "the information requested if it exists in the form requested, but [ordered that Safeway does] not have to create a list or method of identification if it does not currently exist." O'Neal claims that he is entitled to the writ of mandamus because, he argues, the trial court abused its discretion in limiting Safeway's response to information "in the form requested" and in not requiring Safeway to produce the information requested if a database for the information "does not currently exist." The Alabama Rules of Civil Procedure were intended to allow broad and liberal discovery, within reason. Rule 26(b)(1) allows the discovery of "any matter, not privileged, which is relevant." To assure liberal but reasonable discovery, the Rules "vest broad discretion in the trial court to control the discovery process and to prevent its abuse." Ex parte Heilig-Meyers Furniture Co., 684 So. 2d 1292, 1294 (Ala.1996). Thus, this Court has stated: Ex parte Rowland, 669 So. 2d 125, 127 (Ala. 1995). O'Neal's claims against Safeway allege breach of contract, fraud, bad faith failure to pay insurance claims, and bad faith refusal to defend an insured. This Court has held that, because of the heavy burden the plaintiff carries in proving fraud or bad faith, and because the defendant in a fraud or bad faith action is usually the sole possessor of the information needed to meet the burden of proof, wider latitude is given a fraud plaintiff or a bad faith plaintiff during the discovery process. Ex parte Rowland, supra; and Ex parte Finkbohner, 682 So. 2d 409 (Ala.1996). O'Neal contends that the decisions in Rowland, Finkbohner, and Heilig-Meyers support his argument that he is entitled to a writ of mandamus directing the trial court to order Safeway to fully respond to the disputed interrogatories. In Rowland, the plaintiff claimed that the defendant had misrepresented the size of a motor vehicle's engine in order to induce the plaintiff to purchase the vehicle. The plaintiff alleged breach of contract and fraud. The plaintiff sought to discover whether the defendant had previously been sued for fraud, the dates any fraud actions were filed, and the identity of the plaintiffs in any fraud actions. The defendant objected, claiming that the material sought was irrelevant, immaterial, and not likely to lead to admissible evidence, and that the request was vague and overbroad. The trial court ordered the defendant to provide the information requested, but limited discovery to a 10-year period and to allegations that the defendant had misrepresented engine size. This Court granted the plaintiff's petition for the writ of mandamus, holding that the trial court's limiting discovery to misrepresentation regarding engine size was an abuse of its discretion. We held that discovery of previous fraud actions against the defendant did not have to be limited to cases involving alleged misrepresentations of engine size in order to be admissible, given the facts of that *960 case. We also held that the plaintiff's discovery request was not overly broad and that the defendant's alleged difficulty in providing the information, because it was not part of the information kept in the regular course of its business, was "neither an excuse for failure to produce nor a justification for prohibiting... discovery." Ex parte Rowland, 669 So. 2d at 128. In Ex parte Finkbohner, supra, the plaintiffs sued an insurance carrier, alleging breach of contract and bad faith refusal to pay a claim. During surgery to correct a medical problem (payment for which had been preapproved by the defendant), the surgeon performed a cosmetic procedure for which the defendant refused payment. In ruling on the trial court's denial of a motion to compel the defendant to respond to discovery requests, this Court discussed the holding in Rowland, supra, and granted that portion of the mandamus petition seeking to discover previous bad faith actions filed against the defendant. We denied a portion of the petition, however, that sought to discover "all bad faith claims" against the defendant that had not resulted in legal action, questioning whether such information was "reasonably calculated to lead to the discovery of admissible evidence" and concluding that having to gather this information would be "unduly burdensome" on the defendant. Ex parte Finkbohner, 682 So. 2d at 413. In Ex parte Heilig-Meyers Furniture Co., supra, the plaintiff was injured after tripping over furniture protruding into the aisle at the defendant's store in Florence. The plaintiff posed the following interrogatory as a means of determining whether to amend the complaint to add a claim of wantonness: 684 So. 2d at 1293. The defendant objected to the interrogatory, stating that it had over 700 stores nationwide and that it did not maintain a database that would provide the information sought. The trial court overruled the defendant's objection and ordered it to respond within five days. This Court held that the trial court had placed an undue burden on the defendant, but concluded that the plaintiff needed the information sought by the interrogatory. Therefore, this Court limited the trial court's discovery order by requiring the defendant to respond by providing copies of complaints or reports about incidents similar to the one at issue, occurring at any of the defendant's stores, that had been forwarded to the defendant's home office between July 1, 1992, and July 1, 1995. Ex parte Heilig-Meyers Furniture Co., 684 So. 2d at 1295. With regard to interrogatory number 1, because O'Neal alleged fraud and bad faith, as well as a pattern and practice of fraud, the wider latitude to which he is entitled in his discovery requests includes obtaining information relating to previous fraud and bad faith actions filed against Safeway. Ex parte Rowland, supra; and Ex parte Finkbohner, supra. We reject the argument that information is "unavailable" because records in which it would be found are not kept in the regular course of business; the fact that the records containing the information are not kept in the regular course of business "is neither an excuse ... nor a justification" for refusing to comply with a reasonable and necessary discovery request, such as this one. Ex parte Rowland, supra. The trial court abused its discretion in placing the limitation on Safeway's required response to interrogatory number 1 regarding bad faith and fraud lawsuits filed against Safeway. Interrogatory number 2 requests "the names, addresses, and telephone numbers of all former [Safeway] policyholders whose claims were ... handled ... by Betty Nave." Interrogatory number 3 requests "the names, addresses, and telephone numbers of all former [Safeway] policyholders who complained" to Safeway about Ms. Nave's handling of a claim. Unlike data relating to lawsuits filed against Safeway, the information sought by these interrogatories is so broad that to require Safeway to respond in *961 the manner requested by O'Neal would place an undue burden on Safeway. Ex parte Finkbohner, supra. Although the court limited the required answers to a five-year period, these requests nevertheless ask for information the retrieval of which would require an individual review of literally thousands of files and which is arguably not reasonably calculated to lead to admissible evidence. To force Safeway to answer these two interrogatories would result in a waste of time, money, and effort, thus defeating one of the purposes of discovery. Ex parte Rowland, supra. The trial court correctly limited Safeway's responses to interrogatories number 2 and number 3 in an exercise of its discretion in controlling abuses of the discovery process. We note the procedure set out in Rule 33(c), Ala. R. Civ. P., applicable under appropriate circumstances, when the answer to an interrogatory may be derived from business records: We grant the petition for the writ of mandamus as it relates to O'Neal's interrogatory number 1; however, with respect to interrogatories number 2 and number 3, we deny the petition. WRIT GRANTED IN PART AND DENIED IN PART. MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, and SEE, JJ., concur. LYONS, J., concurs specially. HOOPER, C.J., concurs in part and dissents in part. LYONS, Justice (concurring specially). I concur with the majority's holding that relevant evidence should not be unavailable to the requesting party because the responding party does not maintain the evidence in a readily retrievable form. I write specially to add that while the standard for determining discoverability under Rule 26, Ala. R. Civ. P., is relevance and not admissibility, in regard to a fraud and bad faith claim against an insurer, where the insurance company's failure to pay claims and provide a defense is grounded upon its construction of a specific policy provision, I would favor some limitation on the scope of discovery of pattern evidence. Where information is sought concerning instances involving claims personnel other than those involved in handling the plaintiff's claim, I would limit such discovery to other cases involving the same defense. The answers to interrogatories in the instant case indicate that the insurer will rely on the defense of failure to pay the premiums required by the terms of the policy. However, before this Court the only issue is the validity of the trial court's order, entered after the trial court had overruled the insurer's general objection as to relevance, excusing the insurer from answering if the information does not exist in the form requested. HOOPER, Chief Justice (concurring in part and dissenting in part). I agree with the majority that the trial court correctly limited the interrogatories requesting the information about former Safeway policyholders whose claims had been handled by Betty Nave. However, I disagree with the majority's determination that the trial court abused its discretion in limiting the interrogatory regarding the discovery of *962 bad faith and fraud lawsuits filed against Safeway. "This Court has on many occasions held that the trial courts have very broad discretion regarding discovery matters under Rule 26, [Ala.R.Civ.P.]" Hunt v. Windom, 604 So. 2d 395, 397 (Ala.1992). I also note that "[t]he writ of mandamus is an extraordinary remedy that will not be issued unless the [petitioner] has a clear, undisputable right to the relief sought." Ex parte Heilig-Meyers Furniture Co., 684 So. 2d 1292, 1294 (Ala. 1996). Given these two standards that we must follow in this case, I believe the trial court did not abuse its discretion in limiting discovery to "the information requested if it exists in the form requested [and ruling that Safeway does] not have to create a list or method of identification if it does not currently exist." I would deny the petition entirely.

May 8, 1998

28037925-5824-43ff-8638-e9b93b1a9d2b

Canal Ins. Co. v. Old Republic Ins. Co.

718 So. 2d 8

1961478

Alabama

Alabama Supreme Court

718 So. 2d 8 (1998) CANAL INSURANCE COMPANY v. OLD REPUBLIC INSURANCE COMPANY. 1961478. Supreme Court of Alabama. May 29, 1998. *9 Jack J. Hall and Patrick R. Norris of McDaniel, Hall & Conerly, P.C., Birmingham, for appellant. Charles E. Sharp and Robert H. Sprain, Jr., of Sadler, Sullivan, Sharp, Fishburne & Van Tassel, P.C., Birmingham, for appellee. *10 ALMON, Justice. Canal Insurance Company appeals from a judgment declaring that Canal and Old Republic Insurance Company owed concurrent liability coverage to the insured, Kenney Wilson, a defendant in a wrongful death action. Canal argues that it owes no liability coverage to Wilson under the facts of the underlying wrongful death action. The question is whether Wilson's automobile policy with Canal covered his trailer, under the circumstances of the accident that led to the wrongful death action. On June 7, 1994, a logging truck owned by 7K Logging, Inc., and driven by a 7K employee, was towing a trailer owned by Wilson. A wheel came off the trailer and struck a vehicle, killing its driver, Waymon Williams. At the time of the accident, Wilson owned two Canal automobile insurance policies that provided primary and excess coverage to Wilson. The first page of the primary coverage policy described the vehicles covered as "1987 FREIGHTLINER TRACTOR AND ANY TRAILER SINGULARLY ATTACHED TO THE ABOVE-DESCRIBED TRACTOR," and it listed the vehicle identification number of the Freightliner tractor. The excess coverage policy stated that it provided coverage to Wilson only if the primary policy provided coverage. In March 1995, Williams's widow filed a wrongful death action against 7K Logging, the 7K driver, Wilson, and Alfa Mutual Insurance Company (Williams's insurance carrier). In May 1995, Canal denied Wilson's claim for coverage under his Canal policy, and Wilson filed a complaint seeking a judgment declaring that he had insurance coverage with regard to the wrongful death action. Wilson named as defendants Canal Insurance Company, Williams's widow, 7K Logging, Inc., 7K's employee/driver, and Alfa Insurance Company. By amendment, Wilson added Old Republic Insurance Company as a defendant and sought coverage under an Old Republic policy issued to 7K Logging. Old Republic admitted that its policy provided coverage to Wilson, and it assumed the defense of Wilson in the wrongful death action. In the declaratory judgment action, Old Republic filed a cross-claim against Canal, alleging that Canal had a duty to defend and indemnify Wilson and that Canal's coverage of Wilson was primary to, or at least was concurrent with, Republic's coverage of Wilson. Canal denied that its policy covered Wilson at all under these facts. In May 1996, Old Republic funded a $750,000 settlement of the wrongful death action and obtained a full release on behalf of Wilson and all of the other defendants. On February 4, 1997, the trial court in the declaratory judgment action granted Wilson's motion to be dismissed as a plaintiff. Old Republic and Canal filed cross motions for summary judgment in the declaratory judgment action. On February 24, 1997, the trial court denied both motions and entered the following order: Canal filed a motion to "reconsider" that order. Following a hearing, the trial court denied the motion and certified the February 24, 1997, order as final, pursuant to Rule 54(b), Ala. R. Civ. P.[1] *11 Canal argues that the policy it issued to Wilson does not cover Wilson's trailer that was involved in the accident, that it does not require Canal to defend Wilson in the wrongful death action, and that it does not require Canal to indemnify Old Republic for the coverage it provided Wilson or for the settlement it funded on Wilson's behalf in the wrongful death action. Old Republic argues that the trial court's judgment of concurrent coverage is correct because, it argues, the Canal policy is ambiguous and, therefore, must be construed to provide coverage for Wilson. Old Republic claims that an ambiguity arises when the "declarations" section and the definitions of "automobile" and "owned automobile" are read together. The Canal policy reads, in pertinent part: (Emphasis added.) Item 3 of the declarations section of the Canal policy clearly provides coverage for specifically identified vehicles: one tractor (its make, year, and VIN number are listed) and "any trailer singularly attached to the above-described tractor." In Paragraph I of Section A, Canal agrees to pay damages caused by an occurrence arising out of the use of "an owned automobile." Paragraph VI defines "automobile" to include a trailer; however, Paragraph VII defines an "owned automobile" as "an automobile which is *12 owned by the named insured and described in the declarations" (emphasis added). Old Republic argues that ambiguity arises from the use of the phrase "any trailer" in Item 3 of the Declarations and from the definition of "Automobile" in Paragraph VI of Section A. However, the phrase "any trailer" is limited by the succeeding phrase, "singularly attached to the above-described tractor." The trailer was not attached to Wilson's Freightliner tractor at the time of the collision with Williams's vehicle, so the Canal policy did not provide coverage for it under the circumstances of that collision. The definition of "automobile" does not supersede the definition of "owned automobile" so as to cause the policy to cover all trailers owned by Wilson; rather, the definition of "owned automobile" must be applied to the coverage provision in Paragraph I of Section A, and that definition requires that the automobile be "described in the declarations." The only trailer described in the declarations is one attached to Wilson's Freightliner tractor, so the trailer in question was not an "owned automobile" within the terms of the Canal policy as it applies to the facts in question. While limitations on coverage are to be interpreted as narrowly as possible so as to provide the maximum allowable coverage to the insured (American States Ins. Co. v. Martin, 662 So. 2d 245 (Ala.1995)), parties' conflicting constructions of otherwise unambiguous policy language do not necessarily render the disputed language ambiguous. Upton v. Mississippi Valley Title Insurance Co., 469 So. 2d 548 (Ala.1985); Watkins v. United States Fid. & Guar. Co., 656 So. 2d 337 (Ala.1994). Courts may not rewrite the terms of a policy or interpret unambiguous policy language so as to provide coverage that was not intended by the parties. Altiere v. Blue Cross & Blue Shield of Alabama, 551 So. 2d 290 (Ala.1989). See, also, Home Indemnity Co. v. Employers National Insurance Corp., 564 So. 2d 945 (Ala.1990). "`[L]anguage is ambiguous when it may be understood in more than one way or when it refers to two or more things at the same time.' American Reliance Insurance Co. v. Mitchell, 238 Va. 543, 547, 385 S.E.2d 583, 585 (1989)." Zitterow v. Nationwide Mutual Insurance Co., 669 So. 2d 109, 112 (Ala.1995). Here, the trial court found an ambiguity where there was none. By its unambiguous terms, the Canal policy did not cover Wilson's trailer that was involved in the collision in which Williams was killed, because it was not "singularly attached to the above-described tractor." Old Republic alternatively argues that Canal is estopped from denying Wilson coverage or a defense and indemnity in the wrongful death action. In a letter to Wilson dated April 24, 1995, a Canal claims supervisor wrote: It is unclear why Canal sent this letter, because it has otherwise consistently taken the position that its policy does not cover the collision in which Williams was killed. However, an insurer's duty to defend can be more extensive than its duty to pay. Ladner & Co. v. Southern Guar. Ins. Co., 347 So. 2d 100, 102 (Ala.1977). This letter was sent shortly after the wrongful death action was filed in March 1995. According to Old Republic, this letter indicates that Canal undertook the defense of Wilson without reserving the right to withdraw and that Canal waived the right to withdraw from the defense of Wilson. Burnham Shoes, Inc. v. West American Insurance Co., 504 So. 2d 238 (Ala.1987); Campbell Piping Contractors, Inc. v. Hess Pipeline Co., 342 So. 2d 766 (Ala.1977). See also Shelby Steel Fabricators, Inc. v. United States Fid. & Guar. Ins. Co., 569 So. 2d 309 (Ala. 1990), in which the Court found that U.S.F. & G. had provided sufficient notice of its *13 reservation of rights by sending a "non-waiver" form to its insured, Shelby Steel, even though U.S.F. & G. first sent a reservation of rights letter to Shelby Steel after conducting a defense for longer than two years. Canal asserts that both before and after the April 1995 letter it notified Wilson that he did not have coverage under his Canal policy for liability in the wrongful death action. Indeed, Wilson gave an affidavit in which he states that he notified his insurance agent of the Williams fatality in the accident involving his trailer on the day it occurred, and that "An agent called back that day or the next day and told me that my Canal policy would not cover the accident." Canal refers to a December 1994 letter that it sent denying coverage, but the record does not include a copy of such a letter. However, we find no basis for applying the rule of Burnham Shoes and Campbell Piping to the facts of this case. In spite of the April 1995 letter, there is no indication that Canal in fact provided a defense to Wilson in the wrongful death action. Old Republic apparently provided such a defense pursuant to its policy covering 7K Logging. There is some indication that an attorney retained by Canal may have entered an appearance on behalf of Wilson, but there is no indication that any such attorney took an active role in the defense or did anything by which Wilson could have been prejudiced by virtue of the failure of the April 1995 letter to include a reservation of rights. After receiving this letter in April 1995, Wilson filed in May 1995 the declaratory judgment action seeking a declaration that his Canal policy provided coverage for the Williams wrongful death action. Thus, he obviously did not rely on the April letter and assume that Canal would defend and indemnify him. Wilson later obtained a full release from any liability in the Williams action, as a result of the efforts of the legal representation supplied by Old Republic. He then moved in his action for a declaratory judgment for dismissal of his claims (the cross-claim was then pending, so he did not move simply to dismiss the action). Thus, he was not prejudiced by the failure of the April 1995 letter to include a reservation of rights. Moreover, we question whether Old Republic could step into Wilson's shoes to assert an estoppel based on the failure of the April 1995 letter to reserve Canal's right to deny coverage. However, because, under the circumstances, we find no basis on which Wilson could invoke the lack of a reservation of rights, we do not decide this question. Old Republic also cites evidence from Wilson indicating that his insurance agent told him that all three of his trailers "would be covered" by the Canal policy. Although this evidence might support a claim by Wilson alleging fraud or negligent failure to secure coverage, it does not create coverage for the benefit of Old Republic where none is provided by the policy. Southern United Life Ins. Co. v. Gregory, 508 So. 2d 247 (Ala. 1987). For the foregoing reasons, the judgment is reversed, and the cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, COOK, and LYONS, JJ., concur. [1] The record contains a motion to dismiss filed by Williams's widow, but none by the remaining defendants in the declaratory judgment action. There is no written ruling on the widow's motion. The February 24, 1997, order does not mention the other defendants; however, the case action summary sheet contains the following notations: "D001 [Canal] DISPOSED BY BENCH TRIAL 2/24/97 [footnote cont'd] "D002 [Williams] DISPOSED BY BENCH TRIAL 2/24/97 "D003 [7K driver] DISPOSED BY BENCH TRIAL 2/24/97 "D004 [7K Logging] DISPOSED BY BENCH TRIAL 2/24/97 "D005 [Alfa] DISPOSED BY BENCH TRIAL 2/24/97 "D006 [Old Republic] DISPOSED BY BENCH TRIAL 2/24/97" Thus, it appears that, notwithstanding the entry of the Rule 54(b) order, the trial judge considered all claims against all parties to have been disposed of. We express no opinion regarding the procedure of the dismissal of Wilson's claim and the entry of judgment; our point here is only that the judgment on the cross-claim is final and appealable.

May 29, 1998

fac7cbc1-7c5b-490a-9973-52e56bfcfc8d

Ex Parte Mutual Sav. Life Ins. Co.

765 So. 2d 649

1970424

Alabama

Alabama Supreme Court

765 So. 2d 649 (1998) Ex parte MUTUAL SAVINGS LIFE INSURANCE COMPANY. (In re Mutual Savings Life Insurance Company v. Alsie M. Smith). 1970424. Supreme Court of Alabama. May 22, 1998. Robert W. Bradford, Jr., and Jeffrey J. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for petitioner. Frank H. Hawthorne, Jr., and C. Gibson Vance of Hawthorne, Hawthorne & Vance, L.L.C., Montgomery, for respondent. HOUSTON, Justice. On June 27, 1996, Alsie Smith obtained a $625 judgment against Mutual Savings Life Insurance Company ("Mutual Savings"). Because Mutual Savings was satisfied with this result, it did not file a post-judgment motion. However, on July 25, 1996, within 30 days of the entry of the judgment, Smith moved for a new trial, pursuant to Rule 59(a), Ala.R.Civ.P., arguing that the damages award was inadequate in light of the evidence she had presented at trial. Mutual Savings filed a response in opposition to the new trial motion; after a hearing, the trial court granted Smith's motion on September 23, 1996. On October 22, 1996, within 30 days of the order granting a new trial, Mutual Savings filed a document styled "Motion for Reconsideration and Brief in Support Thereof," in which it challenged the basis for the trial court's order granting a new trial. The trial court never ruled on that motion. On February 24, 1997 (within 42 days of the 90th day following October 22, 1996; see Rule 59.1), Mutual Savings filed a notice of appeal to this Court, pursuant to Ala.Code 1975, § 12-22-10, challenging the *650 trial court's order granting a new trial. This Court transferred the appeal to the Court of Civil Appeals, pursuant to Ala. Code 1975, § 12-2-7(6). The Court of Civil Appeals, in a unanimous decision, dismissed the appeal as untimely. Relying on Sunshine Homes, Inc. v. Newton, 443 So. 2d 921 (Ala.1983), the Court of Civil Appeals held that Mutual Savings' October 22, 1996, motion "to reconsider" was not sufficient under the Alabama Rules of Civil Procedure to toll the time for taking an appeal from the September 23, 1996, order granting a new trial. See Mutual Savings Life Ins. Co. v. Smith, 765 So. 2d 646 (Ala. Civ.App.1997). We granted Mutual Savings' petition for certiorari review. We reverse and remand. As Mutual Savings correctly points out, the September 23, 1996, order granting Smith a new trial was a new "judgment" within the meaning of our Rules of Civil Procedure. See Rule 54(a), which defines a "judgment" as including "a decree and any order from which an appeal lies." See, also, § 12-22-10, which provides that "[e]ither party in a civil case... may appeal to the appropriate appellate court from an order granting or refusing a motion for a new trial by the circuit court." A party may challenge an adverse judgment by filing, within 30 days of its entry, a motion to alter, amend, or vacate the judgment, pursuant to Rule 59(e). A timely filed Rule 59(e) motion suspends the running of the time for filing a notice of appeal. Rule 4(a)(3), Ala.R.App.P. An examination of Mutual Savings' October 22, 1996, motion, although styled as one to "reconsider," clearly reveals that it was a Rule 59(e) motion. This Court looks to the essence of a motion, not just to its title, to determine how the motion should be treated under our Rules of Civil Procedure. Ex parte Alfa Mutual General Ins. Co., 684 So. 2d 1281 (Ala.1996). We conclude that Mutual Savings' October 22, 1996, motion, being a Rule 59(e) motion, suspended the running of the time for filing a notice of appeal, until that motion was denied by operation of law after 90 days, pursuant to Rule 59.1, Ala.R.Civ.P. Because Mutual Savings filed its notice of appeal within 42 days after the denial of its motion, its appeal was timely. We note that this is not the first time this Court has discussed this particular issue. See Ex parte Dowling, 477 So. 2d 400, 403-04 (Ala.1985), wherein this Court stated: (Emphasis added.) In his opinion concurring specially in Bowling, Chief Justice Torbert stated: 477 So. 2d at 404. We recognize, however, that Sunshine Homes, Inc. v. Newton, supra, which the Court of Civil Appeals relied on in this present case, is to the contrary. In Sunshine Homes, which predates Dowling, this Court stated: 443 So. 2d at 923-24. (Some emphasis in original; some emphasis added.) After reexamining Dowling and Sunshine Homes, we are persuaded that Dowling, not Sunshine Homes, is consistent with our Rules of Civil Procedure. This Court has never followed Sunshine Homes with respect to this particular issue; however, both this Court and the Court of Civil Appeals have recognized the holding in Dowling. See McAlister v. Deatherage, 523 So. 2d 387, 389 (Ala.1988), wherein this Court stated: See, also, Simmons v. Estate of Glenn, 693 So. 2d 501 (Ala.Civ.App.1997); Mangon v. Mangon, 660 So. 2d 1332 (Ala.Civ.App. 1995); A & S Bail Bonding Co. v. State, 627 So. 2d 446 (Ala.Civ.App.1993); Standridge v. Standridge, 628 So. 2d 870 (Ala. Civ.App.1993); Alabama Association of Rescue Squads v. State Department of Public Health, 575 So. 2d 1130 (Ala.Civ. App.1991); Calhoun v. Calhoun, 563 So. 2d 620 (Ala.Civ.App.1990). In fact, the Court of Civil Appeals, following Dowling, has previously held exactly as we do here. See Woodall v. Woodall, 506 So. 2d 1005 (Ala.Civ.App.1987). We reiterate that if a party has his own post-judgment motion denied, the review of that denial is by appeal. The rules do not provide for a "motion to reconsider" the denial of one's own post-judgment motion. Dowling. However, our Rules, including Rules 54(a), 59, and 50(c)(2), clearly contemplate that if a party has his post-judgment motion granted and a new judgment is entered, then the aggrieved party (here Mutual Savings) has the opportunity to file an appropriate post-judgment motion. To the extent that Sunshine Homes *652 is inconsistent with Dowling, it is hereby overruled. In addition, to the extent that certain statements in Sims v. Sims, 532 So. 2d 646 (Ala.Civ.App.1988), and Medical Center East, Inc. v. Allstate Ins. Co., 686 So. 2d 1218 (Ala.Civ.App.1996), are inconsistent with today's holding, those statements are overruled as well. For the foregoing reasons, the judgment of the Court of Civil Appeals dismissing the appeal is reversed and the case is remanded for that court to consider the appeal. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, ALMON, SHORES, KENNEDY, COOK, SEE, and LYONS, JJ., concur.

May 22, 1998

88fa192f-53fe-4189-882a-1b3b77c77950

Allstar Homes, Inc. v. Waters

711 So. 2d 924

1951955

Alabama

Alabama Supreme Court

711 So. 2d 924 (1997) ALLSTAR HOMES, INC., d/b/a Best Value Mobile Homes, et al. v. Rex WATERS. 1951955. Supreme Court of Alabama. November 21, 1997. Rehearing Overruled March 20, 1998. *925 A. Joe Peddy and David A. Hughes of Smith, Spires & Peddy, P.C., Birmingham, for appellants. Scott A. Powell and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellee. A. Joe Peddy, David A. Hughes, and Jacob C. Swygert of Smith, Spires & Peddy, P.C., Birmingham, for appellants (on application for rehearing). Evan M. Tager and Harold S. Reeves of Mayer, Brown & Platt, Washington DC; and Phillip E. Stano, Washington, DC, for amicus curiae American Council of Life Insurance (on application for rehearing). With Dissenting Opinion. BUTTS, Justice. Allstar Homes, Inc., doing business as Best Value Mobile Homes; and its agents Harold Dye and Phil Zuccala (hereinafter referred to collectively as "Allstar") appeal from the trial court's order denying their motion to compel arbitration of claims brought by the plaintiff, Rex Waters. We affirm. In February 1995, Rex Waters entered into a contract with Allstar Homes for the purchase of a mobile home. The contract included an arbitration clause providing, in pertinent part: (Emphasis added.) In November 1995, Waters sued Allstar Homes, alleging misrepresentation, breach of contract, and breach of warranty. Waters also alleged that Allstar Homes had violated the Magnusson-Moss Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301-2312. Waters claimed that Allstar Homes, through its agent Harold Dye, misrepresented to him that, in return for a down payment of $6,000, he would receive an interest rate of 10.5% on his installment contract for the mobile home. He further claimed that, at the close of the sale of the home, Allstar Homes, through its agent Phil Zuccala, represented to him that if he did not agree to a 12% interest rate, he could not buy the mobile home and that he would lose his $6,000 down payment. Waters claimed that, to avoid losing his down payment, he agreed to the 12% interest rate for the purchase of the mobile home. He claimed that Allstar Homes did not deliver to him the new mobile home that it had purported to sell him, but, instead, delivered a used mobile home with extensive defects. Allstar moved to compel arbitration of Waters's claims, arguing that the broad language of the arbitration clause in the purchase agreement encompassed all of Waters's claims. Waters opposed the motion, arguing that the purchase agreement was an adhesion contract and that he was fraudulently induced to agree to its provisions, including the arbitration clause. The trial court denied Allstar's motion to compel arbitration, holding that Waters was "entitled to a trial under general contract law principles to determine the validity of the arbitration clause " (emphasis added). Allstar construes the trial court's order to be a final denial of arbitration of all the claims in Waters's complaint. Allstar points out that Waters's complaint challenged the validity of the contract as a whole, not merely the validity of the arbitration clause, and argues that federal law requires that his claims should thus be submitted to arbitration, pursuant to Prima Paint Corp. v. Flood *926 & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967). Allstar, relying on Prima Paint, argues that only claims of fraud in the making of an arbitration clause specifically, as opposed to claims of fraud in the making of the contract as a whole, are appropriate for judicial consideration and that the trial court should therefore have granted its motion to compel arbitration of Waters's claims. Allstar's argument is based upon a flawed reading of the trial court's order; the trial court has not denied arbitration of the claims in Waters's complaint. Rather, the trial court has merely ordered further proceedings upon the narrow threshold issue of whether there is a valid agreement to arbitrate those claims. As we will discuss below, the trial court's order does not conflict with the Federal Arbitration Act, 9 U.S.C. §§ 1 16, or the United States Supreme Court's interpretation of the FAA in Prima Paint. The FAA clearly provides that, in ruling upon a motion to compel arbitration, a court shall make an order directing the parties to proceed with arbitration, "upon [the court's] being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue." 9 U.S.C. § 4. However, "[if] the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof." Id. In Prima Paint, a contract between the parties included an arbitration clause providing that "[a]ny controversy or claim arising out of or relating to" the contract would be submitted to arbitration. 388 U.S. at 398, 87 S. Ct. at 1803. The plaintiff brought an action in a federal court to rescind the contract on the basis of alleged fraudulent inducement. At the same time, the plaintiff moved to enjoin the defendant from seeking arbitration of the matter, arguing that, because the right of arbitration arose solely under the contract, the defendant had no right of arbitration until the trial court first determined whether the contract as a whole was a product of fraudulent inducement. The defendant cross-moved to stay the court action pending arbitration, arguing that it was not necessary to determine the validity of the contract as a whole before invoking the arbitration clause, if the plaintiff did not specifically allege that the arbitration clause itself was invalid. The federal district court and the court of appeals agreed with the defendant, holding that, "except where the parties otherwise intend[,] arbitration clauses as a matter of federal law are `separable' from the contracts in which they are embedded, and that where no claim is made that fraud was directed to the arbitration clause itself, a broad arbitration clause will be held to encompass arbitration of the claim that the contract itself was induced by fraud." 388 U.S. at 402, 87 S. Ct. at 1805. In affirming, the United States Supreme Court sought to further the "congressional purpose that the arbitration procedure, when selected by the parties to a contract, be speedy and not subject to delay and obstruction in the courts." 388 U.S. at 404, 87 S. Ct. at 1806. In an effort to promote the enforcement of arbitration clauses with as little impediment as possible, the United States Supreme Court created a "rule of severability," which would allow arbitration clauses to be enforced even where the contract as a whole may be voidable. Section 4 of the FAA directs a trial court to order arbitration once it is satisfied that an agreement for arbitration has been made and has not been honored; thus, the Court reasoned, if the arbitration agreement itself was not specifically attacked and found to be flawed, then it must be enforced and all disputes within its scope submitted to the arbitrator. The Court held, in pertinent part: 388 U.S. at 403-04, 87 S. Ct. at 1806 (footnotes omitted). The Supreme Court did not address the incongruity of enforcing one provision of a contract before it is determined that the contract itself is valid, nor did it recognize that the purpose of the FAA is to place arbitration agreements on the same footing as other contracts, not to elevate them. However, even in its efforts to promote arbitration as a means of dispute resolution, the Prima Paint Court plainly recognized that, under the FAA, "issues relating to the making and performance of the agreement to arbitrate" are to be determined by the trial court, and that claims of fraud in the inducement of the contract as a whole may be submitted to arbitration only after the court is satisfied that the making of the arbitration agreement itself is not at issue. Although some jurisdictions have construed Prima Paint to require arbitration of any claim in the complaint unless there has been "an independent challenge [in the complaint] to the making of the arbitration clause itself," Unionmutual Stock Life Ins. Co. of America v. Beneficial Life Ins. Co., 774 F.2d 524, 529 (1st Cir.1985), this Court has agreed with the "majority of courts [that have], on better reasoning, read Prima Paint more narrowly." Shearson Lehman Bros., Inc. v. Crisp, 646 So. 2d 613, 616 (Ala.1994). In Crisp, this Court quoted with approval the following reasoning from the Court of Appeals for the Ninth Circuit: 646 So. 2d at 616, 617 (quoting Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136, 1140-41 (9th Cir.1991)) (citation omitted; emphasis added). This view of Prima Paint is the better means of reconciling the United States Supreme Court's "rule of severability," which allows the enforcement of an arbitration agreement within an otherwise unenforceable contract, with § 3 and § 4 of the FAA, which require the court to rule on disputes concerning the making or enforcement of arbitration agreements, i.e., the "arbitrability" of claims, before such claims can be submitted to arbitration. Thus, as the Supreme Court stated in Prima Paint, the issue of fraud in the inducement of the contract as a whole may be submitted to arbitration, but only after the trial court has first ruled upon disputes as to the making or enforcement of the arbitration agreement itself. Allstar argues that, since Prima Paint was decided, the Supreme Court has held that parties may agree to arbitrate even the initial issues of arbitrability that are, under the FAA, to be decided by the trial court. In AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986), the Supreme Court reiterated that arbitration is a matter of contract and that a party cannot be required to submit to arbitration any dispute he has not agreed to submit. The Court stated: 475 U.S. at 648, 106 S. Ct. at 1418 (citations omitted; emphasis added). Although the Court may have suggested that the parties could conceivably agree to submit the issue of arbitrability to the arbitrator, it did not elaborate on this point; rather, the Court emphasized that if the parties allowed an arbitrator to "determine his own jurisdiction," then the "arbitrator would not be constrained to resolve only those disputes that the parties have agreed in advance to settle by arbitration, but, instead, would be empowered `to impose obligations outside the contract limited only by his understanding and conscience.'"AT & T, 475 U.S. at 651, 106 S. Ct. at 1419 (citations omitted). The Court stated that this result "is antithetical to the function of [an] agreement as setting out the right and duties of the parties." Id. In First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995), the Supreme Court again suggested that parties could submit the issue of arbitrability to the arbitrator, by holding that issues of arbitrability are undeniably issues for judicial determination, unless there is "clear and unmistakable evidence" that the parties intended otherwise. 514 U.S. at 944, 115 S. Ct. at 1924. In First Options, a dispute arose as to the payment of certain debts owned under a stock "workout agreement" between First Options of Chicago and Manuel Kaplan, Kaplan's wife, and Kaplan's wholly owned investment company. The agreement was contained in four separate documents, one of which contained an arbitration clause; however, neither of the Kaplans signed the document containing the arbitration clause. First Options sought arbitration of the dispute before a stock exchange panel; the Kaplans filed an objection before the arbitration panel, arguing that because they had not signed the arbitration agreement they had not agreed to submit the dispute to arbitration. The arbitration panel determined that First Options' claims were arbitrable, then ruled in favor of First Options as to the merits of the dispute. 514 U.S. at 940-41, 115 S. Ct. at 1922-23. The Kaplans filed a motion in the federal district court to vacate the arbitration panel's decision; the court denied the motion. However, the court of appeals reversed that denial, holding that the Kaplans had not agreed to arbitration and that their participation, under protest, in arbitration was not evidence of an agreement to forgo a judicial determination of whether First Options' claims were arbitrable, even though they did not initially seek such a determination. Kaplan v. First Options of Chicago, 19 F.3d 1503 (3d Cir.1994). In affirming the court of appeals' decision, the Supreme Court reasoned that, because arbitration is a matter of contract, "the question `who has the primary power to decide arbitrability' turns upon what the parties agreed about that matter." First Options of Chicago, Inc. v. Kaplan, 514 U.S. at 943, 115 S. Ct. at 1923 (emphasis original). The Court thus signaled that the issue of arbitrability might be taken from the court and placed within the jurisdiction of an arbitrator, if the parties agreed that it would be. However, the Court went on to discuss the manner by which the courts should decide whether the parties agreed to arbitrate the issue of arbitrability. The Court recognized that, when determining issues as to the scope of arbitration, i.e., what kinds of disputes are covered by the arbitration agreement, it has promoted the rule that "`"any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration."`" 514 U.S. at 945, 115 S. Ct. at 1924, quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985). However, the Court emphasized that the preliminary question of arbitrability, i.e., whether the parties ever actually agreed to the arbitration clause itself, thereby relinquishing their right to a court's decision about the merits of a dispute, is not subject to a presumption favoring arbitration. Thus, while the Supreme Court indicated that parties could conceivably agree to arbitrate issues of arbitrability, it is for the courts to determine whether there is "clear and unmistakable" evidence that there was *929 such an agreement. See 514 U.S. at 944, 115 S. Ct. at 1924. Allstar stresses that the arbitration agreement in Waters's purchase contract states that "[a]ll disputes ... arising from or relating to ... the validity of the arbitration clause ... shall be resolved by ... arbitration." Allstar argues that this language is clear and unmistakable evidence that the parties agreed to arbitrate the initial issue of arbitrability and that the trial court must surrender its power under § 4 to determine those issues. Allstar points out that Waters signed the arbitration agreement, and it concludes that the trial court thus had no authority to determine the validity of the arbitration clause and was required to grant its motion to compel arbitration, without ordering further proceedings. We must emphasize that any arbitration agreement is a waiver of a party's right under Amendment VII of the United States Constitution to a trial by jury and, regardless of the federal courts' policy favoring arbitration, we find nothing in the FAA that would permit such a waiver unless it is made knowingly, willingly, and voluntarily.[1] The FAA provides no mechanism whereby the parties may wholly circumvent the court's authority to determine whether the parties have agreed to waive their right to have their disputes heard in a judicial forum. Although the United States Supreme Court has signaled that it is possible for parties to agree to arbitrate at least some issues of arbitrability, it has clearly held that the preliminary decision as to whether there is any such agreement is for the courts to make. First Options of Chicago, Inc. v. Kaplan, supra. The fact that an arbitration agreement may state upon its face that issues of arbitrability will be subject to arbitration is not, standing alone, "clear and unmistakable" evidence that the parties truly intended to agree to such a condition. Arbitration clauses, even ones purporting to encompass the issue of arbitrability, are not self-proving; on the contrary, an arbitration agreement, like any other contract, is subject to generally applicable contract defenses, such as fraud, duress, or unconscionability. Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996). It is well established that the FAA does not require parties to arbitrate a dispute that they did not agree to submit to arbitration, and the trial court must decide whether the parties so agreed. In determining whether there is clear and unmistakable evidence that the parties agreed to submit the issue of arbitrability to the arbitrator, "the related and antecedent issue of whether an agreement to arbitrate is a contract of adhesion, fraudulently induced, or otherwise revocable, is an issue for the court as well, because essential to the First Options inquiry is the assumption that an agreement to arbitrate was made voluntarily." Aviall, Inc. v. Ryder System, Inc., 913 F. Supp. 826, 831 (S.D.N.Y.1996), affirmed, 110 F.3d 892 (2d Cir.1997). "[A]ll issues of arbitrability must first be determined by the court, including the issue whether the contract very clearly grants the arbitrators the power to decide even preliminary issues of arbitrability." Ex parte Williams, 686 So. 2d 1110, 1112 (Ala.1996) (Houston, J., concurring in the result). "If there is doubt as to whether such an agreement exists, the matter, upon a proper and timely demand, should be submitted to a jury. Only when there is no genuine issue of fact concerning the formation of the agreement should the court decide as a matter of law that the parties did or did not enter into such an agreement." Shearson Lehman Bros. v. Crisp, 646 So. 2d at 617, quoting Three Valleys Municipal Water Dist., 925 F.2d at 1140, quoting in turn Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, *930 54 (3d Cir.1980). Moreover, in making this decision, the trial court indulges no presumption in favor of arbitration. First Options. If, after assessing the claims asserted and determining the scope of the arbitration agreement involved, the court determines that the making or enforcement of the arbitration agreement is "at issue," the court may order further proceedings before the trier of fact. 9 U.S.C. § 4; see, also, Allied-Bruce Terminix Companies v. Dobson, 684 So. 2d 102, 108 (Ala.1995). "A court's duty in determining whether the making or the performance of an agreement to arbitrate is in issue is analogous to its duty in ruling on a motion for summary judgment.... The court is to hold a hearing and determine whether there are genuine issues concerning the making or performance of an agreement to arbitrate...." Allied-Bruce Terminix, at 108. The trial court has not permanently denied arbitration of Waters's claims against Allstar; rather, it has found that the making of the arbitration clause is "at issue" and it has properly ordered further proceedings to determine the validity of the arbitration clause, under § 4 of the FAA. We find no error in the trial court's order, and it is therefore affirmed. AFFIRMED. ALMON, SHORES, HOUSTON, and KENNEDY, JJ., concur. COOK, J., concurs specially. HOOPER, C.J., and MADDOX and SEE, JJ., dissent. COOK, Justice (concurring specially). I concur in all respects with the majority opinion. I write specially, however, to elaborate on a point raised in that opinion, namely: 711 So. 2d at 929 (footnote omitted). An issue central to this dispute is whether Rex Waters's signature to the "Manufactured Home Retail Installment Contract and Security Agreement" containing the arbitration clause was procured through economic duress and coercion. Essentially, Waters alleges that, after he had negotiated what he believed to be his best possible deal with the defendants, and after he had parted with a down payment of $6,000, he was then confronted with written material that contradicted the oral agreement. He alleged that this material contained, in addition to the contradictory terms, an arbitration clause, for which he had neither bargained nor contemplated. He states that his acquiescence to the new termsincluding the arbitration clausewas procured by threats of the loss of his $6,000 down payment on the purchase of a mobile home. If these allegations are true, then the specific enforcement of the arbitration clause in this contract would be barred for the fundamental reason that it violates the Seventh Amendment. The Seventh Amendment provides: A review of the legislative history of the FAA establishes the rationale for, and compels, this conclusion. In December 1922, S. 4214 and H.R. 13522 were introduced in the Senate and House of Representatives, respectively. Each bill was entitled: "A Bill to Make Valid and Enforceable Written Provisions or Agreements for Arbitration of Disputes Arising Out of Contracts, Maritime Transactions, or Commerce Among the States or Territories or with Foreign Nations." A hearing was subsequently held on S. 4214 before a subcommittee of the Senate Judiciary Committee. Much of the discussion in that hearing focused on the relationship between the proposed legislation *931 and the contractual waiver of the right to a trial by jury, where the contract containing the arbitration provision was one of adhesion. The following colloquy between Senator Walsh and Mr. W.H.H. Piatt,[2] who argued in favor of passage of S. 4214, is an exemplary excerpt from that hearing: Sales and Contracts to Sell in Interstate and Foreign Commerce, and Federal Commercial Arbitration, Hearing on S. 4213 and 4214 before a Subcommittee of the Committee on the Judiciary, 67th Cong., 4th Sess. 9-10 (1923) (emphasis added). Additionally, a letter from then Secretary of Commerce Herbert Hoover was "submit[ted] for the record." Id. at 14. The letter was addressed to Senator Thomas Sterling, who introduced the bill, and it stated in part: "If objection appears to the inclusion *932 of workers' contracts in the law's scheme, it might be well amended by stating, `but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in interstate or foreign commerce.'" Id. In response to these and similar comments from other Senators, S. 4214 and H.R. 13522 were revised and reintroduced in Congress the following year as S. 1005 and H.R. 646, respectively. Section 1 of those bills included the language suggested by Secretary Hoover excluding from the proposed law's application employment contracts of "seamen, railroad employees, [and every] other class of workers engaged in foreign or interstate commerce." Arbitration of Interstate Commercial Disputes: Joint Hearings on S. 1005 and H.R. 646, Bills to Make Valid and Enforceable Written Provisions or Agreements for Arbitration of Disputes Arising Out of Contracts, Maritime Transactions, or Commerce Among the States or Territories or with Foreign Nations, before the Subcommittees of the Committees on the Judiciary, 68th Cong., 1st Sess. 2 (1924) (hereinafter Joint Hearings) (emphasis added). S. 1005 was referred to the Judiciary Committee. Joint hearings were held on those bills before subcommittees of the Judiciary Committees. At the outset of those hearings, Mr. Piatt, who argued again in favor of passage, stated: Joint Hearings, at 10 (emphasis added). The question of a contracting party's volition in the waiver of her right to a jury trial arose again in those hearings. For example, Julius H. Cohen, a principal draftsman of S. 1005, stated: Joint Hearings, at 17 (emphasis added). Accompanying S. 1005 for consideration in the Judiciary Committee was S.Rep. No. 536, 68th Cong., 1st Sess. (1924), which was submitted by Senator Sterling. He offered the following pertinent comments regarding the purpose of S. 1005: Id. at 2-3 (emphasis added). On February 12, 1925, the 68th Congress enacted H.R. 646, entitled, "An Act To Make Valid and Enforceable Written Provisions or Agreements for Arbitration of Disputes Arising Out of Contracts, Maritime Transactions, or Commerce Among the States or Territories or with Foreign Nations." 43 Stat. 883, codified as amended at 9 U.S.C. § 1 et seq. That act was, of course, the FAA. These comments by the proponents, drafters, and sponsors of the bills that culminated *933 in the FAA, in addition to the revision that excluded employment contracts, illustrate the importance ascribed to the voluntariness of the contracting parties. Indeed, volition is the sine qua non of the FAA's constitutionality, for specific enforcement of an arbitration provision to which a party has not voluntarily agreed would clearly violate the Seventh Amendment. Indeed, specific enforcement of arbitration contracts for the purchase of consumer goods or services is beset by a number of problems implicating the Seventh Amendment. The reality is that contracts containing these provisions appear with increasing frequency in today's marketplace. As a result, consumers find it increasingly difficult to acquire basic goods and services without forfeiting their rights to try before a jury the common-law claims that may accrue to them. Entire segments of the market for certain goods and services, such as automobile sales and their attendant necessary financing, are being closed to consumers who are unwilling to forfeit the rights guaranteed them by the federal and state constitutions. To sanction this market closure would essentially effect the repeal of the Seventh Amendment by the concurrence of judicial with legislative fiat. Moreover, the coerced waiver of the right to a trial by jury results in a monetary penalty to the consumer. This is so because it deprives the consumer purchaser or debtor of the benefit of his bargain, along with the time he spent and the expense he incurred in negotiating it. More specifically, many consumer credit transactions containing "agreements" to arbitrate actually involve two independent "agreements." The credit sale of a new automobile, for example, is, according to ordinary experience, often consummated between the consumer-buyer and an agent of the automobile dealer only after hours, or, in some cases, days, of bargaining and negotiation. Although a number of terms important to both parties may be involved in these negotiations, one term that seldom, if ever, arises during the bargaining process is arbitration. Indeed, it may safely be said that the thought of specific constitutional provisions never impresses itself upon the mind of the consumer-buyer, and, seldom, if ever, upon the mind of the dealer's agent, before an agreement has been reached on the lot or the showroom floor encompassing all the essential terms of the sale. After the consummation of such a "showroom" agreement, the buyer, is, for the first time, then presented with "take-it-or-leave-it" written documents. These documents do not merely memorialize the terms of the prior agreement, but contain a pivotal term, one that was not negotiated and that is, as in this case, non negotiable. At that stage, the buyer typically learns, for the first time, that in order to receive the benefit of the bargain he has already consummated, and to avoid incurring a monetary penalty consisting of the time he spent and the expense he incurred in negotiating that bargain he must then agree to waive his right to a trial by jury. This second "agreement" constitutes a modification of the first and is a new contract, see Little v. Redditt, 264 Ala. 371, 88 So. 2d 354 (1956), subject to the rules regarding consideration and mutual assent set forth in Winegardner v. Burns, 361 So. 2d 1054, 1057-58 (Ala.1978) (quoting with approval Moore v. Williamson, 213 Ala. 274, 104 So. 645 (1925)). The consumer must either sign the contract, and, thereby, waive his Seventh Amendment guarantee, or begin the process anew elsewhere. Because of the penalty that results from such a waiver, the specific enforcement of an adhesion contract containing an arbitration provision places the Seventh Amendment on a different footing than U.S. Const. amend. IV (guaranteeing freedom from "unreasonable searches and seizures"), amend. V (guaranteeing freedom from forced self-incrimination), and amend. VI (guaranteeing the right to legal counsel in criminal proceedings). To be sure, rights guaranteed by the Fourth, Fifth, and Sixth Amendments can also be waived. "[A] person may waive his Fourth Amendment protection by consenting to a warrantless search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)." Windham v. State, 599 So. 2d 95, 96 (Ala.Crim.App.1992). But the consent must be voluntary, Ex parte Wilson, 571 So. 2d 1251, 1255 (Ala.1990), and the only *934 consequence of the waiver is that "all evidence discovered during the consensual search may properly be admitted into evidence. United States v. Wright-Barker, 784 F.2d 161, 176 (3d Cir.1986)." Colbert v. State, 615 So. 2d 1213, 1214 (Ala.Crim.App. 1992), rev'd on other grounds, 615 So. 2d 1218 (Ala.1992). Likewise, a person in police custody may waive his Fifth and Sixth Amendment rights. Before he does so, however, he is entitled to receive a warning as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and its progeny. Moreover, the waiver must be made "voluntarily, knowingly, and intelligently," Ex parte Pardue, 661 So. 2d 268, 269 (Ala.1994), and the only unalterable consequence of the waiver is that "`[a]ny statement given freely and voluntarily without any compelling influences [will be] ... admissible in evidence.'" Ex parte Godbolt, 546 So. 2d 991, 996 (Ala.1987) (quoting Miranda). Thus, the waiver of rights guaranteed by Amendments Four, Five, and Six is not punitive, as is the case with the specific enforcement of an arbitration provision to which a consumer is ultimately required to acquiesce in order to avoid losing the value of the time he expended and the expense he incurred in negotiations before learning of the arbitration requirement. Because arbitration provisions are, in consumer transactions, such as the one hypothesized above, virtually "foisted" upon unsuspecting and unsophisticated consumers, and because the result is often punitive to the consumer, the right guaranteed by the Seventh Amendment is accorded less deference than those rights guaranteed by the Fourth, Fifth, and Sixth Amendments. The fact that the United States Supreme Court has never held the Seventh Amendment to be binding on the states through the Fourteenth Amendment, as it has certain other of the Bill of Rights guarantees, is irrelevant in this context. This is because the FAA is not a state law. Thus, the constitutional deprivation, where one can be shown, derives from an act of Congress, not a state legislature. The Seventh Amendment, like the other Bill of Rights provisions, was ratified as a limitation on the power of Congress. Clearly, Congress had no power to deprive a citizen of Alabama of his right to a trial by jury before the Fourteenth Amendment was ratifieda fortiori, it has none now. Therefore, whether the Seventh Amendment is binding on the states is entirely irrelevant in any consideration of the FAA. But it has been said, and rightly so, that "[p]robably no greater encomiums or panegyrics have ever been pronounced upon any legal or civil right than upon this right of trial by jury." Alford v. State ex rel. Attorney General, 170 Ala. 178, 187, 54 So. 213, 215 (1910) (Mayfield, J., dissenting). "[I]t has been from very early time insisted upon, by our ancestors, as `the great bulwark of their civil and political liberties,' and watched with unceasing jealousy and solicitude...." Id. "[T]he Constitution of the United States would have been justly obnoxious to the most conclusive objection if it had not recognized and confirmed it in the most solemn terms...." Id. (Emphasis added.) For these reasons, I would hold that in a consumer-transaction case involving a contract containing an arbitration provision, unless there is a showing that the consumer entered the arbitration agreement voluntarily, the contract will be unenforceable as an encroachment on the right to trial by jury. I offer the following comments as guidance to parties desiring to avoid this result. If the offeror of consumer goods or services intends to insist upon the arbitration of disputes arising out of its consumer transactions, it must clearly integrate the arbitration requirement with the terms of the transaction that the consumer would consider essential, such as the price of the goods or services and the size and number of the payments. In other words, the consumer must be apprised of his right to a trial by jury and must be given an opportunity to accept or reject arbitration in a manner similar to the choice commonly given consumers either to purchase or refuse credit life or disability insurance. Such a procedure is merely analogous to the warning given pursuant to Miranda v. Arizona 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), to ensure that other enumerated rights under the Bill of Rights have been voluntarily waived. This would provide *935 one way in which objective evidence as to the level of volition could be demonstrated. In my consideration of this case, I have not overlooked Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996). In Casarotto, the United States Supreme Court reviewed Mont. Code Ann. § 27-5-114(4), which provided: "Notice that a contract is subject to arbitration... shall be typed in underlined capital letters on the first page of the contract; and unless such notice is displayed thereon, the contract may not be subject to arbitration." 517 U.S. at 683, 116 S. Ct. at 1654 (emphasis added). Holding that the statute ran afoul of, and, consequently, was preempted by, the FAA, the Court explained: "Courts may not ... invalidate arbitration agreements under state laws applicable only [emphasis in Casarotto] to arbitration provisions.... Section 27-5-114(4) of Montana's law places arbitration agreements in a class apart from `any contract,' and singularly limits their validity." 517 U.S. at 687, 116 S. Ct. at 1656-57 (emphasis added). The rule I would establish in consumer cases like this one differs fundamentally from the statute preempted in Casarotto in a number of ways. First, the Montana statute did not turn on whether the contract was a contract of adhesion. Thus, unlike the rule I propose, it did not invoke a Seventh Amendment analysis. Moreover, the Montana statute, § 27-5-114(4), affected contracts on purely state-law grounds, while the rule I propose is grounded on the guarantees of the federal Constitution. The FAA may, indeed, preempt state law, but it cannot preempt the Seventh Amendment of the federal Constitution. In this case, not only was Waters, as was the consumer in the example hypothesized above, forced to acquiesce in the waiver in order to avoid the penalty inherent in such transactions, he was further coerced by the threatened loss of his $6,000. Assuming the truth of his allegations, the waiver was clearly involuntary. Consequently, enforcement of the arbitration provision contained in the "Manufactured Home Retail Installment Contract and Security Agreement" would violate the Seventh Amendment. HOOPER, Chief Justice (dissenting). The majority's analysis confuses the question of the validity of an arbitration clause and the question of fraud in the inducement of a contract containing an arbitration clause. In its decisions, the United States Supreme Court has clearly distinguished between the two. In First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995), at issue were four documents involving four different partiesFirst Options, Manuel Kaplan, Carol Kaplan, and MKI, Manuel Kaplan's wholly owned investment company. MKI had signed the agreement containing the arbitration clause, but Manuel and Carol had not. The United States Supreme Court decided there was no agreement to arbitrate between the Kaplans and First Options, a very different decision from that Court's holding in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967). In fact, the First Options Court never mentions Prima Paint. Each case involves a totally different analysis.[3] Yet the majority has mingled those analyses together and implied that First Options overrules Prima Paint. Prima Paint`s holding does not disagree with the assertion that a court should decide the existence of a valid arbitration agreement, nor do I disagree. That is not a new breakthrough that the First Options Court made; that principle has always applied to arbitration, and it is based on the *936 FAA.[4] However, that is not the question in this case. Waters clearly agreed to arbitrate "all disputes, claims or controversies" arising from this contract. The existence of a valid arbitration agreement that involves interstate commerce is not at issue in this case. In Prima Paint, the facts were vastly different from those of First Options. However, the Prima Paint facts are very similar to the facts in the case at bar. In Prima Paint, Flood & Conklin ("F & C") entered into a consulting agreement with Prima Paint. The parties in that case executed the agreement at issue less than three weeks after the execution of a contract by which Prima Paint purchased F & C's paint business. That contract involved F & C's giving customer lists to Prima Paint, covenants not to compete, and the payment of certain percentages of receipts to F & C. F & C represented to Prima Paint that it was solvent and able to perform its contractual obligations. In fact, F & C was insolvent at the time it entered into the contract. F & C filed for bankruptcy protection one week after the signing of the contract. F & C also served notice of intention to arbitrate because the contract contained an arbitration clause. Prima Paint sued, claiming fraud in the inducement of the contract containing the arbitration clause. The United States Supreme Court held that arbitration was the appropriate forum for the dispute: 388 U.S. at 404, 87 S. Ct. at 1806. The Supreme Court held that the arbitration clause itself was separable from the contract: 388 U.S. at 403, 87 S. Ct. at 1806. 388 U.S. at 406, 87 S. Ct. at 1807. This last statement applies to Waters's case. In his complaint, filed November 3, 1995, Waters made no claim that Allstar Homes fraudulently induced him to enter into the agreement to arbitrate "[a]ll disputes, claims or controversies arising from or relating to this Contract." The trial judge's order written on the case action summary states: "Plaintiff made the claim ... that the contract itself was induced by coercion and/or fraud." (Emphasis added.) Of course, the courts always decide whether there exists an arbitration agreement before ordering arbitration to proceed. The courts decide whether the transaction involves interstate commerce, also. The courts do not decide whether the contract itself was induced by fraud. That is for the arbitrator. The majority implies that Prima Paint`s holding places arbitration clauses in an invalid *937 preferential position. That would be true if the decision had stated that a claim of fraud in the inducement of the clause containing the arbitration clause should also be arbitrated. In opposition to the majority's view, the United States Supreme Court stated that its principle that separates the arbitration agreement from the contract as a whole creates a level playing field for both. In other words, the Prima Paint decision made arbitration clauses as enforceable as other contracts, but not more so.[5] The majority in this case, like Justice Black, who dissented in Prima Paint, misunderstands the concept of arbitration. If a party agrees to arbitrate all disputes relating to the contract, then that party has agreed to arbitrate disputes as to any alleged fraud in creating the contract in the first place. It is not legitimate to argue, although Justice Black attempted to, that no one but a lawyer can recognize fraud and order rescission of a contract. An arbitrator is capable of that. The question becomes whether a party can show a court that he or she was tricked into agreeing to the arbitration. If so, then, the arbitration clause itself is invalid. That is the duty of the courts, to determine whether to compel arbitration or not. If there is no arbitration agreement, then the courts should not compel arbitration. Even if I accepted the argument that the rationale of First Options governs this case, I would still hold that arbitration is appropriate. In First Options, Justice Breyer stated: 514 U.S. at 943-44, 115 S. Ct. at 1924. The Kaplans in First Options did not agree to arbitration at all; Waters agreed to submit the question of arbitrability to an arbitrator. The agreement reads: (Emphasis added.) Nothing could be clearer. The following quotes from the majority opinion are not examples of clarity: 711 So. 2d at 927 and 929. This language quoted from the majority opinion is merely a means by which this Court can avoid the plain language of decisions of the United States Supreme Court and the plain language of the arbitration agreement, in order to further delay the transfer of this dispute to its proper forumarbitration. The agreement of the parties and federal law govern this question. There is no need for an opinion that ignores United States Supreme Court opinions and the clear and unequivocal language of the parties' contract. I would reverse the trial court's order denying *938 Allstar's motion to compel arbitration and order arbitration of Waters's claim against Allstar Homes. MADDOX and SEE, JJ., concur. BUTTS, Justice. APPLICATION OVERRULED. ALMON, SHORES, KENNEDY, and COOK, JJ., concur. HOOPER, C.J., and MADDOX, HOUSTON, and SEE, JJ., dissent. HOUSTON, Justice (dissenting). Initially, I was persuaded that AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986), controlled this case. I am now persuaded that it does not, but that Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967), does. I do believe that "all issues of arbitrability must first be determined by the court, including the issue whether the contract very clearly grants the arbitrators the power to decide even preliminary issues of arbitrability." Ex parte Williams, 686 So. 2d 1110, 1112 (Ala.1996) (Houston, J., concurring in the result). In this case there is no claim of fraud in the inducement of the arbitration clause itself. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., supra. The contract contained an arbitration clause that provided in pertinent part: (Emphasis added.) How can the trial court, using our rules of interpretation and construction of contracts, interpret these words to mean anything other than that the issue of arbitrability must be arbitrated? See Loerch v. National Bank of Commerce of Birmingham, 624 So. 2d 552 (Ala.1993); American Standard, Inc. v. Goodman Equipment Co., 578 So. 2d 1083 (Ala. 1991). It cannot; therefore, its order denying arbitration should be reversed. The Supremacy Clause of the Constitution of the United States should trump state law again. See Terminix Int'l Co. v. Jackson, [Ms. 1961351, March 6, 1998] ___ So.2d ___ (Ala.1998) (Houston, J., dissenting, ___ So.2d at ___). I dissent from the order overruling the application for rehearing. MADDOX, J., concurs. [1] Although we do not address the full implications of waiving one's right to a trial by jury in favor of arbitration of disputes, we do point out that the due process safeguards found in judicial proceedings are largely absent in arbitration. The reputed informality and the relative speediness of an arbitration procedure are achieved by severely limiting discovery; imposing few evidentiary rules; giving the arbitrator almost unbridled discretion to make decisions without basing them on established principles of law or making written findings to support the arbitrator's conclusions; and providing virtually no right of appeal in the case of error in the arbitrator's decision. [2] Piatt was the "chairman of the committee of commerce, trade, and commercial Law of the American Bar Association" and a vocal supporter of the proposed legislation. Sales and Contracts to Sell in Interstate and Foreign Commerce, and Federal Commercial Arbitration, Hearing on S. 4213 and 4214 before a Subcommittee of the Committee on the Judiciary, 67th Cong., 4th Sess. 7 (1923). [3] "`[I]f the claim is fraud in the inducement of the arbitration clause itselfan issue which goes to the "making" of the agreement to arbitrate the federal court may proceed to adjudicate it. But the statutory language [of FAA § 4] does not permit the federal court to consider claims of fraud in the inducement of the contract generally.... We hold, therefore, that ... a federal court may consider only issues relating to the making and performance of the agreement to arbitrate.'"Wheat, First Securities, Inc. v. Green, 993 F.2d 814, 818 (11th Cir. 1993) (quoting Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S. Ct. 1801, 1806, 18 L. Ed. 2d 1270 (1967))(bracketed language added in Prima Paint). [4] "The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.... If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof." 9 U.S.C. § 4. [5] Prima Paint, 388 U.S. at 404, n. 12, 87 S. Ct. at 1806, n. 12.

March 20, 1998

f8aba75a-b186-4e51-93f1-88eeb77023f0

Ex Parte DWW

717 So. 2d 793

1961022

Alabama

Alabama Supreme Court

717 So. 2d 793 (1998) Ex parte D.W.W. (In re R.W. v. D.W.W.). 1961022. Supreme Court of Alabama. February 27, 1998. *794 Jay E. Stover and Clifford L. Callis, Jr., Rainbow City, for petitioner. Janice C. Hart and Laura Alfano of Hart & Alfano, Warrior, for respondent. HOOPER, Chief Justice. R.W. and D.W.W. were divorced in 1996. The trial court awarded custody of the couple's two minor children to the father, D.W.W., and granted restricted visitation rights to the mother, R.W. The Court of Civil Appeals affirmed the trial court's order granting custody to the father but reversed its visitation order. R.W. v. D.W.W., 717 So. 2d 790 (Ala.Civ.App.1997). We granted certiorari review to consider that portion of the Court of Civil Appeals' opinion that addressed visitation privileges. We now reverse that portion of the Court of Civil Appeals' judgment reversing the visitation provisions of the circuit court's judgment, and we remand the case. The visitation portion of the divorce judgment provided: This visitation order was entered after ore tenus, nonjury proceedings. In reviewing this order, we must remember that an appellate *795 court cannot substitute its own judgment for that of the trial judge. Geisenhoff v. Geisenhoff, 693 So. 2d 489, 491 (Ala.Civ.App. 1997); see also Grubbs v. Crosson, 634 So. 2d 593 (Ala.Civ.App.1994). Because the trial court has the advantage of observing the witnesses' demeanor and has a superior opportunity to assess their credibility, this Court cannot alter the trial court's judgment unless it is so unsupported by the evidence as to be clearly and palpably wrong. Everett v. Everett, 660 So. 2d 599, 602 (Ala.Civ.App. 1995). There is a strong presumption that the trial judge correctly exercised his discretionary authority as to visitation and correctly reached a conclusion advancing the best interests of the children. Hagler v. Hagler, 460 So. 2d 187, 188 (Ala.Civ.App.1984); see also Hester v. Hester, 460 So. 2d 1305, 1306 (Ala.Civ.App.1984). On our review of the record, we cannot say that the evidence contrary to the trial judge's decision was so great as to overcome this strong presumption of correctness. Indeed, the evidence in this case indicated that these visitation restrictions were reasonably drawn to protect the best interests of the minor children. The trial judge first restricted R.W.'s visitation to specific times in the maternal grandparents' home and required that the grandparents supervise all such visits. Keeping in mind the presumption accorded the trial judge's ruling, we note the following: The testimony indicated that R.W. at times displayed poor parenting skills. From the testimony before the court, the judge could have found that R.W. had hit her daughter with the buckle of a belt, leaving marks on the child. The judge heard testimony indicating that R.W. has been an impatient parent, at times even shaking her son when his medication to control his hyperactivity was wearing off. In the face of such evidence, we cannot say that the trial judge was plainly and palpably wrong in imposing restrictions on R.W.'s contact with her children. We must reiterate that our duty as an appellate court is not to reweigh the evidence. Our duty is not to supplant or deny the trial judge's authority in order to reach the conclusions we would have advocated ourselves. In short, the duty of an appellate court is to affirm the trial court's judgment if it is supported by any credible evidence. T.S.S. v. G.W.S., 680 So. 2d 354 (Ala.Civ.App.1996); Cole v. Cole, 442 So. 2d 120 (Ala.Civ.App. 1983). The record discloses a foundation of credible evidence indicating that unrestricted visitation with R.W. would not be in the best interests of the children. The restrictions placed on R.W.'s visitation are not overly broad, but were tailored to protect the children. The grandparents' presence will act both as a buffer between the children and R.W.'s occasionally temperamental style of parenting and as a support for R.W. as she continues to develop her parenting skills. These restrictions did not constitute an abuse of discretion, but, rather, were an appropriate exercise of the trial judge's authority to protect the children's welfare.[1] The trial court further restricted R.W.'s visitation with the children by requiring that the visits occur outside the presence of N.L., who is R.W.'s sexual partner. R.W. and N.L. have lived together in a lesbian relationship since November 1994. During the pendency of the divorce action, R.W.'s children also lived in the home with R.W. and N.L. The evidence indicated that, during this time, N.L. became an active disciplinarian of the children. N.L.'s disciplinary methods were sometimes inappropriate. She threatened to deprive R.W.'s daughter of visitation with her father, as a form of punishment. The mother even admitted before the court that she personally would not choose N.L.'s methods to discipline her children, yet she continued to allow her sexual partner to punish the children harshly. Thus, the trial court could have found from the evidence presented that the children's best interest required that they have no contact with N.L. *796 Furthermore, the trial court did not abuse its discretion in considering the effects on the children of their mother's ongoing lesbian relationship. Both women are active in the homosexual community. They frequent gay bars and have discussed taking the children to a homosexual church. Although they do not engage in intimate sexual contact in front of the children, they openly display affection in the children's presence. Already, the children appear to have been detrimentally affected by their mother's relationship and by their contacts with her sexual partner. Evidence was presented indicating that, after moving in with R.W. and N.L., the children began using inappropriate and vulgar language and required psychiatric counseling. The mother herself admits that her daughter began having problems with manipulation and lying. The evidence showed that this child also experiences problems dealing with anger and that she sometimes acts violently. Even without this evidence that the children have been adversely affected by their mother's relationship, the trial court would have been justified in restricting R.W.'s visitation, in order to limit the children's exposure to their mother's lesbian lifestyle. When a noncustodial parent is involved in a continuing homosexual relationship, restrictions on that parent's visitation rights have been widely held to be proper. Caroll J. Miller, Annotation, Visitation Rights of Homosexual or Lesbian Parent, 36 A.L.R.4th 997 (1985). Restrictions such as those at issue here are common tools used to shield a child from the harmful effects of a parent's illicit sexual relationships heterosexual or homosexual.[2] Diane M. Allen, Annotation, Propriety of Provision of Custody or Visitation Order Designed to Insulate Child from Parent's Extramarital Sexual Relationships, 40 A.L.R.4th 812 (1985). Moreover, the conduct inherent in lesbianism is illegal in Alabama. Ala.Code 1975, § 13A-6-65(a)(3). R.W., therefore, is continually engaging in conduct that violates the criminal law of this state. Exposing her children to such a life-style, one that is illegal under the laws of this state and immoral in the eyes of most of its citizens, could greatly traumatize them. Given both the demonstrable harm to these children that has already occurred and the potential for harm through continued exposure to their mother's lifestyle, we cannot hold that the trial court abused its discretion in imposing these limitations on R.W.'s visitation. The Court of Civil Appeals concluded that the trial judge had no valid basis for imposing these visitation restrictions. In reversing the order of the trial court, the Court of Civil Appeals relied primarily upon several statements made by the trial judge to the effect that he traditionally allows liberal visitation for the noncustodial parent. However, these were clearly statements of the trial judge's general philosophy toward child custody cases. They were made before the bulk of the evidence in this case was presented. The judge could have found extenuating circumstances justifying a departure from his usual approach. The record indicates that such extenuating circumstances did indeed exist. The trial judge had a valid basis for his visitation restrictions he was acting in the best interests of the children. In domestic relations cases a minor child has an inalienable right to the maximum protection of the judiciary; all other rights are secondary. There was no clear abuse of discretion to justify the Court of Civil Appeals' reversal. Although the judges of the Court of Civil Appeals might have reached a conclusion different from that of the trial judge if they had been sitting in the trial judge's place, it was error for them to substitute their judgment for that of the trial judge. Unless the trial court is plainly wrong in its decision, an appellate court should not interfere with its discretionary rulings. This is particularly true in child custody and visitation cases, where the parties' credibility is often the determinative factor. In these situations, the trial judge, who has actually seen and heard *797 the parties and the witnesses, is infinitely more qualified to make a decision than an appellate court, which must make its determination from a cold record. That portion of the Court of Civil Appeals' judgment reversing the visitation provisions of the circuit court's judgment is reversed. The case is remanded for the Court of Civil Appeals to reinstate that portion of the circuit court's judgment. REVERSED AND REMANDED. HOUSTON and BUTTS, JJ., concur. MADDOX and SEE, JJ., concur in the result. KENNEDY and COOK, JJ., dissent. KENNEDY, Justice (dissenting). Because the main opinion seems to be more interested in providing social commentary than in protecting the best interests of these parties' two children, I dissent. In an apparent attempt to play to public opinion, the main opinion has ignored the sound reasoning of the Court of Civil Appeals and has mischaracterized much of the evidence presented in this case.[3] In fact, one reading the main opinion may get the impression that the trial court's decision is supported by a wealth of evidence. However, I can find no evidence to support the type of severe visitation restraints placed on R.W., especially when viewed in light of D.W.W.'s documented history of alcoholism and abuse. While I am not attempting to condone R.W.'s lifestyle, I cannot ignore the fact that the trial court's decision appears to be founded primarily on prejudice. Drawing from the record, I find the following evidence equally relevant to the best interests of these children; that this evidence was not addressed by the trial court or in today's main opinion, however, tells more about what I perceive to be the true motive behind the restrictions placed on R.W.'s visitation privileges: In an effort to buttress the trial court's reasoning, the main opinion ignores the past effects of D.W.W.'s behavior on the children and argues that the children have been adversely affected by their mother's relationship with N.L. In reality, many of the children's learning and behavioral difficulties began before R.W. separated from D.W.W. and therefore could not be attributed to R.W.'s relationship with N.L., as the main opinion implies. The evidence showed that the children had excelled in school over the year and a half they were in their mother's custody, and that N.L., who is a child guidance counselor, had spent many hours working with the parties' daughter to improve her spelling and her motor skills.[4] The main opinion also states that R.W. has shown impatience with her children in the past. However, the record indicates that R.W. spanks the children less often than D.W.W. does, and that the marks on the daughter, addressed in the main opinion, actually occurred when R.W. grabbed the daughter's arm to rescue her from drowning in the deep end of a pool. The main opinion's true emphasis seems to be on the supposed illegal nature of R.W.'s lifestyle, and it goes to great lengths to paint a radical picture of R.W.[5] The main opinion questions R.W.'s parental fitness, based on the alleged criminal nature of her relationship with N.L. Despite a complete lack of evidence regarding the specifics of R.W.'s sex life, the main opinion accuses R.W. of "continually engaging in conduct that violates the criminal law of this state," 717 So. 2d at 796, and suggests that lesbianism, in general, is illegal under § 13A-6-65(a)(3), Ala.Code 1975. Under § 13A-6-65(a)(3), Ala.Code 1975, anyone who engages in oral sex with a person to whom they are not married, regardless of the gender of the persons involved, is guilty of sexual misconduct. Ignoring the presumptuous nature of its allegation, I am bothered by the main opinion's implication that a violation of this statute is tantamount to parental unfitness. Nevertheless, the main opinion's fixation with this particular aspect of R.W.'s life further illustrates my concern that these children's best interests are not the primary focus of today's decision. In reality, the children are far more likely to be traumatized and injured by their father's illegal activities than they are by any potential violation of § 13A-6-65(a)(3), Ala.Code 1975. I believe the trial court abused its discretion by severely limiting R.W.'s visitation, while granting full custody to D.W.W. The main opinion accuses me of dealing with issues outside the scope of this review; however, our role is to determine whether the Court of Civil Appeals erred in concluding that the trial court's order was not supported by the evidence. This necessarily involves reviewing the foundation of the trial court's order and, although that order is entitled to a presumption of correctness, I cannot support a judgment that appears to be influenced more by prejudice than by the facts. Prejudice is not within the discretion of the trial court and, in reviewing the record, I find no reason, other than prejudice, to explain the trial court's willingness to ignore D.W.W.'s outrageous conduct while so severely restricting R.W.'s visitation. Unfortunately, those joining the main opinion, in their own haste to separate these children from their *799 mother's lifestyle, seem just as willing to vilify R.W. while ignoring D.W.W.'s proven history of alcoholism and abuse. I can find no valid basis to reverse the judgment of the Court of Civil Appeals; therefore, I must dissent.[6] COOK, Justice (dissenting). I agree with the Court of Civil Appeals that the visitation order in this case is an abuse of discretion; thus, I dissent. The visitation order is overly restrictive, and a less restrictive order would accomplish the stated goal of the trial court, that is, that "in no event shall the children be around [N.L.] during any visitation period." The order requires that visitation be exercised "only at the maternal grandparents' home under their supervision and control." The order by its terms limits visitation to the "home" of the maternal grandparents and, thereby, prevents any other interaction of the mother with the children. The main opinion concludes that this restriction is justified, by citing specific instances of poor parenting skills of R.W. By restricting visitation to the "home" of the maternal grandparents, the order is ambiguous and subject to the interpretation that it prevents the maternal grandparents from consenting to or accompanying R.W. and the children to activities outside of the home. The order further states that "[n]either party shall have overnight adult guests (family excluded) while [the] children are in their home and under their custody unless they are married thereto." Under the express terms of the order, this language could not impact the mother, because visitation for the mother would occur only at the home of the maternal grandparents, and never in the mother's home. The express language relating to overnight guests cannot be construed to be applicable to the maternal grandparents because there is no evidence that the maternal grandparents are parties. Therefore, this portion of the order applies only to the father, and I am not aware of any evidence that present or potential friends or colleagues of the father would have any impact, negative or otherwise, on the children. Admittedly, divorce, custody, and visitation orders present situations of some complexity. There is no question that this is a case charged with philosophical emotion. The main opinion suggests that R.W., because of her relationship, "is continually engaging in conduct that violates the criminal law of this state." The trial court found R.W.'s conduct to violate the laws of nature. Stripping aside this philosophical emotion, the question remains: Is this visitation order so broad that, in part, it is not supported by the evidence? I believe it is. Therefore, I dissent. [1] Justice Kennedy's dissent discusses extensively the faults of the children's father. That discussion has no relevance to the issues before this Court. The Court of Civil Appeals affirmed the order placing the children in their father's custody. That order has not been appealed. It is not for us to presume error where none has been presented. Our role in this case is to review the trial judge's determination that R.W. should not have unlimited visitation with the children. The suggestion that our role in this case is anything else seriously misconstrues our judicial purpose. [2] We would also note that the restriction against all overnight adult guests when the children are present in the home applies equally to both parents. The trial court made no distinction between homosexual and heterosexual relationships. The trial court's restriction, therefore, protects the children from exposure to all extramarital sexual relationships engaged in by either parent, not just homosexual relationships. [3] The main opinion states that the Court of Civil Appeals "relied primarily" upon several statements made by the trial court. However, the Court of Civil Appeals specifically stated that it could "find no apparent valid basis for the restrictive visitation requirements imposed upon the mother," R.W. v. D.W.W., 717 So. 2d 790 (Ala.Civ.App.1997), and that this lack of evidence was only further buttressed by the trial court's statements. [4] The children's report cards, along with several awards for effort and citizenship, were admitted into evidence at the hearing. In addition, there was no evidence that the children, as the main opinion states, had "required psychiatric counseling," 717 So. 2d at 796, only testimony that D.W.W. had begun taking them to his sessions with his alcoholism therapist. [5] Once again, the main opinion fails to include certain facts that R.W. had decided to take the children to her parents' Methodist church and that R.W. and N.L. socialize almost exclusively with coworkers and family. [6] As Justice Cook points out in his dissent, the trial court's order is overly restrictive. It also fails to address holiday visitation, and it will prevent R.W. from spending even supervised time with her children at a park or shopping mall.

February 27, 1998

26e98955-63f1-4075-8147-5b42ed755d57

Leventhal v. Harrelson

723 So. 2d 566

1960172

Alabama

Alabama Supreme Court

723 So. 2d 566 (1998) Ronald S. LEVENTHAL v. Alfred HARRELSON, et al. 1960172 Supreme Court of Alabama. May 15, 1998. Rehearing Denied October 16, 1998. *567 Ronald S. Leventhal, pro se. R. M. Woodrow of Doster & Woodrow, Anniston, for appellees. KENNEDY, Justice. The opinion of August 22, 1997, is hereby withdrawn and the following is substituted therefor: Ronald S. Leventhal appeals from a default judgment entered against him and in favor of Alfred Harrelson, Ed Greenwood, and Dick Sawyer, as trustees for the East Alabama Auto Parts Purchase Pension Plan, on their claims against him alleging breach of contract, fraud, misrepresentation, negligence, willfulness, recklessness, and breach of fiduciary duty. We affirm. The record reflects the following pertinent facts: In 1986, Alfred Harrelson, Ed Greenwood, and Dick Sawyer, as trustees for the East Alabama Auto Parts Purchase Pension Plan, made an investment of $50,000 in a limited partnership known as Butler Creek Center, Ltd.[1] Before making the investment, the Trustees, on the recommendation of the defendant Martin ("Marty") Greene, who worked at the administrative firm servicing the Pension Plan, traveled to Georgia to meet with Mr. Leventhal regarding the potential investment.[2] According to both Leventhal and the trustees, upon their return to Alabama the trustees expressed reservations about whether to make the investment. According to the trustees, Mr. Greene assured them the investment was safe and secured for them a letter from Mr. Leventhal stating: The plaintiffs contend that this letter agreement was mailed from Georgia to Alabama. The letter was signed by Ronald S. Leventhal, and it purported to be "Agreed to and acknowledged by: Alfred Harrelson, Trustee, East Alabama Autoparts Money Purchasing Pension Plan." The trustees invested in the partnership; however, on April 14, 1988, Alfred Harrelson requested, by a letter addressed to Mr. Leventhal, that Mr. Leventhal perform in accordance with the letter agreement and "buy out" the pension plan's investment. According to the trustees, when Mr. Leventhal refused to perform in accordance with the agreement, they sued him and Greene. The trial in this case was originally set for September 16, 1996; however, the trial court granted the plaintiffs' motion for a default judgment on August 7, 1996, and set the hearing on damages for September 11, 1996. On September 11, the defendant failed to appear. The following order was entered on September 17: (C.R. at 472-73.) Leventhal appeals the default judgment, arguing, in part, that the court did not have personal jurisdiction over him. Rule 4.2(a)(2), Ala. R. Civ. P., states the requirements for personal jurisdiction over a nonresident defendant: Due process requires that the defendant have such contacts with the forum that being sued there does not offend the "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). These contacts must be established by the defendant's purposeful acts. Id. Personal jurisdiction over a non-resident defendant may be either general or specific. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984). General jurisdiction applies where a defendant's activities in the forum state are "substantial" or "continuous and systematic," regardless of whether those activities gave rise to the lawsuit. Helicopteros. A court has specific jurisdiction when a defendant has had few contacts with the forum state, but those contacts gave rise to the lawsuit. Id. The essential element of personal jurisdiction is that the defendant could have reasonably anticipated that the effects of his acts would be felt by the plaintiff in Alabama. Baker v. Bennett, 603 So. 2d 928 (Ala.1992), cert. denied, 507 U.S. 912, 113 S. Ct. 1260, 122 L. Ed. 2d 658 (1993). The defendant Leventhal is a resident of Georgia. The evidence in the record suggests that Marty Greene, Leventhal's investment partner and codefendant, recommended the investment to the trustees of the Pension Plan. The trustees traveled to Georgia to meet with Leventhal. When the trustees, upon returning to Alabama, had misgivings about making the investment, Greene assured them it was safe and he secured for them the letter agreement from Leventhal. The letter agreement was by Leventhal individually and was mailed to the plaintiffs in Alabama. The plaintiffs relied heavily on the letter from Leventhal wherein he stated that the investment was sound. Relying on Leventhal's letter, the plaintiffs paid Leventhal. However, Leventhal never repaid the original investment plus interest, as he agreed in the letter to do if the investment property was not sold. Leventhal argues that because he never traveled to Alabama to discuss the investment in Georgia, he is not subject to personal jurisdiction in Alabama. However, there is no requirement that the defendant physically enter the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). In Duke v. Young, 496 So. 2d 37 (Ala.1986), we held that an Alabama resident could maintain a *570 fraud action against six Georgia residents where the six had never traveled to Alabama or conducted negotiations in Alabama. "[T]he reality of modern commercial life is that many transactions take place solely by mail or wire across state lines, obviating the need for physical presence in the state toward which the defendant's activities are directed." Shute v. Carnival Cruise Lines, 897 F.2d 377, 382 (9th Cir.1990), rev'd on other grounds, 499 U.S. 585, 111 S. Ct. 1522, 113 L. Ed. 2d 622 (1991). In CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir.1996), the court held that so long as the nonresident commercial actor's efforts are purposefully directed toward residents of the forum state, the lack of physical presence does not bar the exercise of personal jurisdiction. In CompuServe, the nonresident defendant subscribed to a computer network service based in the forum state. The nonresident developed computer software known as "shareware" and entered into an ongoing contract with the service to have his shareware distributed through the service. The court held that he had availed himself of the benefits of doing business in the forum state. Leventhal also argues that the plaintiffs initiated the contact with him, the nonresident. However, "who started it" is just one factor to consider in determining whether the defendant is subject to personal jurisdiction. Resuscitation Technologies, Inc. v. Continental Health Care Corp., (No. 96-1457, March 24, 1997) (S.D.Ind.1997) (not reported in F.Supp.). Leventhal's activities were directed toward residents of the forum state. He knew from conversations with Greene that the plaintiffs were unsure of the investment. In response, Leventhal made written promises and representations that induced the plaintiffs to make the investment. Accordingly, the trial court had personal jurisdiction over Leventhal. It is evident from the record that Leventhal attempted to avoid service of process. (C.R. 16, 42-46.) Leventhal would not cooperate with the plaintiffs in scheduling discovery. (C.R. 90-92.) He also failed or refused to show up at any hearing, docket call, or other court proceeding or to comply with the trial court's orders. (C.R. 476-78.) Conduct committed willfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside. Storage Equities, Inc. v. Kidd, 579 So. 2d 605 (Ala.1991). Because the trial court had personal jurisdiction over Leventhal and because Leventhal willfully refused to appear, we affirm the trial court's default judgment. It is clear under Alabama's Rules of Civil Procedure that when a defendant challenges the court's personal jurisdiction and the trial court overrules the challenge, the issue of personal jurisdiction is preserved for appeal. However, the defendant must proceed with the case on the merits. OPINION OF AUGUST 22, 1997, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; AFFIRMED. HOOPER, C.J., and MADDOX, ALMON, SHORES, and HOUSTON, JJ., concur. COOK and SEE, JJ., dissent. COOK, Justice (dissenting). The narrow issue in this case is whether the defendant, Ronald S. Leventhal, had sufficient contacts with, or activities in, the State of Alabama to make it fair and reasonable to require him to defend this action in Alabama. In other words, is there any evidence to establish that Leventhal's conduct relating to this investment opportunity, offered in Georgia, was such that Leventhal should reasonably have anticipated being sued in Alabama? I conclude that the evidence does not establish that Leventhal had sufficient contacts to give an Alabama court, specifically the Circuit Court of Calhoun County, personal jurisdiction over him. Therefore, I dissent. Determining sufficient contacts is a fact-specific analysis. In Francosteel Corp. v. M/V Charm, 19 F.3d 624 (11th Cir.1994), the United States Court of Appeals for the Eleventh Circuit held that a contract to deliver goods to a Georgia port did not constitute sufficient contacts with the state of Georgia to justify that state's exercise of specific in personam jurisdiction, given that none of the *571 events giving rise to the action took place in Georgia. Id. at 627. 19 F.3d at 627 (quoting Vermeulen v. Renault, U.S.A., Inc., 965 F.2d 1014, 1016 (11th Cir.1992)). The defendant Leventhal is a resident of Georgia. The evidence in the record suggests that Marty Greene, Leventhal's codefendant, recommended an investment in Georgia property to the trustees of the Pension Plan. Although Greene worked with the firm that was servicing the Pension Plan, the record suggests that he also was an investor in the Georgia partnership he recommended to the trustees. The trustees traveled to Georgia to meet with Leventhal. When the trustees, upon returning to Alabama, began having misgivings about making the investment, Greene assured them it was safe and obtained for them a letter agreement from Leventhal. However, Leventhal never traveled to Alabama to discuss the Georgia investment. In addition, there is no evidence indicating that Greene was acting as Leventhal's agent when Leventhal, in effect, personally guaranteed the trustees a return on their investment. Berlin v. Newman, 657 So. 2d 890 at 892 (Ala.Civ.App.1994), cert. denied, 657 So. 2d 894 (Ala.1995). The only possible contact between Leventhal and Alabama was the letter Leventhal wrote that was provided to the plaintiffs in Alabama, giving them certain assurances regarding the Georgia investment. Any loss the plaintiffs suffered was occasioned by the decrease in value of the Georgia investment. Assuming the plaintiffs' allegations to be true, Leventhal's conduct did not cause an injury within Alabama. The investors traveled to Georgia to discuss a Georgia investment opportunity involving Georgia property, with Leventhal, a Georgia resident. The mere fact that the investors were Alabama residents does not give an Alabama court personal jurisdiction over the defendant, Ronald S. Leventhal. Therefore, I dissent. [1] Butler Creek Center, Ltd., later became Cumberland Creek Center, Ltd. [2] The plaintiffs settled their claims against Martin Greene, and he is not a party to this appeal.

