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30bd024b-2d41-406f-91d8-d35718ff922b | Ex parte Ramiro Delreal Contreras. | N/A | 1191014 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 11, 2020
1191014
Ex parte Ramiro Delreal Contreras. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Ramiro
Delreal Contreras v. State of Alabama) (Lee Circuit Court: CC-12-858.60;
Criminal Appeals :
CR-19-0298).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 11, 2020:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 11th day of Decem ber, 2020.
Clerk, Supreme Court of Alabama | December 11, 2020 |
1e559d91-8692-4719-89d8-e3c23ca41be1 | TitleMax of Alabama, Inc. v. Falligant | N/A | 1190670 | Alabama | Alabama Supreme Court | REL: December 4, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190670
____________________
TitleMax of Alabama, Inc.
v.
Michael Falligant, as next friend of Michelle McElroy
Appeal from Jefferson Circuit Court
(CV-19-904794)
MENDHEIM, Justice.
Michael Falligant, as next friend of Michelle McElroy, who Falligant
alleges is an incapacitated person, filed an action in the Jefferson Circuit
1190670
Court against TitleMax of Alabama, Inc. ("TitleMax"), alleging that
TitleMax wrongfully repossessed and sold McElroy's vehicle. TitleMax
filed a motion to compel arbitration of Falligant's claims, which the circuit
court denied. TitleMax appeals. We reverse and remand.
Facts and Procedural History
Falligant's affidavit testimony is crucial to his claims, brought on
behalf of McElroy, against TitleMax. Falligant is the director of mental-
health services for the Crisis Center, a nonprofit organization that
"provides a variety of community-based services for people experiencing
personal crisis or mental health issues." Based on his work at the Crisis
Center, Falligant stated that he has "known Ms. McElroy for several years
at the Crisis Center and ha[s] had numerous occasions to be with her."
Falligant's affidavit testimony states that McElroy "suffers from a variety
of mental and emotional illnesses which make her extremely vulnerable
and incapable of handling [her] finances." Falligant's affidavit testimony
further states that, "[t]hroughout [the] 2017 period of time, [McElroy] has
been, in my opinion, mentally incompetent due to her mental illness to
2
1190670
conduct her own business and financial affairs or to understand business
contracts and terms."
McElroy receives Social Security disability benefits, but the
disability for which she receives the benefits is unclear from the record.
In his affidavit testimony, Falligant asserts that McElroy is mentally ill,
but he does not state that her mental illness is the basis for her receipt of
Social Security disability benefits. In a letter dated September 1, 2016,
the Social Security Administration indicated that "C[h]risti Naslund for
... McElroy" will receive $1,251 per month; the letter does not indicate the
reason McElroy is to receive the monthly payments. Falligant's affidavit
testimony provides the following explanation of a specific service it
provides as related to McElroy:
"In this mission, we also serve as a payee for many of these
mentally ill consumers for their Social S[ecurity] Disability
Benefits. We receive referrals from Social Security for
individuals who have had a history of instability and mental
illness, and are not competent to handle their own financial
affairs or the SSI benefits or other Social Security benefits
being paid to them. In that capacity, the Crisis Center serves
as a payee for approximately 300 people in the greater
Birmingham area. Those persons for which the Crisis Center
serves as payee include Ms. Michelle McElroy. In my capacity
at the Crisis Center, I am very familiar with that program and
3
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the payees who we serve. The Social Security payee program
tries to provide financial management for beneficiaries such as
Ms. McElroy who due to mental illness are incapable of
managing their Social Security or SSI payments. The Crisis
Center, as the designated payee for Ms. McElroy, receives her
monthly disability check from Social Security on her behalf
and provides financial management for those funds and her
needs."
On May 8, 2017, McElroy entered into a "pawn-ticket" contract with
TitleMax ("the original contract"). McElroy was receiving Social Security
disability benefits at the time she entered into the original contract, and
Christi Naslund was the payee for McElroy's benefits; the Crisis Center
became the payee in the fall of 2017. Falligant's affidavit testimony
indicates that McElroy "provided to TitleMax documentation showing that
she had [S]ocial [S]ecurity disability income being paid to ... Naslund." Id.
Under the original contract, TitleMax agreed to loan McElroy $500 at an
annual percentage interest rate of 170.21% that McElroy was to pay back
on June 7, 2017; the finance charge for the repayment period amounted
to $69.95. In exchange for the loan, the original contract required
McElroy to deliver to TitleMax the title to her vehicle, a 2007 Toyota
Camry. The original contract stated that TitleMax would return to
4
1190670
McElroy the title to her vehicle if McElroy paid the $500 loan principal
and the $69.95 finance charge on June 7, 2017. The original contract
further stated that, if McElroy did not repay the loan in its entirety on
June 7, 2017, the parties could enter into a new pawn-ticket contract. The
original contract states that, in order to enter into a new contract,
McElroy "must pay the pawnshop charge provided in your previous pawn
ticket [contract]."
The original contract also contained an arbitration provision. The
original contract notes that TitleMax drafted the arbitration clause "in
question and answer form so it is easier to understand." The questions
and answers constituting the arbitration clause fill more than two pages
of the original contract. Of particular note in this case is the following
question and answer:
"What disputes does the [arbitration] clause cover?
"....
"This clause covers disputes that would usually be
decided in court and are between [TitleMax] (or a related
party) and you. In this clause, the word disputes has the
broadest meaning. It includes all claims related to your
application, this pawn ticket [contract], the motor vehicle, the
5
1190670
pawn, any other pawn or your relationship with us. It includes
claims related to any prior applications or agreements. It
includes extensions, renewals, refinancings, or payment plans.
It includes claims related to collections, privacy, and customer
information. It includes claims related to the validity of this
pawn ticket [contract]. But, it does not include disputes about
the validity, coverage, or scope of this clause or any part of this
clause. These are for a court and not the [third-party arbiter]
to decide. Also, this clause does not cover our taking and
selling the vehicle. It does not cover any individual case you
file to stop us from taking or selling the vehicle."
(Emphasis in original.)
Rather than repay the loan on June 7, 2017, McElroy elected to
enter into new pawn-ticket contracts with TitleMax on six different
occasions: June 7, 2017; July 7, 2017; August 5, 2017; September 8, 2017;
October 6, 2017; and November 6, 2017 (all contracts, including the
original contract, are hereinafter referred to collectively as "the
contracts"). Each of the subsequent contracts contains the same
arbitration clause as does the original contract.
In his affidavit testimony, Falligant states that "[i]t is my opinion
that throughout [the transaction underlying the original contract] and the
ones that followed in 2017, Ms. McElroy lacked a mental capacity to
understand the contract terms with TitleMax due to her mental illness
6
1190670
and disability." Regardless, at McElroy's request, the Crisis Center, now
serving as the payee of McElroy's Social Security disability benefits,
issued a cashier's check on November 6, 2017, to TitleMax on behalf of
McElroy in the amount of $105.40 in an effort, according to Falligant's
affidavit testimony, "to help Ms. McElroy maintain possession of her
vehicle." Falligant states in his affidavit that he was unaware at the time
the Crisis Center issued the check that McElroy had entered into the
November 6, 2017, contract with TitleMax. Falligant's affidavit testimony
states: "When I learned of these transactions, I requested Alexandria
Parrish of The Evans Law Firm to write TitleMax and further alert them
of Ms. McElroy’s incapacity and her obvious disability since the proof of
income provided was based upon a Social Security [d]isability payee
program"; the referenced letter does not appear in the record.
Ultimately, McElroy failed to pay the balance owed under the
contracts and TitleMax exercised its option to repossess and sell McElroy's
vehicle.
On October 28, 2019, Falligant, as next friend of McElroy, filed a
complaint against TitleMax asserting claims of conversion, "wrongful
7
1190670
repossession," and "recovery of chattels in specie" and requesting that the
circuit court "declare the contracts between Ms. McElroy and TitleMax to
be void ab initio and award to her restitution of the payments she made
to TitleMax and for the value of her vehicle which was wrongfully taken."
On December 18, 2019, TitleMax filed an answer to Falligant's
complaint. On the same day, TitleMax also filed a motion to compel
arbitration of Falligant's claims based on the arbitration clause in the
contracts and in accordance with the relevant provisions of the Federal
Arbitration Act, 9 U.S.C. § 1 et seq. ("the FAA"). On February 3, 2020,
Falligant filed a response to TitleMax's motion to compel arbitration
arguing that McElroy, based on her alleged mental incompetency, lacked
the capacity to enter into the contracts and, thus, that the contracts --
including the arbitration clause -- were void ab initio. Falligant also
argued that the language of the arbitration clause in the contracts
excluded the claims asserted by Falligant against TitleMax. On
February 5, 2020, TitleMax filed a reply to Falligant's response arguing
that Falligant had failed to present evidence of McElroy's alleged mental
8
1190670
incompetency and arguing that the arbitration clause in the contracts did,
in fact, apply to Falligant's claims.
On April 24, 2020, following a hearing, the circuit court entered an
order denying TitleMax's motion to compel arbitration. In its order, the
circuit court noted that McElroy entered into the original contract, and
the subsequent contracts, "[i]n 2017 after ... McElroy became a recipient
of Social Security [d]isability benefits, based upon her mental disability,
and [after] the Social Security Administration appoint[ed] a payee to
receive and manage funds for ... McElroy...." In denying TitleMax's
motion, the circuit court stated:
" 'If the validity or scope of an arbitration agreement is
in issue, the parties are entitled to a trial by jury on those
questions.' Ex parte Williams, 686 So. 2d 1110, 1111 (Ala.
1996), citing Allied-Bruce Terminix Companies v. Dobson, 684
So. 2d 102 (Ala. 1995).
"Here, the issue is whether ... McElroy had the capacity
to enter the agreement for the $500.00 loan. The validity of
the arbitration agreement depends upon [McElroy's] capacity
to contract. This court concludes that [TitleMax's] MOTION
is due to be DENIED."
On the same day, the circuit court entered an order setting the matter for
a status conference to occur on May 26, 2020; the order stated, in
9
1190670
pertinent part, that "a trial scheduling order shall be considered" at the
status conference. On May 22, 2020, TitleMax appealed the denial of its
motion to compel arbitration.
Standard of Review
" 'Our standard of review of a ruling denying a motion to
compel arbitration is well settled:
" ' " 'This Court reviews de novo
the denial of a motion to compel
arbitration. Parkway Dodge, Inc. v.
Yarbrough, 779 So. 2d 1205 (Ala. 2000).
A motion to compel arbitration is
analogous to a motion for a summary
judgment. TranSouth Fin. Corp. v.
Bell, 739 So. 2d 1110, 1114 (Ala. 1999).
The party seeking to compel arbitration
has the burden of proving the existence
of a contract calling for arbitration and
proving that the contract evidences a
transaction
affecting
interstate
commerce. Id. "[A]fter a motion to
compel arbitration has been made and
supported, the burden is on the
non-movant to present evidence that
the supposed arbitration agreement is
not valid or does not apply to the
dispute in question." Jim Burke
Automotive, Inc. v. Beavers, 674 So. 2d
1260, 1265 n. 1 (Ala. 1995) (opinion on
application for rehearing).' "
10
1190670
" 'Elizabeth Homes, L.L.C. v. Gantt, 882 So. 2d 313,
315 (Ala. 2003) (quoting Fleetwood Enters., Inc. v.