May 15, 1998

9244f67e-0774-486c-81ec-bae415d7fd21

DELTA CONST. CORP. v. Gooden

714 So. 2d 975

1970111

Alabama

Alabama Supreme Court

714 So. 2d 975 (1998) DELTA CONSTRUCTION CORPORATION v. Stephen C. GOODEN, d/b/a Gooden Heating and Air Conditioning Company. 1970111. Supreme Court of Alabama. April 24, 1998. *976 John D. Sours of Wasson, Sours & Harris, P.C., Atlanta, GA; and James K. Haygood, Jr., and Roger W. Pierce of Haygood, Cleveland, Pierce & Speakman, Auburn for appellant. J. Michael Williams, Sr., of Gullage & Williams, Auburn, for appellee. HOUSTON, Justice. The defendant, Delta Construction Corporation ("Delta"), appeals from the trial court's order denying its motion to compel arbitration of a dispute between it and the plaintiff, Stephen C. Gooden, d/b/a Gooden Heating and Air Conditioning Company.[1] We reverse and remand. This action arose out of the construction of a 2-story, 40-bed personal care facility in Lee County. Delta, a Georgia corporation, served as the general contractor, agreeing to provide the necessary labor and materials for the project. Gooden, an Alabama resident and one of a number of subcontractors hired by Delta, performed heating, ventilation, and air conditioning work, pursuant to a written contract with Delta. The facility is owned by Plantation South of Auburn Partnership ("Plantation South"), an Alabama general partnership; the property is named Plantation South of Auburn. After a controversy arose as to whether he was entitled to an additional $32,000 under his contract with Delta, Gooden filed an action in the Lee County Circuit Court on May 7, 1996, naming both Delta and Plantation South as defendants and seeking damages based on allegations of breach of contract, negligence, and fraud.[2] Gooden alleged that Delta had "negligently supervised the coordination of subcontractors in the performance of [the] work" and that that negligence had caused him "to suffer many delays and [to] incur large amounts of overtime." Gooden further alleged that Delta had refused to compensate him for additional costs that he had incurred, compensation that, he says, he was promised and entitled to under the terms of his contract. Delta filed a counterclaim, based on allegations of breach of contract, specifically allegations that Gooden had performed substandard work and had not completed the job. Delta moved to compel Gooden to arbitrate his claims, pursuant to the following broad-form predispute arbitration provision contained in the contract between Delta and Gooden: (Emphasis added.) The trial court denied Delta's motion by an order dated July 23, 1997, stating in pertinent part: Although several specific issues are presented, the basic question is whether the trial court erred in denying Delta's motion to compel arbitration. We conclude that it did. Acknowledging that on its face Ala.Code 1975, § 8-1-41(3), prohibits the specific enforcement of a predispute arbitration agreement, Delta contends that its contract with Gooden "involves" interstate commerce and, therefore, that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), preempts state law so as to render the agreement enforceable. Gooden contends, among other things, that his contract with Delta does not involve interstate commerce and, therefore, that the FAA is inapplicable, and that, even if the FAA is applicable, arbitration is not mandated because, he says, Delta has failed to comply with Ala.Code 1975, § 10-2B-15.02(a) commonly referred to as Alabama's "forum" or "door-closing" statute.[4] Failure to comply *978 with § 10-2B-15.02(a), Gooden asserts, renders the arbitration provision unenforceable by Delta. In response to this latter argument, Delta acknowledges that § 10-2B-15.02(a) (1997 cum. supp.) currently provides: However, Delta points out that this particular provision was not in effect on April 10, 1995, when it entered into its contract with Gooden. Section 10-2A-247 was repealed by Ala. Acts 1994, Act No. 94-245, p. 457, § 3, effective January 1, 1995. Act No. 94-245 repealed Chapter 2A, relating to business corporations, and replaced that chapter with Chapter 2B. Portions of Chapter 2B were subsequently repealed, and the current provisions were added by Ala. Acts 1995, Act No. 95-663, p. 1374, § 3, effective August 1, 1995. The statute that was in effect when Delta and Gooden entered into their contract provided: § 10-2B-15.02, Ala.Code 1975 (1994 repl. vol.). Delta argues that it has now qualified to do business in Alabama and, therefore, that it can enforce the arbitration provision in its contract. Citing National American Ins. Co. v. Boh Brothers Constr. Co., 700 So. 2d 1363 (Ala.1997), Delta argues, in the alternative, that application of this forumclosing provision would violate the Commerce Clause of the United States Constitution because, it says, it was at all times relevant to this case engaged in interstate commerce. It is well settled that the FAA preempts contrary state law (contrary law based on § 8-1-41(3) and public policy) and renders enforceable a predispute arbitration agreement contained in a contract that "involves" interstate commerce. Jim Burke Automotive, Inc. v. Beavers, 674 So. 2d 1260 (Ala.1995); Lopez v. Home Buyers Warranty Corp., 670 So. 2d 35 (Ala.1995). Recently, in Hurst v. Tony Moore Imports, Inc., 699 So. 2d 1249 (Ala.1997), four Justices, in a plurality decision, explained that United States Supreme Court precedent indicates that even an intrastate transaction "involves" interstate commerce if it has virtually any tangible effect on the generation of goods or services for interstate markets and their distribution to the consumer. 699 So. 2d at 1255, 1257.[5]*979 It also appears to be settled that a construction contract supplying both material and labor, such as the one involved here between Delta and Plantation South, is an example of the kind of contract that is considered intrastate, even though some of the material and labor is procured from outside the state. See Building Maintenance Personnel, Inc. v. International Shipbuilding, Inc., 621 So. 2d 1303 (Ala.1993); Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366, 1370 (Ala.1988), and the cases cited therein; see, also, 15 Am.Jur.2d Commerce § 39 (1976); 36 Am. Jur.2d Foreign Corporations §§ 348-351 (1968); Annot., Construction Work By Foreign Corporation As Doing Business for Purposes of Statute Requiring Foreign Corporation To Qualify As Condition of Access To Local Courts, 90 A.L.R.3d 937 (1979); Annot., What Constitutes Doing Business Within State for Purposes of State "Closed-Door" Statute Barring Unqualified or Unregistered Foreign Corporation from Local CourtsModern Cases, 88 A.L.R.4th 466 (1991). Delta's construction activities in the present case were significant and relatively lengthy, and they cannot be characterized as being in any way incidental to an interstate transaction. The record indicates that although Delta apparently does not maintain a permanent presence in Alabama, its construction of the Lee County facility took well over a year. During that time, Delta employees and subcontractors traveled to the construction site, transported a substantial amount of equipment and materials to the site, and maintained a trailer on the site for use as an on-site office. In addition, Delta hired a number of Alabama subcontractors for the job, and for at least part of the time the project was under construction Delta employed a project manager, who lived in Lee County during the construction. Delta also acquired an Alabama contractor's license, and it has now taken steps to qualify with the secretary of state to engage in the business of construction in Alabama. The United States Supreme Court held in Kansas City Structural Steel Co. v. Arkansas, 269 U.S. 148, 46 S. Ct. 59, 70 L. Ed. 204 (1925), that enforcement of the forum-closing statute in regard to lawsuits based on this kind of intrastate construction activity ordinarily does not run afoul of the federal constitution. Likewise, under facts not materially dissimilar to these, the United States Court of Appeals for the Eleventh Circuit held in S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507 (11th Cir.1990), cert. denied, 498 U.S. 1026, 111 S. Ct. 677, 112 L. Ed. 2d 669 (1991), that the operations of an unqualified foreign corporation (S & H) engaging in the construction business in Alabama "were sufficiently localized in Alabama to allow Alabama courts to enforce the forum-closing statute against S & H without offending the federal commerce clause." 906 F.2d at 1513. See, also, Arab African International Bank v. Epstein, 10 F.3d 168 (3d Cir.1993). Although this Court did hold in National American Ins. Co. v. Boh Brothers Constr. Co., supra, that Alabama's forum-closing provisions do not apply to a foreign corporation engaged in interstate commerce in this state, that holding is inapposite here because of the intrastate nature of Delta's activities. We conclude that Delta was not engaged in interstate commerce while it was fulfilling its construction contract with Plantation South and that the application of this state's forumclosing provision that was in effect when Delta and Gooden entered into their contract does not violate the Commerce Clause. However, our review of the record persuades us that Delta's contract with Gooden did nonetheless "involve" or have an "effect" on interstate commerce, so as to invoke Congress's regulatory power under the Commerce Clause. Earl T. Schoepf, Delta's vice-president, specifically testified by affidavit as follows: Although Gooden stated in an affidavit that Delta had hired a number of subcontractors from Alabama, Schoepf's affidavit testimony appears to be undisputed. Because the contract between Delta and Gooden involved or affected interstate commerce, the FAA applies. However, we hasten to point out that, as Gooden asserts, the FAA did not abrogate all state law defenses to a contract containing an arbitration provision. Section 2 of the FAA provides that a "written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." (Emphasis added.) In Allied-Bruce Terminix, the United States Supreme Court stated: 513 U.S. at 281, 115 S. Ct. at 843. (Emphasis added.) The record indicates that Delta did obtain a certificate of authority on May 19, 1997, to do business in Alabama and that it also paid the necessary admission tax, permit fee, and franchise tax. The record does not establish, however, that Delta has fully complied with § 10-2B-15.02(a) and (d), which, together, require that a previously nonqualified foreign corporation, as a prerequisite to enforcing a contract in this state, pay to the state "an amount equal to treble the amount of all fees and taxes that would have been imposed upon such corporation had it duly applied for and received a certificate of authority to transact business in this state as required by [law]." This statutory requirement is clear on its face. *981 The effect of all this is that although the FAA preempts application of § 8-1-41(3), the FAA does not relieve Delta of the ramifications of its failure to comply with Alabama's corporate qualification provisions. Stated differently, Delta cannot invoke the aid of this state's courts to enforce the arbitration provision, because of its noncompliance with Alabama law. This does not end our inquiry, however, for even though Delta cannot seek assistance from an Alabama court in enforcing the contract, neither the trial court nor this Court can permit Gooden to arbitrarily pick and choose between provisions in the contract that he is suing on. Gooden is seeking to recover damages based on allegations that, among other things, Delta breached its contract. Gooden is, therefore, relying on his contract with Delta to support his claim for damages. Recently, in Ex parte Dyess, 709 So. 2d 447 (Ala.1997), four Justices, in a plurality decision, held that as a general rule a person cannot merely pick and choose the provisions in a contract that he wants to apply. In that case, Dyess sought to recover under the uninsured motorist provisions of an insurance contract and at the same time sought to avoid the arbitration provision contained in the contract. The FAA was found to apply in that case because the contract involved interstate commerce. The opinion in Dyess noted that Dyess was attempting to arbitrarily pick and choose between the provisions in the contract that were advantageous to him and the one provision he thought was not the arbitration provision. In the present case, Gooden is attempting to do what Dyess was not permitted to doenforce that part of his contract that is advantageous to him, but not that part that he opposes, the arbitration provision. That arbitration provision states that "[a]ny controversy or claim between the contractor and the subcontractor arising out of or related to this subcontract, or the breach thereof, shall be settled by arbitration." (Emphasis added.) If Gooden wants to recover compensation under the contract, he may certainly seek to do so; however, he has no choice but to pursue his claim under the terms of that contractthrough arbitration rather than through litigation. Ex parte Dyess. For us to permit Gooden to arbitrarily cast aside the arbitration provision that he agreed to would amount to a policy decision by this Court that the contract is fair enough to enforce all of its basic terms relevant to compensation, but not fair enough to enforce its arbitration provision. Such a decision would clearly run afoul of the United States Supreme Court's holding in Allied-Bruce Terminix Cos. v. Dobson, supra. For the foregoing reasons, the trial court's order denying Delta's motion to compel arbitration is reversed and the cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, SEE, and LYONS, JJ., concur. COOK, J., concurs in the result. ALMON, SHORES, and KENNEDY, JJ., dissent. ALMON, Justice (dissenting). I respectfully dissent from the reversal of the circuit court's order denying Delta Construction's motion to compel specific performance of the arbitration clause in its contract with Gooden. The majority states: "Delta cannot invoke the aid of this state's courts to enforce the arbitration provision, because of its noncompliance with Alabama law. This does not end our inquiry, however...." 714 So. 2d at 981. I believe that it does end our inquiry. The majority seems to treat the arbitration provision as a self-executing provision. On the contrary, the question here is whether the arbitration clause should be specifically enforced at the instance of a party. Delta is disqualified from invoking it, and Gooden is not invoking it. In my view, the circuit court correctly denied Delta's motion to enforce the arbitration clause. KENNEDY, J., concurs. [1] An appeal is the proper procedure by which to challenge an interlocutory order denying a motion to compel arbitration. See Allied-Bruce Terminix Cos. v. Dobson, 684 So. 2d 102, 104-05 (Ala. 1995); Long v. Industrial Development Board of the Town of Vincent, 619 So. 2d 1387 (Ala. 1993); A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358 (Ala.1990). [2] Plantation South is not a party to this appeal. [3] The record indicates that the trial court had earlier denied Delta's motion by an order dated July 19, 1997. However, by an order dated July 21, 1997, the trial court withdrew its July 19 order so that it could consider a supplemental memorandum of law Delta had filed on May 30, 1997. In that memorandum, Delta stated, among other things, that it "[had] attempted to and [was] continuing to attempt to qualify to do business and become registered as a foreign corporation in Alabama." In its motion filed on August 22, 1997, to vacate the July 23 order, Delta stated, among other things, "that [it had] in fact qualified to do business in the State of Alabama, having registered to do so with the Office of the Secretary of State of Alabama on May 19, 1997, and having met all qualifications of the Alabama Department of Revenue on July 15, 1997, as shown in Exhibits `B' and `C' hereto." Exhibit "B" is a certificate from the secretary of state, dated August 12, 1997, stating that Delta had qualified to do business in Alabama on May 19, 1997. Exhibit "C" is a notification from the Department of Revenue, dated July 15, 1997, stating that Delta had qualified effective May 19, 1997, and acknowledging receipt of Delta's payment of the statutorily required admission tax ($81.17), see Ala.Code 1975, § 40-14-1; permit fee ($20.00), see § 40-14-21; and franchise tax ($36.50), see § 40-14-41. The notification was stamped "Received July 17, 1997." [4] We note Gooden's argument that his contract action is based on an alleged oral agreement with Deltaan agreement that Gooden says was not subject to an arbitration requirement. However, we can find nothing in the record to substantiate this argument. Gooden's contract with Delta provided in part: "The subcontractor may be ordered in writing by the contractor, without invalidating this subcontract, to make changes in the work within the general scope of this subcontract consisting of additions, deletions or other revisions, including those required by modifications to the prime contract issued subsequent to the execution of this agreement, the subcontract sum and the subcontract time being adjusted accordingly. The subcontractor, prior to the commencement of such changed or revised work, shall submit promptly to the contractor written copies of a claim for adjustment to the subcontract sum and subcontract time for such revised work in a manner consistent with requirements of the subcontract documents. "The subcontractor shall make claims promptly to the contractor for additional cost, extensions of time and damages for delays or other causes in accordance with the subcontract documents." It is a dispute over a $32,000 "change order" that forms the basis of this case. In other words, Gooden's contract claim emanates from, and is based on, his written contract with Delta. As noted, that contract contains an arbitration provision. [5] We note that, contrary to Gooden's assertion, the "contemplation of the parties" test that this Court adopted in Ex parte Warren, 548 So. 2d 157 (Ala. 1989), cert. denied, Jim Skinner Ford, Inc. v. Warren, 493 U.S. 998, 110 S. Ct. 554, 107 L. Ed. 2d 550 (1989), is no longer the test to be applied in determining the applicability of the FAA. That test was expressly rejected by the United States Supreme Court in Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). See Hurst, at 1251.

April 24, 1998

bb5764ee-ccc4-43d0-bbf6-0a38d45aac84

Ex Parte Lawyers Sur. Corp.

719 So. 2d 833

1961402

Alabama

Alabama Supreme Court

719 So. 2d 833 (1998) Ex parte LAWYERS SURETY CORPORATION. (Re LAWYERS SURETY CORPORATION v. Steve S. WHITEHEAD and Debra S. Whitehead, as successor conservators of the estates of Christopher R. Stanton and Ashley Lynn Stanton, minors). 1961402. Supreme Court of Alabama. March 13, 1998. *834 J. Michael Druhan, Jr., and Robert B. Stewart of Johnston, Wilkins & Druhan, L.L.P., Mobile, for petitioner. Ralph G. Holberg III of Holberg & Holberg, P.C., Mobile, for respondents. MADDOX, Justice. We granted certiorari review in this case primarily to review the holding of the Court of Civil Appeals, with one Judge dissenting, that the surety for a conservator was absolutely liable for conservatorship losses, even though some of those losses could have been attributable to the actions of a successor conservator. As explained below, we reverse the holding of the Court of Civil Appeals on this issue, but we affirm its decision regarding the award of attorney fees and the taxation of costs. The facts are adequately set out in the opinion of the Court of Civil Appeals,[1] and we state only those necessary to address the legal issue presented: Whether a conservator is absolutely liable for losses suffered by the beneficiaries of an estate, even though some of those losses could have been caused by the actions of a successor conservator. In February 1989, Floyd Stanton was appointed conservator of the estates of his two minor grandchildren, Christopher Stanton and Ashley Stanton, and he filed bonds in both cases, naming himself as principal and Lawyers Surety Corporation as surety. Both of the bonds stated that Stanton and Lawyers Surety were "held and firmly bound unto the Judge of [Probate] ... conditioned that the above bounden Principal [Floyd Stanton] who has been appointed conservator [of the estate of Christopher Stanton and Ashley Stanton] shall well and truly, faithfully perform all the duties required of him under said appointment." This case relates to Stanton's purchase of two parcels of land in September 1992, to which he took title in his own name rather than in the name of the conservatorship estate. The properties were located in Robertsdale, Alabama, one on Wilters Street and the other property in the Cardinal Hills subdivision. It is undisputed that Stanton used estate funds in purchasing these properties but took title to the properties in his own name and in his individual capacity. During the conservatorship, Stanton resigned as conservator and the probate court appointed Thomas Bryant, the general guardian and conservator of Mobile County, as successor conservator. Shortly thereafter, Steve and Debra Whitehead, the adoptive father and natural mother of Christopher and Ashley Stanton, filed petitions seeking an accounting from Stanton and seeking appointment as successor conservators over the two estates. The probate court did not immediately act on the Whiteheads' petitions, but set them *835 for a hearing. Before the hearing, Thomas Bryant requested authority to sell Christopher and Ashley's interests in the Robertsdale properties. With his request, Bryant included exhibits indicating that he could sell the Wilters Street property for $61,000 (which equaled the appraisal value of the property) and the Cardinal Hills property for $36,900 ($900 above the appraisal value of the property). On January 18, 1994, the probate court authorized Bryant to sell the properties. In July 1994, the Whiteheads requested that the probate court enter a conditional judgment against Lawyers Surety and Stanton based on Stanton's conduct as conservator. The Court entered such a judgment; ultimately, this conditional judgment was made final. Although agreeing that it was responsible for some of the losses suffered as a result of the malfeasance of its principal, Lawyers Surety appealed to the Court of Civil Appeals, arguing that it was not responsible for losses that could be attributable to the malfeasance or misfeasance of the successor conservator, Thomas Bryant. Lawyers Surety also asked the Court of Civil Appeals to reverse the judgment of the Mobile Probate Court awarding attorney fees and the fees of the guardians ad litem, arguing that under Alabama law it, as surety, was not required to pay such an award in this case. There is no dispute that Stanton breached his fiduciary duty to the estates of his grandchildren by taking title to the Robertsdale properties in his own name. See Restatement (Second) of Trusts, § 179 (1959) (stating that a trustee "is under a duty to the beneficiary to keep the trust property separate from his individual property" and to ensure "that the property is designated as property of the trust"). Consequently, Lawyers Surety faces at least some measure of liability in this case; the critical question is whether Lawyers Surety is absolutely liable for all the losses suffered by the estates. This Court has held that, as a general rule, suretyship is a contractual relationship. See City of Birmingham v. Trammell, 267 Ala. 245, 101 So. 2d 259 (1958); see also, 74 Am. Jur.2d Suretyship § 3 (1974). Consequently, we begin our inquiry into the liability of Lawyers Surety by reviewing the terms of the surety contract itself. The surety contract states that Lawyers Surety agreed to bind itself to the judge of probate of Mobile County on behalf of Stanton, as conservator of the estates of Christopher and Ashley Stanton. Although the contract indicates that Lawyers Surety agreed to be held liable for the acts of Stanton, it does not specify how this liability is to be affected by Stanton's resignation and the appointment of a successor conservator. In the absence of any direct guidance from the contract itself regarding the ultimate liability of the surety, we must turn to principles of law relating to the liability of a trustee for losses that flow from the trustee's breach of fiduciary duty. We first look at the Restatement (Second) of Trusts. Section 205 provides, in part: "If the trustee commits a breach of trust, he is chargeable with (a) any loss or depreciation in value of the trust estate resulting from the breach of trust...." Comment f to this section explains: (Emphasis added.) Comment f appears to recognize that a trustee should not be held chargeable with a loss to the trust estate in the absence of a causal connection between the trustee's conduct and the loss, unless, as a matter of policy, the trustee's behavior subjects it to absolute liability. The Court of Civil Appeals, with one Judge dissenting, held that, based on this Court's decisions in Chancellor v. Chancellor, 177 Ala. 44, 58 So. 423 (1912), and Barnes v. Clark, 227 Ala. 651, 151 So. 586 (1933), Stanton's surety, Lawyers Surety Corporation, was absolutely liable even though a portion of the losses could have been attributable to actions of a successor conservator. Specifically, the Court of Civil Appeals stated: 719 So. 2d at 830. In Chancellor v. Chancellor, this Court stated that "the authorities agree that a trustee who either invests or deposits trust money in his own name, without in some way designating it as trust property, will be responsible for any loss that may occur to the fund while so invested or deposited." Chancellor, 177 Ala. at 49, 58 So. at 424. Similarly, in Barnes v. Clark, this Court stated that, although a guardian may make temporary deposits of trust funds in a responsible bank without facing liability if the bank fails, 227 Ala. at 652, 151 So. at 587. Although Chancellor and Barnes, at first blush, appear to support the holding of the Court of Civil Appealsthat Lawyers Surety is absolutely liable because its principal took title to the trust property in his own namewe conclude that the Court of Civil Appeals interpreted these two cases too broadly. The circumstances of this case are sufficiently different from those of Chancellor and Barnes that we reach a different result in this case. Both Chancellor and Barnes involved trustees who had placed trust funds in a bank in the trustee's individual capacity, and the respective banks failed, through no fault of the trustee. The issue in both of those cases was whether the trustee should be held liable for the losses to the trust despite the fact that the trustee had not actually "caused" the loss. In short, the question was whether the failure of the bank was an intervening event sufficient to break the chain of causation. In those two cases, this Court, appropriately, held that the chain of causation had not been broken and that the trustee was obligated to bear the losses. It appears to us that the circumstances of this present case are different in one critical respect. As Judge Crawley noted in his dissent, neither Chancellor nor Barnes involved losses alleged to have been caused by a successor conservator; in this case, Bryant, the successor conservator, owed the same fiduciary duty to the estates as did the predecessor conservator, Stanton. In short, the critical question in Chancellor and Barnes was whether a trustee should be held liable for losses resulting from the commingling of *837 trust funds with the trustee's own in a bank that failed, without regard to the trustee's good faith and sound judgment. Here, the question is whether an initial trustee is absolutely liable, even if a portion of the loss was caused by the malfeasance or misfeasance of a successor conservator. The Whiteheads argue that "[Lawyer's Surety], instead of passive participation while Bryant conducted the sale of the properties, could have taken a more active and critical role," and that "[i]t also could have satisfied the liability and pursued its right to be subrogated (§ 8-3-2 et seq., Ala.Code 1975, as amended) to the Estates' rights in the real property, and then sold the properties for itself, in a manner to minimize its losses." However, we conclude, as a matter of policy, that Alabama law does not impose absolute liability on an initial conservator where there are two or more fiduciaries and, as is arguably the case here, the losses suffered were attributable, at least in part, to breaches by more than one of the fiduciaries. It seems inequitable to assign all of the liability for the losses to the first fiduciary and his surety, when the causal connection between the losses and the conduct of each fiduciary can be apportioned. Based on the foregoing, we affirm the judgment of the Court of Civil Appeals insofar as it relates to the award of attorney fees and guardian ad litem fees, but we reverse that judgment insofar as it imposes absolute liability on Lawyers Surety. We remand the cause for the Court of Civil Appeals to remand for further proceedings consistent with this opinion. We authorize the probate court, on remand, to apportion the attorney fees and the guardian ad litem fees between Lawyers Surety and Thomas Bryant, if Bryant is found to have partly caused the estates to incur these expenses and if the court determines that such apportionment is appropriate. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and HOUSTON, KENNEDY, COOK, BUTTS, and SEE, JJ., concur. [1] See Lawyers Surety Corp. v. Whitehead, 719 So. 2d 824, 826 (Ala.Civ.App.1997).

March 13, 1998

72303b36-1f4a-458f-bf9f-6888046a5ee3

Blue Cross and Blue Shield v. Nielsen

714 So. 2d 293

1961757

Alabama

Alabama Supreme Court

714 So. 2d 293 (1998) BLUE CROSS AND BLUE SHIELD OF ALABAMA, INC. v. John O. NIELSEN, D.M.D. 1961757. Supreme Court of Alabama. April 17, 1998. *294 Cavender C. Kimble and Leigh Anne Hodge of Balch & Bingham, L.L.P., Birmingham, for Blue Cross and Blue Shield of Alabama, Inc. William M. Slaughter and Richard H. Walston of Haskell, Slaughter & Young, L.L.C., Birmingham, for John O. Neilsen, D.M.D. Bill Pryor, atty gen.; Jeffery H. Long, asst. atty. gen.; and Michael A. Bownes, general counsel, Department of Insurance, for amicus curiae Office of the Attorney General. MADDOX, Justice. The United States Court of Appeals for the Eleventh Circuit has certified to this Court questions regarding the interpretation of Alabama laws regulating companies that offer health care benefits and regarding whether certain laws designed to protect a patient's right to select his or her doctor, dentist, or pharmacist apply to a company like Blue Cross and Blue Shield of Alabama, Inc. ("Blue Cross"), which is organized under the provisions of a specific state statute. The specific questions certified are as follows: The facts, as provided by the Court of Appeals, are as follows (the Court of Appeals certification to this Court is published; see Blue Cross & Blue Shield of Alabama, Inc., 116 F.3d 1406,1408-09 (11th Cir.1997)): 1"Section 10-4-100 [1994 repl. vol.] provides: "`Any nonstock corporations organized not for profit for the purpose of establishing, maintaining and operating a health care service plan under which health services are furnished to such of the public who become subscribers to such plan pursuant to contracts are authorized and shall be governed by the provisions of this article.' 2"Blue Cross informed the Court of this fact at oral argument. 3"In July 1996, the United States Census Bureau estimated Alabama's population at 4,273,084. See U.S. Bureau of the Census, Estimates of the Population of States: Annual Time Series, July 1, 1990 to July 1, 1996 (released December 30, 1996)...." Blue Cross & Blue Shield of Alabama v. Nielsen, 116 F.3d 1406, 1408-09 (11th Cir. 1997). The first question presented could be restated as follows: Did the Legislature, when it adopted acts permitting patients to choose their medical-services providers, intend to exempt Blue Cross from the coverage of those acts? We conclude that Blue Cross is exempted, by the provisions of §§ 10-4-115 and 27-1-4, Ala.Code 1975, from the coverage of what the Court of Appeals has referred to as the Alabama Provider Acts. Section 10-4-115 (1994 repl. vol.), provides: Section 27-1-4, Ala.Code 1975 (1986 repl. vol.), a portion of Title 27 (which constitutes the "Alabama Insurance Code" and in which the Alabama Provider Acts appear), states: To decide whether § 10-4-115 and § 27-1-4 exempt Blue Cross from the Alabama Provider Acts, we must examine the legislative intent behind these statutes. In discussing statutory construction this Court has stated: Ex parte Holladay, 466 So. 2d 956, 960 (Ala. 1985). In IMED Corp. v. Systems Engineering Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992), this Court further stated with regard to statutory construction: Based upon our reading of these two Code provisions, and applying the principles of statutory construction heretofore adopted by this Court, we conclude that the language of § 10-4-115 plainly and unambiguously states that corporations formed under § 10-4-110 et seq., as Blue Cross was, are not regulated by the insurance laws of this State unless § 10-4-110 et seq. are expressly amended to apply such laws. This interpretation is also supported by the wording of § 27-1-4, which *297 expressly states that laws appearing in the Alabama Insurance Code (Title 27) do not apply to companies, like Blue Cross, that are organized under the provisions of § 10-4-100, unless § 10-4-100 et seq. expressly provide that such laws apply. It is a familiar principle of statutory interpretation that the Legislature, in enacting new legislation, is presumed to know the existing law. See Ex parte Louisville & N.R.R., 398 So. 2d 291, 296 (Ala.1981). Applying that principle to this case, we can presume that if the Legislature had intended for § 27-1-19 and §§ 27-19A-1 to -11, and §§ 27-45-1 to -9 to apply to companies like Blue Cross, it could have eliminated any question by expressly amending § 10-4-100 et seq. to specify that those statutes would, in fact, apply. Based on the foregoing, we conclude that Blue Cross is exempted from the Alabama Provider Acts by the provisions of § 10-4-115 and § 27-1-4. The Court of Appeals' first question is answered in the affirmative. Having answered the first question in the affirmative, we must now determine whether the exemption granted by § 10-4-115 and § 27-1-4 to Blue Cross and to others similarly situated, violates provisions of the Alabama Constitution, as claimed by those parties the Court of Appeals refers to as "the providers." The providers contend first that these sections violate the Alabama Constitution because, they argue, § 10-1-115 imposes an additional requirement for the enactment of legislation and that requirement conflicts with the legislative procedure established by the Alabama Constitution of 1901. To support their contention, they cite Tayloe v. Davis, 212 Ala. 282, 102 So. 433 (1924), in which this Court considered a challenge to the validity of a statute requiring that amendments to the budget bill be made by a two-thirds majority of both houses. This Court held that that statute violated the Alabama Constitution. The providers contend that § 10-4-115, like the statute in Tayloe, adds additional requirements for the passage of legislation not set forth in the Constitution, We disagree. Section 10-4-115 does not require a specific majority of the Legislature, as the statute involved in Tayloe did. Section 10-4-115 merely requires that if the Legislature is intending to change the provisions of § 10-4-100, then the legislation that makes that change must explicitly show that intention; this requirement is consistent with the requirements of § 45 of the Constitution for providing notice of the purposes of an Act. The providers also argue that these statutes violate Article IV, § 108, of the Alabama Constitution. That section provides: The providers contend that Blue Cross, although organized under the provisions of § 10-4-115, is an insurance company, and that that statute gives Blue Cross protection from legislation that affects other insurance companies, and this violates the Constitution. We cannot accept this argument. Admittedly, Blue Cross, because it is organized under the provisions of § 10-4-100, is exempt from the operation of certain laws that regulate insurance companies, but the law does not afford Blue Cross any benefits that would not be provided to any other company organized under the provisions of § 10-4-100. We cannot hold that § 10-4-115 or § 27-1-4 violates Article IV, § 108, of the Alabama Constitution, because these sections apply not only to Blue Cross, but also to any other entity organized under the provisions of § 10-4-100. Because we cannot hold that § 10-4-115 and § 27-1-4 violate the Alabama Constitution, the answer to the second question is in the negative. QUESTIONS ANSWERED. HOOPER, C.J., and SHORES, HOUSTON, COOK, and SEE, JJ., concur.

April 17, 1998

37946eb4-7b24-4aef-8dbc-75cc361be4fc

Taylor v. Cox

710 So. 2d 406

1960578, 1960786

Alabama

Alabama Supreme Court

710 So. 2d 406 (1998) Regina R. TAYLOR v. John C. COX, Jr. John C. COX, Jr. v. Regina R. TAYLOR. 1960578, 1960786. Supreme Court of Alabama. February 13, 1998. *407 Collins Pettaway, Jr., of Chestnut, Sanders, Sanders & Pettaway, P.C., Selma, for appellant/cross appellee Taylor. David A. Simon of Wills & Simon, Bay Minette, for appellee/cross appellant. BUTTS, Justice. These appeals stem from a contest of an election for the position of city council member for district four in Bay Minette. In the August 27, 1996, election, the incumbent, John C. Cox, Jr., was challenged by Regina R. Taylor. Cox was determined to have won the election; that result was contested by Taylor, who disputed the validity of several absentee ballots cast for Cox. The trial court determined that Cox had received 109 valid nonabsentee votes and that Taylor had received 112 valid nonabsentee votes.[1] The trial court also determined that Cox had received four valid absentee votes,[2] for a total of 113 votes, one more than Taylor. The trial court ruled that although the four absentee voters had not themselves signed the application form for the absentee ballots, as Taylor argued was required by Ala.Code 1975, § 17-10-4, the absentee votes were valid and Cox had won the election. Taylor appealed.[3] The decisive issue is strictly a question of law; thus, the de novo standard of review applies to that issue. We are asked to determine the meaning of § 17-10-4, Ala. Code 1975 (Cum.Supp.1997), specifically the portion thereof emphasized below: (As amended by Act No. 96-885, § 2, Ala. Acts 1996, effective August 2, 1996.) (Emphasis added.) The signatures of the voters on the four absentee ballots at issue were properly notarized or witnessed, as required by § 17-10-17. Taylor challenges the absentee ballots strictly because the voters did not themselves sign the application forms for the absentee ballots, but had a designated agent sign the application form for them. Thus, we must determine whether § 17-10-4 requires that in all instances absentee ballot application forms must be signed by the voters themselves. In other words, is an otherwise valid absentee vote made invalid by the fact *408 that the absentee voter did not himself or herself sign the application form? In interpreting § 17-10-4, we have kept in mind the first rule of statutory construction: to give effect to the intent of the legislature. Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909 (Ala.1994); Beavers v. County of Walker, 645 So. 2d 1365 (Ala. 1994). If possible, a court should gather the intent of the legislature from the plain language of the statute. BP Exploration & Oil, Inc. v. Hopkins, 678 So. 2d 1052 (Ala.1996); Beavers, supra. After reviewing the text of § 17-10-4, we find its language and meaning clear. The wording "shall be manually signed by the applicant" clearly means that the applicant for an absentee ballot must himself or herself sign the application for the absentee ballot form. The record does not indicate that any voter whose ballot was challenged by Taylor because he or she did not personally sign the absentee ballot application was physically unable to sign the application.[4] Although § 17-10-4 makes no exception or accommodation for a person physically incapable of making his or her own signature, such as a quadriplegic, or for one who is otherwise similarly infirm, it is not this Court's place to question the wisdom of the legislature. However, because it appears that § 17-10-4 has the effect of depriving certain persons who are incapable of manually signing an absentee ballot application form of their right to vote, we suggest that the legislature reconsider the wording of this statute. Thus, the trial court erred in holding that the absentee ballots were valid even though the applications for the ballots had not been manually signed by the applicants. We reverse the judgment of the trial court, which held that Cox had received four valid absentee ballots, and we remand this cause for further proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX and HOUSTON, JJ., concur. SEE, J., concurs specially. COOK, J., dissents. SEE, Justice (concurring specially). I concur with the majority opinion, and I write specially to address the importance of upholding the Legislature's procedural protections of the voting process. This simple election case concerns a principle at the very heart of the democratic processthe integrity of elections. Voters elect representatives to perform the legislative function of setting public policy through the enactment of statutes. See Ala. Const.1901, § 46 (providing for the election of legislators); § 42 (investing the Legislature with the legislative power). It is the province of the courts to interpret those statutes to effect the intent of the people's elected representatives. See Ala. Const.1901, § 42 (investing the Supreme Court and other courts with the judicial power); id. at amend. 328, § 6.01(a) (investing the Unified Judicial System with the judicial power). Nowhere is this fundamental principle of more obvious consequence than in the interpretation of statutes governing the election of those who represent the people. Section 17-10-4, Ala.Code 1975, provides in pertinent part: "Any applicant may receive assistance in filling out the application as he or she desires, but each application shall be manually signed by the applicant...." (Emphasis added.) The simple words "shall be manually signed by the applicant" plainly mean that the applicant himself must sign the application for the absentee ballot. The applications in this case were not manually signed by the applicants.[5] Therefore, *409 the applications are illegal and the ballots obtained thereby should not be counted.[6] Justice Cook, in his dissent, 710 So. 2d at 410, emphasizes that "it is the ultimate act... of casting a fraudulent ballot" that is the evil. He concludes that the plain meaning of § 17-10-4, which regulates the intermediate step of obtaining the absentee ballot by signing an application, may therefore be ignored. Id. Yet, such an intermediate step can facilitate the ultimate fraud. For example, in Williams v. Lide, 628 So. 2d 531, 537 (Ala. 1993), this Court described a use of applications to fraudulently obtain and cast absentee ballots: The Legislature is not restricted to regulating only the final step in an illegal scheme, but may regulate intermediate steps, steps seemingly innocent in themselves, to combat a danger to the citizenry.[8] The danger of allowing absentee ballots to be procured by political "agents" for subsequent fraudulent casting can be largely eliminated by requiring that each absentee voter manually sign the application for his individual ballot, thus limiting the use of applications, and ballots, to one per voter. The Legislature, by enacting § 17-10-4, made the policy choice to limit the use of applications to one per voter. Today, this Court respects the Legislature's policy choice, and I concur. COOK, Justice (dissenting). It is undisputed that the four absentee ballots actually cast for the appellee John Cox, Jr., and counted by the trial court, were either witnessed by two persons or were notarized. See Ala.Code 1975, § 17-10-7. The majority's analysis of Ala.Code 1975, § 17-10-4, violates well-established principles of statutory construction. Therefore, I respectfully dissent. Section 17-10-4 provides in pertinent part: (Emphasis added.) The majority nullifies every ballot obtained by an application bearing the signature of a designee. Nowhere has the legislature suggested such a result. Significantly, § 17-10-7 expressly and specifically nullifies only ballots that are cast without two witnesses or notarization. Specifically, by Act No. 96-885, 1996 Ala. Acts, p. 1699, the legislature substantially strengthened the requirements of § 17-10-7 by adding the following language to the affidavit form: (Emphasis added.) In that same act, the legislature also made certain changes to Ala. Code 1975, § 17-10-4, the section involved in this case. None of those changes, however, were directed at the practice of securing an absentee ballot application by the authorized signature of one other than the voter. More specifically, the legislature did not change a word of the language at issue in this case, namely: "Any applicant may receive assistance in filling out the application as he or she desires, but each application shall be manually signed by the applicant...." Had the legislature discerned any such problems with § 17-10-4 as are posited by the majority of this Court, it had before it, when it adopted Act No. 96-885, a grand opportunity at that time to address them. It did not do so. Section 17-10-7 does not provide that ballots obtained over the signature of a designee are to be rejected. Clearly, had the legislature intended that result, it knew how to say so. It is not the function of the judiciary to rewrite statutes. Moreover, § 17-10-17(a) provides: (Emphasis added.) As the emphasized provisions illustrate, it is the ultimate act, that is, the act of actually casting a fraudulent ballot, that is the object of the restrictions in Chapter 10 of Title 17 and of § 17-10-4 in particular. No illegality can materialize until, and unless, the ballots are actually cast in a fraudulent manner. Certainly, there have been no allegations that the ballots at issue in this case were fraudulently cast. For these reasons, I respectfully dissent. [1] Cox received 111 machine votes and Taylor received 113 machine votes. The trial court determined that certain of the votes were illegal and could not be counted, thus reducing the nonabsentee vote count to 109 for Cox and 112 for Taylor. [2] The trial court found that one absentee vote was invalid because the voter's signature on the absentee ballot had not been notarized or witnessed, as required by Ala.Code 1975, § 17-10-7. [3] Taylor's appeal and Cox's cross appeal raise several issues, but we consider the decisive issue to be the validity of four absentee ballots. We need not discuss the other issues the parties have raised. [4] The voters whose absentee ballots are challenged because they did not themselves sign the absentee ballot application are a 99-year-old man; his 90-year-old wife, who is bedridden; a long-distance truck driver; and a full-time college student. [5] In this case, the applicants were capable of signing the applications, as demonstrated by their signing of the affidavits attached to the ballots. Thus, I need not address the issue of physical incapacity to sign an application. [6] The 1996 amendment of § 17-10-7, Act No. 96-885, 1996 Ala. Acts, p. 1699, reinforced that section's two-witnesses-or-notarization requirement without adding similar reinforcing language to § 17-10-4 regarding applications for absentee ballots. Justice Cook interprets this amendment to mean that, notwithstanding the plain language of § 17-10-4, the Legislature intended for applications not to be manually signed by the applicant. This interpretation ignores the history that gave rise to the amendment of § 17-10-7. See Roe v. Mobile County Appt. Bd., 676 So. 2d 1206, 1226 (Ala.1995) (holding that absentee ballots could be counted even if they failed to comply with the two-witnesses-or-notarization requirement of § 17-10-7). In my view, far from approving this Court's holding in Roe, Act No. 96-885 was an express disapproval of judicial departures from the plain meaning of election statutes. [7] The fraudulent use of absentee ballot applications has also been noted by other courts. See, e.g., Ingber v. Enzor, 664 F. Supp. 814 (S.D.N.Y. 1987) (noting that a municipal official had obtained his office through the use of false applications for absentee ballots), aff'd, 841 F.2d 450 (2d Cir.1988). [8] For example, the Legislature may regulate various aspects of driving automobiles in addition to imposing severe punishment for criminally negligent homicide caused by drunk driving. See, e.g., Ala.Code 1975, § 32-6-1 (regulating the driving of automobiles by requiring drivers to obtain licenses); § 32-5A-191 (regulating the driving of automobiles by imposing escalating punishments for driving while under the influence of alcohol); § 13A-6-4(c) (regulating the driving of automobiles by imposing class C felony punishment for killing another person with a vehicle while under the influence of alcohol).

February 13, 1998

fedbf309-0671-4f5d-86d3-a92115a2e4fd

Southeast Enterprises, Inc. v. Byrd

720 So. 2d 873

1960484

Alabama

Alabama Supreme Court

720 So. 2d 873 (1998) SOUTHEAST ENTERPRISES, INC. v. Jerry H. BYRD, et al. 1960484. Supreme Court of Alabama. February 13, 1998. Rehearing Denied August 21, 1998. Robert H. Brogden, Ozark, for appellant. James R. Fuqua and Bill Kominos of Fuqua & Kominos, Ozark, for appellees. SEE, Justice. Southeast Enterprises, Inc. ("SEI"), a junior mortgagee, sought to redeem a tract of real property from Jerry and Sharron Byrd, who had purchased the property at a foreclosure sale. In computing the redemption price to be paid by SEI, the trial court began *874 with the purchase price the Byrds had paid; then it (1) added the balance of an outstanding higher-priority mortgage; (2) computed interest on the entire redemption price at the rate of 12%; (3) added permanent improvements made by the Byrdsat cost, instead of value; and (4) denied SEI any credit for the post-redemption rental value of the property or for timber cut by the Byrds. We affirm the trial court's inclusion of the higher-priority mortgage in the redemption price; reverse its computation of interest, its valuation of the permanent improvements, and its denial of credits for timber and rent; and remand. The real estate consists of over 800 acres of farmland that was at one time owned by Hubert Prestwood, Jr., subject to a first mortgage held by the Farmers Home Administration ("FmHA"), second mortgages held by Hubert Prestwood, Sr., and India Prestwood, and two judgment liens. When FmHA foreclosed, the debt on the property exceeded $1 million. The Byrds purchased the property at a foreclosure sale for $480,000, paying $79,000 from their own funds and $401,000 obtained from a note secured by a mortgage to Colonial Bank. SEI acquired assignments of at least one second mortgage and one or more judgment liens, thus obtaining a statutory right to redeem the property from the Byrds. See Ala.Code 1975, § 6-5-248. SEI gave notice of redemption to the Byrds and demanded a written statement of the debt and all lawful charges claimed by the Byrds. See Ala.Code 1975, § 6-5-252. The Byrds provided SEI with the written statement, listing numerous lawful charges. In October 1995, SEI filed a complaint seeking redemption, contesting several of the charges listed on the Byrds' statement. The trial court entered a judgment on September 13, 1996, computing the redemption price as follows: SEI moved for a new trial. The trial court denied its motion, and SEI appealed.[1] SEI first contends that it is not required to include in the redemption price the higher-priority mortgage owned by FmHA. Specifically, SEI argues that Ala.Code 1975, § 6-5-253, does not require it to pay a higher-priority mortgage that is not owned by the purchasers at the foreclosure sale, the Byrds. See St. Clair Indus., Inc. v. Harmon's Pipe & Fitting Co., 282 Ala. 466, 213 So. 2d 201 (1968); Fonde v. Lins, 259 Ala. 553, 67 So. 2d 834 (1953); Stewart v. Stephenson, 243 Ala. 329, 10 So. 2d 159 (1942); Estes v. Johnson, 234 Ala. 191, 174 So. 632 (1937). We disagree. After real property is sold at a foreclosure sale to pay the encumbrances on it, various parties may redeem that property from the purchaser by paying the appropriate redemption price. Ala.Code 1975, § 6-5-248. The redemption price includes taxes, the value of improvements, and certain outstanding encumbrances. Ala.Code 1975, § 6-5-253. The cases cited by SEI[2] interpreted the language of former § 6-5-235: (Emphasis added.) This language plainly required the redeeming party to pay only those encumbrances "paid or owned" by the purchaser. In 1988, however, the Legislature repealed § 6-5-235 and replaced it with § 6-5-253, which, in subsection (a), provides that the redemption price now includes: (Emphasis added.) See Ala. Acts 1998, Act No. 88-441, § 7, p. 647; see also Harry Cohen, The Statutory Right of Redemption in Alabama: A New Statute Is on the Horizon, 39 Ala. L.Rev. 131 (1987) (discussing the then-proposed bill that was later adopted as Act No. 88-441). Unlike its predecessor, § 6-5-253(a)(4) divides encumbrances into two categories: (1) those encumbrances "paid or owned" by the purchaser; and (2) all encumbrances of higher priority. The change in language effected by the 1988 amendment reflects the Legislature's intent to change the computation of the statutory redemption price from that described in St. Clair Indus., Fonde, Stewart, and Estes, supra. The change added to the redemption price paid by junior creditors "all" higher-priority encumbrances, whether or not they are owned by the purchaser. See Ex parte Sizemore, 605 So. 2d 1221, 1227 (Ala.1992) ("Having examined the statute [as it read both before and after] the 1986 amendment, we conclude that the legislature could not have been merely reiterating the law as it existed [before the amendment] without meaning to change the interpretations given to the [preamendment statute.]"). The change effected by § 6-5-253(a)(4)'s inclusion of "all" higher-priority encumbrances in the redemption price was clearly intended to prevent financial windfalls to junior creditors. See City of Birmingham v. Hendrix, 257 Ala. 300, 307, 58 So. 2d 626, 633-34 (1952) (stating that a court may ascertain the intent of a statute or of a provision therein by looking to the law as it existed before the statute was enacted). By requiring the redeeming creditor to pay off the first mortgage, § 6-5-253(a)(4) prevents SEI, the junior creditor, from vaulting over the holder of the first mortgage, FmHA, to become the possessor of the property. Thus, under § 6-5-253(a)(4), the second mortgagee cannot obtain an interest in the collateral that is superior to that of the first mortgagee without compensating the first mortgagee for the first mortgagee's interest.[3] The trial court correctly included the higher-priority mortgage in the redemption price. SEI makes two arguments regarding the 12% interest rate used by the trial court with respect to the purchase price and the FmHA mortgage: First, SEI cites Durr Drug Co. v. Acree, 241 Ala. 391, 2 So. 2d 903 (1941), for the proposition that the trial court *876 should have applied a 12% interest rate to the $79,000 portion of the Byrds' purchase price that they funded with their own cash, for the period beginning at the date of the foreclosure sale and ending at the filing of the complaint for redemption, and a 6% rate thereafter. Second, SEI cites Lytle v. Robertson, 233 Ala. 161, 170 So. 484 (1936), for the proposition that the trial court should have applied the contract rate of interest, instead of the 12% fixed legal rate, to the $401,000 portion of the redemption price that the Byrds had borrowed and to the $476,698.71 balance due on the note secured by the FmHA mortgage. SEI's reliance on Durr Drug for the proposition that one interest rate should be applied for the period before the filing of the complaint and another for the period thereafter is misplaced. In Durr Drug, this Court interpreted a redemption statute materially different from § 6-5-253(a). That earlier redemption statute provided for a 10% statutory rate of interest on the purchase price for the period up until tender or the filing of the complaint for redemption, and it provided for the legal rate (namely, 6% or the contract rate) to apply to any unpaid portion of the purchase pricea "lawful charge"for the period thereafter. See Ala.Code 1923, § 10145;[4] § 8563 (providing a fixed legal rate of interest of 6% for noncontract debts and a contract rate for contract debts); Morrison v. Formby, 191 Ala. 104, 108, 67 So. 668, 669 (1914) (stating that the filing of a complaint for redemption is equivalent to a tender of the purchase price); Gay v. Taylor, 214 Ala. 659, 660, 108 So. 853, 854 (1926) (the term "lawful charges" includes any balance due at final judgment). Unlike its statutory predecessor, § 6-5-253(a) does not provide two different interest rates for the purchase price and the lawful charges: (Emphasis added.) See Ala.Code 1975, § 8-8-10 (providing a 12% rate on noncontract debts and a contract rate on contract debts). Thus, the trial court correctly refused to drop the post-complaint interest rate to the 6% rate applicable to lawful charges under prior law. SEI's reliance on Lytle, however, to support an application of the lower contract rate of interest to the portion of the redemption price derived from notes with contract rates of interest is well founded. Lytle interpreted a statute not materially different from the currently applicable § 8-8-10. See Lytle, 233 Ala. at 164, 170 So. at 486 ("In this state, one seeking redemption from under a mortgage must pay legal interest, or the rate fixed by the contract if it be less than the legal rate."). Lytle dealt with Ala.Code 1923, § 8563, which provided that the "legal rate of interest" was either the rate provided by a contract, or, if there was no contract rate, a 6% fixed rate.[5] Thus, if a portion of the redemption price is composed of a debt for which the interest rate is fixed by contract (e.g., a note), the contract rate would apply in lieu of the fixed legal rate. Similarly, § 8-8-10, to which § 6-5-253(a) refers, provides: (Emphasis added.) This language provides for application of the contract rate or, if there is no contract rate, a fixed rate. When used to compute a redemption price, § 8-8-10, like former § 8563, prevents windfalls by providing mortgagees only the amount of interest they contracted for with the mortgagor, not a higher fixed rate. Without clear direction from the Legislature, we will not provide a bonus of interest in excess of that contracted for by the mortgagees. On remand, the trial court should apply the contract rate of interest, not the 12% rate, to those portions of the redemption price composed of debts for which the interest rate is set by contract.[6] SEI further argues that the trial court erred in determining the amount it would have to pay for permanent improvements under § 6-5-253(a)(1). Citing Wallace v. Beasley, 439 So. 2d 133 (Ala.1983), SEI contends that the trial court erred by simply accepting the Byrds' cost estimates for various permanent improvement projects without determining the reasonable value of those improvements. The Byrds responded by asserting that the ore tenus standard requires this Court to affirm the trial court's ruling unless that ruling was plainly and palpably wrong. The ore tenus standard of review is not applicable where a trial court has misapplied the law to the facts. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So. 2d 415 (Ala.1994). The law of Alabama provides that it is the reasonable value of the permanent improvements to the land, not their cost, that must be paid by the redeeming party. Ala.Code 1975, § 6-5-254(a); Wallace, 439 So.2d at 135-36; Ladd v. Parmer, 278 Ala. 435, 178 So. 2d 829 (Ala. 1965); Durr Drug, 241 Ala. at 395, 2 So. 2d at 906. The record indicates that the trial court did not obtain evidence of the reasonable value of the permanent improvements, and thus misapplied the law to the facts by including in the redemption price the cost of the permanent improvements instead of their reasonable value.[7] On remand, the trial court should assess each permanent improvement and include the reasonable value thereof in the redemption price. SEI also argues that the trial court erred in not giving it credit against the cost of redemption for the rental value of the land after the date of its complaint for redemption, and in not giving it credit for timber that the Byrds cut. With respect to the rental value of the land, § 6-5-253(c) provides: (Emphasis added.) The record indicates that the Byrds grew and harvested crops on the *878 property after the date on which the complaint for redemption was filed. See Dicie v. Morris, 285 Ala. 650, 654, 235 So. 2d 796, 798 (1970) (stating that the date the complaint for redemption was filed serves as the date of redemption). The Byrds had the right to grow and harvest those crops, but § 6-5-253(c) requires that they pay SEI a reasonable rent for the use of the land for the time after the date of redemption.[8] Thus, the trial court erred to the extent it did not provide SEI a credit against the redemption price for the post-redemption rental value of the land. SEI also presented evidence that the Byrds cut and sold some amount of timber in July 1995 and that they destroyed other timber while clearing a portion of the land for farming. Section 6-5-253 provides, in pertinent part: (Emphasis added). Because all the timber, whether sold or destroyed, was cut, or otherwise removed from the land, "during the statutory period of redemption," SEI was entitled to a credit therefor under § 6-5-253(d)(1). The trial court erred to the extent it failed to determine the value of the timber the Byrds cut and to give SEI a credit for that sum against the redemption price. In sum, we deny the motion to dismiss the appeal; we affirm that portion of the trial court's judgment that included the higher-priority mortgage in the redemption price; we reverse those portions of the judgment computing interest, valuing permanent improvements at cost and not granting credit for rental value and timber cut or destroyed; and we remand this cause for further proceedings consistent with this opinion. MOTION TO DISMISS APPEAL DENIED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and MADDOX, ALMON, HOUSTON, and KENNEDY, JJ., concur. BUTTS, J., concurs in part and dissents in part. BUTTS, Justice (concurring in part and dissenting in part). I concur with much of the majority opinion; however, I dissent from the majority's affirmance of the circuit court's ruling that in order to redeem the property at issue SEI must pay the deficiency balance remaining on the FmHA mortgage. I believe the majority has interpreted Ala.Code 1975, § 6-5-253(a)(4), incorrectly. Section 6-5-253 states, in relevant part: (Emphasis added.) This Court has not previously answered the question whether § 6-5-253(a)(4) requires that when the person seeking redemption is a "judgment creditor or junior mortgagee or any transferee thereof," that person must in every case pay the deficiency balance remaining on any recorded judgments, mortgages, or liens having a higher priority. In construing § -253(a)(4), this Court, as it is in regard to any other statute, is required to keep in mind the first rule of statutory construction, that the intent of the legislature should be given effect. Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909 (Ala. 1994); Beavers v. County of Walker, 645 So. 2d 1365 (Ala.1994). The intent of the Legislature can be gleaned from the language of the statute, the reason and necessity for the act, and the goals sought to be obtained. Hines v. Riverside Chevrolet-Olds; McGuire Oil Co. v. Mapco, Inc., 612 So. 2d 417 (Ala.1992). Although the second part of the first sentence of § -253(a)(4) contains additional language not found in the statutory predecessors in the 1923 and 1940 Codes or in the 1958 recompilation, the Legislature's intent has always been for the redeeming party to have to pay the purchaser at the foreclosure sale only for those valid liens or encumbrances paid or owned by the purchaser. See St. Clair Indus., Inc. v. Harmon's Pipe & Fitting Co., 282 Ala. 466, 213 So. 2d 201 (1968); Fonde v. Lins, 259 Ala. 553, 67 So. 2d 834 (1953); Stewart v. Stephenson, 243 Ala. 329, 10 So. 2d 159 (1942); Estes v. Johnson, 234 Ala. 191, 174 So. 632 (1937). I find no indication that in regard to the long-standing rule the Legislature intended to create an exception relating only to redemptioners who are judgment creditors or junior mortgagees and to require them to pay all judgments, liens, and mortgages with superior priority regardless of whether the foreclosure sale purchaser owns them or not. In interpreting § -253(a)(4), the majority has drastically changed the law regarding the redemption of real estate. The comment to § -253 evidences no such intent by the Legislature to change the law; rather, the comment indicates that the meaning of § -253(a)(4) was not changed. The majority believes that the Legislature intended to provide protection to lienholders who have a higher priority than the redeeming junior creditor, lienholder, or mortgagee. However, no such protection is necessary. A higher priority lienholder has always had the right to purchase the property at the foreclosure sale. Thereafter, any redemptioner would have to pay the entire amount of the lien, because the lien is owned by the purchaser at the foreclosure sale and the purchaser owned the debt for which the property was sold. Section -253(a)(4). FmHA simply failed to exercise that right in this case. I believe the language the Legislature added to § -253 was intended to offer protection to junior creditors, lienholders, and mortgagees so that they are not required to pay inferior judgments, liens, or mortgages owned by the purchaser in order to redeem the property. After thoroughly studying § -253(a)(4), I believe that the Legislature's intent was to require a redeeming party to pay as a lawful charge only those valid liens or encumbrances owned by the party who had purchased the property at the foreclosure sale. In other words, the wording in (4) beginning with "or if" is merely a limitation on the preceding portion of (4). Section -253(a)(4) states that a person redeeming a property must pay any other valid lien or encumbrance paid or owned by the purchaser, but, if the redeeming party is a judgment creditor or a second mortgagee, then he or she would only have to pay liens and encumbrances paid or owned by the purchaser that have a higher priority than his or her lien. Section -253(a)(4) should be interpreted to give effect to the intent of the Legislature, which has always been to protect judgment creditors and junior mortgagees rather than to punish them and give them fewer rights than strangers to the property, such as the Byrds, who purchase the property at the foreclosure sale and leave a deficiency on the lien for which the property was sold. In an unpublished opinion, In re Shields v. Federal Nat'l Mortgage Ass'n, (No. 92-0451, December 14, 1996, S.D.Ala.1996), a federal *880 district court reached the same conclusion that I reach now. Although this Court is not bound by that court's interpretation of the Alabama statute, that court's reasoning supports the conclusion that § -253(a)(4) has not changed Alabama redemption law. The facts of Shields are different from those of this case only in that the party who bought the property at the foreclosure sale was the mortgagee and not a stranger to the property, like the Byrds. However, the district court's analysis of § -253(a)(4) is highly relevant. The court stated: As illustrated in its example, the federal district court recognized that where the purchaser of the property at the foreclosure sale is a stranger to the property, § -253(a)(4) requires only that a redemptioner pay the purchaser the purchase price and does not require that the redemptioner pay any deficiency balance on the debt for which the property was sold. In sum, I would hold that because the Byrds have not paid, and do not own the FmHA mortgage, which is the higher-priority lien at issue, the junior lienholderSEI is not required to pay the deficiency balance on that lien and may redeem the property from the Byrds for the price the Byrds paid at the foreclosure sale, plus other legal charges and interest. [1] The Byrds have moved to dismiss SEI's appeal, contending that SEI's December 23, 1996, notice of appeal was not timely because it was not filed within 42 days of the trial court's September 13 judgment. SEI contends that its notice of appeal was timely filed, because, it says, the 42-day period was suspended by its filing of a motion for a new trial. The Byrds respond with the argument that SEI's motion for a new trial did not suspend the running of the 42-day period for filing an appeal because the motion for new trial was itself untimely. Rule 59(b), Ala. R. Civ. P., provides 30 days for filing a motion for a new trial. SEI filed its motion on the 32nd day after the September 13 judgment; however, the 30th day after the judgment, October 13, was a Sunday, and the 31st day, October 14, was a state holiday. See Rule 6(a), Ala. R. Civ. P. Accordingly, SEI's motion for a new trial was timely, and it thus suspended the running of the 42-day period for filing a notice of appeal. The 42-day period did not begin to run anew until the trial court denied SEI's motion for a new trial on November 22. Rule 4(a)(3), Ala. R.App. P. Thus, SEI's December 23 notice of appeal was timely filed. Rule 4(a)(1), Ala. R.App. P. [2] Each of these cases interpreted the language of a statutory predecessor of § 6-5-235. St. Clair Indus., Fonde, and Stewart interpreted Title 7, § 732, Code of Alabama 1940, which provided that the redemption price included: "3. Any other valid lien or incumbrance paid or owned by such purchaser or his vendee, or any mortgagee of the purchaser to the extent of the amount necessary to redeem." Estes interpreted § 10145(3), Code of Alabama 1923, which used the same language. [3] This interpretation is supported by § 6-5-253(a)(4)'s express reference to § 6-5-248(c) in computing the redemption price. Section 6-5-248(c) provides in pertinent part: "When any judgment creditor or junior mortgagee or any transferee of a judgment creditor or a junior mortgagee redeems under this article, all recorded judgments, recorded mortgages and recorded liens having a higher recorded priority in existence at the time of the sale are revived against the real estate redeemed and against the redeeming party and such shall become lawful charges pursuant to Section 6-5-253(a)(4) to be paid off at redemption." (Emphasis added.) Nowhere in § 6-5-248(c) is there any qualification that would suggest the Legislature intended to limit the redemption price payable by junior mortgagees only to those higher-priority encumbrances "paid or owned" by the purchaser. [4] Ala.Code 1923, § 10145, provided: "Any one entitled and desiring to redeem real estate under the provisions of this chapter must also pay or tender to the purchaser or his vendee the purchase money, with interest at the rate of ten per cent per annum thereon, and all other lawful charges, with legal interest ...." (Emphasis added.) [5] Ala.Code 1923, § 8563, as amended in 1935, provided: "The rate of interest upon the loan or forbearance of money, goods or things in action, except by written contract, is six dollars upon one hundred dollars for one year, and the rate of interest by written contract is not to exceed eight dollars upon one hundred dollars for one year; and at the rate for a greater or less sum, or for a longer or shorter time." [6] Neither of the parties has argued that interest should have been added to any items other than the notes secured by the Colonial Bank mortgage and by the FmHA mortgage. [7] SEI also contends that the trial court erred by accepting as permanent improvements certain projects that related to the Byrds' planting of crops that the Byrds profited from by later harvesting. Because the trial court's order does not specify which items it accepted as permanent improvements, we cannot determine whether the court erred. On remand, the trial court should review the list of proposed permanent improvements, including the evidence supporting the cost estimates and asserted values thereof, and the evidence contesting the estimates and values, and specify in its order which it accepts for inclusion in the redemption price and the value assigned to each. See Moore v. Horton, 491 So. 2d 921, 923 (Ala.1986); Durr Drug Co. v. Acree, 241 Ala. 391, 395, 2 So. 2d 903, 906 (1941); Rodgers v. Dixon, 239 Ala. 72, 74-75, 193 So. 741, 743-44 (1940). [8] For the following year, SEI, as a redemptioner, is entitled to any profits accrued from the use of the land. See § 6-5-253(c).

February 13, 1998

3f64f3f5-c724-47fe-9ede-bf3043cd3955

FIDELITY NAT. TITLE INS. CO. v. Jericho Mgmt., Inc.

722 So. 2d 740

1950828

Alabama

Alabama Supreme Court

722 So. 2d 740 (1998) FIDELITY NATIONAL TITLE INSURANCE COMPANY OF TENNESSEE v. JERICHO MANAGEMENT, INC. 1950828. Supreme Court of Alabama. April 17, 1998. *741 Guy V. Martin, Jr., of Martin, Drummond & Woosley, P.C., Birmingham, for appellant. Stephen D. Heninger of Heninger, Burge & Vargo, Birmingham; and John R. Lavette of Morris & Lavette, Birmingham, for appellee. James A. Bradford, Michael D. Freeman, and Teresa G. Minor of Balch & Bingham, L.L.P., Birmingham, for amici curiae American Land Title Ass'n; Dixie Land Title Ass'n, Inc.; Chicago Title Ins. Co.; Commonwealth Land Title Ins. Co.; First American Title Ins. Co.; Lawyers Title Ins. Corp.; Security Union Title Ins. Co.; Stewart Title Guaranty Co.; Ticor Title Ins. Co.; and Transnational Title Ins. Co., on application for rehearing. PER CURIAM. The opinion of this Court dated September 12, 1997, is withdrawn and the following is substituted therefor. Fidelity National Title Insurance Company of Tennessee ("Fidelity") appeals from the trial court's order denying its motion to compel arbitration of claims presented in an action filed against it by Jericho Management, Inc. ("Jericho"). We reverse and remand. Fidelity, a Tennessee corporation with its home office in Knoxville, Tennessee, issues title insurance policies in a number of states for the purpose of securing federally regulated loans. Jericho, an Alabama corporation, is an insured under one of those policies. Jericho filed an action in the Jefferson County Circuit Court against Fidelity, seeking damages based on allegations of breach of contract, bad faith refusal to pay an insurance claim, negligence, wantonness, and fraud. Fidelity moved to compel arbitration of these claims pursuant to the following arbitration provision contained in the title policy: As noted, the trial court denied Fidelity's motion, stating, in pertinent part: Three issues are presented for our review: 1) Whether the particular language used in the arbitration provision evidences an intent on Fidelity's part to have claims filed against it by its Alabama insureds submitted to arbitration under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"); 2) Whether the title policy issued by Fidelity to Jericho "involves" interstate commerce, so as to invoke the preemptive provisions of the FAA; and 3) Whether Fidelity waived any right it had to demand arbitration. The first issue concerns the first sentence in the arbitration provision: (Emphasis added.) Fidelity contends that when this sentence is read in conjunction with the remainder of the arbitration provision, it is clear that the words "applicable law" refer to both state law and federal law. According to Fidelity, "applicable law" means "applicable law"; that is, Fidelity, seeing no ambiguity in those words, maintains that they contemplate a case-by-case determination of whether state arbitration law or federal arbitration law governs a particular dispute. Fidelity argues that the FAA is applicable in this case and that the trial court erred in holding that the arbitration provision evidences an intent on Fidelity's part to waive its right to arbitrate under federal law by "agree[ing] that Alabama's anti-arbitration law [Ala.Code 1975, § 8-1-41(3)] would apply." Jericho contends that the arbitration provision is ambiguous and should be construed in the light most favorable to it. Jericho argues that the other references in the arbitration provision to applicable state law reflect an intent on Fidelity's part to be bound by "applicable state arbitration law," which in Alabama prohibits the specific enforcement of a predispute arbitration provision. According to Jericho, the phrase "Unless prohibited by applicable law" is meaningless unless it is held to refer to "applicable state law." Section 8-1-41 provides, in pertinent part: Article III, § 42, of the Alabama Constitution of 1901 provides, in pertinent part, as follows: Section 43 of the Alabama Constitution provides in pertinent part: As these statutory and constitutional provisions illustrate, all questions of propriety, wisdom, necessity, utility, and expediency with respect to the enforceability of predispute arbitration agreements are legislative, not judicial. Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810 (1944), cert. dismissed, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945). The only question for this Court concerns the power of the Legislature to prohibit the specific enforcement of such agreements. There appears to be nothing in Alabama's Constitution that in any way restricts the Legislature's *743 power to prohibit the enforcement of arbitration agreements. In fact, the Legislature's strong bias against arbitration may be explained, if not compelled, by two sections in Article I of the Alabama Constitution. Section 11 provides: "[T]he right of trial by jury shall remain inviolate." Section 36 states: "[T]his enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate." Because § 8-1-41(3) clearly expresses the public policy of this state, as duly enacted by the only body of state government possessing the constitutional authority to set such policy, we are required to approach this case with a philosophical bent in favor of upholding that policy if the law will allow. We recognize, of course, that the FAA preempts contrary state law and, thus, renders enforceable a predispute arbitration agreement contained in a contract that "involves" interstate commerce. See Hurst v. Tony Moore Imports, Inc., 699 So. 2d 1249 (Ala.1997), citing, among other cases, Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). However, if the arbitration provision in Fidelity's policy is construed to mean what Jericho says it means, then this Court would be freed from the constraints of the Supremacy Clause, Article VI, United States Constitution, for it is well established, as the trial court held, that the parties to a contract may agree not to arbitrate their disputes. See Ex parte Pope, 706 So. 2d 1156 (Ala.1997) After carefully considering the record and the briefs, however, we are persuaded that the arbitration provision in Fidelity's policy is not ambiguous and, therefore, that it is not subject to construction by this Court. The record indicates that the arbitration provision is standard in form and was intended by its drafters to be used uniformly in land title policies issued by a number of title insurance companies throughout the various states. The provision clearly contemplates that either party to the contract may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association, unless arbitration would be "prohibited by applicable law." The drafters' specific references to state law in two other sentences in the arbitration provision indicates to us that the use of the broader words "applicable law" was meant to include both state and federal law, depending on which body of law is applicable under the circumstances. For example, if a particular title insurance transaction involves interstate commerce, then federal law preempts contrary state law, so as to render enforceable a predispute arbitration agreement. On the other hand, if a particular transaction does not involve interstate commerce, then applicable state law would apply, including a provision like Alabama's that prohibits the specific enforcement of predispute arbitration agreements. Furthermore, we note that although the FAA "declared a national policy favoring arbitration," Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 115 S. Ct. 1212, 131 L. Ed. 2d 76 (1995), the scope of the FAA is not boundless. Section 2 of the FAA provides that "[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. (Emphasis added.) This section clearly recognizes that in certain circumstances arbitration agreements are not enforceable, based on "applicable law." For the foregoing reasons, we conclude that the arbitration provision at issue here is not ambiguous, i.e., that the phrase "Unless prohibited by applicable law" is not meaningless, and that it refers to whatever law is applicable under the circumstances. We note that the trial court did not specifically address the second and third issues; in fact, the record reflects that Jericho did not even raise the third issue in the trial court. Although this Court will affirm a trial court's judgment if it can tell that the judgment is supported on any valid legal ground, even though that ground was not asserted in the trial court and even though the trial court may have given an erroneous reason to *744 support its judgment, see Smith v. Equifax Services, Inc., 537 So. 2d 463 (Ala.1988), we decline to affirm the trial court's order denying Fidelity's motion to compel arbitration on the second or third grounds urged by Jerichothat the FAA has no field of operation and that Fidelity had waived its right to arbitration. The FAA applies to a transaction that "involves" interstate commerce, and a transaction "involves" interstate commerce if it has virtually any tangible effect on the generation of goods or services for interstate markets and their distribution to the consumerHurst v. Tony Moore Imports, Inc., supra. In the present case, the title insurance policy, which was issued by a Tennessee corporation, protects an Alabama corporation's mortgage, in connection with a federally regulated loan transaction. We hold that Fidelity's title policy sufficiently affects interstate commerce to invoke the FAA.[1] With respect to the third issue, we note that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby prejudices the party opposing arbitration. Companion Life Ins. Co. v. Whitesell Manufacturing, Inc., 670 So. 2d 897 (Ala.1995). Because of the strong federal policy favoring arbitration, the party opposing arbitration bears a heavy burden of proving both that the opposing party substantially invoked the litigation process and that the invocation of that process was prejudicial. Any determination as to whether a party has waived the right to compel arbitration rests within the sound discretion of the trial court and has to be made on a case-by-case basis. See Companion Life Ins. Co. v. Whitesell Manufacturing, Inc.; Ex parte Merrill Lynch, Pierce, Fenner & Smith, 494 So. 2d 1 (Ala.1986). Our cases continue to emphasize that a waiver of the right to compel arbitration will not be lightly inferred, and, therefore, that one seeking to prove waiver has a heavy burden. Ex parte Dyess, 709 So. 2d 447 (Ala.1997); Ex parte Phelps, 672 So. 2d 790 (Ala.1995). The record indicates that Fidelity initially moved to dismiss Jericho's complaint; that it later filed an answer (in which it requested a jury trial) and an amended answer; and that it participated in the discovery process for a number of months before seeking to enforce the arbitration provision. This Court has stated that filing a motion to dismiss, answering, and participating in discovery do not necessarily amount to a waiver, Ex parte Merrill Lynch, Pierce, Fenner & Smith, supra; however, under certain circumstances, these things can amount to a waiver. See Ex parte Smith, 706 So. 2d 704 (Ala.1997). Although Jericho argues that Fidelity set out to prepare its case for trial and waited too long to move to compel arbitration, we decline to address for the first time on appeal whether Jericho has been prejudiced by Fidelity's delay in seeking arbitration.[2] Jericho did not raise waiver as an issue below and, therefore, did not attempt to establish before the trial court the extent to which it would be prejudiced, if any, by submitting the case to arbitration. Instead, Jericho opposed Fidelity's motion to compel arbitration by arguing only that there was no agreement to arbitrate and that the FAA did not apply because the contract did not involve interstate commerce. We do not hold that this issue has in any way been waived by Jericho. We conclude only that with the case in this posture, we think it imprudent to address whether Fidelity waived its right to compel *745 arbitration, when the resolution of that issue rests largely within the trial court's discretion. The trial court's order denying Fidelity's motion to compel arbitration is reversed and the cause is remanded. OPINION OF SEPTEMBER 12, 1997, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; REVERSED AND REMANDED. HOOPER, C.J., and KENNEDY, J., concur. HOUSTON, J., concurs specially. MADDOX and SEE, JJ., concur in the result. ALMON, SHORES, and COOK, JJ., dissent. LYONS, J., recuses himself. HOUSTON, Justice (concurring specially). I concur in the per curiam opinion issued by this Court on application for rehearing. On the original submission of this case, I voted to affirm the trial court's order because I was persuaded that the phrase, "Unless prohibited by applicable law," rendered the arbitration provision in Fidelity's policy ambiguous. I thought that that phrase would be mere surplusage (meaningless) if it were not given the meaning contended by Jericho. Therefore, applying established principles of contract construction, I interpreted the contract in Jericho's favor, in an attempt to discern the intent of the contracting parties. Approaching the case in this manner freed me from the constraints of the Supremacy Clause, Article VI, United States Constitution, for it is well established that the parties to a contract may agree not to arbitrate their disputes. See Ex parte Pope, 706 So. 2d 1156 (Ala.1997). However, upon reconsideration, in light of the excellent rehearing brief filed by Fidelity and the amicus curiae brief filed by the American Land Title Association and others in support of the rehearing application, I am now convinced that the arbitration provision in Fidelity's policy is not ambiguous and, therefore, that it is not subject to construction by this Court. I am, therefore, no longer freed from the constraints of the Supremacy Clause, which allowed the United States Supreme Court to trump the decisions of state supreme courts in Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). See my dissenting opinion in Terminix International Co. v. Jackson, 723 So. 2d 555 (Ala.1998). Since I voted on the original submission of this case, I have become aware of Art. IV, § 84, Constitution of Alabama of 1901: Substantially the same provision has been in each previous Alabama Constitution. My vote, however, is not based upon this provision, because the applicability of this provision was not raised by the parties below, on appeal, or on rehearing. What effect, if any, does § 84 have on the public policy of this state? Does it restrict the legislature's power to enact provisions such as Ala.Code 1975, § 8-1-41? These are questions to be resolved at a future date in another case when the issue has been properly raised in the trial court and fully briefed in this Court. ALMON, Justice (dissenting). I respectfully dissent from the majority's decision to grant the application for rehearing and to reverse the circuit court's denial of Fidelity National's motion to compel arbitration. I continue to believe that the phrase "unless prohibited by applicable law" incorporates § 8-1-41(3), Ala.Code 1975. I reproduce below a portion of the text of my September 12, 1997, opinion in this casewithdrawn today by the majorityby which, with three concurrences and one concurrence in the result, this Court originally affirmed the circuit court's denial of Fidelity National's motion to compel arbitration: Federal Land Bank of New Orleans v. Terra Resources, Inc., 373 So. 2d 314, 320 (Ala.1979). Shadrick v. Johnston, 581 So. 2d 805, 810 (Ala.1991) (citation omitted). 514 U.S. at 947, 115 S. Ct. at 1925, 131 L. Ed. 2d at 995 (citations omitted). "In Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57, 115 S. Ct. 1212, 1216, 131 L. Ed. 2d 76, 84 (1995), the *747 Court stated: `[T]he FAA's pro-arbitration policy does not operate without regard to the wishes of the contracting parties.' In Mastrobuono, the Court applied general contract principles to an arbitration agreement, including the principle that a contract should be read to give effect to all its provisions and to render them consistent with one another: Mastrobuono, 514 U.S. at 63, 115 S. Ct. at 1219, 131 L. Ed. 2d at 88 (emphasis added). Because a majority now considers the arbitration clause to be enforceable, I dissent. SHORES and COOK, JJ., concur. [1] We note that the record contains an affidavit in which Lance E. Perna, vice-president and senior claims counsel for Fidelity, stated that the title policy is funded by reserves held by Fidelity outside Alabama and is payable by checks issued on a California bank, and that Fidelity handles claims under its title policies out of its Dallas, Texas, office. After the trial court had ruled on Fidelity's motion to compel arbitration, Fidelity moved to supplement the record with this affidavit, stating that it supported the facts that it had argued before the trial court and that those facts were not contested by Jericho. Jericho apparently did not move to strike this affidavit; however, the record does not indicate that the trial court granted Fidelity's motion to supplement the record. Although we do not base our decision on information set out in this affidavit, it would further support our conclusion that Fidelity and Jericho are involved in an interstate insurance transaction. [2] We note that Fidelity's counsel on appeal, who filed the motion to compel arbitration, is not the same as the counsel involved in the initial filings and the discovery process discussed above.

April 17, 1998

20e14f4e-f4ab-4b99-ae3a-c6ca3e3508bc

State v. Bragg

710 So. 2d 417

1962117

Alabama

Alabama Supreme Court

710 So. 2d 417 (1998) Ex parte State of Alabama. (Re STATE of Alabama v. Kenneth BRAGG, et al.). 1962117. Supreme Court of Alabama. February 13, 1998. Robert H. Pettey and Amy J. Himmelwright of Samford, Denson, Horsley, Pettey & Martin, Opelika, for petitioner. J. Michael Williams, Sr., of Gullage & Williams, Auburn, for respondent Kenneth Bragg. MADDOX, Justice. The issue presented by this petition for the writ of mandamus is whether the trial judge abused his discretion in ordering the production of certain documents during the discovery phase of an eminent domain proceeding. Because of a statutory provision that prohibits a party in an eminent domain proceeding from obtaining written valuation reports of another party, we hold that the trial judge did abuse his discretion. We therefore grant the petition. The State filed an action in the Russell County Probate Court seeking an order condemning property owned by Kenneth Bragg. Following proceedings in that court, the State appealed to the Russell County Circuit Court. On June 10, 1997, Bragg served on the State a request for production, seeking copies of any reports appraising the land in question. The State filed a response to Bragg's request, objecting to the production of its valuation reports on the ground that § 18-1A-130, Ala.Code 1975, shields such documents from discovery. That statute provides: § 18-1A-130, Ala.Code 1975 (emphasis added). On August 13, 1997, after Bragg had filed a motion to compel production, the trial judge, although he was aware of the statute, directed the State to answer all "reasonable requests for discovery." The State then moved the court to set a hearing to consider the State's objections. The trial court denied that motion; the State filed an amended response to Bragg's request for production, reasserting its objections. At a hearing on September 17, 1997, the judge ordered the State to produce the requested documents. *418 The State filed this petition, seeking an order directing the trial judge to set aside his order compelling discovery of the documents. The respondents, Bragg and the trial judge, filed briefs in response. The writ of mandamus is an extraordinary writ, and it is well established that a writ of mandamus is appropriate only where there is: "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991). Because discovery matters are within the sound discretion of the trial court, this Court has held that it will not reverse a trial court's rulings on discovery issues unless the trial court has clearly abused its discretion. Home Ins. Co. v. Rice, 585 So. 2d 859 (Ala. 1991). The State, although it is aware of these principles of law, argues that it is entitled to the writ of mandamus, asserting that it meets all of the requirements for the issuance of a writ. As the basis of its argument, the State relies almost entirely on the provisions of § 18-1A-130, Ala.Code 1975, quoted above, which, it claims, erects a shield protecting the documents in question from discovery. The trial judge, however, in his response to the State's mandamus petition, states that "any written appraisal prepared by experts [the State anticipates calling as witnesses] should be made available to [Bragg]." He further states that that conclusion is necessary to harmonize the statute with the purposes of Rule 26 of the Alabama Rules of Civil Procedure. Because the statute does provide that eminent domain proceedings are governed by the Alabama Rules of Civil Procedure, we must ascertain the Legislature's intent in including the proviso that "[n]othing in this section shall be construed to enable any party to obtain a written valuation report of the other party." The Alabama Rules of Civil Procedure were promulgated by this Court under authority granted by the Alabama Constitution of 1901, amd. 328, § 6.11, which provides, in part, that "[t]he supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts." However, § 6.11 also contains a proviso that the rules promulgated by this Court "may be changed by a general act of statewide application." Bragg argues that the second sentence of § 18-1A-130 does not mean that valuation reports are not discoverable, but only that this Code section does not provide the right to discover them. He argues that the right to discover such documents is provided by Rule 26, Ala. R. Civ. P. We have long stated that in interpreting statutes "it is always presumed that the legislature did not do a vain and useless thing." Starlite Lanes, Inc. v. State, 283 Ala. 48, 51, 214 So. 2d 324, 326 (1968). To interpret the statute as Bragg suggests would require us to infer that the second sentence of § 18-1A-130 was essentially superfluous. We believe that the intent of the people could not have been more clearly stated than it is in § 6.11 of Amendment 328, quoted above; consequently, we cannot accept Bragg's argument. In concluding that the Legislature intended to prohibit discovery of valuation reports, we have examined the legislative history of the statute. We note initially that § 18-1A-130 was adopted as part of a comprehensive overhaul of eminent domain law enacted by the Legislature in 1985. Act No. 85-458, Ala. Acts 1985. The first sentence of the section is similar to Uniform Eminent Domain Code § 701. The second sentence of § 18-1A-130, however, is not part of the Uniform Code; it was added by the Legislature, following the recommendation of the Alabama Law Institute. Alabama Law Institute, Alabama Eminent Domain Code § 701 (1984). We believe that the Legislature, in enacting § 18-1A-130, Ala.Code 1975, intended to protect the documents in question in this case from discovery, and because § 6.11, amd. 328, Ala. Const. of 1901, gives the Legislature the authority to overturn our procedural rules by statute, and because the *419 Legislature specifically did so, exempting appraisal reports in condemnation cases from discovery, we hold that the State had a clear legal right to an order rescinding the order compelling discovery. In reaching our conclusion, we have not overlooked Bragg's argument that, even if the documents in question in this case were not subject to discovery, the State failed, at the September 17, 1997, scheduling conference, to object to their discovery and therefore has waived its rights. We have examined the record and find that the State's objections were consistently included in its written responses to Bragg's discovery requests and were properly before the trial court. After weighing the arguments of the parties, we grant the petition and issue a writ of mandamus directing the trial court to vacate its order of September 17, 1997, and we direct the trial court to enter such other orders as are consistent with this opinion. WRIT GRANTED. HOOPER, C.J., and ALMON, HOUSTON, and SEE, JJ., concur. SHORES, KENNEDY, COOK, and BUTTS, JJ., dissent. COOK, Justice (dissenting). I disagree with the majority's granting of the writ of mandamus in this case because I see no abuse of discretion by the trial court in ordering production of certain documents during the discovery phase of the eminent domain hearing. Ala.Code 1975, § 18-1A-130, states: (Emphasis added.) The majority states that the legislature intended for the second sentence in § 18-1A-130 to prohibit the discovery of another party's valuation report in condemnation actions. I disagree. The first sentence of § 18-1A-130 provides that "[d]iscovery and pretrial conferences in condemnation actions ... are governed by the Alabama Rules of Civil Procedure." Those Rules provide that a party may "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Ala. R. Civ. P. 26(b)(1). I believe the second sentence was placed in § 18-1A-130 to iterate that although that particular section does not provide for the discovery of valuation reports, the Alabama Rules of Civil Procedure govern discovery and pretrial conferences in condemnation actions and should be looked to for guidance. I find valuation reports to be relevant in eminent domain hearings for use in showing the worth of the property the public entity seeks to take for public use. I would not grant the extraordinary remedy in this case, because I do not see an abuse of discretion. SHORES and KENNEDY, JJ., concur.