Bruno, 784 So. 2d 277, 280 (Ala. 2000)).'
"SSC Montgomery Cedar Crest Operating Co. v. Bolding, 130
So. 3d 1194, 1196 (Ala. 2013)."
Rainbow Cinemas, LLC v. Consolidated Constr. Co. of Alabama, 239
So. 3d 569, 573 (Ala. 2017).
Discussion
The question presented in this case is whether the circuit court
properly determined that Falligant is entitled to a trial on the issue
whether the contracts are void ab initio based on McElroy's alleged mental
incapacity to contract with TitleMax. Of course, implicit in the circuit
court's determination is that the circuit court, and not an arbitration
proceeding, is the proper forum in which to determine whether the
contracts are void. In other words, the circuit court implicitly determined
that the parties did not agree to submit the issue of the voidness of the
contracts to arbitration. TitleMax has not challenged this aspect of the
circuit court's order. We recognize that TitleMax mentions the issue of
arbitrability generally in its original appellate brief by noting that "[t]he
11
1190670
FAA requires arbitration agreements to be liberally enforced and any
doubts concerning arbitrability should be weighed in favor of compelling
arbitration." TitleMax's brief, at p. 14. However, TitleMax makes no
specific argument concerning the appropriate forum in which to determine
whether the contracts are void in light of the specific facts and issues in
this case. Instead of addressing that conclusion of the circuit court,
TitleMax simply sets forth generally applicable principles of arbitration
law to establish the uncontroversial position that arbitration agreements
are to be liberally construed and any question as to the arbitrability of an
issue should be resolved in favor of arbitration.1 Accordingly, we will
1We note that TitleMax makes a more in-depth argument relying
upon numerous additional authorities in its reply brief. See TitleMax's
reply brief, at pp. 3-10. The argument in TitleMax's reply brief is
essentially a new argument and, thus, will not be considered on appeal.
See Steele v. Rosenfeld, LLC, 936 So. 2d 488, 493 (Ala. 2005) (" '[A]n
argument may not be raised, nor may an argument be supported by
citations to authority, for the first time in an appellant's reply brief.'
Improved Benevolent & Protective Order of Elks v. Moss, 855 So. 2d 1107,
1111 (Ala. Civ. App. 2003), abrogated on other grounds, Ex parte Full
Circle Distribution, L.L.C., 883 So. 2d 638 (Ala. 2003)."); see also Meigs v.
Estate of Mobley, 134 So. 3d 878, 889 n. 6 (Ala. Civ. App. 2013) (noting
that "Rule 28(a)(10)[, Ala. R. App. P.,] requires compliance in an
appellant's initial brief").
12
1190670
assume that the circuit court is the proper forum in which to determine
whether
a
contract
calling
for
arbitration
exists.2
See
2Although TitleMax has failed to put this issue before us, we note
that there is authority for concluding that the circuit court, and not an
arbitration proceeding, is the appropriate forum for determining whether
McElroy had the mental capacity to contract with TitleMax. In Buckeye
Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), the United States
Supreme Court, citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388
U.S. 395 (1967), noted that a challenge to a contract as a whole, as
distinguished from a challenge to an arbitration clause within a contract,
is to be "considered by the arbitrator in the first instance." 546 U.S. at
446. However, the United States Supreme Court made the following
significant distinction: "The issue of the contract's validity is different
from the issue whether any agreement between the alleged obligor and
obligee was ever concluded. Our opinion today addresses only the former,
and does not speak to the issue decided in the cases cited by respondents
..., which hold that it is for courts to decide ... whether the signor lacked
the mental capacity to assent, Spahr v. Secco, 330 F.3d 1266 (C.A.10
2003)." Buckeye Check Cashing, 546 U.S. at 444 n. 1 (emphasis added.)
We note that there is some disagreement among the federal courts
of appeals as to the specific issue of the arbitrability of an individual's
alleged mental incapacity to contract; the following language from Spahr
v. Secco, 330 F.3d 1266, 1272 (10th Cir. 2003), highlights the rift:
"In Primerica [Life Insurance Co. v. Brown, 304 F.3d 469
(5th Cir. 2002)], the Fifth Circuit recently concluded that a
mental capacity defense to a contract that contains an
arbitration clause is 'part of the underlying dispute between
the parties,' and must be submitted to the arbitrator. 304 F.3d
at 472. Relying on Prima Paint [Corp. v. Flood & Conklin Mfg.
Co., 388 U.S. 395 (1967)], the court held that 'unless a defense
13
1190670
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) ("The
question whether the parties have submitted a particular dispute to
arbitration, i.e., the 'question of arbitrability,' is 'an issue for judicial
determination [u]nless the parties clearly and unmistakably provide
relates specifically to the arbitration agreement, it must be
submitted to the arbitrator as part of the underlying dispute.'
Id. We disagree, and hold that the rule announced in Prima
Paint does not extend to a case where a party challenges a
contract on the basis that the party lacked the mental capacity
to enter into a contract."
See also generally Burden v. Check Into Cash of Kentucky, LLC, 267 F.3d
483, 488 (6th Cir. 2001) ("Several of our sister circuits have found that
Prima Paint [Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967),] does
not apply to allegations of nonexistent contracts. See Sphere Drake Ins.
Ltd. v. All Am. Ins. Co., 256 F.3d 587, 590-91 (7th Cir. 2001); Sandvik AB
v. Advent Int'l Corp., 220 F.3d 99, 107 (3d Cir. 2000); Three Valleys [Mun.
Water Dist. v. E.F. Hutton & Co.], 925 F.2d [1136,] 1140 [(9th Cir. 1991)];
Chastain v. Robinson-Humphrey Co., Inc., 957 F.2d 851, 855 (11th Cir.
1992); I.S. Joseph Co. v. Mich. Sugar Co., 803 F.2d 396, 400 (8th Cir.
1986). ... [T]he the Fifth Circuit has found that Prima Paint applies even
to contracts that are 'void from ... inception.' See Lawrence v.
Comprehensive Bus. Servs. Co., 833 F.2d 1159, 1162 (5th Cir.1987)." ) .
In the present case, TitleMax has not presented an argument
requiring us to reach a definitive answer as to the issue at this time.
Based on TitleMax's failure to present an argument, we will assume that
the circuit court is the appropriate forum in which to determine whether
McElroy had the mental capacity to contract with TitleMax.
14
1190670
otherwise.' AT & T Technologies, Inc. v. Communications Workers, 475
U.S. 643, 649 (1986) (emphasis added) ....").
Assuming the circuit court as the appropriate forum, we next
consider TitleMax's arguments pertaining to whether the contracts are
void ab initio based on McElroy's alleged mental incapacity to contract
with TitleMax. TitleMax argues that the circuit court erred in concluding
that there is an issue as to the voidness of the contracts and erred in
ordering a trial concerning that issue. Specifically, TitleMax argues that
Falligant failed to produce sufficient evidence to create an issue of fact
concerning the existence of a contract calling for arbitration. As a result,
TitleMax argues, the circuit court should have granted TitleMax's motion
to compel arbitration of Falligant's substantive claims rather than
ordering to trial the issue whether the contracts are or are not void.3
3We do not decide in this opinion the scope of the arbitration
agreement as it relates to the claims asserted by Falligant, and neither
did the circuit court. Our decision is limited to whether the circuit court
erred in determining whether the evidence presented by Falligant is
sufficient to create an issue of fact concerning the voidness of the
contracts. Whether the scope of the arbitration includes Falligant's claims
is yet to be determined.
15
1190670
In Premiere Automotive Group, Inc. v. Welch, 794 So. 2d 1078, 1081
(Ala. 2001), this Court stated: "Under the provisions of § 4 of the [Federal
Arbitration Act], '[i]f the making of the arbitration agreement ... be in
issue, the court shall proceed summarily to the trial thereof.' " In Allied-
Bruce Terminix Cos. v. Dobson, 684 So. 2d 102, 108 (Ala. 1995), this Court
set forth the process by which a circuit court determines if "the making of
the arbitration agreement" is in issue:
"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. Cf. Par–Knit Mills, Inc. v. Stockbridge Fabrics Co.,
Ltd., 636 F.2d 51, 54 n. 9 (3d Cir. 1980). The court is to hold
a hearing and determine whether there are genuine issues
concerning the making or performance of an agreement to
arbitrate, as a federal court would in proceeding under § 4.
Mere demand for a jury trial is insufficient to create a triable
issue on these questions. Saturday Evening Post Co. v.
Rumbleseat Press, 816 F.2d 1191, 1196 (7th Cir. 1987) (noting
that the party demanding a jury trial 'can get one only if there
is a triable issue concerning the existence or scope of the
agreement'). As to the threshold issue of whether an
arbitration agreement exists between the parties (the 'making'
of an agreement), federal courts have held: 'To make a
genuine issue entitling the plaintiff to a trial by jury, an
unequivocal denial that the agreement had been made was
needed, and some evidence should have been produced to
substantiate the denial,' Almacenes Fernandez, S.A. v.
Golodetz, 148 F.2d 625, 628 (2d Cir. 1945); and 'the party must
16
1190670
make at least some showing that under prevailing law, he
would be relieved of his contractual obligation to arbitrate if
his allegations proved to be true [and] he must [also] produce
at least some evidence to substantiate his factual allegations.'
Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 961
F.2d 1148, 1154 (5th Cir. 1992)."
This Court stated in Southern Energy Homes, Inc. v. Harcus, 754 So. 2d
622, 626 (Ala. 1999):
" ' "[A]fter a motion to compel arbitration has been made and
supported, the burden is on the non-movant to present
evidence that the supposed arbitration agreement is not valid
or does not apply to the dispute in question." ' Ryan's Family
Steak Houses, Inc. v. Regelin, 735 So. 2d 454, 457 (Ala. 1999)
(quoting Jim Burke Automotive, Inc. v. Beavers, 674 So. 2d
1260, 1265 n. 1 (Ala. 1995)) (alteration in Regelin)."
In the present case, it is undisputed that TitleMax met its initial
burden of producing the contracts, which contain the arbitration
agreement and are signed by McElroy. Further, there is no dispute that
the contracts affect interstate commerce. Accordingly, the burden then
shifted to Falligant to present evidence indicating that the arbitration
agreement is void or does not apply to the dispute in question. To this
end, Falligant argued that, because of McElroy's alleged mental illness,
McElroy lacked the capacity to enter into the contracts and, thus, the
17
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contracts, including the arbitration agreement, are void. To be entitled to
a trial on the question of the voidness of the contracts, Falligant must
have presented evidence sufficient to create a question of fact concerning
McElroy's capacity to contract.
In Stephan v. Millennium Nursing & Rehab Center, Inc., 279 So. 3d
532, 539-40 (Ala. 2018), this Court applied the following principles set
forth in Troy Health & Rehabilitation Center v. McFarland, 187 So. 3d
1112, 1119 (Ala. 2015), to determine whether an individual was mentally
competent at the time an arbitration agreement was signed on his behalf:
"In Troy Health & Rehabilitation Center v. McFarland,
187 So. 3d 1112 (Ala. 2015), this Court discussed the
enforceability of an arbitration agreement and whether a
nursing-home resident was mentally competent when he
executed a durable power of attorney naming his nephew as
his attorney-in-fact. We find the following reasoning from that
case to be analogous:
" ' "[T]he standard for determining
whether a person is competent to
execute a power of attorney is whether
that person is able to understand and
comprehend his or her actions. Queen
v. Belcher, 888 So. 2d 472, 477 (Ala.
2003). The burden initially falls on the
party claiming that the person who
executed the power of attorney was
18
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incompetent when he or she executed
the power of attorney. Id. If, however,
it is proven that the person who
executed the power of attorney was
habitually or permanently incompetent
before executing the power of attorney,
the burden shifts to the other party to
show that the power of attorney was
executed during a lucid interval. Id."
" 'Yates v. Rathbun, 984 So. 2d 1189, 1195 (Ala.
Civ. App. 2007).'
"187 So. 3d at 1119.
"We held that the presumption is that every person has
the capacity to understand until the contrary is proven.
McFarland, 187 So. 3d at 1119 (citing Yates v. Rathbun, 984
So. 2d 1189, 1195 (Ala. Civ. App. 2007), Thomas v. Neal, 600
So. 2d 1000, 1001 (Ala. 1992), and Hardee v. Hardee, 265 Ala.
669, 93 So. 2d 127 (1956)). The Court differentiated between
the burden of proving permanent incapacity and temporary
incapacity. Specifically, we held that proof of incapacity
" ' " ' "at intervals or of a temporary character would
create no presumption that it continued up to the
execution of the instrument, and the burden would
be upon the attacking party to show [incapacity] at
the very time of the transaction." ' " Wilson v.
Wehunt, 631 So. 2d 991, 996 (Ala. 1994) (quoting
Hall v. Britton, 216 Ala. 265, 267, 113 So. 238, 239
(1927) (emphasis added)).'
"McFarland, 187 So. 3d at 1119.
19
1190670
"Thus, a party seeking to avoid a contract based on the
defense of incapacity must prove either permanent incapacity
or contractual incapacity at the very time of contracting. See
Ex parte Chris Langley Timber & Mgmt., Inc., 923 So. 2d
1100, 1106 (Ala. 2005)."
Stephan, 279 So. 3d at 539-40 (footnote omitted).
In his response to TitleMax's motion to compel arbitration and on
appeal, Falligant argues that McElroy lacks the mental capacity to enter
into a contract. It appears that Falligant is arguing that McElroy suffers
permanent incapacity. Based on the above authority, Falligant must
present substantial evidence indicating that McElroy does not have the
capacity to "understand and comprehend" her actions at all times.
Falligant's argument that McElroy suffers permanent incapacity is
based, in part, on the fact that McElroy receives Social Security disability
benefits and that a payee has been named to receive and manage those
benefits on McElroy's behalf. In his brief before this Court, Falligant
states that, "[i]n order to receive these benefits, [McElroy's] mental illness
had to be established to the Social Security Administration." Falligant's
brief, at p. 19. Falligant then proceeds to make extensive argument
concerning the method and evidence by which a mental disability is
20
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proven to the Social Security Administration to receive disability benefits
based on a mental disability. Falligant also relies upon his own opinion
of McElroy's mental disability, as set forth in his affidavit.
Initially, we note that nothing in the record indicates that McElroy
is receiving Social Security disability benefits based on her mental
disability. To be sure, there is no question that McElroy is receiving a
monthly Social Security disability benefit, but nothing indicates that she
is receiving those benefits based on a mental disability. For instance, the
letter from the Social Security Administration informing McElroy of the
amount that she would be receiving per month does not indicate the
reason McElroy is receiving that monthly benefit. Falligant's affidavit
testimony likewise indicates that McElroy is receiving a monthly Social
Security disability benefit, but nothing in Falligant's affidavit testimony
indicates that McElroy is receiving that benefit based on a finding by the
Social Security Administration that McElroy has a mental disability. We
note that the circuit court also stated that McElroy "became a recipient of
Social Security Disability benefits, based upon her mental disability,"
(emphasis added), but, again, nothing in the record before us indicates
21
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that McElroy's receipt of the benefits is actually based on a mental
disability. The circuit court did not receive any oral testimony; it made its
decision upon the same documentary evidence we have before us.
Therefore, under our de novo review, the circuit court's factual
determinations are not entitled to any deference. We cannot assume, as
Falligant does, that McElroy's receipt of Social Security disability benefits
is based on a finding by the Social Security Administration that McElroy
suffers from a mental disability. Falligant's argument that McElroy is
receiving Social Security disability benefits based on a mental disability
is simply not established in the record; thus, any argument built upon
that premise is unavailing.
Other evidence Falligant says indicates that McElroy suffers from
a mental disability is the fact that the Crisis Center was appointed payee
of McElroy's Social Security disability benefits. The only evidence
concerning the implications of McElroy's having a payee to receive her
Social Security disability benefit comes from Falligant's affidavit
testimony, which states, in pertinent part:
22
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"The Social Security payee program tries to provide financial
management for beneficiaries such as Ms. McElroy who due to
mental illness are incapable of managing their Social Security
or SSI payments. ... Each of these payees has exhibited a
history of instability and a lack of competence to handle their
financial affairs, resulting in Social Security making this
assignment through the payee program to the Crisis Center."
As TitleMax points out in its brief, however, the Social Security
Administrative "may appoint a representative payee even if the
beneficiary is a legally competent individual." 20 C.F.R. § 404.2001(b)(2)
(emphasis added). Therefore, the mere fact that the Crisis Center was
appointed McElroy's payee does not, in and of itself, indicate that McElroy
is permanently incapacitated.
Falligant's affidavit testimony further includes Falligant's opinion
as to McElroy's mental state and her ability to enter into contracts
generally. Falligant's affidavit testimony indicates that he has "known
Ms. McElroy for several years" and that his opinion is that McElroy
"suffers from a variety of mental and emotional illnesses which make her
extremely vulnerable and incapable of handling [her] finances."
Falligant's affidavit testimony states that McElroy "has had a long history
of mental illness." It is also Falligant's opinion that McElroy "will sign
23
1190670
anything placed in front of [her]" and that she "lacked a mental capacity
to understand the contract terms with TitleMax due to her mental illness
and disability."
We cannot say that the evidence presented by Falligant
demonstrates that McElroy lacks the mental capacity to understand and
comprehend her actions. Reading Falligant's affidavit testimony in a light
most favorable to him, we can perhaps conclude that McElroy suffers from
some undefined mental illness and lacks the mental capacity to
appropriately manage her financial affairs. We can even conclude that
McElroy is vulnerable and did not understand the terms of the contracts
she entered into with TitleMax. However, Falligant's affidavit testimony
gives no specifics as to McElroy's mental capacity or whether she is able
to generally understand and comprehend the actions she takes. The fact
that McElroy did not understand the terms of the contracts is not
necessarily evidence that she cannot understand and comprehend her
actions generally; there are many competent people who would have
difficulty understanding a contract full of legal terms of art. In fact,
Falligant's affidavit testimony indicating that McElroy sought financial
24
1190670
help from the Crisis Center to pay off what she owed under the contracts
is an indication that she does have the capacity to understand and
comprehend her actions.
Falligant relies upon Stephan, supra, in support of his argument.
In Stephan, this Court considered whether a man who had been diagnosed
with dementia had the mental capacity to authorize a family member to
sign an arbitration agreement on his behalf. In considering whether a
diagnosis of dementia was sufficient from which to conclude that the man
lacked the mental capacity to authorize his family member to sign the
contract, this Court stated:
"This Court recognizes that [the man's] diagnosis of
dementia, by itself, does not establish permanent incapacity.
[Troy Health & Rehab. Ctr. v.] McFarland, 187 So. 3d [1112,]
1120 [(Ala. 2015)] (citing Ex parte Chris Langley Timber [&
Mgmt., Inc.], 923 So. 2d [1100,] 1106 [(Ala. 2005)]). Although
it may be apparent that [the man's] dementia was chronic in
nature as distinguished from temporary, it is not so apparent
that the state of [the man's] dementia constituted 'permanent
incapacity' as that term is used to describe the mental
incapacity necessary to justify the avoidance of the arbitration
provision. See Ex parte Chris Langley Timber, 923 So. 2d at
1106. The Court is unable to discern from the medical records
whether [the man's] mental-health condition had progressed
to the level of 'permanent incapacity' by the time he was
admitted to Crestwood. Dr. Hitchcock's notes indicate that
25
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[the man's] dementia caused no more than short-term memory
loss. The notations during visits to the clinic between August
2014 and September 2015 indicate that [the man] was 'not
oriented'; however, the record also indicates that [the man's]
condition was 'slowly progressive' and that he was able to
follow commands and sometimes converse with the physician.
Thus, this Court cannot conclude that [the appellant] has
overcome her burden of proving that [the man's] condition rose
to the level of permanent incapacity as that term is used under
the law to void a contract."
Stephan, 279 So. 3d at 540.
In Stephan, medical records were submitted into evidence explaining
the specific impact of the man's dementia on him and the mental
capacities that it effected. This permitted the Court to analyze whether
the man's mental capacity was such that he could understand and
comprehend his actions. In the present case, however, there is no
evidence explaining the specifics of McElroy's mental illness or how it
affects her mental capacities. Falligant's affidavit testimony is conclusory
and generally asserts that McElroy is not able to manage her personal
financial affairs and that she did not understand the terms of the
contracts. But there is no evidence explaining McElroy's mental illness
and whether the reasons she is unable to manage her personal finances
26
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or understand the terms of the contracts mean that she is unable to
understand and comprehend her actions generally. The details concerning
the alleged mental incapacity set forth in Stephan are lacking in
Falligant's general and conclusory statements concerning McElroy's
alleged mental incapacity in the present case.
In short, evidence indicating that McElroy suffers from an undefined
mental illness, that she lacks the ability to manage her financial affairs,
and that she did not understand the terms of the contracts is not sufficient
evidence to create a genuine question of fact as to whether she is
permanently incapacitated and, thus, unable to contract; Falligant has
failed to meet his evidentiary burden.4
4We note that TitleMax also argues that the circuit court erred in
granting a trial on the issue of McElroy's mental capacity to contract with
TitleMax because Falligant never requested a jury trial on that issue. We
need not address that argument, however, based on our determination
that Falligant failed to present sufficient evidence creating a question as
to McElroy's mental capacity to contract.
27
1190670
Conclusion
TitleMax met its burden of proving that a contract affecting
interstate commerce existed and that that contract was signed by McElroy
and contained an arbitration agreement. The burden then shifted to
Falligant to prove that the arbitration agreement is void. Falligant failed
to present substantial evidence indicating that McElroy is permanently
incapacitated and, thus, lacked the mental capacity to enter into the
contracts. Because Falligant has failed to create a genuine issue of fact,
the circuit court erred in ordering the issue of McElroy's mental capacity
to trial. Accordingly, we reverse the circuit court's decision and remand
the cause to the circuit court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Bolin, Wise, and Bryan, JJ., concur.
Shaw and Sellers, JJ., concur in the result.