February 13, 1998

c9aa8b93-f9ff-4400-8ec7-c6e087adca51

Winn Dixie of Montgomery, Inc. v. Colburn

709 So. 2d 1222

1961146

Alabama

Alabama Supreme Court

709 So. 2d 1222 (1998) WINN DIXIE OF MONTGOMERY, INC., and Robert Hagan III v. Mary Catherine COLBURN. 1961146. Supreme Court of Alabama. February 6, 1998. *1223 A. Joe Peddy and Thomas Coleman, Jr., of Smith, Spires & Peddy, P.C., Birmingham, for appellants. Stephen D. Heninger and Joseph W. Buffington of Heninger, Burge & Vargo, Birmingham, for appellee. BUTTS, Justice. Mary Catherine Colburn sued Winn Dixie of Montgomery, Inc., and Robert Hagan, alleging that they were negligent or wanton in filling a prescription for her. Specifically, Colburn claimed that Robert Hagan, the pharmacist at a store operated by Winn Dixie of Montgomery, wantonly or negligently dispensed Fiorinal # 3 as a substitute medication for a prescription of Sedapap. The jury returned a general verdict for Colburn and against Winn Dixie and Hagan, awarding damages of $130,000. The trial court entered a judgment on that verdict. Winn Dixie and Hagan claim that the judgment is due to be reversed or remitted, arguing that the evidence was insufficient to support the damages award. They also argue that the judgment is excessive and therefore should be reversed or remitted or the case remanded on the basis that the trial court made no written findings indicating it had considered the factors set out in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989). The standard for testing the sufficiency of the evidence when the sufficiency is challenged by either a motion for directed verdict or a motion for JNOV is the "substantial evidence rule." Ogle v. Long, 551 So. 2d 914 (Ala.1989).[1] "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). In considering the question of the sufficiency of the evidence, we are required, as was the trial court, to view the evidence in the light most favorable to the nonmovant. Bussey v. John Deere Co., 531 So. 2d 860, 863 (Ala.1988). Viewed in the light most favorable to Colburn, the evidence suggests the following: Colburn consulted Dr. Mildred Howell, complaining of migraine headaches. Dr. Howell, knowing that Colburn was allergic to codeine, prescribed Sedapap, which does not contain codeine, to treat Colburn's migraine headaches. Dr. Howell signed the prescription form over a line that stated "product selection permitted"; that statement means that a generic equivalent could be substituted for the name-brand product. Colburn took her prescription to a pharmacy at a Winn Dixie supermarket to have it filled. The Winn Dixie pharmacy did not have Sedapap in stock. Hagan testified at trial that he looked up Sedapap on the Winn Dixie computer drug profile, and that it reported that Sedapap and Fiorinal # 3 were identical. However, Fiorinal # 3, which was substituted for Sedapap, is not a generic equivalent to Sedapap; in fact, it contains codeine, the very thing to which Colburn was allergic. In his prescription-error report, Hagan wrote that *1224 he had substituted the Fiorinal # 3 because it was the "closest formula" to Sedapap and he felt certain that the physician would allow the substitution. In addition, at trial Colburn presented evidence indicating that Hagan telephoned Dr. Howell to ask if he could substitute Fiorinal # 3 for Sedapap, and that Dr. Howell had her assistant tell him that it could not be substituted. When Colburn took the medication she received from the Winn Dixie pharmacy, she went into anaphylactic shock. Within minutes of taking the Fiorinal # 3, Colburn began to feel that her tongue was swelling and that her chest was tightening. Her eyes started to water and her throat began to close, so that in a matter of minutes she could barely breathe or speak. She said she was terrified and thought that she was dying. Her husband put her in an automobile to drive her to a hospital emergency room, but her condition worsened on the way. She testified that she was afraid they were not going to make it to the hospital in time to save her life. Colburn's husband had to stop the car and telephone for an ambulance and ask the ambulance operators to meet them halfway. When they reached the ambulance, Colburn received intravenous Benadryl and Epinephrine to counteract the allergic reaction. Colburn then went on to the emergency room, where she received more medication to counteract the effects of the Fiorinal # 3. She was allowed to return to her home that night, but she continued to feel the side effects, including a severe headache that lasted several days. She presented evidence indicating that but for her husband's swift reaction she likely would have died of anaphylactic shock. She testified that she is still afraid to take prescription drugs. Winn Dixie and Hagan contend that because Colburn suffered no permanent physical injury the $130,000 award is out of proportion to her injury. Winn Dixie and Hagan do not address the propriety of the jury's finding of liability. They simply argue that the amount of the award bears no reasonable relationship to the harm suffered by the plaintiff. However, Winn Dixie and Hagan consented to the jury's use of a general verdict form that did not delineate separate amounts of compensatory damages and punitive damages. Therefore, this Court has no way to determine what portion of the award was intended as punitive damages. In fact, the jury may have intended the entire amount to be compensatory damages. However, assuming, out of an abundance of caution and in order to preserve Winn Dixie and Hagan's due process rights, that part of the $130,000 award was punitive in nature, we will apply the three "guideposts" set out in BMW of North America, Inc. v. Gore, 517 U.S. 559 at 575-76, 116 S. Ct. 1589 at 1599,134 L. Ed. 2d 809 (1996), to determine whether the punitive award is excessive. The first "guidepost" that BMW sets out is the reprehensibility of the defendant's conduct. "Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." BMW, 517 U.S. at 575, 116 S. Ct. at 1599. In BMW, the Supreme Court indicated that "indifference to or reckless disregard for the health and safety of others" is an aggravating factor associated with particularly reprehensible conduct. 517 U.S. at 576, 116 S. Ct. at 1599. Clearly, this aggravating factor was present in this case. There was evidence that Hagan telephoned Colburn's physician to ask if he could substitute Fiorinal # 3 for Sedapap and that the physician had her assistant tell him that it could not be substituted. Thus, the jury could have found that the pharmacist received specific instructions from the physician not to substitute the medication but did so anyway; thus, the jury could have found that Hagan acted with a reckless disregard for Colburn's safety. Further, the Winn Dixie computer drug profile erroneously reported that Sedapap and Fiorinal # 3 were identical; and the evidence indicates that, even once the error was discovered, Winn Dixie did not correct the information in the computer, thereby increasing the risk of further harm to its customers. This evidence supports a finding of reprehensibility on the part of Hagan and Winn Dixie that would warrant a large punitive damages award. The second BMW guidepost for determining whether an award of punitive damages *1225 is excessive is the ratio of punitive damages to the actual harm inflicted upon the plaintiff. Because the jury awarded general damages, we cannot determine with certainty the ratio of punitive damages to compensatory damages. It is important to note that we do not consider that any compensatory award was based solely on economic loss; rather, we consider it to be based largely upon the obvious mental and emotional distress that Colburn endured because of her life-threatening experience. This Court, in First Commercial Bank v. Spivey, 694 So. 2d 1316, 1326 (Ala.1997), emphasized: "There is no fixed standard for ascertaining the amount of compensatory damages that may be awarded for emotional distress. The determination of how much to award is left to the sound discretion of the jury, subject only to review by the court for a clear abuse of that discretion." In Spivey, this Court upheld a jury award of $1 million in damages, $500,000 of which was compensatory damages awarded for emotional distress arising from the defendant's fraudulent conduct that led to the foreclosure of the mortgage on the plaintiff's home. We conclude that it was well within the right of the jury to award Colburn $130,000 because she experienced the natural terror associated with what she believed to be imminent death. This terror was caused purely by Winn Dixie and Hagan's breach of the public trust in incorrectly dispensing medication by giving Colburn a medication to which she was deathly allergic. The record contains nothing to indicate that the amount of the jury award is excessive or even that it was punitive in nature. We have thoroughly reviewed the record, and in determining the possible ratio of punitive damages to compensatory damages we have considered the terror that Colburn experienced when she feared imminent death, as well as her physical pain, and her continued fear of taking prescription medications, along with any economic losses she may have incurred, and we conclude that the ratio is not excessive. Finally, the last guidepost BMW gives for determining whether a punitive damages award was excessive is a comparison of the punitive award to the civil or criminal penalties that could be imposed for similar misconduct. In BMW, the Supreme Court considered whether the Alabama Deceptive Trade Practices Act, which provided a maximum penalty of $2,000 for a violation, was adequate to furnish BMW with notice of the severity of the punishment that would result from its deceptive practice. 517 U.S. at 583-85, 116 S. Ct. at 1603. In this present case, the maximum penalty under Alabama law for dispensing a different drug or different brand drug in lieu of that ordered or prescribed, without the express permission of the person ordering or prescribing the drug, is a $1,000 fine. Ala.Code 1975, § 34-23-8. We must point out that the dispensing of prescription drugs is a matter of public trust and that one who dispenses them carelessly endangers the health and safety of the consumer. A $1,000 fine is a meager sanction for such a serious offense and provides little basis for determining a meaningful punitive damages award. Winn Dixie and Hagan next argue that the award, based on the general verdict, is due to be reversed or remitted because of the absence of any findings related to the factors set out in Hammond and Green Oil. They argue that the trial court's failure to make such findings violated their due process rights. Following the United States Supreme Court's remand of the BMW case, this Court reconsidered its earlier ruling in that case; it determined that the United States Supreme Court's "due process" guideposts were not intended to preclude a consideration of the factors of review already established by this Court in Hammond and Green Oil. See BMW of North America, Inc. v. Gore, 701 So. 2d 507 (Ala.1997). In Hammond, this Court wrote: 493 So. 2d at 1378-79 (citations omitted) (emphasis added). See, also, Life Insurance Co. of Georgia v. Parker, 706 So. 2d 1108 (Ala. 1997). In the instant case, the record does not reflect the trial court's reasons for refusing to interfere with the jury's verdict on the grounds of excessiveness. Because we are therefore unable to review its ruling on that issue, we must remand this cause to allow the trial court to make written findings on the question of excessiveness, in compliance with Hammond. We affirm that portion of the judgment imposing liability. However, we remand this case for the trial court to make written findings on the issue of excessiveness of the punitive damages award, if, indeed, it determines that any of the award was punitive in nature. The trial court is directed to file a return with this Court within 28 days of the date of this opinion. AFFIRMED IN PART AND REMANDED. HOOPER, C.J., and SHORES, HOUSTON, and KENNEDY, JJ., concur. MADDOX and SEE, JJ., concur in part and dissent in part. SEE, Justice (concurring in part and dissenting in part). I concur with the majority's remand of this case for the trial court to conduct a hearing pursuant to Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), and Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); however, because the jury returned a general verdict in this case, I must respectfully dissent from the majority's application of the factors established in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996), for determining whether a punitive award is excessive. Without a specific amount of compensatory damages and a specific amount of punitive damages, this Court cannot compute a ratio of punitive to compensatory damages, nor can it compare the punitive award with the relevant civil or criminal penalty. See Union Sec. Life Ins. Co. v. Crocker, 709 So. 2d 1118 (Ala.1997) (See, J., dissenting). Accordingly, I would require the trial court, on remand, to determine the respective amounts of punitive and compensatory damages, and then to apply the analyses required under BMW and under Green Oil and Hammond. MADDOX, J., concurs. [1] Rule 50, Ala. R. Civ. P., as amended effective October 1, 1995, renames the "motion for a directed verdict" and the "motion for a judgment notwithstanding the verdict" as a "motion for a judgment as a matter of law" and the "renewal of the motion for a judgment as a matter of law," respectively. The standard of review for a motion for a judgment as a matter of law is the same as for a motion for a directed verdict and a motion for a JNOV.

February 6, 1998

2dca5c5f-75dd-4559-b4d2-c9e7168d55b2

Ex Parte Jones

719 So. 2d 256

1960959

Alabama

Alabama Supreme Court

719 So. 2d 256 (1998) Ex parte Paul JONES. (Re Paul Jones v. State). 1960959. Supreme Court of Alabama. April 10, 1998. Rehearing Denied July 17, 1998. Thomas R. Edwards of Edwards & Edwards, Wetumpka; and Jim L. DeBardelaben, Montgomery, for petitioner. Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for respondent. SEE, Justice. We granted certiorari review to address a single issue: Whether the definition of "search warrant" contained in § 15-5-1, Ala. Code 1975, and Rule 3.6, Ala. R.Crim. P., is broad enough to encompass the seizure of intangible photographic images as evidence of a crime. The trial court and the Court of Criminal Appeals upheld the search warrant. Because we hold that the definition of "search warrant" in § 15-5-1 and Rule 3.6 is *257 broad enough to reach intangible photographic evidence, we affirm. The facts of this case are set forth in detail in the opinion of the Court of Criminal Appeals. Jones v. State, 719 So. 2d 249 (Ala. Crim.App.1996). It is sufficient here to say that a sheriff's department investigator gave a sworn affidavit containing detailed information obtained from an alleged victim of sexual abuse. That information included a description of a distinguishing physical characteristic on the body of the alleged perpetrator, Paul Jones. Based on this evidence, the trial court issued a search warrant for the examination and photographing of Jones's body. After a reasonable search, personnel from the sheriff's office discovered the distinguishing characteristic on Jones's body and photographed it. Based in part on this evidence, a jury convicted Jones of three counts of sodomy in the first degree, three counts of sexual abuse in the first degree, and three counts of sexual abuse in the second degree, all against his niece while she was between the ages of 8 and 14. The Court of Criminal Appeals affirmed. We defer to the opinion of the Court of Criminal Appeals with respect to the issues addressed therein, and we focus our review on the definition of "personal property" applicable to search warrants under Alabama law. Jones argues that the search warrant issued to search his person is invalid because, he argues, § 15-5-1 and Rule 3.6 provide that search warrants in Alabama may be issued only for the recovery of "personal property." Jones contends that the reference in § 15-5-1 and in Rule 3.6 to "personal property" is not broad enough to include the photographic images of his person "seized" by the sheriff's department. We disagree. Section 15-5-1 provides: (Emphasis added.) Similarly, Rule 3.6, Ala. R.Crim. P., provides: (Emphasis added.) Jones's argument assumes that the phrase "personal property" in § 15-5-1 and Rule 3.6 refers only to tangible personal property, and thus excludes intangible photographic evidence. Because this is an issue of first impression for this Court, we look to the decisions of other jurisdictions for interpretations of similar statutes and similar rules of criminal procedure as applied to the seizure of personal property that is analogous to intangible photographic images. In United States v. New York Telephone Co., 434 U.S. 159, 98 S. Ct. 364, 54 L. Ed. 2d 376 (1977), the Supreme Court of the United States addressed whether Rule 41(b), Fed. R.Crim.P., authorized the issuance of search warrants for the seizure of electronic impulses generated by telephones. A neutral judge issued a search warrant to the Federal Bureau of Investigation to facilitate the investigation of alleged gambling activities. Id. at 161-62, 98 S. Ct. 364. The search warrant authorized placing "pen registers" on telephone lines to capture the electronic impulses emitted when telephones are dialed, thereby capturing the numbers dialed from the alleged gambling operation. Id. at 161-62, 98 S. Ct. 364. The Supreme Court quoted Rule 41(b): *258 Id. at 169, 98 S. Ct. 364. The Supreme Court also quoted Rule 41(h), which defined "property" to "include documents, books, papers and any other tangible objects." Id. Nonetheless, the Supreme Court stated that Rule 41(b) was not "limited to tangible items but is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause." Id. Similarly, in People v. Teicher, 52 N.Y.2d 638, 422 N.E.2d 506, 439 N.Y.S.2d 846 (1981), the Court of Appeals of New York addressed whether a New York statute provided for the seizure of video images. A neutral judge issued a search warrant to the district attorney's office to facilitate the investigation of alleged sexually abusive behavior by a dentist toward his female patients. Id. at 644, 422 N.E.2d at 509, 439 N.Y.S.2d at 849. The search warrant authorized placing a camera in the dentist's office to capture video images of the dentist's alleged sexually abusive behavior. Id. The Court of Appeals quoted the statute governing search warrants: Id. at 651, 422 N.E.2d at 512, 439 N.Y.S.2d at 852. (Emphasis added.) The Court of Appeals then stated: Id. at 651-52, 422 N.E.2d at 512-13, 439 N.Y.S.2d at 852-53. In this case, a neutral judge issued a search warrant to the sheriff's department to facilitate the investigation of alleged sexual abuse. The search warrant authorized the use of a camera to capture still photographic images of a distinguishing characteristic of Jones's body described by the alleged victim of sexual abuse. Section 15-5-1 and Rule 3.6 provide that search warrants may issue for the seizure of "personal property." Although the better practice would be for Alabama law enforcement officers to follow Rule 16.2(b)(8), Ala. R.Crim. P., which authorizes post-arrest physical inspections, we are persuaded by the cogent analysis in New York Telephone Co. and Teicher, supra, that the term "personal property" in § 15-5-1 and Rule 3.6 should be interpreted to encompass pre-arrest searches for, and seizures of, intangible items such as dial impulses, video images, and still photographic images. Thus, the warrant to search for the photographic images in this case was duly authorized by Alabama law. The judgment of the Court of Criminal Appeals is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur.

April 10, 1998

4abd1d52-615c-481e-89a7-74f98137cca8

SOUTH CENT. BELL TELEPHONE CO. v. State

711 So. 2d 1005

1960591

Alabama

Alabama Supreme Court

711 So. 2d 1005 (1998) SOUTH CENTRAL BELL TELEPHONE COMPANY, et al. v. STATE of Alabama and State Department of Revenue. 1960591. Supreme Court of Alabama. March 20, 1998. Walter R. Byars of Steiner, Crum & Baker, Montgomery; and Walter Hellerstein, Athens, GA, for appellant. Bill Pryor, atty. gen.; Ron Bowden, counsel, Department of Revenue, and asst. atty. gen.; and Dan E. Schmaeling, asst. counsel, Department of Revenue, and asst. atty. gen., for appellee. PER CURIAM. AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P., and White v. Reynolds Metals Co., 558 So. 2d 373 (Ala.1989), cert. denied, Reynolds Metals Co. v. Sizemore, 496 U.S. 912, 110 S. Ct. 2602, 110 L. Ed. 2d 282 (1990). HOOPER, C.J., and ALMON, SHORES, and HOUSTON, JJ., concur. MADDOX, J., concurs specially. KENNEDY, COOK, BUTTS, and SEE, JJ., dissent. MADDOX, Justice (concurring specially). Although I agree that the judgment of the trial court is due to be affirmed, I write separately to explain why I have reached that conclusion, especially in view of the arguments raised by the taxpayers. This case originated as a challenge by South Central Bell Telephone Company ("Bell") of an assessment of franchise tax liability against it by the Alabama Department of Revenue. On December 15, 1989, Bell filed in the Montgomery County Circuit Court a notice of appeal and a complaint and petition for judicial review of the assessment. On November 29, 1990, Judge William R. Gordon ordered that the Bell case be consolidated with similar actions that had been filed recently by several of Bell's sister corporations.[1] Both before and after this consolidation, all the plaintiffs were represented by the same attorney.[2] On December 13, 1990, CSX Transportation, Inc., filed several actions challenging assessments of franchise tax liability, on essentially *1006 the same grounds that had been raised by Bell. CSX was represented in each of those actions by the same attorney representing Bell and its sister corporations. On May 28, 1992, upon motion by all the plaintiffs, Judge Gordon ordered the consolidation of the Bell and CSX actions. At the trial level, the State contended, as it does here, that Bell and CSX should be estopped from litigating this case, because of the preclusive effect of this Court's decision in White v. Reynolds Metals Co., 558 So. 2d 373 (Ala.1989). In Reynolds Metals, this Court, with an opinion concurred in by every member of the Court as it was constituted at that time, concluded that the franchise tax, as applied to foreign corporations, did not violate the United States Constitution. Subsequently, the United States Supreme Court denied certiorari review of this Court's decision. Reynolds Metals Co. v. Sizemore, 496 U.S. 912, 110 S. Ct. 2602, 110 L. Ed. 2d 282 (1990). Consequently, the final decision in Reynolds Metals was adverse to the taxpayer in Reynolds Metals and was adverse to the taxpayers in this case. The State claims that the decision of this Court in the Reynolds Metals case, and the refusal of the Supreme Court of the United States to review it, preclude both Bell and CSX from claiming that a different result should be reached in this case. Because the proceedings in Reynolds Metals and the early stages of this litigation occurred during the same period, and because that chronological interrelatedness partially informs my conclusions regarding this case, I set out some of that chronology. The Reynolds Metals case was filed before Judge Gordon several months before Bell filed its action, and on July 7, 1989, Judge Gordon entered an order holding that Alabama's franchise tax, as applied to foreign corporations, violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Shortly thereafter, on November 28, 1989, the Court of Civil Appeals affirmed the judgment of the trial court. See White v. Reynolds Metals Co., 558 So. 2d 367 (Ala.Civ.App.1989). Approximately three weeks later, Bell filed the action, later consolidated with actions by both CSX and the related BellSouth companies, that is now before this Court. On January 19, 1990, approximately one month after filing its notice of appeal, Bell, through its attorney, Walter R. Byars, asked the trial court to place its case on the "administrative docket" pending the outcome of the Reynolds Metals action. Mr. Byars wrote: Judge Gordon subsequently placed the case on his administrative docket. It appears to me, from this letter, that both parties advised Judge Gordon that they were going to be bound by the final decision in the Reynolds Metals case, and that either party could proceed further only with the permission of the trial court. In short, it appears to me that the parties agreed that the final decision in Reynolds Metals would be controlling. To clarify the relationship of these cases, I set out the following brief timeline: 7/7/89 Judge Gordon, in the Reynolds Metals case, enters an order holding that Alabama's foreign franchise tax was unconstitutional. 11/28/89 The Court of Civil Appeals affirms the trial court's Reynolds Metals judgment. 12/15/89 South Central Bell files its notice of appeal in Bell. 12/21/89 This Court reverses the judgments of the trial court and the Court of Civil Appeals in Reynolds Metals. 1/12/90 This Court denies rehearing in Reynolds Metals. 1/19/90 Bell and the State Department of Revenue file a joint request with the trial court to place Bell on its administrative docket, pending the final resolution of Reynolds Metals. *1007 1/23/90 Judge Gordon places Bell on his administrative docket. 6/4/90 The United States Supreme Court denies certiorari review in Reynolds Metals. 8/?/90 Complaint is filed by BellSouth Corporation; BellSouth Services, Inc.; BellSouth Financial Services Corporation; BellSouth Advertising & Publishing Company; BellSouth Resources, Inc.; Alabama Cellular Services, Inc.; Sunlink, Inc.; and TechSouth, Inc. (collectively, "BellSouth"). This complaint was filed by the same lawyer representing Bell. 11/29/90 Judge Gordon orders consolidation, upon motion of the plaintiffs, of the Bell and BellSouth cases (hereinafter those cases are called "Bell"). 12/13/90 Several notices of appeal and complaints are filed in the Montgomery County Circuit Court by CSX, challenging foreign franchise tax assessments for various tax years. (Same lawyer as in Bell.) 05/28/92 Judge Gordon orders consolidation of Bell with the CSX cases. (Hereinafter those cases are called "Bell"). The taxpayers contend that they are not precluded from litigating this action now. They rely on State v. Delaney's, Inc., 668 So. 2d 768 (Ala.Civ.App.1995) (Court of Civil Appeals held that the doctrine of claim preclusion does not apply in tax cases involving different tax years and that the doctrine of issue preclusion does not apply where the legal landscape has been altered). I am not unaware of the taxpayers' arguments that neither claim preclusion nor issue preclusion can apply in this case. While I do not necessarily disagree with the reasoning of Delaney's and the precedents upon which it is based, I believe this present case presents an exception to the principles of law set out in that case. In this case it appears to me that the actions of the taxpayers show that each of them was aware of the Reynolds Metals litigation and that each realized that its claims were dependent on the final resolution of Reynolds Metals. Although I realize that the United States Supreme Court's denial of certiorari review does not necessarily mean that the Court agrees with the conclusion reached by a lower Court,[3] and although I realize that the Supreme Court has released some opinions that could be interpreted as indicating a change in that Court's view of the constitutionality of state taxes such as that at issue in this case, the fact remains that the Supreme Court refused to review this Court's decision in Reynolds Metals, and that, as of today, Reynolds Metals remains the law. In my consideration of the trial court's disposition of this case, I find no reversible error. All the cases that were eventually consolidated were pending before Judge Gordon, and they all involved the same counsel and the same issues. Further, Bell specifically requested that its case be held in abeyance until Reynolds Metals was decided. In light of these facts, Judge Gordon concluded that the taxpayers were estopped from arguing that Reynolds Metals did not govern this matter. I cannot hold that his conclusion amounted to reversible error. I also do not believe that the trial court's holding that the taxpayers are estopped to assert their rights violates their rights under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution, in view of the holding in Richards v. Jefferson County, 517 U.S. 793, 116 S. Ct. 1761, 135 L. Ed. 2d 76 (1996). The operative facts of this case relating to the Due Process Clause argument are, in my opinion, wholly different. In concluding that the trial court did not err in holding that the decision in Reynolds Metals precluded the claims of these particular taxpayers, I do not address the taxpayers' argument that cases decided by the United States Supreme Court since Reynolds Metals require a holding that the tax violates the Equal Protection and Commerce Clauses of the United States Constitution. SEE, Justice (dissenting). I respectfully dissent from the majority's no-opinion affirmance of the trial court's dismissal *1008 of this tax case. In my view, the taxpayers' claims are not barred by the doctrine of res judicata. Moreover, it is inescapable that the Alabama franchise tax scheme runs afoul of the design of the Constitution of the United States to make of this nation a single market. Several foreign corporations, including South Central Bell, a number of related BellSouth companies, and CSX Transportation, Inc. (collectively, the "Taxpayers"), filed separate actions against the State Department of Revenue (the "Revenue Department"), alleging that Alabama's franchise tax scheme discriminates against foreign corporations in violation of the Commerce Clause of the Constitution of the United States. The Taxpayers' actions were filed while an action filed by Reynolds Metals Company raising the same constitutional challenge was on appeal to this Court. The Taxpayers' actions were stayed, however, pending the outcome of the Reynolds Metals appeal. This Court in White v. Reynolds Metals Co., 558 So. 2d 373 (Ala. 1989), cert. denied, 496 U.S. 912, 110 S. Ct. 2602, 110 L. Ed. 2d 282 (1990), held that Alabama's franchise tax scheme did not violate the Commerce Clause. The Taxpayers then proceeded with their actions, seeking refunds of foreign franchise taxes paid for the tax years 1988, 1989, 1990, and 1991. After consolidating the actions for trial, the trial court dismissed the Taxpayers' claims, holding that Reynolds Metals finally decided the interstate commerce issue against the Taxpayers and, thus, that their claims were barred under the doctrine of res judicata. The Taxpayers filed this appeal. The doctrine of res judicata applies to bar a subsequent action only when there is (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with the same parties, and (4) with the same subject matter presented in both actions. Smith v. Union Bank & Trust Co., 653 So. 2d 933 (Ala.1995). In Reynolds Metals, 558 So. 2d 373, this Court, acting with proper jurisdiction, rendered a judgment on the merits, upholding the Alabama franchise tax scheme against a Commerce Clause challenge. However, we have stated that "the doctrine [of res judicata] should be sparingly applied in tax cases involving liability for different years." State v. Plantation Pipe Line Co., 265 Ala. 69, 92, 89 So. 2d 549, 569, cert. denied, 352 U.S. 943, 77 S. Ct. 263, 1 L. Ed. 2d 237 (1956). This is particularly true in this case, where we are dealing not only with different tax years, but also with different taxpayers. See generally Richards v. Jefferson County, 517 U.S. 793, 802-05, 116 S. Ct. 1761, 1768-69, 135 L. Ed. 2d 76 (1996) (holding that the doctrine of res judicata could not bar the plaintiffs' federal constitutional challenge to a local tax where the plaintiffs had not been parties to a prior proceeding that resulted in a judgment on the tax). Further, the doctrine of res judicata does not apply when the judgment pleaded as an estoppel is based upon controlling decisions subsequently repudiated by supervening decisions, thereby necessitating a reexamination and an application of controlling precedent to the question. Gillespie v. Commissioner of Internal Revenue, 151 F.2d 903, 906 (10th Cir.1945). Although the State pleads the judgment in Reynolds Metals, 558 So. 2d 373, as an estoppel in this case, the Supreme Court of the United States, as I explain below, has rendered intervening decisions that repudiate the Reynolds Metals rationale. Accordingly, the doctrine of res judicata does not bar this action. The Commerce Clause of the Constitution of the United States, art. I, § 8, provides: The Supreme Court has long interpreted these words not only to grant Congress a broad affirmative power to regulate interstate commerce, but also to preclude States from discriminating against interstate commerce. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824); Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 13 L. Ed. 996 (1851); Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S. Ct. 1515, 89 L. Ed. 1915 (1945); Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S. Ct. 1076, 51 *1009 L. Ed. 2d 326 (1977). The negative aspect of the Commerce Clause, often referred to as the Dormant Commerce Clause, prohibits a State from engaging in economic protectionism. Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175, 179-80, 115 S. Ct. 1331, 1335-36, 131 L. Ed. 2d 261 (1993). Thus, although States retain the police power to enact and enforce laws that will inevitably impose costs and benefits on businesses operating within their respective borders, the Dormant Commerce Clause precludes a State from so crafting its statutes as to discriminate against or unduly burden interstate commerce. The Supreme Court has adopted a two-tiered approach in the application of its Dormant Commerce Clause jurisprudence. "When a State statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests," the Supreme Court has "generally struck down the statute without further inquiry." Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579, 106 S. Ct. 2080, 2084, 90 L. Ed. 2d 552 (1986). "When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly," the Supreme Court has "examined whether the State's interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits." Id. With respect to state taxes, a tax scheme is discriminatory if it "tax[es] a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State." Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 342, 112 S. Ct. 2009, 2014, 119 L. Ed. 2d 121 (1992) (quoting Armco, Inc. v. Hardesty, 467 U.S. 638, 642, 104 S. Ct. 2620, 2622, 81 L. Ed. 2d 540 (1984)). A state taxation scheme that on its face discriminates against interstate commerce is "virtually per se invalid." Oregon Waste Systems, Inc. v. Department of Envtl. Quality, 511 U.S. 93, 99, 114 S. Ct. 1345, 1350, 128 L. Ed. 2d 13 (1994). Nonetheless, even a facially discriminatory tax may survive a Dormant Commerce Clause challenge if it is a "compensatory tax," that is, a tax "designed simply to make interstate commerce bear a burden already borne by intrastate commerce." Associated Industries of Missouri v. Lohman, 511 U.S. 641, 647, 114 S. Ct. 1815, 1820-21, 128 L. Ed. 2d 639 (1994). In Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S. Ct. 848, 133 L. Ed. 2d 796 (1996), the Supreme Court examined a North Carolina tax that the State claimed was purportedly compensatory. The State of North Carolina imposed an intangibles tax on the fair market value of stock owned by North Carolina residents. Id. at 327-28, 116 S. Ct. at 852. The State, however, reduced the base of the intangibles tax by an amount that varied with the proportion of the corporation's income subject to North Carolina income tax. Id. Under this variable reduction scheme, residents who owned stock in a corporation that earned all of its income in North Carolina paid no intangibles tax, while residents who owned stock in a corporation that earned all of its income outside North Carolina paid the intangibles tax on the full fair market value of the shares owned. Id. Because the tax was computed on a different net base depending on the extent of the corporation's out-of-state activities, it facially discriminated against interstate commerce. Id. at 328, 333 & n. 3, 116 S. Ct. at 852 & n. 3 (quoting Maryland v. Louisiana, 451 U.S. 725, 760, 101 S. Ct. 2114, 2136, 68 L. Ed. 2d 576 (1981) ("We need not know how unequal the Tax is before concluding that it unconstitutionally discriminates.")). The Supreme Court then addressed whether the North Carolina intangibles tax was nonetheless valid as a "compensatory tax." The Supreme Court set forth three conditions for upholding a discriminatory tax as a "compensatory tax": Fulton, 516 U.S. at 332-33, 116 S. Ct. at 854-55 (citations omitted). The Supreme Court rejected North Carolina's argument that its general corporate income tax imposed an intrastate burden for which the specific intangibles tax was meant to compensate.[4]Id. at 334-36, 116 S. Ct. at 855-56. "[P]ermitting discriminatory taxes on interstate commerce to compensate for charges purportedly included in general forms of intrastate taxation would allow a state to tax interstate commerce more heavily than in-state commerce anytime the entities involved in interstate commerce happened to use facilities supported by general state tax funds." Id. at 335, 116 S. Ct. at 856 (quoting Oregon Waste, 511 U.S. at 105 n. 8, 114 S. Ct. at 1353-54 n. 8 (quoting Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F.2d 1267, 1284 (7th Cir.1992), cert. denied, 506 U.S. 1053, 113 S. Ct. 977, 122 L. Ed. 2d 131 (1993))). Next, the Supreme Court held that North Carolina had failed to demonstrate that its intangibles tax on interstate commerce roughly approximated, but did not exceed, that portion of its general corporate income tax on intrastate commerce that benefited foreign corporations (by creating a capital market that facilitated the sale of stock to North Carolina residents). Id. at 337-38, 116 S. Ct. at 856-57. The Supreme Court stated that "[w]here general forms of taxation are involved, we ordinarily cannot even begin to make the sorts of quantitative assessments that the compensatory tax doctrine requires." Id. at 338, 116 S. Ct. at 857. Finally, the Supreme Court held that North Carolina had failed to show that the events taxed by the intangibles tax, which taxed the value of stock, and by the general corporate income tax, which taxed income, were "substantially equivalent." Id. at 338-44, 116 S. Ct. at 857-60 "Although we found such equivalence in the sales/use tax combination at issue in [Henneford v. Silas Mason Co., 300 U.S. 577, 57 S. Ct. 524, 81 L. Ed. 814 (1937) ], our more recent cases have shown extreme reluctance to recognize new compensatory categories." Id. at 338, 116 S. Ct. at 857. The Supreme Court then concluded: "While we doubt that such a showing can ever be made outside the limited confines of sales and use taxes, it is enough to say here that no such showing has been made." Id. at 344, 116 S. Ct. at 860. Like the North Carolina intangibles tax, the Alabama franchise tax facially discriminates against interstate commerce. The State imposes the domestic corporation franchise tax on a base generally equal to the par value of the corporation's stock. See Ala. Code 1975, § 40-14-40 (imposing a 1% tax on the capital stock of domestic corporations). It imposes the foreign corporation franchise tax on a base generally equal to the portion of a corporation's total capital (that is, the par value of its stock, plus surplus, plus long-term debt, etc.) employed in the state, computed in accordance with generally accepted accounting principles. See Ala.Code 1975, § 40-14-41 (imposing a 0.3% tax on the capital employed in Alabama by foreign corporations). It is not facially apparent that application of the foreign franchise tax rate (0.3%) to the much larger base of par value plus other items such as surplus and long-term debt merely equalizes the burden produced by the application of the domestic franchise tax rate (1%) to the easily manipulable base of par value. Simply by changing its state of incorporation from Alabama to any other state, a corporation operating in Alabama subjects numerous additional items on its balance sheet (e.g., surplus, long-term debt) to Alabama franchise taxation. The franchise tax facially discriminates against interstate commerce, and arguments over the degree of the discrimination do not affect this characterization. See, e.g., Associated Indus., *1011 511 U.S. at 650, 114 S. Ct. at 1822 ("[A]ctual discrimination, wherever it is found, is impermissible, and the magnitude and scope of the discrimination have no bearing on the determinative question of whether discrimination has occurred.") (citing Maryland v. Louisiana, 451 U.S. at 760, 101 S. Ct. at 2136 (1981)). Accordingly, Alabama's discriminatory foreign franchise tax can withstand a challenge under the Dormant Commerce Clause challenge only if that tax may be properly characterized as a "compensatory tax." The State asserts that the higher rate of the domestic franchise tax and the additional tax imposed only on the shares of domestic corporations combine to impose an intrastate burden for which the higher foreign franchise tax compensates. See Ala.Code 1975, § 40-14-70 (imposing a shares tax by subjecting to property taxes 20% of a base roughly equal to the book value of the domestic corporation). Although this Court accepted a similar argument in Reynolds Metals, 558 So. 2d at 382-90, the Supreme Court has since clarified and narrowed the definition of a compensatory tax. Fulton, 516 U.S. at 332-33, 116 S.Ct. at 854-55; Oregon Waste, 511 U.S. at 102, 114 S. Ct. at 1351. Assuming, arguendo, that the State has satisfied the first prong of Fulton, 516 U.S. at 332, 116 S. Ct. at 854, by identifying intrastate taxes for which the discriminatory interstate tax is meant to compensate, the discriminatory interstate tax does not meet the second and third prongs of the Supreme Court's narrow definition. The State has failed to demonstrate that its tax on interstate commercethat is, the portion of the foreign franchise tax produced by the higher tax baseroughly approximates, but does not exceed, the portion of the intrastate domestic franchise tax produced by the higher rate and the intrastate corporate shares tax. See Fulton, 516 U.S. at 332-33, 116 S. Ct. at 854-55. In the face of the State's indefinite assertion that the general burden of the domestic franchise tax and the shares tax roughly approximates the burden imposed by the foreign franchise tax, the Taxpayers offer substantial evidence supporting the proposition that the foreign franchise tax exceeds any intrastate burden. The State, and not this Court, bears the exacting burden of showing that the interstate tax roughly approximates, but does not exceed, the identified intrastate taxes. See Oregon Waste, 511 U.S. at 105, 114 S. Ct. at 1353 (stating that the Supreme Court will not "plunge ... into the morass of weighing comparative tax burdens"). The State has not borne its burden, and therefore has not met the second prong of Fulton. The State also fails to show that the events taxed by Alabama's intrastate taxes and the interstate tax are "substantially equivalent." See Fulton, 516 U.S. at 333, 336-38, 116 S. Ct. at 855, 856-57. Unlike the mirror-image sales and use taxes approved in Silas Mason, 300 U.S. 577, 57 S. Ct. 524, 81 L. Ed. 814, which were, generally speaking, imposed on in-state and out-of-state sales, the foreign franchise tax is imposed on the event of doing business in the State, while the shares tax is imposed on the ownership of shares of stock. These two significantly different taxes cannot be viewed as "mutually exclusive proxies" for each other. See Fulton, 516 U.S. at 333, 338-40, 116 S. Ct. at 855, 857-58. The State has not met the third prong of Fulton. The Alabama foreign franchise tax cannot be sustained as a compensatory tax. Accordingly, I would reverse the judgment of the trial court and remand for a determination of the proper remedy. I dissent. KENNEDY and BUTTS, JJ., concur. [1] These included: BellSouth Corporation; BellSouth Services, Inc.; BellSouth Financial Services Corporation; BellSouth Advertising & Publishing Company; BellSouth Resources, Inc.; Alabama Cellular Services, Inc.; Sunlink, Inc.; and TechSouth, Inc. [2] I note that, according to the record, the same attorney represented South Central Bell; BellSouth Corporation; BellSouth Services, Inc.; BellSouth Financial Services Corporation; BellSouth Advertising & Publishing Company; BellSouth Resources, Inc.; Alabama Cellular Services, Inc.; SunLink, Inc.; and TechSouth, Inc., before the trial court. Further, the same attorney represented CSX Transportation, Inc., in the cases it filed; see infra. That attorney continued to represent all the plaintiffs in this consolidated case through proceedings before the trial court, and he, along with additional counsel, continues to represent the plaintiffs before this Court. [3] See, generally, Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 70 S. Ct. 252, 94 L. Ed. 562 (1950), for a discussion of the effect of a denial of certiorari review. [4] The Supreme Court noted that the identified intrastate tax must serve a legitimate purpose for which the State could impose a burden on interstate commerce. Fulton, 516 U.S. at 334-36, 116 S. Ct. at 855-56. The Supreme Court rejected North Carolina's argument that its general corporate income tax supported a capital market that the corporations had availed themselves of by selling stock to North Carolina residents. Id. The Supreme Court held that the relationship between North Carolina's general corporate income tax and its capital markets was too tenuous to allow a general tax on intrastate activities to serve as a complement to a specific discriminatory tax on interstate commerce. Id. at 336, 116 S. Ct. at 856.

March 20, 1998

7bdd30c8-dcd1-497e-9c21-dc15fe3404cf

ROBERT FRANK McALPINE ARCH., INC. v. Heilpern

712 So. 2d 738

1961928

Alabama

Alabama Supreme Court

712 So. 2d 738 (1998) ROBERT FRANK McALPINE ARCHITECTURE, INC., and Robert Frank McAlpine v. William E. HEILPERN and Lauda Heilpern. 1961928. Supreme Court of Alabama. March 27, 1998. Michael K. Beard and Bryan O. Balogh of *739 Starnes & Atchison, Birmingham, for appellants. L. Landis Sexton of Beasley, Wilson, Allen, Crow & Methvin, P.C., Montgomery, for appellees. HOUSTON, Justice. The defendants, Robert Frank McAlpine and Robert Frank McAlpine Architecture, Inc., appeal from the trial court's order denying their motion to compel arbitration of the various contract and tort claims filed against them by the plaintiffs, William E. Heilpern and his wife Lauda Heilpern. We reverse and remand. The facts pertinent to this appeal are undisputed. The Heilperns, who are Montgomery residents, hired Robert Frank McAlpine, a Montgomery architect, to provide architectural services in connection with the remodeling of their house. The Heilperns and McAlpine executed a contract entitled "Standard Form of Agreement Between Owner and Architect"; that contract contained the following predispute arbitration clause: In the course of providing services to the Heilperns, McAlpine specified that certain items were to be used in the remodeling, such as appliances, plumbing fixtures, lighting fixtures, etc., that could be acquired only from out-of-state manufacturers. The contractor hired by the Heilperns to perform the remodeling work was, thus, required to purchase those items from out of state and to have them shipped into Alabama (e.g., from New York, Pennsylvania, Wisconsin, and Massachusetts). Ultimately, the Heilperns, dissatisfied with the work done on their house, sued McAlpine individually and his architectural firm vicariously, as well as the contractor and the contractor's firm, seeking damages based on allegations of breach of contract, fraud, conversion, and conspiracy. This appeal concerns only the trial court's denial of the McAlpine defendants' motion to compel arbitration. (Hereinafter, both McAlpine and his firm are referred to as "McAlpine.") Under the Federal Arbitration Act, 9 U.S.C. §§ 1-16 ("FAA"), "[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The Heilperns do not dispute that their contract with McAlpine is one "involving commerce" within the meaning of § 2 of the FAA. Neither do the Heilperns dispute that the arbitration clause contained in the contract is broad enough in scope to encompass all of their claims. Rather, the Heilperns contend, and the trial court held, that § 1 of the FAA exempts their contract from the operation of federal arbitration law; therefore, they argue, federal law does not preempt Alabama statutory law and public policy prohibiting enforcement of predispute arbitration agreements.[1] Section 1 of the FAA, in pertinent part, states that "nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." McAlpine contends that § 1 should be construed narrowly so as to exempt only employment contracts of workers directly engaged in the movement of goods in interstate commerce, i.e., in the transportation *740 and distribution of goods in interstate commerce. McAlpine argues that, although his contract involved interstate commerce, for purposes of applying the FAA, he was not directly engaged in the movement of goods in interstate commerce during the time he worked for the Heilperns. The Heilperns contend that § 1 should be construed broadly so as to exempt from the provisions of § 2 all contracts of employment that facilitate or affect interstate commerce (even tangentially); therefore, the Heilperns maintain, the arbitration clause is not valid and enforceable under the FAA. McAlpine contends, in the alternative, that his contract with the Heilperns is not an employment contract within the meaning of § 1, but, instead, is one for an independent contractor's "services," and that a contract for such services is not covered by the exemption set out in § 1. The Heilperns argue that the contract is an employment contract within the meaning of § 1 and that, even if McAlpine is correct in his interpretation of the scope of the exemption, the contract would fall within the exemption because, they say, McAlpine was directly engaged in the movement of goods in interstate commerce. Initially, we note that the record does not support the Heilperns' argument that McAlpine was engaged in the movement of goods in interstate commerce during the time he worked for them. In an affidavit filed in support of his motion to compel arbitration, McAlpine stated: This Court is not the first to consider the scope of the exclusion set out in § 1 of the FAA. In fact, it appears that the courts of appeals for 10 of the federal circuits have addressed this particular issue and that each of those courts has held that the exclusionary language in § 1 should be narrowly construed. In Asplundh Tree Expert Co. v. Bates, 71 F.3d 592, at 600-01 (6th Cir.1995), the United States Court of Appeals for the Sixth Circuit surveyed the law among the federal circuits and held that § 1 of the FAA "should be narrowly construed to apply to employment contracts of seamen, railroad workers, and any other class of workers actually engaged in the movement of goods in interstate commerce in the same way that seamen and railroad workers are." Because the opinion in Asplundh contains an extensive history of the construction that has been placed on § 1 by the courts of appeals for the federal circuits, we quote from it extensively, beginning at page 596: *"Senator Walsh's questions in the hearing of January 31, 1923, reflect his understanding that the literal language of the Act would cover individual employment contracts, insurance contracts, building contracts and shipping contracts, not just commercial disputes between merchants. Senator Walsh seemed to suggest that, in order to overcome his objections, the proposed Act should be amended to cover only commercial disputes between merchants the kind of disputes described by the subcommittee's first witness, Mr. Bernheimer as illustrated by the senator's comment: `Mr. Piatt, perhaps you could think of some way by which that objection could be obviated. I really believe that in the class of cases that Mr. Bernheimer has in mind, it would be a very useful thing, and I would be disposed to favor it[.]' Hearing on S. 4213 and S. 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 11 (1923). Of course, no such amendment was made." 71 F.3d at 596-602. Since the Sixth Circuit decided Asplundh, the Court of Appeals for the Fifth Circuit, in Rojas v. T.K. Communications, Inc., 87 F.3d 745 (5th Cir.1996);[4] the Court of Appeals for the District of Columbia, in Cole v. Burns International Security Services, 105 F.3d 1465 (D.C.Cir.1997); the Court of Appeals for the Eighth Circuit, in Patterson v. Tenet Healthcare, Inc., 113 F.3d 832 (8th Cir.1997); and the Court of Appeals for the Eleventh Circuit, in Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054 (11th Cir. 1998),[5] have adopted the rationale of the *747 First, Second, Third, Sixth, and Seventh Circuits and have narrowly construed § 1 so as to foster a broader application of the FAA. The court in Cole made the following pertinent observations: 105 F.3d at 1471-72. In addition, the Court of Appeals for the Fourth Circuit, in O'Neil v. Hilton Head Hospital, 115 F.3d 272, 274 (4th Cir.1997), recently joined the other courts of appeals that have addressed the issue, by holding that a respiratory therapist employed by a hospital was not included in the § 1 exemption because, the court said, she "was not engaged in the interstate transportation of goods." In so holding, the court noted that its previous decision in United Electrical, Radio & Machine Workers v. Miller Metal Products, Inc., 215 F.2d 221 (4th Cir.1954), which was discussed and questioned in Asplundh, supra, was no longer controlling with respect to the issue of the construction to be placed on § 1. The court stated that it agreed with the uniform body of precedent from the federal courts of appeals, and it noted: 115 F.3d at 274, n. 1.[6] In addition, we note that the Court of Appeals for the Third Circuit recently reaffirmed its holding in Tenney. See Great Western Mortgage Corp. v. Peacock, 110 F.3d 222 (3d Cir.1997), cert. denied, ___ U.S. ___, 118 S. Ct. 299, 139 L. Ed. 2d 230 (1997) (rejecting the argument that Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110 (3d Cir.1993), had changed the law in the Third Circuit). See, also, Farmland Dairies, Inc. v. Milk Drivers & Dairy Employees Union Local 680, Int'l Brotherhood of Teamsters, AFL-CIO, 956 F. Supp. 1190 (D.N.J.1997) (following Tenney); and Nieves v. Individualized Shirts, 961 F. Supp. 782 (n. 3) (D.N.J. 1997) (providing additional history and noting the majority trend of narrowly construing § 1). It is also significant, we think, that even though the Ninth and Tenth Circuits have apparently not directly spoken to this issue, some federal district courts within those circuits have followed the majority of the federal courts of appeals that have *749 spoken to the issue. See Golenia v. Bob Baker Toyota, 915 F. Supp. 201 (S.D.Cal. 1996), wherein the district court concluded that there was no binding precedent in the Ninth Circuit and followed the majority of the federal circuits, refusing to be bound by the "one-line dictum" to the contrary in Herring v. Delta Air Lines, Inc., 894 F.2d 1020, 1023 (9th Cir.1989), cert. denied, 494 U.S. 1016, 110 S. Ct. 1319, 108 L. Ed. 2d 495 (1990), which, the court stated, lacked analysis and supporting citation to authority. But see Mittendorf v. Stone Lumber Co., 874 F. Supp. 292 (D.Or.1994). Also, in Durkin v. CIGNA Property & Casualty Corp., 942 F. Supp. 481 (D.Kan.1996), the federal district court, questioning the holding in Mercury Oil Refining Co. v. Oil Workers International Union, CIO, 187 F.2d 980 (10th Cir.1951), concluded that the question of the proper construction to be placed on § 1 had not been resolved in the Tenth Circuit and followed Tenney and Asplundh. See, also, McWilliams v. Logicon, Inc., (No. 95-2500, D.Kan., July 9, 1996) (not published in Federal Supplement) (following Asplundh). Our research has also revealed that at least two state courts presented with the issue have followed the trend of the federal courts of appeals in construing § 1 narrowly. Addressing the issue for the first time, the Supreme Court of Hawaii, in Brown v. KFC National Management Co., 82 Haw. 226, 921 P.2d 146 (1996), reconsideration denied, 82 Haw. 360, 922 P.2d 973 (1996), noted the district court's holding in Golenia and followed the majority of the federal circuits. See, also, Freeman v. Minolta Business Systems, Inc., 699 So. 2d 1182 (La.App.1997). After carefully considering the record and the briefs, we are persuaded by the considerable body of federal court of appeals decisions that has developed with respect to this issue. We are particularly persuaded by the observation that a narrow interpretation of § 1 is supported by the Supreme Court's decision in Allied-Bruce Terminix Companies v. Dobson, supra. The Supreme Court specifically held in Allied-Bruce Terminix that the words "involving commerce," as used in § 2 of the FAA, were intended by Congress to be broader in scope than the "often found words of art `in commerce.'" 513 U.S. at 273, 115 S. Ct. at 839. The Court stated that the words "in commerce" (the words used in § 1 of the FAA) covered only persons or activities within the flow of interstate commerce and that the word "flow" included the generation of goods and services for interstate markets and their transport and distribution to the consumer. 513 U.S. at 273, 115 S. Ct. at 839. We also agree with the conclusion reached by the courts of appeals for the various circuits that Congress's specific reference to seamen and railroad workers reflects an intent to limit the scope of the exemption to workers directly engaged in the transportation of goods in an interstate market, as opposed to workers involved in the generation of goods and services for interstate markets. Therefore, we hold, as 10 United States Courts of Appealsthose for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits and the District of Columbiahave held: that the § 1 exemption of "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce" covers only those workers directly engaged in the movement of goods in interstate commerce, i.e., those workers directly engaged in the interstate transportation and distribution of goods. We conclude, as all of the federal courts of appeals that have considered the issue have apparently concluded, that the § 1 exemption was included by Congress as a concession to organized labor, specifically the Seamen's Union, and that, consistent with Congressional intent that the FAA be broad in scope, the exemption was intended to be a narrow one, not applying to employment contracts across the board, but, instead, to the employment contracts of those workers directly engaged in the movement of goods in interstate commerce. See American Postal Workers Union, AFL-CIO v. United States Postal Service, 823 F.2d 466, 470, 473 (11th Cir.1987), wherein the Court of Appeals for the Eleventh Circuit, although finding it unnecessary to reach this issue in that case, nonetheless noted: 823 F.2d at 470-71. Therefore, because McAlpine, in the performance of his contract with the Heilperns, was not engaged in the transportation and distribution of goods in interstate commerce, the contract does not fall within the § 1 exemption, and the FAA applies. The trial court's order denying McAlpine's motion to compel arbitration is reversed, and the cause is remanded for further proceedings. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX and SEE, JJ., concur. ALMON, J., concurs in the result. [1] The specific enforcement of a predispute arbitration agreement is barred by both Alabama's statutory law and its public policy, unless federal law preempts them. Lopez v. Home Buyers Warranty Corp., 670 So. 2d 35 (Ala.1995). But see Article IV, § 84, Constitution of Alabama of 1901 (called to the author's attention on March 24, 1998, by Associate Justice Champ Lyons). The FAA preempts contrary state law and, thus, renders enforceable a predispute arbitration agreement contained in a contract that "involves" interstate commerce. Jim Burke Automotive, Inc. v. Beavers, 674 So. 2d 1260 (Ala.1995), citing Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). For an in-depth discussion of the breadth of Congress's regulatory power under the Commerce Clause (in the arbitration context), see Hurst v. Tony Moore Imports, Inc., 699 So. 2d 1249 (Ala.1997). [2] In light of our specific holding in this case, we pretermit any discussion of McAlpine's alternative argumentthat § 1 does not exempt contracts for the performance of independent architectural services. [3] The Court in Tenney also observed: "It must be remembered that the Arbitration Act of 1925 was drawn and passed at a time when the concept of Congressional power over individuals whose activities affected interstate commerce had not developed to the extent to which it was expanded in the succeeding years. The area in which Congress then generally legislated is illustrated by the Federal Employers' Liability Act of 1908 which applied to a railroad employee injured `while he is employed by such carrier [by railroad] in such [interstate or foreign] commerce.' This language had been construed by the Supreme Court to include only employees engaged in interstate transportation or in work so closely related to it as to be practically a part of it. In incorporating almost exactly the same phraseology into the Arbitration Act of 1925 its draftsmen and the Congress which enacted it must have had in mind this current construction of the language which they used. "Moreover when Congress later proceeded to exercise power under the commerce clause in the expanded area, to which we have referred, it continued to use the phrase `engaged in commerce' in the narrower sense while using other and more precise language to include activities merely affecting commerce. Thus Congress made the Fair Labor Standards Act applicable not only to employees `engaged in commerce' but also to those engaged `in the production of goods for commerce.' Congress, as the Supreme Court pointed out in McLeod v. Threlkeld, 1943, 319 U.S. 491, 63 S. Ct. 1248, 87 L. Ed. 1538, has thus used precise language in this field to carry out its intentions. We think it did so in the Arbitration Act of 1925." 207 F.2d at 453. [4] We note the Heilperns' reference to Arce v. Cotton Club of Greenville, Inc., 883 F. Supp. 117 (N.D.Miss.1995), in which a Mississippi federal district court ruled that § 1 exempted all employment contracts from the operation of the FAA. That decision was announced on April 28, 1995. The Rojas decision was announced on July 11, 1996. The Arce decision is, therefore, not the law in the Fifth Circuit. [5] Paladino was decided on February 4, 1998, by a three-judge panel composed of Chief Judge Hatchett and Judges Cox and Tjoflat. We note that Chief Judge Hatchett, in a separate opinion (which on its face appears to be the lead opinion in the case), at n. 1, did not reach the question concerning the scope of § 1: "It is assumed that the exception contained in section 1 of the FAA for `contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce' does not apply to the agreement at issue here. It is best not to decide this issue because it is unclear that the district court fully considered it, and because Paladino failed to adequately develop the record with respect to her actual responsibilities as a Regional Technical Sales Consultant for the Southeastern United States. Although a majority of the circuits that have addressed the section 1 exception have construed it narrowly, see Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465, 1470-72 (D.C.Cir.1997) (listing cases and adopting narrow construction of section 1's scope), a considerable body of scholarly opinion suggests that those circuits' view of section 1 is incorrect. See generally Joseph R. Grodin, Arbitration of Employment Discrimination Claims: Doctrine and Policy in the Wake of Gilmer, 14 Hofstra Lab. L.J. 1 (1996); Matthew W. Finkin, `Workers' Contracts' Under the United States Arbitration Act: An Essay in Historical Clarification, 17 Berkeley J. Emp. & Lab. L. 282 (1996). The issue of section 1's scope was raised, but not decided, in the Supreme Court's Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991), decision." 134 F.3d at 1057. However, Judge Cox, joined by Judge Tjoflat, specifically addressed the issue, stating: "Furthermore, the appearance of the arbitration clause in an employment contract does not exempt the clause from the FAA under that Act's first section. All but one of the other circuits to have addressed the issue have held that the FAA § 1's exemption [sic] of `contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,' 9 U.S.C. § 1, includes only employees actually engaged in transportation of goods in commerce. [Citations omitted.] This construction accords with the statute's text and history. [Citation omitted.] Although the district court may not have addressed this issue (we have no opinion in the record to tell us), the issue is presented in this case, and we join these other circuits. "According to the allegations of the complaintthe only facts we have at present Paladino provided technical support to computer system salespeople. There is no evidence that this required her to move goods in interstate commerce. The employment contract therefore does not fall within § 1's exclusion." 134 F.3d at 1060-61. See, also, Albert v. National Cash Register Co., 874 F. Supp. 1324 (S.D.Fla. 1994), in which a Florida federal district court came to the same conclusion in 1994. [6] See, also, Rudolph v. Alamo Rent A Car, Inc., 952 F. Supp. 311 (E.D.Va.1997), which questioned the vitality of Miller Metal Products and foretold the decision of the Fourth Circuit in O'Neil.

March 27, 1998

800c7b12-6101-4a55-be1f-fcf33a348b99

Ex Parte Hood

712 So. 2d 341

1970055

Alabama

Alabama Supreme Court

712 So. 2d 341 (1998) Ex parte Ronald Joe HOOD. (Re Ronald Joe HOOD v. GOLDEN POULTRY COMPANY, INC.). 1970055. Supreme Court of Alabama. March 20, 1998. *342 G. Whit Drake of Emond & Vines, Birmingham, for petitioner. Robert P. Fann and Michael B. Odom of Fann & Rea, P.C., Birmingham, for respondent. SHORES, Justice. Ronald Joe Hood, the plaintiff in an action pending in the Franklin Circuit Court, petitions for a writ of mandamus directing Judge John D. Jolly to vacate his order granting the motion of the defendant, Golden Poultry Company, Inc. ("Golden"), to stay judicial proceedings pending arbitration. We grant the petition. In June 1994, Hood was hired by Golden as a truck driver to deliver chickens in various states. On June 15, 1994, soon after Hood had started work, Golden's personnel manager called Hood into his office and told him to sign certain documents relating to his employment. Among the documents Hood signed was a one-page agreement stipulating that "any controversy or claim arising out of or relating to the Agreement, or the breach thereof, or arising out of or relating to my employment or separation from employment... shall be resolved by arbitration." On August 23, 1994, while working in the line and scope of his employment with Golden, Hood injured his left knee. He missed some time from work, and his attending physician assigned him a five percent permanent partial impairment from the injury. On March 24, 1995, Golden terminated Hood's employment. On June 23, 1995, Hood and Golden, acting pursuant to § 25-5-56, Ala. Code 1975, filed in the Franklin Circuit Court a joint petition for approval of a settlement of Hood's claim for workers' compensation benefits. On November 20, 1995, the parties filed a second joint petition for approval of a settlement of the claim, in order to foreclose Hood's claiming future medical benefits under the Workers' Compensation Act. On November 20, 1996, Hood initiated this action in the Franklin Circuit Court, alleging that Golden had terminated his employment solely because he had sought workers' compensation benefits and that Golden had thereby violated § 25-5-11.1, Ala.Code 1975. On December 13, 1996, Golden removed the case to the United States District Court for the Northern District of Alabama. Thereafter, Hood moved to remand the case to the state court, arguing that the case was not properly removable, because of 28 U.S.C. § 1445(c), which provides that "a civil action in any State court arising under the workmen's compensation laws of any such State may not be removed to any district court of the United States." On January 22, 1997, while the case was pending in the federal court, an additional attorney for Golden filed a notice of appearance. On January 27, 1997, the parties' attorneys met, pursuant to Rule 26(f), Fed.R.Civ.P., to formulate a discovery plan to govern the litigation in the district court. At this meeting, Golden agreed to a scheduling plan for the district court to adopt. The agreement signed by *343 Golden's attorney stated: "The case should be ready for trial by October 1997 and at this time is expected to take approximately 3 days." Two months later, in a letter dated March 27, 1997, counsel for Golden first advised Hood's counsel that Golden intended to seek enforcement of the arbitration agreement instead of going to trial in the federal court. The following day, Golden filed its answer, pleading as an affirmative defense that the "plaintiff's cause of action against the defendant is barred by a valid and enforceable Arbitration Agreement executed by the plaintiff." On April 3, 1997, Golden moved the federal district court to stay the case pending arbitration, pursuant to the agreement signed by Hood. Before ruling on that motion, the federal court, on April 30, 1997, granted Hood's motion to remand the case to the Franklin Circuit Court, on the ground that the removal had been improper, because of 28 U.S.C. § 1445(c). On remand, the state circuit judge held a hearing on the motion to stay the case pending arbitration and later entered an order granting Golden's motion, holding that the arbitration agreement was enforceable and that Golden had not waived its right to have Hood's claim arbitrated. Hood petitions for a writ of mandamus directing the trial court to set aside its order staying the case pending arbitration. A petition for the writ of mandamus is the appropriate means by which to challenge a trial court's order compelling arbitration. Ex parte Jones, 686 So. 2d 1166 (Ala.1996). Mandamus is an extraordinary remedy, and it requires a showing that there is: "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Prendergast, 678 So. 2d 778, 779 (Ala.1996) (citation omitted). We must review the trial court's decision for an abuse of discretion. Id. Hood argues that the trial court abused its discretion by compelling arbitration, because, he argues 1) Golden waived its right to arbitrate and 2) the arbitration agreement is unenforceable for lack of mutuality of obligation and remedy. Writing for the Court in Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897 (Ala.1995), Justice Houston discussed the issue of a party's waiver of a contractual right to arbitrate: 670 So. 2d at 899 (citations omitted). Applying these principles to the facts in Companion Life, this Court held that the trial court had not abused its discretion in denying the motion of the defendant, Companion Life Insurance Company, to compel arbitration, because Companion had waived its right to arbitration. We agreed with the trial court that Companion's response to Whitesell's complaint, whereby Companion removed the case to a federal court; filed an answer contending that the plaintiff's claims were preempted by ERISA; filed a case scheduling-meeting report pursuant to Rule 26(f), Fed.R.Civ.P.; and sought for the first time to enforce the arbitration agreement five months after the complaint was filed, "was inconsistent with any desire that [Companion] may have had to resolve the case by arbitration" and "certainly indicate[d] an intention on Companion's part, at least initially, to forfeit its right of arbitration in favor of a judicial resolution." 670 So. 2d at 899. We further agreed that Whitesell would be substantially prejudiced if Companion were allowed to invoke the arbitration clause because Whitesell had incurred substantial *344 costs in time and money to have the case remanded to the state court, expenses that Whitesell would have been spared had Companion invoked the arbitration clause earlier. Id. After reiterating that whether a party has waived the right to arbitration must be determined on a case-by-case basis, the Companion Life Court quoted with approval Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390-91 (7th Cir.1995), in which the United States Court of Appeals for the Seventh Circuit discussed the significance of a party's removing a case to a federal court as a factor affecting the determination of whether that party has waived its right to enforce an arbitration agreement. That discussion is equally relevant here: Companion Life, 670 So. 2d at 900-01 (emphasis in Cabinetree). It is apparent that the instant case is different from both Companion Life and Cabinetree in this one material respect: The trial courts in those two cases found that the parties seeking an order compelling arbitration had waived that right, while here the trial court found that Golden had not waived its right. Nonetheless, we conclude that the reasoning of those cases and their factual similarity to this case demonstrates that the trial court here abused its discretion in finding that Golden had not waived its contractual right to insist that Hood arbitrate his retaliatory discharge claim. Like the defendants in Companion Life and Cabinetree, the defendant in this case responded to the plaintiff's complaint not by seeking enforcement of the arbitration agreement but by invoking the judicial process, by removing the case to a federal court and engaging with the plaintiff's counsel to schedule how the litigation would proceed to trial in that forum. Golden attempts to explain that its removal of the case to the federal court did not represent a decision to proceed in that judicial forum but that it was, rather, merely a bid to increase its chances of obtaining an order compelling Hood to arbitrate his claim. Golden submits that arbitration is generally looked upon more favorably in federal courts than in most Alabama state courts. Even if we were to accept the truth of that proposition, it still does not explain why Golden, upon removal, failed to notify immediately either Hood or the federal district court that Golden would seek arbitration instead of resolving the dispute in the federal judicial forum. The Court of Appeals' opinion in Cabinetree does suggest that removal accompanied by an immediate motion to stay proceedings pending arbitration would indicate an intent to resolve the controversy through arbitration.[1] However, it was not until at least March 27, 1997, more than three months after removal and two months after the parties' counsel had met to discuss how the federal litigation would proceed, that Golden gave notice in correspondence and in its answer that it intended to enforce the arbitration agreement. This unexplained delay, after removal, in seeking arbitration, and Golden's proceeding as if the case would be resolved in the federal court substantially prejudiced Hood in exactly the same way the delay prejudiced the plaintiff in Companion Life: by allowing him to spend both time and money having the case remanded for a trial in the proper state forum, expenses that could have been avoided had Golden given timely notice of its intent to arbitrate. Golden responds with the argument that its initial answer, unlike that of the defendant in Companion Life, clearly pleaded that the plaintiff's claim was subject to arbitration pursuant to a contract. Golden emphasizes that in Companion Life it was only after the case was remanded to the state court that the defendant filed an amended answer asserting, *346 for the first time, the applicability of the arbitration agreement. See 670 So. 2d at 898. Golden argues that because its answer in this case stated that Hood's claim is subject to an arbitration agreement, "it is both logically and legally impossible for [Golden] to have waived its right to arbitrate." Brief of respondent, at 20. As authority for this proposition, Golden refers us to Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So. 2d 1 (Ala.1986). In Ex parte Merrill Lynch, this Court held that the defendants had not substantially invoked the litigation process and had therefore not waived the right to seek arbitration, despite the fact that the defendants had (1) filed a motion to dismiss, (2) filed a motion to stay proceedings to await the outcome of pending federal multidistrict class action litigation, and (3) waited over one year after the filing of the complaint before actually filing a motion to stay pending arbitration. Indeed, the Court did appear to find it significant that the defendant had not answered the plaintiff's complaint before moving to compel arbitration, noting that "`[m]erely answering on the merits, asserting a counterclaim (or cross-claim) or participating in discovery, without more, will not constitute a waiver,'" and that "`the earliest point at which waiver of the right to arbitration may be found "is when the other party files an answer on the merits."`" Ex parte Merrill Lynch, 494 So. 2d at 3, quoting Clar Productions, Ltd. v. Isram Motion Pictures, 529 F. Supp. 381, 383 (S.D.N.Y.1982) (citations omitted). However, Golden reads Ex parte Merrill Lynch too broadly. It is normally true that the earliest point at which a party might be said to waive arbitration would be in its answer, because in most cases a party's answer would be the first pleading filed in response to a complaint. And we would also affirm that simply failing to plead in one's answer that a plaintiff's claims are subject to arbitration will not in itself constitute a waiver. However, neither principle compels the conclusion that a defendant's filing an answer affirmatively pleading an arbitration agreement necessarily precludes the possibility that the defendant has nonetheless already waived its right to arbitrate. Under the particular circumstances of Ex parte Merrill Lynch, the motions filed by the defendants and their delay in moving to compel arbitration did not represent a decision on their part to proceed in the judicial forum, but they were, rather, a response to the possibility that the plaintiff's claim would be litigated in a pending federal class action. See Ex parte Smith, 706 So. 2d 704, 706 (Ala.1997) (discussing and distinguishing Ex parte Merrill Lynch). We might assume that if Golden had immediately followed it its removal with service of its answer pleading an arbitration defense, such action would have been sufficient to put Hood on notice that Golden still intended in the federal court to reserve its right to seek arbitration. Cf. Terminix Int'l Co. v. Jackson, 669 So. 2d 893, 896 (Ala. 1995) (holding that the plaintiff did not establish a waiver where the defendant's answer had put the plaintiff on notice of an arbitration defense). Filing an answer at such a time might have indicated that Golden intended to pursue arbitration instead of a federal judicial remedy, and it would have given Hood the opportunity to avoid spending the resources necessary to have the case remanded to the state court for a trial. As it was, Golden removed the case to the federal court and proceeded as if it was preparing for a judicial resolution of Hood's claim. Golden's answer pleading the arbitration agreement simply came too late, after Golden had substantially invoked the judicial process, to the substantial prejudice of Hood. For the foregoing reasons, we conclude that the trial court abused its discretion in finding that Golden had not waived its right to seek arbitration pursuant to its contract with Hood. In light of our resolution of this issue, we pretermit any discussion of Hood's arguments that the arbitration agreement was invalid as lacking mutuality of obligation and remedy. Hood has shown, and we hold, that he is entitled to an order of the trial court setting aside its order staying judicial proceedings pending arbitration; his petition for the writ of mandamus is granted, and the trial court is directed to set aside that order. WRIT GRANTED. *347 ALMON, KENNEDY, COOK, and BUTTS, JJ., concur. HOOPER, C.J., and MADDOX and SEE, JJ., dissent. MADDOX, Justice (dissenting). Given the circumstances presented here, I must respectfully dissent from the majority's holding that Golden Poultry Company waived its right to arbitrate. On November 20, 1996, Hood filed his complaint, and on December 13,1996, Golden removed the case to a federal court. The record shows that on March 27, 1997, Golden wrote a letter to Hood's counsel, requesting that the parties voluntarily submit the dispute to arbitration without requiring that a motion to compel arbitration be filed. On March 28, 1997, in Golden's first answer, it raised as a defense that the retaliatory action was barred because of a valid enforceable arbitration agreement. On April 7, 1997, Golden filed a motion to compel arbitration. This Court has stated that "[b]ecause arbitration is so strongly favored, `"the burden on one seeking to prove waiver is a heavy one."`" Ex parte McKinney 515 So. 2d 693, 701 (Ala.1987) (quoting Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So. 2d 1, 2 (Ala.1986)). In its brief, Golden contends that it removed the case to the federal court because federal courts look more favorably on arbitration agreements than do the courts of this state. Unfortunately, there is merit in the claim that a majority of this Court has been hostile to arbitration. I do not believe that Golden substantially invoked the litigation process simply by removing the case to the federal court, especially in light of the record, which shows an effort to informally settle the matter and in light of this Court's continuing hostility toward enforcement of valid arbitration agreements. See Merrill Lynch, 494 So. 2d at 3 (stating that merely answering on the merits, asserting a counterclaim or crossclaim, or participating in discovery, without more, does not constitute a substantial invocation if the litigation process) (citing Demsey & Assocs. v. S.S. Sea Star, 461 F.2d 1009, 1018 (2d Cir.1972)). In its initial answer on the merits, Golden asserted the affirmative defense of arbitration. See Merrill Lynch, 494 So. 2d at 3 (indicating that a party clearly has not waived the right to arbitrate if it has asserted that right in its initial answer on the merits). I also do not believe Golden substantially delayed in moving to compel arbitration. Approximately four months after Hood filed his initial complaint, Golden notified Hood that it wanted to resolve the dispute through arbitration. See Merrill Lynch, 494 So. 2d at 3 (stating that the defendants' one-year delay in seeking arbitration did not prejudice the plaintiff). Within four and a half months, Golden moved to compel arbitration. In Ex parte Gates 675 So. 2d 371 (Ala. 1996), this Court addressed the question of waiver of arbitration, stating: 675 So. 2d at 364. Therefore, a party's substantial invocation of the litigation process is only one factor for the court to consider in determining whether the party has waived its right to arbitration. Even if Golden had substantially invoked the litigation process, and I do not believe it had in this case, Hood has not shown that he was prejudiced by any delay in Golden's moving to arbitrate the dispute. Further, his counsel was aware, within four months after the complaint was filed, that Golden wanted to enforce the arbitration agreement. Based on the foregoing, I dissent. HOOPER, C.J., and SEE, J., concur. [1] "`Kraftmaid if it wanted arbitration could have moved for a stay of Cabinetree's suit in the Wisconsin state court. It did not. Instead it removed the case to federal district court. By doing so without at the same time asking the district court for an order to arbitrate, it manifested an intention to resolve the dispute through the processes of the federal court.'" Companion Life, supra, 670 So. 2d at 900, quoting Cabinetree, supra (emphasis added).

March 20, 1998

1d0bf653-55bc-4709-9f57-89f4932a4780

Wehby v. Turpin

710 So. 2d 1243

1960833

Alabama

Alabama Supreme Court

710 So. 2d 1243 (1998) Norman A. WEHBY and Nancy H. Wehby v. Tommy E. TURPIN, et al. 1960833. Supreme Court of Alabama. February 20, 1998. *1245 Charles Cleveland of Cleveland & Cleveland, P.C., Birmingham, for appellants. C. Paul Cavender and Jolee Hancock Bollinger of Lange, Simpson, Robinson & Somerville, Burmingham, for Tommy E. Turpin and Marla Turpin. Philip G. Piggott of Spain & Gillon, Birmingham, for Landscape Services, Inc., and O.G. Touchstone III. HOUSTON, Justice. The opinion of December 19, 1997, is withdrawn and the following is substituted therefor. This case centers around a water-rights dispute involving a reconstructed man-made lake located near Chelsea, Alabama. The plaintiffs, Norman A. Wehby and Nancy H. Wehby, own property in a residential area (hereinafter "Chelsea Place"); that property includes a portion of the bed and shoreline of the lake. Two streams flow into the lake, including Yellowleaf Creek, which the Wehbys allege is capable of being traversed by boats and canoes during some parts of the year. In August 1979, Clarence W. Hatcher and his wife sold a portion of their Chelsea Place property to the Huffman Assembly of God ("the Church"), including most of the land on which the lake now lies. When the Church purchased the property, the lake bed was dry. The Church repaired the dam and reconstructed the lake. The Hatchers gave the Church permission to install a part of the dam and spillway on their property. The water level of the lake later rose, causing part of the Hatchers' property to flood. In exchange for the use of their property, the Church granted the Hatchers a license to use the lake for recreational purposes. It is undisputed that the Hatchers had a license to use the lake for recreational purposes and that every family owning land surrounding the lake also used the lake for such purposes. However, no documents exist indicating that the Church granted the Hatchers an easement over the lake. In 1985, the Wehbys purchased from the Hatchers the partially flooded property next to the lake. The property description in the warranty deed did not refer to the lake, and the deed did not mention any water rights. The title insurance policy the Wehbys obtained describes an easement granted to the Church for a road. However, the policy mentions no easement or conveyance regarding the lake, and it specifically states that "Riparian Rights are neither guaranteed nor insured." The Wehbys claim that when they purchased the property they relied on statements made by Mr. Hatcher. Apparently, Mr. Hatcher claimed that the right to use the lake ran with the property. With the exception of the Wehbys' testimony, no evidence exists to support their claim. In June 1991, SouthTrust Bank acquired, through foreclosure, the property of the Cathedral of the Cross (formerly the Huffman Assembly of God); that property included the Chelsea Place property, including the lake. Before the foreclosure, United States Bankruptcy Judge Clifford Fulford had ruled that Hatcher had "no right, title, interest in or lien upon the Chelsea Place property or any lakes, ponds or streams contained thereon." To facilitate the sale, Judge Fulford apparently ordered Hatcher to execute a quitclaim deed conveying to SouthTrust Bank all interest that he claimed to have in the Chelsea Place property. In February 1992, SouthTrust Bank sold and deeded its Chelsea Place property, including the lake, to Landscape Services. Landscape Services later transferred a portion of that lakefront property to Tommy E. Turpin and Marla Turpin. Michael T. Atchison, a real estate attorney practicing in Shelby County, said that before 1993 he discussed with the Wehbys their right to use the lake. Atchison also stated that he had *1246 informed the Wehbys before 1993 that they had no rights in that part of the lake that extends past the surface waters covering their property. In addition, Atchison said that he informed the Wehbys that use of the lake or lake bed past their property boundary would be either adverse to the true owners or by permission of those owners. Mr. Wehby claims, however, that he never met, or discussed anything with, Atchison before 1993. The Wehbys claim that in April or May 1995, they contracted to sell their property to Dale New and Kate New for $130,000. Presumably, the News and the Wehbys signed a contract in each other's presence. Mr. Wehby claims that a couple of days later he went to Atchison's office to sign some papers regarding the sale. Atchison denies ever having prepared, having seen, or having been in possession of the alleged contract, and neither the Wehbys nor the News could produce a copy of it. Because of the confusion over the lake rights, however, the News expressed doubts as to whether they would buy the Wehbys' Chelsea Place property. Mr. New and Mr. Wehby confronted Landscape Services' vice-president, O.G. Touchstone, regarding the lake rights. Touchstone denied that the Wehbys had any right to use the lake; he said, however, that he would allow the News to use the lake should they purchase the Wehbys' property. As a result, according to the Wehbys, the News declined to purchase the property and the Wehbys had to forfeit earnest money that had been paid on the contract. The Wehbys sued the Turpins, Touchstone, and Landscape Services. Arguing that they have riparian or littoral rights in the lake, the Wehbys sought a judgment declaring that they have the right to use the entire lake for recreational purposes; alternatively, they claimed that the lake is "public," within the meaning of Ala.Code 1975, § 9-11-80(a), or that they have an easement, either express or implied, to use the lake. The Wehbys also claimed that the defendants had intentionally interfered with a contract for the sale of their Chelsea Place property. In addition, the Wehbys sought a declaration that they had the right to remove that portion of the dam and spillway located on their property. The defendants, on the other hand, contended that the lake is private; that the Wehbys possess no ownership interest in the majority of the lake; that the Wehbys have no littoral or riparian rights in the area of the lake not owned by them; and that the Wehbys have neither an express easement, nor an implied easement, to use the lake for any purpose. The trial court entered a summary judgment for all of the defendants.[1] A summary judgment is proper and must be affirmed on appeal when no genuine issues of material fact exist and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Hughes v. Hertz Corp., 670 So. 2d 882 (Ala.1995). Once the moving party makes a prima facie showing that he is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Id. We review the record in the light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Hurst v. Alabama Power Co., 675 So. 2d 397 (Ala.1996). The threshold issue in this case concerns who has control over the surface waters of a private, nonnavigable lake, when the lake bed is owned by two or more adjoining landowners. Primarily, the Wehbys argue that because their land is partially flooded and is contiguous to the lake, they have littoral or riparian rights[2] in the entire surface waters above the lake bed. This issue is one of first impression in Alabama. Therefore, we must examine the law of other jurisdictions *1247 to gain a better understanding of the origins and evolution of littoral or riparian rights. Most jurisdictions appear to adhere to the so-called common law rule. Under this rule, the owners of the fee in land underlying the surface waters of a man-made, nonnavigable lake are entitled to the exclusive control of that portion of the lake lying over the land as to which they own the fee. Ours v. Grace Property, Inc., 186 W.Va. 296, 300, 412 S.E.2d 490, 494 (1991). "Consequently, the owner of a portion of a lake bed has the right to exclude others, including any other owners of the lake bed, from using his property." Grace Property, supra, 186 W.Va. at 299, 412 S.E.2d at 493; see Anderson v. Bell, 433 So. 2d 1202 (Fla.1983) (distinguishing that case from the court's earlier decision in Duval v. Thomas, 114 So. 2d 791 (Fla.1959), discussed infra, in which the Florida Supreme Court had adopted the civil law rule); Black v. Williams, 417 So. 2d 911 (Miss.1982) (addressing only the rights of owners of land beneath "artificial" or "man-made" lakes); Crenshaw v. Graybeal, 597 So. 2d 650 (Miss. 1992); Medlock v. Galbreath, 208 Ark. 681, 187 S.W.2d 545 (1945); Lanier v. Ocean Pond Fishing Club, Inc., 253 Ga. 549, 322 S.E.2d 494 (1984); Sanders v. De Rose, 207 Ind. 90, 191 N.E. 331 (1934); Baker v. Normanoch Ass'n, Inc., 25 N.J. 407, 136 A.2d 645 (1957); Commonwealth Water Co. v. Brunner, 175 A.D. 153, 161 N.Y.S. 794 (1916); Smoulter v. Boyd, 209 Pa. 146, 58 A. 144 (1904); Taylor Fishing Club v. Hammett, 88 S.W.2d 127 (Tex.Civ.App.1935); Wickouski v. Swift, 203 Va. 467, 124 S.E.2d 892 (1962). An application of the majority rule can be found in Anderson v. Bell, supra, which was factually similar to the present case. In that case, the plaintiff, Anderson, purchased a tract of land traversed by a nonnavigable creek. Anderson later excavated and constructed an earthen dam; the construction created a substantial lake. As a result of the lake formation, several surrounding parcels were flooded, including land owned by Lewis and Watson. A dispute arose over the flooding. As part of a settlement agreement, Lewis and Watson conveyed a flowage easement to Anderson, expressly reserving title and beneficial use of their land. Lewis and Watson later sold their land to the defendant, Bell. Anderson subsequently sued to enjoin Bell from using the surface waters owned by Anderson, but not the waters covering Bell's property. The Florida Supreme Court, applying the common law rule, distinguished Anderson from its earlier decision in Duval, supra. In Duval, the court had adopted the civil law rule, allowing each landowner owning portions of the lake bed the reasonable use and enjoyment of the entire surface waters of the lake. The Anderson court noted, however, that Duval was expressly limited to natural watercourses. Therefore, the Anderson court held "that the owner of property that lies adjacent to or beneath a man-made, non-navigable water body is not entitled to the beneficial use of the surface waters of the entire water body by sole virtue of the fact that he/she owns contiguous lands." Anderson, 433 So. 2d at 1204. Furthermore, the Anderson court noted that nothing had prevented the defendant's predecessors in title (Lewis and Watson) from bargaining for an easement to use the water in exchange for the flowage right granted to Anderson. Likewise, in the present case, the Church could have granted an easement to the Hatchers for the use of the lake in exchange for the rights the Hatchers granted to the Church, i.e., the rights to flood and to build part of the spillway and dam on their property. No legal documents exist that would indicate that the Wehbys or their predecessors in interest, the Hatchers, had any claim to the water rights regarding the lake. The only evidence the Wehbys produced regarding water rights as to the lake was the oral assurances of Mr. Hatcher that lake rights ran with the property. The Mississippi Supreme Court, in Black v. Williams, 417 So. 2d at 912, also following the common law rule, held that owners of land beneath artificial or man-made lakes have exclusive control over their respective portions of the water. Ours v. Grace Property, Inc., supra, involved a private man-made lake owned entirely by the parties to the action; the appellees owned 98% of the lake bed, while the appellant, a corporation with approximately 400 shareholders, owned 2% of the lake bed. The Supreme Court of *1248 West Virginia, applying the common law rule, held for the appellees, stating that "where ownership of the land underlying a man-made lake is clear and distinct, the owner of a portion of the lake bed has the exclusive control and use of the water above the portion of the lake bed which he owns." 186 W.Va. at 300, 412 S.E.2d at 494. Similarly, in Wickouski v. Swift, supra, the body of water at issue was a nonnavigable pond created by a dam. The Swifts owned approximately 28 acres of the land underneath the pond and the Wickouskis owned approximately 1.3 acres of land covered by the pond. The surface boundaries and the boundaries underneath the pond were undisputed. The court noted that control over the surface waters derives from ownership of the land. The ownership of land underlying surface waters also covering the land of others, the court reasoned, does not convey a "right to trespass." 203 Va. at 470, 124 S.E.2d at 895. Therefore, following the common law rule, the court held that the Swifts had exclusive control of the waters covering their property. 203 Va. at 471, 124 S.E.2d at 895. Other jurisdictions have adopted the so-called civil law rule. Under this doctrine, an owner of land abutting or extending into portions of a lake, whether navigable or not,[3] is, purely by virtue of riparian rights, entitled to the reasonable use and enjoyment of the entire lake. See Grace Property, supra; Beacham v. Lake Zurich Property Owners Ass'n, 123 Ill. 2d 227, 231, 526 N.E.2d 154, 122 Ill.Dec. 14 (1988); Duval v. Thomas, supra; Beach v. Hayner, 207 Mich. 93, 173 N.W. 487 (1919); Greisinger v. Klinhardt, 321 Mo. 186, 9 S.W.2d 978 (1928); Improved Realty Corp. v. Sowers, 195 Va. 317, 78 S.E.2d 588 (1953); Johnson v. Seifert, 257 Minn. 159, 100 N.W.2d 689 (1960); Snively v. Jaber, 48 Wash. 2d 815, 296 P.2d 1015 (1956); C.C. Marvel, Annotation, Rights of Fishing, Boating, Bathing or the Like in Inland Lakes, 57 A.L.R.2d 599 (1958). An application of the minority rule can be found in Johnson v. Seifert, supra, where the Minnesota Supreme Court, applying the civil law rule, rejected the logic of a rule (the common law rule) that would restrict riparian rights simply because an abutting landowner also owns part of the soil beneath the water. 257 Minn. at 166-67, 100 N.W.2d at 695. The Seifert court stated that the navigability of waters has no bearing on riparian rights because, it said, those rights arise as an incident to the ownership of abutting land, and it stated that ownership in the lake bed carries no right to control the surface waters of the lake. 257 Minn. at 165, 100 N.W.2d at 694. Thus, the Seifert court held: 257 Minn. at 168-69, 100 N.W.2d at 696-97. States applying the civil law rule apparently give weight to the notion that the common law rule would operate only to frustrate the *1249 beneficial use and enjoyment of an important recreational resource. See Beacham, 123 Ill. 2d at 231, 526 N.E.2d at 156-57, 122 Ill. Dec. at 17; Duval, 114 So. 2d at 795. Section 1-3-1, Ala.Code 1975, states that "[t]he common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall ... be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the legislature." The Wehbys, who urge us to adopt the civil law rule, assert, however, that the term "common law rule" may be somewhat of a misnomer as it applies to rights of riparian owners in this case. The Wehbys cite cases that suggest the English common law relating to water rights had its origins in the Roman civil law. See Hardin v. Jordan, 140 U.S. 371, 390-91, 11 S. Ct. at 814-15, 35 L. Ed. 428 (1891) (quoting MacKenzie v. Bankes, (1878) L.R. 3 App. Cas. (Eng.) 1324, 1338); Hughes v. Anderson, 68 Ala. 280 (1880). However, Lord Blackburn, in Bristow v. Cromican, L.R. 3 App.Cas. 641, stated: (Quoted in Hardin v. Jordan, 140 U.S. at 392, 11 S. Ct. at 815.) The Court in Hardin v. Jordan, supra, quoted, at length, Mr. Justice Depue's discussion of common law principles in New Jersey. He stated: (Quoted in Hardin v. Jordan, 140 U.S. at 395, 11 S. Ct. at 816.) We are bound to follow the majority common law rule, set out in the cases discussed above, as the rule of law governing decisions in this state. See also Hollis v. Crittenden, 251 Ala. 320, 37 So. 2d 193 (1948) (noting that Alabama is a common law state). Under the statutory provision that, "so far as it is not inconsistent with the Constitution, laws and institutions of this state," the common law governs in this state, we apply the common law rule and hold that the owners of land extending beneath artificial or man-made lakes, not navigable as a matter of law, have surface-water rights only in the surface waters above their land. We conclude that the Wehbys, in the absence of some covenant, agreement, or statute to the contrary, have no right to use that portion of the lake beyond the boundaries of their own land. See Black v. Williams, 417 So. 2d at 912. The Wehbys also contend that Yellowleaf Creek is navigable at the point where the dam is located. They rely on Ala.Code 1975, § 9-11-80, for the proposition that Yellowleaf Creek, being a natural waterway flowing through lands belonging to more than one person, is a public waterway. The *1250 Wehbys assert that the lake is public and, therefore, that the common law rule would have no field of operation because the lake's source is capable of being traversed by fishing boats and canoes during some parts of the year. The Wehbys do acknowledge, however, that impounded waters are not within the definition of "public waters" in § 9-11-80 and, therefore, that the lake is not a public lake, within the meaning of the statute, unless Yellowleaf Creek was navigable where the dam was placed. The Federal Government has paramount authority respecting navigation; therefore, the test of navigability is a federal question. Utah v. United States, 403 U.S. 9, 11, 91 S. Ct. 1775, 1776, 29 L. Ed. 2d 279 (1971); The Daniel Ball, 10 Wall. 557, 77 U.S. 557, 563, 19 L. Ed. 999 (1870). Addressing the test for determining the navigability of waters, the Supreme Court stated in The Daniel Ball: 77 U.S. at 563. The test for navigability applies to all watercourses. Utah v. United States, 403 U.S. at 11-12, 91 S.Ct. at 1776-77; United States v. Oregon, 295 U.S. 1, 14, 55 S. Ct. 610, 615, 79 L. Ed. 1267 (1935). The fact that a waterway is on occasion susceptible to navigability during brief periods of flood or high water does not mean that the waterway is navigable in fact. United States v. Harrell, 926 F.2d 1036, 1040 (11th Cir. 1991). We conclude that the Wehbys did not produce substantial evidence indicating that Yellowleaf Creek satisfies the federal test of navigability. A stream is navigable in law if it has an aptitude for beneficial public servitude, capable of being traversed for valuable floatage for a considerable part of the year. Rhodes v. Otis, 33 Ala. 578, 597-98 (1859). Proof of occasional use by "fishing boats" and "canoes" during some parts of the year is not sufficient to demonstrate that Yellowleaf Creek is capable of any beneficial public use. Therefore, we hold that Yellowleaf Creek and, necessarily, Chelsea Place Lake, are, as a matter of law, not navigable waterways. As the United States Court of Appeals for the Eleventh Circuit held in United States v. Harrell, supra, § 9-11-80(a) applies only to navigable waters. That court correctly stated that "`the State does not own the "bed and bottom" of non-navigable streams.'" 926 F.2d at 1043 (quoting Hood v. Murphy, 231 Ala. 408, 165 So. 219 (1936)). Chelsea Place Lake, being "nonnavigable" and "held in fee" by private owners, is "private" within the meaning of § 9-11-80(b). The Wehbys further contend that they possess an easement, either express or implied, to use the entire lake for recreational purposes. Alabama recognizes that an easement may be created by implication. Cleek v. Povia, 515 So. 2d 1246 (Ala.1987). Polhemus v. Cobb, 653 So. 2d 964, 966-67 (Ala.1995) (quoting Helms v. Tullis, 398 So. 2d 253, 255-56 (Ala.1981)). The Wehbys purchased the lakefront property from the Hatchers. Before that, the Hatchers had sold another portion of their property to the Church, including most of that land where the lake now lies. When the Hatchers sold that property to the Church, they reserved no easement for the use of the lake. Of course, no lake existed when the Hatchers sold the property to the Church; it was not until later that the Church built the dam. Nevertheless, when the Hatchers agreed to allow a portion of the lake to flood their property, and to allow part of the spillway and dam to be built on their property, they did not obtain an easement for the use of the entire lake. Instead, the Church *1251 merely granted the Hatchers permission to use the lake for recreational purposes. A license denotes the "giving of one's consent" to do or perform a specified activity; a license is a personal privilege and is generally revocable at the will of the licensor. See Camp v. Milam, 291 Ala. 12, 17, 277 So. 2d 95, 99 (1973) (a license is generally revocable by the licensor; however, significant expenditures by the licensee can create an equitable right in the property). Furthermore, a license "is by its very nature personal; and, being a personal right, it is not an interest which attaches to or runs with the land, nor can it be assigned, conveyed or inherited. Neither can [it] ... ripen into an easement by prescription, however long continued." Camp, 291 Ala. at 19, 277 So. 2d at 100; Shearer v. Hodnette, 674 So. 2d 548, 551 (Ala.Civ.App.1995). Thus, the Wehbys' predecessors in interest, the Hatchers, held no legal interest in the lake (beyond the boundaries of their portion of the lake bed) and no authority to transfer any personal right in the lake beyond the boundaries of their portion of the lake bed. The Hatchers' use beyond their portion was permissive only; and because the Wehbys did not acquire their property from the owner of that portion of the lake extending beyond the boundaries of their property, there was no original unity of ownership. Therefore, as a matter of law, there was no easement, either express or implied, in favor of the Wehbys. The Wehbys' final contention is that the defendants intentionally interfered with their contract to sell the Chelsea Place property to the News. The elements of the tort of intentional interference with a contract or business relation are (1) the existence of a contract; (2) knowledge of that contract on the part of the defendant; (3) intentional interference with that contract by the defendant; and (4) damage resulting from the interference. Lowder Realty, Inc. v. Odom, 495 So. 2d 23 (Ala.1986). Of course, justification for any interference with a contract may be raised by the defendant as an affirmative defense. Id. The defendants made a prima facie showing that there was no genuine issue of material fact as to whether they had intentionally interfered with a contract. The Wehbys did not rebut that prima facie showing; they presented no evidence indicating that the defendants had intentionally interfered with any contract. We note that when the Wehbys confronted Touchstone concerning the lakerights dispute, he merely stated that he believed the Wehbys did not have the right to use the lake. Of course, based on our holding today, the defendants were, as a matter of law, justified in expressing their opinion that the Wehbys had no rights in the lake beyond their portion of the lake bed. The claim alleging intentional interference with a contract is, therefore, without merit. See Hurst v. Alabama Power Co., 675 So. 2d at 399; Lowder Realty, Inc. v. Odom, 495 So. 2d at 25. We conclude that the defendants met their burden of showing that no genuine issue of material fact existed as to any of the Wehbys' claims and that the Wehbys presented no substantial evidence to rebut that showing. The judgment is, therefore, affirmed. OPINION OF DECEMBER 19, 1997, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED; APPLICATION FOR REHEARING OVERRULED. HOOPER, C.J., and MADDOX, ALMON, SHORES, COOK, and SEE, JJ., concur. BUTTS, J., concurs in the result. KENNEDY, J., dissents. [1] The judgment did not adjudicate the Wehbys' claim that they had the right to remove the dam and spillway from their property. However, the judgment was certified as final pursuant to Rule 54(b), Ala.R.Civ.P. [2] The term "riparian rights" refers to the rights of owners of land abutting a stream, while the term "littoral rights" refers to the rights of owners of land abutting the surface waters of a lake or the sea. See Mobile Dry Docks v. City of Mobile, 146 Ala. 198, 40 So. 205 (1906); 78 Am.Jur.2d Waters § 260 (1975 & Supp.1991). Courts now commonly use the word "riparian" when describing water rights in either context. See Am.Jur.2d Waters, supra at § 260. [3] Courts adopting the civil law rule have held that the navigability of waterways has no effect on the rights of riparian owners. For example, the court in Johnson v. Seifert, 257 Minn. 159, 165, 100 N.W.2d 689, 694 (1960), stated: "Any assumption that a lakewhether it be meandered or notwhose shore is owned by more than one tract owner does not involve riparian rights unless it is navigable under the Federal test of navigability is wholly untenable and must be rejected. It is not to be overlooked that the Federal test of navigability is designed for the narrow purpose of determining the ownership of lake beds, and for the additional purpose of identifying waters over which the Federal government has paramount authority in the regulation of navigation. Whether waters are navigable has no material bearing on riparian rights since such rights do not arise from the ownership of the lake bed but as an incident of the ownership of the shore." (Citations omitted.) See 78 Am.Jur.2d Waters § 262 (1975 & Supp.1991). Other courts have also stated that "[r]iparian rights are not confined to navigable waters." Greisinger v. Klinhardt, 321 Mo. 186, 193, 9 S.W.2d 978, 980 (1928) (citing 1 Farnham, Waters and Water Rights, 278). The Greisinger court further stated that riparian rights may attach equally to natural watercourses or to artificial watercourses designed or intended to be permanent. 321 Mo. at 193-94, 9 S.W.2d at 981 (citations omitted).