Parker, C.J., and Stewart, J., dissent.
Mitchell, J., recuses himself.
28 | December 4, 2020 |
9b4db06e-9a45-4152-ae01-d83c91fce18b | John Hooper v. Emily Brown and Christi Hooper, as personal representatives of the Estate of Mallett Scott Hooper, deceased, and Transamerica Advisors Life Insurance Company | N/A | 1190262 | Alabama | Alabama Supreme Court | REL: 11/13/2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190262
John Hooper v. Emily Brown and Christi Hooper, as personal
representatives of the Estate of Mallett Scott Hooper, deceased, and
Transamerica Advisors Life Insurance Company (Appeal from Covington
Circuit Court: CV-14-900019).
PARKER, Chief Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Shaw, Bryan, Mendheim, and Mitchell, JJ., concur. | November 13, 2020 |
f8ba65c3-87e0-4a52-a320-b211f3917d96 | Meadows v. Shaver et al. | N/A | 1180134 | Alabama | Alabama Supreme Court | REL: November 20, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1180134
____________________
Kary Meadows
v.
Steven Shaver et al.
Appeal from Walker Circuit Court
(CV-15-900103)
PARKER, Chief Justice.
Kary Meadows was confined in a work-release program for eight
months after his sentence ended. In an ensuing lawsuit, the Walker
Circuit Court entered a summary judgment in favor of Court Referral
Services 14th Judicial Circuit Community Punishment and Corrections
1180134
Authority, Inc., a/k/a Walker County Community Corrections ("WCCC"),
and its director, Steven Shaver, and entered an order of dismissal in favor
of Walker County circuit clerk Susan Odom. Meadows appeals. We affirm.
I. Facts and Procedural History
In 2009, Meadows pleaded guilty to theft, receiving stolen property,
and possession of a controlled substance. He was sentenced to five years;
that sentence was split and he was ordered to serve one year in the
Walker County Community Work Release Program (operated by WCCC,
a private company), followed by four years of supervised probation. In
2012, his probation was revoked, and he was placed under house arrest.
In early May 2013, he was removed from house arrest for marijuana
violations and placed back in the work-release program, where he was
confined at night but released to work during the day.
For purposes of this appeal, the parties do not dispute that Meadows
was supposed to be released from custody on May 27, 2013. According to
Meadows, when that day arrived, Meadows asked to be released, but
Shaver refused. Every day for the next eight months, Meadows asked to
be released, insisting that his time had been served and asking to be
2
1180134
shown his time sheet. Shaver and his subordinates refused to release
Meadows and refused to provide him any document showing when he was
supposed to be released or to provide him his prisoner-identification
number so he could find his release date for himself. Meadows asserts
that Shaver threatened to have him charged with felony escape and
placed in a maximum-security facility for 15 years if he ever failed to
return to the facility after work, so Meadows continued to spend every
night in custody for 8 months.
Meadows alleges that, in January 2014, he managed to contact a
director within the Alabama Department of Corrections ("ADOC"). When
Meadows asked for a copy of his time sheet, the ADOC director told him
he should have been released in May 2013. Meadows said he was still in
custody, and the director advised him to hire an attorney. Meadows
quickly did so, and his attorney petitioned the circuit court for Meadows's
release. On January 31, 2014, ADOC generated a time sheet showing that
Meadows should have been released on May 27, 2013. Meadows was
released on February 5, 2014.
In March 2015, Meadows sued Shaver and WCCC, asserting claims
3
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of negligence and wantonness, negligence per se, false imprisonment, and
money had and received (based on the fees and rent Meadows had paid to
WCCC during the eight months he was improperly in custody). In June
2017, Shaver filed a motion for a summary judgment, asserting that he
did not breach any duty to Meadows. Shaver submitted an affidavit
explaining that he never received Meadows's end-of-sentence date from
ADOC. Shaver also averred that the person responsible for sending
ADOC Meadows's sentence-status transcript -- which would have
triggered ADOC's calculation of his end-of-sentence date -- was the
county's circuit clerk, Susan Odom. Shaver contended that he was not
responsible for calculating the end-of-sentence date, nor was he capable
of doing so. WCCC likewise moved for a summary judgment,
incorporating by reference Shaver's arguments.
Two weeks after the motions for a summary judgment were filed,
Meadows amended his complaint to substitute Odom for a fictitiously
named defendant, asserting claims against her of negligence, wantonness,
and false imprisonment, in her official and individual capacities. Odom
filed a motion to dismiss, arguing that she was entitled to State immunity,
4
1180134
judicial immunity, and federal qualified immunity and that Meadows's
claims were barred by the applicable statute of limitations. Shaver
renewed his motion for a summary judgment. In response to Odom's
motion to dismiss, Meadows again amended his complaint, this time to
clarify that his official-capacity claims against Odom sought payment only
from insurance maintained by or on behalf of Odom, not from the State
treasury.
After a hearing, the circuit court entered an order granting Odom's
motion to dismiss and dismissing her from the case, ruling that she was
entitled to State immunity and judicial immunity and that her statutory
duty to send ADOC a sentence-status transcript for Meadows had not
been triggered by the 2012 order in his criminal case.
Later, the court entered a summary judgment in favor of Shaver and
WCCC, ruling that they did not have a duty to calculate Meadows's
release date. Meadows moved to vacate the summary judgment under
Rule 59, Ala. R. Civ. P., and requested a hearing. The court denied the
motion without a hearing, and Meadows appeals.
5
1180134
II. Standard of Review
Both the judgment of dismissal in favor of Odom and the summary
judgment in favor of Shaver and WCCC must be reviewed as summary
judgments. Although Odom's motion was styled a motion to dismiss, the
circuit court treated it as a motion for a summary judgment by relying on
facts outside Meadows's complaint. "[W]here, as here, the parties ... file
matters outside the pleadings and these matters are not excluded by the
court," a motion to dismiss is converted to a motion for a summary
judgment. Graveman v. Wind Drift Owners' Ass'n, Inc., 607 So. 2d 199,
202 (Ala. 1992). Moreover, when both sides submit or refer to evidence
outside the complaint, they consent to the conversion, and the court is not
required to notify them of it. See Lifestar Response of Alabama, Inc. v.
Admiral Ins. Co., 17 So. 3d 200, 213 (Ala. 2009) ("[I]t appears that both
sides acquiesced in the trial court's consideration of matters outside the
pleadings either by submitting or by referring to evidence beyond the
pleadings; therefore, notice by the trial court that it would consider
matters outside the pleadings would not have been necessary under Rule
56, Ala. R. Civ. P."). Here, when Odom filed her motion to dismiss, she
6
1180134
submitted documents outside the complaint. In Meadows's response, he
likewise relied on documents outside the complaint. Thus, the parties
acquiesced to the court's treating Odom's motion as one for a summary
judgment without further notice.
"In reviewing the disposition of a motion for summary judgment, we
utilize the same standard as the trial court in determining whether the
evidence ... made out a genuine issue of material fact and whether the
defendant was entitled to a judgment as a matter of law." Gable v.
Shoney's, Inc., 663 So. 2d 928, 928 (Ala. 1995). The evidence is considered
in the light most favorable to the nonmovant, and all doubts are resolved
against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413
(Ala. 1990).
III. Analysis
A. Claims against Odom
In filings relating to Odom's motion to dismiss, she argued that
Meadows's claims against her, in her official and individual capacities,
were barred by State immunity, judicial immunity, federal qualified
immunity, and the statute of limitations. Because the State-immunity
7
1180134
defense is dispositive, we address only that defense.
The Alabama Constitution provides: "[T]he State of Alabama shall
never be made a defendant in any court of law or equity." Art. I, § 14, Ala.
Const. 1901. This immunity applies to claims for damages against not
only the State and its agencies, but also State officers and employees who
are sued in their official capacities (i.e., when the claim is, in effect,
against the State). See Ex parte Moulton, 116 So. 3d 1119, 1130-31, 1140
(Ala. 2013); Ex parte Butts, 775 So. 2d 173, 177 (Ala. 2000). Although
circuit clerks like Odom are elected by their counties' residents, they are
officers of the State. For example, their salaries are primarily paid by the
State. § 12-17-92, Ala. Code 1975. Further, State statutes, rather than
county ordinances, establish the locations of circuit clerks' offices, §
12-17-90, Ala. Code 1975, the scope of their duties, § 12-17-94, and the
extent of their authority, § 12-17-93. Therefore, as a State officer, Odom
was entitled to State immunity from any claims by Meadows that were
against her in her official capacity.
This Court addressed the nature of official-capacity claims versus
individual-capacity claims in Barnhart v. Ingalls, 275 So. 3d 1112 (Ala.
8
1180134
2018). There, former State employees sued State officers, alleging that
the officers had failed to pay the employees bonuses and holiday
compensation as required by law. The employees sought damages from
the officers, purportedly in their individual capacities. This Court held
that those claims were barred by State immunity. We explained that
State officers and employees are immune from a damages claim that is,
"in effect, one against the State." Id. at 1122. We recognized that our
prior cases, when determining whether a claim was, "in effect, one against
the State," had focused only on whether the source of any damages
awarded would be the State treasury. However, we emphasized another
factor relevant to that determination: "the nature of the action." Id. at
1125-26. Although we had mentioned that factor in other cases, see id. at
1125 (quoting Haley v. Barbour Cnty., 885 So. 2d 783, 788 (Ala. 2004),
quoting in turn Phillips v. Thomas, 555 So. 2d 81, 83 (Ala. 1989)), we
apparently had not previously distinguished that factor from, or
recognized that it had any significance independent of, the source-of-
damages factor. In Barnhart, we did so. To determine "the nature of the
action," we examined whether the duties that the officers allegedly
9
1180134
breached existed solely because of their official positions. Because the
answer was yes, we held that the claims were not truly individual-
capacity claims but were actually official-capacity claims -- claims, in
effect, against the State. Id. at 1126 ("[T]he ... officers were, accordingly,
acting only in their official capacities when they allegedly breached those
duties .... Stated another way, the ... officers had no duties in their
individual capacities to give effect to the [wages laws]; rather, any duties
they had in that regard existed solely because of their official positions in
which they acted for the State. Accordingly, the individual-capacities
claims are, in effect, claims against the State ...." (citation omitted)). And,
as official-capacity claims for damages, they were barred. Finally, we
expressly overruled all prior cases that had focused solely on the source-of-
damages factor in determining whether State immunity applied. Id. at
1127.
We recently applied Barnhart's official-duty test in Anthony v.
Datcher, [Ms. 1190164, Sept. 4, 2020] ___ So. 3d ___ (Ala. 2020). There,
college instructors sued a State educational official for damages resulting
from the official's misclassification of their positions for salary purposes.
10
1180134
The instructors' relevant claims were purportedly against the official in
her individual capacity. In light of Barnhart, this Court identified "[t]he
key issue [as] whether those ... claims against [the official] were actually
individual-capacity claims or were in fact official-capacity claims
mislabeled as individual-capacity claims." Id. at ___. We noted that,
under Barnhart, "the nature of a claim is crucial in determining whether
it is actually an official-capacity claim or an individual-capacity claim." Id.
at ___. Therefore, we examined the allegedly breached duty of the official
-- to properly classify the instructors -- and determined that that duty
"existed only because of her official position in which she acted for the
State." Id. at ___. Accordingly, we held that the claims "were not actually
individual-capacity claims" but were in substance official-capacity claims.