February 20, 1998

5a867474-d297-4b05-8915-7082fb859f68

Ex Parte RLG

712 So. 2d 372

1961914

Alabama

Alabama Supreme Court

712 So. 2d 372 (1998) Ex parte R. L. G., JR. (In re R. L. G., JR. v. State of Alabama). 1961914. Supreme Court of Alabama. February 6, 1998. Rehearing Denied March 20, 1998. Clyde D. Baker, Guntersville, for petitioner. Bill Pryor, atty. gen., and Thomas F. Parker IV, asst. atty. gen., for respondent. HOUSTON, Justice. R. L. G., Jr., was convicted of sexual abuse in the first degree of his sister, C. G.; and sodomy in the first degree and sexual abuse in the first degree of his daughter, A. G. For his sexual abuse convictions he was given two three-year sentences, which were split, and he was ordered to serve one year on each sentence, consecutively. For the sodomy conviction, he was sentenced to 15 years' imprisonment and was ordered to serve three years; the three years were to be served consecutively to the one-year incarceration portions of the sentences for sexual abuse. The balances of the three sentences were suspended, and he is to be placed on five years' probation after serving those incarceration portions of the three sentences. On appeal to the Court of Criminal Appeals, the only issues R. L. G., Jr., presented were whether the trial court erred in failing to require the prosecution to elect which incidents it was relying on to prove the offenses charged and whether it erred in failing to give the jury guidance as to which incidents were the subject of the indictments. The Court of Criminal Appeals, in a well reasoned opinion authored by Retired Appellate Judge John Patterson, affirmed. See R.L.G., Jr. v. State, 712 So. 2d 348 (Ala.Crim. App.1997). The Court of Criminal Appeals held, among other things, that the general election rule, see Deason v. State, 363 So. 2d 1001 (Ala.1978); Ex parte King, 707 So. 2d 657 (Ala.1997); Watkins v. State, 36 Ala.App. 711, 63 So. 2d 293 (1953), does not apply in child molestation cases involving purely generic evidence. The primary holding of the opinion was set out as follows: 712 So. 2d at 367. (Emphasis in original.) Because of the first-impression nature of this decision, we granted the defendant's request for certiorari review. After carefully examining the opinion of the Court of Criminal Appeals, we conclude that the judgment of that court is due to be affirmed. In cases such as this one, trial and appellate courts are required to resolve the tension between the rights of an alleged victim and the rights of an alleged child molester. Art. I, § 35, of the Constitution of Alabama of 1901, provides: "[T]he sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property...." There can be no doubt, as the Court of Criminal Appeals noted, that the legislative policy of this state is to protect the vulnerable child's right to a life free from sexual exploitation. We agree with the Court of Criminal Appeals that this can be done in cases involving purely generic evidence and that an alleged child molester can be afforded all the process he or she is due, without requiring the election judicially mandated by Deason, King, and Watkins, supra. AFFIRMED. HOOPER, C.J., and MADDOX, SHORES, COOK, BUTTS, and SEE, JJ., concur.

February 6, 1998

4624797e-b160-4b9b-aebc-9c3454d19ff3

TERMINIX INTERN. CO. v. Jackson

723 So. 2d 555

1961351

Alabama

Alabama Supreme Court

723 So. 2d 555 (1998) TERMINIX INTERNATIONAL COMPANY, et al. v. Mark JACKSON and Laurie Jackson. 1961351. Supreme Court of Alabama. March 6, 1998. Robert E. Sasser, Dorothy Wells Littleton, and Tamara A. Stidham of Sasser & Littleton, P.C., Montgomery, for appellants. Ronald W. Wise and William M. Bowen, Jr., of Wise & Bowen, Montgomery, for appellee. ALMON, Justice. In Terminix International Co. Ltd. Partnership v. Jackson, 669 So. 2d 893 (Ala.1995),[1]*556 this Court reversed the circuit court's denial of Terminix's motion to compel arbitration of the contract claim in the Jacksons' complaint and remanded the cause for further proceedings. When the case returned to the circuit court, Terminix filed a new motion to compel arbitration, this time seeking to compel arbitration of all four counts of the complaint rather than only Count III, the contract count. The circuit court denied the motion as to Count I, which alleges fraud and suppression that induced the Jacksons to purchase the house, and Count II, which alleges that the defendants negligently, wantonly, or willfully failed to properly inspect the house and inform the Jacksons of the true extent of the damage to the house. The court granted the motion as to Count III, alleging breach of the contract, or termite protection plan, and Count IV, fraudulent inducement to purchase the termite protection plan. Terminix appeals from the denial of the motion as to Counts I and II; the Jacksons have not sought a writ of mandamus to set aside the granting of the motion as to Counts III and IV. In Terminix's original motion to compel arbitration, filed seven months after the complaint was filed, and after considerable discovery, Terminix sought arbitration only of the claim under the termite protection plan: Thus, in the initial proceedings before the circuit court, Terminix did not take the position that Counts I and II were arbitrable. We express no opinion on whether Count IV is arbitrable, because the Jacksons do not take issue with the circuit court's holding that it is. We also will not discuss Terminix's assumption that an arbitration of the contract claim would "narrow the issues to be tried by the Court" on the fraud and negligence claims, except to refer the reader to our discussion at 669 So. 2d at 897-99. One of the circuit court's initial bases for denying the motion to compel arbitration was its finding that Terminix had waived any right to seek specific performance of the arbitration clause by substantially invoking the litigation process: In the initial appeal, this Court did not reach the question of waiver, because the Court affirmed the circuit court's primary holding that the contract did not involve interstate commerce. 628 So. 2d at 359. However, Terminix argued that the circuit court's denial of the motion to compel arbitration should be reversed in spite of that court's finding of waiver, citing Ex parte McKinney, 515 So. 2d 693 (Ala.1987), for the proposition that "a party does not waive its right to arbitrate by engaging in discovery that would have been necessary, in any event, on the nonarbitrable claims subject of the action." Appellant's brief in appeal no. 1911842, filed October 22, 1992, p. 8. Although the nonarbitrable claims referred to on page 9 of that brief were the claims against the individual defendants George Battle and George Massey, Terminix had at that time sought arbitration only of the contract claim against it, essentially conceding that the fraud and negligence claims against it were nonarbitrable. Thus, when this case was remanded to this Court by the Supreme Court of the United States, we were presented with (1) a holding by that Court in Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995), that a similar Terminix contract involved interstate commerce and that therefore the Federal Arbitration Act preempted Ala.Code 1975, § 8-1-41(3), as to claims based on the Terminix contract; (2) a finding by the circuit court, as an alternative basis for denying the motion to compel arbitration, that Terminix had waived any right to seek arbitration of the Jacksons' claims; and (3) argument by Terminix that it had not waived arbitration, because the discovery that had been conducted before it moved to compel arbitration was applicable to nonarbitrable claims in the Jacksons' complaint. In this Court's November 3, 1995, opinion, we accepted Terminix's argument on this point in holding that it had not waived its right to seek arbitration of the contract claim: Terminix International, 669 So. 2d at 896-97 (emphasis added). Thus, this Court overturned the circuit court's finding of waiver, based principally upon Terminix's argument that the discovery that had been conducted was attributable to the claims that were not subject to arbitration. At that time, the only claim Terminix sought to arbitrate was the contract claim. Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So. 2d 844, 846 (Ala. 1992), quoting Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.), cert. denied, 488 U.S. 967, 109 S. Ct. 495, 102 L. Ed. 2d 532 (1988). See also Bertrand v. Handley, 646 So. 2d 16 (Ala.1994); Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So. 2d 917 (Ala.1993); Bracy v. *558 Scott, 589 So. 2d 145 (Ala.1991); Russell v. Russell, 404 So. 2d 662 (Ala.1981). Because Terminix took the position that only the contract claim was subject to arbitration, and because this Court relied principally upon that position to overturn the circuit court's finding of a waiver, Terminix is judicially estopped from taking the position that all of the claims in the Jacksons' complaint are subject to arbitration. Moreover, when this Court reversed as to the contract claim, it remanded simply for the circuit court to determine whether litigation of the other claims should be stayed pending arbitration of the contract claim: Terminix International, 669 So. 2d at 899. "On remand, trial courts are required to follow the mandates of this Court or of any other appellate court." Ex parte United States Fid. & Guar. Co., 585 So. 2d 922, 924 (Ala.1991), citing Kinney v. White, 215 Ala. 247, 110 So. 394 (1926). Indeed, if a trial court does not follow the mandate of an appellate court, mandamus will lie to compel such compliance. Ex parte Ufford, 642 So. 2d 973 (Ala.1994); Ex parte Mobil Oil Corp., 613 So. 2d 350 (Ala.1993); Ex parte U.S.F. & G., supra; Ex parte Bradley, 540 So. 2d 711 (Ala.1989); Ex parte Alabama Power Co., 431 So. 2d 151 (Ala.1983). Therefore, if the circuit court had granted Terminix's motion to compel specific performance of the arbitration clause as to Counts I and II (again, we express no opinion regarding Count IV, because the Jacksons do not contest the ruling regarding that count), it arguably would be subject to a writ of mandamus ordering it to deny that motion. This Court did not expressly hold that Counts I and II were not subject to arbitration. No such holding was requested, or would have been appropriate, because Terminix had not asserted that they were subject to arbitration. However, the Court did suggest a comparison to Allied-Bruce Terminix Cos. v. Dobson, 684 So. 2d 102 (Ala.1995), adding the following parenthetical summary of the point on which it was comparable: "(holding that tort claims similar to those stated by the Jacksons were not within the scope of an identical arbitration clause, but that the contract claims were within the scope of the clause)." Terminix International, 669 So. 2d at 895. Furthermore, the Court remanded for consideration of whether litigation of the fraud and negligence claims should be stayed pending arbitration of the contract claim; the circuit court held that they should not be. Thus, the circuit court followed both the reasoning and the mandate of this Court's order of remand. Because the circuit court's denial of Terminix's motion to compel arbitration of Counts I and II was so clearly correct for the reasons stated above, we will not examine in detail the relationship, or lack thereof, of those fraud and negligence claims to the termite protection bond in which the arbitration clause appears. We do note that the termite protection bond provides certain remedies to the Jacksons if new termite infestations occur, whereas the allegations of Counts I and II pertain to an inspection of the house for the sake of issuing a "termite letter" to facilitate the Jacksons' purchase of the house. This is virtually the same situation that was presented in Allied-Bruce Terminix v. Dobson. Moreover, in this case, Terminix had conducted an earlier inspection that had disclosed the damage that was not disclosed in the letter issued in conjunction with the sale to the Jacksons. The Jacksons allege that Terminix fraudulently suppressed that information. As in Dobson, we do not see that the activities in regard to the termite letter give rise to claims "arising out of or relating to the interpretation, performance or breach of any provision of" the termite protection plan. For the reasons stated, the order appealed from is affirmed. AFFIRMED. SHORES, KENNEDY, COOK, and BUTTS, JJ., concur. HOOPER, C. J., and MADDOX, HOUSTON, and SEE, JJ., dissent. *559 MADDOX, Justice (dissenting). This litigation has had a long and tortuous history. It began on August 20, 1991, when the plaintiffs, Mark and Laurie Jackson, sued the Terminix International Company Limited Partnership and Allied Bruce-Terminix Companies, Inc., d/b/a Terminix Service (collectively "Terminix"); George Massey; George Battle; and fictitiously named defendants. Both Massey and Battle are employed by Terminix. The plaintiffs claimed compensatory and punitive damages for alleged fraud, misrepresentation, deceit, negligence, and breach of contract. On September 12, 1991, Terminix answered, asserting as a defense that "[a]ny controversy or claim between the purchaser of the `Termite Protection Plan' and the [d]efendants arising out of or relating to the interpretation, performance or breach of any provision of said contract which relates to new termite damage shall be settled exclusively by arbitration." On March 30, 1992, Terminix filed a motion to compel arbitration and to stay the circuit court proceedings until arbitration was completed, pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), and under the arbitration clause of the Termite Protection Plan. Following a hearing, the circuit court denied the motion, and Terminix appealed to this Court. On August 13, 1993, this Court issued an opinion affirming the order of the circuit court denying the motion to stay proceedings and to compel arbitration. This Court specifically held that the Termite Protection Plan at issue did not involve interstate commerce, because this Court did not believe there was evidence that the parties contemplated substantial interstate activity when they entered into the contract. Terminix Int'l Co. Ltd. Partnership v. Jackson, 628 So. 2d 357, 359 (Ala. 1993). While this case was pending in this Court, the Mobile County Circuit Court denied a motion to compel arbitration in a similar action involving Terminix; Terminix subsequently appealed that order to this Court. See Allied-Bruce Terminix Cos. v. Dobson, 628 So. 2d 354 (Ala.1993). This Court in Dobson issued a similar opinion affirming the circuit court's order. Id. Terminix filed an application for rehearing, which this Court denied on September 24, 1993. On December 22, 1993, Terminix petitioned the United States Supreme Court for a writ of certiorari in both cases. The Supreme Court granted both petitions, to review whether this Court had erred in determining that the "Termite Protection Plans" at issue were not contracts involving interstate commerce within the meaning of the FAA. The Court issued its ruling on January 18, 1995, holding that in enacting the FAA Congress had intended to exercise the full scope of its authority under the Commerce Clause of the United States Constitution and that the FAA applies to contracts, such as the Termite Protection Plan at issue in this case, that involve commerce in fact. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). Based on its holding in Dobson, the Supreme Court vacated this Court's decision in this case and remanded the cause to this Court for further consideration. Terminix Int'l Co. Ltd. Partnership v. Jackson, 513 U.S. 1123, 115 S. Ct. 930, 130 L. Ed. 2d 876 (1995). On November 3, 1995, in accordance with the direction of the Supreme Court, this Court issued an opinion reversing the circuit court's order denying the motion to compel arbitration and remanding the case for the circuit court to reconsider the motion to compel arbitration and to stay litigation pending arbitration, in light of the Supreme Court's decision in Dobson. See Terminix Int'l Co. Ltd. Partnership v. Jackson, 669 So. 2d 893 (Ala.1995). On remand, Terminix filed in the circuit court a "Renewed Motion to Compel Arbitration." In addition, George Battle and George Massey filed a "Motion to Compel Arbitration," seeking arbitration of all of the plaintiffs' claims against them. Each of the parties filed briefs in support of their positions, and on April 2, 1997, the circuit court entered an order granting all of the defendants' motions to compel arbitration with respect to the plaintiffs' claims of breach of contract and fraud in the inducement to enter into the Termite Protection Plan, but *560 the court found that the plaintiffs' negligence and fraud claims, to the extent that they related to the plaintiffs' purchase of their house, were not arbitrable. After the trial court refused to change its ruling, the defendants appealed. The sole issue in this case is whether the arbitration agreement, which provides in part that "any controversy or claim between [the parties] arising out of or relating to the interpretation, performance or breach of any provision of this agreement shall be settled exclusively by arbitration," is broad enough to include the negligence and fraud claims that the plaintiffs have filed against the defendants. I believe that it is, and I believe that this Court's decision in this case shows its continuing hostility to the enforcement of arbitration provisions in contracts that involve interstate commerce, despite the fact that this case has already been considered by the Supreme Court and remanded once. In Old Republic Ins. Co. v. Lanier, 644 So. 2d 1258 (Ala.1994), in a dissenting opinion, I detailed some of the history of this Court's hostility to arbitration and stated why I thought federal law required the arbitration of the common law tort claims in that case: 644 So. 2d at 1263-4. I pointed out in that dissenting opinion that "Congress passed the FAA in 1925 out of a desire to overcome the common-law judicial hostility toward arbitration" and that "[i]n Moses H. Cone Mem. Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941, 74 L. Ed. 2d 765, 785 (1983), the Supreme Court of the United States stated that § 2 of the FAA stands for `a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary' and `creates a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.'" Old Republic, 644 So. 2d at 1264. In that dissenting opinion, I further stated that I was "of the opinion that if the contract involved [was] one involving interstate commerce" and "contain[ed] an arbitration agreement voluntarily entered into by the parties," then the "federal policy favoring arbitration agreements" should be applied, "notwithstanding what the majority [referred] to as `our strong public policy against the use of predispute arbitration agreements.'" 644 So. 2d at 1264. For an analysis of the Old Republic decision, see, Langford, Alabama Supreme Court Contravenes the Policy of the Federal Arbitration Act: Old Republic Insurance Co. v. Lanier, 47 Ala. L.Rev. 615 (1996). The Supreme Court of the United States stated in Moses H. Cone Mem. Hospital, 460 U.S. at 24-25, 103 S. Ct. 927, that "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability." The history of this case and of other cases shows that this Court does not apply federal law when interpreting agreements to arbitrate, but in fact interprets the law in such a manner as to frustrate the federal policy. What has happened before, and what is happening in this case, reminds me of what happened in Doctor's Associates, Inc. v. Casarotto, *561 517 U.S. 681, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996), in which franchisees brought an action in a Montana state court against a franchisor and its agent regarding a dispute under a standard form franchise agreement. A district court stayed proceedings pending arbitration, and the franchisees appealed. The Montana Supreme Court, 268 Mont. 369, 886 P.2d 931, reversed, holding that the arbitration clause was unenforceable under a state statute, just as this Court held initially in this case. The United States Supreme Court, 515 U.S. 1129, 115 S. Ct. 2552, 132 L. Ed. 2d 807 (1995), vacated the state court's judgment and remanded, just as it did in this present case. On remand, the Montana Supreme Court, 274 Mont. 3, 901 P.2d 596 (1995), reaffirmed its prior opinion, holding that the Montana statute was not preempted by the Federal Arbitration Act (FAA). The franchisors again sought review in the United States Supreme Court, and, in an opinion written by Justice Ginsburg, that Court held that the FAA preempted the Montana statute, which conditioned enforceability of an arbitration clause on compliance with Montana's first-page notice requirement, which governed not "any contract," but specifically and solely contracts "subject to arbitration." The Court stated: Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 684-86, 116 S. Ct. 1652, 1655-56 (1996) (footnote omitted). Although in this case this Court does not affirm its prior decision without benefit of briefs or arguments, as the Montana Supreme Court did in Casarotto, the effect of what this Court now does is the same as the effect in Casarotto. That effect is, I believe, the frustration of the federal policy favoring arbitration. Based on the foregoing, I cannot agree with the majority's interpretation of the language of the arbitration clauses or its conclusion regarding the issue of alleged waiver, and I cannot agree to deny the benefits of the FAA to defendants who assert an entitlement to those rights based on a broad arbitration clause in a contract that clearly involves interstate commerce. Consequently, I respectfully dissent. HOOPER, C.J., and SEE, J., concur. HOUSTON, Justice (dissenting). I concur in the result Justice Maddox would reach in his dissent. I admit that I was one Justice who had a hostility to arbitration. This hostility was based upon the Constitution of Alabama of 1901, Article I, §§ 11 and 36, by which the right to trial by jury was to remain inviolate forever, being excepted out of the general powers of government *562 to alter. In keeping with these constitutional provisions, the Legislature duly enacted a law making an agreement to arbitrate unenforceable. Given our principles of law, this Court cannot declare an act of the Legislature unconstitutional unless it is clear beyond a reasonable doubt that the act violates the Constitution. White v. Reynolds Metals Co., 558 So. 2d 373, 383 (Ala. 1989), cert. denied, 496 U.S. 912, 110 S. Ct. 2602, 110 L. Ed. 2d 282 (1990). Clearly, the legislative act did not violate the Alabama Constitution. However, the Supremacy Clause of the Constitution of the United States allows the United States Supreme Court to trump the decisions of state supreme courts. I think the United States Supreme Court did that in Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). Therefore, I defer to the ruling of that higher Court. I dissent. [1] Earlier decisions in this matter were reported at 628 So. 2d 357 (Ala.1993), and 513 U.S. 1123, 115 S. Ct. 930, 130 L. Ed. 2d 876 (1995). A similar, but independent, action involving the same or related Terminix defendants resulted in the opinions styled Allied-Bruce Terminix Cos. v. Dobson, 628 So. 2d 354 (Ala.1993), reversed, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753, on remand, 684 So. 2d 102 (Ala.1995). We shall refer in this opinion to the defendants Terminix International Company Limited Partnership and Allied-Bruce Terminix Companies, Inc., collectively as "Terminix," because there is no difference, for the purposes of this opinion, between the positions of the two entities.

March 6, 1998

34dbf9e3-b220-4dd6-9f2c-7fb8014be58e

Ex Parte Weems

711 So. 2d 1011

1970674

Alabama

Alabama Supreme Court

711 So. 2d 1011 (1998) Ex parte Lawrence Dee WEEMS, Jr. (In re Lawrence Dee WEEMS, Jr. v. William Edward SWATEK, et al.). 1970674. Supreme Court of Alabama. April 10, 1998. *1012 Roger C. Appell, Birmingham, for petitioner. William E. Swatek, Pelham, for defendants. Judge N. Daniel Rogers, Jr., pro se. HOOPER, Chief Justice. Lawrence Dee Weems, Jr., requested the trial court to stay discovery in a civil action filed by him, until the culmination of a criminal proceeding against him. Beverly Weems sued Lawrence Weems for a divorce on September 5, 1995. William Swatek was the attorney for Beverly Weems. As part of the divorce settlement, the court awarded exclusive use and possession of the marital home to Beverly Weems. Swatek and Beverly Weems hired Don Weiffenbach, a private investigator, to check the residence for an outside tap on the telephone lines. On December 8, 1995, while Weiffenbach was checking for the phone tap, Lawrence Weems came on the property and shot Weiffenbach. After being hit in the arm by the bullet, Weiffenbach shot Weems. On October 11, 1996, Lawrence Weems was indicted for assault with intent to murder, as a result of his shooting Weiffenbach. The trial court granted a continuance in that criminal case. A trial date has not yet been set. On December 8, 1997, Lawrence Weems filed a civil action against Swatek and Beverly Weems, alleging negligent hiring and supervision of Weiffenbach. On January 9, 1998, Swatek filed a notice of deposition for Lawrence Weems to appear on January 15, 1998. Swatek claims that it is necessary to depose Lawrence Weems so that Swatek and Beverly Weems can begin preparing a defense to the action against them. On January 14, 1998, Lawrence Weems filed a "Motion to Quash and Motion to Stay." He argued that discovery should not take place in the civil action until the culmination of the criminal action against him. He stated that he "would be forced to give up his constitutional rights if he were to have to give a deposition in the civil case prior to the trial of the criminal matter." On January 15, 1998, the trial court denied the motion to stay. Lawrence Weems filed this petition for a writ of mandamus, asking this Court to direct the trial court to vacate its order denying the motion to stay. "A writ of mandamus is an extraordinary remedy and will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another *1013 adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte Hill, 674 So. 2d 530, 531 (Ala.1996). We deny the petition, concluding that the trial judge did not err in denying the motion to stay. The Fifth Amendment to the Constitution of the United States provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." This rule against compulsory self-incrimination applies in civil proceedings as well as in criminal proceedings. Lefkowitz v. Cunningham, 431 U.S. 801, 97 S. Ct. 2132, 53 L. Ed. 2d 1 (1977). Lawrence Weems argues that any testimony he may be required to give in the civil action might incriminate him in the criminal action. He argues that the two actions are "parallel proceedings" and that that fact requires a stay of the civil action. We disagree. We conclude that the two actions are not parallel proceedings. They are related only to the extent that Weems is a party in each action. The two cases do not involve the same act. The criminal action involves a determination whether Lawrence Weems assaulted Weiffenbach with the intent to murder. The civil action involves a determination whether Swatek and Beverly Weems negligently hired or negligently supervised Weiffenbach. Weems cites Ex parte Baugh, 530 So. 2d 238 (Ala.1988), for the proposition that a trial judge must stay a civil proceeding until parallel criminal proceedings are resolved. Baugh was different from this present situation because, as stated above, the cases involved here are not parallel proceedings. In Baugh, the civil proceeding and the criminal proceeding were based on the same actan alleged slander. However, in the present cases, different acts are involvedthe alleged negligence by Swatek and Beverly Weems in hiring and supervising Weiffenbach, and Lawrence Weems's shooting of Weiffenbach. The trial judge correctly stated: Because we conclude that the criminal action against Weems and the civil action filed by Weems are not parallel proceedings, we do not apply the principle stated in Baugh. Also, in his order denying the motion to stay the trial judge included a safeguard for Weems. The trial judge stated, "If in the course of taking the deposition or the production of documents, the plaintiff contends that any of such documents involves his defense in the criminal case, then the parties may bring same to the Court for an in-camera inspection." Thus, if Weems fears that he may incriminate himself in the deposition, then he may request that the trial judge review the requested information to determine whether his answer could incriminate him. According to the trial judge, Swatek and Beverly Weems have stated that they do not desire from Lawrence Weems information that relates to the pending criminal case. If that statement later proves to be wrong, the trial judge can act to protect Weems's Fifth Amendment rights. Lawrence Weems asks this Court to apply a balancing test to determine whether Swatek and Beverly Weems would be prejudiced by a stay in the civil action. He argues that Swatek and Beverly Weems would not be prejudiced by a delay in the civil action. However, Swatek and Beverly Weems argue that any further delay will prejudice them. Weiffenbach's hiring took place over two years ago. Therefore, they argue that any evidence they could gather in defense of the civil action is already two years old. They argue that any additional delay will make it even more difficult to establish the facts necessary to defend the action. We agree. Also, we conclude that Weems would not be prejudiced if we allow the civil action to proceed, because the two cases are about different acts. Also, the trial judge's safeguard will prevent Weems from being forced to answer questions that might incriminate him. Given the extraordinary nature of a writ of mandamus, we hold that the trial judge did not err by denying the motion to stay. Weems has not shown that he has a clear *1014 legal right to an order staying discovery. Therefore, the petition for a writ of mandamus is denied. WRIT DENIED. ALMON, HOUSTON, KENNEDY, COOK, SEE, and LYONS, JJ., concur.

April 10, 1998

2b0558dc-b2bd-4ab5-b4d3-91c0a47bed8c

Ex Parte Reynolds Metals Co.

710 So. 2d 897

1961132

Alabama

Alabama Supreme Court

710 So. 2d 897 (1998) Ex parte REYNOLDS METALS COMPANY. (Re Arthur Clyde WITHERINGTON v. A.H. BULL & CO., et al.). 1961132. Supreme Court of Alabama. February 27, 1998. *898 Initial brief filed by Gregory C. Buffalow and John R. Parker of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile; and David Craig Landin and Lori M. Elliott of Hunton & Williams, Richmond, VA, for petitioner. Reply brief filed by Warren B. Lightfoot, M. Christian King, and Stephanie Keller Womack of Lightfoot, Franklin & White, L.L.C., Birmingham; David Craig Landin and Lori M. Elliott of Hunton & Williams, Richmond, VA.; and Gregory C. Buffalow of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for petitioner. Russell W. Budd, Brent M. Rosenthal, David Denny, and William K. Tapscott, Jr., of Baron & Budd, P.C., Dallas, TX; J. Cecil Gardner of Gardner, Middlebrooks, Fleming & Hamilton, P.C., Mobile; and Frederick T. Kuykendall III and Joe R. Whatley, Jr., of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, for respondents. SEE, Justice. Reynolds Metals Company ("Reynolds") petitions for a writ of mandamus directing the trial court to vacate its order compelling Reynolds to comply with certain discovery requests. We stayed enforcement of that discovery order pending our review of this petition. Because we conclude that Reynolds's petition for mandamus relief is premature, we deny the writ. On January 12, 1996, Arthur Witherington sued Reynolds in the Mobile Circuit Court, alleging, among other things, that Reynolds had negligently or wantonly caused his asbestos-related injuries. Witherington alleged that he had sustained asbestos-related injuries while he worked for Reynolds for a 360-day period beginning in 1964 and ending in 1965. Witherington made certain discovery requests, seeking from Reynolds all documents and information Reynolds had in its possession concerning the hazards of asbestos. Reynolds refused to respond to a number of these asbestos-related discovery requests, alleging that they were overly broad and unduly burdensome; Witherington moved to compel such discovery. Reynolds opposed the motion to compel. On March 28, 1997, the trial court conducted a hearing on Witherington's motion to compel. It ordered Reynolds to produce a broad array of documents located at Reynolds's facilities throughout the world. Although the trial court placed broad time limits on certain of the discovery requests, it placed no time limits on many of the discovery *899 requests. Thus, Reynolds would be forced to produce for the plaintiff voluminous documents generated over numerous decades and stored at its 60 facilities located throughout the United States and at its overseas facilities located in 22 nations. The trial court compelled Reynolds to produce this discovery within 21 days. Although Reynolds did not object at the hearing to the trial court's order and although it did not file a motion for a protective order thereafter, it filed this mandamus petition before the expiration of the 21-day period imposed by the trial court. Reynolds contends that the trial court abused its discretion in compelling this discovery, arguing that the discovery order was overly broad and unduly burdensome. See, e.g., Ex parte Compass Bank, 686 So. 2d 1135 (Ala.1996). A writ of mandamus is an extraordinary remedy, requiring the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989). In this case, Reynolds has another adequate remedy. Under Rule 26(c), Ala. R. Civ. P., Reynolds may move the trial court for a protective order at any time before the expiration of the 21-day period prescribed in the order compelling discovery. See generally, e.g., Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 413 (M.D.N.C.1991) (interpreting parallel Rule 26(c), Fed.R.Civ.P., to require that motions for protective orders be filed in a timely or seasonable manner); Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 129 F.R.D. 483, 487 (D.N.J.1990) (same); Wang v. Hsu, 919 F.2d 130, 131 (10th Cir.1990) (stating that a motion for a protective order is timely if made before the date set for the discovery); United States v. International Business Machines Corp., 70 F.R.D. 700, 701 (S.D.N.Y. 1976) ("Such motions under Rule 26(c) must be served before the date set for production."); see also 8 C. Wright, et al., Federal Practice and Procedure § 2035 (1994); Rule 26, Ala. R. Civ. P., cmt. (discussing the Federal Rule upon which Alabama Rule 26(c) was modeled and citing Wright & Miller, Federal Practice and Procedure § 2035). We have previously held that a petitioner's failure to move for a protective order renders his petition premature. See Ex parte Sargent Indus., Inc., 466 So. 2d 961, 963 (Ala. 1985) (stating that a party's failure to seek a protective order from the trial court bars mandamus relief because a protective order "is the appropriate procedural device for limiting or prohibiting discovery"); Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 734, 310 So. 2d 210, 212 (1975) (same). Reynolds argues that its filing of a prehearing motion in opposition to Witherington's motion to compel exempts it from the requirement that it challenge the trial court's ultimate ruling at the hearing by objecting or, thereafter, by a motion for a protective order. Rule 34(b), Ala. R. Civ. P.[1] Specifically, Reynolds argues that because Rule 37(a)(2) states that the trial court "may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c)," Reynolds was not required to move for such a protective order after the trial court had ruled at the hearing. Thus, Reynolds concludes that its petition for the writ of mandamus is not premature. We disagree. The fact that Rule 37(a)(2) vests the trial court with the discretion to grant protective orders does not relieve a party of the duty to bring an alleged error to the trial court's attention before seeking relief from an appellate court. The comments to Rule 37(a)(2) provide that a "party" opposing a Rule 37 motion compelling discovery "can obtain a protective order." This language clearly indicates that if the trial court does not exercise its discretion to grant a protective order sua sponte, some action by the *900 party opposing discovery is required to obtain such an order. This interpretation is consistent with the general policy set forth in Sargent and Cole, supra, to afford the trial court the opportunity to address its alleged error before a party seeks mandamus relief from an appellate court to correct the alleged error. We therefore hold that Reynolds's failure to object at the hearing or to move for a protective order renders its petition premature. Reynolds may choose to move the trial court for a protective order before the expiration of the remainder of the 21-day period stayed by this Court's previous order, or within such reasonable time as the trial court may allow. See Wang, 919 F.2d at 131; Brittain, 136 F.R.D. at 413. If either party is dissatisfied with the trial court's ruling on such a motion for a protective order, that party may then petition for a writ of mandamus. Cf. Sargent, 466 So. 2d at 963; Cole, 293 Ala. at 734, 310 So. 2d at 212. The stay of the trial court's discovery order is dissolved and the petition is denied. STAY DISSOLVED; WRIT DENIED. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur. [1] Rule 34(b) provides in pertinent part: "The party upon whom the request [for the discovery of documents] is served shall serve a written response.... The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested unless the request is objected to.... The party submitting the request may move for an order [compelling discovery] under Rule 37(a)...."

February 27, 1998

9abf0eaf-df14-43a2-b01b-e3a8c412a119

Anniston Lincoln Mercury Dodge v. Conner

720 So. 2d 898

1970074

Alabama

Alabama Supreme Court

720 So. 2d 898 (1998) ANNISTON LINCOLN MERCURY DODGE v. Su K. CONNER. 1970074. Supreme Court of Alabama. July 31, 1998. *899 John Martin Galese and Jeffrey L. Ingram of John Martin Galese, P.A., Birmingham, for appellant. John D. Saxon, Birmingham, for appellee. MADDOX, Justice. The plaintiff purchased a motor vehicle from the defendant dealer. The contract to purchase the vehicle contained an agreement to arbitrate disputes. The plaintiff filed an action alleging, among other things, fraud and other torts. The plaintiff resisted arbitration, and the trial court denied the defendant's motion to compel arbitration. The defendant appeals. The basic legal question presented on this appeal is whether the court or an arbitrator should determine the question of the validity of the agreement containing the arbitration provision. The relevant facts are basically undisputed. Anniston Lincoln Mercury Dodge ("ALMD") is an automobile dealership doing business in Anniston. In February 1995, Su K. Conner purchased a truck from ALMD. Conner was born in South Korea, and although by 1995 she had lived in this country for more than 20 years, she contends she did not have a full understanding of the English language. When she visited ALMD, Conner was accompanied by a friend who is fluent in English. When she purchased the truck, Conner signed a document containing an arbitration clause, which stated, in part: When Conner purchased the truck, she also bought a credit life insurance policy, which was issued by Ford Motor Life Insurance Company. In September 1996, Conner filed this action against ALMD. She alleged that the day after she purchased the truck she became dissatisfied with it and that she also learned that day, for the first time she says, that she had purchased the credit life insurance policy; she says she learned of the insurance policy after she showed her brother the documents she had signed in regard to the purchase of the truck. She alleged that she returned to the dealership and explained to the salesman that she was not satisfied with *900 the truck and told him that she wanted the life insurance policy rescinded, and that ultimately she told the salesman that she wanted to return the truck she had purchased and to get back the vehicle she had traded in. At that point, she alleged, the salesman referred her to the dealership's sales manager. She said the sales manager told her that she would have to go to the bank that had financed the purchase of the truck and ask the bank to cancel the life insurance policy;[1] she said the sales manager then told her to leave the premises or else he would telephone the police. She said she did not leave the premises and that the sales manager telephoned the police. Conner said that when police officers arrived they told her she had done nothing wrong, and she said she left the dealership soon after the police had arrived, in order to pick up her daughter from school. Conner alleged that ALMD sold her the credit life insurance policy without her knowledge, in violation of § 5-19-20(a) and (b), Ala.Code 1975, and that ALMD arranged with First Alabama Bank to extend credit for her to purchase the truck and in doing so violated § 5-19-6(a). She also alleged that ALMD failed to disclose the existence of the credit life insurance policy (the cost of which was apparently included in the amount financed) and that by failing to disclose committed fraud. Finally, Conner alleged that ALMD committed false imprisonment and assault; this allegation was based on the conduct of ALMD's employees when she returned to the dealership the day after the purchase. On September 30, 1996, ALMD moved to stay the action and to require Conner to submit her claims to binding arbitration. On November 25, 1996, the trial court entered an order staying the action, except for discovery related to the facts and circumstances surrounding Conner's purchase of the truck and the execution of the sales documents. On June 26, 1997, ALMD renewed its motion to compel arbitration. The trial court denied ALMD's motion to compel arbitration because, it concluded, Conner's inability to understand the English language had caused the parties not to reach a meeting of the minds as to the agreement to arbitrate. ALMD appeals from the trial court's order denying its motion to compel arbitration, and it asks this Court to direct the trial court to order Conner to submit all of her claims for resolution by binding arbitration.[2] For the reasons discussed below, we agree with ALMD that the trial court erred; therefore, we reverse the order denying the motion to compel arbitration. The question whether the plaintiff should be bound by the arbitration agreement was a question that was required to be submitted and resolved by an arbitrator rather than by a court or a jury. This case involves the sale of a new motor vehicle that was manufactured outside Alabama and was delivered into Alabama to be sold. It is undisputed that this case is governed by the Federal Arbitration Act. Cf. Hurst v. Tony Moore Imports, Inc., 699 So. 2d 1249, 1258 (Ala.1997) ("Quite obviously, if the intrastate rental of an apartment building is `an element of a much broader commercial market in rental properties,' and is, therefore, subject to congressional regulation under the Commerce Clause, then the intrastate sale of a used motor vehicle would constitute an `individual activity' within a broader `class of activities' subject to federal regulation."). Accordingly, this Court will enforce the arbitration agreement at issue here in accordance with the federal policy expressed in the Federal Arbitration Act and court decisions construing that Act. See Ex parte McKinney, 515 So. 2d 693, 698 (Ala. 1987). Although the trial court correctly recognized that arbitration is a matter of contract interpretation,[3] it concluded that the arbitration *901 clause signed by Conner did not constitute a contract and, therefore, that Conner was not required to submit her claims to arbitration.[4] In view of the trial court's conclusion, the question we must first address is not whether the trial court properly applied Alabama contract law in determining that Conner had not effectively agreed to the arbitration clause she signed. Instead, we must first determine a more narrow issue: Who should have decided whether Conner agreed to the terms of the arbitration clausethe circuit court or an arbitrator appointed as provided for by the agreement? Because we conclude that an arbitrator should have decided this issue, we do not address the trial court's application of Alabama contract law. ALMD argues that this case is governed by Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967), and we agree that several of the principles of law set out in Prima Paint are applicable. In Prima Paint, the United States Supreme Court held that when a party claims fraud in the inducement relating to the validity of the arbitration clause itself, an issue that goes to the "making" of the agreement to arbitrate, a court may adjudicate that claim; however, if the claim of fraud in the inducement actually bears upon the entire agreement and upon the activities of the parties in general, then an arbitrator, rather than a court, should adjudicate that claim, examining the making of the contract in its entirety. Id. at 403-04, 87 S. Ct. 1801; see also Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So. 2d 332 (Ala.1991). Although Prima Paint involved a charge of fraud in the inducement of the contract, the rationale of Prima Paint extends to efforts to rescind contracts on other grounds. See, e.g., Three Valleys Municipal Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136, 1139 (9th Cir.1991). Conner argues that she should not be bound by the arbitration clause contained in her sales document, because, she says, her inability to understand English prevented her from effectively assenting to that clause. This argument falls squarely within the Prima Paint rule.[5] Accordingly, the critical question is whether Conner can attack the validity of the arbitration clause itself without attacking the validity of the contract in its entirety. Although Conner alleges that she has challenged the making of the arbitration agreement itself, we must look beyond the ad hoc arguments of counsel in order to determine whether her claim *902 actually bears upon the entire agreement and upon the activities of the parties in general. Jones, 604 So. 2d at 337. ALMD argues that Conner's claims relate to the contract in its entirety and therefore should be resolved by an arbitrator. We agree. We conclude that Conner's claim goes to the making of the contract in its entirety, rather than just to the arbitration clause itself. The facts of this case are similar to those addressed by the United States Court of Appeals for the Fifth Circuit in Villa Garcia v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 833 F.2d 545 (5th Cir.1987). In Villa Garcia, an investor sued a brokerage firm and several employees, alleging violations of the Securities Exchange Act of 1934. The defendants moved to compel arbitration, based on an arbitration agreement contained in the overall contract signed by the investor. The investor argued, in part, that the arbitration provision in the contract was unenforceable because of his inability to read English, which he said prevented his reading and understanding the contract. The court rejected this argument, stating that "[t]hese alleged facts and the overreaching claim they assertedly support should `be decided by an arbitrator, not the district court, since they go to the formation of the entire [contract] rather than' to the formation of the arbitration provision." Id. at 548 (citations omitted). Likewise, in this case, Conner's allegation addresses the contract as a whole, rather than the arbitration provision itself. Conner has not alleged that ALMD treated the arbitration clause differently from the way it treated any other provision of the contract; instead, she has merely argued that the arbitration clause was fraudulently induced because ALMD, she says, failed to disclose the existence of that clause. That argument, it seems, is similar to the one advanced in the Villa Garcia case. That argument, in fact, if valid, could apply equally to virtually all of the other provisions of the contract. Cf. Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996) (arbitration agreements must be given treatment equal to that given to other agreements). Based on the foregoing, and based on our conclusion that Conner's allegation that she was unable to understand English bears upon the entire agreement, we hold that the trial court should not have decided whether Conner had agreed to the arbitration agreement; instead, that question, if presented, should have been answered by an arbitrator. Therefore, the trial court erred in holding that the arbitration clause was unenforceable. We reverse the order denying arbitration, and we remand this case for further proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and HOUSTON, SEE, and LYONS, JJ., concur. ALMON, SHORES, KENNEDY, and COOK, JJ., dissent. [1] In her complaint, Conner alleges that when she visited the bank, a bank representative told her that the credit life insurance policy could not be cancelled unless ALMD completed the proper papers. [2] A direct appeal is the proper method to review a trial court's order denying a motion to compel arbitration, in a case where the Federal Arbitration Act applies. See A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360 (Ala.1990). [3] See, e.g., AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986). [4] The trial court based its ruling solely on its finding of a lack of mutual agreement regarding the making of the arbitration agreement; it did not address the scope of the agreement, i.e., whether, assuming the arbitration agreement itself was valid, the parties intended to submit this particular dispute to arbitration. [5] We note that courts are divided on how to apply the Prima Paint rule to cases not alleging claims of pure fraudulent inducement. For example, in Cancanon v. Smith Barney, Harris, Upham & Co., 805 F.2d 998 (11th Cir.1986), the United States Court of Appeals for the Eleventh Circuit distinguished claims of "fraud in the factum" from claims of "fraud in the inducement." Specifically, that court held that where a party has alleged fraud in the factum, "i.e., ineffective assent to the contract [in its entirety], the issue is not subject to resolution pursuant to an arbitration clause contained in the contract documents." Id. at 1000; see also Three Valleys Municipal Water Dist., 925 F.2d at 1141 (determining that Prima Paint was limited to challenges seeking to avoid or rescind a contract, not to challenges going to the very existence of a contract that a party claims never to have agreed to). Other courts have rejected this approach and have held that the Prima Paint rule extends to all challenges aimed at the contract in its entirety. See South Carolina Public Service Authority v. Great Western Coal (Kentucky), Inc., 312 S.C. 559, 561, 437 S.E.2d 22, 24 (1993); C.B.S. Employees Federal Credit Union v. Donaldson, Lufkin & Jenrette Securities Corp., 912 F.2d 1563, 1566-68 (6th Cir.1990). We need not address this split in authority, under the facts of this case. Even if we agreed with those courts holding that Prima Paint does not require arbitration when a party has challenged the very existence of the entire contract, that simply is not the case here. In Cancanon, supra, for example, the plaintiffs, who could not speak English, alleged that the defendant had falsely told them that the documents they signed merely opened money market accounts but that, in reality, the documents opened accounts that were designed to allow the trading of securities. In the present case, however, Conner understood the basic nature of the sales agreement she signed. The very existence of the contract between the parties is not in dispute; Conner merely contends that she was unaware of certain provisions contained in that contract.

July 31, 1998

30d0672f-3c81-4672-81ca-d2c7a0fff84a

McLeod v. State

718 So. 2d 727

1960538

Alabama

Alabama Supreme Court

718 So. 2d 727 (1998) Ex parte State of Alabama. (Re Leon McLEOD, Jr. v. STATE). 1960538. Supreme Court of Alabama. January 16, 1998. *728 Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for petitioner. John Grow II, Mobile, for respondent. SEE, Justice. A jury convicted Leon McLeod, Jr., of the murder of James McKissick, and the trial court sentenced McLeod to life in prison. The Court of Criminal Appeals reversed McLeod's conviction, holding that his confession was involuntary as having been induced by an implied promise of leniency and, therefore, that the confession should not have been admitted at the trial. McLeod v. State, 718 So. 2d 723 (Ala.1996). We granted certiorari review to consider that holding in light of our subsequently issued opinion in Ex parte Gaddy, 698 So. 2d 1150 (Ala.1997). We reverse. The facts pertinent to McLeod's confession are as follows: Police officers, responding to James McKissick's killing, recovered a pistol and drugs from McLeod's residence, where McKissick had been killed. The police arrested McLeod on a drug charge and took him to the police station. Officer Paul Burch read McLeod his Miranda[1] rights. McLeod stated that he understood his rights. He signed a form stating that he understood what he was doing and stating that no threats or promises had been made to coerce or induce him to answer questions. He indicated to the police that he wanted to cooperate. Then, after discussing the drug charge with McLeod, Officer Burch asked McLeod if he had used the pistol recovered at the residence to kill McKissick. McLeod answered, "Yes."[2] McLeod moved to suppress evidence of the confession. At the suppression hearing, Officer Burch testified as follows: (Emphasis added.) The Court of Criminal Appeals held that because the police bargained with McLeod ("if he cooperated we'd make his cooperation known"), his subsequent confession was improperly induced by an implied promise of leniency. We must determine whether a statement by the police indicating that "if" the defendant cooperates, then the police will make his cooperation known, taints a confession, or any inculpatory statement, as involuntary. For a confession, or an inculpatory statement, to be admissible, the State must prove by a preponderance of the evidence that it was voluntary. Ex parte Singleton, 465 So. 2d 443, 445 (Ala.1985). The initial determination is made by the trial court. Singleton, 465 So. 2d at 445. The trial court's determination will not be disturbed unless it is contrary to the great weight of the evidence or is manifestly wrong. Marschke v. State, 450 So. 2d 177 (Ala.Crim.App.1984). The trial court held, based on Officer Burch's testimony and McLeod's signed waiver-of-rights form, that McLeod's confession was voluntary. The Court of Criminal Appeals reversed the conviction, holding that the confession was involuntary. The Fifth Amendment to the Constitution of the United States provides in pertinent part: "No person ... shall be compelled in any criminal case to be a witness against himself...." Similarly, § 6 of the Alabama Constitution of 1901 provides that "in all criminal prosecutions, the accused ... shall not be compelled to give evidence against himself." These constitutional guarantees ensure that no involuntary confession, or other inculpatory statement, is admissible to convict the accused of a criminal offense. Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961); Hubbard v. State, 283 Ala. 183, 215 So. 2d 261 (1968). It has long been held that a confession, or any inculpatory statement, is involuntary if it is either coerced through force or induced through an express or implied promise of leniency. Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897). In Culombe, 367 U.S. at 602, 81 S. Ct. at 1879, the Supreme Court of the United States explained that for a confession to be voluntary, the defendant must have the capacity to exercise his own free will in choosing to confess. If his capacity has been impaired, that is, "if his will has been overborne" by coercion or inducement, then the confession is involuntary and cannot be admitted into evidence. Id. (emphasis added).[3] The Supreme Court has stated that when a court is determining whether a confession was given voluntarily it must consider the "totality of the circumstances." Boulden v. Holman, 394 U.S. 478, 480, 89 S. Ct. 1138, 1139-40, 22 L. Ed. 2d 433 (1969); Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S. Ct. 1152, 1154, 20 L. Ed. 2d 77 (1968); see Beecher v. Alabama, 389 U.S. 35, 38, 88 S. Ct. 189, 191, 19 L. Ed. 2d 35 (1967). Alabama courts have also held that a court must consider the totality of the circumstances to determine if the defendant's will was overborne by coercion or inducement. See Ex parte Matthews, 601 So. 2d 52, 54 (Ala.) (stating that a court must analyze a confession by looking at the totality of the circumstances), cert. denied, 505 U.S. 1206, 112 S. Ct. 2996, 120 L. Ed. 2d 872 (1992); Jackson v. State, 562 So. 2d 1373, 1380 (Ala.Crim.App.1990) (stating that, to admit a confession, a court must determine that the defendant's will was not overborne by pressures and circumstances swirling around him); Eakes v. State, 387 So. 2d 855, 859 (Ala.Crim.App.1978) (stating that the true test to be employed is "whether the defendant's will was overborne at the time he confessed") (emphasis added). Thus, to determine whether McLeod's confession was improperly induced, we must determine if his will was "overborne" by an implied promise of leniency. Instead of applying the "overborne" test, the Court of Criminal Appeals applied a more stringent "bargained with" test. It held that because Officer Burch "bargained with" McLeod to obtain his confessionif McLeod cooperated, the police would make his cooperation known to the district attorneythe confession "was improperly induced by a promise made by Officer Burch that reasonably engendered a hope of favor in McLeod's mind." McLeod, 718 So. 2d at 727. We disagree. In Gaddy, 698 So. 2d at 1154, this Court expressly disapproved the "bargained *730 with" test used by the Court of Criminal Appeals and held that a court should examine the totality of the circumstances to determine if an implied promise of leniency caused the defendant to make the confessioni.e., if it overbore the will of the defendant. Thus, the test of involuntariness of a confession, or other inculpatory statement, is not whether the defendant bargained with the police, but whether in his discussions with the police, which may have included bargaining, the defendant's will was overborne by "apprehension of harm or hope of favor." See Gaddy, 698 So. 2d at 1154 (quoting Ex parte Weeks, 531 So. 2d 643, 644 (Ala.1988)); Culombe, 367 U.S. at 602, 81 S. Ct. at 1879; Jackson, 562 So. 2d at 1380. To determine if a defendant's will has been overborne, we must assess "the conduct of the law enforcement officials in creating pressure and the suspect's capacity to resist that pressure"; "[t]he defendant's personal characteristics as well as his prior experience with the criminal justice system are factors to be considered in determining [the defendant's] susceptibility to police pressures." Jackson, 562 So. 2d at 1380-81 (citations omitted). The evidence does not indicate that McLeod was threatened with physical intimidation or psychological pressure. The evidence does not show that the interrogation lasted for an extraordinary length of time or that he was deprived of either food or sleep for an unexplained and prolonged time. See, e.g., Pardue v. State, 695 So. 2d 199 (Ala. Crim.App.1996) (holding that a confession obtained by interrogating the defendant for approximately 78 hours was involuntary). Further, the evidence does not show that McLeod was under the influence of alcohol or drugs when he confessed. See, e.g., Boggan v. State, 455 So. 2d 228, 236 (Ala.Crim.App. 1984) (stating that the defendant's intoxication may cause his inculpatory statement to be inadmissible). The evidence indicates that although McLeod did not have a previous arrest record and thus may have had little prior experience with the criminal justice system, he is an adult who can read and write, and he signed a waiver form indicating that he knowingly, intelligently, and voluntarily waived his rights. The evidence also indicates that the interrogation of McLeod was conducted in a civil manner free of displays of force, intimidation, or strong-arm tactics. Moreover, as in Gaddy, 698 So. 2d at 1155, the defendant in this case initiated the portion of the discussion that led to his confession. McLeod indicated that he wanted to cooperate with Officer Burch. Thus, this case is less like Weeks, 531 So. 2d at 644, where the officer's inducement actually caused the defendant to make an inculpatory statement, and more like Gaddy, 698 So. 2d at 1155, where the officer's inducement did not actually cause the defendant to confess. Absent the exertion of physical or psychological force or any particular and peculiar susceptibility to inducement on the part of McLeod, the officer's stating that he would make McLeod's cooperation known to the district attorney was, under the totality of the circumstances, insufficient to taint McLeod's confession as involuntary.[4] Therefore, *731 we hold that the State carried its burden of proving that McLeod's confession was voluntary. We reverse the judgment of the Court of Criminal Appeals and remand the case for an order or proceedings consistent with this opinion. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX and HOUSTON, JJ., concur. ALMON, SHORES, KENNEDY, and BUTTS, JJ., concur in the result. [1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). [2] There was evidence to indicate that McKissick and his girlfriend had visited McLeod's wife at McLeod's residence; that McLeod returned home and became angry when he saw McKissick sitting at the kitchen table; that McLeod exchanged words with McKissick and then pulled a pistol; and that McLeod shot McKissick three times in the head at point-blank range. [3] In Arizona v. Fulminante, 499 U.S. 279, 286 n. 2, 111 S. Ct. 1246, 1252 n. 2, 113 L. Ed. 2d 302 (1991), the Supreme Court reaffirmed that the test of voluntariness is whether "a defendant's will has been overborne" (citing Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961)). [4] Moreover, we note that the mere promise to make cooperation known to law enforcement authorities, as opposed to a direct promise of a reduced sentence, generally is not considered an illegal inducement. In United States v. Nash, 910 F.2d 749, 752-53 (11th Cir.1990), the United States Court of Appeals for the Eleventh Circuit held: "We find that the district court was not clearly erroneous in accepting [the officer's] testimony that he only promised to make [the defendant's] cooperation known to the United States Attorney's office and gave no guarantee of a reduced sentence. Although [the officer] told [the defendant] that cooperating defendants generally `fared better time-wise,' this statement did not amount to an illegal inducement: `telling the [defendant] in a noncoercive manner of the realistically expected penalties and encouraging [him] to tell the truth is no more than affording [him] the chance to make an informed decision with respect to [his] cooperation with the government.'" (Quoting United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir.1978)). Accord United States v. Levy, 955 F.2d 1098, 1105 (7th Cir.1992) (holding that federal agent's indication to defendant that his cooperation would be reported to the United States Attorney did not make defendant's confession involuntary); United States v. Meirovitz, 918 F.2d 1376, 1380 (8th Cir.1990) (holding that confession was voluntary although agents had promised to inform prosecutor of defendant's cooperation); United States v. Guerrero, 847 F.2d 1363 (9th Cir.1988) (holding that agent's promise to inform prosecutor of defendant's cooperation does not render a subsequent confession involuntary); United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir.1985) (holding that an officer's promise to bring defendant's cooperation to the attention of the prosecutor did not make confession involuntary).

January 16, 1998

2a18b2fc-2f12-4fa9-acf2-41cb7b7d65ee

Ex Parte Horton

711 So. 2d 979

1961054

Alabama

Alabama Supreme Court

711 So. 2d 979 (1998) Ex parte Cecil Larry HORTON and Sue Horton. (In re Cecil Larry HORTON and Sue Horton v. ALFA LIFE INSURANCE CORPORATION). 1961054. Supreme Court of Alabama. February 13, 1998. Rehearing Denied March 20, 1998. *980 Jere L. Beasley, W. Daniel "Dee" Miles III, and Joseph H. "Jay" Aughtman of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery; and Mickey L. Johnson, Pelham, for petitioners. Robert W. Bradford, Jr., and Jeff J. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery; and James W. Fuhrmeister of Griffin, Allison, May, Alvis & Fuhrmeister, Birmingham, for respondent Alfa Life Insurance Corporation. Albert L. Jordan, Cecil H. Macoy, Jr., and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for intervenor Linda Denson. BUTTS, Justice. Cecil Larry Horton and Sue Horton, plaintiffs in an action pending in the Shelby Circuit Court, have petitioned for a writ of mandamus directing Judge J. Michael Joiner to grant their motion to compel additional discovery from a client list provided to them by the defendant Alfa Life Insurance Corporation ("Alfa") relating to one of its insurance agents. We grant the writ. Linda Denson is an agent for Alfa. In June 1982, she sold Alfa whole life insurance policies to the Hortonsa $100,000 policy to Larry Horton and a $75,000 policy to his wife Sue Horton. The Hortons allege that Denson told them that the policies would be "paid up" after they had paid premiums for 10 years and that after 15 years the policies would have a combined cash value of $28,000 that the Hortons could withdraw while still maintaining the policies' death benefits. In June 1986, four years after the Hortons had bought their first Alfa policies, Denson sold each of the Hortons an additional $50,000 whole life insurance policy. They allege that Denson told them that the policies would add to their existing life insurance coverage, that their total premiums would be lowered, and that they would get more insurance coverage for less money. In July 1990, Denson sold the Hortons two more life insurance policiesa $150,000 twenty-year term policy to Larry Horton and a $150,000 twenty-year decreasing term policy to Sue Horton. However, the Hortons allege that they did not know at the time (July 1990) that they were buying insurance; the Hortons allege that Denson told them that the forms they were signing at that time were merely to update their 1986 whole life insurance policies. These two 1990 term policies replaced the Hortons' whole life policies and were paid for by the cash values of the 1982 and 1986 whole life policies. The Hortons allege that they did not know they were buying these term life insurance policies and, thus, did not know these new policies were replacing the whole life insurance policies they had bought in 1982 and 1986 or that the new term policies would be paid for by the cash values of the whole life policies. In September 1991, the Hortons questioned Denson regarding bills they were receiving from Alfa. They say they asked why they were receiving bills from Alfa asking for payments in addition to the premiums they were already paying monthly. They say Denson responded by telling them to ignore the additional bills and that she would clear up the matter. Denson had the Hortons sign several more forms; the Hortons say she told them these forms were necessary to clear up the billing problem. However, the Hortons say they continued to receive the billing notices from Alfa and they say Denson told them to continue ignoring them. The Hortons eventually notified the Alabama Department of Insurance of their concerns. After a review by the Insurance Department, the Hortons learned that Denson had used the cash value of their whole life insurance policies to pay premiums on the term life insurance policies even though, the Hortons say, they had never authorized Alfa to transfer funds from their whole life policies. In March 1994, the Insurance Department informed the Hortons that in its opinion neither Denson nor Alfa had violated Alabama insurance law. In April 1995, the Hortons filed a complaint against Alfa, alleging that through its agent, Denson, Alfa had made fraudulent misrepresentations to them that had induced them to purchase additional Alfa life insurance *981 policies that were unnecessary, and alleging that they had suffered damage as a result. The Hortons further alleged that Alfa's conduct toward them was the result of a pattern and practice of fraud and other intentional wrongful conduct. During the discovery process, the Hortons requested from Alfa the names, addresses, and telephone numbers of all Alabama residents who had purchased Alfa life insurance policies over the previous five years. After Alfa objected to this request, the Hortons amended it to seek production of the names and addresses of all persons to whom Denson had sold Alfa life insurance policies during the previous 10 years ("the Denson client list"). Alfa again objected to the request. The trial court issued an order allowing the Hortons only limited discoverythe court ordered Alfa to produce the Denson client list, but it allowed the Hortons to contact only every fourth person on the list. The trial court stated that it believed such discovery would provide the Hortons a representative sample of Alfa policyholders and said that if the Hortons believed they needed additional discovery, the court would entertain a further request later. Using a letter approved by the trial court, the Hortons' counsel attempted to contact 97 Alfa life insurance policyholders from the Denson client list. The Hortons say that 17 of those letters were returned to their counsel because the addresses Alfa had provided for those persons were not current. Only 12 persons responded to the letter from the Hortons' counsel. The Hortons, contending this response was inadequate to provide them with sufficient discovery, moved to compel additional discovery from the Denson client list. Alfa objected to the motion, and the court denied it. The Hortons made a second motion to compel additional discovery; the court denied that motion also. The Hortons then filed this petition for a writ of mandamus. The Hortons argue that this Court should order Judge Joiner to grant their motion for additional discovery from the Denson client list, because, they say, Judge Joiner abused his discretion in limiting their discovery in what they say was an arbitrary and restrictive manner. They argue that the Alabama Rules of Civil Procedure are to be construed broadly to allow parties the discovery they need to prepare their case. The Hortons contend that in their fraud case, in which they seek punitive damages and therefore have the burden of proving a high degree of culpability on the part of Alfa, it is well within the scope of discovery allowed under Rule 26, Ala. R. Civ. P., to discover information indicating whether Denson made the same or similar misrepresentations to other Alfa policyholders. In sum, they argue that they have a right to gather all the information necessary to determine whether Denson's alleged misconduct toward them as an Alfa agent was part of a pattern and practice of misconduct. The Hortons argue that the limited response they received from persons on the Denson client list was the result of two factors: the trial court's restriction limiting them to contacting only every fourth person, and a letter Alfa mailed to the persons on the list telling them that their names and addresses had been given to a law firm in relation to a lawsuit brought by a discontented policyholder and telling them that "[t]he decision as to whether or not you wish to discuss your personal business or insurance coverage with this law firm is entirely up to you and you are under no legal obligation to do so." The Hortons note that this letter was not preapproved by the trial court, and they say Alfa wrote the letter with the intent to discourage response to the letter from the Hortons' counsel. The list supplied by Alfa contained the names of 414 persons. The Hortons say that the 12 responses, from roughly 100 persons they were allowed to contact, did not provide them a representative sample of policyholders; that the response is insufficient to supply "pattern and practice" witnesses; and that the trial court abused its discretion in not granting their motion for further discovery from the list. In support of their contention, the Hortons cite this Court's opinions in Ex parte Howell, 704 So. 2d 479 (Ala.1997), Ex parte Rowland, 669 So. 2d 125 (Ala.1995), *982 and Ex parte Asher, Inc., 569 So. 2d 733 (Ala.1990), in which we expounded on a plaintiff's broad right to discovery in fraud cases. In Ex parte Howell, in which the client lists of two insurance company agents were at issue, this Court held that a trial court had abused its discretion in limiting to only 25 the number of persons that could be contacted from each list and in further limiting to 15 the number of clients that could be interviewed from each list. We concluded in Ex parte Howell that the limitations would prevent the plaintiffs from obtaining meaningful discovery, and that the restrictions were arbitrary and amounted to an abuse of discretion by the trial court. The Hortons argue that the limitation imposed on their discovery is similar to the restrictions placed on the plaintiffs in Ex parte Howell and that this Court should rule that Judge Joiner abused his discretion and grant their petition for a writ of mandamus. In response, Alfa contends that this Court should defer to the broad discretion and authority that is granted to trial courts over the discovery process and, thus, deny the Hortons' petition. Alfa says that the Hortons have already been accorded the broad discovery applicable to cases alleging fraud. Citing Ex parte Mobile Fixture & Equipment Co., 630 So. 2d 358 (Ala.1993), Alfa says that if this were not a fraud case, the Hortons would not have been entitled to any discovery from the Denson customer list. Alfa contends that the trial court properly exercised its discretion, saying that the court balanced the needs of the Hortons while protecting the interests of Linda Denson and her clients. Alfa notes that under Rule 26(c) a court is authorized to enter orders "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Alfa contends that the trial court allowed the Hortons to contact a significant and representative sample of the persons on the Denson client list and that authorizing any contact with more persons on the list would jeopardize Denson's relationship of confidence and trust she has with her clients. This argument is also made by Denson, who was allowed to intervene in this case in relation to discovery issues. Denson implies that her client list should be treated as a trade secret and be protected from further discovery, based on the Alabama Trade Secrets Act, Ala.Code 1975, §§ 8-27-1 to -6. Both Alfa and Denson contend that our opinion in cases such as Ex parte Howell, Ex parte Rowland, and Ex parte Asher, Inc., supra, cited by the Hortons, do not support the Hortons' argument for additional discovery. Alfa argues that the trial court's limitation on the Hortons' discovery was not as restrictive as the limitations placed on discovery by the courts in those cases. They point out that in this case the trial court allowed the Hortons to contact roughly 100 persons from the Denson client list, four times the number allowed by the trial court in Ex parte Howell. Alfa and Denson contend that more than the roughly 100 persons the Hortons were allowed to contact became aware of the letter from the Hortons' counsel because, they say, certain persons on the list are relatives of persons who received the letter. Specifically, Alfa and Denson argue that as many as 255 of the 414 persons on the Denson client list could have been expected to know of the letter from the Hortons' counsel, and that those persons could have responded to the Hortons' request for information if they had chosen to. Alfa contends that the Hortons have no particularized need for discovery in addition to that already afforded them either directly or indirectly. Denson argues the inference that the Hortons received little response from those persons on the Denson client list because those persons are satisfied with Alfa's service and with her service and that a pattern and practice of similar alleged misconduct does not exist. Trial courts are vested with broad discretion in controlling the discovery process and in making rulings pertaining to discovery matters. Ex parte Heilig-Meyers Furniture Co., 684 So. 2d 1292 (Ala.1996); Ex parte Thomas, 628 So. 2d 483 (Ala.1993). A petition for the writ of mandamus is the proper means for seeking appellate review of the question whether a trial court has abused its discretion in a discovery matter. Ex parte Heilig-Meyers Furniture Co.; Ex *983 parte General Motors Acceptance Corp., 631 So. 2d 990 (Ala.1994). However, mandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte United Service Stations, Inc., 628 So. 2d 501 (Ala.1993); Ex parte AmSouth Bank, N.A., 589 So. 2d 715 (Ala.1991). In sum, the writ of mandamus will not issue to compel a trial court to change its discovery order unless the appellate court determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion. Ex parte Fuller, 600 So. 2d 214 (Ala.1992); Ex parte Knox Kershaw, Inc., 562 So. 2d 250 (Ala.1990). This Court must determine whether the Hortons, in light of the nature of their claim, have demonstrated a particularized need for further discovery. The Hortons have alleged fraud. When a plaintiff has alleged fraud, discovery must necessarily be broader than in other cases; this is because of the heavy burden of proof imposed on one alleging fraud. Ex parte Clarke, 582 So. 2d 1064 (Ala.1991); Pugh v. Southern Life & Health Ins. Co., 544 So. 2d 143 (Ala.1988). It is well settled in this state that at trial of a fraud case a plaintiff can present evidence of prior similar misconduct to show the existence of a plan or scheme, motive, or intent on the part of a defendant. Rule 404(b), Ala. R. Evid.; Charles W. Gamble, McElroy's Alabama Evidence § 34.02(2) (5th ed.1996) (see the discussion and cases cited therein). Thus, "[e]vidence of similar misrepresentations made to others by the defendant is admissible in a fraud action." Ex parte Allstate Ins. Co., 401 So. 2d 749, 751 (Ala.1981). Because the kind of evidence the Hortons seek is relevant and admissible, it is discoverable. But are the Hortons entitled to discovery from the Denson client list beyond the 25% limitation allowed by the trial court? We conclude that they are. In recent years this Court has held several times that a restriction on discovery similar to that imposed in this case is an abuse of discretion. See Ex parte Howell, supra; Ex parte Stephens, 676 So. 2d 1307 (Ala.1996); Ex parte Clarke, 582 So. 2d 1064 (Ala.1991). These cases stand for the proposition that a trial court, in attempting to control the discovery process, abuses its discretion when it imposes a limitation or creates a procedure that prevents meaningful discovery of relevant and admissible evidence in a fraud action. The Hortons' first request for discovery from Alfa called for information on all Alabama residents who had purchased Alfa life insurance policies over the last five years. The trial court denied that request, and the Hortons responded by voluntarily narrowing their request solely to the Denson client list. The trial court allowed discovery from only a quarter of that list. That restriction was an abuse of discretion. The discovery requested by the Hortonscontact with additional persons on the Denson client listis closely tailored to the kind of fraud alleged by the Hortons. As noted previously, the Denson client list is a list of persons to whom, like the Hortons, Denson sold Alfa life insurance policies during the previous 10 years. The Hortons are not requesting discovery of client lists from other Alfa agents, or lists of persons to whom Denson sold other kinds of Alfa insurance policies. When the discovery request of a plaintiff alleging fraud is closely tailored to the nature of the fraud alleged, the discovery should be allowed in full, as long as the party opposing discovery does not show that the requested discovery is oppressive or overly burdensome. We conclude that providing the additional discovery requested by the Hortons would not be burdensome or oppressive to Alfa. Also, we conclude that the initial contact to be made by the Hortons, through a court-approved letter from the Hortons' counsel, is not intrusive or annoying toward the persons on the list or oppressive toward Denson. Moreover, we believe that the United States Supreme Court's opinion in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996), increased the necessity for a plaintiff alleging *984 fraud and seeking punitive damages to seek pretrial discovery of similar alleged acts of misconduct by the defendant. The United States Supreme Court stated: "Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." 517 U.S. at 575, 116 S. Ct. at 1599. This Court had previously considered the reprehensibility of the defendant's conduct as one of several factors for a court to review under Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), when considering whether a punitive damages award was excessive, but the United States Supreme Court in its BMW opinion gave that factor greater significance. On remand in the BMW case, we noted that the factor of reprehensibility of the defendant's misconduct includes a consideration of "`the existence and frequency of similar past conduct.'" BMW of North America v. Gore, 701 So. 2d 507, 512 (Ala. 1997) (quoting Green Oil, 539 So.2d at 223). Given this increased requirement that a plaintiff awarded punitive damages be able to demonstrate on a Green Oil review that the defendant's conduct was reprehensible and, thus, that the award was not excessive, the plaintiff has a concurrent need for broad pretrial discovery that might lead to evidence of similar misconduct by the defendant. To hold otherwise would be inconsistent. In sum, we conclude that the Hortons have a legitimate and particularized need for further discovery from the Denson client list and that the trial court abused its discretion in denying their request. We grant the writ of mandamus. WRIT GRANTED. ALMON, SHORES, KENNEDY, and COOK, JJ., concur. HOOPER, C.J., and HOUSTON and SEE, JJ., dissent. MADDOX, J., recuses himself. HOUSTON, Justice (dissenting). I dissented in Ex parte Howell, 704 So. 2d 479 (Ala.1997), and Ex parte Stephens, 676 So. 2d 1307, 1316-17 (Ala.1996); and I dissent in this case. "Let the trial court be the trial court, without microscopic manipulation of its discretion by this court." Ex parte Howell, at 483 (Houston, J., dissenting). HOOPER, C.J., concurs.