Id. at ___.
Following Barnhart and Anthony, we must examine whether the
duties that Odom allegedly breached existed solely because of her State
position. Meadows's operative complaint alleged that Odom breached the
following duties:
•
"to properly document [Meadows's] release date";
11
1180134
•
"to notify ... [ADOC] ... of Meadows's situation";
•
"to provide appropriate action based on Meadows's known
release date and other records";
•
"to ensure [ADOC] receive[d] the necessary [sentence-status]
transcript[] ... within five business days of [Odom's] receipt of
the court order" as allegedly required by statute; and
•
"to train and supervise her staff ... [to] send[,] and ensure
ADOC received[,] the transcript."
In the context of the facts presented by Meadows, each of these alleged
duties relating to the sentence-status transcript arose solely out of Odom's
position as circuit clerk. That is, each alleged duty existed only because
of Odom's State position. Accordingly, both Meadows's official-capacity
claims and his purported individual-capacity claims against Odom were,
in effect, against the State; they were, in substance, official-capacity
claims. Under Barnhart and Anthony, then, these claims were barred by
State immunity.
We recognize that, in disputing whether State immunity applies, the
parties have focused on the source-of-damages factor that was applied in
12
1180134
prior cases and that was mentioned in Barnhart; Odom has not asserted
State immunity based on Barnhart's official-duty test. Nevertheless, we
have held that State immunity is an issue of subject-matter jurisdiction,
such that we must recognize its applicability even if no party raises it.
Barnhart, 275 So. 3d at 1127 n.9; see Alabama Dep't of Corr. v.
Montgomery Cnty. Comm'n, 11 So. 3d 189, 191-92 (Ala. 2008). Hence, we
are bound to raise and apply Barnhart's test ex mero motu, as we have
done here.1
B. Claims against Shaver and WCCC
Meadows argues that the circuit court erred by entering the
summary judgment in favor of Shaver and WCCC because, he asserts,
both Shaver's renewed motion for a summary judgment and WCCC's
motion for a summary judgment were mooted by Meadows's subsequently
filed third amended complaint and because Shaver's renewed motion
contained no argument regarding Meadows's claims of false imprisonment
1The applicability of State immunity resulting from Barnhart's
official-duty test makes any discussion of Odom's judicial-immunity and
federal-qualified-immunity theories unnecessary. Similarly, we pretermit
discussion of Odom's statute-of-limitations argument.
13
1180134
and money had and received. Regarding WCCC's motion for a summary
judgment, Meadows argues that the circuit court erred in granting it
because the motion simply incorporated Shaver's motion by reference and
failed to comply with the requirements in Rule 56(c), Ala. R. Civ. P., that
a motion for a summary judgment include a statement of facts, legal
argument, and supporting evidence. Meadows also argues that the circuit
court erred by denying his Rule 59 motion to vacate without holding the
hearing required by Rule 59(g).
This Court ordinarily cannot reverse a summary judgment on the
basis of an argument that reasonably could have been, but was not,
presented to the trial court before that court entered the summary
judgment. See Ex parte Ryals, 773 So. 2d 1011, 1013 (Ala. 2000); Ex parte
Smith, 901 So. 2d 691, 695 (Ala. 2004). The record reflects that 11 months
passed after Shaver and WCCC filed their motions for a summary
judgment and that a hearing on the motions was held before the circuit
court entered the summary judgment. However, the record does not
reflect that, during that time, Meadows raised any of the arguments that
he now raises on appeal.
14
1180134
As to the judgment on Meadows's claims of false imprisonment and
money had and received, if Shaver and WCCC had not asked for a
summary judgment on those claims, Meadows might be able to argue that
he was unfairly surprised and thus had no reason, before judgment was
entered, to oppose a summary judgment as to those claims. But, although
Shaver and WCCC did not present legal argument directed to those
claims, their motions did request a summary judgment on all of
Meadows's claims. Thus, before entry of the judgment, Meadows was on
notice of the need to present argument opposing summary judgment as to
all of his claims, even if, as to the false-imprisonment and money-had
claims, that argument could simply have been that Shaver and WCCC had
not presented argument to support a summary judgment.2
2Meadows argues that he was not required to point out to the circuit
court certain deficiencies in the motions for a summary judgment because,
he asserts, those deficiencies caused the motions to fail to meet the
movants' summary-judgment burden under Rule 56(c). Meadows relies
on White Sands Group, L.L.C. v. PRS II, LLC, 32 So. 3d 5 (Ala. 2009). In
that case, this Court held:
" ' " ' [T]he
party
moving
for
summary
judgment has the burden to show that he is
entitled to judgment under established principles;
15
1180134
and if he does not discharge that burden, then he is
not entitled to judgment. No [response] to an
insufficient showing is required.' " Otherwise
stated, "[a] motion that does not comply with Rule
56(c) does not require a response ... from the
nonmovant," and a judgment may not be entered
on such a motion even in the absence of a response
from the nonmovant.'
"Jones-Lowe Co.[ v. Southern Land & Expl. Co.], 18 So. 3d
[362,] 367 [(Ala. 2009)].
"... [The movants] have not ... met their initial burden by
reliance on the filings of [a co-party]. For these reasons, the
burden never shifted to [the nonmovant] to oppose the motion
filed by [the movants]."
Id. at 21 (some citations and some emphasis omitted; emphasis added).
However, White Sands did not hold that a nonmovant is not required to
make any objection to an insufficient summary-judgment motion and may
stand mute, holding his objections in reserve for a later Rule 59 motion or
an appeal in the event that the motion is granted. Rather, our language
in White Sands about the non-necessity of the nonmovant filing a
"response" to or "oppos[ing]" the motion must be understood in its
jurisprudential context. Earlier in that opinion, we explained the
summary-judgment burden-shifting procedure thus: " ' "If the movant
meets [its] burden of production by making a prima facie showing that [it]
is entitled to a summary judgment, 'then the burden shifts to the
nonmovant to rebut the prima facie showing of the movant.' " ' " Id. at 10
(quoting Denmark v. Mercantile Stores Co., 844 So. 2d 1189, 1195 (Ala.
2002), quoting other cases) (emphasis added). By "rebut," we of course
meant that the nonmovant must submit summary-judgment evidence, as
required by Rule 56(e):
16
1180134
Moreover, although Meadows raised some of his current arguments
in his Rule 59 motion, a trial court has discretion not to consider new
arguments in a Rule 59 motion that reasonably could have been raised
"When a motion for summary judgment is made and supported
as provided in this rule, an adverse party may not rest upon
the mere allegations or denials of the adverse party's pleading,
but the adverse party's response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the adverse party does not
so respond, summary judgment, if appropriate, shall be
entered against him."
Rule 56(e), Ala. R. Civ. P. (emphasis added). Thus, the "response" referred
to in Rule 56(e) and White Sands is the rebuttal of a movant's prima facie
showing by the nonmovant's submission of summary-judgment evidence.
As White Sands and similar cases make clear, no such rebuttal is required
when there is nothing to rebut. But that principle does not relieve the
nonmovant of the responsibility of bringing to the trial court's attention
procedural deficiencies in the summary-judgment motion, if the
nonmovant wishes to later raise those deficiencies in a Rule 59 motion or
on appeal. See Ryals, 773 So. 2d at 1013; Smith, 901 So. 2d at 695.
Indeed, procedural deficiencies ordinarily can be waived, and nothing in
White Sands indicates that such deficiencies in a motion for a summary
judgment must be treated differently. Further, Meadows's interpretation
of White Sands would require trial courts to scour every defendant's
summary-judgment motion for procedural compliance with every part of
Rule 56 and for the presence of argument as to every one of the plaintiff's
claims. To require a court to do so would not only burden the court with
the plaintiff's work, but would also force the court into a position of
advocate for the plaintiff, removing the court from the proper judicial role
of neutral arbiter.
17
1180134
before the judgment was entered, see Alfa Mut. Ins. Co. v. Culverhouse,
149 So. 3d 1072, 1078 (Ala. 2014). Here, the circuit court denied the
motion, and there is no indication that the court considered Meadows's
new arguments; we will not presume that it did. See Espinoza v. Rudolph,
46 So. 3d 403, 416 (Ala. 2010) ("There is no indication that the trial court
considered the merits of the legal argument raised for the first time in
[the appellants'] postjudgment motion, and we will not presume that it
did."). Thus, the motion did not preserve the new arguments. Therefore,
Meadows's appellate arguments directed to the summary judgment were
not preserved for appeal.
Regarding Meadows's argument that his third amended complaint
mooted the then pending motions for a summary judgment,3 we also take
this opportunity to clarify a point of civil procedure. In Ex parte Puccio,
923 So. 2d 1069 (Ala. 2005), this Court held that a motion to dismiss was
3WCCC's summary-judgment motion incorporated by reference
Shaver's original summary-judgment motion. When Shaver filed his
renewed summary-judgment motion, WCCC did not file a parallel
renewal. However, Meadows does not argue that WCCC's incorporation
of Shaver's original motion was mooted by Shaver's renewed motion, so we
need not address that possibility.
18
1180134
mooted by a later amended complaint because the amended complaint
superseded the original complaint. The defendant had moved to dismiss
the action based on the trial court's lack of personal jurisdiction. The
plaintiff amended the complaint to address the personal-jurisdiction issue.
We held that that amendment (which was clearly relevant to the pending
dispositive motion) mooted the motion. It does not follow, however, that
an unrelated amendment of a complaint likewise moots a pending motion.
Here, Meadows's amendment of the complaint revised only the claims
against Odom, not those against Shaver and WCCC that were the subject
of their pending motions for a summary judgment. This kind of
amendment does not necessarily render a prior summary-judgment
motion moot; instead, as other states' courts have held, the motion
continues to apply to claims and allegations that are carried over into the
amended complaint. See Malone v. E.I. DuPont de Nemours & Co., 8
S.W.3d 710, 714 (Tex. App. 1999) ("In summary judgment cases, if an
amended pleading raises new theories of recovery that are not addressed
in the motion for summary judgment, it is improper to grant summary
19
1180134
judgment on the entire case. ... But a trial court can grant partial
summary judgment on the claims that were addressed in the summary
judgment motion and carried forward in the amended pleading without
requiring the summary judgment motion to be amended."); Singer v.
Fairborn, 73 Ohio App. 3d 809, 813, 598 N.E.2d 806, 809 (1991) ("There
is no affirmative duty upon the moving party to renew its motion for
summary judgment ..., at least in the absence of any amendment to the
complaint that would affect the issues raised in the motion for summary
judgment."); cf. 6 Charles Alan Wright et al., Federal Practice and
Procedure § 1476 (3d ed. 2010) ("[D]efendants should not be required to
file a new motion to dismiss simply because an amended pleading was
introduced while their motion was pending. If some of the defects raised
in the original motion remain in the new pleading, the court simply may
consider the motion as being addressed to the amended pleading. To hold
otherwise would be to exalt form over substance." (footnote omitted)).
Indeed, to allow plaintiffs to avoid a summary judgment by changing
unrelated details in their complaints could permit plaintiffs to thwart the
summary-judgment procedure entirely. Accordingly, an amendment of a
20
1180134
pleading moots an opponent's pending motion only to the extent that the
substance of the amendment moots the substance of the motion.4 In light
of this clarification, Meadows's subsequent amendment of his complaint
did not moot Shaver and WCCC's pending motions for a summary
judgment.5
4Our decision in Grayson v. Hanson, 843 So. 2d 146 (Ala. 2002), is
not to the contrary. There, the plaintiff appealed from a final judgment
quieting title and challenged the trial court's denial of an earlier
summary-judgment motion that had argued adverse possession of the
property. This Court declined to review that denial because, after it, the
plaintiff had amended his complaint, changing the legal description of the
disputed property. However, among other procedural differences from
this case, in Grayson the amendment to the complaint, like the
amendment in Puccio, affected the ground raised in the earlier summary-
judgment motion.
5The hearing at which the summary-judgment motions were
apparently heard (we have not been favored with a transcript) was
scheduled via an order setting a hearing on "any pending motions."
Presumably, Meadows did not raise his arguments in opposition to the
summary-judgment motions at that hearing because he believed that the
motions were no longer "pending" as a result of having been mooted by the
third amended complaint. But the motions were not moot, as we have
explained. Moreover, for preservation purposes, it was incumbent on
Meadows to bring the mootness issue to the circuit court's attention at or
before the hearing, along with all other arguments he wished to assert in
opposition to a summary judgment. Even if he had been correct about
mootness, he could not simply pocket his arguments, to be later raised for
the first time in a Rule 59 motion or on appeal.
21
1180134
Finally, Meadows argues that the circuit court erred by denying his
Rule 59 motion to vacate the summary judgment without providing him
a hearing on that motion. A Rule 59 motion "shall not be ruled upon until
the parties have had opportunity to be heard thereon." Rule 59(g). Thus,
" '[a] trial court's failure to conduct a hearing is error.' " Honea v. Raymond
James Fin. Servs., Inc., 240 So. 3d 550, 564 (Ala. 2017) (quoting Dubose
v. Dubose, 964 So. 2d 42, 46 (Ala. Civ. App. 2007)). However, if in a
particular case the failure to hold a hearing is harmless error, this Court
will not reverse the denial of the Rule 59 motion. See Ex parte Evans, 875
So. 2d 297, 299–300 (Ala. 2003). Harmless error is error that does not
"injuriously affect[] [the appellant's] substantial rights," Rule 45, Ala. R.
App. P. In the context of a denial of a Rule 59 motion without a hearing,
"[h]armless error occurs ... where there is either no probable merit in the
grounds asserted in the motion, or where the appellate court resolves the
issues presented therein, as a matter of law, adversely to the movant ...."
Greene v. Thompson, 554 So. 2d 376, 381 (Ala. 1989). Here, Meadows's
Rule 59 motion presented only new arguments and new evidence that
could reasonably have been presented before the summary judgment was
22
1180134
entered. The circuit court thus had discretion to disregard those
arguments, see Alfa, supra, and that evidence, see Moore v. Glover, 501
So. 2d 1187, 1189 (Ala. 1986); Green Tree Acceptance, Inc. v. Blalock, 525
So. 2d 1366, 1369 (Ala. 1988). Therefore, under the circumstances of this
case, the court's failure to hold a hearing on Meadows's Rule 59 motion did
not affect Meadows's substantial rights, and thus any error was harmless.
IV. Conclusion
Meadows's claims against Odom, which were all ultimately official-
capacity claims, are barred by the doctrine of State immunity. Regarding
his claims against Shaver and WCCC, Meadows's appellate arguments
were not preserved below. Therefore, we affirm the circuit court's
summary judgments as to all claims against Odom, Shaver, and WCCC.
AFFIRMED.
Mitchell, J., concurs.
Bolin, Shaw, Wise, Bryan, Sellers, and Mendheim, JJ., concur in the
result.
Stewart, J., recuses herself.
23 | November 20, 2020 |
02ff7fbd-3466-43f0-ba4e-a476376c4281 | Ex parte Anderson Lafayette Boyd. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Anderson Lafayette Boyd v. State of Alabama) | N/A | 1060949 | Alabama | Alabama Supreme Court | Rel: 03/21/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2007-2008
____________________
1060949
____________________
Ex parte Anderson Lafayette Boyd
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Anderson Lafayette Boyd
v.
State of Alabama)
(Franklin Circuit Court, CC-94-1.61;
Court of Criminal Appeals, CR-06-0401)
PARKER, Justice.
Anderson Lafayette Boyd petitions for certiorari review
of the Court of Criminal Appeals' affirmance by unpublished
memorandum of the trial court's denial of his motion for
reconsideration under § 13A-5-9.1, Ala. Code 1975, of his
sentence imposed pursuant to § 13A-5-9, Ala. Code 1975, the
1060949
2
Habitual Felony Offender Act ("the HFOA"). We reverse and
remand.
On June 14, 1994, Boyd was convicted in the Franklin
Circuit Court of robbery in the first-degree. Prior to his
conviction for first-degree robbery, Boyd had been convicted
of six felony charges. Generally, the previous convictions
were for forgery and theft; none of the convictions involved
crimes of a violent nature. However, the conviction for first-
degree robbery did involve the use of a deadly weapon. The
circuit
court
sentenced
Boyd
under
th
HFOA
to
life
imprisonment without the possibility of parole. See § 13A-5-
9(c)(3), Ala. Code 1975. On October 3, 2005, Boyd filed a
motion for reconsideration of his sentence pursuant to § 13A-
5-9.1, Ala. Code 1975, and Kirby v. State, 899 So. 2d 968
(Ala. 2004) ("Kirby motion"). This was Boyd's second Kirby
motion. After the Alabama Department of Corrections completed
the evaluation required by § 13A-5-9.1 and responded, Judge
Sharon H. Hester, the presiding judge of the Franklin Circuit
Court, denied Boyd's Kirby motion.
Boyd filed a written notice of appeal, and the Court of
Criminal Appeals affirmed the circuit court's decision with an
1060949
3
unpublished memorandum on the ground that Boyd's Kirby motion
was the second Kirby motion Boyd had filed and the circuit
court was therefore without jurisdiction to hear the motion.
Boyd v. State (No. CR-06-0401, Feb. 23, 2007), __ So. 2d __
(Ala. Crim. App 2007) (table). Boyd contends that the decision
of the Court of Criminal Appeals conflicts with Kirby, supra,
and Ex parte Seymour, 946 So. 2d 536 (Ala. 2006). We granted
Boyd's petition to determine whether Boyd's second Kirby
motion could be precluded as a successive motion for sentence
reconsideration on the ground that the circuit court has no
jurisdiction to consider a successive Kirby motion.
After we granted Boyd's petition, we issued an opinion in
Ex parte Gunn, [Ms. 1051754, Sept. 21, 2007] __ So. 2d __
(Ala. 2007), which is dispositive of this case. In an
unpublished memorandum in Gunn v. State (No. CR-05-1350,
August 11, 2006), __ So. 2d __ (Ala. Crim. App. 2006) (table),
the Court of Criminal Appeals held, as it did in this case,
that under Wells v. State, 941 So. 2d 1008 (Ala. Crim. App.
2005), the trial court did not have jurisdiction to consider
a successive Kirby motion. This Court granted the petition for
the writ of certiorari in Gunn and overruled Wells, noting
1060949
4
that Wells conflicted with Kirby and Ex parte Seymour, supra.
Ex parte Gunn, __ So. 2d at __.
The Court of Criminal Appeals here relied solely on Wells
in affirming the circuit court's judgment. In light of our
decision in Gunn, we reverse the judgment of the Court of
Criminal Appeals and remand this case to that court for
proceedings consistent with Gunn.
REVERSED AND REMANDED.
See, Lyons, Woodall, Smith, Bolin, and Murdock, JJ.,
concur.
Stuart, J., concurs specially.
Cobb, C.J., recuses herself.
1060949
5
STUART, Justice (concurring specially).
See my writing in Ex parte Gunn, [Ms. 1051754, Sept. 21,
2007] ___ So. 2d ___, ___ (Ala. 2007)(Stuart, J., concurring
specially). | March 21, 2008 |
a1ded4c9-cca9-4598-9aee-7924918d872b | Ex parte Wytiki Rayshun Moffett. | N/A | 1200059 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 11, 2020
1200059
Ex parte Wytiki Rayshun Moffett. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Wytiki Rayshun Moffett
v. State of Alabama) (Mobile Circuit Court: CC-08-743.61; CC-08-744.61;
Criminal Appeals :
CR-19-0061).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 11, 2020:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 11th day of Decem ber, 2020.
Clerk, Supreme Court of Alabama | December 11, 2020 |
965d4c17-5845-4d68-b206-769dcecce757 | Ex parte Jeremy Rimmer. | N/A | 1200028 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 11, 2020
1200028
Ex parte Jeremy Rimmer. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Jeremy Rimmer v. State of
Alabama) (Montgomery Circuit Court: CC-18-1319; Criminal Appeals :
CR-19-0083).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 11, 2020:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 11th day of Decem ber, 2020.
Clerk, Supreme Court of Alabama | December 11, 2020 |
320a4b21-e874-4a20-8c2e-e304c6ebcaea | Ex parte Sam Smith, individually and in his capacity as director of the Calhoun County Department of Human Resources; Pamela McClellan; and Teresa Ellis. | N/A | 1180834 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 20, 2020
1180834 Ex parte Sam Smith, individually and in his capacity as director
of the Calhoun County Department of Human Resources; Pamela McClellan;
and Teresa Ellis. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
William David Streip, as personal representative of the Estate of Jerrie
Leeann Streip, deceased v. Sam Smith, individually and in his capacity as
director of the Calhoun County Department of Human Resources; Pamela
McClellan; and Teresa Ellis) (Jefferson Circuit Court: CV-17-903149; Civil
Appeals: 2180835).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 20, 2020:
Application Overruled. No Opinion. Shaw, J. - Parker, C.J., and Bolin,
Wise, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 4, 2020:
Petition Granted. Writ Issued. Shaw, J. - Parker, C.J., and Bolin, Wise,
Bryan, Sellers, Mendheim, and Stewart, JJ., concur. Mitchell, J., concurs
specially.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 20th day of November, 2020.
Clerk, Supreme Court of Alabama | November 20, 2020 |
b99d03fc-654e-4b62-942e-20233c42b706 | Ex parte Robert F. Pipes, Jr., as trustee of the Robert F. Pipes, Jr. Living Trust, and Annette Pipes, as agent and attorney in fact for the Robert F. Pipes, Jr. Living Trust. | N/A | 1191064 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 4, 2020
1191064 Ex parte Robert F. Pipes, Jr., as trustee of the Robert F. Pipes,
Jr. Living Trust, and Annette Pipes, as agent and attorney in fact for the
Robert F. Pipes, Jr. Living Trust. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS (In re: Robert F. Pipes, Jr., as trustee
of the Robert F. Pipes, Jr. Living Trust, and Annette Pipes, as agent and
attorney in fact for the Robert F. Pipes, Jr. Living Trust v. Weyerhaeuser
Company) (Clarke Circuit Court: CV-18-900119; Civil Appeals : 2190359).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on December 4, 2020:
Writ Denied. No Opinion. Bolin, J. - Parker, C.J., and Shaw, Wise,
Bryan, Mendheim, Stewart, and Mitchell, JJ., concur. Sellers, J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 4th day of December, 2020.