February 13, 1998

49cfd90a-ca9d-4833-a004-003d6ea7682b

Looney v. Davis

721 So. 2d 152

1951825

Alabama

Alabama Supreme Court

721 So. 2d 152 (1998) Thomas C. LOONEY, D.M.D. v. Willie DAVIS, Jr., as administrator of the estate of Eva Davis. 1951825. Supreme Court of Alabama. February 13, 1998. Rehearing Denied August 28, 1998. *154 Michael K. Beard of Starnes & Atchison, Birmingham; Thomas R. Jones, Jr., of Rosen, Cook, Sledge, Davis, Carroll & Jones, P.A., Tuscaloosa; and Ira D. Pruitt, Jr., of Pruitt, Pruitt & Watkins, P.A., Livingston, for appellant. G. Daniel Evans of the Evans Law Firm, P.C., Birmingham; and Peter F. Burns of Burns, Cunningham & Mackey, Mobile, for appellee. SHORES, Justice. This is a medical malpractice/wrongful death case. Dr. Thomas C. Looney appeals from a judgment entered on a jury verdict in favor of the plaintiff, Willie Davis, Jr., the husband of Eva Winn Davis and administrator of her estate. We reverse and remand. The evidence, viewed in the light most favorable to the plaintiff, St. Clair Federal Savings Bank v. Rozelle, 653 So. 2d 986 (Ala. 1995), shows the following: On the morning of July 6, 1989, Eva Winn Davis, then age 60, visited Dr. Looney's dentistry office in Livingston, Alabama, complaining of severe pain in her first upper right molar. Dr. Looney had treated Mrs. Davis before but, because he had not seen her for many years, he instructed her to fill out a patient questionnaire. On this form, Mrs. Davis answered affirmatively to a question asking whether she had been hospitalized in the past two years, and she also circled the words "bleeding, pain" in a question asking whether she had any problems with her gums. She left blank a section that listed various maladies, including "anemia," "hepatitis," "jaundice," and "liver disorder," and requested patients to circle any that applied. Responding to her questionnaire, Dr. Looney inquired about the reason for her hospitalization, and Mrs. Davis replied vaguely that she had gone into the hospital about six months before for some tests but that she was "okay." He questioned her about the pain and bleeding in her gums, and she stated that she did not know why she wrote "bleeding" but that she was referring to the tooth pain that prompted her visit to his office. Dr. Looney then asked her if when she cut herself in the kitchen she bled for a long time. She answered "no." Concluding that Mrs. Davis did not pose a significant risk of bleeding problems, Dr. Looney extracted her tooth. However, despite what she had told Dr. Looney, the hospitalization to which Mrs. Davis referred on her questionnaire had revealed several potentially serious health problems. On January 14, 1989, Mrs. Davis, suffering from pneumonia, had been admitted to Hill Hospital of York (Hill Hospital) in York, Alabama. During her six-day stay, Mrs. Davis's attending physician was Charles Quarles, M.D. Mrs. Davis underwent a series of tests, which disclosed that, besides pneumonia, she was also suffering from alcoholinduced *155 cirrhosis of the liver, anemia, jaundice, a low platelet count in her blood, and hepatitis. These disorders suggested that Mrs. Davis might have problems with her blood not clotting properly. Throughout the day and evening after her tooth extraction, Mrs. Davis continued to experience bleeding from the site. When the bleeding persisted the following morning, Friday, July 7, Mrs. Davis returned to Dr. Looney's office. He placed on the site a small amount of "surgicel," a substance that acts as a hemostatic agent, and put a suture over it to keep it in place because the plasma was expelling it. Dr. Looney also prescribed penicillin for what he believed was a mild post-operative infection. However, Mr. Davis saw his wife soon after she had left Dr. Looney's office that Friday morning, and she showed him that her mouth was still bleeding. At home that evening, Mr. Davis noticed that his wife was spitting some blood into a cup. The next day, Saturday, July 8, Mrs. Davis remained at home, watching television and playing with her grandchild. She continued to spit blood into the cup. After Mrs. Davis went to bed for the evening, family members found her passed out and on blood-stained bedsheets. Mrs. Davis's daughters, Mary and Cora, and Cora's husband, Benjamin, drove Mrs. Davis to Bryan W. Whitfield Memorial Hospital (Bryan Whitfield) in Demopolis, where she was admitted to the emergency room at 11:38 p.m. Mrs. Davis's daughter Mary told the nurse there that Mrs. Davis had been bleeding for two or three days since she had had her tooth extracted. The nurse placed gauze in Mrs. Davis's mouth and had her bite down. Dr. Paul Ketcham, Mrs. Davis's attending physician in the Bryan Whitfield emergency room, then briefly examined her. He shined a light in her mouth and, noting some blood oozing under the gauze near the suture, told her to see her dentist and then walked out of the examination room. Unsatisfied with what they perceived to be inadequate medical treatment, the family members who had accompanied Mrs. Davis to the emergency room followed Dr. Ketcham into the hall, where Mary angrily inquired whether he was going to let Mrs. Davis bleed to death. Dr. Ketcham did not respond and continued to walk away. Still upset, Mary went to the waiting room and called her sister Betty from a pay telephone, asking that Betty telephone Dr. Looney at his home. Betty complied, telephoning Dr. Looney's residence at approximately 12:30 a.m. on Sunday, July 9. Dr. Looney's wife answered; Betty told her that Mrs. Davis was at Bryan Whitfield Hospital and that the person in charge would not administer treatment and asked that Dr. Looney telephone in treatment orders. Dr. Looney instructed his wife to tell the caller that he was not on staff at Bryan Whitfield and therefore could not call in orders, but that if there were any problems the emergency room doctor on call should telephone him. The nurse in the Bryan Whitfield emergency room likewise told the Davis family that she could not take treatment orders from Dr. Looney because he was not on staff. In any event, Dr. Looney did not receive a call from Dr. Ketcham, and no further treatment was administered at Bryan Whitfield. Mrs. Davis was released at 12:30 a.m. with instructions to keep pressure on the area and to return to her dentist. Mrs. Davis's two daughters and her son-in-law drove her back to her home. Sometime before 3:00 a.m., Mr. Davis was awakened by his daughter Dora, who told him, "Mama is bleeding to death." He instructed Dora to telephone the paramedics and Dr. Looney. An ambulance arrived; the emergency medical technician telephoned Dr. Looney and told him that Mrs. Davis was weakened, confused, fainting, and lethargic. Dr. Looney instructed the technician to take her to Druid City Hospital in Tuscaloosa. However, the technician replied that the ambulance service had to take Mrs. Davis first to the closest hospital, which was Hill Hospital in York. The ambulance service took Mrs. Davis to Hill Hospital, where she was admitted to the emergency room at 3:05 a.m. on Sunday, July 9. Mrs. Davis's attending physician in the Hill Hospital emergency room was Dr. Charles Quarles, the same doctor who had diagnosed her liver disease when she was at the same facility with pneumonia in January 1989, about six months earlier. *156 Dr. Quarles recognized that Mrs. Davis was "actively bleeding" from the extraction site and also that she was jaundiced. Dr. Quarles recalled that Mrs. Davis's January hospitalization had revealed she suffered from liver disease, so he ordered a hepatitis and liver profile and gave her a shot of penicillin. His prescribed treatment for the bleeding was for Mrs. Davis to apply pressure to the site, using gauze, and to bite down on tea bags, which contain tannic acid, a chemical that assists in clotting. Although she was still bleeding to some degree, Mrs. Davis was released from the emergency room at 7:40 a.m. with instructions to "See Dr. Looney Monday." Mrs. Davis spent the remainder of that Sunday at home. She was alert and oriented, but weakened and still using a cup to spit blood in. The following morning, Monday, July 10, 1989, Mr. Davis awoke to find his wife semiconscious, unable to speak, and "fighting her hands and things." Mrs. Davis was once again taken by ambulance to the Hill Hospital emergency room, where she was admitted at 7:15 a.m. The emergency room nurse noted on Mrs. Davis's record that she was weak and lethargic, that the bleeding had continued since the tooth was extracted, and that she had been bleeding from her mouth all night. Recognizing that Mrs. Davis was now in critical condition, the doctor on call, Dr. Eleanor Eller, immediately ordered emergency transfusions and prepared her to be transferred to Rush Memorial Hospital in Meridian, Mississippi. Dr. Eller noted on the emergency transfer certificate, "large amounts of blood loss from bleeding gum, patient in borderline shock on arrival, blood transfusion begun fifteen minutes before transfer." At 10:40 a.m., Mrs. Davis arrived at Rush Memorial, where she was diagnosed with gram negative sepsis, a generalized infection of e. coli bacteria. It was noted that Mrs. Davis suffered from coagulopathy, which is an inability of her blood to clot, due to sepsis, liver disease, and anemia. Mrs. Davis did not respond to treatment and was pronounced dead at 11:55 p.m. on July 10, 1989. On May 7, 1990, Mr. Davis, as administrator of his wife's estate, filed a medical malpractice action against Dr. Looney, Dr. Quarles, Hill Hospital, the City of York, Bryan Whitfield Hospital,[1] and the City of Demopolis. Mr. Davis alleged that these defendants had provided substandard medical care to his wife and that their combined and concurring negligence had resulted in her death. The trial court granted a motion to dismiss filed on behalf of the City of Demopolis. On September 21, 1990, Dr. Quarles filed a bankruptcy petition and later had the action removed to a federal court. Upon a petition by Mr. Davis, the federal court remanded the case to the state court, with the restriction that any recovery against Dr. Quarles would be limited to the extent of his liability insurance, $1 million. The trial court granted motions for summary judgment on behalf of the City of York and Hill Hospital. The cause was tried against the remaining defendants: Dr. Looney, Dr. Quarles, and Bryan Whitfield Hospital. The defendants moved for directed verdicts at the close of the plaintiff's case and renewed those motions at the close of all the evidence. The court denied those motions. On March 29, 1996, the jury returned a verdict against all three defendants in the amount of $3 million. The trial court entered a judgment on the verdict, but granted a motion to reduce the judgment as to Bryan Whitfield Hospital to $100,000, pursuant to § 11-93-2, Ala.Code 1975. Dr. Looney moved for a judgment notwithstanding the verdict or, in the alternative, a new trial or remittitur. Bryan Whitfield Hospital and Dr. Quarles reached pro tanto settlements with the plaintiff in the amounts of $100,000 and $900,000, respectively, thereby reducing the outstanding judgment to $2 million. On July 6, 1996, the trial court, after conducting a hearing pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), denied Dr. Looney's post-trial motions. Dr. Looney appeals. Dr. Looney raises several issues: (1) whether the trial court erred in denying his *157 motion for a judgment notwithstanding the verdict, (2) whether the trial court erred in denying his motion for a new trial, based on various alleged errors in the proceedings; and (3) whether the trial court erred by denying his motion for a remittitur, which had argued that the $3 million judgment, reduced by settlements to $2 million, was excessive. Dr. Looney first argues that the trial court erred in denying his motion for a directed verdict and later his motion for a judgment notwithstanding the verdict. The standard of review for testing these two motions is identical, as they both challenge the sufficiency of the evidence. J.B. Hunt Transport, Inc. v. Credeur, 681 So. 2d 1355 (Ala.1996). That standard is whether the nonmovant has presented substantial evidence in support of each element of his claim; if he has not, then the motion should be granted. Malcolm v. King, 686 So. 2d 231 (Ala.1996). To prove liability in a medical malpractice case, the plaintiff must prove (1) the appropriate standard of care, (2) the doctor's deviation from that standard, and (3) a proximate causal connection between the doctor's act or omission constituting the breach and the injury sustained by the plaintiff. Complete Family Care v. Sprinkle, 638 So. 2d 774 (Ala.1994); Bradford v. McGee, 534 So. 2d 1076 (Ala.1988); § 6-5-484, Ala.Code 1975. The plaintiff in a medical malpractice action generally must establish the prima facie elements by introducing expert testimony. Bradford, supra. And, as noted previously, in reviewing a trial court's ruling on a motion for directed verdict or JNOV, this Court must view the evidence in a light most favorable to the nonmovant, in this case Mr. Davis. St. Clair Federal Savings Bank v. Rozelle, supra. The plaintiff presented evidence that Dr. Looney's treatment of Mrs. Davis breached the standard of care in several ways. First, the plaintiff's dental expert, Morris Benveniste, D.D.S., testified that Dr. Looney did not take an appropriate medical history on Mrs. Davis because he failed to properly follow up on her questionnaire responses. Dr. Benveniste stated that the standard of care required Dr. Looney to find out exactly why Mrs. Davis had been recently hospitalized, in order to determine whether extracting her tooth might pose a bleeding problem or other health risk. He explained that even if Mrs. Davis answered Dr. Looney's questions vaguely, it was still Dr. Looney's responsibility to ensure her safety by obtaining the necessary information through asking her more pointed follow-up questions or by contacting the doctor who had treated her. Dr. Benveniste opined that Dr. Looney's inquiry into whether Mrs. Davis bled for a long time when she cut herself in the kitchen was insufficient under the standard of care to determine whether she posed a bleeding risk because it was uncertain how long it had been since she had cut herself. He also stated that taking a proper history became even more important when Mrs. Davis returned to Dr. Looney's office the day after the extraction complaining of continued bleeding. Second, there was evidence that Dr. Looney breached the standard of care by failing to notice Mrs. Davis's obvious symptoms of jaundice, a condition Dr. Looney acknowledged he was trained to look for as an indicator of liver disease and potential bleeding problems. Jaundice is the buildup in the bloodstream of bilirubin, a bile pigment that causes a yellow discoloration of the skin and the whites of the eyes. Dr. Looney admitted that if Mrs. Davis was manifesting symptoms of jaundice and he failed to recognize them then he would have breached the standard of care. Dr. Looney maintained, however, that Mrs. Davis was not jaundiced upon either visit to his office. But less than 72 hours after Dr. Looney extracted Mrs. Davis's tooth, Dr. Quarles examined her in the Hill Hospital emergency room and noted on her chart that he recognized she was jaundiced. Other evidence further suggested that Mrs. Davis was showing clear signs of jaundice from at least January 1989 until her death. There was testimony that a bilirubin level of up to about 1.2 is considered normal, that the yellow discoloration of the eyes is detectable to a trained professional once the level is much above 2.0, and that "by three or four it would become pretty obvious." Mrs. Davis's bilirubin level was found to be 5.3 when she *158 was at Hill Hospital in January 1989 and 6.3 when she returned to the emergency room of that same hospital on the day she ultimately died, July 10, 1989. Dr. Benveniste testified that, under the standard of care, if a dentist discovered that his patient had jaundice, that would be a signal of liver disease and potential bleeding complications, and that that situation would require that the dentist, before extracting a tooth, refer the patient to a physician qualified to assess the patient's medical condition and to take any precautions deemed medically necessary to safeguard against potential bleeding problems. The plaintiff also presented evidence that Dr. Looney breached the standard of care by failing to remove granulated tissue around the extraction site and also by the manner in which he used the "surgicel." Dr. Benveniste testified that granulated tissue is tissue that is still alive but, because of infection, is very soft and has a tendency to bleed, and that the standard of care requires its removal. Dr. Looney did not remove it. Dr. Benveniste also indicated that Dr. Looney's use of the surgicel violated the standard of care because it violated the manufacturer's instructions. Finally, the plaintiff contended that Dr. Looney breached the standard of care by failing to render aid to Mrs. Davis on July 9 once he learned at 12:30 a.m. that she was at Bryan Whitfield Hospital and again when he learned at 3 a.m. that she was being taken by ambulance to Hill Hospital. Dr. Benveniste testified to the effect that Mrs. Davis's continued bleeding on July 9 might have been at least partially a "medical problem," which would have required treatment by a physician, but that it also might have been partially a "dental problem," which Dr. Looney would have been qualified to treat. He further stated that, as the primary caregiver, Dr. Looney had an obligation to "follow through and make sure [Mrs. Davis] got proper care." Indeed, it appears that Dr. Looney does not dispute that there was sufficient evidence for the jury to find that he breached the standard of care. Rather, the focus of Dr. Looney's argument is that there is not substantial evidence establishing that any breach of care by him proximately caused Mrs. Davis's death. He emphasizes that at no time did Dr. Benveniste, the plaintiff's dental expert, offer testimony linking any violation of the standard of care by Dr. Looney to the cause of Mrs. Davis's death. "The rule in Alabama in medical malpractice cases is that to find liability, there must be more than a mere possibility or one possibility among others that the negligence complained of caused the injury. There must be evidence that the negligence probably caused the injury. Pappa v. Bonner, 268 Ala. 185, 105 So. 2d 87 (1958)." Baker v. Chastain, 389 So. 2d 932, 934 (Ala.1980). Accord McAfee v. Baptist Medical Center, 641 So. 2d 265 (Ala.1994); Parrish v. Russell, 569 So. 2d 328 (Ala.1990). Because the plaintiff alleged that negligent health care by all three defendants combined to cause Mrs. Davis's death, we note that a particular defendant's negligence need not be the sole cause of injury in order for an action to lie against that defendant; it is sufficient that the negligence concurred with other causes to produce injury. Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala. 1984). However, it is still necessary that the plaintiff prove that the defendant's negligence proximately caused the injury. Martin v. Arnold, 643 So. 2d 564 (Ala.1994). The evidence in this case was sufficient for the jury to find that Dr. Looney breached the standard of care in extracting Mrs. Davis's tooth without first taking a sufficiently thorough history and physical examination of his patient and that that breach was a proximate cause of her death. As previously explained, the evidence indicated that Dr. Looney breached the standard of care by conducting an inadequate inquiry into Mrs. Davis's prior hospitalization and by overlooking obvious indications that she was jaundiced. Consequently, Dr. Looney extracted Mrs. Davis's tooth without discovering that she was suffering from a serious liver condition, which Dr. Looney conceded is associated with an inability of the blood to clot properly. And despite the fact that Mrs. Davis returned the following morning complaining of continued bleeding, Dr. Looney *159 still failed to discern her liver disease or that she posed a bleeding risk. Dr. Looney's argument that the plaintiff's dental expert failed to provide sufficient evidence proximately linking an act or omission of Dr. Looney to Mrs. Davis's death is illusory; as a dental expert, Dr. Benveniste could testify as to breaches of the dental standard of care, but he is not qualified to give a medical opinion on the cause of death. However, the plaintiff's two physician witnesses, Dr. Kevin Ferentz and Dr. William Huffman, testified that Mrs. Davis's death was caused by continued blood loss over the course of several days from the tooth extraction site, which blood loss led directly to shock and a lethal generalized e. coli sepsis infection. These experts also testified that, in their opinion, the cause of Mrs. Davis's continued bleeding was her underlying liver disease. Dr. Looney admitted that had he known of Mrs. Davis's liver condition, he would not have extracted the tooth without first consulting a physician, and Dr. Quarles testified that, had he been contacted, before consenting to the extraction he would have required certain liver and blood tests in order to assess the potential bleeding risks. Dr. Ferentz and Dr. Huffman testified that they believed such tests would have revealed that Mrs. Davis's blood was not able to clot properly. Thus, we conclude that the evidence was sufficient to allow the jury to find that Dr. Looney's extraction of Mrs. Davis's tooth precipitated the bleeding, which, as a result of the liver disease that he, in violation of the standard of care, failed to detect or safeguard against, continued for several days until she ultimately died from associated complications. Dr. Looney argues, however, that negligence on the part of Dr. Ketcham and Dr. Quarles, the emergency room doctors who treated Mrs. Davis after Dr. Looney had extracted her tooth, was a superseding intervening cause of Mrs. Davis's death. In a related argument, Dr. Looney contends that proximate cause was not established because, he argues, it was simply unforeseeable that Mrs. Davis would die as the result of an improper tooth extraction. He emphasizes that the plaintiff's experts agreed that Mrs. Davis would not have lost so much blood but for her underlying liver disease and that all the witnesses questioned on the subject acknowledged that they had never before heard of a patient dying from blood loss following the removal of a tooth. "In Alabama, the issue of proximate causation hinges on foreseeability and is intertwined, analytically, with the concept of intervening cause." Springer v. Jefferson County, 595 So. 2d 1381, 1384 (Ala.1992). Indeed, this Court has stated: General Motors Corp. v. Edwards, 482 So. 2d 1176, 1194 (Ala.1985). This Court has further explained, Ex parte Rudolph, 515 So. 2d 704, 707-08 (Ala. 1987) (emphasis in original). *160 The jury found that both Dr. Ketcham and Dr. Quarles had provided substandard medical care that combined with the prior negligence of Dr. Looney to proximately cause the death of Mrs. Davis. Dr. Looney urges, however, that we should find that proximate cause was lacking because, he argues, the responsibility to prevent harm had shifted from him to the emergency room doctors and that he was thus relieved of any liability. In support of his position, Dr. Looney directs our attention to Restatement (Second) of Torts § 452 (1965). That section reads as follows: This Court has never considered this Restatement section. Our analysis of it begins with a discussion of the Comments. Comment (a) states the general situation to which § 452 as a whole is directed, i.e., the situation where an original negligent actor has created an unreasonable risk of harm to another and a third party is in a position to prevent that harm by taking some sort of affirmative action. Comments (b) and (c) state that subsection (1) sets out the general rule that the subsequent act of a third person or the omission of a third person to prevent the harm to another threatened by the original actor's negligent conduct is not a superseding cause of such harm. See, e.g., Williams v. Woodman, supra (holding it generally no defense that negligence of third persons contributed to cause injury, if the original negligence of the defendant was a proximate cause). The comments further explain that, under this general rule, if the third person is under a duty to the other to take action to prevent the harm, his failure to do so will subject him to liability for his own negligence, which is concurrent with that of the original actor, whose liability remains fully intact. See, e.g., Davison v. Mobile Infirmary, 456 So. 2d 14 (Ala.1984). Comments (d), (e), and (f) explain the "exceptional" situations in which subsection (2) might be applied to relieve the original actor from all responsibility for any resulting harm. These situations arise where the entire duty for the situation has been shifted from the original actor to a third person. "The shifted responsibility means in effect that the duty, or obligation, of the original actor in the matter has terminated, and has been replaced by that of the third person." Comment (d), § 452 Restatement (Second) of Torts. Comment (e) explains that one way the responsibility may be shifted is by agreement, either "[b]y contract, by gratuitous promise, or by fair implication from what is agreed." Comment (f) states that a court may find responsibility has shifted from the original actor even in the absence of an agreement, and advises considering such factors as Dr. Looney points to one federal decision, Siggers v. Barlow, 906 F.2d 241 (6th Cir. 1990), as persuasive authority for his position that his case is an exceptional one in which the duty had shifted so that he was absolved of liability. In that case, the plaintiff, Siggers, suffered a severe fracture of his wrist. He was taken to a hospital emergency room, where his treating physician, the defendant, Dr. Barlow, misdiagnosed an X-ray of Siggers's wrist as showing merely a sprain. After Dr. Barlow released Siggers with no further care scheduled, the staff radiologist reviewed Siggers's X-ray and identified the fracture in his wrist. The radiologist made a report of the misdiagnosis, which was then sent to the emergency room. Pursuant to established hospital procedures applicable at the time, the duty to notify a *161 patient of a misdiagnosed X-ray was placed on the emergency room physician on duty when the report was received in the emergency room. When the report arrived in the emergency room, a few days after Siggers was treated, the physician on call was a Dr. Robertson; that doctor attempted, by telephone, to notify Siggers of the misdiagnosis, but was unsuccessful. Because he was not timely notified of the misdiagnosis and that he needed immediate further medical care, there had been enough healing of the bones that corrective surgery was greatly complicated. Siggers brought a medical malpractice action against Dr. Barlow, but not against Dr. Robertson. After the jury returned a verdict in Siggers's favor, the trial court granted Dr. Barlow's motion for a judgment notwithstanding the verdict, on the ground that, under the principle of § 452(2) of Restatement (Second) of Torts, the duty to notify Siggers of the misdiagnosis had shifted to Dr. Robertson, so that Dr. Barlow was relieved of liability. 906 F.2d at 242-43. On appeal, Siggers contended that the trial court had erred because, he argued, his injuries were proximately caused by the concurring negligence of Dr. Barlow and Dr. Robertson. The Court of Appeals for the Sixth Circuit, applying Kentucky law, disagreed, holding that the trial court had properly applied § 452(2) to conclude that Dr. Robertson's failure to notify Siggers was a superseding cause of the injury. The court held that it was Dr. Robertson's failure to notify Siggers that had failed to prevent the harm that occurred by allowing the bones to heal improperly; and it held that, under the hospital's procedures, there was at least an implied agreement to shift to Dr. Robertson the duty to notify Siggers. 906 F.2d at 244-45. Even if we agreed that Siggers v. Barlow was correctly decided and we think that point questionable this present case is distinguishable from it and is governed by the general rule that subsequent negligent medical care is foreseeable and therefore is not regarded as a superseding cause of injury. Williams, supra. This case is more analogous to Fish v. Los Angeles Dodgers Baseball Club, 56 Cal. App. 3d 620, 128 Cal. Rptr. 807 (1976), which the Siggers court purported to distinguish. In Fish, a 14-year-old boy was struck in the head with a foul ball while attending a Los Angeles Dodgers baseball game. The Dodger Stadium emergency care physician examined the boy and determined that he had merely suffered a bump on the head. Later that evening, after the boy was feeling ill, his parents took him to an emergency room, where he was examined by a neurosurgeon. The neurosurgeon failed to detect the necessity for emergency surgery, and the boy died several days later from a hemorrhage caused by a hairline fracture of his skull. Expert testimony indicated that both the emergency care physician at the stadium and the neurosurgeon were negligent in their treatment of the boy, and that he likely would have made a virtually complete recovery if a proper diagnosis had been made. 56 Cal. App. 3d at 624-29, 128 Cal. Rptr. at 811-14. In a lawsuit against the physicians, the jury found for the defendants and the trial court entered a judgment based on that verdict. The California Court of Appeals reversed. The appellate court held that the trial court had failed to give a proper jury instruction on concurrent causes, an instruction to the effect that the subsequent negligence of the neurosurgeon was no defense to a claim alleging the stadium physician's initial negligence if the jury found that negligence on the part of both had proximately caused the boy's death. Id. at 639, 128 Cal. Rptr. at 821. In so holding, the appellate court rejected the stadium physician's argument that his liability for the boy's death had been cut off under § 452(2) of the Restatement on the basis that the duty to prevent harm had shifted to the neurosurgeon. Id. As in Fish, the doctors in this present case were acting independently of each other, with no express or implied agreements to assume any responsibilities of the others. As the Siggers court noted of the doctors in Fish, "[t]heir only connection was that they had both negligently examined the same boy." 906 F.2d at 246. We have a similar situation in this case. To adopt the position urged by Dr. Looney would, in effect, require that we overrule our cases holding that subsequent *162 negligent medical care is not a superseding cause of injury. We decline to do so. As to Dr. Looney's argument that Mrs. Davis's death from a negligent tooth extraction was simply unforeseeable, we note that this contention goes only to the question of the foreseeability of the extent of harm that she suffered. That is, Dr. Looney admitted that he is very concerned about the medical consequences of excessive or continued bleeding and that, had he been aware of Mrs. Davis's liver condition, he would not have extracted the tooth without first referring her to a physician to protect against just such consequences. Thus, he apparently concedes that it was foreseeable both that a negligent failure to discover Mrs. Davis's liver disease before extracting her tooth could cause her to suffer injury resulting from continued blood loss generally, and that this type of injury could be potentially serious. Dr. Looney merely contends, rather, that no one would reasonably contemplate that she would actually die from such blood loss. Lawson v. General Tel. Co. of Alabama, 289 Ala. 283, 289, 267 So. 2d 132, 138 (1972), quoting Sullivan v. Alabama Power Co., 246 Ala. 262, 268, 20 So. 2d 224, 228 (1944). It has also been similarly said that "it is not necessary that every detail of damage which is the ordinary and natural result [of one's negligence] be contemplated." Sloss-Sheffield Steel & Iron Co. v. Wilkes, 236 Ala. 173, 178, 181 So. 276, 279 (1938). Thus, generally a defendant may be found liable if some physical injury of the general type the plaintiff sustained was a foreseeable consequence of the defendant's negligent conduct, even though the extent of the physical injuries may have been quite unforeseeable. Indeed, it has been noted, "There is almost universal agreement upon liability beyond the risk, for quite unforeseeable consequences, when they follow an impact upon the person of the plaintiff." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 43, at 291 (5th ed.1984) (footnote omitted). See also 65 C.J.S. Negligence § 109 (1966). For example, in Armstrong v. Montgomery Street Ry. Co., 123 Ala. 233, 26 So. 349 (1899), the Court held that negligence that caused an injury to one's finger, which injury produced blood poisoning that caused death, was the proximate cause of the death: Id., at 249, 26 So. at 353. It has been similarly suggested that where the defendant's negligent conduct proximately causes a personal injury, a peculiar physical infirmity of the plaintiff that aggravates the extent of an otherwise foreseeable injury is not generally a defense to liability. In Foley v. Pioneer Min. & Mfg. Co., 144 Ala. 178, 40 So. 273 (1906), it was alleged that the defendant's failure to provide adequate ventilation in its mine had caused the death of its employee, who by that failure was exposed to noxious gas. The defendant employer claimed that its negligence was not the proximate cause of death, because, the defendant argued, the employee's "physical weakness was shown and it was further shown that his helper was not affected by the gas." Id. at 181, 40 So. 273 (the quoted argument appears in the official report; the counsel's argument is not included in the opinion as published at *163 40 So. 273). The Court rejected that argument, holding, "If the negligence of the defendant was the proximate cause of the death of [the] plaintiff's intestate, the fact that the weak physical condition of the deceased contributed in a measure to his death, would not acquit of liability." Id. at 183, 40 So. at 275. See also 65A C.J.S. Negligence § 134 (1966). The cases cited by Dr. Looney merely demonstrate that a defendant cannot be held liable when the kind of physical injury sustained by the plaintiff was itself unforeseeable. See Williamson v. Tyson Foods, Inc., 626 So. 2d 1261 (Ala.1993) (held unforeseeable that employee who brought his minor child with him to his place of employment upon the defendant's premises would fail to protect the child from an injury caused by a dangerous condition well known to the employee); Littleton v. Alabama Power Co., 243 Ala. 492, 10 So. 2d 757 (1942) (holding that the defendant, in failing to insulate its power line, did not breach a duty owed to child who was injured when her kite came into contact with the line, because it was not customary for kites to be flown in that area and thus the injury was unforeseeable). Neither of these cases indicates that the unlikely extent, i.e., the unexpected seriousness, of a personal injury operates as a defense when the kind of injury is itself foreseeable. Thus, the trial court properly denied Dr. Looney's motions for a directed verdict and for a judgment notwithstanding the verdict. Dr. Looney next contends that the trial court erred in denying his motion for a new trial. He raises nine issues regarding that ruling, but because we conclude that the judgment in this case must be reversed because the trial court erred in overruling Dr. Looney's Batson[2] motion, we pretermit any discussion of his other new trial arguments and the question whether the amount of the judgment against him was excessive. During jury selection, the plaintiff used peremptory strikes to remove 16 of the 17 white jurors on the venire. Counsel for Bryan Whitfield Hospital used a peremptory strike to remove the only other white member of the venire; that veniremember had indicated that she had had a bad experience with a hospital. Dr. Looney's counsel objected to five of the plaintiff's strikes of the white veniremembers, arguing the sole basis for these strikes was race. Although it made no express finding that the strikes established a prima facie case of discrimination, the trial court required plaintiff's counsel to give race-neutral explanations for those strikes. Plaintiff's counsel gave his explanations, and the trial court accepted the reasons as race-neutral and valid. On appeal, Dr. Looney questions the explanations provided by plaintiff's counsel regarding the striking of one of the white veniremembers, K.H. Dr. Looney does not on appeal challenge the explanations offered for striking the other white veniremembers, but we note that the removal of even one juror for a racially discriminatory reason is a violation of the equal protection rights of both the excluded juror and the party challenging the peremptory strike. Ex parte Jackson, 640 So. 2d 1050 (Ala.1993); Ex parte Bird, 594 So. 2d 676 (Ala.1991). When counsel was asked his reason for striking K.H., his full response was as follows: However, after this explanation was tendered, Dr. Looney's counsel immediately responded by stating that there was no basis whatever for opposing counsel's assumption that K.H. knew Dr. Looney or his family, because K.H. had not responded when the plaintiff's counsel had specifically asked during voir dire whether anyone on the venire knew Dr. Looney or whether anyone was a member of the country club to which Dr. Looney belonged. This Court has recognized that both the Alabama Constitution and the Federal Constitution prohibit a prosecutor from *164 challenging a potential juror solely on account of his or her race, or on the assumption that members of a particular race, as a cognizable group, will be unable to impartially consider a case. Ex parte Branch, 526 So. 2d 609, 621 (Ala.1987) (interpreting Batson, supra, and Ex parte Jackson, 516 So. 2d 768 (Ala. 1986)). This prohibition against the racially discriminatory use of peremptory strikes applies also in civil cases. Thomas v. Diversified Contractors, Inc., 551 So. 2d 343 (Ala.1989). See also Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991). Under Alabama's peremptory challenge procedure set out in Ex parte Branch, supra, the party alleging a discriminatory use of peremptory challenges bears the initial burden of establishing a prima facie case of discrimination. 526 So. 2d at 622. After a prima facie case is established, there is a presumption that the peremptory challenges were used to discriminate on the basis of race. Id. at 623. "The state then has the burden of articulating a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory." Id. (emphasis in original). Id. at 624 (citations omitted).[3] After raceneutral reasons are articulated, the moving party can offer evidence showing that the reasons or explanations given constitute merely a sham or pretext. Id. at 624. The trial court's ruling on the question whether the responding party offered legitimate raceneutral reasons will not be overturned unless it is clearly erroneous. Olsen v. Rich, 657 So. 2d 875 (Ala.1995) (citations omitted). We initially note that the plaintiff seems to imply that we should not review the reasons given for striking K.H. because the trial court made no express finding that a prima facie case of discrimination was established. We disagree. If the trial court does not make an express finding that a prima facie case of discrimination has been established, but nonetheless orders counsel to articulate valid race-neutral explanations for peremptory strikes, the preliminary issue of a prima facie case becomes moot and this Court will proceed directly to an evaluation of the explanations given. See Norfolk Southern Ry. v. Gideon, 676 So. 2d 310, 312 (Ala.1996); Huntley v. State, 627 So. 2d 1013 (Ala.1992); Taylor v. State, 666 So. 2d 36 (Ala. Cr.App.1994); Williams v. State, 548 So. 2d 501 (Ala.Cr.App.1988), cert. denied, 489 U.S. 1028, 109 S. Ct. 1159, 103 L. Ed. 2d 218 (1989); Currin v. State, 535 So. 2d 221 (Ala.Cr.App.), cert. denied, 535 So. 2d 225 (Ala.1988); Hernandez v. New York, supra, 500 U.S. at 358-60, 111 S. Ct. at 1865-67. We hold that the trial court abused its discretion in finding that the reasons given by plaintiff's counsel for striking K.H. were not merely pretextual. The particular ground stated by plaintiff's counsel for the strike was that it was his "judgment" that K.H. would know the Looney family through the country club to which Dr. Looney belonged or through "social activities." *165 We acknowledge that "[s]trikes based on the veniremember's relationship to or acquaintance with the defendant or with the defendant's witnesses have generally been upheld." Rowe v. State, 625 So. 2d 1210, 1211 (Ala.Cr.App.1993). However, "intuitive judgment or suspicion by [the proponent of the strike] is insufficient to rebut the presumption of discrimination." Ex parte Branch, supra, at 623. Thus, Alabama caselaw indicates that strikes based upon counsel's mere suspicion alone that a veniremember has a relationship that would constitute a valid, race-neutral reason will not be upheld, especially if on voir dire examination there was no inquiry into whether the suspected relationship actually exists. In Ex parte Bird, supra, for example, a prosecutor stated that she struck a black woman from the venire because, among other reasons, the prosecutor suspected that the woman was related to a person, once prosecuted by the district attorney's office, who had the same last name as the defendant. 594 So. 2d at 679. However, during voir dire examination neither the prosecutor nor the court had inquired into whether this suspected relationship truly existed. Id. at 683. Previous cases had clearly held that a prospective juror's family relationship with someone with a past criminal history was a valid race-neutral reason for a peremptory strike. See, e.g., Stephens v. State, 580 So. 2d 11, 19 (Ala.Cr.App.1990), aff'd, 580 So. 2d 26 (Ala.), cert. denied, 502 U.S. 859, 112 S. Ct. 176, 116 L. Ed. 2d 138 (1991). This Court nonetheless held that the trial court had abused its discretion in accepting the prosecutor's mere suspicion of such a relationship as a sufficient nondiscriminatory explanation: 594 So. 2d at 683. See also Carroll v. State, 639 So. 2d 574 (Ala.Cr.App.1993); Walker v. State, 611 So. 2d 1133 (Ala.Cr.App.1992); Hemphill v. State, 610 So. 2d 413 (Ala.Cr. App.1992) (holding that the trial court erred in accepting the prosecutor's mere suspicion that two veniremembers would know the defendant or defense counsel, when voir dire responses were to the contrary and prosecutor made no further inquiry into that issue). But see Weaver v. State, 678 So. 2d 260 (Ala. Cr.App.1995); Newman v. State, 667 So. 2d 137 (Ala.1993); Naismith v. State, 615 So. 2d 1323 (Ala.Cr.App.1993); and Jones v. State, 611 So. 2d 466 (Ala.Cr.App.1992) (each upholding peremptory strikes based on a veniremember's alleged criminal history or family relationship with former defendants, where there was something more than mere suspicion to support the belief in the existence of the stated reason). There is nothing more than mere suspicion that K.H. knew Dr. Looney or his family. In fact, the suspicion that the relationship causing the alleged concern actually existed is even weaker than the suspicion was in Ex *166 parte Bird. In that case, the prosecutor simply failed to ask the question that would have served to confirm or deny his suspicion that the family relationship in question existed. Here, counsel actually did pose questions to the entire venire regarding whether any of the members were acquainted with Dr. Looney or his family, but K.H. indicated, by his lack of a response, that he did not know Dr. Looney or his family, either from the country club or otherwise. See Hemphill, supra. Nothing in the record indicates that the contrary is true, or that counsel had any basis, aside from pure speculation, to believe it was true. Plaintiff's counsel did engage in a brief dialogue with K.H., but he confirmed only that K.H. worked as an electrician at the University of West Alabama and that his wife also worked there as an admissions counselor. If plaintiff's counsel was concerned that K.H. knew Dr. Looney or his family, despite his earlier indications to the contrary, he had to ask him. Ex parte Bird; Ex parte Hemphill, supra. Thus, we hold that the trial court erred in finding that the speculation of plaintiff's counsel that K.H. knew Dr. Looney or his family was sufficient to rebut the presumption of discrimination. The plaintiff also argues that the strike of veniremember K.H. was justified based upon (1) his employment as an electrician at the University of West Alabama, (2) the fact that K.H.'s wife also worked there as an admissions counselor, and (3) the alleged fact that K.H. is a member of a family that is "active politically." This Court has recognized: "`It is a fact of life that no matter how honest and conscientious an individual may be, he is most likely to be influenced, if not actually biased, by his past or present occupational experiences.'" Burlington Northern R.R. v. Whitt, 575 So. 2d 1011, 1018 (Ala.1990), cert. den., 499 U.S. 948, 111 S. Ct. 1415, 113 L. Ed. 2d 468 (1991), quoting Landers v. Long, 53 Ala.App. 340, 343, 300 So. 2d 112, 114 (Ala.Civ.App.1974). Therefore, "[t]he fact that a peremptory strike was based on a potential juror's occupation does not automatically create a suspicion of racial bias." Meads v. RPM Pizza, Inc., 639 So. 2d 1352, 1354 (Ala.1994). Indeed, a "[f]actor[] such as ... employment [is] accepted as [a] legitimate reason[] for peremptory strikes where [that] factor[], under the circumstances of the case, might make the potential jurors sympathetic to, or able to more easily identify with, a particular party." Olsen v. Rich, supra, at 879. Thus, Alabama cases have upheld peremptory strikes based upon the fact that a veniremember's experience as an insurance adjuster might affect his view of assessing damages in a personal injury case, see Breland v. Ford, 693 So. 2d 393, 400 (Ala.1996); and where a veniremember's employment as a nanny or nurse might tend to generate sympathy toward one party, see Meads, supra, at 1353-54; Millette v. O'Neal Steel, Inc., 613 So. 2d 1225, 1230 (Ala.1992); Powell v. State, 608 So. 2d 411 (Ala.Cr.App. 1992). In contrast, strikes allegedly based upon a veniremember's occupation have not been upheld where the employment does not appear in any way to "relate[] to the particular case to be tried," Ex parte Branch, at 623. See, e.g., Carter v. State, 603 So. 2d 1137, 1139 (Ala.Cr.App.1992) (reversing trial court's finding that reason for strike in a criminal case the potential juror's occupation as a sales clerk was nonpretextual); McGahee v. State, 554 So. 2d 454, 461 (Ala.Cr. App.), aff'd, 554 So. 2d 473 (Ala.1989) ("The explanation that [the veniremember] was struck because he was a teacher is not, without more, a legitimate non-discriminatory reason"); Williams v. State, 548 So. 2d 501, 507 (Ala.Cr.App.1988) ("No explanation was offered to explain why a school teacher, a college counselor, a school lunchroom worker, or a person connected with a mental health organization would be against, rather than in favor of, the prosecution.") The plaintiff offered no explanation, either to the trial court or to this Court, why K.H.'s occupation as an electrician indicates that he would tend to be against the plaintiff or how his employment bears any relation whatever to this medical malpractice case. Nor has the plaintiff demonstrated the significance of the fact that K.H. and his wife both are employed by the local state university, which has no discernible connection to this case. We note that nothing in the record beyond counsel's bare assertion suggests that *167 K.H. is a member of a family that is "active politically." But, even assuming that the assertion was true, there was no evidence indicating the nature, the extent, or the political persuasion of such activism, or how it might relate to this case. Neither plaintiff's counsel nor the trial court questioned K.H. during voir dire about either his political activities or beliefs or those of his family. Thus, we conclude that none of the reasons offered by the plaintiff for striking K.H. from the venire could, by itself, overcome the presumption of discrimination in this case. Nor could all the reasons do so when taken together. A party "may not cure the constitutional deficiency of an explanation simply by augmenting it with similar excuses none of which, standing alone, would be sufficient." Ex parte Bird, supra, at 683. For the reasons stated above, we conclude that the trial court properly held that Dr. Looney was not entitled to a judgment notwithstanding the verdict. However, because the trial court erred in accepting as raceneutral the plaintiff's explanation for striking the veniremember K.H., we reverse the judgment and remand the case for a new trial. REVERSED AND REMANDED. HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur. HOOPER, C.J., concurs in the result. SEE, J., concurs in part and dissents in part. SEE, Justice (concurring in part and dissenting in part). Although I concur with the majority's holding that a violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), occurred at voir dire, I dissent from its holding that under the evidence presented in this case Dr. Looney, a dentist, could be held liable for Mrs. Davis's death. Mrs. Davis expressly misled Dr. Looney regarding a medical condition, the aggravation of which ultimately caused her death. Ms. Davis, both on Dr. Looney's medical history questionnaire and in response to his further inquiry, stated that she did not have any liver disorder or an unusual susceptibility to bleeding. After Dr. Looney performed a standard tooth extraction, Mrs. Davis experienced bleeding and liver complications that, despite several intervening treatments by medical doctors, ultimately led to her death. In my view, a dentist who exercises reasonable care by inquiring into his patient's medical history should not be held liable for complications that result from the patient's untruthful answers. See, e.g., Fall v. White, 449 N.E.2d 628, 633 (Ind.Ct.App.1983) (stating that a medical malpractice action should fail when the patient withholds information that thwarts a physician's ability to adequately treat the patient); 70 C.J.S. Physicians & Surgeons § 80 (1987) (same). Otherwise, we are imposing a new legal duty upon a dentist to investigate and verify each of his patient's answers or to diagnose medical conditions that are admittedly beyond the dentist's technical expertise. See, e.g., McTyeire v. McGaughy, 222 Ala. 100, 130 So. 784 (1930) (requiring a dentist to exercise the same standard of care as other dentists in the same general locality); 61 Am.Jur.2d Physicians, Surgeons, etc. § 222 (1981) (stating that a dentist is not "required to possess the same knowledge required of the general practitioner of medicine or surgery"). Accordingly, I dissent from the majority's holding that on the basis of the evidence presented in this case Dr. Looney could be held liable for the death of Mrs. Davis. [1] While the plaintiff sued Bryan Whitfield Hospital, he did not sue Dr. Paul Ketcham, the emergency room physician who had treated Mrs. Davis at that facility. [2] See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). [3] We note that the United States Supreme Court originally interpreted the 14th Amendment to the United States Constitution to require a similar standard of scrutiny of reasons offered for an allegedly discriminatory peremptory strike. The Batson decision stated that the proponent of a strike must give a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the strike and demanded that the reasons be "related to the particular case to be tried." 476 U.S. at 98 n. 20, 106 S. Ct. at 1724 n. 20. However, we recognize that the subsequent decisions of the United States Supreme Court in Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991), and Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995), can be interpreted to ease the federal standard. See Bruner v. Cawthon, 681 So. 2d 161, 170-72 (Ala.Civ.App.1995). However, Hernandez and Purkett do not govern Alabama's peremptory challenge procedure, which rests upon adequate and independent state law. Ex parte Bruner, 681 So. 2d 173 (Ala. 1996). Thus, regarding the scrutiny that a trial court is to apply to reasons offered by a proponent of a peremptory strike, we adhere to the Alabama standard declared in Ex parte Branch, supra.

February 13, 1998

9c720804-3d08-448b-b74b-341b870aba03

Ex Parte Rager

712 So. 2d 333

1970004

Alabama

Alabama Supreme Court

712 So. 2d 333 (1998) Ex parte Jonathan Blake RAGER and Bessie Armistead. (In re Jonathan Blake RAGER and Bessie Armistead v. LIBERTY NATIONAL INSURANCE COMPANY, et al.). 1970004. Supreme Court of Alabama. March 6, 1998. Rehearing Denied April 10, 1998. *334 Wyman O. Gilmore, Jr., and Lamar C. Johnson of Gilmore Law Office, Grove Hill, for petitioners. Edward C. Greene and D. Brent Baker of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for respondents. HOOPER, Chief Justice. Jonathan Blake Rager and Bessie Armistead petition for a writ of mandamus directing Judge J. Lee McPhearson of the Clarke Circuit Court to vacate his order compelling them to arbitrate claims they brought against Liberty National Life Insurance Company ("Liberty National").[1] Rager applied for a "hospital accident policy" with Liberty National. On the application, Rager listed Armistead as the beneficiary. Liberty National approved Rager's application and mailed him a copy of the policy. Rager was later injured in an accident and was treated at the Grove Hill Medical Center. Liberty National denied coverage on the basis that Rager was not an insured. The denial of coverage occurred because the Grove Hill Medical Center had inquired about coverage for "Jonathan Rager." The name of the insured as listed on the policy was "J. Blake Rager." Liberty National initially denied coverage because it did not realize that "Jonathan Rager" was in fact the same person as "J. Blake Rager." Liberty National, upon learning that Rager was in fact an insured, accepted the claim; nevertheless, as a result of the denial, Rager and Armistead sued Liberty National, alleging fraud and bad faith. After limited discovery, Liberty National filed a "Motion to Stay and Arbitration Notice." Judge McPhearson granted the motion, ordering Rager and Armistead to arbitrate their claims against Liberty National. This petition for the writ of mandamus followed. A petition for the writ of mandamus is the appropriate means by which to challenge a trial court's order compelling arbitration. Ex parte Gates, 675 So. 2d 371, 374 (Ala.1996). "Mandamus is an extraordinary remedy and requires a showing that there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Id. Rager and Armistead argue that they should not have to arbitrate their claims because, they contend, they did not agree to arbitration and, they further contend, Liberty National substantially invoked the litigation process and thereby waived any right it may have had to arbitrate. We hold that the trial court did not abuse its discretion by compelling arbitration, because 1) the policy does contain an arbitration clause to which the plaintiffs agreed and 2) Liberty National had not substantially invoked the litigation process. Therefore, we deny the petition. The plaintiffs argue that the Federal Arbitration Act should not apply to this case because, they contend, it does not involve interstate commerce. They argue that Ala. Code 1975, § 8-1-41(3), should apply. This section provides that an agreement to submit a controversy to arbitration cannot be specifically *335 enforced. We conclude that the FAA preempts § 8-1-41(3) in this case, because the contract in which the arbitration clause appears is a contract involving interstate commerce. See Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). Liberty National has offices in 49 states and the District of Columbia. Whenever a claim is filed with Liberty National, it is forwarded to a Liberty National office in Oklahoma for evaluation. Therefore, the issuance of this policy involved interstate commerce, and the FAA applies to this case. In their reply brief, the plaintiffs argue that the policy contains language that requires the enforcement of § 8-1-41(3). A clause within the policy states, "Any provision of this policy which, on its effective date, is in conflict with the laws of the state in which you reside on that date, is amended to conform to the minimum requirements of such laws." The plaintiffs argue that the arbitration provision in the policy should not apply because it conflicts with § 8-1-41(3). However, as stated above, § 8-1-41(3) is not applicable in this situation, because it is preempted by the FAA. Thus, the arbitration clause does not conflict with the laws of this state. The plaintiffs argue that they never agreed to arbitrate their claims against Liberty National. Rager completed and signed an application for insurance. After approving Rager's application, Liberty National mailed Rager a copy of the policy that it was issuing to him. Attached to the policy from the outset was an endorsement that contained an arbitration clause. The plaintiffs argue that they should not have to arbitrate because the application did not mention arbitration. They also argue that they never signed the endorsement that requires arbitration. Liberty National argues that the endorsement was a valid portion of the policy, and, therefore, that the arbitration clause should apply. We agree with Liberty National. An unsigned endorsement is valid if it is attached to the policy and is referenced therein. See Greene v. Hanover Insurance Co., 700 So. 2d 1354 (Ala.1997). It is undisputed that the endorsement containing the arbitration clause was attached to the policy from the outset. Also, the policy contains the following clause referring to the endorsement: "This policy with any attached papers is the entire contract between you and the Company." Therefore, we hold that the endorsement is a valid part of the policy and must be enforced. Also, the policy that Liberty National issued included this clause allowing Rager 10 days to cancel the policy, with no cost, if he did not approve of its terms: "Please examine your policy carefully. Within ten days after this policy is first received, it may be returned to us or the agent through whom it was purchased. If returned, the policy will be as though it had never been issued. Any premiums paid will be returned." If Rager did not approve of the arbitration clause found in the policy, he should have objected within the 10 days allowed. The objection to the arbitration clause is untimely. Liberty National gave Rager ample time to examine the policy. By not returning the policy, he agreed to its terms. The plaintiffs' argument that the application should have mentioned arbitration is also without merit. Many parts of an insurance policy are not mentioned in the application. If we accepted this argument, then any part of an insurance policy that was not specifically mentioned in the application would be automatically invalid, even if the insured did not object within the time permitted. Such a result would be inequitable to the insurance company. "An application for insurance is an offer to enter into an insurance contract, and if the insurer issues a policy materially different from that applied for, the policy is a counter offer which becomes binding only when accepted by the applicant." Connell v. State Farm Mutual Auto. Ins. Co., 482 So. 2d 1165, 1167 (Ala.1985). Even if the inclusion of the arbitration provision was a material alteration of the policy applied for and we would say it was not the petitioners would have accepted the counter-offer by not returning *336 the policy and, instead, paying the premiums on it. Therefore, it does not matter that the application did not mention arbitration. The trial court did not abuse its discretion in determining that Rager and Armistead had agreed to the arbitration clause. The plaintiffs argue that Liberty National waived its right to arbitrate by substantially invoking the litigation process. We disagree. A party seeking to prove a waiver of the right to arbitrate has a heavy burden. See Ex parte Dyess, 709 So. 2d 447 (Ala. 1997). The parties have conducted very limited discovery in this case. Liberty National filed an answer, one set of interrogatories, and two sets of requests for production. No depositions have been taken. Approximately four months passed from the time that Liberty National was served with the complaint to the time it moved to compel arbitration. Considering the heavy burden, the limited discovery that has taken place, and the relatively short time that elapsed, we agree with the trial court that Liberty National had not substantially invoked the litigation process. Therefore, the trial court did not abuse its discretion by determining that Liberty National had not waived its right to arbitrate. Given the extraordinary nature of a writ of mandamus, we conclude that Judge McPhearson did not err in granting Liberty National's motion to compel arbitration. Therefore, we deny the petition for the writ of mandamus. WRIT DENIED. MADDOX, HOUSTON, KENNEDY, and SEE, JJ., concur. COOK, J., concurs in the result. ALMON and BUTTS, JJ., dissent. SHORES, J., recuses herself. [1] The complaint in this case named this defendant as "Liberty National Insurance Company." The policy involved was in fact issued by Liberty National Life Insurance Company.

March 6, 1998

431427e7-6fe3-4701-acc9-1ec8d3d8e37f

City of Foley v. McLeod

709 So. 2d 471

1961179

Alabama

Alabama Supreme Court

709 So. 2d 471 (1998) CITY OF FOLEY v. Kenneth McLEOD and Jackie McLeod. 1961179. Supreme Court of Alabama. January 16, 1998. Warren C. Herlong, Jr., and Joseph D. Steadman of Helmsing, Lyons, Sims & Leach, P.C., Mobile, for appellant. Daniel G. Blackburn, Bay Minette, for appellees. *472 ALMON, Justice. The City of Foley (the City) sought to enforce nonconforming-use provisions of its zoning ordinance to prevent the replacement of mobile homes in a nonconforming mobile home park. The circuit court entered a summary judgment in favor of the mobile home park owners. The City appealed. The issues before this Court are (1) whether the City's zoning ordinance may prevent the replacement of mobile homes in mobile home parks that are preexisting nonconforming uses, and (2) if the ordinance bars such replacement, whether the City should be estopped from enforcing the ordinance. Green Acres trailer park, a 14-lot mobile home park in Foley, has been in continuous operation since approximately 1955. The defendants Kenneth McLeod and Jackie McLeod purchased Green Acres in 1982 and have since been responsible for operating the mobile home park. While they have owned Green Acres, the McLeods have rented lots to tenants owning their own mobile homes; the McLeods have also purchased mobile homes and placed them for rent on other lots at Green Acres. In 1967, the City adopted a zoning ordinance that placed the Green Acres property into a single-family residential zone. In 1987, the City adopted its current zoning ordinance, which placed the Green Acres property into a high-density single-family residential zone. Although these zoning ordinances would generally prohibit the operation of a mobile home park in single-family residential areas, they have allowed the continued operation of Green Acres as a preexisting nonconforming use. In the summer of 1994, the McLeods purchased six mobile homes to replace existing rental units at Green Acres. The McLeods moved the new mobile homes to Green Acres, placed them on lots there, and prepared them for use as rental units. However, in August 1994 the City sent the McLeods a letter demanding that they remove the new mobile homes from Green Acres within 10 days. In the letter, the City took the position that because the McLeods' mobile home park was a nonconforming use, their locating different or additional mobile homes at Green Acres would violate the City's zoning ordinance. The McLeods declined to remove the mobile homes, and one year later the City initiated this action in the Baldwin County Circuit Court, seeking an injunction and declaratory judgment. In its complaint, the City contended that its zoning ordinance prohibits the replacement of mobile homes within a mobile home park if the replacement would extend the life of a nonconforming use. Accordingly, the City asked the circuit court to issue an injunction prohibiting the McLeods from replacing mobile homes at Green Acres. The City also asked the circuit court to issue a declaratory judgment setting out the City's rights and duties regarding nonconforming uses under the 1987 zoning ordinance. In their answer, the McLeods asserted that they had a right to continue operating Green Acres as a nonconforming use. They also contended that the City should be estopped from complaining of the replacement of mobile homes at Green Acres because the City had permitted similar replacements at various times since the enactment of the current zoning ordinance in 1987. Finally, the McLeods counterclaimed, alleging that the City's enforcement of the zoning ordinance amounted to inverse condemnation and an unconstitutional taking of their property. The City moved for a summary judgment on its request for injunctive and declaratory relief and moved to dismiss the McLeods' counterclaim. The McLeods moved for a partial summary judgment on the City's request for relief. The circuit court denied the City's motion, but granted the McLeods' motion for partial summary judgment. Pursuant to Rule 54(b), Ala. R. Civ. P., the circuit court entered a final judgment for the McLeods on the City's claims.[1] *473 This Court must first determine whether the City's 1987 zoning ordinance prohibits the replacement of existing mobile homes at a nonconforming mobile home park such as Green Acres. To make this determination, we turn to the language of the zoning ordinance itself. The nonconforming-uses provisions pertinent to this case state: The terms of the City's zoning ordinance certainly disfavor nonconforming uses. While the provisions of the ordinance do not require the immediate eradication of nonconforming uses, they do support the gradual abatement of nonconforming uses through time and attrition. In keeping with the City's policy against perpetuating nonconforming uses, the zoning ordinance prohibits the enlarging or expanding of such uses and prevents the repair or restoration of nonconformities that are damaged beyond 50 percent of their replacement value. The only apparent exception to these prohibitions is when safety or sanitation is concerned, and even then the restoration of a nonconforming building must be at the direction of proper authorities. This general disfavor toward nonconforming uses has been recognized by this Court in Board of Zoning Adjustment v. Boykin, 265 Ala. 504, 92 So. 2d 906 (1957). In Boykin a property owner sought to substantially remodel a nonconforming structure. In deciding that a building permit authorizing the remodeling was not properly issued under the applicable zoning ordinance, this Court quoted Moore v. Pettus, 260 Ala. 616, 627, 71 So. 2d 814, 823-24 (1954), describing the intent of nonconforming-use provisions in zoning ordinances: The McLeods have gone far beyond merely remodeling or repairing a nonconforming structure. Rather, they purchased six mobile homes to completely replace existing rental units at Green Acres. The ultimate effect of this replacement could only be to expand the useful life of the McLeods' *474 mobile home park. If the McLeods continue to replace their mobile homes as they deteriorate, then the operation of Green Acres could continue in perpetuity. Such an expansion violates § 6.2 of the City's zoning ordinance, which states that "non-conformities shall not be enlarged upon, expanded, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district." Moreover, extending the life of a nonconforming use contravenes the ordinance's overall policy against perpetuating such a use. Therefore, we hold that the City may generally enforce the zoning ordinance to prevent the McLeods from replacing mobile homes at Green Acres. The McLeods contend that, even if the terms of the City's zoning ordinance would prevent their replacing mobile homes at Green Acres, the City should be estopped from enforcing the ordinance because the City has allowed similar replacements at various times since the ordinance was adopted in 1987. To support this contention, the McLeods presented evidence to show that numerous mobile homes were moved into and out of Green Acres between 1987 and 1994. They also point out that the City presented no evidence indicating that it ever objected to the moving and replacing of mobile homes at Green Acres until August 1994. In further support of their estoppel argument, the McLeods stated, in their response to the City's interrogatories, that they informed the City's building inspector of their plan to purchase the six replacement mobile homes and that he expressed no objection to their plan. Again, the City presented no evidence to refute this statement. In City of Prattville v. Joyner, 661 So. 2d 1158 (Ala.1995) (Joyner I), this Court affirmed an injunction estopping the City of Prattville from denying fire protection services to residents and businesses within its police jurisdiction. The Court recited these general principles regarding the application of the doctrine of estoppel against municipal corporations: Joyner I, 661 So. 2d at 1161-62. This Court recently revisited the Joyner I decision in City of Prattville v. Joyner, 698 So. 2d 122 (Ala.1997) (Joyner II), and determined from the facts of that case that the City of Prattville should not have been estopped from denying fire protection services. However, Joyner II did not alter the general rule that, although estoppel is to be cautiously applied against a municipal corporation, it may nonetheless be applied when a municipality's conduct, language, or silence amounts to a representation or concealment of a material fact. See Joyner II, 698 So. 2d at 126, quoting State Highway Dep't v. Headrick Outdoor Advertising, Inc., 594 So. 2d 1202, 1204-05 (Ala.1992). Thus, although the doctrine of estoppel is rarely applied against a municipal corporation, it may be applied in a proper case when justice and fair play demand it and where there has been a misrepresentation or concealment of material fact. In the present case, the evidence indicates that numerous mobile homes had been moved into and out of Green Acres over the years. Nonetheless, the City had declined to enforce the zoning ordinance against Green Acres after Green Acres became a nonconforming use in 1967. Even when the City objected in 1994, it objected only after the McLeods had already purchased the mobile homes and had prepared them for rental. Taken as a whole, these factors cause us to conclude that the City's continued acquiescence amounted to a misrepresentation of a material fact, namely that it would not enforce the zoning ordinance to prevent the McLeods from replacing *475 mobile homes at Green Acres. Moreover, it would be unjust and unfair at this point to allow the City to force the McLeods to remove the six mobile homes. Therefore, we hold that as to the installation of these six mobile homes the City is estopped from enforcing the zoning ordinance against the McLeods. On that basis, we affirm the summary judgment against the City. Although we hold that the City is estopped in this case, we note that the City will not be forever barred from enforcing the zoning ordinance against the McLeods or against mobile home parks generally. While the City had long remained silent in the face of the perpetuation of Green Acres as a nonconforming use, the City's action in the present case indicates a departure from that acquiescence. Consequently, even though the McLeods may retain and use the six mobile homes that are the immediate subject of this case, the City is not estopped from taking prospective action to prevent future replacements, repairs, or similar activities that violate the zoning ordinance. AFFIRMED. HOOPER, C.J., and SHORES, HOUSTON, and KENNEDY, JJ., concur. COOK and SEE, JJ., concur in the result. MADDOX, J., dissents. [1] Because the circuit court entered a final judgment only on the City's request for injunctive and declaratory relief, the McLeods' counterclaim is not before this Court. Therefore, we express no opinion on the merits of their argument that the City's actions constituted inverse condemnation and an unconstitutional taking of their property.

January 16, 1998

e6b4b96e-a02e-41c0-b44b-fe936a68ade0

Sevier Ins. Agency, Inc. v. Willis Corroon Corp.

711 So. 2d 995

1941634, 1941688

Alabama

Alabama Supreme Court

711 So. 2d 995 (1998) SEVIER INSURANCE AGENCY, INC., et al. v. WILLIS CORROON CORPORATION OF BIRMINGHAM. WILLIS CORROON CORPORATION OF BIRMINGHAM v. TURNER INSURANCE AND BONDING COMPANY, INC., et al. 1941634, 1941688. Supreme Court of Alabama. February 13, 1998. Rehearing Denied March 20, 1998. *996 Thomas T. Gallion III and Susan E. Kennedy of Haskell, Slaughter, Young, Johnston & Gallion, Montgomery, for Dale A. Taylor, Walker Frank Dean, and Sevier Ins. Agency, Inc., et al. (on original submission). Lee H. Zell and Will Hill Tankersley, Jr., of Balch & Bingham, Birmingham; Susan S. Wagner of Berkowitz, Lefkovits, Isom & Kushner, Birmingham; and Charles B. Paterson of Robison & Belser, Montgomery, for Willis Corroon Corp. of Birmingham (on original submission). Thomas T. Gallion III and Susan E. Kennedy of Haskell, Slaughter, Young & Gallion, L.L.C., Montgomery, for Dale A. Taylor, Sevier Insurance Agency, Inc., et al., and Walker Frank Dean (on application for rehearing). Joseph B. Mays, Jr., and Rusha C. Smith of Bradley, Arant, Rose & White, L.L.P., Birmingham; and Charles B. Paterson of Robison & Belser, Montgomery (in case no. 1941688), for Willis Corroon Corp. of Birmingham (on application for rehearing). James E. Williams of Melton, Espy, Williams & Hayes, P.C., Montgomery, for Turner Ins. & Bonding Co., Inc. (on original submission and on application for rehearing). PER CURIAM. The opinion of January 17, 1997, is withdrawn, and the following opinion is substituted therefor. These appeals involve separate cases brought by Willis Corroon Corporation of Birmingham ("Corroon") to enforce identical contractual provisions in employment contracts signed by Dale Taylor and Frank Dean, both of whom had previously worked for Collier Cobb & Associates, Inc. ("CCA"), as commercial insurance brokers. Their employment contracts with CCA included noncompetition agreements that give rise to one of the major issues in this case. CCA merged with and/or was taken over by Corroon; subsequently, both Taylor and Dean were terminated by Corroon, and they *997 went to work for other insurance corporations. Taylor joined Sevier Insurance Agency, Inc. ("Sevier Insurance"), and Dean joined Turner Insurance and Bonding Company ("Turner Insurance"). Corroon, as the corporate successor to CCA, filed two actions. The first action was filed against Taylor and Sevier Insurance, Taylor's new employer, and was filed in Jefferson County. Corroon filed the second action against Dean and Turner Insurance, Dean's new employer, in Montgomery County. In both actions, Corroon alleged that the defendants had unlawfully interfered with Corroon's contractual and business relations, were guilty of a breach of contract, and that they violated the provisions of Ala.Code 1975, § 8-27-3, the "Alabama Trade Secrets Act." In the Jefferson County action, Taylor and Sevier Insurance both answered and, by counterclaim, alleged that Corroon had intentionally interfered with their business relations and had committed fraud. In the Montgomery County case, Turner Insurance answered and counterclaimed, alleging intentional interference with business relations; in addition, Dean answered and, in a counterclaim, alleged that Corroon had committed fraud against him and had intentionally interfered with his business relations. In the Taylor Insurance action, our case number 1941634, the Jefferson County trial judge held that the contractual agreement was a "nonsolicitation provision" and, therefore, was valid and enforceable. The court, accordingly, granted declaratory relief in favor of Corroon, which in effect prohibited Taylor from violating the competition restrictions contained in the agreement. The trial court reserved its rulings on Taylor Insurance and Sevier's counterclaims alleging fraud and intentional interference with business relations, on the ground that those claims contained disputed issues of fact that should be submitted to a jury. The court made the declaratory relief final, pursuant to Rule 54(b), Ala. R. Civ. P. Taylor appealed. The issue in that case is whether the trial court properly entered the summary judgment in favor of Corroon. In Dean's case, our case number 1941688, the Montgomery County trial judge granted Dean and Turner Insurance's motion for a summary judgment against Corroon's claims, holding that the contractual agreement was an invalid "covenant not to compete" and not a "nonsolicitation agreement." Consequently, the trial judge submitted the case to a jury on Turner Insurance's counterclaim alleging intentional interference with business relations and on Dean's counterclaim alleging fraud and intentional interference with business relations. The jury awarded Dean $600,000 on his counterclaim and awarded Turner Insurance $1,175,000 on its claim. The trial court entered a judgment on that verdict. Corroon appealed. As is apparent from these facts, the Jefferson County Circuit Court and the Montgomery County Circuit Court reached different conclusions on the enforceability and the legal effect of the contractual agreement that Dean and Taylor had executed with CCA, which later merged with Corroon. These appeals present three issues: 1) whether the contractual agreements between CCA and its former employees, Taylor and Dean, are enforceable under § 8-1-1, Ala. Code 1975; 2) whether Corroon, as a corporate successor to CCA, the corporation with which Dean and Taylor made the agreement, can enforce the agreement; and 3) whether there was sufficient evidence to submit Turner Insurance's intentional-interference-with-business-relations claim and Dean's intentional-interference-with-business-relations claim and his fraud claim to the jury. Were the employment agreements executed by Dean and Taylor enforceable under § 8-1-1? To answer that question, we must examine the agreements and determine their nature and legal effect. Before beginning their employment with CCA, Taylor and Dean signed identical agreements, which provided in pertinent part as follows: Taylor record 9-12; Dean record 26-29. Taylor and Dean contend that this agreement is a "covenant not to compete," while Corroon contends that the agreement is a "nonsolicitation agreement." The agreement itself states that it is a "covenant not to compete," but its restrictions match those of a nonsolicitation agreement. Our examination of this Court's cases discussing the distinction between the two shows that this Court has held that a "nonsolicitation agreement" was not covered by § 8-1-1 (see, e.g., Hoppe v. Preferred Risk Mut. Ins. Co., 470 So. 2d 1161 (Ala.1985)), but that, on other occasions, this Court has held that such an agreement was covered by § 8-1-1 (see, e.g., James S. Kemper & Co. Southeast, Inc. v. Cox & Associates, Inc., 434 So. 2d 1380 (Ala.1983)). In this opinion, we hope today to clarify the application of § 8-1-1. Based on our interpretation of § 8-1-1 in this case, there will no longer be a need to classify employee agreements like those in this case either as covenants not to compete or as nonsolicitation agreements. We hold that a nonsolicitation agreement restrains trade and, therefore, that § 8-1-1 applies to such an agreement and that a person may enforce such an agreement only if it falls within the exceptions stated in § 8-1-1(b). An analysis of the statute and the relevant precedents shows that the classification of an agreement either as a covenant not to compete or as a nonsolicitation agreement is not determinative of the question whether the particular agreement is valid or invalid under the provisions of § 8-1-1. Section 8-1-1(a) explicitly prohibits agreements that restrict a person's ability to engage in a profession, trade, or business: Section 8-1-1(b) provides exceptions: (Emphasis added.) Section (b) clearly addresses the situation involved in this case. Dean and Taylor were prohibited by the agreement from soliciting customers of their former employer. Section 8-1-1(b) allows an employee to enter into such an agreement with his or her employer. Thus, an agreement with a former employer prohibiting an employee from soliciting customers of the former employer is enforceable as an exception to the general prohibition of § 8-1-1(a). In the past, this Court, in determining whether agreements were valid under the provisions of § 8-1-1 and its statutory predecessors, has classified those agreements either as contracts in general restraint of trade, which are void, or as contracts in partial restraint of trade, which are always upheld, when properly restricted as to territory, time, and persons and supported by sufficient consideration. In Famex, Inc. v. Century Ins. Services, Inc., 425 So. 2d 1053, 1054-55 (Ala.1982), the Court, quoting Hibbett Sporting Goods, Inc. v. Biernbaum, 391 So. 2d 1027, 1029 (Ala.1980), which in turn had quoted from Terre Haute Brewing Co. v. McGeever, 198 Ala. 474, 73 So. 889 (1916), stated: Although there is some language in some of this Court's cases, such as Corson v. Universal Door Systems, Inc., 596 So. 2d 565 (Ala.1991), indicating that § 8-1-1 does not apply to an agreement that is only a "partial restraint of trade," a full reading of those cases shows that the agreements under consideration were agreements that could be upheld, even though they were in partial restraint of trade, because they were properly restricted as to territory, time, and persons and were supported by sufficient consideration; that is, they came within the provisions of the exception contained in § 8-1-1 (b) or its statutory predecessor. By this opinion, we hold that a "partial restraint of trade" is subject to § 8-1-1, but will be upheld when it is properly restricted as to territory, time, and persons and where it is supported by sufficient consideration. Without its "otherwise than is provided" clause, § 8-1-1(a) would be an uncompromising provision of law that would make "[e]very contract [in restraint of trade] ... void," whether it was a general restraint or a partial restraint. In reaching the conclusion that we do, we have examined the history of § 8-1-1, and we conclude that the Legislature, by adopting § 8-1-1, intended to deal with all types of restraints of trade, both reasonable and unreasonable, and both partial and total. The predecessor of § 8-1-1 provided only two exceptions to the prohibition against restraints of trade. The predecessor statutes in the Alabama Code of 1923 provided: In 1931, the Legislature added the exception for nonsolicitation agreements between employers and employees. That year, it amended Code 1923 § 6827, to read as follows, adding the language emphasized here: Act No. 546, Ala. Acts 1931. See Ala.Code of 1940, Title 9, § 23 (emphasis added). Therefore, in 1931, the Legislature added an exception for the very kind of nonsolicitation agreement/partial restraint of trade that Corroon claims should not even be covered by § 8-1-1, the successor to §§ 6826-6828 of the 1923 Code and to Title 9, §§ 22-24, of the Code of 1940. It would make no sense for the Legislature to draft an exception in its statute prohibiting restraints of trade for nonsolicitation agreements but not intend for either the statute or the exception to apply to nonsolicitation agreements. We next consider whether a successor corporation can enforce an employee's nonsolicitation agreements. Taylor and Dean entered into the agreements with the predecessor employer, CCA, and not with Corroon, the successor corporation. The question whether Corroon can enforce the agreements Taylor and Dean made requires us to interpret provisions of State law relating to nonsolicitation agreements. Section 10-2A-145(b)(4), Ala.Code 1975 (which was in effect when CCA merged with Corroon),[1] provided: In Wyatt Safety Supply Co. v. Industrial Safety Products, Inc., 566 So. 2d 728 (Ala. 1990), a majority of this Court held that a successor corporation may not enforce an employment agreement made between an employee and the predecessor corporation. In reaching this decision, the Court concluded that § 10-2A-145(b)(4) did not apply to nonsolicitation agreements entered into by predecessor corporations, because of the policy disfavoring restraints on trade expressed in § 8-1-1. We have reexamined the rule of law established by the majority of this Court in Wyatt, and, after further consideration of the legislative intent currently expressed in § 10-2B-11.06 (see footnote 1), we overrule the holding in Wyatt and hold that a successor corporation can enforce nonsolicitation agreements that are otherwise valid and enforceable. Cf. First Alabama Bancshares, Inc. v. McGahey, 355 So. 2d 681 (Ala.1977) (recognizing, under somewhat different facts, that a noncompetition agreement can remain valid after a merger and can be enforced by the successor corporation). To hold otherwise would, we believe, ignore the reality *1001 that such agreements are often important assets that businesses intend to transfer during a purchase or merger; therefore, we hold that the exception contained in § 8-1-1(b) permits a successor corporation to enforce a nonsolicitation agreement entered into between an employee and a predecessor corporation. Having overruled the principle of law stated in Wyatt, we must now consider how this new rule should be applied. See Prospective Application of Judicial Decisions, 33 Ala. L.Rev. 463, 468 (1982) (explaining that once a case has been overruled, a court may apply the new rule in several ways). As we view it, the determination of how to apply the new rule is a matter of judicial discretion that must be exercised on a case-by-case basis. Professional Ins. Corp. v. Sutherland, 700 So. 2d 347, 352 (Ala.1997). Given the facts of this case, we elect to apply the new rule prospectively. Consequently, we hold that Corroon, as a successor corporation, is not entitled to enforce the agreements at issue. Given our holding that Corroon cannot enforce the agreements at issue, we now discuss the judgments entered in these two cases, especially as they relate to the counterclaims alleging intentional interference with business relations and Dean's counterclaim alleging fraud. The Montgomery County Circuit Court granted Dean and Turner Insurance's motion for a summary judgment against Corroon's claims, holding that the contract was unenforceable, and it submitted to the jury Dean and Turner Insurance's counterclaims alleging intentional interference with business relations and Dean's counterclaim alleging fraud. Turner Insurance had made no fraud counterclaim. The jury found that Corroon had intentionally interfered with Dean and Turner Insurance's business relations and that Corroon had committed a fraud against Dean. As explained above, Corroon, pursuant to the rule in Wyatt, may not enforce the nonsolicitation agreement; therefore, we affirm the summary judgment for Dean and Turner Insurance on that issue. We also agree that the jury could have found that Corroon had intentionally interfered with Dean and Turner Insurance's business relations. However, we conclude that the evidence did not support the jury's verdict on the fraud claim; therefore, Dean's fraud counterclaim should not have gone to the jury. The Jefferson County Circuit Court held that Corroon could enforce the nonsolicitation agreements. As explained in Part II above, we reverse that holding. Because the trial court did not submit Taylor and Sevier Insurance's counterclaims to the jury, those counterclaims are not before this Court. On remand, the trial court is directed to conduct proceedings in accordance with this opinion. Dean and Turner, in the Montgomery County case, counterclaimed for damages based on an alleged interference by Corroon with their business relations. This Court has recognized the common law tort of intentional interference with business relations. It requires a showing of: Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590, 597 (Ala.1986) (footnote omitted); see also Soap Co. v. Ecolab, Inc., 646 So. 2d 1366 (Ala.1994). In the Montgomery County case, the attorneys for Corroon sent a letter to Dean (with a copy to Dean's new employer, Turner Insurance), accusing Dean of violating the restrictions in his contract with Corroon. Although mere attempts to enforce a contractual agreement do not amount to intentional interference with business relations, Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502, 508 (Ala.1991), other actions by Corroon support allowing Dean and Turner *1002 Insurance's claims of intentional interference with business relations to go to the jury. Lane Milam, an employee of Corroon, notified United States Fidelity and Guaranty Company and Boan Contracting Company, companies with whom Dean and Turner were attempting to do business, that Dean had a noncompetition agreement with Corroon and that Dean was possibly violating that agreement. Evidence that Corroon knew of Dean's relationship with those companies, evidence that a Corroon employee personally contacted those companies, and evidence that the contact resulted in damage to Dean constituted sufficient evidence to submit the intentional-interference claim to the jury. The fourth element of a claim of intentional interference with business relations (see Gross, supra), the absence of justification, is really an affirmative defense. Whether Corroon was justified in its actions to enforce the nonsolicitation agreement against Dean was a question for the jury to decide. Gross, 494 So. 2d at 597, n. 3. We now discuss Dean's fraud claim. Dean alleged that Corroon had committed a fraud against him. Dean based his fraud claim on statements he alleged were made to him during his employment with Corroon. Dean claimed that Corroon employees misrepresented to him that Corroon desired to further Dean's business and that it would assist him in finding clients; that Corroon would conduct its business in a professional and ethical manner; and that the sales quotas Corroon gave Dean were reasonable and were for their mutual benefit. Turner Insurance made no fraud claim. McGarry v. Flournoy, 624 So. 2d 1359 (Ala. 1993). Dean specifically claimed that Corroon had acted fraudulently toward him while he was employed by Corroon, by intentionally establishing unreasonable quotas for him, knowing that he would be unable to meet them. Dean contends that Corroon then fired him because he was not meeting his quotas. According to Dean, Corroon did this so it could reap the benefits of Dean's efforts by keeping Dean's customers, through enforcement of the noncompetition agreement, without having to continue to employ Dean. Corroon, however, argues that it had had no "present intent" to defraud Dean. Corroon also argues that, regardless of its motive, it could have terminated Dean at any time because he was an at-will employee. Therefore, Corroon argues that the evidence was not sufficient to support the fraud claim. We agree with Corroon on the fraud issue. "It is well settled that a contract of employment-at-will may be terminated by either party with or without cause or justification...." Campisi v. Scoles Cadillac, Inc., 611 So. 2d 296, 298 (Ala.1992). The at-will nature of the employment gave Corroon the authority to discharge Dean as it did here. To affirm on the fraud issue would effectively eliminate the discretion employers enjoy to employ whom they will. We conclude that Corroon did not act fraudulently in its treatment of Dean during his employment with Corroon. The jury returned a general verdict on Dean's claim alleging fraud and his claim alleging intentional interference with business relations. As explained above, we find sufficient evidence to support the intentional-interference claim, but do not find sufficient evidence to support the fraud claim. In Aspinwall v. Gowens, 405 So. 2d 134, 138 (Ala. 1981), this Court stated (on application for rehearing): See also, Green Tree Acceptance, Inc. v. Tunstall, 645 So. 2d 1384 (Ala.1994); and St. Clair Federal Savings Bank v. Rozelle, 653 So. 2d 986 (Ala.1995). Corroon moved for a directed verdict, specifically arguing that the fraud count was not supported by the evidence and detailing with specificity the grounds upon which the directed verdict motion should be granted as to the fraud count. Accordingly, this Court will not presume that the general verdict in favor of Dean was returned on the claim alleging intentional interference with business relations. Green Tree Acceptance, 645 So. 2d at 1387, citing Old Southern Life Ins. Co. v. Spann, 472 So. 2d 987 (Ala.1985). Therefore, we must reverse the judgment in Dean's case and remand for a new trial on Dean's counterclaim alleging intentional interference with business relations. We conclude that agreements like the nonsolicitation agreements at issue in these cases can be enforceable as covenants not to compete, because they fall within the exception stated in § 8-1-1(b). However, under the old rule established in Wyatt, Corroon may not enforce the agreements in these cases, because Corroon is a successor corporation, but we today overrule Wyatt; in the future, the Wyatt rule will not apply, and a corporation in Corroon's situation will be able to enforce an otherwise enforceable agreement falling with the provisions of the § 8-1-1(b) exception. In case number 1941634, involving Taylor and Sevier Insurance, the summary judgment is reversed, and the trial court is directed to consider the counterclaims filed by Taylor and Sevier Insurance. In case number 1941688, involving Dean and Turner Insurance, that portion of the judgment holding the agreement unenforceable is affirmed. That portion based on the verdict awarding damages on Turner Insurance's claim alleging intentional interference with business relations is also affirmed. That portion awarding damages to Dean is reversed. The evidence was not sufficient to support Dean's fraud claims; therefore, Corroon was entitled to a directed verdict on those claims. On remand, the trial court is directed to hold a new trial on Dean's claim alleging intentional interference with business relations. APPLICATIONS GRANTED; OPINION OF JANUARY 17, 1997, WITHDRAWN; OPINION SUBSTITUTED; 1941634REVERSED AND REMANDED; 1941688 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HOOPER, C.J., and SHORES, HOUSTON, and BUTTS, JJ., concur. COOK, J., concurs in the result. MADDOX and SEE, JJ., dissent in case no. 1941634 and concur in part and dissent in part in case no. 1941688. MADDOX, Justice (concurring in part and dissenting in part). I concur with the plurality's holding that agreements such as the ones in this case will generally be enforceable under § 8-1-1(b), Ala.Code 1975. I also concur with the plurality's holding that there was not sufficient evidence to support a finding that Corroon had acted fraudulently toward Dean, but I dissent from the holding that affirms Turner Insurance's award of damages on its claim alleging intentional interference with business relations and that allows other defendants to pursue such claims. I concur wholeheartedly with the overruling of Wyatt Safety Supply Co. v. Industrial Safety Products, Inc., 566 So. 2d 728 (Ala.1990), a decision that I dissented from when it was released. However, I disagree with the plurality's decision to apply that overruling prospectively only, and I write to explain why I believe the new rule adopted today should be applied to the parties *1004 involved in this case. Because I believe Corroon was entitled to enforce its nonsolicitation agreements, I would hold that Corroon was entitled to a summary judgment on the defendants' counterclaims alleging intentional interference with business relations. When a court determines that a prior rule of law should be overruled, as the plurality has done in this case, the court must consider how the new rule should be appliedretroactively, prospectively, or what has been classified as quasi-prospectively. See Prospective Application of Judicial Decisions, 33 Ala. L.Rev. 463, 468 (1982) (explaining that once a case has been overruled, a court may apply the new rule in several ways). The plurality points out that the determination of how to apply the new rule is a matter of judicial discretion, which must be exercised on a case-by-case basis,[3] but today's case is analogous to other cases in which a decision interpreting a statute was overruled and in which this Court allowed the successful parties to reap the benefits of their efforts. In Nunn v. Keith, 289 Ala. 518, 268 So. 2d 792 (1972), for example, this Court overruled Bernhard v. Bernhard, 278 Ala. 240, 177 So. 2d 565 (1965), which had interpreted a state statute relating to joint tenancies in real estate with rights of survivorship. In Nunn v. Keith, although this Court did not address whether the decision should be applied retroactively or prospectively, it is apparent that the Court afforded relief to the parties before the Court who had challenged the correctness of the Bernhard rule. Three years later, in Clements v. Wheeler, 294 Ala. 187, 314 So. 2d 64 (1975), this Court applied the rule adopted in Nunn v. Keith against a party who had executed a real property deed after the date Bernhard was released, but before Nunn v. Keith was decided. Again, the Court did not specifically address the issue of the prospective or retroactive application of the Nunn v. Keith decision. It was later that the Court, in Jackson v. Fillmore, 367 So. 2d 948 (Ala.1979), discussed the question whether Nunn v. Keith should apply when a party had relied upon the decision in Bernhard and had shown such reliance. In Jackson, a majority of this Court applied the new rule prospectively only, as the plurality does today, because one of the litigants had actually relied on the rule of law established in Bernhard in drafting the property conveyance that was at issue in that case. Finally, in Bringhurst v. Hardin, 387 So. 2d 186 (Ala.1980), this Court concluded that Nunn v. Keith was to be applied retroactively in the absence of a finding that a party to the dispute had relied on the prior rule of law. As the cases described above indicate, reliance on the prior rule of law is an important variable a court must consider when determining whether to apply a new rule prospectively only; this is particularly true in cases interpreting state statutes. Cf. Hosea O. Weaver & Sons, Inc. v. Towner, 663 So. 2d 892, 899 (Ala.1995). Based on the above, I believe the principle of law this Court adopts today should be applied so as to afford relief to Corroon and to future litigants who might challenge existing rules of law and convince this Court to change them. Towner, 663 So. 2d 892, 899.[4] Therefore, I respectfully disagree with the plurality's decision to overrule Wyatt prospectively only. Because I conclude that Corroon's actions in this case were related to the enforcement of what I would hold to be valid agreements, I must also respectfully dissent from the plurality's conclusion that the defendants produced substantial evidence that Corroon should be held liable for intentionally interfering with their business relations. Mere attempts to enforce valid nonsolicitation agreements do not constitute tortious conduct. See Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502, 508 (Ala.1991). *1005 I dissent in case number 1941634. In case number 1941688, I concur with the plurality's holding that Dean did not present substantial evidence that Corroon had acted fraudulently, but I dissent from the holding that Corroon is not entitled to enforce the agreement at issue and the holding that Dean and Turner Insurance presented substantial evidence that Corroon had intentionally interfered with their business relations. SEE, J., concurs. [1] Section 10-2A-145(b)(4) was repealed effective January 1, 1995, and was replaced by § 10-2B-11.06, which carries forward the substance of subsection (b)(4) but in an abbreviated form. [2] The change of the standard for fraud from "justifiable reliance" to "reasonable reliance" in March 1997 does not apply retroactively. Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421 (Ala. 1997). Thus, the justifiable reliance standard applies to the fraud claims in this case. [3] Professional Insurance Corp. v. Sutherland, 700 So. 2d 347, 352 (Ala.1997). [4] If a party could show, as was done in Jackson, supra, actual reliance on the rule of law that is being overruled, there is current authority for not applying the new rule to that party; however, the trial courts have made no findings of such reliance in the two cases now before us.