Clerk, Supreme Court of Alabama | December 4, 2020 |
ebf352fe-903d-402a-88a7-ac45bca1cac5 | Stockham v. Ladd | N/A | 1180904 | Alabama | Alabama Supreme Court | Rel: December 4, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
_________________________
1180904
_________________________
Margaret Stockham, as personal representative of
the Estate of Herbert Stockham, deceased
v.
George Ladd, Virginia Ladd Tucker, and Constance Ladd
Moore,
as cotrustees of the Virginia C. Stockham Trust
Appeal from Jefferson Circuit Court
(CV-12-902305)
WISE, Justice.
Margaret Stockham, as personal representative of the estate of
Herbert Stockham, deceased ("Stockham"), appeals from a judgment of the
1180904
Jefferson Circuit Court, on remand from this Court, denying her motion
for reimbursement of costs and attorney fees. We reverse and remand.
Background
This underlying action has been before this Court previously. Ladd
v. Stockham, 209 So. 3d 457 (Ala. 2016). In that opinion, we summarized
the factual background as follows:
"[Virginia] Ladd [was] a beneficiary of three trusts that each
held preferred and common stock in SVI Corporation ('SVI'):
the Kate F. Stockham Trust, the Herbert C. Stockham Trust,
and the Virginia C. Stockham Trust (hereinafter referred to
collectively as 'the trusts'). Ladd served as an individual
cotrustee of the Kate F. Stockham Trust; Herbert Stockham
('Herbert') served as an individual cotrustee of both the
Herbert C. Stockham Trust and the Virginia C. Stockham
Trust. At all times relevant to these appeals, one or more
predecessors of Wells Fargo Bank, N.A. ('Wells Fargo'), served
as the corporate cotrustee of each of the trusts. At all times
relevant to these appeals, Herbert served either on the board
of directors or as an officer of SVI.
"In 1997, SVI's board of directors, on which Herbert then
served, agreed to sell nearly all of SVI's assets to Crane Co.
('Crane') for $60 million. The one asset Crane did not want to
purchase was SVI's Birmingham plant and foundry facility
because of potential environmental-contamination concerns.
As a condition to the proposed sale, SVI agreed to manufacture
an order of valves for Crane to be completed by May 1998.
Before the sale between SVI and Crane could become final,
SVI's shareholders had to pass a resolution approving of the
2
1180904
sale of substantially all of SVI's assets. Accordingly, SVI's
board of directors notified SVI's shareholders that a meeting
to consider such a resolution would be held on December 1,
1997.
"On December 1, 1997, SVI's board of directors held a
meeting for SVI's shareholders to consider the resolution to
sell substantially all of SVI's assets to Crane. Ladd attended
that meeting. At the meeting, SVI's board of directors
thoroughly explained the proposed sale. SVI's board of
directors explained that, should the proposed sale be approved
by the shareholders and following the completion of the
manufacture of the valves Crane requested, SVI's board of
directors would begin the process of dissolving SVI. An
attorney hired by SVI's board of directors, Jim Hughey, stated
at the meeting that proceeds from the proposed sale would
allow SVI to redeem SVI's preferred stock 'in full' with
'something left over for the common shareholders.' An
accountant hired by SVI's board of directors, Ron Travis,
stated at the meeting that SVI would make the 'final
liquidating distribution' 'three years down the road.'
"At the conclusion of the December 1, 1997, meeting,
SVI's shareholders voted in favor of authorizing SVI's board of
directors to sell substantially all of SVI's assets to Crane.
Ladd, in her capacity as cotrustee of the Kate F. Stockham
Trust, which held SVI stock, was entitled to vote on the sale
issue; Ladd voted against the sale. On December 9, 1997, SVI
and Crane entered into an agreement for the sale of SVI's
assets.
"On April 30, 1998, SVI completed the manufacture of
the valves Crane had ordered as part of the sale. Once the
manufacturing of the valves was completed, SVI ceased
operations and began to wind up its affairs. As part of winding
3
1180904
up
it s
a f f a i r s ,
S VI
had
t o
reme dy
t he
environmental-contamination concerns with its Birmingham
facility and dispose of that property. SVI also had to satisfy all
outstanding liabilities, which included workers' compensation
obligations, asbestos-exposure lawsuits, and product-liability
lawsuits.
"SVI continued the winding up of its affairs until 2006,
when it filed articles of dissolution. During that time, SVI
continued to pay dividends on the preferred shares of SVI
stock until September 2004, at which time the payment of
dividends was suspended based on SVI's declining financial
position. SVI never redeemed any of its stock as it had
promised to do at the December 1, 1997, meeting. Throughout
this period, the SVI board of directors informed its
shareholders regularly of SVI's declining financial condition.
For instance, in November 2004, SVI's board of directors
informed SVI's shareholders that the suspension of the
payment of dividends begun in September 2004 would remain
in effect until SVI's liquidation. Also, in July 2007 SVI's board
of directors informed SVI's shareholders that there would
probably not be any funds to distribute to SVI's shareholders
after SVI satisfied all of its outstanding obligations.
"Herbert resigned as cotrustee of the Virginia C.
Stockham Trust on November 18, 2008, and he resigned as
cotrustee of the Herbert C. Stockham Trust on November 25,
2008.
"On July 21, 2010, in an unrelated proceeding, the
Herbert C. Stockham Trust, the Kate F. Stockham Trust, and
the portion of the Virginia C. Stockham Trust that held SVI
stock were terminated by an order of the Jefferson County
Probate Court.
4
1180904
"On July 21, 2012, Ladd sued Herbert[, whose estate was
subsequently substituted as a party], Wells Fargo, and other
individual directors of SVI. Ladd alleged that Herbert had
breached his fiduciary duties as cotrustee of the Herbert C.
Stockham Trust and of the Virginia C. Stockham Trust and
that Wells Fargo had breached its fiduciary duty as cotrustee
of the trusts. Specifically, concerning Ladd's claim against
Herbert, Ladd alleged that Herbert 'breached these fiduciary
duties by managing SVI in such a way that the value of [the
Herbert C. Stockham Trust and the Virginia C. Stockham
Trust] was completely destroyed'; Ladd did not allege that
Herbert, in his capacity as cotrustee of the Herbert C.
Stockham Trust and the Virginia C. Stockham Trust, acted
fraudulently. Ladd also asserted shareholder-derivative claims
against Herbert and the other individual directors of SVI.
Subsequently, Ladd amended her complaint several times.
Ultimately, Ladd asserted nine claims against the defendants.
The first two of Ladd's claims -- one against Herbert and one
against Wells Fargo -- were characterized as 'direct claims'; the
remaining seven claims were characterized as derivative
claims against Herbert, Wells Fargo, and the other individual
directors of SVI.
"On September 26, 2012, the defendants filed a motion to
dismiss all of Ladd's claims against them. On June 18, 2013,
the circuit court denied the defendants' motion to dismiss. The
defendants were ordered to file answers to Ladd's complaint,
which they did.
"On March 7, 2014, having conducted some discovery,
Stockham and the individual directors of SVI filed a motion to
dismiss as untimely all of Ladd's derivative claims asserted
against them in their capacities as former directors of SVI. On
May 8, 2014, the circuit court granted the motion and
dismissed all the derivative claims against Stockham and the
5
1180904
individual directors of SVI; this order adjudicated all of Ladd's
claims against the individual directors of SVI, leaving
Stockham, Wells Fargo, and SVI as remaining defendants. On
May 28, 2014, the circuit court certified its May 8, 2014, order
as final pursuant to Rule 54(b), Ala. R. Civ. P. Ladd did not
appeal the May 8, 2014, order dismissing her derivative claims
against Stockham and the individual directors of SVI.
"After further discovery, Ladd, Stockham, and Wells
Fargo filed motions for a summary judgment on Ladd's
remaining claims. In her summary-judgment motion, Ladd
argued that Herbert would have had knowledge of SVI's
financial situation by virtue of his position on the board of
directors and that, as cotrustee of the Herbert C. Stockham
Trust and the Virginia C. Stockham Trust, he breached his
fiduciary duty to Ladd by failing to inform Ladd of SVI's
financial situation and 'by failing to take any action or demand
that SVI redeem the preferred shares [of SVI stock held by the
trusts] as [SVI] said it would at the time it said it would.'
Stockham and Wells Fargo argued in their joint motion for a
summary judgment that Ladd's claims were barred by the
applicable statute of limitations and by the doctrine of laches.
In addition to their joint motion, Stockham and Wells Fargo
also filed individual motions for a summary judgment related
to the claims asserted against them.
"On September 18, 2014, the circuit court entered a
summary judgment in favor of Stockham and against Ladd ....
"....
"On October 20, 2014, Stockham filed a motion for
'reimbursement of fees and expenses.' In her motion, Stockham
argued that, pursuant to Rule 54(d), Ala. R. Civ. P., §§
19–3B–708 and –709, Ala. Code 1975, and § 34–3–60, Ala.
6
1180904
Code 1975, she is entitled to reimbursement for costs and
attorney fees in defending Ladd's action against Herbert as
cotrustee of the Herbert C. Stockham Trust and of the Virginia
C. Stockham Trust. On January 14, 2015, the circuit court
denied Stockham's motion. On January 23, 2015, Stockham
cross-appealed from the circuit court's denial of her motion for
costs and attorney fees."
209 So. 3d at 458-62 (footnotes omitted).
On appeal to this Court, Virginia Ladd1 argued that the circuit court
had erroneously found that her claim against Stockham was barred by the
two-year statute of limitations. We determined that Ladd had not
demonstrated that the circuit court had erred in entering a summary
judgment for Stockham, and we affirmed the circuit court's judgment. We
also stated: "This conclusion on the statute-of-limitations issue renders
moot all of Ladd's remaining arguments concerning the separate and
independent reasons the circuit court entered a summary judgment in
favor of Stockham." 209 So. 3d at 469.
1Virginia Ladd died on June 2, 2017. Afterward, George Ladd,
Virginia Ladd Tucker, and Constance Ladd Moore, as personal
representatives of her estate, were substituted as plaintiffs for Ladd in the
underlying action. For the sake of consistency, we continue to refer to the
plaintiffs as "Ladd" in this opinion.
7
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In her cross-appeal, Stockham argued that the circuit court had
erred in denying her motion seeking reimbursement of costs and attorney
fees. This Court agreed with Stockham, stating, in relevant part:
"Stockham argues that the circuit court erred in denying
her request for expenses and attorney fees under §§
19–3B–708, 19–3B–709, and 34–3–60[, Ala. Code 1975].