February 13, 1998

578ab625-63f7-48f5-853c-862dd64d3d06

Ex Parte Wood

715 So. 2d 819

1960659

Alabama

Alabama Supreme Court

715 So. 2d 819 (1998) Ex parte Holly WOOD. (Re Holly Wood v. State). 1960659. Supreme Court of Alabama. March 13, 1998. Rehearing Denied May 22, 1998. *820 Ellen L. Wiesner, Montgomery; Frank Ralph of Cervera & Ralph, Troy; and Cary Dozier, Troy, for petitioner. Bill Pryor, atty. gen., and Tracy M. Daniel, asst. atty. gen., for respondent. ALMON, Justice.[*] A jury convicted Holly Wood of murder made capital because it was committed during the course of burglary in the first degree. See Ala.Code 1975, § 13A-5-40(a)(4). The jury, by a 10-2 vote, recommended the death sentence. The circuit court accepted the recommendation and imposed the death penalty. The Court of Criminal Appeals affirmed Wood's conviction and sentence. Wood v. State, 715 So. 2d 812 (Ala.Crim.App.1996). In his petition for the writ of certiorari, Wood has raised 26 issues for this Court's review; many of these were not presented to the Court of Criminal Appeals. This Court *821 has reviewed each of the arguments presented by Wood and has searched the record for plain error not raised; it has found no error that would support a reversal of the judgment. We have found only one issue that warrants discussion: whether the circuit court plainly erred during the sentencing phase of Wood's trial by charging the jury that it "may" consider mitigating circumstances. Before the jury began deliberations in the sentencing phase of Wood's trial, the circuit court gave general instructions regarding the jury's duty to consider aggravating circumstances and mitigating circumstances in rendering its advisory verdict either for capital punishment or for life imprisonment without parole. The court's jury instructions included this statement: (Emphasis added.) Wood argues that this portion of the court's sentencing-phase jury charge was erroneous and misleading because, he says, it is contrary to Ala.Code 1975, § 13A-5-51. That section, which sets out a list of mitigating circumstances to be considered in the sentencing phase of a capital case, states that "[m]itigating circumstances shall include, but not be limited to, the following...." (Emphasis added.) Focusing on the mandatory language of § 13A-5-51, Wood contends that the circuit court erred by not instructing the jury that it must consider the mitigating circumstances contained in the statute. Wood contends that the circuit court made the jury's consideration of mitigating circumstances permissive rather than mandatory, and he argues that he was therefore deprived of the reliable and individualized sentencing procedure required in capital cases. Specifically, Wood points to Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), in which the United States Supreme Court held: 428 U.S. at 304, 96 S. Ct. at 2991, 49 L. Ed. 2d at 961. The Woodson Court further stated: 428 U.S. at 305, 96 S. Ct. at 2991, 49 L. Ed. 2d at 961. Initially, we note that Wood's reliance on the United States Supreme Court's holding in Woodson has been largely undermined by that Court's recent decision in Buchanan v. Angelone, ___ U.S. ___, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998). Writing for a six-member majority in Buchanan, Chief Justice Rehnquist held that the Eighth and Fourteenth Amendments of the United States Constitution do not mandate that a trial court give any instruction to a capital jury concerning mitigating circumstances. According to Buchanan, all that is constitutionally required in a capital sentencing-phase instruction is that a jury not be precluded from considering mitigating circumstances. Thus, while a trial court cannot instruct a capital jury in such a way that it is prevented from considering mitigating circumstances, Buchanan does not require a trial court to give any instructions whatever regarding either the concept of mitigation generally or particular statutory mitigating circumstances. In Buchanan, the United States Supreme Court found no reversible error in a Virginia trial court's sentencing-phase jury instructions, even though mitigating circumstances were not mentioned at all during the charge. In light of this holding, it would seem that *822 the sentencing-phase instruction in Wood's casewhich, Wood argues, made the jury's consideration of mitigating circumstances permissivewould not be held deficient on federal constitutional grounds. In fact, the Buchanan decision indicates that Wood never had a federal constitutional right to an instruction on mitigating circumstances at all, so long as the jury in his case was not precluded in some way from being able to consider mitigating circumstances. However, nothing in Buchanan changes the fact that Alabama law does entitle capital defendants to a sentencing-phase instruction on mitigating circumstances. It is well settled that "every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility." Chavers v. State, 361 So. 2d 1106, 1107 (Ala.1978), citing Burns v. State, 229 Ala. 68, 155 So. 561 (1934). Although this maxim has been used most frequently to grant defendants jury charges on lesser-included offenses and affirmative defenses, it is equally applicable to entitle capital defendants to a jury instruction on mitigating circumstances, so long as some evidence has been presented to support a finding of mitigating circumstances. Therefore, because Wood presented some evidence of mitigating circumstances, he was entitled to an appropriate jury instruction on mitigating circumstances. In addition to being entitled to a jury instruction on mitigating circumstances, Wood was also entitled to have the jury given a charge that was not misleading. See Page v. State, 487 So. 2d 999, 1008 (Ala.Crim.App. 1986). In that regard, Wood correctly asserts that the portion of the jury instructions excerpted above is an incorrect statement of law. While that instruction stated that Wood's jury "may" consider mitigating circumstances, Ala.Code 1975, § 13A-5-51, requires that the jury consider mitigating circumstances. Nonetheless, despite the fact that one segment of the circuit court's jury instructions contained some ambiguity, the law does not necessarily require a reversal of Wood's sentence. In reviewing jury instructions to determine if they correctly set forth the applicable law, a reviewing court must consider the entire charge. Volkswagen of America, Inc. v. Marinelli, 628 So. 2d 378, 384-85 (Ala.1993). We note that, in addition to being given that portion of the charge highlighted by Wood, the jury was also given this instruction: The circuit court also gave the jury this instruction: In light of these additional sentencing-phase instructions, we hold that the jury was sufficiently charged that it must consider mitigating circumstances in rendering its advisory verdict. A reasonable reading of the circuit court's entire charge makes it clear that the judge told the jury that it had a duty to weigh the aggravating circumstances and the mitigating circumstances. Moreover, the fact that the circuit court, in a certain part of its jury charge, used the phrase "may consider" could have properly referred to a capital defendant's burden of proving mitigating circumstances. See Ala. Code 1975, § 13A-5-45(g). In many cases, the defendant fails to establish, by the measure of proof required, the existence of mitigating circumstances. In other words, the jury may consider the circumstance if it is properly proved. In fact, it was likely that Wood did not properly prove the existence of mitigating circumstances; we have reviewed the record of the sentencing phase of Wood's *823 trial, and we have found only scant evidence of mitigating circumstances.[1] Because the jury was sufficiently instructed that it had a duty to consider mitigating circumstances, and because Wood presented little evidence of mitigating circumstances, we find no indication that the jury or the trial judge disregarded any potential mitigating circumstances that were adequately supported by proof. We also note that, in response to Wood's argument for a reversal of his sentence, the State has asserted that the circuit court could not have erred in charging the jury that it "may" consider mitigating circumstances because that instruction mirrored the pattern charge for mitigating circumstances that is set forth in Alabama Pattern Jury Instructions (Criminal) for use in the sentencing stage of capital cases tried under Ala.Code 1975, § 13A-5-40(a). To support its contention, the State has relied on Ex parte Trawick, 698 So. 2d 162 (Ala.), cert. denied, ___ U.S. ___, 118 S. Ct. 568, ___ L.Ed.2d ___ (1997), in which this Court stated that "this Court has held that no reversible error will be found when the trial court follows the pattern jury instructions adopted by this Court." Trawick, 698 So. 2d at 173, citing Kuenzel v. State, 577 So. 2d 474, (Ala.Crim.App.1990), affirmed, 577 So. 2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991). This language quoted from Trawick implies that a circuit court's jury charge will be unassailable on appeal so long as that charge follows a pattern instruction. However, that would be an improper interpretation of Trawick, because pattern jury instructions may be inapplicable under particular circumstances and may, in fact, be challenged by cogent arguments based upon applicable law. This position is supported by this Court's order of December 6, 1982, recommending the pattern jury instructions for capital cases. That order was quoted in Kuenzel: Kuenzel, 577 So. 2d at 520 (emphasis added).[2] One reading of Trawick could suggest that this Court's intent in that opinion was to state that no plain error will be found when the circuit court follows a pattern jury instruction. This position would be supported by the scope of review in Trawick, which was limited to plain-error analysis. This view of *824 Trawick would also be buttressed by language in the opinion of the Court of Criminal Appeals in Kuenzel, which Trawick cited, quoting this Court: Kuenzel, 577 So. 2d at 520, quoting Ex parte Harrell, 470 So. 2d 1309, 1315 (Ala.), cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 276 (1985). (Emphasis in Kuenzel and Harrell.) However, if we examine only the language of Trawick and Kuenzel, it might yet appear that a trial court could never plainly err by giving a pattern instruction in a capital case. That conclusion would be incorrect because the Harrell decision, which was relied on in Kuenzel, correctly indicated that this state's appellate courts must examine jury instructions, even if they are pattern charges, on a case-by-case basis to determine whether they are plainly erroneous. Despite the fact that in Harrell this Court stated that "we do not think ... the trial judge plainly erred when he instructed the jury pursuant to a pattern jury instruction," 470 So. 2d at 1315 (emphasis omitted), this Court had prefaced that statement by stating earlier in Harrell that "the critical question [is] whether we should apply the `plain error' rule in this case." 470 So. 2d at 1314 (emphasis in original). Consequently, even though this Court declined to find plain error in Harrell, because the trial court had used a pattern instruction, that case did not hold that the use of a pattern instruction could never constitute plain error. To the contrary, this Court's holding in Harrell was limited to the facts of that case. In light of Harrell, we conclude that the statement in Trawick that "no reversible error will be found when the trial court follows ... pattern jury instructions," Trawick, 698 So. 2d at 173, was overly broad. While most pattern jury instructions may be properly used in the majority of criminal and civil cases, there may be some instances when using those pattern charges would be misleading or erroneous. In those situations, trial courts should deviate from the pattern instructions and give a jury charge that correctly reflects the law to be applied to the circumstances of the case. Similarly, while there will likely be few instances in which the giving of a pattern instruction would be plainly erroneous in a capital case, we do not foreclose that possibility. For that reason, a trial court must diligently scrutinize the jury charges it giveseven pattern chargeson a case-by-case basis to ensure that they properly instruct the jury in accordance with applicable statutes and caselaw. In Wood's case, however, we have already held that the circuit court's sentencing-phase jury charge, taken in its entirety, was not erroneous. Therefore, Trawick has no application to our decision in this case. In addition to the issue Wood raises regarding the jury instruction, this Court has reviewed the other issues presented to it; has examined the issues addressed and decided by the Court of Criminal Appeals; has considered the oral arguments made before this Court; and has thoroughly examined the record for plain error. We find no error, plain or otherwise, either in the guilt phase or in the sentencing phase of Wood's trial that so prejudicially affected his rights as to require a reversal of Wood's conviction or sentence. As required by Ala.Code 1975, § 13A-5-53, we have reviewed the record, including the circuit judge's sentencing order and the opinion of the Court of Criminal Appeals upholding the imposition of the death penalty in this case. This review shows that Wood's sentence was not the result of "passion, prejudice, or any other arbitrary factor." § 13A-5-53(b)(1). We conclude that the circuit court and the Court of Criminal Appeals properly weighed the mitigating circumstances and the aggravating circumstances. Finally, we hold that those courts did not err in determining that Wood's sentence of death was properly imposed and was proportional to the penalty imposed in similar cases. Accordingly, the judgment of the Court of Criminal Appeals affirming Wood's conviction and sentence is hereby affirmed. AFFIRMED. *825 HOOPER, C.J., MADDOX, SHORES, HOUSTON, KENNEDY, COOK, and SEE, JJ., concur. BUTTS, J.,[**] concurs specially. BUTTS, Justice (concurring specially). I agree that the trial court's sentencing phase jury charge, taken in its entirety, was not erroneous. However, I do not share the majority's concern that Ex parte Trawick, 698 So. 2d 162 (Ala.1997), could be construed to preclude a review for plain error in the trial court's instruction to the jury if the instruction is based upon Alabama Pattern Jury Instructions. In Trawick, I pointed out that, in applying a plain-error standard of review, this Court has held that no reversible error would be found where the trial court follows the pattern jury instructions adopted by this Court. Trawick, 698 So. 2d at 173. This did not, however, preclude us from examining the record in Trawick to determine whether the trial court's giving of the pattern jury instruction regarding the jury's weighing of aggravating circumstances and mitigating circumstances could have misguided the jury as to its function and responsibility in weighing these factors. Only after examining the record did we conclude that the trial court's instruction was a clear statement of the applicable law and that there was no plain error in the instruction as given. [*] Although Justice Almon was not present at oral argument, he has listened to the tape of oral argument. [1] During the sentencing phase, Wood first presented evidence that his family experienced difficult times during his early years. However, no evidence suggested that Wood had suffered abuse as a child. Second, Wood introduced a copy of the police report that was completed when Wood was arrested in this case. That report described Wood's condition at the time of his arrest as "drinking." However, Wood presented no evidence that he was actually intoxicated, and witnesses for the State testified during the guilt phase that Wood did not appear to be intoxicated when he was arrested. Third, Wood introduced a report from the State Board of Pardons and Paroles remarking that Wood needed "anger induced, acting out and reality therapy." However, Wood presented no additional evidence to show that he suffered from a mental defect or that he was otherwise mentally incompetent. Ala.Code 1975, § 13A-5-45(g), requires that a capital defendant prove the existence of a mitigating circumstance by a preponderance of the evidence. Based on the meager amount of evidence presented on the question of mitigating circumstances, we conclude that neither the jury nor the trial judge acted unreasonably by finding that no mitigating circumstances existed in Wood's case. [2] See also, the "Order of the Supreme Court of Alabama Approving Use of Alabama Pattern Jury Instructions," Alabama Pattern Jury Instructions (Civil) (2d ed.1993) at pp. xix-xxii, suggesting that the Court's Advisory Committee on Civil Practice and Procedure "consider the desirability" of amending the Rules of Civil Procedure to add a rule providing in part as follows: "The publication by the Alabama Pattern Jury Instructions Committee of Alabama Pattern Jury Instructions in Civil Cases and their use by the trial judges of this state are recommended, but without prejudice to the rights of any litigant to make and reserve for review any objection thereto either as to form, substance or application." (Emphasis added.) [**] Justice Butts was not present at oral argument, but on February 25, 1998, he listened to the tape of the oral argument.

March 13, 1998

531a2b2b-093c-431a-a8b3-d5d87aaf3738

Ex Parte Boyd

715 So. 2d 852

1961321

Alabama

Alabama Supreme Court

715 So. 2d 852 (1998) Ex parte Anthony BOYD. (Re Anthony Boyd v. State). 1961321. Supreme Court of Alabama. March 13, 1998. Rehearing Denied May 22, 1998. *853 William J. Willingham, Talladega; and S. Dale Price, Sylacauga, for petitioner. Bill Pryor, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for respondent. SHORES, Justice. Anthony Boyd was convicted of intentional murder during a kidnapping, an offense made capital by § 13A-5-40(a)(1), Ala.Code 1975. By a vote of 10 to 2, the jury recommended the imposition of the death penalty; the trial court followed that recommendation, sentencing Boyd to death by electrocution. In a unanimous decision, the Court of Criminal Appeals affirmed Boyd's conviction and sentence. See Boyd v. State, 715 So. 2d 825 (Ala.Cr.App.1997), for a recitation of the pertinent facts. This Court granted Boyd's petition for the writ of certiorari. Rule 39(c), Ala. R.App. P. We affirm Boyd's conviction and sentence. In his petition, Boyd raises over 25 issues, almost all of which were addressed by the Court of Criminal Appeals in its opinion. It is necessary for this Court to further discuss only three issues: (1) whether the trial court should have excluded autopsy photographs of the victim's body, (2) whether the trial court's kidnapping instruction was inadequate, and (3) whether the trial court's erroneous finding regarding Boyd's age at the *854 time he committed the offense warrants a remand for resentencing. During the guilt phase of the trial, the prosecution sought to introduce autopsy photographs depicting the victim's body. Boyd objected to their admission, arguing that he had stipulated to the medical examiner's findings as to the cause and manner of the victim's death and that the photographs would be repetitious and inflammatory. In the presence of the jury, the district attorney responded to that argument by stating that he did not agree that the photographs lacked probative value; he stated: After noting Boyd's objection for the record, the trial court admitted the photographs. Before the Court of Criminal Appeals, Boyd argued that the photographs were unfairly prejudicial and not relevant to any issue in the guilt phase and therefore should not have been admitted. Relying upon its decision in Johnson v. State, 620 So. 2d 679 (Ala.Cr.App.1992), rev'd on other grounds, 620 So. 2d 709 (Ala.), cert. den., 510 U.S. 905, 114 S. Ct. 285, 126 L. Ed. 2d 235 (1993), the Court of Criminal Appeals rejected Boyd's argument, concluding that the photographs had been properly admitted at the guilt phase because they illustrated and corroborated the coroner's testimony concerning the injuries and also corroborated the testimony of an accomplice. Boyd argues that the Court of Criminal Appeals erred in deciding this issue because, he says, the Johnson case it relied upon is distinguishable; Boyd asserts that Johnson "only deals with cases where the state uses photographs for proper reasons, and thus has no bearing on Mr. Boyd's case, where the evidence was used for an improper reason." Petitioner's brief at 2 (emphasis in original). Boyd stresses that the sole reason the prosecutor gave for offering the photographs was that they tended to show that the offense in this case was "especially heinous, atrocious or cruel as compared to other capital cases." That a capital offense was "especially heinous, atrocious or cruel compared to other capital offenses" is an "aggravating circumstance," see § 13A-5-49(8). Whether that aggravating circumstance exists is an issue properly raised at the penalty phase of a capital case. Boyd argues that the Court of Criminal Appeals could not consider the fact that the photographs tended to corroborate witnesses' testimony because at trial the State did not argue such a justification for admitting the photographs. This Court has held that it is improper to elicit at the guilt phase of a capital trial evidence of a defendant's future dangerousness because such evidence, although relevant at the penalty phase, would tend only to confuse the jury in its consideration of whether the defendant was guilty of committing the offense. See Ex parte Berard, 486 So. 2d 476 (Ala.1985). We have also held that it is also inappropriate for a prosecutor to make similar arguments during his closing remarks in the guilt phase. See Ex parte Smith, 581 So. 2d 531 (Ala.1991). Thus, we might even assume that, if the autopsy photographs in the instant case had no probative value as to the issues raised at the guilt phase, the trial judge should have excluded them. However, as the Court of Criminal Appeals correctly recognized, the corroborative elements of the photographs made the photographs relevant to guilt-phase issues. And "[w]hile the ... evidence may not have been admissible based on the reasons offered by the prosecution at trial, [an appellate court is] not precluded from upholding the trial court's ruling on the admissibility of that evidence on a different ground." Guthrie v. State, 616 So. 2d 914, 921 (Ala.Cr.App.1993), citing Nicks v. State, 521 So. 2d 1018, 1030-31 (Ala.Cr.App.1987), aff'd, 521 So. 2d 1035 (Ala.), cert. den., 487 U.S. 1241, 108 S. Ct. 2916, 101 L. Ed. 2d 948 (1988). So, contrary to the defendant's assertion, the Court of Criminal Appeals, in determining whether the photographs were properly admitted, could properly consider the corroborative tendency of the photographs. We find no error on this issue. *855 The second issue we address is whether the trial court's kidnapping instruction was inadequate. The Court of Criminal Appeals did not consider this issue, and this issue was not raised at trial; therefore, our review is governed by the plain error rule. Rule 45A, Ala. R.App. P. The absence of an objection in a case involving the death penalty does not preclude review of the issue; however, the defendant's failure to object does weigh against his claim of prejudice. Kuenzel v. State, 577 So. 2d 474, 489 (Ala.Cr. App.1990), aff'd, 577 So. 2d 531 (Ala.), cert. den., 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991). Tracking language from the kidnapping statute, the trial court instructed the jury that a "person commits a kidnapping in the first degree if he abducts another person with the intent to inflict physical injury upon him or to terrorize him." See § 13A-6-43(a)(4) and (5), Ala.Code 1975. Boyd argues that the trial court's charge was deficient because it did not more specifically define the term "terrorize" for the jury. In essence, Boyd argues that the lack of a more specific definition of "terrorize" fails to prevent arbitrary and discriminatory enforcement. We disagree. The use of the term "terrorize" has been held not to render the kidnapping statute unconstitutionally vague. Musgrove v. State, 519 So. 2d 565, 582-83 (Ala.Cr.App.), aff'd, 519 So. 2d 586 (Ala.1986), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 611 (1988). The final issue we address is whether the trial court's erroneous finding regarding Boyd's age at the time of the offense requires that this case be remanded for resentencing. At sentencing, the trial court found the existence of two aggravating circumstances: that the capital offense was committed while Boyd was engaged in the commission of a kidnapping and that the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses, see Ala.Code 1975, § 13A-5-49(4) and (8), respectively. The only mitigating factor the trial court found was that Boyd did not have a significant history of prior criminal activity, see § 13A-5-51(1), Ala.Code 1975. In determining that only one mitigating factor was present, the trial court calculated that Boyd was 23 years old at the time of the offense and found that his age was not a mitigating circumstance. See § 13A-5-51(7), Ala.Code 1975. The record indicates, however, that Boyd's date of birth was September 5, 1971. Therefore, while he was 23 years old when the trial court sentenced him on May 19, 1995, Boyd was actually about 21 years and 11 months old when he committed the crime on July 31, 1993. It does not appear from the record, though, that Boyd's counsel brought the age miscalculation to the trial court's attention. In this Court, Boyd argues that, had the trial judge correctly determined his age at the time of the crime, it might have found that an additional mitigating factor existed and that if it had found this additional factor, this might have affected the court's weighing of all aggravating and mitigating factors, the process that constitutes the individualized sentencing determination. See §§ 13A-5-47(e), 13A-5-48, Ala.Code 1975; Clisby v. State, 456 So. 2d 105, aff'd, 456 So. 2d 105 (Ala.1984), cert. den., 470 U.S. 1009, 105 S. Ct. 1372, 84 L. Ed. 2d 391 (1985). The Court of Criminal Appeals acknowledged in its opinion that Boyd alleged that the trial court had miscalculated his age, 715 So. 2d at 839, but that court's opinion did not address the potential impact of that particular error upon the sentencing. However, because Boyd did not object at trial, this issue is reviewable only under the "plain error" standard. Rule 45A, Ala. R.App. P., Kuenzel, supra. While conceding that the trial court miscalculated Boyd's age, the State argues that this error does not warrant a remand because, given the especially heinous nature of the crime, the trial court's determinations that Boyd's age was not a mitigating factor and that death was the appropriate sentence were reasonable notwithstanding the error. In Ex parte Land, 678 So. 2d 224 (Ala. 1996), we considered a similar factual situation. In that case, the trial court's order sentencing the defendant to death stated that the defendant was "five days short of his 24th birthday" when he committed the capital murder, when in truth the defendant had actually been five days short of his 23rd birthday. Id. at 242. This Court recognized, however, that the defendant had not objected *856 to this error, either at his sentencing hearing or on direct appeal, and that the issue was therefore reviewable only under the "plain error" standard. Id. Reasoning that "[w]hether he was five days short of 23, or five days short of 24, [the defendant] was clearly an adult, not a minor, when he killed [the victim]," this Court held that the trial court's miscalculation of the defendant's age by one year did not constitute plain error. Ex parte Land, at 242-43. We reach the same result in Boyd's case. It would seem that the greater the trial court's substantive miscalculation of a defendant's age, the more prejudicial it might be to the defendant. The trial court miscalculated Boyd's age by only slightly more than the one year in Land, so this consideration does not suggest materially greater prejudice. However, we are aware of at least one other reported case in which the same trial judge who sentenced Boyd to death, Judge Jerry L. Fielding, found that a capital defendant's age of 21 years when he committed the offense was a mitigating factor. See Ex parte Henderson, 616 So. 2d 348, 349 (Ala.1992). But "plain error" exists only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the proceedings or if it has or probably has affected a substantial right of the defendant. Ex parte Womack, 435 So. 2d 766, 769 (Ala.), cert. den., 464 U.S. 986, 104 S. Ct. 436, 78 L. Ed. 2d 367 (1983). We find that, as was the case in Land, "[the defendant] was clearly an adult, not a minor, when he killed [the victim]." 678 So. 2d at 242. Thus, we cannot say that the trial court's miscalculation of Boyd's age rose to the level of "plain error." Boyd asserts that the circuit court and the State committed other errors; his assertions are outlined in the Court of Criminal Appeals' opinion. However, we find no error in the opinion of that court regarding these remaining issues, and we do not think we could add anything of significance to the rationale offered by that court. As required by § 13A-5-53, Ala.Code 1975, we have reviewed the entire record, and this review convinces us that the sentence was not the result of "passion, prejudice, or any other arbitrary factor." § 13A-5-53(b)(1). We conclude that the trial court and the Court of Criminal Appeals properly weighed the mitigating circumstances and the aggravating circumstances. Finally, we hold that those courts did not err in determining that Boyd's sentence of death was proper and proportional to the penalties imposed in similar cases, § 13A-5-53(b)(3). Accordingly, the judgment of the Court of Criminal Appeals is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, COOK, BUTTS, and SEE, JJ., concur.

March 13, 1998

bdf77521-343c-490d-8e7e-faa94a062cc0

Ex Parte Toler

710 So. 2d 415

1970043

Alabama

Alabama Supreme Court

710 So. 2d 415 (1998) Ex parte Undine TOLER and Wendy Cain. (Re Undine L. TOLER, etc., et al. v. Julian B. BRACKIN, et al.). 1970043. Supreme Court of Alabama. February 13, 1998. Gregory C. Buffalow of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for petitioners. Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for respondent Julian B. Brackin, Jr. *416 MADDOX, Justice. The issue presented by this petition for the writ of mandamus is whether the Alabama Rules of Professional Conduct may be admitted into evidence in a legal malpractice action to show a breach of the standard of care. The plaintiffs in an action pending in the Baldwin Circuit Court seek a writ directing the trial judge to allow the plaintiffs to introduce the Rules of Professional Conduct and to allow an expert witness to rely on those Rules in stating an opinion as to the applicable standard of care. We deny the petition. The writ of mandamus is a drastic and extraordinary writ, and certain criteria must be met before it will be issued. A writ of mandamus will be issued only when there is (1) a clear legal right in the petitioner to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) lack of another adequate remedy; and (4) properly invoked jurisdiction of this Court. Ex parte Ben-Acadia, Ltd., 566 So. 2d 486, 488 (Ala.1990). Julian Brackin, the defendant, is an attorney practicing in Foley. In 1993 and 1994, Brackin purchased, in separate transactions, three parcels of land on Wolf Bay in Baldwin County, from the plaintiffs or their predecessors in interest. Brackin had previously represented the plaintiffs in a variety of transactions. After Brackin purchased the property in question, the plaintiffs filed this legal malpractice action, alleging that in regard to the purchase Brackin took advantage of them and defrauded them of their property. Before the trial began, the plaintiffs informed the trial judge that they planned to introduce into evidence the Rules of Professional Conduct and to present expert testimony based on those Rules when discussing the applicable standard of care. The trial judge stated that he would not admit those Rules into evidence and would not permit testimony concerning them, basing that decision upon the Alabama Legal Services Liability Act, particularly § 6-5-578(b), Ala.Code 1975. Section 6-5-578(b) provides: The plaintiffs contend that the trial judge misinterpreted § 6-5-578(b). They argue that § 6-5-578(b) applies only if the legal service provider has been charged with violating the Rules of Professional Conduct. We disagree. The statute clearly states that "the fact that a legal service provider violated any provision of the rules of professional conduct shall not give rise to an independent cause of action or otherwise be used in support of [a] recovery in a legal services liability action." § 6-5-578(b), Ala.Code 1975 (emphasis added). We hold that a violation of the Rules of Professional Conduct may not be used as evidence, regardless of whether the attorney has been charged with a violation of those Rules. In Terry Cove North, Inc. v. Marr & Friedlander, P.C., 521 So. 2d 22 (Ala.1988), which was decided before § 6-5-578 was adopted, this Court held that a violation of the Alabama State Bar's Code of Professional Responsibility (the predecessor to the Alabama Rules of Professional Conduct) did not give rise to a cause of action for money damages. In so holding, this Court stated that "the sole remedy" for a violation of the Code of Professional Responsibility was "the imposition of disciplinary measures" and that the Code of Professional Responsibility did not "set out standards for civil liability." Id. at 24. The trial judge properly held that evidence of a violation of the Rules of Professional Conduct could not be used in a legal malpractice action. WRIT DENIED. HOOPER, C.J., and ALMON, SHORES, HOUSTON, KENNEDY, COOK, BUTTS, and SEE, JJ., concur.

February 13, 1998

276436dc-8190-4204-bcb6-41179e1328d0

Ex Parte Beasley

712 So. 2d 338

1961623

Alabama

Alabama Supreme Court

712 So. 2d 338 (1998) Ex parte Antoinette J. BEASLEY. (Re Antoinette J. BEASLEY v. BROOKWOOD MEDICAL CENTER). 1961623. Supreme Court of Alabama. March 20, 1998. *339 K. David Sawyer and Richard J. Stockham III of Stockham & Stockham, P.C., Birmingham, for petitioner. Elmer E. White and Charles M. Elmer of The Kullman Firm, Birmingham, for respondent. SEE, Justice. Antoinette J. Beasley petitions for a writ of mandamus directing the trial court to vacate its order compelling her to arbitrate her claims against Brookwood Medical Center ("Brookwood"). Beasley maintains that arbitration is inappropriate because the arbitration clause contained in her employee handbook and relied upon by the trial court is not supported by a binding contract. We grant the petition. In March 1995, Brookwood adopted a new employment policy. The policy required all employees, as a condition of employment, to agree to submit employment claims against Brookwood to final and binding arbitration. Brookwood provided notice of the arbitration policy by issuing each employee an employee handbook that included the arbitration agreement, and it required each employee to acknowledge, by signature, receipt of the employee handbook. Tenet Healthcare, Inc., the corporate parent of Brookwood, has used this standard employee handbook and acknowledgment form at many of its facilities across the country. After an employee signed an acknowledgment form, Brookwood placed the form in the employee's file. Although Beasley was already employed by Brookwood when this new policy was implemented, her continued employment was conditioned on her acknowledging the receipt of the new standard employee handbook. Less than two months after Beasley signed an acknowledgment form, she was notified that her employment with Brookwood as a registered nurse had been terminated. When Beasley could not find other employment, she sued Brookwood, alleging, among other things, fraud, slander, libel, and blacklisting. The trial court granted Brookwood's motion to stay the proceeding and to compel arbitration. Beasley filed this mandamus petition. A writ of mandamus is an extraordinary remedy, requiring the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court. Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989). Mandamus is the appropriate procedure when a *340 party has been compelled to arbitrate a claim that he did not agree to arbitrate.[1] The Federal Arbitration Act, 9 U.S.C. §§ 1-16, provides that an arbitration clause contained in a contract involving interstate commerce will be enforceable. The arbitration clause will generally be enforceable against those parties who signed the contract. Allied-Bruce Terminix Companies v. Dobson, 684 So. 2d 102, 108 (Ala.1995). The standard employee handbook issued to Brookwood's employees contains an arbitration provision designated as the final step in the "Fair Treatment Process." Under the Fair Treatment Process, if an employee fails to resolve a complaint with officers of Brookwood, the employee "will use binding, independent arbitration as the final step in [his] complaint process." In addition, the unsigned acknowledgment form in the standard employee handbook submitted by Brookwood with its mandamus petition contains the following pertinent language: (Emphasis added.) Beasley argues that the emphasized language, in the second quoted paragraph, stating that "no written statement or agreement in this handbook ... is binding," precludes the existence of a contract. Otherwise, Beasley contends, Brookwood would be allowed to pick and choose which provisions of the handbook it desired to enforce. We agree with Beasley that the statement in the acknowledgment form signed by her that "no written statement or agreement in this handbook ... is binding" vitiates the operative effect of the arbitration provision contained in the standard employee handbook. The plain meaning of the phrase "no written statement" would include the statement in the standard employee handbook that the employee "will use binding, independent arbitration as the final step in [his] complaint process." See Shepherd Realty Co. v. Winn-Dixie Montgomery, Inc., 418 So. 2d 871, 874 (Ala.1982) (stating that courts should construe contractual language as written); McCluskey v. Unicare Health Facility, Inc., 484 So. 2d 398, 400 (Ala.1986) (holding that an employee handbook containing a statement disclaiming the binding effect of the handbook was not a contract). Nonetheless, Brookwood cites O'Neil v. Hilton Head Hospital, 115 F.3d 272 (4th Cir.1997), and Patterson v. Tenet Healthcare, Inc., 113 F.3d 832 (8th Cir.1997), for the proposition that despite the statement disclaiming the binding effect of the employee handbook, the arbitration clause is still binding. The arbitration clause referred to in those cases, however, was the arbitration clause in the acknowledgment form, not the arbitration provision in the body of the employee handbook. O'Neil, 115 F.3d at 273, Patterson, 113 F.3d at 835. In Patterson, id., the United States Court of Appeals for the Eighth Circuit dealt with a signed acknowledgment form containing the same language *341 as that in Brookwood's standard employee handbook acknowledgment form. The Eighth Circuit stated: Id. (citations omitted). The acknowledgment form contained in Brookwood's standard employee handbook would have created a binding obligation to arbitrate under Patterson if Beasley had signed that form; however, she did not sign that form. Instead, the evidence submitted by Brookwood shows that Beasley signed an acknowledgment form that is similar to the standard form, but that does not contain the arbitration clause. Absent Beasley's signature on a document that contains a valid arbitration clause, we cannot hold that she agreed to arbitrate her employment claims against Brookwood. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995) (stating that arbitration is required only for those claims the parties have expressed an intent to arbitrate). Accordingly, Beasley has demonstrated a clear legal right to the order sought. The trial court is directed to vacate its order compelling Beasley to arbitrate her claims against Brookwood. WRIT GRANTED. MADDOX, SHORES, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur. ALMON, J., concurs in the result. HOOPER, C.J., dissents. [1] A direct appeal is the generally accepted method for obtaining review when a trial court denies a motion to compel arbitration. A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360 (Ala. 1990). A petition for a writ of mandamus is the generally accepted method for obtaining review when the trial court grants a motion to compel arbitration. Ex parte Alexander, 558 So. 2d 364, 365 (Ala.1990).

March 20, 1998

a768cbd6-bfdf-4740-84b4-a83538c0bfb5

Ford Motor Co. v. Hall

709 So. 2d 1198

1961744

Alabama

Alabama Supreme Court

709 So. 2d 1198 (1998) FORD MOTOR COMPANY v. John HALL. 1961744. Supreme Court of Alabama. January 30, 1998. T. Michael Brown and Kenneth M. Perry of Bradley, Arant, Rose & White, L.L.P., Birmingham, for appellant. John A. Tinney, Roanoke, for appellee. PER CURIAM. AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P. ALMON, SHORES, KENNEDY, COOK, and BUTTS, JJ., concur. HOOPER, C.J., and MADDOX, HOUSTON, and SEE, JJ., dissent (opinion by HOOPER, C.J.). HOOPER, Chief Justice (dissenting). I must respectfully dissent. John Hall purchased a truck from the Midway Ford dealership. The buyer's order executed as part of the sales transaction included an arbitration clause. That arbitration clause specifically referred to only Hall and Midway Ford; it did not mention the manufacturer of the truck, Ford Motor Company. The truck developed mechanical problems, and Hall sued Ford Motor Company and Midway Ford, alleging fraud and breach of warranty. The trial court denied Ford Motor Company's motion to arbitrate, holding that because Ford was a nonsignatory to the contract containing the arbitration clause, it *1199 did not have standing to enforce the arbitration clause. The arbitration clause stated that the buyer agreed to arbitrate "all claims, demands, disputes, or controversies of every kind or nature that may arise." Although Ford Motor Company was not a party to the sales contract, it is clear that a nonsignatory may enforce an arbitration agreement if the claims against it are intertwined with the underlying contract containing the arbitration clause. Gates v. Palm Harbor Homes, Inc., 675 So. 2d 371 (Ala.1996); Thomson-CSF, S.A. v. American Arbitration Ass'n, 64 F.3d 773 (2d Cir.1995); Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753 (11th Cir.1993); McBro Planning & Development Co. v. Triangle Electrical Constr. Co., 741 F.2d 342 (11th Cir.1984). Ford Motor Company manufactured Hall's truck; Hall purchased it pursuant to a contract requiring arbitration of all disputes. Arbitration of the claims against Ford Motor Company should be compelled under this agreement because the claims against Ford are inextricably intertwined with the transaction between Hall and Midway Ford. It is also clear that any doubt as to the scope of an arbitration agreement should be resolved in favor of arbitration. Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). I have dissented from this Court's decisions on this issue in the past. See Ex parte Martin, 703 So. 2d 883 (Ala.1996). I will continue to dissent as long as the majority continues to hold as it does today, because the law plainly allows a nonsignatory in a situation like the one now before us to compel arbitration. MADDOX, HOUSTON, and SEE, JJ., concur.

January 30, 1998

9b604db3-aa6d-4899-9478-6498d3ca7197

Ex Parte Borden

711 So. 2d 506

1961943

Alabama

Alabama Supreme Court

711 So. 2d 506 (1998) Ex parte Jeffery Lynn BORDEN. (In re Jeffery Lynn Borden v. State of Alabama). 1961943. Supreme Court of Alabama. January 23, 1998. Sheldon Perhacs, Birmingham, for petitioner. Bill Pryor, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for respondent. Prior report: Ala.Cr.App., 711 So. 2d 498. HOUSTON, Justice. Jeffery Lynn Borden was charged with two counts of capital murder. Count I of the indictment charged Borden with the capital offense of murder wherein two or more persons are murdered by one act or pursuant to one scheme or course of conduct. Ala.Code 1975, § 13A-5-40(a)(10). Count II of the indictment charged Borden with the capital offense of murder committed by or through the use of a deadly weapon fired from outside a dwelling while the victim was inside the dwelling. Ala.Code 1975, § 13A-5-40(a)(16). The jury found Borden guilty of capital murder, as charged in Count I of the indictment, and guilty of intentional murder, a lesser included offense of the capital murder charge of Count II of the indictment. See Ala.Code 1975, § 13A-6-2(a)(1). Borden was sentenced to death for the capital murder conviction under Count I of the indictment and to life imprisonment for the intentional murder conviction under Count II of the indictment. The Court of Criminal Appeals affirmed the conviction as to the capital murder and the corresponding sentence in Count I, but reversed the conviction as to the intentional murder and the corresponding sentence in Count II and remanded the case to the trial court with directions to vacate its judgment as to the intentional murder conviction under Count II. Borden's application for rehearing was overruled and his Rule 39(k), Ala.R.App.P., motion was denied, both without opinion. In his certiorari petition, Borden argued that Count I of the indictment was duplicitous and violated his due process rights that his conviction for the offense described in Count I and for the offense described in Count II violated the principles of due process and former jeopardy, as well as the *507 requirements of Rule 13.3, Ala.R.Crim.P., which prevent joinder of two or more offenses in the same count of the indictment and which, he argues, are nondiscretionary. Therefore, he argues, because Count I was defective, any conviction based on that count should have been reversed, leaving only the conviction on Count II to be affirmed. We granted certiorari review to further consider the issues Borden presented in his petition and to search the record for plain error. After thoroughly reviewing the petition, the brief in support of the petition, the brief in opposition to the petition, the Court of Criminal Appeals' opinion, the applicable law, and the record, we are satisfied that the Court of Criminal Appeals adequately addressed and correctly resolved the issues on appeal. Furthermore, despite an exhaustive review of the record, we find no plain error. Therefore, we affirm the judgment of the Court of Criminal Appeals. AFFIRMED. HOOPER, C. J., and MADDOX, ALMON, COOK, and SEE, JJ., concur.

January 23, 1998

168e2e95-89f8-4c2d-8cc1-7c01dca4e124

Ex Parte Bentford

719 So. 2d 778

1961675

Alabama

Alabama Supreme Court

719 So. 2d 778 (1998) Ex parte Kenneth BENTFORD, et al. (Re Kenneth BENTFORD, et al. v. TRI-STAR DEVELOPMENT CORPORATION, et al.). 1961675. Supreme Court of Alabama. April 24, 1998. As Modified on Denial of Rehearing July 17, 1998. *779 G. William Gill and James G. Bodin of McPhillips, Shinbaum, Gill & Stoner, L.L.P., Montgomery, for petitioners. Barry E. Teague, Montgomery, for respondents Tri-Star Development Corp., Steve Mitchell, and Donna Deviney. Robert E. Sasser and Tamara A. Stidham of Sasser & Littleton, P.C., Montgomery, for respondents Colonial Bank and Colonial Mortgage Co. KENNEDY, Justice. Kenneth and Margaret Bentford, Andre and Demeiter Lawrence, Willis and Shirley Underwood, Anthony Alexander, Angelia Woods, and Willie A. Lewis, the plaintiffs in an action pending in the Montgomery Circuit Court, petition for a writ of mandamus directing Judge Eugene W. Reese 1) to withdraw his order granting the defendants' motion to compel arbitration and stay the proceedings and 2) to enter an order denying the defendants' motion. On November 18, 1994, the plaintiffs sued Tri-Star Development Corporation ("Tri-Star") and Steve Mitchell. The complaint, later amended to add Donna Deviney as a defendant, alleged breach of contract in the construction and sale of certain houses; negligence; breach of various warranties; and fraud.[1] Each plaintiff or pair of plaintiffs had contracted with Tri-Star for Tri-Star to build them a house. In the same complaint, the Bentfords and the Underwoods also sued Colonial Bank and Colonial Mortgage Company.[2] *780 Before trial, however, the defendants moved to compel arbitration, based on an arbitration provision contained in warranty booklets mailed to the plaintiffs by Residential Warranty Corporation ("RWC") several weeks after the closing of the purchases of their respective homes.[3] On June 4, 1997, the trial court granted the motion to compel arbitration as to all claims and stayed the proceedings. The plaintiffs offer several reasons for their argument that the trial court erred in compelling arbitration. First, they contend that they never entered into an arbitration agreement with the defendants or with RWC. Second, they assert that the defendants waited over 2½ years before seeking to compel arbitration and that before they sought arbitration the defendants had substantially invoked the litigation process, by participating in discovery and various pretrial matters; the plaintiffs say they were prejudiced by the defendants' delay and their invoking the litigation process and, thus, that the defendants had waived any right they may have had to compel arbitration. Third, the plaintiffs argue that even if the RWC booklets contained a valid arbitration provision that would apply to the plaintiffs and RWC, it would not apply to Colonial Bank and Colonial Mortgage Company, which, as to any such provision, were nonsignatories. A petition for the writ of mandamus is the appropriate means by which to challenge a trial court's order compelling arbitration. Ex parte Gates, 675 So. 2d 371, 374 (Ala.1996). In Carl Gregory Chrysler-Plymouth, Inc. v. Barnes, 700 So. 2d 1358 (Ala.1997), this Court noted that "[t]he first task of this Court, when reviewing an arbitration provision, is to determine whether the parties agreed to arbitrate the dispute at hand." Id. at 1360. In the present case, the plaintiffs argue that they never entered into an arbitration agreement with the defendants or with the RWC. "Both federal and state courts have consistently held that the duty to arbitrate is a contractual obligation and that a party cannot be required to submit to arbitration any dispute he did not agree to submit." Capital Investment Group, Inc., v. Woodson, 694 So. 2d 1268, 1270 (Ala.1997), citing AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986), and A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358 (Ala.1990). It is undisputed that at various times, ending on or about December 28, 1992, the plaintiffs entered into contracts for the purchase of houses constructed by Tri-star and completed applications with RWC for warranties covering these homes. None of the documents signed by the plaintiffs contained an arbitration provision or made any reference to an arbitration provision. The only logical explanation for the trial court's compelling arbitration in this case is supplied by the defendants' contention that compelling arbitration is appropriate because of the language used in certain clauses in the warranty application that reference other documents. These clauses read as follows: It would be fundamentally unjust for this Court to articulate a standard whereby the citizens of this state, when entering contracts, would be required to leap from document to document searching for provisions that, in amongst the fine print and voluminous documentation, might operate to deprive them of their fundamental rights without their acknowledged assent. It was, therefore, unreasonable for the trial court to find that these plaintiffs had agreed to submit their claims against these defendants to arbitration, when they had not specifically agreed to do so. Aside from claiming that they did not specifically agree to arbitrate their claims against these defendants, the plaintiffs support their petition by arguing that Tri-Star, Mitchell, and Deviney waived their right to move the trial court to compel arbitration, by substantially invoking the litigation process. A party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration. Companion Life Insurance Co. v. Whitesell Manufacturing, Inc., 670 So. 2d 897 (Ala. 1995). No rigid rule exists for determining what constitutes a waiver of the right to arbitration; this issue must be resolved on the particular facts of each case. Huntsville Golf Development, Inc. v. Aetna Casualty & Surety Co., 632 So. 2d 459 (Ala.1994). Plaintiffs' exhibit WC, a case action summary from the trial court, indicates the following about the extent to which Tri-Star, Mitchell, and Deviney invoked the litigation process: A summons and a complaint were executed upon Tri-Star and Mitchell on November 23, 1994. Nearly 2½ years passed before Tri-Star and Mitchell, on May 20, 1997, filed their brief in support of a motion to dismiss or, in the alternative, a motion to compel arbitration. During this period, Tri-Star and Mitchell answered the complaint and filed two motions to dismiss, three motions to continue, a motion for an extension of time, and a motion for a partial summary judgment. In addition, during this time, the plaintiffs filed a motion to compel, a notice of deposition, and an order to appear at deposition. Moreover, the trial court conducted three hearings and three scheduling conferences and set the case for pretrial on February 27, 1997, with the trial originally scheduled to be held on March 3, 1997, a date two months before Tri-Star and Mitchell's eventual filing of the motion to compel arbitration. With regard to defendant Donna Deviney, the facts surrounding her invocation of the litigation process are virtually identical to those relating to Tri-Star and Mitchell. The amended complaint naming Deviney as a defendant was filed on June 8, 1995; a summons and a complaint were served on her on June 15, 1995, eight months after the filing of the original complaint. As was the case with Tri-Star and Mitchell, Deviney filed numerous motions requiring the plaintiffs' response; participated in discovery on numerous occasions; and delayed seeking to compel arbitration until two months after the original date set for trial. Moreover, it is undisputed that Deviney waited nearly two years before seeking to invoke her alleged right to compel arbitration. We conclude that the plaintiffs would be prejudiced by Tri-Star, Mitchell, and Deviney's unreasonable delay in seeking to compel arbitration. The petition for the writ of mandamus is due to be granted. The trial court is directed to vacate its order compelling arbitration and staying the proceedings. WRIT GRANTED. ALMON, SHORES, and COOK, JJ., concur. *782 HOUSTON and LYONS, JJ., concur in the result. HOOPER, C.J., and SEE, J., dissent. MADDOX, J., recuses himself. LYONS, Justice (concurring in the result). I concur in the result because the defendants failed to demand arbitration until after a trial date had been set and a continuance had been granted. HOUSTON, J., concurs. HOOPER, Chief Justice (dissenting). I must respectfully dissent. The plaintiffs argue that they never agreed to the terms of the warranty booklet because they did not receive the booklet until after the closings. However, the warranty application they completed at the time of closing contains language that binds them to the terms of the warranty booklet. A clause in the application states: "By signing, the Purchaser acknowledges that he/she has read the RWC Limited Warranty Program booklet and has received a copy of this application along with any forms needed to comply with state or local governmental requirements." It does not matter whether the plaintiffs actually read the booklet, because they signed the application stating that they had read it. Therefore, I would hold that the plaintiffs are bound by the terms of the booklet. By executing the application, the plaintiffs acknowledged and accepted the conditions of the warranty. Their failure to read the booklet before acknowledging that they had read it should not be charged to the defendants, unless they intentionally prevented the plaintiffs from obtaining the booklet. The plaintiffs presented no evidence to suggest that was the case. The arbitration clause was one of the conditions of the warranty, and the plaintiffs are therefore bound to it. Finally, the application states: "Your validated warranty will consist of this Application for Warranty, the validated RWC Limited Warranty Program booklet and any endorsements added thereto." Therefore, the warranty consists of the application and the booklet, and the plaintiffs have agreed to comply with the conditions of the warranty. Another issue raised by the plaintiffs is whether Colonial Bank and Colonial Mortgage Company (collectively referred to hereinafter as "Colonial") can demand arbitration even though they did not sign the warranty application. The builder (Tri-Star) was specifically mentioned in the warranty application as being a party to the warranty. However, Colonial was not mentioned specifically in the application as being subject to the terms of the warranty booklet. Nevertheless, I would hold that Colonial may demand arbitration as a third-party beneficiary of the warranty contract. "A party claiming to be a third-party beneficiary of a contract must establish that the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to an incidental, benefit upon the third party." Weathers Auto Glass, Inc. v. Alfa Mutual Ins. Co., 619 So. 2d 1328, 1329 (Ala. 1993). The purpose of the warranty is to protect the homeowner, the builder, and the parties involved in the financing. The warranty gives assurance that the house (the security for the loan) will remain in repaired condition. The warranty is a condition for the loan. Thus, I believe that the parties to the warranty intended to benefit Colonial. Colonial also should be entitled to demand arbitration because of the relationship of the parties. The plaintiffs purchased the warranties, which were required by the Department of Veterans' Affairs Loan Guarantee Program and by Colonial. By requiring the warranty, Colonial was seeking to protect its interests. Although it was not a party to the warranty contract, Colonial is protected by it. The warranties would not exist but for the financing of the homes provided by Colonial. In other words, there would be nothing to protect had Colonial not financed the transaction. Colonial's investment in the mortgage would be at risk without the warranties. The plaintiffs did not pay cash for their houses. Instead, they contracted with Colonial for a loan. Thus, the interests of Colonial are so intertwined with the interests of the purchasers and the builder that Colonial is entitled to demand arbitration under the clause found in the warranty booklet. The *783 plaintiffs should arbitrate their claims against Colonial because their claims are founded on, and are intertwined with, the facts surrounding the underlying contract that contains the arbitration clause. See, e.g., Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753 (11th Cir.1993). I also believe that the defendants did not substantially invoke the litigation process before seeking to compel arbitration. The plaintiffs argue that 2½ years passed from the time the complaint was filed to the time arbitration was demanded. The plaintiffs do not give specific details about what steps the defendants took to indicate a desire to litigate. They say only that the defendants "were engaged in substantial litigation for 2 1/2 years." They make a reference to the case action summary sheet to support this statement. The case action summary sheet indicates several filings by both sides. However, these filings involve matters that do not reflect a desire on the part of the defendants to substantially invoke the litigation process. Very little discovery has taken place. The plaintiffs filed only one notice of deposition, and the defendants filed only one discovery request, which accompanied their answer. Therefore, a close analysis of the case action summary sheet shows that the defendants have not waived the right to demand arbitration. To establish a waiver, the plaintiffs must show that Tri-Star substantially participated in the litigation process and that the plaintiffs would be prejudiced if Tri-Star is now allowed to invoke the arbitration process. Terminix Int'l Co. Ltd. Partnership v. Jackson, 669 So. 2d 893 (Ala.1995). The plaintiffs cite Ex parte Smith, 706 So. 2d 704 (Ala. 1997), as authority for their waiver argument. However, we held in that case: "No rigid rule exists for determining what constitutes a waiver of the right to arbitration; this issue must be resolved on the particular facts of each case." 706 So. 2d at 705. In this present case, there has been limited activity in the trial court, and the plaintiffs have not shown that they would be prejudiced by the delay in demanding arbitration. In fact, the arbitration process may expedite the resolution of the dispute and thus mollify the effect of the 2½-year delay the plaintiffs have already experienced. With regard to the waiver issue, I cannot say the trial court abused its discretion by granting the motion to compel arbitration. Because of the extraordinary nature of the writ of mandamus and because of the federal presumption in favor of arbitration, I would hold that Judge Reese did not err in granting the defendants' motion to compel arbitration. I would deny the petition. SEE, J., concurs. [1] Steve Mitchell is the president and owner of Tri-Star, and Donna Deviney is a principal in the corporation. Both have been named individually in this action because of their involvement with the relevant transactions. [2] Colonial Bank was sued because it financed the construction loans, and Colonial Mortgage was sued because, upon completion of the homes, the plaintiffs obtained mortgage loans from it. [3] Pursuant to a requirement by the United States Department of Veterans' Affairs, which was to guarantee the mortgage loans, the plaintiffs agreed to 10-year warranty contracts with Residential Warranty Corporation.

July 17, 1998

d033b3cd-4122-4aad-b2af-ab9d79364e46

Griggs v. Bennett

710 So. 2d 411

1960453

Alabama

Alabama Supreme Court

710 So. 2d 411 (1998) Winston GRIGGS and Mary J. Gilmore v. Secretary of State Jim BENNETT. 1960453. Supreme Court of Alabama. February 13, 1998. Jack W. Smith, Dothan, for appellants. Bill Pryor, atty. gen., and John J. Park, Jr., deputy atty. gen., for appellee. SEE, Justice. Winston Griggs and Mary Gilmore filed this action to require Secretary of State Jim Bennett to place a newly created circuit court judgeship on the ballot for the 1996 primary and general elections. The trial court denied the relief, holding that § 6.14 of Amendment 328 of the Constitution of Alabama of 1901 required the initial appointee to the judgeship to seek election in 1998, not 1996. We affirm. In 1990, the Alabama Legislature created an additional circuit judgeship for the Twentieth Judicial Circuit, to be filled at the general election held in 1992. Act No. 90-539, Acts of Alabama 1990.[1] The Twentieth Judicial Circuit is defined to include Henry and Houston Counties. Ala.Code 1975, § 12-11-2(20). The judgeship could not be filled immediately because it and many other judgeships in Alabama were the subject of civil rights litigation. The United States Court of Appeals for the Eleventh Circuit upheld the atlarge method of filling these judgeships in *412 SCLC of Alabama v. Sessions, 56 F.3d 1281 (11th Cir.1995),[2] and the Supreme Court of the United States denied certiorari review on January 8,1996, 516 U.S. 1045, 116 S. Ct. 704, 133 L. Ed. 2d 660 (1996). On March 18, 1996, the Justice Department granted "preclearance" to the judgeship at issue in this case.[3] On March 26, 1996, the Alabama attorney general issued an opinion stating that under § 6.14 of Amendment 328 of the Constitution of Alabama of 1901 the Governor could, but was not required to, fill the vacancy in the Twentieth Judicial Circuit judgeship by appointment. 242 Ala. Op. Att'y Gen. 36 (1996). On March 26, the Governor appointed Larry Anderson to fill the vacancy. On April 26, 1996, Griggs and Gilmore filed an action seeking an order directing the secretary of state to place the judgeship on the ballot for the primaries in June 1996 and the general election in November 1996. On October 7, 1996, the secretary of state moved to dismiss the complaint, arguing that § 6.14 of Amendment 328 required that the judgeship be slated for election in 1998. On October 30, 1996, the trial court dismissed the action on the ground that § 6.14 of Amendment 328 required that the judgeship be slated for election in 1998, not 1996. The resolution of this appeal[4] depends on the operation of § 6.14 of Amendment 328. Section 6.14 provides: (Emphasis added.) Section 6.14 operates to fill vacancies in judicial offices. Although § 6.14 lists the usual causes of vacancy death, resignation, retirement, or removal of an incumbent judgeit has long been recognized that vacancies may occur for reasons other than the usual causes listed in an appointment provision. See McRae v. State ex rel. Hyche, 269 Ala. 241, 246, 112 So. 2d 487, 491 (1959) (stating that a vacancy created by *413 a cause not listed in the appointment statute was nonetheless a "vacancy" to be filled by appointment); see also State ex rel. Smith v. Deason, 264 Ala. 596, 88 So. 2d 674 (1956); State ex rel. Benefield v. Cottle, 254 Ala. 520, 49 So. 2d 224 (1950); Shepherd v. Sartain, 185 Ala. 439, 64 So. 57 (1913). In this case, because of the unforeseen length of the litigation and because of the preclearance process, the office could not be filled by the 1992 election and was unoccupied, or vacant,[5] on March 18, 1996, when preclearance was finally received. As a vacant judicial office, the office was subject to being filled in accordance with either the general rule or the proviso of § 6.14. The general rule of § 6.14 provides that after the Governor appoints a judge to fill a vacancy, that judge will serve until the next general election following his completion of one year in office. Judge Anderson completed one year in office on March 26, 1997. The next general election will be held in November 1998. Griggs and Gilmore argue that the judgeship at issue in this case is not governed by the general rule of § 6.14, but by the proviso applicable to vacancies occurring in Henry County judgeships. If the proviso is applicable, then, Griggs and Gilmore assert, the judgeship would be subject to election under § 158 of the Alabama Constitution of 1901.[6] Section 158 provides that the appointed judge will serve until the next general election following the expiration of six months after the vacancy occurred. Assuming the vacancy occurred on March 18, 1996, when the Justice Department precleared the judgeship, Griggs and Gilmore argue that the judgeship should have been subject to election in November 1996the next general election following the expiration of the six-month period after March 18, 1996. The viability of Griggs and Gilmore's contention depends on whether the general 12-months-from-appointment rule or the proviso's 6-months-from-vacancy rule applies to the judgeship. By its terms, the proviso applies to "vacancies occurring in ... Henry... county." The proviso does not apply to vacancies occurring in Houston County. Yet, the judgeship is for the Twentieth Judicial Circuit, which includes both Henry and Houston Counties. Thus, there is some doubt as to whether the scope of the proviso is broad enough to encompass judgeships not limited to Henry County. When a court is interpreting a proviso, the application of which is in doubt, general canons of construction require that the proviso be strictly construed. See Pace v. Armstrong World Indus., 578 So. 2d 281, 284 (Ala.1991); Norman J. Singer, Sutherland Statutory Construction, § 47.08 (5th ed.1991);[7] see also Alabama State Docks *414 Dep't v. Alabama Pub. Serv. Comm'n, 288 Ala. 716, 265 So. 2d 135 (1972). A strict construction of the proviso, which applies to Henry County but not Houston County, would exclude the Twentieth Judicial Circuit from the scope of the proviso's operation. So construed, the proviso would still have operative effect because it would govern vacancies occurring in judgeships limited to Henry County. See, e.g., Ala.Code 1975, § 12-12-1 (establishing a district court for each county), and § 12-13-1 (establishing a probate court for each county). Construction of the proviso to apply only to Henry County, and not to the entire Twentieth Judicial Circuit, is also supported by the fact that both Henry County and the Twentieth Judicial Circuit existed in December 1973 when the proviso, which refers only to Henry County, became law. See Act No. 614, § 1, Acts of Alabama 1919, p. 858 (creating the Twentieth Judicial Circuit, which included Houston and Henry Counties); Act No. 1020, § 1, Acts of Alabama 1973, p. 1556 (confirming, in an act approved on September 10, 1973, and effective on January 1, 1974, that Houston and Henry Counties remained in the Twentieth Judicial Circuit). Had the framers of § 6.14 intended to create an exception to the general 12-months-from-appointment rule for the Twentieth Judicial Circuit, as well as for Henry County, they could have done so by referring to the Twentieth Judicial Circuit in the proviso. They chose not to do so. See Alabama State Bar ex rel. Steiner v. Moore, 282 Ala. 562, 565, 213 So. 2d 404, 406 (1968) (applying the rule of expressio unius est exclusio alterius to hold that specific listing in Constitution of Alabama of 1901 of departments to try impeachments implied the exclusion of unlisted departments); Crest Constr. Corp. v. Shelby County Bd. of Educ., 612 So. 2d 425 (Ala. 1992) (holding in part that statutory provision of a specific remedy for unsuccessful bidders under the Competitive Bid Law precluded other remedies). Under the general rule of § 6.14, the new judgeship was subject to election at the next general election following the expiration of 12 months from March 26, 1996the November 1998 general election. Therefore, the judgment of the trial court holding that the new judgeship for the Twentieth Judicial Circuit was not subject to election in November 1996 is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, and KENNEDY, JJ., concur. COOK, J., dissents. COOK, Justice (dissenting). I respectfully dissent. As the majority opinion indicates, this judicial position was created by the legislature in 1990. Specific language in the legislation directs that the position "shall first be filled at the general election held in 1992." Preclearance for this judgeship was not granted by the United States Department of Justice until March 18, 1996, after which the judgeship could be filled. On March 26, 1996, the attorney general of Alabama issued an opinion stating that the Governor could, but was not required to, fill the vacancy by appointment. The Governor made his appointment on that same date, and Griggs and Gilmore subsequently filed this action seeking an order directing the secretary of state to place the judgeship on the ballot for the primaries in June 1996 and the general election in November 1996. This Court now affirms the trial court's dismissal of this action. I disagree with the resolution of this case, for two reasons. First, it is clear beyond question that the legislature intended this position to be filled by election; second, there was no vacancy that was subject to being filled by appointment by the Governor. The legislation creating this additional judgeship, Act No. 90-539, Ala. Acts 1990, provides, in pertinent part: *415 The judgeship could not be filled by election in 1992, as provided for in the legislation creating the position, because of federal litigation and the preclearance requirement of the Voting Rights Act. The failure to fill this judgeship in 1992, however, does not diminish or otherwise impact the specific legislative language declaring the legislature's intent that the judgeship "first be filled" by election. There is no ambiguity or condition requiring or allowing an interpretation that, because this judgeship could not be filled by election in 1992, it could be filled in a manner other than by election at a subsequent time. If the legislature had intended otherwise, it would have so provided. The majority opinion states that "[t]he resolution of this appeal depends on the operation of § 6.14 of Amendment 328." 710 So. 2d at 412. However, the language of Act No. 90-539 clearly makes § 6.14 inapplicable. The first sentence of § 6.14 of Amendment 328 to the Alabama Constitution provides: "The office of a judge shall be vacant if he dies, resigns, retires, or is removed." This section of the constitution further provides for the filling of "vacancies," with one method being appointment by the Governor. It is undisputed that Act No. 90-539 created a new judgeship. That judgeship had never been filled by a general election, as is required by the enacting legislation. None of the conditions specified in the first sentence of § 6.14 (death, resignation, retirement, or removal) had occurred; thus, the application of § 6.14 to this case was, in my opinion, error. Finally, while I think the interpretation of § 6.14 has no bearing on this case, I agree that this appeal does not present a moot question, because of its impact on future elections in Alabama. However, pursuant to the majority opinion, that impact includes the authority to disregard the clearly stated intention of the legislature. Therefore, I respectfully dissent. [1] Act 90-539, in relevant part, provides: "Section 1. There is hereby created an additional circuit judgeship for the twentieth judicial circuit, which shall be designated Circuit Judgeship Number 4. The judgeship shall first be filled at the general election held in 1992; and each six years thereafter, a judge shall be elected to fill such judgeship at the same time as the election for other circuit judges of the twentieth judicial circuit." [2] In SCLC of Alabama v. Sessions, black voters sued Alabama state officials, challenging the atlarge system for electing trial judges in Alabama; the challenge was based on the Voting Rights Act. This challenge failed. SCLC, 56 F.3d at 1297. [3] Under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c, a covered state, such as Alabama, must submit proposed changes to election procedures, including the creation of new offices to be filled by election, to the United States Department of Justice for "preclearance" or to the United States District Court for the District of Columbia for a declaratory judgment to ensure compliance with the Voting Rights Act. [4] We note that under the principles enunciated in Moore v. Ogilvie, 394 U.S. 814, 816, 89 S. Ct. 1493, 1494-95, 23 L. Ed. 2d 1 (1969), the interpretation of § 6.14 of Amendment 328 for this case is not moot, because the interpretation could impact future elections. In Moore, 394 U.S. at 816, 89 S. Ct. at 1494-95, the Supreme Court of the United States held that a challenge to an Illinois election statute was not moot after the election, because the issue was capable of repetition, yet evading review. Accord Richardson v. Ramirez, 418 U.S. 24, 35, 94 S. Ct. 2655, 2661-62, 41 L. Ed. 2d 551 (1974) (holding that an appeal concerning a challenge to an election statute was not moot even after the election because the issue was capable of repetition, yet evading review). In State ex rel. Kernells v. Ezell, 291 Ala. 440, 444, 282 So. 2d 266, 270 (1973), this Court expressly adopted the "capable of repetition, yet evading review" standard of Moore, supra, to hold that an action to allow inspection of a petition supporting a liquor referendum was not moot even after the election had been held. [5] We note that the term "vacancy" has been defined as follows: "The word `vacancy,' when applied to official positions, means, in its ordinary and popular sense, that an office is unoccupied, and that there is no incumbent who has a lawful right to continue therein until the happening of a future event, though the word is sometimes used with reference to an office temporarily filled." Black's Law Dictionary 1548 (6th ed.1990). Accord Ham v. State ex rel. Blackmon, 162 Ala. 117, 120, 49 So. 1032, 1033 (1909) (Mayfield, J., dissenting) (stating that the term "vacant" commonly means that an office is "empty, unoccupied, without an incumbent") (citations omitted). [6] Section 158 of the Constitution of Alabama of 1901 provides: "Vacancies in the office of any of the justices of the supreme court or judges who hold office by election, or chancellors of this state, shall be filled by appointment by the governor. The appointee shall hold his office until the next general election for any state officer held at least six months after the vacancy occurs, and until his successor is elected and qualified; the successor chosen at such election shall hold office for the unexpired term and until his successor is elected and qualified." (Emphasis added.) [7] Section 47.08 of Sutherland Statutory Construction states in pertinent part: "Provisos serve the purpose of restricting the operative effect of statutory language to less than what its scope of operation would be otherwise. They are construed using the same general criteria of decision applied to other kinds of provisions. However, where there is doubt concerning the extent of the application of the proviso on the scope of another provision's operation, the proviso is strictly construed. The reason for this is that the legislative purpose set forth in the purview of an enactment is assumed to express the legislative policy, and only those subjects expressly exempted by the proviso should be freed from the operation of the statute." (Footnotes omitted.)

February 13, 1998

0d8a8d61-3d9a-4867-94cf-165e159e3455

Ex Parte Davis

718 So. 2d 1166

1961441

Alabama

Alabama Supreme Court

718 So. 2d 1166 (1998) Ex parte Jimmy DAVIS, Jr. (In re Jimmy Davis, Jr. v. State). 1961441. Supreme Court of Alabama. February 13, 1998. Rehearing Denied August 28, 1998. *1168 Ellen L. Wiesner, Montgomery, for petitioner. Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent. BUTTS, Justice. Jimmy Davis, Jr., was indicted for the capital offense of murder committed during a robbery in the first degree, or during an attempt thereof. Ala.Code 1975, § 13A-5-40(a)(2). The jury found him guilty and recommended, by a vote of 11-1, that the trial court sentence him to death. The trial court accepted this recommendation. The Alabama Court of Criminal Appeals remanded the case twice, once, on October 20, 1995, for the trial court to enter a formal sentencing order, Davis v. State, 718 So. 2d 1148 (Ala.Cr. App.1995), and again on July 3, 1996, for the trial court to make additional findings of fact *1169 relating to the prosecution's reasons for peremptorily striking black persons from the jury venire. Upon the trial court's return to the second remand, the Court of Criminal Appeals unanimously affirmed Davis's conviction and sentence, by an opinion issued March 21, 1997. In his petition for certiorari review, Davis again raises the issues that were addressed by the Court of Criminal Appeals, as well as a number of issues that were not presented to, or that were not addressed by, that court. We have thoroughly reviewed his arguments, as presented both in his brief and in oral argument, and, pursuant to Rule 39(k), Ala. R.App. P., we have also searched the record of the guilt and sentencing phases of his trial for any plain error or defect that might have adversely affected his substantive rights. Although we have found no reversible error, we will discuss four of the issues presented. We begin by noting these facts, as set out by the Court of Criminal Appeals in its opinion of March 21, 1997: 718 So. 2d at 1155. Davis did not give a confession to the police and, as the foregoing statement of facts indicates, much of the evidence against him consisted of testimony from Terrance Phillips, Alphonso Phillips, Willie James Smith, and other acquaintances. Davis did not testify at trial, and his primary trial strategy was to attempt to discredit the testimony of the state's witnesses through cross-examination and arguments to the jury and the trial court. Davis argues that the only evidence directly linking him with the robbery and murder of Hazle was the testimony of Alphonso Phillips, Terrance Phillips, and Willie Smith. Based upon the evidence of Alphonso Phillips's participation in the robbery that ended in the murder of Jimmy Hazle, the trial court held that, as a matter of law, Alphonso Phillips was an accomplice to the crimes that Davis was charged with. Davis relies on § 12-21-222, Ala.Code 1975: Davis argues that Terrance Phillips and Willie Smith were accomplices to the crimes he was charged with, just as Alphonso Phillips was, and that their testimony, therefore, could not properly be used to corroborate Alphonso Phillips's testimony. Knowles v. State, 44 Ala.App. 163, 204 So. 2d 506 (1967). He contends that, beyond the "accomplice" testimony of Terrance Phillips and Willie Smith, there was no evidence to link him with the robbery and murder of Johnny Hazle; thus, he concludes, his sentence and conviction should be overturned. Before § 12-21-222 is invoked, it must clearly appear that the witness is an accomplice, and it is the defendant's burden to prove that a witness is an accomplice, unless the evidence shows without dispute that the witness is an accomplice. Steele v. State, 512 So. 2d 142 (Ala.Cr.App.1987). The evidence clearly established that Alphonso Phillips acted as Davis's accomplice in the robbery that ended in the murder of Johnny Hazle, and the trial court thus properly held that, as a matter of law, Alphonso Phillips was Davis's accomplice. Davis contends that the trial court should likewise have held that, as a matter of law, Terrance Phillips and Willie Smith were also Davis's accomplices, so that their testimony against him would have to be corroborated. Davis emphasizes that Terrance Phillips was indicted for the same offense as Davis was; however, the mere fact that a witness is indicted for the same crime as the defendant does not alone mark the witness as an accomplice with the defendant in the commission of the crime. Steele v. State, supra. The evidence shows that, on the day of the crime, Terrance Phillips went to a nearby community center after school, that Davis and Alphonso Phillips were already there, and that they already had a plan to rob Direct Oil. The evidence shows that the two informed Terrance Phillips of the plan, and that he walked with them in the direction of Direct Oil. There is no evidence that Terrance Phillips participated in the formulation of the plan, or that he helped execute it; rather, it is clear that Terrance Phillips separated himself from Davis and Alphonso Phillips before the commission of the crime. These facts are sufficient to present a jury question as to whether Terrance Phillips was *1171 an accomplice in Davis's crime, and to support a finding by the jury that Terrance Phillips was not an accomplice. As to Willie Smith, the evidence merely shows that on the morning of March 17, 1993, Davis came to the motel room where Smith and a friend were lodging and that Smith "handled" the gun that Davis used later that day in the murder of Johnny Hazle. No evidence indicates that Smith had any prior knowledge that Davis planned to used the gun in the commission of a crime, or that Smith otherwise participated in the robbery-murder. The only evidence of any complicity on Smith's part was that, after Davis had robbed Direct Oil and murdered Johnny Hazle, Davis discussed this crime with Smith. We agree that this was not a sufficient basis upon which the trial court could have determined, as a matter of law, that Smith was Davis's accomplice in the crime; on the contrary, the evidence would support a jury's finding of fact that Smith was not Davis's accomplice. "`The test for determining whether there is sufficient corroboration of the testimony of an accomplice consists of eliminating the testimony given by the accomplice and examining the remaining evidence to determine if there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense.'" Ex parte Scott, 460 So. 2d 1371 (Ala.1984) (quoting Ware v. State, 409 So. 2d 886, 891 (Ala.Cr.App.1981)). "Such corroborative evidence does not have to be very strong, or even sufficient to support a conviction, but merely must logically tend to link the accused with the offense." Scott, at 1373. There was abundant evidence, through the testimony of Terrance Phillips and Willie Smith, to connect Davis with the robbery of Direct Oil and the murder of Johnny Hazle. Moreover, even if the jury considered Terrance Phillips and Willie Smith to be Davis's accomplices, and thus followed the trial court's instructions that their testimony would likewise require corroboration, the record provides such corroboration. We therefore find no merit in Davis's argument as to this issue. Davis next argues that, during voir dire examination of the venire, the trial court erred to reversal in failing to strike for cause certain members of the venire who, according to Davis, gave responses indicating a bias against him. As Davis points out, it is fundamental that jurors who display prejudice or bias against a defendant should be removed for cause from the petit jury panel. Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988); State v. Freeman, 605 So. 2d 1258 (Ala.Cr.App.1992). He argues that the trial court should have struck these jurors for cause from the venire, and that its failure to do so forced his defense counsel to use valuable peremptory strikes to remove them from the venire. Davis concludes that this amounts to a denial of his right to a fair and impartial jury and that he is therefore entitled to a new trial. To justify a challenge for cause, there must be a proper statutory ground or "`some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court.'" Clark v. State, 621 So. 2d 309, 321 (Ala.Cr.App.1992) (quoting Nettles v. State, 435 So. 2d 146, 149 (Ala.Cr.App.1983)). This Court has held that "once a juror indicates initially that he or she is biased or prejudiced or has deep-seated impressions" about a case, the juror should be removed for cause. Knop v. McCain, 561 So. 2d 229, 234 (Ala.1989). The test to be applied in determining whether a juror should be removed for cause is whether the juror can eliminate the influence of his previous feelings and render a verdict according to the evidence and the law. Ex parte Taylor, 666 So. 2d 73, 82 (Ala.1995). A juror "need not be excused merely because [the juror] knows something of the case to be tried or because [the juror] has formed some opinions regarding it." Kinder v. State, 515 So. 2d 55, 61 (Ala.Cr. App.1986). Even in cases where a potential juror has expressed some preconceived opinion as to the guilt of the accused, the juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based upon the evidence in the case. Kinder, at 60-61. In order to justify disqualification, a juror "`must have more than a bias, or fixed *1172 opinion, as to the guilt or innocence of the accused'"; "`[s]uch opinion must be so fixed... that it would bias the verdict a juror would be required to render.'" Oryang v. State, 642 So. 2d 979, 987 (Ala.Cr.App.1993) (quoting Siebert v. State, 562 So. 2d 586, 595 (Ala.Cr.App.1989)). Davis first argues that juror no. 96 should have been struck for cause because, he claims, the juror demonstrated an inability to apply the presumption of innocence or to require the state to carry its burden of proof. The following occurred during voir dire: Davis argues that this exchange conclusively proves that juror no. 96 exhibited a clear inability to apply the presumption of innocence that he was entitled to at trial. However, juror no. 96 later clarified her statements in the following exchange during voir dire: (Emphasis added.) Davis's counsel moved to strike juror no. 96, and the trial court denied his motion. After reviewing the voir dire examination of juror no. 96 in its entirety, we cannot conclude that the trial court abused its discretion in denying the challenge for cause. The record shows that, although the juror initially expressed a desire to "hear both sides of the story," she also expressed a willingness and ability to put this desire aside in order to follow the trial court's instructions as to the State's burden of proof. In view of this, and in deference to the fact that the trial court had the opportunity to observe the juror's manner of speech, demeanor, body language, and tone and appearance during these responses, we cannot hold that the trial court's ruling in regard to this juror was an abuse of discretion. Davis next argues that, during voir dire, juror no. 24 indicated a strong affiliation with the victim's family and that she therefore should have been struck for cause. Davis did not challenge this juror for cause; thus, we need only determine whether the trial court committed plain error in failing to strike juror no. 24 sua sponte. "`Plain error' arises only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings." Ex parte Bankhead, 585 So. 2d 112, 117 (Ala.1991). *1173 During voir dire, juror no. 24 told the trial court that she knew the victim's family from church and that she did not want to sit on the jury because she knew too many of the victim's family members. Juror no. 24 stated, in pertinent part: However, the trial court questioned juror no. 24 further, as follows: (Emphasis added.) We agree with the State that the voir dire of juror no. 24 does not reveal an absolute bias or favor on her part; on the contrary, she was forthright in expressing both her reservations about serving on the jury and her belief that she could overcome those reservations and properly render a decision in the case, based upon the evidence and the law. In view of this, we find no plain error in the trial court's failure to strike this juror sua sponte. Davis next argues that during closing arguments the prosecution made improper remarks that violated his rights to a fair trial, due process, and a reliable verdict. Davis first contends that the prosecution improperly commented upon his decision not to testify at trial and that, under Alabama law, this error, taken alone, mandates a reversal of his conviction. Davis points out that "[i]t is a basic principle of law that once a defendant chooses not to testify at his trial the exercise of that choice is not subject to comment by the prosecution." Wherry v. State, 402 So. 2d 1130, 1133 (Ala.Cr.App.1981). "In determining if a prosecutorial remark impairs the integrity of the defendant's right not to testify the test is whether the defense can show that the remark[, given the context in which it was made,] was intended to comment on the defendant's silence or was of such character that a jury would naturally and necessarily construe it as a comment on the defendant's silence." United States v. LeQuire, 943 F.2d 1554, 1565 (11th Cir.1991), cert. denied, 505 U.S. 1223, 112 S. Ct. 3037, 120 L. Ed. 2d 906 (1992). Additionally, we note that at trial Davis did not object to the comments he complains of here, and, therefore, that his argument must be reviewed for plain error; that is, for "those errors that *1174 `seriously affect the fairness, integrity or public reputation of judicial proceedings.'" Kuenzel v. State, 577 So. 2d 474 (Ala.Cr.App. 1990), affirmed, Ex parte Kuenzel, 577 So. 2d 531, cert. denied, Kuenzel v. Alabama, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991) (quoting United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985)). Davis argues that during closing argument the prosecutor repeatedly drew the jury's attention to the fact that Davis did not testify. According to Davis, the prosecutor reminded the jury that each of the other persons who participated in the crime had testified and that only Davis could "tell a different story." To support this argument, Davis points to the following excerpt from the prosecutor's argument: (Emphasis added.) Davis argues that these comments served only to focus the jury's attention on the fact that he did not personally refute the testimony of the other witnesses, and that they implied to the jury that he would have done so if he was innocent. In closing argument, Davis's counsel attacked the credibility and character of the witnesses who knew Davis, suggesting that Alphonso Phillips and the other witnesses against Davis could gain from lying on the stand, and thus conspired against Davis by testifying against him. The State points out that, in its rebuttal argument, it repeatedly offered examples of how, if the witnesses were indeed conspiring to falsely testify against Davis, they could have done so to their own greater benefit by telling a different story. After reviewing the State's comments in their full context, we cannot hold that they would naturally and necessarily be construed as an attack on Davis's decision not to testify on his own behalf; rather, they could well be construed as a form of cohesive rebuttal to defense counsel's theory that the witnesses against Davis were lying in order to rid themselves of involvement in the crime. Davis next argues that in his closing argument the prosecutor made comments insinuating that Davis had been involved in a gang before he was arrested for this crime. Davis points out that the evidence in this case did not suggest that Hazle's murder was connected to gang activity, and he argues that the prosecutor nevertheless used his closing argument to inject irrelevant implications of gang activity into the trial, in violation of the trial court's ruling on a motion in limine to exclude any evidence of alleged gang activity on Davis's part. *1175 Before trial, counsel for Davis made a motion in limine to exclude any evidence of gang activity on Davis's part. The following colloquy occurred: No evidence at trial established, or even implied, that Davis had any involvement in gangs. However, Davis argues that the prosecutor circumvented the motion in limine by making remarks during closing argument that, he says, were tantamount to accusations that Davis was a gang member and that were so highly prejudicial as to mandate the reversal of his conviction. During closing arguments, defense counsel argued primarily that the testimony of Willie Smith, Alphonso Phillips, Terrance Phillips, and others was not reliable. In response to these arguments, the prosecutor stated, in pertinent part: Davis concedes that in its closing argument the State did not explicitly accuse him of being a gang member; however, he argues that it is "common knowledge" that bandannas may be used as gang paraphernalia and that the prosecution's reference to a bandanna as a "badge of honor" so strongly invoked the imagery of gang membership as to amount to an outright accusation that the defendant was a gang member. Davis relies upon Haralson v. State, 227 Ga.App. 118, 488 S.E.2d 497 (1997), wherein the Georgia Court of Appeals affirmed the granting of a mistrial on the ground that the prosecutor had impermissibly placed the defendant's character into issue by eliciting testimony that the defendant was a gang member. Defense counsel challenged the testimony of a codefendant who had not immediately testified against the defendant; the prosecution then elicited testimony to show that the delay was due to the codefendant's fear of retribution from the defendant's fellow gang members. The defense objected to this testimony, arguing that it put the defendant's character into issue; the court instructed the State not to "go into anything about gangs." 227 Ga.App. at 119, 488 S.E.2d at 498. The prosecutor then pointed out to the court that the defendants were alleged to have been wearing bandannas on the night of the murder, and asked the *1176 Court's permission to examine the witness concerning the significance of colors of bandannas and as to whether the defendant had worn a certain bandanna on the night of the murder. The trial court ruled that the State could ask whether the defendant had worn a bandanna, for the purpose of establishing identification, but could not ask the witness why the defendant might have been wearing the bandanna. 227 Ga.App. at 118, 488 S.E.2d at 498. The prosecution in Haralson subsequently asked the witness a series of questions relating to the defendant's wearing a bandanna, including questions as to whether that witness and other witnesses were members of a gang; whether they had bandannas; what colors the bandannas were; and what color bandanna the defendant wore on the night of the murder. After the witness stated that all of the codefendants were gang members, that they wore blue or black bandannas, and that the defendant also wore a blue bandanna, the defendant moved for a mistrial. Id. In granting the mistrial, the trial court held that the prosecutor's questions had gone beyond the scope allowed by its earlier ruling because, it ruled, the order in which the questions were posed caused them to call for character evidence. The trial court denied the defendant's subsequent motion to bar a retrial, holding that there was no indication that the prosecutor had intended to cause a mistrial by her line of questioning. The Georgia Court of Appeals held that the trial court had properly declared the mistrial, but that the evidence supported the trial court's denial of the motion to bar retrial. 227 Ga.App. at 120, 488 S.E.2d at 499. Davis argues that here, as in Haralson, the prosecutor's mention of "bandannas" during his closing remarks was synonymous with reference to gang involvement. Davis points out that Alabama courts have considered evidence of a defendant's association with a "gang" as functionally equivalent to evidence of a "collateral criminal act," so that such evidence "is presumptively prejudicial and... is admissible only when [it is] probative and [only] under certain limited exceptions." Thomas v. State, 625 So. 2d 1149, 1153 (Ala. Cr.App.1992), reversed on other grounds, Ex parte Thomas, 625 So. 2d 1156 (Ala.1993). In Thomas, the defendant was convicted of murder, based upon his alleged participation in a "drive-by shooting." Although drive-by shootings are often associated with gang activity,[1] there was no evidence that the shooting at issue in Thomas was gang-related. However, the prosecution intentionally elicited testimony from a state's witness indicating that the defendant was a member of a certain gang and that he was in the company of other gang members when the shooting took place. The defendant objected, arguing that the testimony was irrelevant and highly prejudicial, particularly in view of the common association of "drive-by shootings" with gang activity. The trial court overruled the defendant's objection to this testimony; however, the trial court later gave the jury a curative instruction, even after the defendant had refused the instruction. The Court of Criminal Appeals agreed that evidence of gang involvement may be considered evidence of a collateral crime and that evidence of the defendant's alleged gang involvement was irrelevant. Thomas, 625 So. 2d at 1150. However, because the defendant refused the trial court's offer of a curative instruction, the Court of Criminal Appeals held that the error did not warrant reversal. 625 So. 2d at 1154. This Court reversed the judgment of the Court of Criminal Appeals in Thomas, holding that, under the particular circumstances of the case, the trial court's giving of a curative instruction would not necessarily have been adequate to counteract the prejudice caused by the testimony concerning the defendant's alleged gang involvement. This Court stated, "In light of the massive media coverage of gang violence in contemporary society, the assertion that a defendant's membership in a gang ... will not prejudice him in the eyes of a jury is simply untenable." Ex parte Thomas, 625 So. 2d at 1157. This Court also pointed out that "the jury had already heard references to gangs at least four times before it retired for deliberations," 625 So. 2d at 1158, and that the trial court's curative instructions, coming after it *1177 had overruled the defendant's objection to the admission of the testimony, could have confused the jurors or reinforced in their minds the inadmissible evidence. 625 So. 2d at 1158. We recognize that admitting evidence of a defendant's association with an ill-received organization or group may constitute reversible error, Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992), and that mentioning gang activity in particular the prosecutor's mentioning it in the trial of a case that is itself not gang-related, and to which gang-related activity has no connection may invite a reversal. Walker v. State, 631 So. 2d 294 (Ala.Cr.App.1993). However, we do not agree with Davis that the prosecutor's mention of "bandannas" as a "badge of honor" was equivalent to an improper reference to gang activity, such as was present in both Haralson and Thomas. In Haralson, the detailed evidence as to the defendant's wearing a bandanna and the significance of its color unequivocally linked the defendant with gang involvement. Likewise, in Thomas, the evidence directly established that the defendant was associated with a gang and it was particularly prejudicial because the crime in question was of a type commonly associated with gang activity. In contrast, in this present case, the prosecutor's reference to "bandannas" was not even made in regard to Davis; it certainly did not directly link him to gang involvement. The prosecutor made this reference in the context of responding to defense counsel's argument that the State's witnesses were "liars"; the prosecutor admitted that the State's witnesses were not "pillar[s] of the community" but were instead from "the streets where young men ... carry the badge of honor with bandannas." Even in view of "the massive media coverage of gang violence in contemporary society," Ex parte Thomas, 625 So. 2d at 1157, we find no basis for holding that the prosecutor's reference to bandannas was an overt, or even a veiled, reference to a gang affiliation. Moreover, if the reference to bandannas carries any generally negative connotation, it necessarily reflects upon the State's own witnesses, not upon the defendant. We therefore hold that the prosecutor's remarks do not warrant a reversal of Davis's conviction. Davis next argues that during the sentencing phase of the trial the court improperly considered evidence of his prior juvenile offenses in determining whether he should receive the death penalty. Davis also argues that a separate reference to gang affiliation, made in the presentencing report rather than in the prosecutor's closing arguments, was highly prejudicial and was improperly considered by the trial court in its sentencing order. Before the sentencing hearing, defense counsel objected to a portion of the presentencing report that refers to allegations that Davis was a member of a gang. That objection was as follows: Davis argues that this portion of the presentencing report was irrelevant on the question of the existence of the aggravating circumstances allowed into evidence under Ala. Code 1975, § 13A-5-49, and that it did not serve to rebut any evidence offered in mitigation. He also argues that the trial court's considering his juvenile adjudications was, in itself, reversible error, even if the court did not consider the allegations of Davis's gang involvement to be part of his history of juvenile delinquency. Davis points out that "juvenile adjudications are not convictions and are not criminal in nature" and thus cannot be considered as prior criminal activity under the Alabama capital sentencing scheme. Freeman v. State, 555 So. 2d 196, 212 (Ala.Cr.App.1988), affirmed, Ex parte Freeman, 555 So. 2d 215 (Ala.1989), cert. denied, Freeman v. Alabama, 496 U.S. 912, 110 S. Ct. 2604, 110 L. Ed. 2d 284 (1990). He theorizes that is it "highly likely" that the trial court considered his prior juvenile adjudications as proof of *1178 gang involvement, thereby exacerbating the error, and concludes that the trial court's sentencing order was thus based upon inadmissible and highly prejudicial evidence, which mandates that we reverse his sentence and order a new sentencing hearing. We find nothing in the record to support Davis's contention that the trial court considered the allegations of his gang involvement when it determined his sentence and drafted its sentencing order. The presentencing report contained evidence of Davis's prior adjudications of delinquency based on theft, receiving stolen property, and trespass. However, the report also showed that, since 1987, when he became an adult, Davis had been convicted on misdemeanor counts alleging assault, trespass, theft, and resisting arrest and also on one felony count alleging robbery in the third degree. In its order sentencing Davis to death, the trial court cited only two aggravating circumstances: (1) that Davis murdered Johnny Hazle during a robbery attempt and (2) that Davis had a prior felony conviction for third-degree robbery. In considering the "mitigating circumstance" set out in § 13A-5-51(1) that "[t]he defendant has no significant history of prior criminal activity" the trial court specifically cited Davis's prior juvenile adjudications in negation of that factor. While we find no merit in Davis's argument that in determining his sentence the trial court considered the suggestion that he had been involved in gang activity, we agree that the trial court erred in considering Davis's juvenile adjudications. The juvenile adjudications could not properly be used to negate the mitigating circumstance of "no significant history of prior criminal activity." However, it is clear that, without regard to Davis's juvenile adjudications, the evidence of Davis's convictions of various misdemeanors and, most important, his conviction of robbery, would preclude the trial court from finding that he had "no significant [criminal] history." Because the properly considered evidence of Davis's criminal convictions would negate this mitigating factor, we conclude that the trial court's error in considering Davis's juvenile adjudications was harmless. This Court has reviewed the record and the briefs filed in this Court; it has considered the arguments made before this Court on oral argument; and it has examined the determinations of the Court of Criminal Appeals in regard to all the issues raised by Davis. Moreover, in compliance with Rule 39(k), Ala. R.App. P., we have searched the record of Davis's trial, both the guilt phase and the sentencing phase, for any plain error or defect that may have "adversely affected his substantial rights." We find no error, plain or otherwise, that requires us to reverse the Court of Criminal Appeals' affirmance of Davis's conviction and sentence. The judgment of the Court of Criminal Appeals is therefore affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, COOK, and SEE, JJ., concur. [1] See Thomas v. State, 625 So. 2d 1149 n. 3 (Ala.Cr.App.1992).

February 13, 1998

4a2bc483-b261-49e1-b5a4-f141fc4f3563

City of Orange Beach v. Duggan

788 So. 2d 146

1990682

Alabama

Alabama Supreme Court

788 So. 2d 146 (2000) CITY OF ORANGE BEACH et al. v. Richard DUGGAN. 1990682. Supreme Court of Alabama. December 15, 2000. *147 Lawrence M. Wettermark and Andrew J. Rutens of Galloway, Smith, Wettermark & Everest, Mobile, for appellants. Oliver J. Latour, Jr., Foley, for appellee. T. Randall Lyons and Stacy A. Linn of Nix, Holtsford, Gilliland, Lyons & Higgins, P.C., Montgomery, for amicus curiae Alabama Municipal Insurance Corporation. SEE, Justice. The defendantsthe City of Orange Beach ("Orange Beach"); the Orange Beach Personnel Board (the "Board"); Orange Beach's director of personnel; and the chairman and four members of the Boardpetitioned this Court, pursuant to Rule 5, Ala. R.App. P., for permission to appeal from an interlocutory order of the Baldwin Circuit Court. The interlocutory order denied the defendants' motion for a summary judgment on the plaintiff Richard Duggan's claim that he was deprived of procedural due process, in violation of the Constitution of Alabama of 1901. This case involves the termination of Duggan's employment as a police officer with Orange Beach. We permitted the appeal. We reverse and remand. For the limited purpose of this appeal, we consider as correct the factual statements in the trial court's order denying the defendants' motion for summary judgment.[1] On April 29, 1997, Duggan, while off duty, was driving in his automobile when he heard on his police radio that the police were looking for a DUI suspect. Shortly thereafter, Duggan was forced to swerve out of the path of an oncoming car that matched the description of the DUI suspect's car. Duggan began pursuit, and he, Sgt. Lyle Dodd, and another Orange Beach police officer ultimately stopped the suspect's car. During the arrest, animal *148 control officer Sean Lacey and Sgt. Gina Long reported to the scene to assist the arresting officers. Officer Lacey said he saw Duggan take a $100 bill out of the suspect's purse. Officer Lacey notified Sgt. Long, who ordered Duggan to empty his pockets. Duggan refused. Both Sgt. Dodd and Officer Lacey said they saw Duggan then take money from his pocket and drop it into the suspect's car. Police Chief Robert Vinson was called to the scene; he ordered all the officers present to submit written statements. Chief Vinson then ordered Maj. Gerald Poe, the officer in charge of internal police investigations for Orange Beach, to investigate. On May 9, 1997, at the conclusion of his investigation, Maj. Poe reported to Chief Vinson that his findings substantiated the allegations made against Duggan and he recommended that disciplinary action should be taken. That same day, Maj. Poe served Duggan with a notice of possible major disciplinary action and a copy of the written internal investigation notification. The internal investigation notification stated the charges against Duggan and stated the date set for a pretermination hearing. On May 15, 1997, Duggan was afforded a pretermination hearing before Chief Vinson. At no time during this hearing did Duggan or his attorney object to Chief Vinson's conducting the hearing. Duggan was notified later that day of Chief Vinson's decision to terminate him. Duggan appealed to the Board on May 20, 1997. On June 10, 1997, the Board held a prehearing conference, at which scheduling issues and witness information were discussed. At the end of the conference, the director of personnel for Orange Beach provided Duggan a notebook containing copies of the written statements of Duggan, Sgt. Dodd, Officer Lacey, and Sgt. Long; a forensic report; a radio log; the internal investigation report; a "money trail"; and a property receipt and invoice. Copies of the notebook were also provided to Chief Vinson and to members of the Board. Duggan contends that he did not know that this notebook was being provided to the Board members and that supplying this information to the Board before the hearing violated his procedural-due-process rights. On June 23, 1997, the Board held its hearing on Duggan's appeal. For the first time, Duggan contended that Chief Vinson was biased against him and objected to the Board's being provided the notebooks. He requested that the Board members recuse themselves and that a new Board be constituted. The Board denied the objection, and it upheld Duggan's termination. Duggan sued in the Circuit Court of Baldwin County, seeking damages under 42 U.S.C. § 1983 for alleged violations of due process under the United States Constitution and seeking a common-law appeal and certiorari review of the termination order. The defendants removed the case to the United States District Court for the Southern District of Alabama and moved there for a summary judgment as to the federal-law procedural-due-process claims and further requested the federal court to conduct the certiorari review based upon the written transcript of the Board hearing. The federal court entered a summary judgment in favor of the defendants as to all of the § 1983 claims and remanded the case for the Circuit Court of Baldwin County to decide all state-law issues. The federal court relied on McKinney v. Pate, 20 F.3d 1550, 1564 (11th Cir.1994), wherein the United States Court of Appeals for the Eleventh Circuit held that in an employment-termination case, "the presence of a satisfactory state [postdeprivation] remedy" through the appellate process provides all the "procedural due process" that is required, and, thus, that having a biased *149 decision-maker in a pretermination hearing does not violate the Due Process Clause of the Constitution of the United States. On remand of the case to the circuit court, Duggan amended his complaint to add causes of action based on alleged violations of due process under the Alabama Constitution of 1901. The defendants moved for a summary judgment on Duggan's state-law claims. The circuit court denied the defendants' motion for summary judgment as to the state-law due-process claims, relying on Stallworth v. City of Evergreen, 680 So. 2d 229 (Ala. 1996). In Stallworth, this Court rejected the reasoning in McKinney and held that where a pretermination hearing officer is biased against a terminated governmental employee, the employee is denied federal procedural due process. Id. at 235. In its order denying the defendants' motion for summary judgment, the trial court stated that it would "assume that [this Court] would apply the same [Stallworth] rationale to the Alabama Due Process Clause as was applied to the federal clause." The trial court certified its order for permissive appeal to this Court, under Rule 5, Ala. R.App. P. In its statement of the summary-judgment issues, the trial court stated that Duggan alleges due-process violations "under the Constitution of the State of Alabama, Article I, Section 6."[2] We granted the defendants' petition for permission to appeal the interlocutory order; and we now reverse the circuit court's order denying the defendants' motion for a summary judgment. When reviewing a ruling on a motion for a summary judgment, this Court applies the same standard that the trial court used "in determining whether the evidence before the court made out a genuine issue of material fact." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988). When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). In reviewing a ruling on a motion for a summary judgment, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Renfro v. Georgia Power Co., 604 So. 2d 408, 411 (Ala.1992). In support of their motion for summary judgment, the defendants argue that this Court's holding in Stallworth, 680 So. 2d at 235, is contrary to the federal caselaw interpretation of the federal Due Process Clause and should be overruled. They argue that this Court should not develop a separate body of decisional law holding that the procedural due-process protections of the Constitution of Alabama of 1901 are different from those afforded under the Fourteenth Amendment to the *150 United States Constitution. Therefore, they argue, this Court should adopt the holding in McKinney, 20 F.3d 1550, and overrule our prior holding in Stallworth, 680 So. 2d 229. This case is distinguishable from Stallworth. In Stallworth, the plaintiff government employee alleged that his due-process rights guaranteed by the United States Constitution and the Alabama Constitution had been violated because a biased decision-maker had participated in his pretermination hearing. 680 So. 2d at 232. At the pretermination hearing, the government employee objected to the pretermination officer. In this case, Duggan waited to object until he had appealed to the Board. Also, in Stallworth the pretermination hearing officer was called as a witness at the pretermination hearing against the government employee and at the subsequent appellate hearing. In this case, Duggan's only allegations of bias against Chief Vinson are that he helped prepare the charges against Duggan, ordered the investigation, and helped one of the officers draft a statement against Duggan. Chief Vinson made no allegations himself, and he was not a witness against Duggan. Most important, in Stallworth this Court declined to follow the holding of the Eleventh Circuit in McKinney, 20 F.3d at 1564that a biased decision-maker's participation in a pretermination hearing does not violate the Due Process Clause of the Constitution of the United States. Instead, this Court held that federal due-process law requires that an employment pretermination hearing be conducted by an unbiased and impartial decision-maker. Stallworth, 680 So. 2d at 235. In this case, the United States district court, relying on McKinney, has already held, in a final and unappealed judgment, that bias on the part of the pretermination decision-maker, Chief Vinson, was not a violation of federal due-process requirements. The single issue before this Court is whether permitting a biased decision-maker to participate in a pretermination hearing for a government employee violates the procedural due-process rights of that employee guaranteed under the Constitution of Alabama of 1901. The defendants argue that Duggan's procedural-due-process rights under Art. I, § 13, Ala. Const.1901, were not violated by a biased decision-maker conducting Duggan's pretermination hearing. They assert that Ala.Code 1975, § 11-43-160, requires that the pretermination decision to remove an officer of a city or town be made by the appointing officer. Therefore, they argue, requiring an unbiased pretermination hearing officer would make it impossible for them to follow this statutory mandate. The chief of police is the appointing officer in this case and, therefore, must be the pretermination hearing officer. Thus, we must decide whether Ala.Code 1975, § 11-43-160, denies procedural due-process guaranteed under the Alabama Constitution of 1901. In addressing the alleged constitutional infirmities of a statute, we are conscious of the well-established rule requiring courts to defer to the policy-making authority of the Legislature, by rejecting constitutional challenges to statutes, where it is possible to do so. In Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9-10, 18 So. 2d 810, 814-15 (1944), cert. dismissed, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945), this Court stated: (Citations omitted.) For the following reasons, we do not find it "clear beyond reasonable doubt" that Ala.Code 1975, § 11-43-160, violates procedural-due-process requirements of the Alabama Constitution of 1901. "[P]rocedural due process, protected by the Constitutions of the United States and this State, requires notice and an opportunity to be heard when one's life, liberty, or property interests are about to be affected by governmental action." Brown's Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So. 2d 226, 228 (Ala.1992); see also Carter v. City of Haleyville, 669 So. 2d 812 (Ala.1995). The United States Supreme Court has held that a procedural-due-process violation that is potentially actionable is not complete when the deprivation takes place; such a violation does not occur "unless and until the State fails to provide due process." Zinermon v. Burch, 494 U.S. 113, 126, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990).[3] In Zinermon, the Supreme Court noted that "[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property." 494 U.S. at 125-26, 110 S. Ct. 975, 108 L. Ed. 2d 100 (quoting Carey v. Piphus, 435 U.S. 247, 259, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978)). In this case, the deprivation takes place at the time of the defective pretermination hearing. According to the principle stated in Zinermon, a procedural-due-process violation was not complete at that time, because the Board provided a full evidentiary posttermination hearing. Therefore, we conclude that the Board ultimately provided the necessary procedural due process and remedied any *152 deficiencies in Duggan's pretermination hearing. In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985), the Supreme Court of the United States recognized the difference between a posttermination hearing and a pretermination hearing. In Loudermill, terminated school-district employees sued the Cleveland Board of Education, alleging that their federal procedural-due-process rights had been violated because they were not provided an opportunity to respond to the charges against them. The Supreme Court held that tenured government employees almost always must be afforded at least a limited pretermination hearing before they can be constitutionally terminated. 470 U.S. at 542-43, 105 S. Ct. 1487. The Supreme Court, however, held that the pretermination hearing need not be elaborate and need not be a full evidentiary hearing. Id. at 545, 105 S. Ct. 1487. The Supreme Court reasoned that the purpose of a pretermination hearing is not to "definitively resolve the propriety of the discharge," but, rather, to "be an initial check against mistaken decisions-essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Id. at 545-46, 105 S. Ct. 1487. The Supreme Court also noted that under state law the terminated government employee was later entitled to a full and adequate administrative posttermination hearing and judicial review. Id. at 545, 105 S. Ct. 1487. Therefore, the Supreme Court concluded that under federal procedural-due-process law all that is required in a pretermination hearing is "oral or written notice of the charges against [the employee], an explanation of the employer's evidence, and an opportunity [for the employee] to present his side of the story." Id. at 546, 105 S. Ct. 1487. The Supreme Court then stated that "[t]o require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee." Id. In this case, Duggan was served with notice of the charges against him and was given the opportunity to present his side of the story to Chief Vinson at the pretermination hearing. Even assuming that Chief Vinson was biased in that he was familiar with the case and was involved in the investigation,[4] Duggan is entitled only to procedural due process at some "meaningful time and in a meaningful manner," Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965). In Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974), an employee was dismissed from his position in the Office of Economic Opportunity ("OEO") for allegedly having made recklessly false and defamatory statements about other OEO employees. The employee asserted his termination was unlawful because he had a right to an evidentiary hearing before an impartial hearing officer before he could be terminated from his employment. Id. at 137, 94 S. Ct. 1633. In a plurality opinion, the Supreme Court rejected this procedural-due-process claim. Id. at 163, 94 S. Ct. 1633. Justice Powell, joined by Justice Blackmun, concurred in part and concurred in the result in part, stating: Arnett, 416 U.S. at 170-71 n. 5, 94 S. Ct. 1633. In Loudermill, the Supreme Court recognized that determining what procedural process is due requires a balancing of the parties' competing interests. 470 U.S. at 542-43, 105 S. Ct. 1487. The Supreme Court stated that these interests are "the private interest in retaining employment, the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the risk of an erroneous termination." 470 U.S. at 542-43, 105 S. Ct. 1487. Because a full evidentiary hearing is not required at the pretermination level, id. at 545, 105 S. Ct. 1487, it would be impractical to require a person unfamiliar with the subject matter of the allegations to conduct the pretermination hearing. We conclude that "the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens" of conducting a "mini-trial" to educate an impartial decision-maker outweighs the private interest in "retaining employment" and "the risk of an erroneous termination." Loudermill, 470 U.S. at 542-43, 105 S. Ct. 1487. Upon close analysis of Loudermill and the other United States Supreme Court cases, we conclude that because a pretermination hearing functions merely as an "initial check against mistaken decisions" and a posttermination hearing provides an extensive adjudicatory hearing adequately addressing all of the employee's concerns, having a pretermination hearing officer who is familiar with the case and who was involved in the investigation does not deny the procedural due process guaranteed under the Constitution of Alabama of 1901.[5] We conclude that "the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens" of conducting a "mini-trial" to educate an impartial decision-maker outweighs the private interest in "retaining employment" and "the risk of an erroneous termination." Loudermill, 470 U.S. at 542-43, 105 S. Ct. 1487. Accordingly, we conclude that the procedural due process guaranteed under the Constitution of Alabama of 1901 does not require an entirely neutral decision-maker in an employment pretermination hearing for a government employee. Thus, it is not "clear beyond reasonable doubt" that Ala.Code 1975 § 11-43-160, denies the procedural due process guaranteed under the Alabama Constitution of 1901. Therefore, we reverse the circuit court's order denying the defendants' motion for summary judgment, and we remand for further proceedings. REVERSED AND REMANDED. HOOPER, C.J., and LYONS, BROWN, and JOHNSTONE, JJ., concur. *154 COOK, J., concurs in the result. MADDOX, HOUSTON, and ENGLAND, JJ., dissent. JOHNSTONE, Justice (concurring). I concur entirely in the main opinion. I write only to note a reason why allowing a person who is the moving force, or one of the moving forces, behind a proposed dismissal to conduct the pre-termination hearing does not impede fairness but promotes it and does not increase the risk of wrongful termination but decreases the risk. Such a procedure allows the employee to hear the grounds for dismissal directly from the superior who thinks the grounds for dismissal exist. If the superior's apprehension that the grounds for dismissal exist is a mistake, such a procedure allows the employee an opportunity directly to disabuse the superior of the mistake and to persuade the superior to reconsider the effort to terminate the employee. In other words, such a system allows direct, unfiltered, undiluted communication and response between the two people most involved in the proposed dismissal. The commonsense benefits of this procedure justify the constitutional doctrine allowing the procedure. HOUSTON, Justice (dissenting). The United States District Court for the Southern District of Alabama has ruled in a final, unappealed judgment that bias on the part of the pretermination decision-maker did not constitute a denial of the due process guaranteed by the United States Constitution because there existed adequate post-deprivation remedies in the form of a Personnel Board review and ultimately a certiorari or common-law review by an Alabama court. That legal holding is the law of the case. Blumberg v. Touche, Ross & Co., 514 So. 2d 922 (Ala. 1987). Therefore, that takes this Court's holding in Stallworth v. City of Evergreen, 680 So. 2d 229 (Ala.1996), out of play in this case. Out of the great respect that I have for Senior District Judge W.B. Hand, the judge who ruled in this case; and after studying an article entitled "Alabama Supreme Court Contravenes United States Supreme Court Due Process Jurisdiction: Stallworth v. City of Evergreen," 49 Ala. L.Rev. 1081 (Spring 1998), I will consider overruling Stallworth, which I wrote, when the issue presented in Stallworth comes before this Court again. In this case, we are dealing with due process as guaranteed by the Constitution of Alabama of 1901 (not by the United States Constitution). I cannot accept the majority's conclusion that "`the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens' of conducting a `mini-trial' to educate an impartial decision-maker outweighs the private interest in `retaining employment' and `the risk of an erroneous termination,'" 788 So. 2d at 153, because the Constitution of Alabama of 1901 provides, in Art. I: (Emphasis added.) Clearly, Officer Duggan has a "property" right in his job, which the majority of this Court is willing to have taken away from him by a possibly biased hearing *155 officer because to permit that is expeditious and provides a means of avoiding administrative burdens. This outweighs Duggan's right to retain employment and his right not to be deprived of his employment by an erroneous termination? To me, § 35 of the Constitution is made of sterner stuff. MADDOX, J., concurs. [1] The trial court adopted the facts stated in the order of the United States District Court for the Southern District of Alabama, to which court this case had been removed. Both courts were careful to point out that in stating the facts neither court was determining the truth or falsity of the parties' allegations. Similarly, we emphasize that we are not making findings of fact and express no opinion as to the truth or falsity of the parties' allegations. [2] Article I, § 6, Ala. Const.1901, provides rights in criminal prosecutions. This case is a civil action; therefore, § 6 does not apply. Due-process rights in civil cases are provided by Art. I, § 13. [3] The Supreme Court of the United States has recognized, in another context, the adequacy of appellate review in safeguarding due-process rights of a party. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991). The Supreme Court held that "the Alabama Supreme Court['s] ... additional check on the jury's or trial court's discretion" in awarding punitive damages provides a sufficient safeguard to a defendant's rights to due process. Id. at 20-21, 24, 111 S. Ct. 1032. The appellate review of an erroneous punitive-damages award is analogous to the Board's review of an employee's termination after a defective pretermination hearing. Both the defendant and the employee are being "deprived" at a procedurally deficient proceeding, but both are ultimately provided the necessary procedural due process at a subsequent review of that proceeding. [4] Because we must view the evidence in the light most favorable to the nonmovant, Renfro, 604 So. 2d at 408, 411, we assume that Chief Vinson was a biased hearing officer. We note, however, that Duggan's only allegations suggesting a bias of Chief Vinson are allegations that he helped prepare the charges against Duggan, ordered the investigation, and helped one of the officers draft a statement against Duggan. [5] We note that our conclusion is consistent with that of the majority of federal courts of appeals that have addressed this issue as a matter of federal due process. See McDaniels v. Flick, 59 F.3d 446 (3d Cir.1995); Walker v. City of Berkeley, 951 F.2d 182 (9th Cir. 1991); Duchesne v. Williams, 849 F.2d 1004 (6th Cir.1988); Garraghty v. Jordan, 830 F.2d 1295 (4th Cir.1987); Schaper v. City of Huntsville, 813 F.2d 709 (5th Cir.1987); DeSarno v. Department of Commerce, 761 F.2d 657 (Fed. Cir.1985).

December 15, 2000

2d6fe822-12de-4d8c-b501-a62ad717b89f

Carson v. City of Prichard

709 So. 2d 1199

1951561, 1951568

Alabama

Alabama Supreme Court

709 So. 2d 1199 (1998) James W. CARSON, et al. v. CITY OF PRICHARD and the Water Works and Sewer Board of the City of Prichard. The WATER WORKS AND SEWER BOARD OF the CITY OF PRICHARD v. James W. CARSON, et al. 1951561, 1951568. Supreme Court of Alabama. January 30, 1998. *1201 Herndon Inge III and John W. Parker, Mobile, for appellants/cross appellees. Gregory L. Harris of Figures, Jackson & Harris, P.C., Mobile, for appellee/cross appellant City of Prichard. Philip H. Partridge, Craig W. Goolsby, and Thomas H. Nolan of Brown, Hudgens, P.C., Mobile, for appellee/cross appellant Board of Water & Sewer Comm'rs for City of Prichard. SHORES, Justice. Thirteen residents of the City of Prichard and the estate of a deceased resident[1] sued the City and the Water Works and Sewer Board of the City of Prichard ("Board") for damages, based on harm they had suffered as a result of a defect in the sanitary sewer system operated by the Board; that defect causes sewage to overflow into their yards and homes after periods of heavy rain.[2] The trial court entered a summary judgment for the City of Prichard, and the case proceeded solely against the Board. A jury returned a verdict holding the Board liable for its failure to correct the problem of the overflowing sewage and awarding damages to each plaintiff. The trial judge's order entered following his post-verdict review of the damages award, conducted pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), sets forth the procedural history of the case and the damages awarded by the jury: After conducting a hearing pursuant to Hammond v. City of Gadsden, the trial judge ordered a remittitur of each of the 14 punitive damages awards to $5,000 each. He also reduced the total award for property damage to $100,000. This resulted in a judgment awarding a total of $282,500 in damages for mental anguish, a total of $100,000 for property damage, and a total of $70,000 in punitive damages, for a total of $452,500 in damages. The plaintiffs appeal, contending that the trial court erred in capping the property damage award at $100,000 and in ordering a remittitur of punitive damages from $35,000 per plaintiff to $5,000 per plaintiff. The residents also question the summary judgment for the City of Prichard. The Board cross appeals, contending, first, that the plaintiffs failed to prove that the sewage-overflow damage was proximately caused by the Board, and, second, that the Board, as an agency performing a governmental function for the City of Prichard, is not liable for punitive damages, relying on § 6-11-26, Ala. Code 1975. We first consider the Board's contention that the residents failed to prove that the Board breached any duty or that the Board's breach of any duty was the proximate cause of the harm suffered by the residents. The Board contends that the residents' problems were caused by the inflow and infiltration of surface water into the sewage system through "open laterals" on private property. Although the Board admits that it has a duty to provide water and sewer service to the people in the affected areas, it does not agree that the residents proved that the problems in the sewer service were a result of the Board's action or inaction. The Board argues that the court should have granted its motions for a directed verdict made at the close of the residents' case and again at the close of all of the evidence, and, having denied those motions, should have granted its motion for a judgment notwithstanding the verdict.[3] The plaintiffs' claims were based upon negligence, liability for which must be based on proof 1) that the defendant undertook the duty to maintain a sewer system, 2) that it negligently discharged that duty, and 3) that the plaintiffs suffered harm or loss as a result of the defendant's negligence. Water Works & Sewer Board of the Town of Ardmore v. Wales, 533 So. 2d 212 (Ala.1988), citing Sisco v. City of Huntsville, 220 Ala. 59, 60, 124 So. 95 (1929). In this case the alleged negligence was in the Board's failure to properly operate and maintain the sewer system. There was ample evidence from which the jury could have determined that the Board negligently designed and/or maintained the sewer system. The residents presented evidence that they had suffered, and continued to suffer, from the overflow of raw sewage into their yards and homes after periods of heavy rain. They alleged various types of injury, including mental anguish, emotional distress, annoyance, and inconvenience. All of them complained that the overflow caused debris and waste from the *1203 sewer system to enter their yards. One plaintiff testified that he had had snakes in his house as a result of the sewage overflow. The sewage overflowed from manholes in the street. According to the residents, the odor from the sewage overflow was so great that they could not eat in their homes and were embarrassed to have visitors. The residents complained to the Board's system superintendent. He commissioned an engineer to study the problem, but the Board was slow to act on the engineer's recommendations. According to the residents, the Board's commissioner "kept removing [the sewer discharge problem] from the Board's agenda," even though the Board knew the problem was causing a health hazard. Larson D. Edge, a real estate appraiser, testifying as an expert witness, testified that "the [plaintiffs'] houses have no market appeal at all." He stated: He gave as an example the house at 522 Messer Street, which he values at $24,500. He stated that, because the house has had sewage in it several times, "there's a stigma attached to that property" and "I don't think the house has any value." As for the house at 530 Messer, he stated that the value of the house had been $21,500, but the value now is $2,600, a loss of $18,900 in value due to the flooding by sewage. Edge testified that 13 of the plaintiffs had experienced a loss in the value of their property, the smallest loss being $5,000 and the highest being $35,000. American Nat'l Fire Ins. Co. v. Hughes, 624 So. 2d 1362, 1367 (Ala.1993) (quoting Attalla Golf & Country Club, Inc. v. Harris, 601 So. 2d 965, 970 (Ala.1992)). Having reviewed the record in this case, we cannot say that the verdict was plainly and palpably wrong and unjust. There was substantial evidence from which the jury could find that the Board had been negligent and that the plaintiffs had suffered damage as a result of the Board's negligence. We next consider whether the trial court erred in holding that the Board was entitled, as a matter of law, to have the jury awards for property damage (awarded to the 14 plaintiffs) remitted from an aggregate of $179,830 to an aggregate of $100,000 on the grounds that the discharge of sewage onto the plaintiffs' land and into their homes on more than a dozen occasions constituted a single occurrence for purposes of § 11-93-2, Ala.Code 1975. The trial judge was correct in stating that the controlling law is found in the case of Home Indemnity Co. v. Anders, 459 So. 2d 836 (Ala.1984). In Home Indemnity the City of Mobile sought a declaratory judgment determining its liability under § 11-93-2 to numerous flood victims, who had pending against the City actions seeking compensation for property damage. Id. at 839. The trial judge held that § 11-93-2 contained a $100,000 per-occurrence limitation on the aggregate amount of compensation for property damage for which a governmental entity could be liable. Id. Reversing that part of the judgment, this Court held that each flood victim would be entitled to satisfy his judgment up to $100,000 for every occurrence. Id. at 841-42. Because the Court's discussion of that issue was so cogent and is applicable in this case, that discussion is set forth here in full: 459 So. 2d at 841-42 (emphasis in original). This Court defined the phrase "one occurrence" in United States Fire Insurance Co. v. Safeco Insurance Co., 444 So. 2d 844 *1205 (Ala.1983), wherein we concluded that "[a]s long as the injuries stem from one proximate cause there is a single occurrence." Id. at 846 (quoting Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56, 61 (3d Cir.1982)). The "occurrence" that triggered liability in this case was the overall failure of the Board to remedy the problems stemming from its sewage system, and, although there were numerous incidents of sewage overflow, the failure of the Board to remedy the overflow was a "single occurrence" within the meaning of § 11-93-2. However, despite the fact that we hold there was a single occurrence, Home Indemnity very clearly states that § 11-93-2 does not limit all plaintiffs who suffer property damage as a result of a single occurrence to an aggregate recovery of $100,000. Home Indemnity was decided in 1984. If the legislature had been concerned about the liability that could result from the absence of an aggregate limit, it easily could have amended § 11-93-2 by conforming the language in the property-damage provision to the language in the personal-injury provision. The legislature has not done so, however, in the 13 years since Home Indemnity was decided. Each of the 14 separate awards based on property damage is easily within the limit of § 11-93-2. We therefore hold that the jury's verdict in favor of the 14 plaintiffs, awarding them a total of $179,830 for property damage is due to be reinstated and a judgment entered thereon. We next consider the Board's argument that the trial court erred in failing to grant its motion to strike the punitive damages claims against it. The Board argues that § 6-11-26, Ala.Code 1975, provides that punitive damages may not be awarded against any county or municipality or any "agency thereof" and that as to the City of Prichard the Board is an "agency thereof," in the sense of its performing a governmental function. Section 6-11-26 provides: Ala.Code 1975, § 11-93-1, defines the term "governmental entity" as follows: In City of Montgomery v. Water Works & Sanitary Sewer Board of the City of Montgomery, 660 So. 2d 588 (Ala.1995), this Court held that a water and sewer board, created by a municipality as a public corporation, was a "municipal board, committee or like body" within the meaning of legislation authorizing class-three municipalities to alter the membership of municipal boards, committees, or like bodies. Justice Maddox wrote for the Court: 660 So. 2d at 594. In City of Montgomery v. Water Works & Sanitary Sewer Board, we stated further that a water and sewer board providing services to the citizens of a municipality, even if it is established as a separate corporation, can be an "agency" of the municipal *1206 government with regard to the provision of those services. In Marshall Durbin & Co. v. Jasper Utilities Board, 437 So. 2d 1014 (Ala.1983), the Marshall Durbin Company, a sewer and gas customer, brought a declaratory judgment action against the Jasper Utilities Board. Like the Board in this case, the Jasper Utilities Board was incorporated and its members were appointed by the governing body of the municipality. Id. at 1018. This Court held that the Jasper Utilities Board acted as an agent of the municipality, performing the governmental function of setting rates for utility services. Id. This Court has held that the supplying of water to a city and its inhabitants is a municipal function and that a water works board incorporated under the provisions of Title 37, §§ 394-402, Code of Alabama 1940, is in that sense an agency of the city. Water Works Board of the Town of Parrish v. White, 281 Ala. 357, 362, 202 So. 2d 721, 725 (1967), citing Jackson v. Hubbard, 256 Ala. 114, 53 So. 2d 723 (1951). In Jackson the Court held that supplying water to the City of Auburn was a municipal function and that "the Water Works Board of the City of Auburn is in that sense an agency of the city." 256 Ala. at 119-120, 53 So. 2d at 728. The Board in the present case was incorporated under Title 37, § 402. In 1938, the Justices were asked to respond to the Governor's inquiry as to whether the real and personal property of housing authorities created under the Act of 1935 would be exempt from ad valorem taxation. The Justices responded: Opinions of the Justices, No. 45, 235 Ala. 485, 486, 179 So. 535 (1938). This was the law in existence when § 6-11-26 was passed. The Legislature is presumed to be aware of existing law and judicial interpretation when it adopts a statute. Ex parte Louisville & N.R.R., 398 So. 2d 291, 296 (Ala.1981). The Board is a public corporation organized for the purpose of providing water and sewer service to the citizens of Prichard. The Prichard City Council appoints the members of the Board, and one member of the Council actually sits on the Board. The broad language in the definition of the term "governmental entity" in § 11-93-1; the public policy of protecting governmental entities from punitive damages, a policy supported by § 11-93-2; and the cases cited in City of Montgomery v. Water Works & Sanitary Sewer Board of the City of Montgomery, all support the Board's position that it is a "governmental entity," as that term is defined by § 11-93-1. As an agency performing a governmental function for a municipality, it is therefore not subject to punitive damages under § 6-11-26, and that portion of the judgment awarding punitive damages to the residents is due to be reversed, and the Board is entitled to a judgment in its favor as to all claims for punitive damages. We next consider the residents' contention that the trial court erred in refusing to address or rule on their request for a *1207 mandatory injunction requiring both the City and the Board to solve the sewer discharge problems. It is settled law that whether to grant or to deny injunctive relief rests in the sound discretion of the trial court and that the trial court's ruling on that question will not be set aside unless that court has abused its discretion. Acker v. Protective Life Ins. Co., 353 So. 2d 1150 (Ala.1977). In addition, courts will not use the extraordinary power of injunctive relief merely to allay an apprehension of a possible injury; the injury must be imminent and irreparable in an action at law. United Services Auto. Ass'n v. Allen, 519 So. 2d 506, 508 (Ala.1988). As previously noted, the case proceeded to trial against only the Board. Although the trial judge did not grant the requested mandatory injunction, the record reflects that the judge fully considered the question and did not abuse his discretion in declining to issue an injunction, on the basis that a consent judgment was in effect. In his post-trial order, entered after the Hammond hearing, the trial judge mentioned a civil lawsuit brought by the attorney general of Alabama against the Board based on the entire sewage collection system for the City of Prichard, seeking to force the Board to make repairs and address the inflow and infiltration problems that are the subject of this lawsuit. The judgment to which the parties consented in that case was entered into evidence in this case. It includes a compliance schedule, with the goal being completion of all repairs by 2002. The trial judge concluded that the problems are being remedied: The trial judge stated in his "Hammond Order" why he had concluded that it was likely that the Board would comply with the consent judgment: We hold that the judge did not abuse his discretion by declining to issue an injunction against the Board. Finally, we consider whether the trial court properly entered the summary judgment for the City of Prichard. In granting the City's motion for summary judgment, the trial court determined that there was no genuine issue of material fact as to whether the City was liable for the harm to the plaintiffs. In granting the City's motion for summary judgment, the court determined that the City had not undertaken to provide a storm water drainage system for the neighborhood in question and that the plaintiffs had failed to demonstrate a "tie-in" between the city-wide drainage system and the sanitary sewer system. Consequently, the court determined that the plaintiffs had not presented substantial evidence indicating that the City had breached any duty owed to the Prichard residents. The trial judge's order on the plaintiffs' motion for a new trial or to vacate the summary judgment states his conclusion: The trial court granted the City's motion for summary judgment after considering the affidavits of several witnesses, who testified that the City had never attempted to construct a storm water drainage system for the area where the overflows occurred. These witnesses testified that the drainage system in that area was merely a naturally flowing system of water running from the highest point on the street to the lowest point. The trial judge also had before him evidence indicating that the City of Prichard had been permanently enjoined by an order of the Mobile County Circuit Court from any interference with the operations of the Board. The residents relied upon the "Engineer's Facility Evaluation" of April 1993, made by David Volkert & Associates, Inc., in which the engineers, describing the Sanitary Sewer Collection System in Prichard, state: "Years ago street storm drains were connected to the sanitary sewer system to form a common collection system and a problem known as Inflow. In recent years, this practice has decreased because of the burden it places on the sanitary sewer collection system when it rains." However, the City presented an affidavit from Nelson Russell, an engineer with David Volkert & Associates, Inc., in which Russell stated that he was not aware of any connection or tie-in between the lines of the sanitary sewer system and the lines of the storm water drainage system of the City of Prichard. He concluded his affidavit by stating that "a direct tie-in or connection between the two systems has never been identified." We observe that in this state no absolute liability stems from sewer system back-ups. Water Works & Sewer Board v. Wales, 533 So. 2d 212 (Ala.1988). As stated above, liability, if any, is measured by employing a negligence analysis. See: Terry v. City of Sheffield, 484 So. 2d 389 (Ala.1986); City of Birmingham v. Greer, 220 Ala. 678, 126 So. 859 (1930). Although the plaintiffs have made an impassioned argument for the proposition that the City should have corrected the problems with their drainage, they have shown neither that the City undertook control of the drainage on their properties nor that the damage done to their property was caused by "tie-ins" between the City's other drainage systems and the sewer system. We review the evidence in the light most favorable to the nonmovant, and we must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990); Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1383 (Ala.1986); Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986). However, the plaintiffs failed to carry the burden imposed on them to defeat the City's properly supported motion for summary judgment. For the reasons stated above, we hold: 1) There was substantial evidence to support the jury's verdict of negligence and its award against the Board based on property damage, and to support the jury's verdict for mental anguish damages in the amount of $282,500; 2) that the verdict of $179,830, for property damage, awarded to 14 plaintiffs, is due to be reinstated and a judgment entered thereon; 3) that the portion of the judgment awarding punitive damages is due to be reversed; 4) that the trial judge did not abuse his discretion in declining to issue a permanent injunction against the Board; and 5) that the trial court properly entered the summary judgment for the City of Prichard. Thus, the summary judgment for the City of Prichard is affirmed. As to the Board, the reduced compensatory award for property damage is reversed, and the cause is remanded for the jury's verdict on property damage to be reinstated and a judgment entered thereon; the award of mental anguish damages is affirmed; the award of punitive damages is reversed, and on remand the trial court is directed to enter a judgment for the Board on the claim for punitive damages; and the denial of a permanent injunction is affirmed. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. *1209 HOOPER, C.J., and MADDOX, ALMON, HOUSTON, KENNEDY, COOK, BUTTS, and SEE, JJ., concur. [1] James W. Carson, Estelle McDaniel, Johnnie Davis, Randolph Singleton, Daisy Lee Robinson, L.T. Vaughn, Emanual Jackson, Ella Seales, Annette Austin, Cleveland Hubbard, Delfrey Williams, Anthony France, Lennell Gaillard, and the estate of James W. Davis. [2] The residents (who all lived in the Velma Street, West Highland Avenue, and Messer Street area that abuts Toulmin Creek) alleged negligence on the part of the City in regard to the construction and/or maintenance of its street water and storm water drainage system, and negligence, wantonness, and trespass on the part of the Water Works and Sewer Board. The residents complained that the raw sewage overflow caused them to suffer mental anguish, emotional distress, annoyance, and inconvenience. [3] The motion for a directed verdict and the motion for a JNOV have been renamed by an amendment to Rule 50, Ala. R. Civ. P. See the comments to the October 1, 1995, amendment to that rule.

January 30, 1998

3e91d6cd-8146-4b19-b948-c0750f894a63

Ex Parte Discount Foods, Inc.

711 So. 2d 992

1962052

Alabama

Alabama Supreme Court

711 So. 2d 992 (1998) Ex parte DISCOUNT FOODS, INC. (Re DISCOUNT FOODS, INC. v. SUPERVALU, et al.). 1962052. Supreme Court of Alabama. February 13, 1998. Rehearing Denied March 20, 1998. Robert R. Riley, Jr., of Hare, Wynn, Newell & Newton, Birmingham, for petitioner. Jere F. White, Jr., William H. King III, and Robin H. Graves of Lightfoot, Franklin & White, L.L.C., Birmingham, for respondents *993 Supervalu, Inc., and Moran Foods, Inc., d/b/a Save-A-Lot, Ltd. Judge Malcolm B. Street, Jr., pro se. KENNEDY, Justice. Discount Foods, Inc., the plaintiff in an action pending in the Calhoun Circuit Court, petitions for a writ of mandamus directing Judge Malcolm Street 1) to withdraw his order granting the defendants' motion to compel arbitration and to stay the proceedings and 2) to enter an order denying the defendants' motion. On May 7, 1996, Discount Foods sued several related businesses (the Supervalu Company,[1] Save-a-lot, Ltd., and Gregorson's Holdings, Inc.)[2] and various other fictitiously named defendants. The complaint alleged that the defendants had tortiously interfered with Discount Foods' contractual and business relations; unfair competition; and violation of trade secret and antitrust law, with respect to Discount Foods' transaction with a third party to acquire a lease of commercial real estate in Anniston. Before trial, however, the named defendants moved to compel arbitration, based on an arbitration provision contained in retail agreements previously executed between Supervalu and Discount Foods for the supply of groceries and other inventory items to Discount Foods. The arbitration provision provided, in pertinent part: On June 16, 1997, the trial court granted the motion to compel arbitration as to all claims stated against Supervalu and its subsidiary, Save-A-Lot, and it stayed proceedings in the action. Discount Foods argues that the trial court erred in compelling arbitration with regard to its present claims against Supervalu and its subsidiary, Save-a-lot. Discount Foods argues that the disputes involved in the present lawsuit are in no way associated with its contractual relations with Supervalu. Moreover, Discount Foods contends that the arbitration provision found in the retail agreements between Discount Foods and Supervalu was not intended by the parties to force arbitration in regard to allegations of intentional torts that are unrelated to their contractual dealings. We agree. In Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995), the United States Supreme Court held that the Federal Arbitration Act ("FAA") governs all contracts falling within Congress's power under the Commerce Clause. Allied-Bruce Terminix substantially changed the arbitration law of this State, which had previously been declared in Ala.Code 1975, § 8-1-41(3) ("The following obligations cannot be specifically enforced:... An agreement to submit a controversy to arbitration[.]"). The federal policy favoring arbitration was recognized by this Court in Allied-Bruce Terminix Companies v. Dobson, 684 So. 2d 102 (Ala.1995), on remand following the United States Supreme Court's Allied-Bruce Terminix decision. In that opinion, this Court stated: 684 So. 2d 102, 107, quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 942-42, 74 L. Ed. 2d 765 (1983). In Carl Gregory Chrysler-Plymouth, Inc. v. Barnes, 700 So. 2d 1358 (Ala.1997), this Court noted that "[t]he first task of this *994 Court, when reviewing an arbitration provision, is to determine whether the parties agreed to arbitrate the dispute at hand." Id. at 1360. In noting that "[a] party cannot be required to arbitrate a dispute that he or she did not agree to arbitrate," this Court held that an arbitration provision, although broad, did not extend to a dispute over the intentional tort of a party to a contract when the tort did not concern the negotiations, terms and provisions, or any other aspect of the parties' contractual dealings. Id. at 1361. In the present case, Discount Foods alleges that Supervalu and its subsidiary Save-a-lot, not unlike the defendant in Carl Gregory Chrysler-Plymouth, committed an intentional tort, against Discount Foods. This intentional tort of interference with business relations stemmed not from the parties' contractual dealings, but from an alleged separate and distinct act by Supervalu and Save-a-lot. Although the trial court found that the arbitration provision contained in the retail agreements between the parties was broad enough to compel arbitration of this action, we cannot agree. The parties' arbitration provision, although broad, cannot be construed to encompass intentional torts of the parties that are separate and distinct from the dealings that gave rise to the signing of the document containing the arbitration provision in the first place. To hold otherwise would allow persons signing broad arbitration provisions to commit intentional torts against one another, which torts are outside the scope of their contemplated dealings, without concern that they might have to answer for their actions before a jury of their peers. Discount Foods' petition for the writ of mandamus is, therefore, due to be granted. The trial court is directed to vacate its order granting the defendants' motion to compel arbitration and staying the proceedings, and to enter an order denying the defendants' motion to compel arbitration and for a stay of the proceedings. WRIT GRANTED. ALMON, SHORES, and COOK, JJ., concur. BUTTS, J., concurs in the result. HOOPER, C.J., and MADDOX, HOUSTON, and SEE, JJ., dissent. HOOPER, Chief Justice (dissenting). I must respectfully dissent. The main opinion concludes that arbitration cannot be compelled, because, it concludes, the arbitration clause is not broad enough to cover a dispute involving an intentional tort. I disagree. The arbitration clause reads: "Any controversy or claim arising between the parties, including, but not limited to, disputes relating to this [a]greement, shall be resolved by binding arbitration...." (Emphasis added.) I believe the clause is broad enough to include a dispute that does not directly relate to the parties' contract for the supply of groceries. Given the extraordinary nature of a writ of mandamus, I would hold that the trial judge had a rational basis for granting the motion to compel arbitration. Therefore, I would deny the petition for the writ of mandamus. HOUSTON, Justice (dissenting). I would affirm the order of the trial court; therefore, I dissent. I look to the arbitration provision, which states: I then look to see if the action involves a controversy between the parties to the arbitration agreement. "Controversy" is defined as "a discussion marked esp. by the expression of opposing views: DISPUTE 2: QUARREL, STRIFE." Merriam Webster's Collegiate Dictionary (10th ed.1997). The action pending in the Calhoun Circuit Court does involve a controversy between the parties to the arbitration agreement. Therefore, by contract, the parties have agreed to arbitrate that controversy. MADDOX and SEE, JJ., concur. [1] The record indicates that several entities carry the name "Supervalu," "Supervalue Holdings," or similar names. The name "Supervalu" is spelled sometimes "SuperValu." [2] The relationship of the defendant Gregorson's Holdings, Inc., to the other defendants and to the arbitration issue presented by this case is unclear. However, given our holding that the court erred in compelling arbitration, we need not ascertain whether Gregorson's would have been subject to the arbitration order.

February 13, 1998

e0a1428c-08ee-4cb4-a063-dbce764f4159

Turner v. State

746 So. 2d 355

1952024

Alabama

Alabama Supreme Court

746 So. 2d 355 (1998) Ex parte State of Alabama. Re Andre Dwight TURNER v. STATE. 1952024. Supreme Court of Alabama. January 16, 1998. Rehearing Denied June 19, 1998. *356 Bill Pryor, atty. gen., and Frances R. Clement, asst. atty. gen., for petitioner. W. Lloyd Copeland of Clark, Deen & Copeland, P.C., Mobile, for respondent. SEE, Justice. This case concerns the admissibility of deoxyribonucleic acid ("DNA") evidence under Ala.Code 1975, § 36-18-30. The trial court held that DNA evidence was admissible to show that Andre Dwight Turner was connected to a murder scene. The jury convicted him of two counts of capital murder. The trial court sentenced Turner to life in prison without parole. The Court of Criminal Appeals reversed the judgment of conviction, Turner v. State, 746 So. 2d 352 (Ala.Crim.App.1996), holding that the State had failed to satisfy the standard set forth in Ex parte Perry, 586 So. 2d 242 (Ala.1991), for the admissibility of its DNA evidence. We granted certiorari review to determine whether §§ 36-18-20 to -30, Ala.Code 1975, which were added to the Code in 1994, supersede the Perry standard. Because we hold that they do, we reverse and remand. In 1992, the police found Ms. Ollie and her nephew, L.C., brutally stabbed to death in their home. Ms. Ollie had suffered 34 stab wounds from a butcher knife. L.C. had suffered 15. Police officers, who were observing a group of people standing in front of the home, noticed Turner washing his hand in a nearby puddle of water. When the officers approached him, they noticed that the puddle was bloody and that Turner had a cut on his hand. They arrested him. At Turner's trial, the State offered DNA evidence to show that the DNA in blood samples recovered from the house occupied by Ms. Ollie and L.C. was consistent with Turner's DNA. The trial court held a hearing, without the jury, to determine the admissibility of the DNA evidence. At the hearing, Elaine Scott, a forensic serologist *357 with the Alabama Department of Forensic Sciences, testified regarding: (1) DNA matching evidence; and (2) DNA population frequency statistical evidence. DNA matching evidence shows that one sample of DNA "matches," or resembles, another sample of DNA within a permissible range of error. DNA population frequency statistical evidence concerns the frequency with which a given DNA pattern might occur in a given population.[1] The trial court admitted both types of evidence. At trial, Scott testified: (1) that the DNA samples taken from the murder scene matched Turner's DNA; and (2) that the odds of finding Turner's particular DNA profile are 1 in 42,410,000 in the black population and 1 in 179,700,000 in the white population. The jury convicted Turner of two counts of capital murder. In the Court of Criminal Appeals, Turner argued that the DNA population frequency statistical evidence had not met the Perry standard of admissibility. The Court of Criminal Appeals, applying the Perry standard, held that the DNA evidence was inadmissible because the State had failed to show that the generally accepted testing techniques that produced the DNA population frequency statistical evidence were properly performed in this case. In the 1991 Perry decision, this Court addressed the admissibility of DNA evidence: Perry, 586 So. 2d at 247-48. This Court noted that in addition to the results of the Frye "general acceptance" *358 test, whether error occurred in the performance of the tests in a particular case also was of legitimate concern: Perry, 586 So. 2d at 248 (quoting Castro, 144 Misc.2d at 959-60, 545 N.Y.S.2d at 987-88 (citations omitted)). This Court then quoted with approval the opinion of the United States Court of Appeals for the Eighth Circuit in United States v. Two Bulls, 918 F.2d 56, 61 (8th Cir.1990), which applied the Frye general acceptance test, plus a factor dealing with the performance of generally accepted testing techniques on the evidence at issue: Perry, 586 So. 2d at 249 (quoting Two Bulls, 918 F.2d at 61) (emphasis added). This Court embraced the "Frye-plus" standard (that is, general acceptance of the type of theory and technique relied upon plus an examination of the performance of the techniques in the particular case), adopting the following three-pronged test for the admission of DNA evidence in Alabama trials: Perry, 586 So. 2d at 250. In 1993, two years after this Court's Perry decision, the Supreme Court of the United States overruled the "austere" Frye standard for the admissibility of expert scientific evidence in federal trials. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). In Daubert, 509 U.S. at 589, 113 S. Ct. at 2794-95, the Supreme Court concluded that Rule 702, Fed.R.Evid., displaced the Frye standard. The Court stated: Daubert, 509 U.S. at 589, 113 S. Ct. at 2794-95 (emphasis added). Thus, if scientific evidence passes the two-pronged test of Daubertreliability and relevanceit will be admissible and the jury will determine the appropriate weight to give that evidence. The "reliability" prong of the Daubert admissibility test requires the party proffering the scientific evidence to establish that the evidence constitutes "scientific knowledge." Daubert, 509 U.S. at 590, 113 S. Ct. at 2795. The evidence need not represent immutable scientific fact, but, rather, it must be derived by use of *359 the "scientific method."[2]Id. The trial court should focus its inquiry on the expert's "principles and methodology, not on the conclusions that they generate." Id. at 595, 113 S. Ct. at 2797. Thus, the reliability inquiry should address the "scientific validity"[3] of the principle asserted, that is, whether the "principle support[s] what it purports to show." Daubert, 509 U.S. at 590 n. 9, 113 S. Ct. at 2795 n. 9. In assessing reliability, trial courts should look to several guiding factors, including: (1) whether the "theory or technique... has been ... tested"; (2) whether the "theory or technique has been subjected to peer review and publication"; (3) whether the technique's "known or potential rate of error ... and ... standards controlling the technique's operation" are acceptable; and (4) whether the theory or technique has gained "general acceptance" in the relevant scientific community. Id. at 593-94, 113 S. Ct. at 2796-97. The "relevance" prong of the Daubert admissibility test requires the party proffering the scientific evidence to establish that the evidence "assist[s] the trier of fact to understand the evidence or to determine a fact in issue." Daubert, 509 U.S. at 591, 113 S. Ct. at 2796 (quoting Rule 702, Fed.R.Evid.). The trial court should focus on the connection between the proffered scientific evidence and the factual issues. Id. at 591-92, 113 S. Ct. at 2795-96. Thus, the relevance inquiry should address the "fit" between what the scientific principles and methods are supposed to show and what must be shown to resolve the factual dispute at trial. Id. In 1994, the Alabama Legislature specifically addressed the admissibility of DNA evidence when it established a state DNA data bank. Act No. 94-804, Acts of Alabama 1994. The Legislature made several findings, including: Ala.Code 1975, § 36-18-20(d), (e), and (f) (emphasis added). With both of the admissibility standards, Perry (Frye-plus) and Daubert (reliability and relevance), before it, the Legislature chose the more flexible admissibility standard established in Daubert: Ala.Code 1975, § 36-18-30 (emphasis added). In this case, the Court of Criminal Appeals held that the Legislature's enactment of § 36-18-30 did not affect the three-pronged Perry test. 746 So. 2d 352, 353 (1996). Specifically, the Court of Criminal Appeals held that the third prong of the Perry test, which requires the expert to establish that the generally accepted scientific techniques were performed in the particular case without error, survived the enactment of § 36-18-30. 746 So. 2d at 353. We disagree. First, the Legislature could hardly have been more explicit in choosing between two standards of admissibility: Perry (Frye-plusstrict general acceptance) or Daubert (flexible reliability and relevance). The Legislature chose the Daubert standard of admissibility. We view this choice as purposeful and effective. See Belcher v. McKinney, 333 So. 2d 136, 140 (Ala.1976) ("we are aided by the presumption that the legislature made an informed judgment"); Gulf Coast Media, Inc. v. Mobile Press Register, Inc., 470 So. 2d 1211, 1213 (Ala. 1985) ("It is presumed that the legislature does not use statutory language without any meaning or application."); Clark v. Houston County Comm'n, 507 So. 2d 902, 903 (Ala.1987) (stating that a "fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute"). Second, Daubert itself rejected the Frye standard, which was much less strict than Perry's Frye-plus standard: Daubert, 509 U.S. at 589, 113 S. Ct. at 2794-95 (emphasis added). The Supreme Court also explained that the proper focus at the admissibility stage is on the "principles and methodology, not the conclusions that they generate." Id. at 595, 113 S. Ct. at 2797. Once this is determined, the jury is capable of weighing the evidence: Daubert, 509 U.S. at 596, 113 S. Ct. at 2798. Unlike Perry, 586 So. 2d at 250, Daubert does not require the accuracy of the testing in the particular case to be assessed at the admissibility stage. Third, the Eighth Circuit, which authored the Two Bulls decision on which this Court relied in Perry to establish the Frye-plus standard of admissibility, has expressly held that, in light of Daubert, Two Bulls no longer has any precedential value. Pioneer Hi-Bred Int'l v. Holden Foundation Seeds, Inc., 35 F.3d 1226, 1229 n. 12 (8th Cir.1994).[4] Moreover, in United States v. Beasley, 102 F.3d 1440, 1446-47 (8th Cir.1996), cert. denied, 520 U.S. 1246, 117 S. Ct. 1856, 137 L. Ed. 2d 1058 (1997), the Eighth Circuit held that under Daubert the defendant's argument concerning the laboratory's testing of the DNA in his particular case went to the weight of the *361 evidence, not its admissibility. Id., 102 F.3d at 1448.[5] Under Daubert, a party's challenge to the performance of a reliable and relevant scientific technique in a particular case should warrant exclusion of the scientific evidence only if the "`reliable methodology was so altered ... as to skew the methodology itself.'" Id. (quoting United States v. Martinez, 3 F.3d 1191, 1198 (8th Cir.1993), cert. denied, 510 U.S. 1062, 114 S. Ct. 734, 126 L. Ed. 2d 697 (1994)). We hold that if the admissibility of DNA evidence is contested, the trial court must hold a hearing, outside the presence of the jury, and, pursuant to § 36-18-30, determine whether the proponent of the evidence sufficiently establishes affirmative answers to these two questions: Trial courts should use the flexible Daubert analysis in making the "reliability" (scientific validity) assessment. In making that assessment, the courts should employ the following factors: (1) testing; (2) peer review; (3) rate of error; and (4) general acceptance. Trial courts should make the "relevance" assessment by addressing the "fit" between what the scientific theory and technique are supposed to show and what must be shown to resolve the factual dispute at trial. Whether otherwise reliable testing procedures were performed without error in a particular case goes to the weight of the evidence, not its admissibility. Only if a party challenges the performance of a reliable and relevant technique and shows that the performance was so particularly and critically deficient that it undermined the reliability of the technique, will evidence that is otherwise reliable and relevant be deemed inadmissible.[8] *362 Of course, once a particular theory or technique has satisfied § 36-18-30, a court may take judicial notice of that theory or technique's reliability. See Perry, 586 So. 2d at 251; Beasley, 102 F.3d at 1448 (holding that reliability of the polymerase chain reaction ("PCR") method of DNA typing would be subject to judicial notice in future cases); Martinez, 3 F.3d at 1197 (holding that the reliability of the restriction fragment length polymorphism ("RFLP") procedure was subject to judicial notice). We recognize that the state of scientific theories and the techniques for producing DNA evidence is not static, and that the scientific community undoubtedly will produce new theories and techniques regarding DNA. Each new theory and technique will be subject to the test set out above until its reliability warrants judicial notice. In this case, the State sought admissibility of: (1) RFLP matching DNA evidence; and (2) DNA population frequency statistical evidence. With respect to DNA matching evidence, the State's expert, Ms. Scott, testified that the RFLP technique and the theory upon which it is based are used by the Alabama Department of Forensic Sciences. She further testified that the theory and the technique are generally accepted by the Federal Bureau of Investigation and the relevant scientific community as reliable.[9] This Court has recognized the reliability of the theory and techniques used in RFLP DNA matching testing. Perry, 586 So. 2d at 250. Accordingly, we take judicial notice that the DNA matching evidence was reliable. Because the DNA matching evidence was relevant to determining a fact in issue in this case, the trial court correctly held that it was admissible. With respect to the DNA population frequency statistical evidence, however, the record is unclear as to whether the State satisfied the reliability test as to the theory and technique used by the Department of Forensic Sciences. The record is also unclear as to whether the trial court took judicial notice of the reliability of the State's DNA population frequency statistical evidence and, if so, the basis for such judicial notice. Accordingly, we cannot determine whether the trial court committed reversible error.[10] *363 This is a case of first impression regarding the proper tests for admissibility under § 36-18-30. Only with this opinion have we established methods for the admission of DNA evidence under § 36-18-30. The record is unclear as to whether this standard was met with respect to the DNA population frequency statistical evidence. And, the potential impact on Turner's case is dramatic. Therefore, we remand this cause for the Court of Criminal Appeals to remand it for the trial court to conduct an evidentiary hearing to determine the admissibility of the DNA population frequency statistical evidence. If the trial court determines that the evidence was not admissible, it should order a new trial. If the trial court determines that the evidence was admissible, it should enter an order to that effect. In either case, the trial court should place in the record specific findings regarding the reliability and the relevance of the DNA population frequency statistical evidence. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, HOUSTON, KENNEDY, and BUTTS, JJ., concur. [1] In Perry, 586 So. 2d at 247, we explained the interaction of matching and statistical frequency analysis: "`After the autorad [an X-ray of DNA fragments] has been produced the results must be interpreted. The bands [DNA fragments] on the autorad in different lanes must be examined to determine if they "match". The bands in various lanes on the autorad are visually inspected to see if they co-migrate. If a match is declared, the issue is reduced to determining the likelihood that the match is unique. A match is said to occur if the sizes and number of the detected RFLPs [restriction fragment length polymorphisms (i.e., variations in the manner in which organic base pairs composing a DNA molecule expand when exposed to a restriction enzyme)] in various lanes are indistinguishable within a permissible degree of error. They are then measured either manually or by a digitizer attached to a computer. Whatever standard of measuring error is used to determine if the bands are indistinguishable must also be used when calculating the frequency of the band in the population. "`The "uniqueness" question is answered according to the principles of population genetics, using the same matching rule or standard deviation.'" (Quoting People v. Castro, 144 Misc.2d 956, 967, 545 N.Y.S.2d 985, 992 (N.Y.Sup.1989)). [2] "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified...." Daubert, 509 U.S. at 593, 113 S. Ct. at 2796 (quoting Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation, 86 Nw. U.L.Rev. 643, 645 (1992)). The "scientific method" achieved prominence in Sir Isaac Newton's Principia. 5 The Encyclopedia of Philosophy 490 (Paul Edwards ed., 1967). See generally Jay Kesan, Note, An Autopsy of Scientific Evidence in a Post-Daubert World, 84 Geo. L.J.1985, 2006-10 (1996) (discussing scientific methodology). [3] "Scientific validity" entails the characteristics of internal consistency, logical form, comparability with other scientific theories, and susceptibility to empirical testing. See Kenneth R. Foster & Peter W. Huber, Judging Science: Scientific Knowledge and the Federal Courts 138-40 (1997) (discussing scientific validity). [4] The Eighth Circuit stated: "This court granted rehearing en banc and vacated the Two Bulls panel opinion, then, upon suggestion of death of the appellant, this court vacated the scheduled en banc hearing and ordered that the appeal be dismissed. United States v. Two Bulls, 925 F.2d 1127 (8th Cir.1991). Insofar as this vacated opinion ha[d] any precedential value, it ended with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [113 S. Ct. 2786, 125 L. Ed. 2d 469] ... (1993)." Pioneer Hi-Bred, 35 F.3d at 1229 n. 12. [5] Other federal courts of appeals have also held that the actual performance of a scientific test goes to the weight of the evidence, not its admissibility. See, e.g., McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir.1995) (holding that error in the use of "differential etiology" methodology goes to weight, not admissibility); United States v. Chischilly, 30 F.3d 1144, 1154 (9th Cir.1994) (holding that dispute over the conduct of laboratory procedures goes to weight, not admissibility), cert. denied, 513 U.S. 1132, 115 S. Ct. 946, 130 L. Ed. 2d 890 (1995). These holdings have been echoed by commentators. See, e.g., Kesan, supra, note 2, at 2020-21 ("If the two-prong test of Daubert is satisfied, presumably any errors or shortcomings in the execution of the methodology should be a question of weight that lies within the province of the jury."). [6] We note that "[m]any courts have stated that the general scientific theory underlying DNA print analysis is almost universally accepted in the scientific community." Perry, 586 So. 2d at 245. Further, § 36-18-20(d) sets forth the Legislature's finding "[t]hat genetic identification technology through DNA testing is generally accepted by the relevant scientific community." [7] With respect to expert scientific testimony on subjects other than DNA techniques governed by § 36-18-30, Frye remains the standard of admissibility in Alabama. See Hoosier v. State, 612 So. 2d 1352 (Ala.Crim.App. 1992); Rivers v. Black, 259 Ala. 528, 68 So. 2d 2 (1953). [8] Moreover, although we conclude that the Perry standard of admissibility has been replaced with respect to DNA evidence, the following discovery and burden-of-proof guidelines established in Perry, 586 So. 2d at 255, and as modified for the Daubert test, remain viable: "1. The proponent of the [challenged] DNA evidence ... should give discovery to the adversary, which should include, upon request: (1) Copies of autorads, with the opportunity to examine the originals. (2) Copies of laboratory books. (3) Copies of quality control tests run on material utilized. (4) Copies of reports by the testing laboratory issued to the proponent. (5) A written report by the testing laboratory setting forth the method used to declare a match or non-match, with actual size measurements, and mean or average size measurement, if applicable, together with standard deviation used. (6) A statement setting forth observed contaminants, the reasons therefor, and tests performed to determine the origin and the effects thereof. (7) If the sample is degraded, a statement setting forth the tests performed and the results thereof. (8) A statement setting forth any other observed effects or laboratory errors, the reasons therefor and the effects thereof. (9) Chain of custody documents. (10) A statement by the testing lab, setting forth the method used to calculate the allele [(i.e., particular form of gene)] frequency in the relevant population. (11) A copy of the data pool for each [locus] examined. (12) A certification by the testing lab that the same rule used to declare a match was used to determine the allele frequency in the population. (Note that the discovery provisions in (10), (11), and (12) specifically address evidence of DNA population frequency statistics.) "2. The proponent shall have the burden of going forward to establish that the tests and calculations were [both reliable and relevant]. Once this burden is met, the burden of proof shifts to the adversary to prove, by a preponderance of the evidence, that the tests and calculations should be suppressed or modified." (Quoting Castro, 144 Misc.2d at 978-79, 545 N.Y.S.2d at 999). [9] We note that general acceptance is the most stringent factor of the Daubert reliability test. Daubert, 509 U.S. at 594, 597, 113 S. Ct. at 2797, 2798 Several federal courts have held that if evidence is based on a generally accepted theory and technique, then it is admissible under Daubert. See, e.g., Smith v. Borg, 1 F.3d 1247 (9th Cir.1993); Pioneer Hi-Bred Int'l v. Holden Foundation Seeds, Inc., 35 F.3d 1226, 1230 (8th Cir.1994). [10] As we held in Perry, 586 So. 2d at 254, before admitting only one type of evidence (i.e., matching evidence or population frequency statistical evidence), the trial court must determine whether the probative value of admitting one type without the other type will outweigh the prejudicial impact the evidence may have on the jury.

January 16, 1998

bdd8cef8-2569-4b50-9f32-465ccf510cd0

Ex Parte Bradford

795 So. 2d 652

1982169

Alabama

Alabama Supreme Court

795 So. 2d 652 (2000) Ex parte Donna S. BRADFORD. (In re State of Alabama Home Builders Licensure Board and its Recovery Fund v. Donna S. Bradford). 1982169. Supreme Court of Alabama. December 15, 2000. Richard S. Shinbaum of Shinbaum, Abell, McLeod & Vann, Montgomery; and Fred D. Gray, Sr., of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee, for petitioner. Bill Pryor, atty. gen.; Kathy Perry Brasfield, asst. atty. gen.; and Kathy S. LeCroix, deputy atty. gen., for respondent Alabama Home Builders Licensure Board. *653 Charles Cleveland of Cleveland & Cleveland, P.C., Birmingham, for amici curiae Gary W. Houser and Tina H. Houser. COOK, Justice. This Court's opinion of July 21, 2000, is withdrawn, and the following is substituted therefor. The circuit court ordered that the State of Alabama Home Builders Licensure Board and its Recovery Fund were obligated to pay Donna Bradford $50,000, pursuant to Ala.Code 1975, § 34-14A-15. The Court of Civil Appeals reversed the circuit court's judgment. State Home Builders Licensure Bd. v. Bradford, 795 So. 2d 648 (Ala.Civ.App.1999). We granted Bradford's petition for certiorari review. The Court of Civil Appeals held that "the notice to be given the board at the commencement of the action [i.e., an action against a licensed home builder] is an essential initial requirement one must meet in order to secure a recovery from the fund." We disagree. Section 34-14A-15 explicitly provides for dual notice, that is, one who sues a licensed home builder must notify the Licensure Board at the time the action is commenced and the licensed home builder must notify the Licensure Board within 10 days after receiving notice of a complaint. The dual-notice provision allows the Licensure Board to receive notice early in the litigation, so that it may assert its position, should it desire to do so. Although the statute provides that the complainant is to notify the Licensure Board when it files the complaint, in the absence of evidence that the Licensure Board was prejudiced the homeowner is not precluded from recovering. We, therefore, reverse and remand. The circuit court's judgment is as follows: We find no fault in the circuit court's reasoning. Therefore, we reverse the judgment of the Court of Civil Appeals and remand for that court to reinstate the judgment of the circuit court.[2] APPLICATION OVERRULED; OPINION OF JULY 21, 2000, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED. *656 HOOPER, C.J., and MADDOX, JOHNSTONE, and ENGLAND, JJ., concur. HOUSTON, SEE, LYONS, and BROWN, JJ., dissent. HOUSTON, Justice (dissenting). I dissent. "When a complaint is filed which may result in liability for the recovery fund, the complainant shall notify the board in writing, by certified mail, when the action is commenced." Ala.Code 1975, § 34-14A-15 (fourth paragraph). (Emphasis added.) "[S]hall" means shall. I adopt the Court of Civil Appeals' well-reasoned opinion as my dissent. The Legislature created the Recovery Fund, Ala.Code 1975, § 34-14A-15. Without such legislation, the plaintiff would have no right to recover any sum from the State of Alabama Home Builders Licensure Board and its Recovery Fund. The Legislature also specified what a potential claimant must do, as a condition precedent, to recover from the Recovery Fund. The plaintiff did not do what she was required to do to recover. The Court of Civil Appeals correctly decided this case. The majority opinion is rewriting legislation because some Justices do not interpret "shall" to mean "shall." See Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). Let the Legislature be the Legislature. BROWN, J., concurs. SEE, Justice (dissenting). I dissent for the reasons stated by Justice Houston in his dissent. [1] Section 34-14A-15, Ala.Code 1975, provides, in part: "Each licensee shall notify the board within 10 days after notice to him or her of the institution of any criminal prosecution against him or her, or of a civil complaint against him or her, if the subject matter of the civil complaint involves a residential home building transaction or involves the goodwill of an existing home building business or licensee. The notification shall be in writing, by certified mail, and must include a copy of the complaint.... "Each licensee shall notify the board in writing by certified mail within 10 days after he or she receives the notice ... that a civil action in which he or she was a defendant and which involved a home building transaction or the goodwill of a home building business has resulted in a judgment or been dismissed." [2] In opposition to the application for rehearing, amici curiae Gary W. Houser and Tina H. Houser state: "The minority opinion criticize[s] the majority opinion as rewriting legislation and exclaim[s]: `Let the Legislature be the Legislature.'... The statute does not explicitly provide any penalty for the failure of the homeowner to give the prejudgment notice. It does not explicitly or implicitly provide that failure to give such notice would result in a forfeiture of the homeowner's rights. The minority's opinion would rewrite the statute to create a court-made forfeiture that the legislature did not see fit to require." Brief of Amici Curiae in Opposition to Application for Rehearing, at 3.

December 15, 2000

18fce556-f792-4386-ab0f-e8ef7272094b

Budget Inn of Daphne, Inc. v. City of Daphne

789 So. 2d 154

1991251

Alabama

Alabama Supreme Court

789 So. 2d 154 (2000) BUDGET INN OF DAPHNE, INC. v. CITY OF DAPHNE and The Planning Commission of the City of Daphne. 1991251. Supreme Court of Alabama. December 15, 2000. *156 David E. Hudgens of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for appellant. Kevin F. Masterson and Nancy H. Lard of Janecky Newell, P.C., Mobile; and Jay M. Ross and Brandy M. Osborne of Ross & Jordan, Mobile, for appellees. LYONS, Justice. The plaintiff, Budget Inn of Daphne, Inc. ("Budget Inn"), appeals from a summary judgment entered for the defendants City of Daphne and the Planning Commission of the City of Daphne (collectively, "Daphne"). We reverse and remand. This is a zoning case. Daphne adopted a "Land Use and Development Ordinance" in 1987. The following year, Daphne annexed the property on which Budget Inn operates a motel. The parties agree that the sign at the Budget Inn motel was a legal sign when the ordinance became applicable to the Budget Inn property, even though the sign did not conform to the height and size requirements imposed by the ordinance. Thus, it was considered a "legal-nonconforming" sign. Daphne *157 amended various sections of its zoning ordinance in 1994. Included in the changes was the addition of § 10.722, which read: The ordinance further requires that if a sign loses its "legal-nonconforming" status then the owner of the sign must remove it or bring it into compliance within 180 days. § 10.729. In November 1996, Chase Manhattan Bank (formerly known as Chemical Bank) became the owner of the motel property, through foreclosure. A hotel-management company received a business license from Daphne and continued to operate the property as a motel. One year later, Budget Inn of Daphne, Inc., purchased the property. In December 1997, Daphne notified Budget Inn that the city considered the sign on the property to be a nonconforming sign and considered that the change in ownership of the property terminated the "grandfathering" of the sign and its "legal-nonconforming" status. Budget Inn sued Daphne in the United States District Court for the Southern District of Alabama, alleging various theories challenging the constitutionality of the ordinance. The court dismissed the action for a lack of "ripeness," i.e., on the basis that the action was premature. Budget Inn later filed this present action in the Baldwin Circuit Court. That court granted Daphne's motion for summary judgment and denied Budget Inn's cross motion for summary judgment. Budget Inn appeals from the resulting final judgment. Daphne argues that the Baldwin Circuit Court did not have jurisdiction to hear the case because, it claims, Budget Inn had administrative remedies it had not pursued. Specifically, Daphne argues that Budget Inn had not applied for a variance from the Board of Zoning Adjustment, but rather had rushed to the courthouse, contrary to the applicable law, which Daphne says requires Budget Inn to first exhaust its administrative remedies. It is well settled in Alabama that the general principle of "exhaustion of administrative remedies" applies to zoning matters. City of Gadsden v. Entrekin, 387 So. 2d 829, 833 (Ala.1980) (holding that "one must exhaust his remedies in a zoning matter before entering a court of law."); Watson v. Norris, 283 Ala. 380, 217 So. 2d 246 (1968). However, exhaustion of administrative remedies is a judicially imposed prudential limitation, not an issue of subject-matter jurisdiction. Furthermore, we recognize certain exceptions exist to the general rule of exhaustion of administrative remedies: Ex parte Lake Forest Property Owners' Ass'n, 603 So. 2d 1045, 1046-47 (Ala.1992) (citing City of Gadsden v. Entrekin, supra). One who raises only questions of law need not exhaust administrative remedies, and one challenging the constitutionality of a zoning ordinance is raising a *158 question of law. A zoning board of adjustment or other such administrative agency cannot entertain a constitutional challenge and would be without authority or power to make a determinative ruling on such a challenge. See City of Homewood v. Caffee, 400 So. 2d 375, 378 (Ala.1981); Reed v. City of Hoover, 695 So. 2d 34, 36 (Ala.Civ. App.1996); Beaird v. City of Hokes Bluff, 595 So. 2d 903, 904 (Ala.Civ.App.1992). This is not to suggest that every party with a zoning dispute can transform it into a constitutional question and thereby bypass the established administrative process. However, when the administrative body is without power to redress the harm complained of, then we cannot require the complaining party to participate in a futile process. In the present case, the parties agree upon all of the relevant facts. The only substantive matter in dispute is the constitutionality of certain provisions of Daphne's zoning ordinance. This is purely a matter of law; thus, jurisdiction properly lies in the courts and the defense of failure to exhaust administrative remedies does not apply. Daphne also asks this Court to declare that Budget Inn's claim is "unripe," i.e., not presently justiciable, under the justiciability principles enunciated in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985). However, Williamson is inapposite to this case. In Williamson, the Supreme Court held that a property owner could not bring a claim in a federal court for a violation of the Just Compensation Clause of the United States Constitution until the property owner had followed state procedures for redress and redress had been denied. Id. at 195, 105 S. Ct. 3108. Williamson does not apply to the present case, because Budget Inn presents a claim that Daphne's zoning ordinance is facially unconstitutional. This Court recognizes that a municipality may establish a comprehensive land-use plan and effectuate that plan through a scheme of comprehensive zoning regulations. This Court affords deference to a municipal zoning ordinance, which is the product of a municipality's legislative function, and will review it only to determine if it is arbitrary or capricious. See Homewood Citizens Ass'n v. City of Homewood, 548 So. 2d 142, 143 (Ala.1989); Swann v. Board of Zoning Adjustment of Jefferson County, 459 So. 2d 896, 899 (Ala. Civ.App.1984) (holding that "local authorities may not, under the guise of legislative power, impose restrictions that arbitrarily and capriciously inhibit the use of private property or the pursuit of lawful activities") (quoting City of Birmingham v. Morris, 396 So. 2d 53, 55 (Ala.1981)). This standard of review reflects the majority view that zoning matters are essentially local in nature and are best addressed at a local level. Homewood Citizens Ass'n v. City of Homewood, 548 So. 2d at 143. However, this deferential standard of review does not make this Court oblivious to constitutional concerns. PA Northwestern Distrib., Inc. v. Zoning Hearing Bd. of the Township of Moon, 526 Pa. 186, 191, 584 A.2d 1372, 1374 (1991) (emphasis in original). See, also, Marris v. City of Cedarburg, 176 Wis.2d 14, 33-34, *159 498 N.W.2d 842, 850 (1993) (holding that courts must balance interests of property owners with those of municipality). The parties agree that Budget Inn's sign was, at least initially, a legal-nonconforming use, grandfathered under the zoning ordinance. However, after the most recent change in ownership of the motel facilities, Daphne claimed the sign lost its "legal-nonconforming" status, citing the provision of the ordinance stating that a sign will lose that status upon a change in "ownership regardless of name change" or "change in name regardless of ownership." § 10.722. We find these provisions in Daphne's ordinance arbitrary and capricious. This Court has acknowledged that a municipality, acting through a zoning ordinance, may pursue the objective of reducing gradually, and then eventually eliminating entirely, certain uses of property within certain areas. See City of Foley v. McLeod, 709 So. 2d 471, 473 (Ala. 1998); Moore v. Pettus, 260 Ala. 616, 627, 71 So. 2d 814, 823 (1954). The reason a municipality enacts a zoning ordinance pursuant to a comprehensive plan is to create a planned consistency in land-use patterns. However, an existing nonconforming use is a vested property right that a zoning ordinance may not abrogate except under limited circumstances. The general rule is that a mere change in legal ownership or operating name is not one of those circumstances. 83 Am.Jur.2d Zoning and Planning § 656 (1992) (internal citations omitted; emphasis added). The rationale for this principle is that our system favors the free alienability of property. Nonpossessory property rights such as covenants and easements are said to "run with the land," becoming an incident of ownership, and they are generally not personal. The same is true of the right to maintain a legal nonconforming use. 4 Rathkopf's The Law of Zoning and Planning, § 51.03 (1994). A municipality may not simply divest a property owner of a vested right, without compensation, and any attempt to do so violates the most fundamental principles of due process. A purchaser cannot have a single strand of his "bundle of rights" confiscated by the municipality simply because there has *160 been a legal conveyance. By the strict terms of Daphne's ordinance, property designated as "nonconforming" would lose its protected legal status simply because it passes to an heir, devisee, legatee, or mortgageebecause such a transfer would represent a "change in ownership." This construction, the only one allowed by the unambiguous language of the statute, imposes constitutionally impermissible limitations on the use and enjoyment of nonconforming properties and stands against the great weight of legal authority. See, e.g., Keith v. Saco River Corridor Comm'n, 464 A.2d 150 (Me.1983); Town of Coventry v. Glickman, 429 A.2d 440 (R.I.1981); Gibbons & Reed Co. v. North Salt Lake City, 19 Utah 2d 329, 431 P.2d 559 (1967); Hawkins v. Talbot, 248 Minn. 549, 80 N.W.2d 863 (1957); O'Connor v. City of Moscow, 69 Idaho 37, 202 P.2d 401 (1949); Lewis v. City of Atlantic Beach, 467 So. 2d 751 (Fla. Dist.Ct.App.1985). See generally 4 Rathkopf's The Law of Zoning and Planning § 51.03 n. 1, collecting cases. This Court will follow the majority rule: A change in the ownership, occupancy, or name of an operating business facility does not eliminate its status as a legal-nonconforming use. If we upheld Daphne's argument, then a municipality could enact a new setback requirement for buildings, so that with a change in tenancy the municipality could assert that the building had become a "nonconforming use" and had to be structurally altered. This Court cannot permit such a potentially dangerous construction of the ordinance. Daphne's second contention is that Budget Inn's sign lost its "legal-nonconforming" status because the zoning ordinance provides that a sign will lose that status if it is "[altered] ... in any manner." § 10.722. This language of the ordinance is also arbitrary and capricious. First, we have just held that a change in the ownership of a business facility or a change in the name of the facility does not cause the facility to lose its status as a "legal-nonconforming" useit is a necessary corollary of that holding that a change made in a sign to reflect a change of name cannot cause the sign to lose its "legal-nonconforming" status. Common sense dictates that we allow the new owner of a property to inform the public of the new ownership. See Ray's Stateline Market, Inc. v. Town of Pelham, 140 N.H. 139, 142, 665 A.2d 1068, 1070 (1995) (holding that replacing the lettering on existing nonconforming signs would not affect the dimensions of the signs and thus was permissible); Motel 6 Operating Ltd. Partnership v. City of Flagstaff, 195 Ariz. 569, 573, 991 P.2d 272, 275 (Ct.App.1999) (holding it is reasonable to update sign to indicate new tenants because such a change does not substantially alter or expand the nonconforming signs); Rogers v. Zoning Bd. of Adjustment of the Village of Ridgewood, 309 N.J.Super. 630, 707 A.2d 1090 (App.Div.1998), aff'd, 158 N.J. 11, 726 A.2d 258 (1999) (holding that change of sign to indicate new owner of nonconforming building does not cause the sign to lose its protected status). Second, Daphne's ordinance would appear to prevent an owner from providing ordinary maintenance of a "legal-nonconforming" sign. Public policy dictates that a property owner be allowed to perform routine upkeep on such a sign. The situation before us does not involve a property owner wishing to enlarge, expand, or rebuild his nonconforming use, or a change in the nature and character of the nonconforming use. See, e.g., Ex parte City of Fairhope, 739 So. 2d 35, 39 (Ala.1999) (holding that a proposed second-story addition to a nonconforming garage would not increase the nonconformity and thus would not violate the zoning ordinance); *161 City of Foley v. McLeod, 709 So. 2d 471, 473 (Ala.1998) (holding that the replacement of six mobile homes in a nonconforming mobile-home park was more than "merely remodeling or repairing a nonconforming structure" and thus violated the ordinance); State ex rel. Dauphin Stor-All, Inc. v. City of Mobile, 503 So. 2d 1224 (Ala.1987) (holding that because the business of an automobile-parts wholesaler was not substantially the same kind of business as a bakery, the tenant's loss of "legal-nonconforming" status was appropriate, regardless of the relative intensity of the use of the property); Coleman v. Estes, 281 Ala. 234, 201 So. 2d 391 (1967) (holding that a property owner could not enlarge a junkyard as a nonconforming use subsequent to the passage of the zoning ordinance); Board of Zoning Adjustment for the City of Lanett v. Boykin, 265 Ala. 504, 509, 92 So. 2d 906, 909 (1957) (holding "that reflooring 50% of the floor space, reroofing 50% of the dwelling, making separate entrances and installing separate water, heating and lighting systems" would indefinitely prolong the life of the nonconforming building and thus would violate city ordinance). Budget Inn further raises an estoppel issue, claiming that Daphne had failed to enforce its zoning ordinance after a previous change in ownership of the subject property and thus cannot now enforce it against Budget Inn. Because we have held that the disputed terms of the zoning ordinance are unconstitutional and thus cannot be enforced, we need not consider the estoppel issue. The sections of Daphne's zoning ordinance that Budget Inn has challenged are unconstitutional and may not be enforced against Budget Inn or any other property owner. Therefore, the judgment of the circuit court is reversed. REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, COOK, and JOHNSTONE, JJ., concur.

December 15, 2000

131a3f01-b4b0-4096-a27e-be3eacb8803d

Couch v. City of Sheffield

708 So. 2d 144

1961048

Alabama

Alabama Supreme Court

708 So. 2d 144 (1998) Travis COUCH v. CITY OF SHEFFIELD and Richard Lesley. 1961048. Supreme Court of Alabama. January 9, 1998. *145 Dennis Neal Odem, Florence, for appellant. Vincent McAlister of Almon, McAlister, Baccus & Hall, L.L.C., Tuscumbia, for City of Sheffield. H. Thomas Heflin, Jr., Tuscumbia, for Richard Lesley, for appellees. HOUSTON, Justice. The plaintiff, Travis Couch, appeals from a summary judgment for the defendants, Richard Lesley and the City of Sheffield, in this action seeking damages under state and federal law in connection with an alleged illegal arrest and an alleged malicious criminal prosecution. Couch also complains of the denial of his motion for a partial summary judgment on the issue of the defendants' liability. We affirm. Lesley, a nine-year veteran of the Sheffield Police Department, arrested Couch at the Stagecoach lounge in the early morning hours of July 2, 1995.[1] Couch, along with another man arrested at the same time, Billy Joe Berryman,[2] was charged with public intoxication and taken to jail. Berryman, who admitted to being under the influence of alcohol and marijuana, eventually pleaded guilty to public intoxication. Couch was tried in the Sheffield Municipal Court and was acquitted. Couch filed this action on March 25, 1996. He sought damages from Lesley under state law, based on allegations of intentional and malicious false arrest/imprisonment, malicious *146 prosecution, and an illegal "strip search." He also sought damages from the City, based on allegations of negligent or wanton failure to properly train, supervise, and discipline Lesley; on allegations of intentionally encouraging and covering up illegal police conduct; and on allegations of liability under the doctrine of respondeat superior.[3] Couch also sought to recover damages from Lesley and the City under 42 U.S.C. § 1983 (providing a cause of action for deprivation of constitutional rights by government officials acting "under color of state law") and § 1985 (providing a cause of action based on allegations of a conspiracy to deny constitutional rights and to obstruct justice). His federal claims were based on allegations of intentional and malicious false arrest/imprisonment, defamation, malicious prosecution, and an illegal "strip search." In support of their motion for summary judgment, the defendants submitted, among other things, the affidavits of Lesley, Al Blackburn, and Doug Aycock. Those affidavits read as follows: In response to the defendants' motion for summary judgment, and in support of his own motion for a partial summary judgment, Couch submitted a copy of a "Notice of Claim" that he says he filed with the City in accordance with Ala.Code 1975, § 11-47-23. This document, which was signed by Couch and notarized by his attorney on April 1, 1996, is not stamped "filed," and it contains nothing otherwise indicating that it was filed with the City clerk. The document contains a section entitled "Factual Allegations," which reads as follows: It appears from a comparison of the "Notice of Claim" with Couch's complaint that the above-quoted section entitled "Factual Allegations" was simply lifted from the complaint and incorporated into the "Notice of Claim." The notary's certification on the last page of the document states: (Emphasis added.) Couch also submitted unverified copies of portions of the transcript of his trial in the municipal court on the public intoxication charge, as well as copies of the defendants' answers to interrogatories. Couch's "Narrative Summary" of "undisputed facts," contained in his motion for a partial summary judgment, was drawn from his attached "Notice of Claim" and the copies of the transcript of his trial in the municipal court. The defendants make a number of arguments in support of the summary judgment. Specifically, Lesley argues that he was entitled to a judgment as a matter of law on the state law claims (the claims based on allegations of intentional and malicious false arrest/imprisonment, malicious prosecution, and an illegal "strip search"), under Ala.Code 1975, § 6-5-338, which extends discretionary function immunity to city police officers. According to Lesley, there is no evidence indicating that he acted willfully, maliciously, or in bad faith when he arrested Couch, so as to take him out from under the protection of the doctrine of discretionary function immunity. See Wright v. Wynn, 682 So. 2d 1 (Ala.1996). With respect to the § 1983 claim, Lesley argues that he is protected under the doctrine of qualified immunity as expressed in Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). He also argues that there is no evidence supporting either the allegations of intentional and malicious false arrest/imprisonment, defamation, malicious prosecution, and an illegal "strip search," or the allegations under § 1985 of a conspiracy to deny Couch's constitutional rights or to obstruct justice. The City argues that it was entitled to a judgment as a matter of law on the state law claims (the claims based on allegations of negligent or *152 wanton failure to train, supervise, or discipline Lesley; on allegations of intentionally encouraging and covering up illegal police conduct; and on allegations of liability under the doctrine of respondeat superior) either under the immunity extended to municipalities in Ala.Code 1975, § 11-47-190, or on the ground that there was no evidence to support the claims. The City also maintains that the state law claims must fail because, according to the City, Lesley failed to timely file a notice of a claim with the City, in accordance with § 11-47-23. As to the § 1983 claim, the City, relying primarily on Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), argues that it cannot be held liable for Lesley's actions under a respondeat superior theory. The City argues that there is no evidence indicating that Lesley illegally arrested Couch pursuant to a policy officially adopted or implemented by the City and that there is no evidence otherwise supporting any of the allegations underlying the § 1983 or § 1985 claims. Relying on the "Notice of Claim" and the "Factual Allegations" section contained therein, as well as the unverified copies of the transcript of his trial in the municipal court, Couch contends that Lesley lacked probable cause to arrest him for public intoxication. The gravamen of Couch's claims, both state and federal, is that Lesley, pursuant to official City policy, intentionally and without justification singled him out for arrest and demeaning interrogation for the purpose of harassing him, in an attempt to obtain information about possible drug trafficking at the Stagecoach Lounge, and that the City attempted to cover up any wrongdoing on Lesley's part by threatening Couch and fabricating evidence, i.e., by suborning perjury on the part of Captain Blackburn, who, according to Couch, provided false testimony as to Couch's condition at the time of the arrest. After reviewing the record and the briefs, and after carefully examining the very serious charges of misconduct leveled by Couch against the defendants, we conclude, as the trial court did, that the defendants were entitled to a judgment as a matter of law. A summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R.Civ.P. In determining whether a summary judgment is appropriate, a court must view the evidence in the light most favorable to the nonmoving party, and all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party. Wayne J. Griffin Electric, Inc. v. Dunn Construction Co., 622 So. 2d 314 (Ala.1993). Rule 56(e) provides: We do not consider the "Notice of Claim" and the accompanying unverified copies of the municipal trial transcript to be sufficient in form to satisfy Rule 56(e) and, thus, to defeat the motion for summary judgment. See Osborn v. Johns, 468 So. 2d 103 (Ala.1985). It is significant, we think, that the "Notice of Claim" is not in proper affidavit form. An affidavit sufficient to satisfy Rule 56(e) is a written declaration or statement of facts, made voluntarily and based on personal knowledge, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to *153 administer an oath or affirmation. See Black's Law Dictionary, "Affidavit" (6th ed.1990); Rule 56(e). It is apparent that Couch's "Notice of Claim" was intended to satisfy § 11-47-23 by putting the City on notice of Couch's allegations of misconduct. It is also apparent that the bulk of the "Notice of Claim," which was filed on or about April 1, 1996, apparently was made up of pages lifted almost verbatim from Couch's complaint, which was filed on March 25, 1996, including the sections entitled "Identity of the Parties," "Factual Allegations," "Count 1False Arrest," and "Relief Sought." In the notary's certification, Couch "avers that he has read and understands the information in the foregoing Notice of Claim and he affixes his signature thereto." It is one thing for a person to confirm on personal knowledge and under oath or by affirmation the truthfulness of the contents of a document that he has signed (such a document being an affidavit); it is quite another thing for a person to confirm under oath or by affirmation that he has read, understands, and has signed a document that was intended to satisfy a statutory notice requirement and that contains a section entitled "Factual Allegations," which includes matters ranging from information of which the claimant could have had personal knowledge to other information composed of legal conclusions, hearsay, and speculation. In this respect, we note that in the "Factual Allegations" section Couch does not refer to himself in the first person; rather, he refers to himself in the third person, i.e., calling himself "the plaintiff." Furthermore, the "Factual Allegations" section also contains statements that were allegedly made by Lesley and the city prosecutor to Couch's attorney and with respect to which Couch apparently had no personal knowledge. We conclude, therefore, that the defendants made a prima facie showing of no wrongdoing on their part and that Couch failed to rebut that showing by presenting evidence of misconduct on the part of the defendants, sufficient to satisfy Rule 56. An adverse party may not rest upon the mere allegations or denials of his pleadings. Rule 56(e). Although the summary judgment was proper for the reasons discussed above, we think it appropriate to point out that even if we were to treat the "Notice of Claim" and the accompanying copies of the municipal court transcript as sufficient to satisfy Rule 56(e), we would still hold that the summary judgment was proper. Section 6-5-338 provides in pertinent part as follows: This section extends discretionary function immunity to municipal police officers, such as Lesley, unless the officer's conduct is so egregious as to amount to willful or malicious conduct or conduct engaged in in bad faith. See Wright v. Wynn, supra. However, it would be pure speculation for one to infer from Couch's evidence that Lesley had a personal ill will against him and that he *154 maliciously or in bad faith arrested him solely for purposes of harassment. There is nothing to reasonably dispute Lesley's affidavit testimony that he believed he had probable cause to arrest Couch based on Couch's appearance and demeanor (he said Couch's eyes were red and glazed; that he was nervous and unbalanced; that he was standing outside a lounge that had a reputation for being a hangout for drug users and drug traffickers; and that he was standing directly next to and talking with a person who was heavily intoxicated and who reeked of alcohol and marijuana), regardless of the fact that Couch was later acquitted of the offense of public intoxication. We further note that the defendants made a prima facie showing, through the affidavit of the police chief, Doug Aycock, that the "strip search" conformed to police department regulations and note that Couch submitted no evidence indicating that Lesley personally participated in the search of Couch's person at the jail or that that search, under the circumstances, was either illegal or in violation of police department regulations. For these reasons, the summary judgment for Lesley on the state law claims alleging intentional and malicious false arrest/imprisonment, malicious prosecution, and an illegal "strip search" would be upheld. As to the state law claims against the City (the claims based on allegations of negligent or wanton failure to properly train, supervise, and discipline Lesley; allegations of intentionally encouraging and covering up illegal police conduct; and allegations of liability under the doctrine of respondeat superior), we note that the City has immunity under § 11-47-190 with respect to each of those claims, except the one based on allegations of negligence in failing to train, supervise, and discipline Lesley. See Scott v. City of Mountain Brook, 602 So. 2d 893 (Ala.1992) (§ 11-47-190 limits the liability of municipalities to injuries suffered through neglect, carelessness, or unskillfulness of an agent, officer, or employee). That claim would also fail, however, because there is no credible evidence to rebut the City's prima facie showing that it did properly train, supervise, and discipline its police officers. In addition, we note that § 11-47-23 required Couch to file a notice of his state law claims with the City within six months of the accrual of his causes of action. A cause of action is deemed to have accrued under § 11-47-23 when an action can be maintained. See Hill v. City of Huntsville, 590 So. 2d 876 (Ala.1991). Notwithstanding the fact that his trial on the charge of public intoxication was pending, Couch could have maintained an action against the City immediately, at least with respect to his claims based on his allegations of intentional and malicious false arrest/imprisonment and an illegal "strip search" (under the doctrine of respondeat superior), and his claims based on allegations of negligent or wanton failure to properly train, supervise, and discipline Lesley.[4] However, the record indicates that Couch signed the "Notice of Claim" on April 1, 1996, approximately nine months after his arrest on July 2, 1995. Assuming that it was filed on or about April 1, 1996, the notice was untimely as to those claims; and the complaint, which was not filed until March 25, 1996, was not filed in time to satisfy § 11-47-23. Hill v. City of Huntsville, supra.[5] *155 With respect to the federal claims against the defendants, we note that Lesley was protected from § 1983 liability under the doctrine of qualified or "good faith" immunity extended to a municipal police officer performing a discretionary function. See Roden v. Wright, 646 So. 2d 605 (Ala.1994); Point Properties, Inc. v. Anderson, 584 So. 2d 1332 (Ala.1991), discussing, among other cases, Harlow v. Fitzgerald, supra. In deciding whether a public official, such as a police officer, is entitled to qualified immunity in a § 1983 action, this Court employs the following two-step analysis: 646 So. 2d at 610, quoting Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir.1988). (Citations omitted.) In Point Properties v. Anderson, supra, at 1338-39, this Court, quoting Stewart v. Baldwin County Board of Education, 908 F.2d 1499, 1503 (11th Cir. 1990), explained that "`the relevant question on a motion for summary judgment based on a defense of qualified immunity is whether a reasonable official could have believed his or her actions were lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred.'" This Court went on to note that "`the qualified immunity defense provides ample protection to all except the plainly incompetent or those who knowingly violate the law.'" 584 So. 2d at 1339, quoting Stewart, supra. Even viewing the evidence in the light most favorable to Couch, as we are required to do under our summary judgment standard of review, we conclude that Lesley was engaged in a discretionary function when he arrested Couch and, as previously noted, that he could have reasonably believed he was acting lawfully when he arrested Couch. The Court of Criminal Appeals, in Hardeman v. State, 651 So. 2d 59, 67-68 (Ala.Crim. App.1994), noted: "`A person commits the crime of public intoxication if he appears in a public place under the influence of alcohol, narcotics or other drug to the degree that he endangers himself or another person or property, or by boisterous and offensive conduct annoys another person in his vicinity.' Ala.Code 1975, § 13A-11-10(a). Although the evidence presented by the State may not have been sufficient to sustain a conviction for public intoxication, that same evidence was sufficient to provide the officers with probable cause to arrest the appellant for that offense. See Parks v. Director, State Department of Public Safety, 592 So. 2d 1066, 1067 (Ala.Civ.App.1992) (`[a]n acquittal in a DUI case [is] not synonymous with an unlawful arrest'; `there [may] be a lawful arrest even though there is a finding of "not guilty" of the offense charged'). `"Probable cause" does not mean that the officers must possess enough evidence in admissible form to convict the person whom they arrest or search.' Yeager v. State, 281 Ala. 651, 653, 207 So. 2d 125, 127 (1967), quoting Patenotte v. United States, 266 F.2d 647 (5th Cir.1959). Notwithstanding the fact that Couch was later acquitted of the public intoxication charge, the following undisputed facts, which were known to Lesley on the morning of the arrest, are sufficient to extend qualified immunity to Lesley: 1) The Stagecoach lounge was a known hangout for drug users and drug traffickers; 2) Sheffield police officers had been called to the lounge many times to deal with intoxicated patrons, to investigate property damage, etc.; 3) the owner of the lounge had requested that Sheffield police officers keep a close watch on his premises; 4) Lesley observed Couch and Berryman outside the lounge in an area where Lesley knew, from past experience, drug using and dealing had gone on before; 5) Couch's eyes were glazed and red and he appeared unbalanced and nervous during his conversation with Lesley outside the lounge; 6) Couch was directly beside and conferring with Berryman, who was heavily intoxicated and smelled of marijuana. From Lesley's perspective, Couch appeared to smell of, and to be high on, marijuana, in the middle of the night, at a lounge with a history of disturbances by intoxicated patrons, and he appeared to pose a danger to himself, to someone else at the lounge, or to someone's property. Couch's version of the incident is not sufficient, standing alone, to create a fact question as to whether Lesley could have reasonably believed that Couch had committed a crime and, thus, to take Lesley out from under the protection of the qualified immunity doctrine. We further note that the City could not be held vicariously liable under § 1983 for Lesley's actions, see Monell v. Department of Social Services of the City of New York, supra; Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981), and that there is no credible evidence from which one could reasonably infer that Lesley violated Couch's civil rights pursuant to some official policy sanctioned by the City. See Monell, 436 U.S. at 691, 98 S. Ct. at 2036 ("Congress did not intend municipalities to be held liable [under § 1983] unless action pursuant to official municipal policy of some nature caused a constitutional tort"). Bare speculation that the City was involved in fabricating evidence and suborning perjury, or that it was involved in a conspiracy to deny constitutional rights and obstruct justice, within the meaning of § 1985, simply will not suffice. For the foregoing reasons, the summary judgment for the defendants is affirmed. AFFIRMED. HOOPER, C.J., and COOK and SEE, JJ., concur. ALMON, J., concurs in the result. [1] We note a discrepancy between the dates stated in the affidavits of the police officers and the dates stated by Couch in his statement of claim filed with the city clerk. This discrepancy is of no consequence for the purposes of this appeal. [2] This man's last name also appears in the record as "Berriman." [3] The complaint does not clearly indicate whether Couch sought to predicate liability on the City for Lesley's actions under the doctrine of respondeat superior; however, for purposes of this appeal, we assume that he did. [4] "False imprisonment consists in the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty." Ala.Code 1975, § 6-5-170. For there to be a false imprisonment, there must be some direct restraint of the person; however, it is not necessary that there be confinement in a jail, although detention and confinement in jail formed the basis of Couch's false arrest/imprisonment claim. Crown Central Petroleum Corp. v. Williams, 679 So. 2d 651 (Ala.1996). Any factual issues surrounding the training, supervising, and disciplining of Lesley; the "strip search"; or the question whether Lesley had probable cause to arrest Couch, were subject to consideration by a jury in a civil action. Crown Central Petroleum Corp., supra; Lindsey v. Camelot Music, Inc., 628 So. 2d 314 (Ala.1993). [5] Of course, Couch could not have filed an action alleging malicious prosecution until his acquittal of the public intoxication charge in municipal court. See Barrett Mobile Home Transport, Inc. v. McGugin, 530 So. 2d 730 (Ala.1988) (resolution of the criminal charge in the plaintiff's favor is a prerequisite to a cause of action for malicious prosecution). However, as noted previously, the City had immunity under § 11-47-190 with respect to Couch's malicious prosecution claim. See Scott v. City of Mountain Brook, supra, 602 So. 2d at 894 ("[w]e have emphasized that a claim of malicious prosecution against a municipality... is not within the `neglect, carelessness or unskillfulness' genre of liability").

January 9, 1998

e20266b1-3a8e-44dd-a161-4033db918438

Ex Parte Brislin

719 So. 2d 185

1961814

Alabama

Alabama Supreme Court

719 So. 2d 185 (1998) Ex parte Allen L. BRISLIN and Margaret R. Brislin. (In re Allen L. BRISLIN and Margaret R. Brislin v. Dennis MORTIMER and Bradley and Associates). 1961814. Supreme Court of Alabama. February 13, 1998. Desmond V. Tobias of Windom & Tobias, L.L.C., Mobile, for petitioners. Ray G. Riley, Jr., Mobile, for respondents. BUTTS, Justice. Allen L. Brislin and his wife Margaret R. Brislin appealed from a summary judgment in favor of the defendants, Dennis Mortimer and Bradley and Associates, Inc., in an action alleging intentional, reckless, and innocent fraud; deceit; negligence; and fraudulent suppression. The Court of Civil Appeals affirmed, without opinion. Brislin v. Mortimer, (No. 2960111) 720 So. 2d 1063 (Ala.Civ. App.1997). We reverse the judgment of the Court of Civil Appeals and remand. On February 11, 1994, the Brislins entered an agreement with Debra J. "Honey" Clark to purchase stores at Daphne and Fairhope owned and operated by Honey's International, Inc., which in turn was owned by Clark. These stores were two of the three women's retail clothing stores operated by Clark. The purchase price was $93,192.11. Bradley and Associates was listed in the purchase agreement as the agent for the seller (Clark), and it was entitled to a brokerage fee at closing. The section of the purchase agreement dealing with the fee was styled "Commission." The Brislins say they relied on information supplied to them in a "Confidential Business Report," which had been prepared by Mortimer, acting as an agent for Bradley and Associates. *186 The Brislins' initial sales at the stores were much lower than the gross income figures reported in the "Confidential Business Report" for the same time the prior year. The Brislins later learned that the information in the report was inaccurate. The report was based on information given to Mortimer by Clark and an accountant in Louisiana named Warren Hohensee. Hohensee had prepared "income statements" for Clark; it is not clear from the record what information Hohensee relied upon in preparing these "income statements." Clark was aware that a business report was prepared and that it was prepared in part from information she had provided, but she never reviewed it. In fact, in her deposition she states that the report has discrepancies in all the figures. The "Confidential Business Report" included charts and graphs that reflected gross sales for the years 1990-1993. Mortimer represented to the Brislins that the gross sales figures in the report were only a minimum and that the true income was probably greater than the report reflected. The figures on the report, however, were substantially greater than the amount of gross sales revenue Clark had reported to state and local taxing authorities. According to Clark's testimony, both Mortimer and C.M. Bradley, the president of Bradley & Associates, were aware of the discrepancies between the revenue reported to the taxing authorities and the gross sales figures in the confidential business report. The Brislins contend that they relied on the gross sales figures and other financial information that Mortimer provided in making their decision to purchase the stores. When the Brislins opened the stores, however, their gross sales were considerably lower than Mortimer had represented that Clark's had been in the past. Rule 56, Ala. R. Civ. P., sets forth a two-tiered standard for entering a summary judgment. The trial court must determine (1) that there is no genuine issue of material fact and (2) that the moving party is entitled to a judgment as a matter of law. The burdens placed on the moving party by this rule have often been discussed by this Court: Berner v. Caldwell, 543 So. 2d 686, 688 (Ala. 1989) (quoting Schoen v. Gulledge, 481 So. 2d 1094, 1096-97 (Ala.1985)). The standard of review applicable to a summary judgment is the same as the standard for ruling on the summary judgment motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986). See, also, Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990). Because this action was not pending on June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the nonmovants meet their burden by "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982). *187 The Brislins argue that the summary judgment was improper as to all of their claims because, they contend, they presented substantial and undisputed evidence that Bradley and Associates and Mortimer, its agent, made misrepresentations of material fact, orally and in writing, and that they relied on these misrepresentations to their detriment. The Brislins contend that the confidential business report contained misrepresentations about the nature of the business. Mortimer stated in the report: (1) that the "Honey's" stores the Brislins purchased were "part of a unique buying system" of Honey's International, Inc.; (2) that Honey's International had been in operation for 20 years; (3) that Honey's International offered a "buyer's protection plan" that guaranteed that Honey's International would not sell to any other retail outlet within the vicinity of a Honey's retail outlet; (4) that Honey's uses its buying power from its 70 retail outlets to enable it to buy high-quality name-brand apparel; (5) that Clark is a sociologist consultant to the fashion industry; and (6) that Honey's International was an apparel brokerage firm. Clark testified that she was not familiar with Honey's International's buying power; that she was not even sure what an apparel brokerage firm is; and that Honey's International had not been in operation for 20 years. Clark testified that she had never heard of a "buyer's protection plan." Clark also testified that she bought apparel for three retail stores, not for 70, as Mortimer had represented. Nonetheless, Mortimer and Bradley and Associates argue that they cannot be held liable for any misrepresentation made by them because, they say, the Brislins waived their rights by agreeing to certain exculpatory clauses in a "Confidentiality, Non-Disclosure and Non-Circumvention Agreement" they signed in connection with the purchase of the stores. This agreement included the following statement: "BROKER does not represent that any of the financial information supplied by the seller has been verified or approved." Mortimer and Bradley and Associates also rely on a disclaimer in the "Confidential Business Report" itself, which states, in part, that "no representations or warranties are herein expressed or implied." However, these clauses were negated by the following language in the purchase agreement: The Brislins testified that they relied on this language, as well as statements and assurances by Mortimer that the financial figures were conservative and correct. This Court stated in Downs v. Wallace, 622 So. 2d 337, 341 (Ala.1993): Quoting Bates v. Southgate, 308 Mass. 170, 182, 31 N.E.2d 551, 557-58 (1941). Thus, although the "Confidential Business Report" contained exculpatory clauses, it was reasonable for the Brislins to rely upon the statements and assurances made by Mortimer. The evidence creates genuine issues of material fact as to the Brislins' claims against Mortimer and Bradley and Associates. The judgment of the Court of Civil Appeals is reversed and the cause is remanded for an order or proceedings consistent with this opinion. REVERSED AND REMANDED. *188 ALMON, SHORES, KENNEDY, and COOK, JJ., concur. HOOPER, C.J., and MADDOX and SEE, JJ., dissent. MADDOX, Justice (dissenting). The Court of Civil Appeals, citing Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909 (Ala.1994); Speigner v. Howard, 502 So. 2d 367 (Ala.1987); and Berkel & Co. Contractors, Inc. v. Providence Hosp., 454 So. 2d 496 (Ala.1984), affirmed the summary judgment, without opinion. Although I voted to grant the writ of certiorari in this case, in order to review the facts as set out by the plaintiffs in their Rule 39(k), Ala. R.App. P., motion, I find no substantial evidence to support the plaintiffs' claims; consequently, I respectfully dissent. SEE, J., concurs.

February 13, 1998

2d57115e-9ebe-468b-9fae-1bdc0e5d555f

Ex Parte Aetna Cas. & Sur. Co.

708 So. 2d 156

1961774

Alabama

Alabama Supreme Court

708 So. 2d 156 (1998) Ex parte AETNA CASUALTY AND SURETY COMPANY. (Re Daniel JONES, et al. v. Ronald RICE, et al.). 1961774. Supreme Court of Alabama. January 9, 1998. *157 Courtnay L. Stallings of Gleissner, Stallings & Rogers, Birmingham, for Aetna Cas. & Sur. Co. William D. Davis III of Davis, Dorin, Curtis & Neil, Birmingham, for plaintiffs Daniel Jones et al. G. Stephen Wiggins of Davidson, Wiggins & Coleman, P.C., Tuscaloosa, for defendant Ronald Rice. KENNEDY, Justice. Aetna Casualty and Surety Company ("Aetna") petitions for a writ of mandamus directing Judge James Moore, of the Fayette Circuit Court, to grant its motion asking Judge Moore 1) to sever the uninsured or underinsured motorist insurance claims against Aetna from the other claims presented in a motor-vehicle accident case pending in the Fayette Circuit Court, and 2) to prohibit the other parties at trial of the other claims from referring to or mentioning Aetna or Aetna's potential interest in regard to those claims. Daniel Jones sued Ronald Rice, alleging that on February 6, 1996, the driver of a truck owned by Rice caused a motor vehicle accident that injured Jones.[1] Jones alleged that the driver of the truck improperly caused the truck to enter the lane of traffic of the vehicle in which Jones was a passenger and thereby caused the driver of the vehicle in which Jones was riding to lose control and to wreck. Jones alleged that the truck driver who caused the accident drove away from the scene. Alleging that negligence or wantonness on the part of Rice caused the accident, Jones sought damages from Rice. Because the vehicle in which he was riding was insured by Aetna, Jones also sued Aetna, claiming uninsured or underinsured motorist benefits. With the consent of all other parties, Aetna moved the trial court to be allowed not to participate in the lawsuit. On August 16, 1996, the trial court granted Aetna's motion to be allowed not to participate. We grant Aetna's petition. On June 5, 1997, at the request of the plaintiffs' attorney, the trial court held a pretrial conference. At this pretrial conference, the plaintiffs' attorney asked the trial court to require Aetna to participate in the pending lawsuit. Aetna objected to being forced to participate, citing grounds for not participating, including 1) that if it were forced to participate it would suffer extreme prejudice; 2) that its motion to be allowed not to participate in the lawsuit had been granted almost one year before; and 3) that the trial court did not have authority to require Aetna to participate in the trial. In the alternative, Aetna moved the trial court to sever the plaintiffs' uninsured- and under-insured-motorist claims against Aetna and set them for trial after the plaintiffs' claims against Rice had been resolved. *158 On July 9, 1997, the trial court entered an order requiring Aetna to participate in the lawsuit, denying Aetna's motion to sever, and ordering that Aetna participate in discovery and at trial, set over six weeks away on August 25, 1997. When Aetna filed its mandamus petition here, this Court granted Aetna's motion to stay the trial. Aetna contends that it has a right not to participate in the action, relying on Lowe v. Nationwide Ins. Co., 521 So. 2d 1309 (Ala. 1988). Aetna asserts that its motion to withdraw, or not to participate, was timely filed; that it was consented to by all parties; that it was granted by the trial court; and that the ruling allowing it not to participate had remained undisturbed for nearly a year. Moreover, Aetna argues that the trial court lacked authority to require it to participate in the case and argues that it will be prejudiced if it is required to participate. In Lowe, supra, this Court stated as follows: (Emphasis original.) 521 So. 2d at 1310. Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989). In its order of August 16, 1996, the trial court stated: Initially, we note that Aetna's motion to withdraw, in which it attempted to reserve a right "to return as a party to this action at a later date," is inconsistent with the procedure set forth in Lowe, supra, for an insurer to withdraw from an action such as this; therefore, the trial court had no authority to allow Aetna to withdraw while reserving the option to return. See, Edgar, supra. However, it is, apparent that the trial court, as well as the parties to this action, were in agreement to allow Aetna not to participate. After the trial court entered its order allowing Aetna not to participate, Aetna did not participate in the action for more than a year; during that time, Aetna alleges, a good deal of discovery was conducted and other pretrial procedures took place. Moreover, it was not until approximately six weeks before trial that Aetna, at the plaintiff's request, was forced to participate. For these reasons, we conclude that Aetna would be unduly prejudiced if it were compelled to participate in the trial of this action. Because of this undue prejudice against Aetna, the trial court incorrectly attempted to compel Aetna to participate. Aetna's petition for the writ of mandamus is, therefore, due to be granted. The trial court is directed to dismiss Aetna as a party defendant and to preclude the remaining parties from referring to or mentioning Aetna's potential interest in the trial of the plaintiffs' claims against Ronald Rice. Furthermore, it is hereby ordered that, in accord with Lowe, supra, Aetna will be bound by the factfinder's decisions on the issues of liability and damages, and, in accord with Edgar, supra, Aetna will have no right to return later as a party to this action. WRIT GRANTED. HOOPER, C.J., and SHORES and BUTTS, JJ., concur. MADDOX, J., concurs in the result. *159 MADDOX, Justice (concurring in the result). I concur in the result only. My position on the issue presented in this case was stated in my special writing in Lowe v. Nationwide Ins. Co., 521 So. 2d 1309, 1310 (Ala.1988) (Maddox, J., concurring specially). [1] Delois Jones, Daniel Jones's wife, joined her husband's complaint, claiming damages for loss of consortium.

January 9, 1998

abd0af89-13dc-4f5a-ac12-217c15282468

Ex Parte Clemons

720 So. 2d 985

1960904

Alabama

Alabama Supreme Court

720 So. 2d 985 (1998) Ex parte Eugene CLEMONS II (Re Eugene Milton Clemons II v. State). 1960904. Supreme Court of Alabama. January 16, 1998. Rehearing Denied August 21, 1998. *987 William F. Mathews, Pelham; and Ellen L. Wiesner and Bryan A. Stevenson, Montgomery, for petitioner. Bill Pryor, atty gen., and Tracy M. Daniel, asst. atty. gen., for respondent. KENNEDY, Justice. Eugene Clemons II was charged with murder. The indictment charged that the murder was made capital murder, on two bases that it occurred during the course of a robbery and that the victim was a law enforcement officer who was killed in the line of duty. See § 13A-5-40(a)(2) and (a)(5), Ala. Code 1975. Clemons was convicted of the capital offense of murder during a robbery. The jury unanimously recommended that he be sentenced to death by electrocution. The trial court accepted the jury's recommendation and sentenced Clemons to death. The Court of Criminal Appeals affirmed Clemons's conviction and death sentence. Clemons v. State, 720 So. 2d 961 (Ala.Cr.App. 1996). The facts are as follows: On May 28, 1992, Douglas Althouse, a special agent with the Drug Enforcement Administration (DEA), was shot and killed during a carjacking in Shelby County.[1] As part of his job, Althouse was working on an investigation with Sergeant Mark Hobbs of the Hoover Police Department. Hobbs and Althouse planned to meet on the evening of Thursday, May 28, 1992, between 10:00 and 11:00 p.m. to discuss search warrants to be executed the following day. Jefferson County sheriff's deputy Naylor Braswell, who shared an apartment with Althouse, agreed to go with Althouse to meet with Hobbs. Braswell and Althouse left for the meeting shortly before 10:00 p.m. in Braswell's undercover automobile, a black model Z-28 Chevrolet Camaro. On the way, they stopped at a Chevron service station to look at a telephone book. Their car had a cellular telephone, but Braswell wanted the number of a pizza delivery company so that he and Althouse could order a pizza to be delivered to their apartment after the meeting with Hobbs. Braswell went inside the station, while Althouse remained in the car in the passenger seat. While inside the service station, Braswell saw a person sitting in the driver's seat of the Camaro and pointing a gun at Althouse's head. Braswell told the store clerk to sound her alarm, as he began to run out the door. She told him that she did not have one, so Braswell turned and told her to telephone "911." As he was heading out the door, Braswell heard several shots and saw Althouse exit the car. Althouse fired his weapon at the Camaro as it sped away. Althouse died shortly thereafter from gunshot wounds. Testimony at trial revealed that Dedrick Smith had told several persons, including Clemons, that he needed a new engine for his Camaro Z-28. On the evening of the murder, Smith, Clemons, and Kenny Reed drove to a shopping center looking for a Camaro like Smith's. Failing to find one, they proceeded onto the highway in Smith's black Camaro. Clemons spotted Braswell's Z-28 Camaro at the Chevron service station; they stopped and Clemons, carrying a gun, exited the car. Immediately following the shooting, Clemons drove Braswell's car to the house of a friend, Herman Shannon. After examining the contents of the car and finding a shotgun and a bullet-proof vest with the word "sheriff" on it, Clemons realized that the car was a police vehicle. Clemons subsequently left town and went to his uncle's house in Ohio. Meanwhile, the Hoover police told FBI agents, who had come to investigate Althouse's murder, that a carjacking group was operating in the West End area of Birmingham. The Birmingham police found Braswell's Camaro in West End, four blocks from Herman Shannon's house. Braswell's shotgun *988 was found on the side of the road near Clemons's house, which was also in West End. Two days after the murder, Clemons was arrested by FBI agents in Cleveland, Ohio. He made a statement to the agents admitting that he had shot Althouse, but he claimed that he did so in self-defense in response to Althouse's drawing his gun. At trial, the state presented evidence of three separate carjacking incidents that had occurred within the month before Althouse's death. The evidence indicated that in each of them Clemons had deprived the victims of their automobiles at gunpoint. On this certiorari review Clemons raises 28 issues and numerous subissues, most of which were raised in, and addressed by, the Court of Criminal Appeals. The issues not presented to the Court of Criminal Appeals concerned Clemons's absence during part of the voir dire examination of one potential juror, his attempt to fire his lawyers, and the use of a photograph for in-court identification. At oral argument before this Court on this certiorari review, Clemons's counsel focused on Clemons's absence from the courtroom for most of the trial. We will discuss those issues not raised before the Court of Criminal Appeals, along with the issue of Clemons's absence during most of the trial. Clemons was not present during part of the individual voir dire examination of one potential juror. The veniremember told the trial court that he had a matter of concern that he preferred not to discuss in front of Clemons. Clemons consented to the questioning of this veniremember in his absence. The veniremember told the court that he was concerned about his personal security and possible retaliation by Clemons's family or friends if Clemons was found guilty. The trial court explained the security measures taken for the jury in a capital case. The veniremember stated that his security concerns would not prevent him from being a fair juror. Afterwards, Clemons's attorney informed Clemons of the juror's concerns. Ultimately, the veniremember did not sit on the jury. Clemons contends that the trial court should have told him that he had an absolute right to be present during all voir dire examination and contends that a defendant cannot waive his right to be present at any critical stage of the proceedings. The State argues that Clemons's presence during the discussion with the veniremember did not have a reasonable, substantial relation to the fullness of his opportunity to defend against the charge. Obviously, Clemons did not object at trial as to his absence from the veniremember's examination. Therefore, this claim must be reviewed pursuant to the "plain error rule." Rule 39(k), Ala.R.App.P. Plain error is error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the proceedings. Ex parte Jackson, 672 So. 2d 810 (Ala.1995). During the voir dire examination, the veniremember in question informed the court that he had a matter he wanted to discuss with the court outside Clemons's presence. (R.T. 369.) The court acknowledged Clemons's right to be present at all stages of the trial, but gave Clemons the opportunity to discuss with counsel whether he would consent to the veniremember's request. The court was concerned that if it denied the request, then the veniremember might not tell the parties his concerns. Clemons's counsel wanted to hear what the veniremember had to say. (R.T. 370.) The veniremember was then questioned in front of the parties, including Clemons; he stated that he had two matters to discuss with the court. He discussed the first matter with Clemons present. It concerned an incident wherein he was arrested for failing to pay a traffic citation; he explained the incident in detail for the court. The veniremember said he had forgotten to put that information on his jury questionnaire. The veniremember was excused from the courtroom and in his absence the parties, including Clemons, discussed how they wanted to proceed with the second matter. Clemons's counsel told the court that he wanted to consult with Clemons about the veniremember's request, but also wanted the court to know that whatever the veniremember *989 disclosed to the court would be disclosed to Clemons. (R.T. 374-75.) After consulting with Clemons, Clemons's counsel told the court that Clemons consented to the veniremember's request to meet with the court and the attorneys in his absence. Clemons's counsel stated that Clemons's waiver extended only to whatever disclosure the veniremember made to the court and not to any other questioning of the veniremember on matters covered with other members of the venire. (R.T. 376-77.) The veniremember returned to the courtroom, without Clemons present, he told the court that he was concerned about his personal security and possible retaliation by Clemons's family if Clemons was found guilty of capital murder. The court then briefly explained the security procedures involved in the trial. The court asked the veniremember whether his concerns about security would effect his ability to serve as a juror. The veniremember assured the court that his security concerns would not prevent him from being a fair juror. A person charged with a felony has a fundamental right to be present at every stage of the trial. Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970). That right includes the right to be present at voir dire examination of jurors and empanelling of the jury. Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500 (1912). The right of presence derives from the Confrontation Clause of the Sixth Amendment to the United States Constitution and the Due Process Clauses of the Fifth and Fourteenth Amendments. United States v. Gagnon, 470 U.S. 522, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985). Rule 9.1, Ala.R.Crim.P., acknowledges a defendant's right to be present at every stage of the trial, including the selection of a jury. The rule further provides that a defendant charged with a capital crime may not waive the right to be present. We note that a defendant can lose his right to be present at trial if he insists on disruptive behavior. Allen. However, the issue now before us is whether it was error for the trial court to allow the defendant to be absent during a portion of one veniremember's voir dire examination. We must indulge every reasonable presumption against the loss of the constitutional right to be present at a critical stage in the trial. Allen, 397 U.S. at 343, 90 S. Ct. at 1060-61. However, we find no difficulty in concluding that no error occurred in Clemons's consenting to a brief absence while the veniremember discussed his security concern with the court and the attorneys. Clemons's presence during the discussion did not have a reasonably substantial relationship to the fullness of his opportunity to defend against the murder charge. Harris v. State, 632 So. 2d 503, 510 (Ala.Cr.App.1992), aff'd, 632 So. 2d 543 (Ala.1993). The veniremember was not a witness, and the matter discussed was unrelated to Clemons's guilt or innocence. Clemons was represented by counsel, and counsel subsequently informed Clemons of the veniremember's concerns. Clemons has not shown that he was prejudiced in any way by his brief absence. We find Finney v. Zant, 709 F.2d 643 (11th Cir.1983), to be persuasive. In Finney, the defendant was convicted of capital murder and was sentenced to death. He argued that his rights to due process and to confrontation of witnesses were violated during a short absence when he went to the restroom. During his brief absence, the State was examining a witness concerning a search. "Because the basis of the right to be present at trial is the constitutional mandate [that one be provided] an opportunity to defend oneself, due process requires that the defendant be personally present `to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'" Finney, 709 F.2d at 646, quoting Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S. Ct. 330, 333, 78 L. Ed. 674 (1934). The Finney court noted that there was no indication in the record that the defendant's absence was of any significance, because his attorneys were present at all times, the absence was brief, and the witness's testimony was corroborated by other witnesses who testified while the defendant was present. This present case involves a potential juror who did not sit on the jury; the matter that *990 potential juror discussed did not concern Clemons's guilt or innocence; and that matter was disclosed to Clemons. Any error resulting from Clemons's brief absence during part of the voir dire examination of a potential veniremember was harmless. Clemons next argues that his absence during some of the guilt phase and from all of the sentencing phase rendered his conviction fundamentally unfair. Clemons's absence occurred after the State had presented five witnesses and was about to put Clemons's uncle on the stand. His uncle was to testify that Clemons had confessed to him. While the state was trying to swear in his uncle, Clemons repeatedly stated that he wanted to fire his lawyers and that he had already been convicted in a federal court of murder based on this killing. Outside the presence of the jury, the judge and Clemons had a heated debate over his behavior and over whether Clemons would cooperate during the remainder of the trial. Several times, Clemons asked that the court send him back to jail. Rather than gagging and binding Clemons, the court had him removed to a holding cell in the courthouse until he was willing to cooperate. Clemons argues that his constitutional right to be present at every stage of the proceeding was violated by his removal. The State contends that his absence was a minor interruption. Clemons also claims that he was never allowed to return to the courtroom even though he wanted to. The State contends that Clemons was repeatedly asked if he wanted to return to the courtroom and that he adamantly answered that he did not. The following excerpt from the trial transcript reflects what occurred in the courtroom: (R.T. 1060-72.) Following Clemons's removal, defense counsel moved for a mistrial based on Clemons's statements in front of the jury indicating that he had previously been convicted in a federal court for Althouse's murder. (R.T. 1077-78.) Defense counsel also stated that because of Clemons's lack of cooperation and "belligerence" toward counsel, counsel did not know if he could continue to represent Clemons. The trial court denied the motion for a mistrial and ruled that defense counsel could continue to represent Clemons in his absence. The prosecutor reminded the court that it had released two other lawyers from representing Clemons because of Clemons's inability to get along with them. (R.T. 1080.) At the conclusion of Michael Clemons's testimony, and outside the presence of the jury, the trial court cited Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970), for the actions a trial court could take regarding a disruptive and uncooperative defendant. The court noted that by his own conduct a defendant can lose his right to be present at trial, but that "the right to be present can be reclaimed as soon as he is willing to conduct himself consistently with decorum and respect ... of courts and judicial procedures." (R.T. 1095.) The trial court reiterated that Clemons did not want to be bound and gagged. The court also stated that Clemons could return to the courtroom whenever he assured the court that he would behave. The court offered to give curative instructions to the jury if the parties desired. Several times during the remainder of the trial, Clemons was asked if he wanted to return. Defense counsel was instructed to confer with Clemons and determine whether he was willing to return to the courtroom and not disturb the proceedings. (R.T. 1149-50, 1229-30, 1231-32.) The record reflects that approximately one hour after Clemons was removed from the courtroom, the bailiff asked Clemons whether he wanted to return to the courtroom and that Clemons answered, "[T]ell that Judge that I said that I have fired those attorneys and they can kiss my ass and I am not coming back up here." (R.T. 1230.) The trial court set up a viewing room close to the courtroom; in that room Clemons could view the proceedings on a television monitor and consult with counsel during breaks. (R.T. 1231-32.) A deputy sheriff explained to Clemons that he could sit outside the courtroom and watch the trial on a monitor. (R.T. 1239-41.) Clemons declined to do so. Clemons told the deputy that he was afraid "they" were going to "jump him" and make him return to the courtroom. (R.T. 1241.) Clemons's lawyers told him that they needed him to assist in his defense. As we stated above, every defendant has a constitutional right to be present at every stage of the proceedings against him. Illinois v. Allen. However, "a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom." Allen, 397 U.S. at 343, 90 S. Ct. at 1060-61. Allen, 397 U.S. at 343-44, 90 S. Ct. at 1061. Following the standards set out in Allen, this Court adopted Rule 9.2(a), Ala.R.Crim. P., which provides: Rule 9.2(b) provides that a defendant who has been previously removed from the courtroom or has been previously restrained has the right to return to the courtroom if he assures the court that he will not again disrupt the proceedings. Rule 9.2(c) directs the trial court to provide the defendant removed from the trial with the ability "to hear, observe, or be informed of," the remaining portions of the trial. The record reflects that the trial judge repeatedly warned Clemons that if he did not cease his disruptive behavior he would be bound and gagged or removed from the courtroom. Clemons continued to be disruptive and disorderly by telling the jury that he had already been tried in a federal court for the same crime. Clemons was apparently attempting to cause a mistrial by making such statements. Clemons ignored the trial judge's warnings and continued to be disruptive. Clemons refused to assure the trial judge that he would not disrupt the proceedings again. When the trial judge ordered that Clemons be bound and gagged, both Clemons and his trial counsel objected and asked that he be removed from the courtroom instead. Clemons was offered several opportunities to return to the courtroom, but he refused to do so. He was also provided an opportunity to view the proceedings on a television monitor and to consult with counsel during the breaks, but he refused to cooperate. Given Clemons's refusal to stop his unruly conduct, his refusal to assure the court that he could conduct himself in an orderly manner, and his refusal to paricipate in his own trial after repeatedly being offered a chance to do so, we conclude that his constitutional right to be present at trial was not violated by his absence. Clemons next argues that the trial court erred in allowing an in-court identification of him from a photograph; the identification was made while he was out of the courtroom, and was made by three witnesses who the State alleged had been the victims of carjackings by Clemons. Clemons's attorneys stipulated that the photograph was a photograph of Clemons. The photograph is like a "mug shot," except that in the photograph Clemons is not holding numbers. Clemons argues that the attorneys' stipulation did not cure the constitutional problems with the photograph identification. Clemons notes that two years had passed since the carjackings involving these three witnesses. None of the three victims had identified Clemons in court before or had picked him out of a line-up before identifying the single photograph at trial. Clemons argues that exposing the victims to a single photograph at the trial, under these circumstances, created overwhelming pressure on them to make an identification and that the situation was inherently suggestive. Clemons argues that the identification procedure violated his rights to confrontation and due process because, he says, it allowed key witnesses to identify him as a criminal without having to face him. The State argues that Clemons did not object at trial to the use of the photograph and, thus, that Clemons's argument is subject to the "plain error rule." The State contends that nothing in the record indicates that the identifications were anything but reliable. The State also contends that Clemons is now seeking relief on a claim that was "invited error" on his part, resulting from his own disruptive behavior in court. *995 This issue was not presented to the trial court or to the Court of Criminal Appeals but was first raised in this Court. Therefore, we must review it under the plain error rule. Obviously, Clemons's trial counsel did not object to the use of the photograph; they stipulated that it was a photograph of Clemons. Clemons is not claiming here that the photograph is not a photograph of him; instead, he is arguing that the stipulation did not cure the constitutional defects he says exist in using this method of identification. Clemons cites several cases for the proposition that a pre-trial, single-photograph identification procedure has a corrupting effect on later in-court identification. See Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Fitchard v. State, 424 So. 2d 674 (Ala.Crim.App.1982). Clemons argues that what happened in his case is more egregious than those situations where a single photograph or other suggestive material was used before trial, because in his case the single photograph was used at trial. See Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). "[R]eliability is the linchpin in determining the admissibility of identification testimony...." Manson, 432 U.S. at 114, 97 S. Ct. at 2253. Identification testimony will be suppressed only if the identification procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384, 88 S. Ct. at 971. This determination turns upon the totality of the circumstances in each case, considering factors that "include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Manson, 432 U.S. at 114, 97 S. Ct. at 2253. To determine whether suppression is warranted, we must weigh the totality of the circumstances against the "corrupting effect of the suggestive identification itself." Id. We find no plain error in the use of the photograph to identify Clemons during his absence at trial. First, the necessity for photographic identification was a direct result of Clemons's disruptive behavior in court. Second, each of the witnesses testified as to their recollection of the events surrounding the stealing of their cars at gunpoint and their opportunity to observe Clemons during the crimes. Third, before the three carjacking victims/witnesses testified, other witnesses had testified that Clemons was the one who committed the carjackings involving these three victims. Frank Blanchard testified that he was about to leave the parking lot of the Galleria shopping mall in his Ford Mustang automobile when he and his son were robbed of the car at gunpoint. (R.T. 1520-29.) Before Blanchard testified, Luke Johnson had testified that he was with Clemons the night Clemons stole a Ford Mustang from a man and a small boy at the Galleria parking lot. (R.T. 1475-80.) Jason Lipsey testified that he and his friend had their car stolen from them at gunpoint while they were at a BP service station on Green Springs Highway in Birmingham. (R.T. 1529-40.) Before Lipsey testified, Dedrick Boyd had testified that he was with Clemons when Clemons stole a car at gunpoint from two men while they were at the BP service station on Green Springs Highway. (R.T. 1493-99.) Christopher Richardson testified that his gray Ford Mustang was stolen from him at gunpoint at the Crown service station in Forestdale. (R.T. 1541-49.) Dedrick Boyd had testified earlier that he was with Clemons when Clemons stole a gray Ford Mustang from a service station in Forestdale. (R.T. 1503-07.) Last, Clemons argues that the trial court erred in not discussing with him his right to defend himself. At the time when Clemons stated that he wanted to fire his lawyers, one of his attorneys stated that Clemons could represent himself and that he would act as standby counsel. The trial court then asked Clemons if he wanted to represent himself. Clemons replied by stating that he would have to check with his *996 family, and he continued to state that it was unfair to try him in the state court when he had already been tried in a federal court. The trial court again asked Clemons if he could sit in the courtroom and not be disruptive. The trial court also told Clemons that he could represent himself and have his attorney act as standby counsel. Clemons told the court that he would not be able to represent himself and that he wanted a new lawyer. The trial court then gave Clemons another chance to represent himself or to proceed to trial with his current attorneys. Clemons responded, "Send me to the jail." Clemons argues that he was never informed of his absolute right to defend himself. He also contends that the trial court failed to fully inform him of the meaning of "standby counsel." The State contends that Clemons clearly indicated that he did not want to represent himself and that only if he had indicated a desire to represent himself would the court have been required to engage Clemons further on that matter. This issue was not presented at trial; therefore, this Court's review is pursuant to the plain error rule. If a defendant voluntarily and intelligently chooses to waive his right to counsel, he should be informed by the court of the dangers and disadvantages of representing himself, so that the record will reflect that he knows what he is doing and that he is making his choice with his eyes open. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). It is clear from the record that Clemons had no difficulty understanding the concept of representing himself. He clearly stated that he did not want to represent himself. In fact, Clemons never asked that he be allowed to represent himself. When the trial court presented him the offer to represent himself, Clemons declined. Following Clemons's rejection of that offer, it was unnecessary for the trial court to further discuss with him his right to represent himself. The judgment of the Court of Criminal Appeals is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, COOK, BUTTS and SEE, JJ., concur. [1] Clemons was convicted in a federal court of murdering a federal agent who was engaged in the performance of his duties and of carrying and using a firearm in the commission of a crime of violence. United States v. Clemons, 32 F.3d 1504 (11th Cir.1994).

January 16, 1998

f9590d67-c8e3-4360-aff7-0fd46ce35bb3

Ex Parte Payne

791 So. 2d 408

1991506

Alabama

Alabama Supreme Court

791 So. 2d 408 (2000) Ex parte Max Landon PAYNE. (Re Max Landon Payne v. State). 1991506. Supreme Court of Alabama. December 15, 2000. Bruce D. Nestor of Tindal, Erdahl, Goddard & Nestor, Iowa City, Iowa; and Ellen Wiesner of Equal Justice Initiative of Alabama, Montgomery, for petitioner. Bill Pryor, atty. gen., and Kathryn D. Anderson, asst. atty. gen., for respondent. Prior report: Ala.Cr.App., 791 So. 2d 383. JOHNSTONE, Justice. The petition for a writ of certiorari is denied. In denying the petition for the writ of certiorari, this court does not wish to be understood as approving the discussion or the statements of law concerning the petitioner's Brady violation claim in the Court of Criminal Appeals' opinion. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). See Ex parte Pierce [Ms. 1981270, September 1, 2000] ___ So.2d ___ (Ala.2000) (holding that a constitutional violation claim under Rule 32.1(a), Ala.R.Crim.P., need not meet the requirements of a "newly discovered" evidence *409 claim under Rule 32.1(e), Ala. R.Crim.P.). WRIT DENIED. HOOPER, C.J., and COOK and LYONS, JJ., concur. MADDOX, J., concurs in the result.

December 15, 2000

8137d7db-0af0-4121-9071-f6c3acb3927d

Middlebrooks v. State Bd. of Health

710 So. 2d 891

1961079

Alabama

Alabama Supreme Court

710 So. 2d 891 (1998) Mark MIDDLEBROOKS, M.D., P.A. v. STATE BOARD OF HEALTH. 1961079. Supreme Court of Alabama. January 9, 1998. Rehearing Denied March 6, 1998. Joel E. Dillard of Baxley, Dillard, Dauphin & McKnight, Birmingham, for appellant. John R. Wible, asst. atty. gen., Department of Public Health, for appellee. MADDOX, Justice. This case presents the issue whether § 22-11A-2, Ala.Code 1975, which requires physicians, dentists, and certain other persons to report cases or suspected cases of "notifiable diseases" and health conditions, such as HIV infections and AIDS cases, to the Alabama State Board of Health, is discriminatory and therefore violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. Dr. Mark Middlebrooks, a physician practicing in Jefferson County, specializes in infectious diseases. Through his practice, Dr. Middlebrooks diagnoses and treats patients who are infected with HIV and AIDS. Under the provisions of § 22-11A-2, Dr. Middlebrooks is within the class of persons required to report all cases of HIV infection and AIDS to the State Board of Health. The required reports are to include the names and addresses of persons infected.[1] *892 In July 1993, Dr. Middlebrooks was contacted by officials of the Jefferson County Health Department, who requested that he comply with the reporting mandate of the statute and with the rules of the State Board of Health. (See note 1.) Dr. Middlebrooks provided certain statistical data, as the statute and regulatory rules required, but he refused to provide the names and addresses of his patients. On September 8, 1994, the State Board of Health filed this action against Dr. Middlebrooks, seeking to compel him to disclose the names and addresses of his HIV and AIDS patients, as required by statute and rule. On March 13, 1996, the trial court entered an order compelling disclosure; Dr. Middlebrooks appealed. Dr. Middlebrooks primarily contends that the statutory and regulatory scheme violates the Equal Protection Clause of the Fourteenth Amendment because persons or entities not listed in the statute are authorized by regulations adopted by the Federal Food and Drug Administration to sell confidential HIV-testing kits and the sellers of those kits are not required to report the names and addresses of the purchasers. Dr. Middlebrooks argues that he is subjected to discriminatory treatment because he is required to report the names and addresses of his HIV and AIDS patients while those who sell the testing kits and out-of-state testing laboratories that evaluate the test results are not required to report the names and addresses of those persons who test positive. In order to address Dr. Middlebrooks's arguments, we believe it essential to discuss briefly the right of privacy in regard to disclosure of medical information relating to diseases such as HIV and AIDS. The United States Supreme Court has stated: Whalen v. Roe, 429 U.S. 589, 602, 97 S. Ct. 869, 878, 51 L. Ed. 2d 64 (1977). In United States v. Westinghouse Electric Corp., 638 F.2d 570, 578 (3d Cir.1980), the United States Court of Appeals for the Third Circuit established factors for a court to consider when determining "whether an invasion into an individual's records is justified." Those factors are: Id. After weighing the Westinghouse factors, we hold that the prevention of the spread of HIV and AIDS is a legitimate governmental *893 interest, and that, even in regard to HIV and AIDS, where, in some situations, the disclosure may reflect unfavorably on the character of the patient,[2] the State can require disclosure to representatives of the State having responsibility for the health of the community, and that the disclosure required by § 22-11A-2 does not amount to an impermissible invasion of privacy. The statute and the regulatory rules adopted pursuant thereto have adequate safeguards to protect the medical records from unauthorized disclosure. Now that we have determined that § 22-11A-2 does not violate the right to privacy, we must decide whether Dr. Middlebrooks's constitutional right to equal protection is violated by the fact that § 22-11A-2 does not apply to the stores that market and sell at-home HIV testing kits and out-of-state testing labs that analyze the results of the tests. The purpose of the Equal Protection Clause is to prevent states from enacting legislation that treats persons "similarly situated" differently. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985). "It does not, however, require that a statute necessarily apply equally to all persons or require that things different in fact be treated in law as though they were the same." McClendon v. Shelby County, 484 So. 2d 459, 464 (Ala.Civ.App.1985). We conclude that the State has made a reasonable classification in this instance. It appears to us that the out-ofstate testing labs that analyze the results of the testing kits are not, as to those required to report HIV and AIDS cases under § 22-11A-2, similarly situated.[3] We conclude that the trial judge properly ordered Dr. Middlebrooks to disclose to the State Board of Health the names of his patients infected with HIV and AIDS. The judgment is, therefore, affirmed. AFFIRMED. HOOPER, C.J., and HOUSTON, BUTTS, and SEE, JJ., concur. ALMON, J., concurs in the result. SHORES and COOK, JJ., dissent. [1] Section 22-11A-2 provides, in part: "Each physician, dentist, nurse, medical examiner, hospital administrator, nursing home administrator, laboratory director, school principal, and day care center director shall be responsible to report cases or suspected cases of notifiable diseases and health conditions. The report shall contain such information, and be delivered in such a manner, as may be provided for from time to time by the rules of the state board of health. All medical and statistical information and reports required by this chapter shall be confidential and shall not be subject to the inspection, subpoena, or admission into evidence in any court, except proceedings brought under this chapter to compel the examination, testing, commitment or quarantine of any person or upon the written consent of the patient, or if the patient is a minor, his parent or legal guardian. Any physician or other person making any report required by this chapter or participating in any judicial proceeding resulting therefrom shall, in doing so, be immune from any civil or criminal liability, that might otherwise be incurred or imposed. The rules of the State Board of Health define HIV and AIDS as "notifiable diseases" and require the reporting person to give the patient's name and address and certain laboratory data. Alabama Administrative Code, Chapter 420-4-1 et seq. [2] See Doe v. Borough of Barrington, 729 F. Supp. 376 (D.N.J.1990). [3] We note, from the Board's brief, that Alabama, like other states, is attempting to get a waiver of the federal rule that permits the sale of testing kits within the state. In any event, it appears to us that the out-of-state testing labs do not know the identity of the persons that are being tested. The vendors of the testing kits are not similarly situated, because they merely sell the kits and have no information on whether a particular purchaser is HIV- or AIDS-positive.

January 9, 1998

6dc95801-facf-432d-99a4-fb779473d089

Stewart Title of Mobile, Inc. v. Montalvo

709 So. 2d 1194

1960177

Alabama

Alabama Supreme Court

709 So. 2d 1194 (1998) STEWART TITLE OF MOBILE, INC. v. Ted E. MONTALVO, et al. 1960177. Supreme Court of Alabama. January 30, 1998. Louis E. Braswell of Hand Arendall, L.L.C., Mobile, for appellant. William H. Philpot, Jr., Mobile, for appellees. BUTTS, Justice. AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(F), Ala. R.App.P. ALMON, SHORES, KENNEDY, and COOK, JJ., concur. HOOPER, C.J., and MADDOX and SEE, JJ., dissent. MADDOX, Justice (dissenting). This appeal involves a question of the right of a defendant to compel arbitration. Because this Court refuses to compel arbitration, I respectfully dissent. Stewart Title Guaranty Company, a Texas corporation, issued the plaintiffs a title insurance policy that contained an arbitration clause. Stewart Title of Mobile, Inc., an Alabama corporation, signed the policy as the "authorized signatory." The trial court compelled arbitration of the plaintiffs' claims against Stewart Title Guaranty, but refused to compel arbitration of their claims against Stewart Title of Mobile. The specific questions presented on this appeal are: (1) Did Stewart Title of Mobile have standing to compel arbitration? and (2) if so, did it waive its right to compel arbitration? I believe Stewart Title of Mobile did have standing to compel arbitration under the particular facts and circumstances of this case. Because of the strong federal policy favoring arbitration, I also believe that it did not waive its right to compel arbitration. Consequently, I would reverse and remand. Ted Montalvo and Kathryn Montalvo, husband and wife, were purchasing a house in Mobile. They hired Stewart Title of Mobile, and Stewart Title Guaranty Company, to examine the title of the property they were purchasing and to provide title insurance. After the title examination was completed, the Montalvos completed the purchase; they subsequently discovered that the property had been the subject of foreclosure proceedings and was still subject to rights of redemption under applicable law. The Montalvos initially sued Stewart Title of Mobile and Cooper and Company, Inc., the listing and selling broker for the property, asserting, in separate counts, claims of misrepresentation, suppression, negligence and/or wantonness, and breach of contract. Later, the Montalvos amended their complaint to add Stewart Title Guaranty as a defendant, asserting against Stewart Title Guaranty the same claims they had asserted against Stewart Title of Mobile.[1] *1195 Stewart Title Guaranty moved the trial court to compel arbitration. The trial court granted its motion, but denied a similar motion made by Stewart Title of Mobile. Stewart Title of Mobile appeals from that order denying arbitration. The arbitration clause that is the basis of the appeal is contained in the title insurance policy issued by Stewart Title Guaranty, which a representative of Stewart Title of Mobile signed as an authorized signatory. The clause states: The first issue is whether the arbitration clause is broad enough in scope to authorize Stewart Title of Mobile to compel arbitration of the claims filed against it by the Montalvos. It is undisputed that the title insurance contract involves interstate commerce, because the Montalvos are residents of Alabama and Stewart Title Guaranty is a Texas corporation. Because the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (1982), preempts state law and regulates all written arbitration agreements appearing in contracts involving interstate commerce, the trial court correctly held that Stewart Title Guaranty was entitled to compel arbitration. Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). The question presented here, however, is whether Stewart Title of Mobile is also entitled to compel arbitration. The Montalvos argued before the trial court, and they contend here, that the arbitration provision does not apply to Stewart Title of Mobile because the provision in the title insurance policy refers specifically only to Stewart Title Guaranty. Stewart Title of Mobile, on the other hand, citing Ex parte Gray, 686 So. 2d 250 (Ala. 1996), and stating that its representative signed the contract on its behalf as an "authorized signatory," contends that the arbitration clause in the title insurance policy is broad enough in scope to include the claims asserted against it by the Montalvos. Stewart Title of Mobile further argues that "the Federal Arbitration Act establishes a strong federal policy favoring arbitration, requiring that the courts `rigorously enforce' arbitration agreements."[2] *1196 Stewart Title of Mobile further contends that "the claims asserted against Stewart Title of Mobile are arbitrable because they are the same as, and present the same factual issues as, the claims against Title Guaranty Company, which the trial court ordered for arbitration." When there is an ambiguity as to the scope of the arbitration clause, it should be resolved in favor of arbitration. Volt Information Sciences, Inc. v. Board of Trustees of Stanford University, 489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989). Based on the law of arbitration, as I understand it, I believe that the arbitration clause in the title insurance policy is broad enough in scope to include the claims asserted against Stewart Title of Mobile by the Montalvos, and that Stewart Title of Mobile is entitled to compel arbitration of those claims. The next issue is whether Stewart Title of Mobile waived its right to compel arbitration. The Montalvos argued at trial, and renew their argument here, that even if Stewart Title of Mobile was entitled to arbitration it waived its right to demand arbitration. "It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration." Companion Life Ins. Co. v. Whitesell Mfg., Inc. 670 So. 2d 897, 899 (Ala.1995). In that case, this Court discussed the factors to be considered when the issue of waiver is presented: 670 So. 2d at 899. The Court has also stated that "[b]ecause arbitration is so strongly favored, `the burden on one seeking to prove waiver is a heavy one.'" Ex parte McKinney, 515 So. 2d 693, 701 (Ala.1987) (quoting Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So. 2d 1, 2 (Ala.1986)). When the Montalvos amended their complaint to add Stewart Title Guaranty as a defendant, it was apparent that the Montalvos were asserting the same claims against Stewart Title of Mobile as they were asserting against Stewart Title Guaranty. The title insurance policy that representatives of Stewart Title of Mobile signed on its behalf as "authorized signatory," states that "either the Company or the insured may demand arbitration." "The Company" is defined in the policy as "Stewart Title Guaranty Company"; hence, either the Montalvos or Stewart Title Guaranty had the right to demand arbitration.[3] This Court has previously addressed the question of when a party waives its right to compel arbitration. In Merrill Lynch, Pierce, Fenner & Smith, supra, this Court held that even though the defendant had waited a year to seek arbitration there was no waiver of the right to compel arbitration, because the plaintiff had delayed taking action that would have made arbitration appropriate. 494 So. 2d 1, 3. In Ex parte Gates, 675 So. 2d 371 (Ala. 1996), this Court examined the factors a court is to consider when determining whether a party has waived its right to seek arbitration. It stated: 675 So. 2d at 374. To prove waiver, the Montalvos must show that they have been prejudiced by Stewart Title of Mobile's participation in the litigation. I believe there was no prejudice and that the Montalvos should be required to arbitrate their claims against Stewart Title of Mobile. The Montalvos asserted the same claims against both Stewart Title Guaranty and Stewart Title of Mobile. It would be more judicially efficient if the claims against Stewart Title of Mobile were also arbitrated. To use words of the Georgia Court of Appeals in Paine, Webber, Jackson & Curtis, Inc. v. McNeal, 143 Ga.App. 579, 582, 239 S.E.2d 401, 404 (1977), I am "persuaded that the ends of justice [would be] more nearly met" by requiring that Stewart Title of Mobile "be allowed to participate in the arbitration." After examining all of the facts and circumstances of this case, and in view of the holding in Ex parte Gates, I am of the opinion that "the ends of justice" would be more nearly served by holding that Stewart Title of Mobile did not waive its right to compel arbitration of the same claims that the trial court has ordered the plaintiffs to arbitrate in regard to Stewart Title Guaranty. Based on the foregoing, I dissent. HOOPER, C.J., and SEE, J., concur. [1] As to the first cause of action, misrepresentation, the complaint states that both Stewart Title Guaranty and Stewart Title of Mobile were hired to examine the title and advise the plaintiffs of the results and that both companies sold the title insurance policy to the plaintiffs. Specifically, the plaintiffs alleged the following: "Defendants Stewart Title of Mobile, Inc. and Stewart Title Guaranty Co. [were] hired by the plaintiffs to examine the title to said property and fully advise the plaintiffs of the results of their title examination. Additionally, defendants Stewart Title of Mobile, Inc. and Stewart Title Guaranty Co. sold, issued and provided to plaintiffs title insurance." (C.R. 227.) This paragraph is incorporated by reference into the other three claims. (C.R. 228-29.) Paragraphs seven and eight of the first count refer to misrepresentations of the "defendants" without making any differentiation in the conduct of either defendant. (C.R. 227.) As to the second claim, suppression, the complaint avers that the "defendants" were guilty of suppression, without differentiating as to the conduct of any particular defendant. (C.R. 228.) The third claim, negligent and/or wanton conduct, is asserted against only Stewart Title Guaranty and Stewart Title of Mobile. The averments as to this claim make no differentiation in the conduct of either company. This claim avers negligence and wanton conduct against both of the companies in the same language, which is as follows: "15. Defendants Stewart Title of Mobile, Inc. and Stewart [Title] Guaranty Co. acted negligently and/or wantonly in their performance of a title examination and/or in reporting the results of their title examination. "16. The negligence and/or wantonness of defendants Stewart Title of Mobile, Inc. and Stewart Title Guaranty Co. proximately caused injury and damage to the plaintiffs." (C.R. 229.) The fourth claim, breach of contract, is asserted only against Stewart Title Guaranty and Stewart Title of Mobile. It similarly makes no differentiation in the conduct of either defendant. The same language pertains to the conduct of both parties, as the following paragraphs of the complaint indicate: "18. Defendant Stewart Title of Mobile, Inc. and Stewart Title Guaranty Co. had a contract with the plaintiffs to examine the title of said property and fully advise plaintiffs of the results of the examination. "19. Defendant Stewart Title of Mobile, Inc. and Stewart Title Guaranty Co. breached this contract by not properly examining the title and/or not fully advising plaintiffs of the results of their examination." (C.R. 229.) In summary, the plaintiffs have asserted identical claims against Stewart Title Guaranty and Stewart Title of Mobile. These claims against both companies appear to be based upon the title examination and upon these defendants' advising the plaintiffs of the results of the examination. I conclude that, in the language of the arbitration clause in the policy issued to the Montalvos by Stewart Title Guaranty, these claims "[arise] out of or [relate] to [the] policy, [some] service of the Company in connection with its issuance or the breach of a policy provision or other obligation." [2] Ex parte McKinney, 515 So. 2d 693, 699 (Ala. 1987) [3] The action was initially brought against only Stewart Title of Mobile and Cooper and Company. On June 12, 1996, the Montalvos added Stewart Title Guaranty as a defendant. On August 27, 1996, Stewart Title Guaranty demanded arbitration. On September 9, 1996, Stewart Title of Mobile moved to compel arbitration. I would conclude that under the provisions of the arbitration provision Stewart Title of Mobile did not have the right to demand arbitration until Stewart Title Guaranty demanded it. Because Stewart Title of Mobile promptly demanded arbitration after Stewart Title Guaranty did, I would conclude that Stewart Title of Mobile did not waive its right to arbitrate.

January 30, 1998

94f9de7d-5fb5-4d6a-9772-02c936cd8216

Ex Parte Fletcher

718 So. 2d 1132

1960564

Alabama

Alabama Supreme Court

718 So. 2d 1132 (1998) Ex parte Tellys Quanteas FLETCHER. (Re Tellys Quanteas Fletcher v. State). 1960564. Supreme Court of Alabama. January 23, 1998. Andrew Dalins, Huntsville, for petitioner. Bill Pryor, atty. gen., and P. David Bjurberg, asst. atty. gen., for respondent. SEE, Justice. A jury convicted Tellys Quanteas Fletcher of trafficking in cocaine, specifically, of having actual or constructive possession of 28 grams or more of a mixture containing cocaine. Ala.Code 1975, § 13A-12-231(2). The trial court sentenced Fletcher to 12 years in prison. The Court of Criminal Appeals upheld the conviction and the sentence without an opinion. Fletcher v. State, (No. CR-95-1275) 689 So. 2d 1017 (Ala.Crim.App. 1996) (table). Because we hold that the legal substances found with the cocaine did not combine with the cocaine so as to create a "mixture" and, thus, cannot be weighed with the cocaine to meet the 28-gram threshold of § 13A-12-231(2), we reverse and remand. *1133 The Huntsville Police Department apprehended a suspect on his way to make a delivery of over 144 grams of crack cocaine to Fletcher. With the cooperation of this suspect, the investigators organized a controlled delivery to Fletcher. They purchased unscented gold-colored Dial soap, which is approximately the same color as crack cocaine. The investigators broke the soap into two pieces and put it into a bag with a piece of real crack cocaine from the police department's inventory. While investigators monitored the location where the controlled delivery was to take place, Fletcher and another suspect entered the informant's car. After waiting a couple of minutes, the investigators approached the car. Fletcher was found in the backseat, next to the bag containing the cocaine. Fletcher was arrested and indicted for trafficking in cocaine. At trial, Ed White, a forensic scientist with the State of Alabama Department of Forensic Sciences, testified that he was given a bag containing two types of substances to analyze in reference to this case. He determined that one of the substances was crack cocaine, weighing 7.01 grams. The other substance consisted of two pieces of solid bar soap: one weighing 7.9 grams, and the other weighing 56.72 grams. The combined weight of both substances contained in the bag was 71.63 grams. The trial court instructed the jury on the offense of trafficking in cocaine and on the lesser-included offense of unlawful possession of a controlled substance. The jury convicted Fletcher of trafficking in cocaine, in violation of § 13A-12-231(2). That section provides in pertinent part: (Emphasis added.) Fletcher contends that the trial court erred in counting the 64.62 grams of bar soap with the 7.01 grams of crack cocaine for purposes of meeting the 28-gram threshold of § 13A-12-231(2). Specifically, he argues that the broken pieces of bar soap and the crack cocaine do not constitute a "mixture" as required by § 13A-12-231(2). The State argues that the term "mixture" is to be given a broad definition to cover any combination of cocaine with another substance. The dispositive issue in this case is what constitutes a "mixture" for purposes of § 13A-12-231(2). Neither the Code of Alabama 1975 nor this Court's cases define "mixture" for purposes of drug-trafficking crimes.[1] Accordingly, we look to the courts of other jurisdictions for assistance. In Chapman v. United States, 500 U.S. 453, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991), the Supreme Court of the United States held that the term "mixture or substance," as used in the federal drug-trafficking statutes, included blotter paper into which a detectable amount of lysergic acid diethylamide ("LSD") had been absorbed.[2] The Supreme Court explained: Chapman, 500 U.S. at 461-62, 111 S. Ct. at 1925-26 (emphasis added) (citation and footnote omitted). In response to the argument that the dictionary definition of "mixture" should be rejected because it would allow containers, such as glass vials or even an automobile in which the illegal drugs were being transported, to be counted, the Supreme Court stated: Chapman, 500 U.S. at 462-63, 111 S. Ct. at 1926 (emphasis added). Similarly, our cases provide that "[w]ords must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language to mean exactly what it says." Ex parte State Dep't of Revenue, 683 So. 2d 980, 983 (Ala.1996); IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.1992). Thus, we hold that for purposes of § 13A-12-231(2), a "mixture" consists of two or more substances blended together so that the particles of one substance are diffused among the particles of the other(s) and yet each substance retains its separate existence. Where an illegal drug is commingled with, or diffused among, legal substances, the weight of the entire mixture should be counted. See Clark v. State, 562 So. 2d 620 (Ala.Crim.App.1989) (holding that the commingling of white powder consisting of mannitol, a legal substance, with white powder consisting of cocaine, an illegal drug, was a "mixture"). Where, however, an illegal drug is easily distinguished from and easily separable from legal substances, only the weight of the illegal drug should be counted. Fletcher argues further that this Court should adopt the "usability" concept embodied in the commentary to the federal Sentencing Guidelines to more strictly define a "mixture." Application note 1 in the commentary to 18 U.S.C.S. app. § 2D1.1.(a), as amended in 1993, states: (Emphasis added.) See 18 U.S.C.S. app., U.S. Sent. Guidelines, app. C, amend. 484 (discussing 1993 amendment to definition of "mixture" set forth in the commentary to § 2D1.1). Thus, Fletcher argues that unless the legal substance is necessary for the use of an illegal drug, the legal substance should not count toward the weight of the illegal drug even if the legal substance is contained in a mixture with the illegal drug. See United States v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir.1991). We disagree. The federal law's adoption of the concept of usability to restrict the term "mixture" comes from the 1993 amendment to the Sentencing Guidelines.[3] 18 U.S.C.S. app., U.S. Sent. Guidelines § 2D1.1, Appl. n. 1 (backg'd). This amendment was adopted in reaction to certain decisions of federal courts that adopted the plain meaning of the term "mixture" without a "usability" restriction. See 18 U.S.C.S. app., U.S. Sent. Guidelines, app. C, amend. 484 (stating that the 1993 amendment to the definition of "mixture" was brought about by certain decisions of the federal courts of appeal that included unusable substances in "mixtures" with usable controlled substances); see, e.g., United States v. Young, 992 F.2d 207 (8th Cir.1993) (holding that the weight of the entire tablet and not just the amount of the illegal hydromorphine contained therein should be used to compute the defendant's sentence); United States v. Lopez-Gil, 965 F.2d 1124 (1st Cir.) (holding that fiberglass mixed with cocaine to form a suitcase should be counted with the cocaine for purposes of computing the proper sentence), cert. denied, 506 U.S. 981, 113 S. Ct. 484, 121 L. Ed. 2d 388 (1992); United States v. Restrepo-Contreras, 942 F.2d 96 (1st Cir.1991) (holding that the entire weight of beeswax-cocaine statues should be used in determining defendant's sentence), cert. denied, 502 U.S. 1066, 112 S. Ct. 955, 117 L. Ed. 2d 123 (1992). Unlike the United States Sentencing Commission, the Alabama Legislature has not adopted any guideline or statute that would restrict the concept of "mixture" to "usable mixture." Absent specific direction by the Legislature, we will not construe the term "mixture" contained in § 13A-12-231(2) against its plain meaning and so reward the extraordinary ingenuity of the criminal mind. We hold that in determining whether a defendant has violated § 13A-12-231(2), all legal substances that are contained in a "mixture" should be weighed along with the illegal drug contained therein. The bag found in Fletcher's possession contained a solid piece of cocaine (a "rock") weighing 7.01 grams and two solid pieces of bar soap, weighing 7.9 grams and 56.72 grams, respectively. The two substances *1136 were not blended or diffused, but were easily separable and distinguishable from one another. Cf. Chapman, 500 U.S. at 461-63, 111 S. Ct. at 1925-26. Thus, the pieces of bar soap were not contained in a "mixture" with the cocaine and cannot be counted toward the 28-gram requirement of § 13A-12-231(2). Without counting the weight of the pieces of bar soap, there is insufficient evidence to find Fletcher guilty of trafficking in 28 grams or more of cocaine under § 13A-12-231(2). However, there is sufficient evidence to support a conviction of the lesser-included offense of unlawful possession of a controlled substance, as defined in § 13A-12-212.[4] Because the jury was instructed on the lesser-included offense of unlawful possession of a controlled substance, we remand this case to the Court of Criminal Appeals with instructions to remand the case to the trial court so that it may enter a judgment on the lesser-included offense and resentence Fletcher accordingly.[5] See Ex parte Edwards, 452 So. 2d 508, 510 (Ala.1984) (citing Dickenson v. Israel, 644 F.2d 308 (7th Cir. 1981)). REVERSED AND REMANDED WITH INSTRUCTIONS. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur. ALMON, J., concurs in the result. [1] Section 13A-12-231(2) refers to Ala.Code 1975, § 20-2-25(1). Section 20-2-25(1) provides in pertinent part: "The controlled substances listed in this section are included in Schedule II: "(1) Any of the following substances ...: ".... "d. Coca leaves and any salt, compound, derivative or preparation of coca leaves and any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocanized coca leaves or extractions which do not contain cocaine or ecgonine." (Emphasis added.) The emphasized language focuses on the nature, or chemical content, of coca leaves and extractions, not the degree of commingling of these by-products with cocaine. Thus, the reference in § 13A-12-231(2) to the language quoted here from § 20-2-25(1) defines the "controlled substance" cocaine, but does not define "mixture." [2] The federal statute, 21 U.S.C. § 841(b)(1)(A)(i)(viii), provided minimum sentences corresponding to the weight of a "mixture or substance containing a detectable amount of" various controlled substances, including LSD. Chapman, 500 U.S. at 461, 111 S. Ct. at 1925. [3] We note that before the 1993 amendment to the Sentencing Guidelines, certain federal courts relied on the "market-oriented approach" advanced in the legislative history of the federal statutes to restrict the plain meaning of "mixture" to only those mixtures that were usable. See, e.g., United States v. Johnson, 999 F.2d 1192 (7th Cir.1993) (taking the "market-oriented" approach, the court held that the wastewater left over from the manufacturing process of crack cocaine should not be included in computing the defendant's sentence). Because of the absence of any published transcripts of the proceedings of the Alabama House of Representatives or Senate, however, we must determine the intent of the Alabama Legislature from the language of the statute. Fuller v. Associates Commercial Corp., 389 So. 2d 506, 507 (Ala.1980); Katz v. Alabama State Bd. of Med. Exam'rs, 351 So. 2d 890 (Ala. 1977); Adams v. Mathis, 350 So. 2d 381 (Ala. 1977); Fletcher v. Tuscaloosa Fed. Sav. & Loan Ass'n, 294 Ala. 173, 314 So. 2d 51 (1975); State v. International Paper Co., 276 Ala. 448, 163 So. 2d 607 (1964). Section 13A-12-231(2) contains the term "mixture," and that section does not distinguish between usable and nonusable mixtures. [4] Fletcher also contends that the State failed to present sufficient evidence that he was in constructive possession of the cocaine. Edward Smith, an investigator with the Huntsville Police Department's Narcotics Division, testified that when he apprehended Fletcher, Fletcher was in the backseat of the car and that the cocaine was next to Fletcher. Moreover, Smith testified that Fletcher had over $2,000 in his pants. Thus, there was sufficient evidence for the jury to find that Fletcher was in constructive possession of the cocaine. See German v. State, 500 So. 2d 478 (Ala.Crim.App.1986) (constructive possession can be established by the fact that cocaine is found on the premises controlled by the defendant, and guilty knowledge may be established by the surrounding facts and circumstances). [5] A person is guilty of trafficking in cocaine if he: (1) "knowingly sells, manufactures, delivers, or brings into this state, or is knowingly in actual or constructive possession of," (2) "28 grams or more of cocaine or of any mixture containing cocaine." Ala.Code 1975, § 13A-12-231(2). A person is guilty of the unlawful possession of a controlled substance if he "possesses a controlled substance" (e.g., cocaine). Ala Code 1975, § 13A-12-212(a)(1). Thus, for the jury to return a verdict against Fletcher on the offense of the higher degree trafficking in cocaine it had to find the existence of every element of the lesserincluded offense the unlawful possession of a controlled substance.

January 23, 1998

4da47845-b0cf-4d65-aadf-acfaf8e317a7

Ex Parte First Family Financial Services

718 So. 2d 658

1961134

Alabama

Alabama Supreme Court

718 So. 2d 658 (1998) Ex parte FIRST FAMILY FINANCIAL SERVICES, INC. (Re Margaret RAMSEY v. FIRST FAMILY FINANCIAL SERVICES, INC. 1961134. Supreme Court of Alabama. June 19, 1998. Richard H. Gill and J. Fairley McDonald III of Copeland, Franco, Screws & Gill, P.A., Montgomery; and R. Carlton Smyly of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for petitioner on original submission. J. Fairley McDonald III of Maynard, Cooper & Gale, P.C., Montgomery; R. Carlton Smyly of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham; and Richard H. Gill of Copeland, Franco, Screws & Gill, P.A., Montgomery, for petitioner on application for rehearing. Charles A. McCallum III and Charles M. Elmer of Campbell & Waller, L.L.C., Birmingham, for respondent. MADDOX, Justice. The opinion of March 20, 1998, is withdrawn, and the following is substituted therefor. This case presents a question concerning the application of Alabama's forum non conveniens statute, § 6-3-21.1, Ala.Code 1975. Because the trial court applied that statute in conformity with earlier decisions of this Court that we overrule today, we issue the writ of mandamus. *659 In September 1996, Margaret Ramsey[1] filed a putative class action in the Marengo County Circuit Court, alleging that the defendant, First Family Financial Services, Inc. ("First Family"), had committed fraud by engaging in a practice known as "flipping." "Flipping" occurs when a lender requires a borrower in need of additional funds to refinance an existing loan rather than allowing the borrower to take out a new, separate loan. Ramsey also alleged that First Family breached its contract with her by requiring her to refinance her loan rather than allowing her to pay it off. On October 21, 1996, First Family moved to transfer the cause to Dallas County under the provisions of § 6-3-21.1, Ala.Code 1975, the forum non conveniens statute. Section 6-3-21.1 provides, in part: (Emphasis added.) First Family alleged, in part, that "this case [was] filed in a county where [Ramsey does not live], where the defendant has no office, and which has no relationship whatsoever to [Ramsey] or [her] claims." Ramsey, responding to the motion to transfer, did not dispute First Family's allegations that she did not live in Marengo County; she based her argument that she should be allowed to maintain the action in Marengo County primarily upon the proposition that "[t]ransfers under § 6-3-21.1 are within the discretion of the trial judge ... [and that a] trial court [should] give deference to the plaintiff's choice of venue, and in order to justify a transfer, the party seeking the transfer has the burden of proving that a trial in the other county would be significantly more convenient than trial in the county in which the action was filed," citing Ex parte Prudential Ins. Co. of America, 675 So. 2d 856 (Ala.1996). The trial judge denied First Family's motion to transfer, on February 19, 1997. First Family subsequently filed this petition for a writ of mandamus directing the trial judge to transfer the case. The legal issue presented is whether, under facts such as those presented here, this Court should compel a trial judge to transfer the case to another county under § 6-3-21.1, Ala.Code 1975. The facts, briefly stated, are that the plaintiff has never lived in the forum county. No transaction between the plaintiff and the defendant ever occurred there. The defendant has no office, employees, or documents in the forum county. Although the trial judge has much discretion in such matters, we hold that, under facts such as those presented here, "the interest of justice," as contemplated by the Legislature, would be served by transferring the case to a more convenient forum. Therefore, we direct the trial court to transfer the case under the provisions of § 6-3-21.1. We reach that conclusion for the following reasons: (1) the Legislature, not this Court, determines venue, and (2) in adopting § 6-3-21.1, the forum non conveniens statute, the Legislature clearly intended that actions such as this one should be transferred. Under the venue system established by the Legislature, the plaintiff has the initial choice of venue in an action against a domestic corporation; the plaintiff may sue in "any county in which [the corporate defendant] does business by agent or was doing business by agent at the time the cause of action arose." § 6-3-7, Ala.Code 1975.[2] Reading that section in isolation, one would not discern that the Legislature intended to limit the plaintiff's choice of forum. However, § 6-3-7 must be read in pari materia with other Code sections dealing with the same subject, i.e., venue. Opinion of the Justices No. 334, 599 So. 2d 1166 (Ala.1992); Locke v. Wheat, 350 So. 2d 451 (Ala.1977); *660 Kelly v. State, 273 Ala. 240, 139 So. 2d 326 (1962). Further, "[s]tatutes should be construed together so as to harmonize the provisions as far as practical." Ex parte Jones Mfg. Co., 589 So. 2d 208, 211 (Ala.1991), citing Siegelman v. Folmar, 432 So. 2d 1246 (Ala. 1983). Accordingly, we must read § 6-3-7 in pari materia with § 6-3-21.1. We now consider what § 6-3-21.1 requires. The Legislature adopted § 6-3-21.1 by Act No. 87-181, Ala. Acts 1987, a part of the "tort reform" package considered and adopted by the Legislature that year. The Legislature's adoption of this section came after this Court decided Ex parte Shepherd, 481 So. 2d 1098 (Ala.1985). In Shepherd, employees of Seaboard Coast Line Railroad Company sued the railroad in Macon County, seeking damages based on alleged on-the-job injuries. The railroad moved for a change of venue, arguing that it could not receive a fair trial in Macon County. The trial court transferred the cases; this Court subsequently issued a writ of mandamus to undo the transfers, holding that it was improper to transfer the actions. Through its adoption of § 6-3-21.1, the Legislature has substantially modified the law relating to the venue of civil actions that was in effect when this Court decided Shepherd. Shortly after the adoption of the 1987 tort reform legislation, including § 6-3-21.1, the Governor's special counsel on tort reform wrote, regarding this provision: Robert D. Hunter, Alabama's 1987 Tort Reform Legislation, 18 Cumb. L.Rev. 281, 289-90 (1988). The plaintiff argues that a trial judge has almost unlimited discretion in such matters. Her argument, however, must be considered in light of the fact that the Legislature used the word "shall" instead of the word "may" in § 6-3-21.1. The trial judge has a degree of discretion in determining whether the factors listed in the statute, i.e., "the convenience of parties and witnesses" and "the interest of justice," are in favor of transferring the action. This Court will reverse the trial court's ruling in this regard only upon a showing of an abuse of discretion. We conclude that the Legislature, in adopting § 6-3-21.1, intended to vest in the trial courts, the Court of Civil Appeals, and this Court the power and the duty to transfer a cause when "the interest of justice" requires a transfer. Ex parte Gauntt, 677 So. 2d 204, 221-22 (Ala. 1996) (Maddox, J., dissenting). First Family had the initial burden of showing that the private- and public-interest factors involved in this case weighed heavily against litigation in the forum the plaintiff selected, but we believe First Family met that burden. "The question of proper venue is to be determined as of the time the *662 action is filed." Elmore County Comm'n v. Ragona, 540 So. 2d 720, 725 (Ala.1989). It is undisputed that, at the time of filing, First Family maintained no office, and kept no documents, in Marengo County. Ramsey did not live in Marengo County. No meetings between First Family and Ramsey had occurred in Marengo County. In fact, all meetings between Ramsey and employees of First Family had occurred in Dallas County, in which First Family's office is located and where First Family desires to have the case transferred. Under the facts of this case, we conclude that First Family is entitled to an order transferring the action to Dallas County. Although we recognize that a plaintiff should be given great latitude in choosing a forum, we also recognize that one of the reasons the Unified Judicial System was established, and one of the reasons the Legislature adopted § 6-3-21.1, was to promote "justice." We believe it clear, under the facts of this case, that "the interest of justice" requires that it be transferred. Accordingly, we hold that it was an abuse of discretion for the trial judge to deny the motion for the transfer. We grant the petition for the writ of mandamus; the trial court is directed to vacate its order denying the motion to transfer, and to grant the motion to transfer the action to the Dallas Circuit Court. To the extent that earlier cases of this Court, including, among others, Ex parte Associates Financial Services Co. of Alabama, Inc., 705 So. 2d 836 (Ala.1997); Ex parte The Prudential Insurance Co. of America, supra; Ex parte Gauntt, supra; and Ex parte Serra Chevrolet, Inc., 674 So. 2d 522 (Ala.1995), are inconsistent with this opinion, those cases are overruled. OPINION OF MARCH 20, 1998, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING GRANTED; PETITION GRANTED. HOOPER, C.J., and HOUSTON, SEE, and LYONS, JJ., concur. ALMON, SHORES, KENNEDY, and COOK, JJ., dissent. COOK, Justice (dissenting). I respectfully dissent. The issue in this case is whether a corporate defendant in a class action filed in Marengo County, where the corporation does business, may, "in the interest of justice," pursuant to Ala.Code 1975, § 6-3-21.1,[3] compel by a writ of mandamus, transfer of the action to Dallas County, when the defendant argues, because Marengo County was not the county of the plaintiff's residence or the site of the alleged wrongs or harm, that the plaintiff "more probably than not" chose Marengo County for purposes of forum shopping. I would answer that question in the negative. First Family contends in this case that the phrase "interest of justice" requires a judicial analysis separate and distinct from a consideration of the convenience of the parties. Specifically, it argues that the phrase "necessarily reaches to forum shopping and judge shopping." Brief in Support of Application for Rehearing, at 3. The essence of this argument is that in the absence of a positive showing by the plaintiff of a "connection between the forum county, the plaintiff, the plaintiff's claims and alleged harm or injuries, and the defendant," id. at 6, forum shopping would be presumed and the trial judge would have a duty "in the interest of justice"to transfer the case to a forum chosen by the defendant. To its credit, the majority does not adopt this reasoning in toto. Nevertheless, much of it is reflected in the majority's holding. The problem is that the phrase "interest of justice" is an amorphous, catch-all term, capable of various meanings. Whenever it appears in a statute, however, it inherently "imports the exercise of discretion by a court." Bernstein v. Strammiello, 202 Misc. 823, 830, 120 N.Y.S.2d 490, 497 (Sup.Ct.1952). *663 "[I]t follows that such exercise should not be disturbed merely because it is deemed that it was `improvident.'" Id. More specifically, the pertinent language of § 6-3-21.1 is nearly identical to that of the "federal venue transfer statute," namely, 28 U.S.C. § 1404(a), which states: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district ... where it might have been brought." (Emphasis added.) Of course, transfer under § 1404(a) is discretionary. American Dredging Co. v. Miller, 510 U.S. 443, 449, 114 S. Ct. 981, 127 L. Ed. 2d 285 (1994); Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 23, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988) (section 1404(a) "is intended to place discretion in the district courts to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness"). The argument made by First Family and the approach taken by the majority could be understood as linking the phrase "in the interest of justice" specifically to the concept of forum shopping, and, through a forced statutory construction based on that linkage, as divesting trial courts of the discretion they have been afforded by the Legislature. For these reasons, I respectfully dissent. ALMON and SHORES, JJ., concur. [1] In the initial stage of this litigation, Ethel McCoy was also listed as a named plaintiff. She was removed as a named plaintiff on October 24, 1996. [2] The roots of § 6-3-7 may be traced to § 2642, Code of 1886, which provided that "[a] foreign or domestic corporation may be sued in any county in which it does business by agent." [3] Section 6-3-21.1 provides in pertinent part: "With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed...." (Emphasis added.)

June 19, 1998