Sections 19–3B–709 and 34–3–60 both allow for attorney fees
to be assessed in cases concerning the 'administration' of a
trust. Section 19–3B–709 provides, in pertinent part:
" '(a) A trustee is entitled to be reimbursed
out of the trust property, with interest as
appropriate for:
" '(1) expenses that were properly
incurred in the administration of the
trust,
including
the
defense
or
prosecution of any action, whether
successful or not, unless the trustee is
determined
to
have
willfully
or
wantonly committed a material breach
of the trust.'
"Section 34–3–60 provides, in pertinent part:
" 'In all actions and proceedings in the
probate courts and circuit courts and other courts
of like jurisdiction, where there is involved the
administration of a trust ... the court having
jurisdiction of such action or proceeding may
ascertain a reasonable attorney's fee, to be paid to
the attorneys or solicitors representing the trust ...
8
1180904
and is authorized to tax as a part of the costs in
such action or proceeding such reasonable
attorney's fee....'
"The circuit court determined that Stockham was not
entitled to attorney fees under those statutes for two reasons.
First, the circuit court concluded that Herbert was not
involved with the administration of the Herbert C. Stockham
Trust and the Virginia C. Stockham Trust. The circuit court
stated that '[t]his case did not involve the management and
distribution of property held in a trust; rather, Ladd's action
against Stockham alleged claims of breach of fiduciary duty for
[Herbert's] failure to protect the Trusts' property as a former
co-trustee and director of SVI.' Second, the circuit court
concluded that Stockham was not entitled to attorney fees
because Herbert was sued after he had resigned as cotrustee
of the Herbert C. Stockham Trust and of the Virginia C.
Stockham Trust.
"....
"... Ladd's breach-of-fiduciary-duty claim against
Herbert is, in essence, that, while he was cotrustee of the
Herbert C. Stockham Trust and of the Virginia C. Stockham
Trust, Herbert should have taken actions to ensure that SVI
would redeem the preferred shares of SVI stock held by the
Herbert C. Stockham Trust and the Virginia C. Stockham
Trust. According to Ladd, Herbert failed to take those actions
while he was cotrustee, and that is the basis of Ladd's claim
against Herbert. The circuit court's suggestion in its January
14, 2015, order that Ladd's breach-of-fiduciary-duty claim
against Herbert was based on actions Herbert allegedly failed
to take after he resigned as cotrustee is not consistent with its
earlier order.
9
1180904
"Therefore, we conclude that the circuit court's holding
that Stockham is not entitled to reimbursement for attorney
fees and costs under §§ 19–3B–708, 19–3B–709, and 34–3–60
for the successful defense of Ladd's claim against Stockham is
in error. Ladd's breach-of-fiduciary-duty claim against
Herbert was based on actions Herbert took while acting as
cotrustee of the Herbert C. Stockham Trust and of the Virginia
C. Stockham Trust, and his actions concerned the assets of
those trusts; Herbert was certainly involved in the
administration of those trusts and was sued for decisions he
made concerning assets held by those trusts. Under Regions
[Bank v. Lowrey, 101 So. 3d 210 (Ala. 2012),]and Regions
[Bank v. Lowrey, 154 So. 3d 101 (Ala. 2014),] a trustee is
entitled to reimbursement of attorney fees and costs for the
successful defense of a breach-of-fiduciary-duty claim against
the trustee.
"Stockham also argues that the circuit court's holding
that Stockham cannot recover attorney fees for the defense of
Ladd's claim against Stockham because Herbert is no longer
the cotrustee of the Herbert C. Stockham Trust and of the
Virginia C. Stockham Trust is in error. ...
"....
"As in Morrison[ v. Watkins, 20 Kan. App. 2d 411, 889 P.
2d 140 (1995),] Herbert was sued for actions taken -- or, more
accurately stated, not taken -- while he was acting as the
cotrustee of the Herbert C. Stockham Trust and of the Virginia
C. Stockham Trust. As explained by the Morrison court, the
mere fact that Herbert is no longer the cotrustee of the
Herbert C. Stockham Trust and of the Virginia C. Stockham
Trust is not a reason to deny Stockham reimbursement of costs
or attorney fees. To hold otherwise would prevent trustees
from defending themselves against even unjustifiable assaults,
10
1180904
which would ultimately frustrate the settlor's purpose in
establishing the trust."
Ladd, 209 So. 3d at 470-74.
This Court then stated:
"Stockham has demonstrated that the circuit court
exceeded its discretion in denying Stockham's request for
reimbursement of costs and attorney fees under §§ 19–3B–708,
19–3B–709, and 34–3–60. Ladd's breach-of-fiduciary-duty
claim against Herbert was based on Herbert's actions while he
was cotrustee of the Herbert C. Stockham Trust and of the
Virginia C. Stockham Trust. Herbert was certainly involved
with the administration of the Herbert C. Stockham Trust and
of the Virginia C. Stockham Trust; it is not relevant that
Herbert was not serving as the cotrustee of those trusts at the
time he was sued. Accordingly, we reverse the circuit court's
judgment denying Stockham costs and attorney fees and
remand the matter to the circuit court for it to reconsider
Stockham's motion."
Ladd, 209 So. 3d at 474 (emphasis added).
On Remand to the Circuit Court
On remand to the circuit court, Ladd again filed an objection to
Stockham's motion for costs and reimbursement of attorney fees and
expenses. However, in that motion, she made more extensive allegations
and arguments than she had made in her previous objection. One of the
arguments Ladd raised for the first time was that Stockham was not
11
1180904
entitled to fees under § 19-3B-709, Ala. Code 1975, because Herbert
Stockham had "committed a willful or wanton material breach of the
trust." In response, Stockham argued that this Court's remand order did
not open the door for the circuit court to revisit whether Herbert had
committed a breach of trust.
On June 30, 2017, the circuit court entered an order that provided,
in part:
"After careful consideration of the written submissions of the
parties and extensive oral argument by counsel, the Court
concludes that it is not bound by the prior ruling of [the
previous circuit judge] regarding the conduct of Herbert
Stockham with respect to its effect, if any, on his estate's
request for attorneys' fees.
"Therefore, a hearing is set on August 17, 2017, at 9:30
A.M. to hear evidence and argument regarding the conduct of
Herbert Stockham and what effect, if any, his conduct in
handling the Stockham trust may have on his estate's request
for attorneys' fees."
The circuit court conducted several hearings on remand. Thereafter,
on July 31, 2019, the circuit court entered an order denying Stockham's
motion for attorney fees and expenses based on its finding that Herbert
12
1180904
Stockham "did indeed commit material, willful breaches of trust in at
least three independent ways...." This appeal followed.
Discussion
Stockham argues that Ladd waived any challenge to the estate's
right to reimbursement by failing to assert -- at the summary-judgment
stage, in opposition to the estate's motion for reimbursement, or in the
previous appeal -- that Herbert Stockham "willfully or wantonly
committed a material breach of trust." She also argues that the circuit
court exceeded the scope of this Court's remand order by allowing Ladd to
raise such an argument on remand.
In Scrushy v. Tucker, 70 So. 3d 289 (Ala. 2011), Richard Scrushy, a
former director and former chief executive officer of HealthSouth
Corporation ("HealthSouth"), a Delaware corporation, appealed from a
judgment against him in a shareholder-derivative action that had been
filed by Wade Tucker on behalf of nominal defendant HealthSouth. This
Court set forth the relevant background of the case as follows:
"Certain aspects of this case have already come before us
during this long and intricate litigation. See Scrushy v.
Tucker, 955 So. 2d 988 (Ala. 2006) (' Scrushy,' sometimes
13
1180904
referred to herein as 'the bonus case'); and Ernst & Young,
LLP v. Tucker, 940 So. 2d 269 (Ala. 2006) (' Tucker'). It was
the first of a number of derivative actions to be commenced by
various HealthSouth shareholders against Scrushy and other
former HealthSouth officials and related parties in various
forums including (1) the Jefferson Circuit Court, (2) the United
States District Court for the Northern District of Alabama
('the Federal derivative actions'), and (3) the New Castle
Chancery Court in Delaware, Biondi v. Scrushy, 820 A.2d 1148
(Del. Ch. 2003), restyled and resolved, In re HealthSouth
Shareholders Litig., 845 A.2d 1096 (Del. Ch. 2003), aff'd, 847
A.2d 1121 (Del. 2004) (table) ('the Delaware derivative
actions').
"....
"All HealthSouth derivative actions pending in the
Jefferson Circuit Court were consolidated with Tucker's case
no. CV–02–5212 or abated in its favor. ...
"In case no. CV–02–5212, the first claim to be presented
for resolution was 'Scrushy's alleged breach of duty in
accepting bonuses that HealthSouth was not legally obligated
to pay,' Scrushy, 955 So. 2d at 998, because HealthSouth's
earnings, which had formed the bases for the bonuses, were
'inflated,' along with Tucker's request for disgorgement of
those bonuses. That issue initially arose on December 15,
2003, when Tucker moved for a partial summary judgment,
seeking a return of incentive bonuses HealthSouth had paid
Scrushy from 1996 through 2002. On September 21, 2005,
Scrushy filed a cross-motion, seeking a partial summary
judgment 'ordering that [he was] legally entitled to retain all
bonus compensation received by him from HealthSouth, with
the exception of annual bonuses received in 2001 and 2002, for
which genuine issues of fact remain[ed].' In his brief in support
14
1180904
of that motion, Scrushy also challenged Tucker's standing 'to
complain of alleged wrongdoing for the period prior to his stock
purchase [i.e., August 18, 1998].' (Emphasis added.)
"On October 12, 2005, Tucker filed a document styled
'joinder of plaintiff' in which he joined the Wendell J. Cook,
Sr., Testamentary Trust, John P. Cook, trustee ('Cook'), as a
derivative plaintiff pursuant to Rule 20(a), Ala. R. Civ. P. The
document was verified by an affidavit stating that Cook had
owned shares of HealthSouth stock continuously since 1993.
"On January 3, 2006, the trial court denied Scrushy's
motion in its entirety, but it granted, in part, Tucker's motion.
With regard to the incentive bonuses paid to Scrushy in 1997
through 2002, the court held that 'HealthSouth [had] incurred
actual losses and no bonus pool existed out of which the
bonuses for [those] years could properly have been paid' and,
consequently, that 'Scrushy [had been] unjustly enriched by
[those] payments.' The court ordered Scrushy to return
'$47,828,106, representing the bonuses paid for the years
1997–2002, plus prejudgment interest.' Scrushy, 955 So. 2d at
995. In so doing, the trial court rejected Scrushy's challenge
to standing. In that connection, it stated, in part:
" 'Another shareholder, [Cook], which held its
HealthSouth shares continuously since 1993, joined
as plaintiff herein under [Ala. R. Civ. P.] Rule 20(a)
on October 12, 2005, and adopted Tucker's
complaint in its entirety. No party objected. [Cook]
is represented by the identical legal team that
represents Tucker. For all purposes [Cook's]
shareholding relates back to the original Tucker
complaint.
In
re
MAXXAM,
Inc./Federated
Development, 698 A.2d 949 (Del. Ch. 1996)(holding
new shareholder plaintiff may be added even at a
15
1180904
late stage to cure shareholding defect of earlier
plaintiff)....'
"The rest of the case proceeded to a trial without a jury,
the parties having stipulated that resolution of the case turned
on equitable claims to which the right to a trial by a jury did
not apply and that the remedies were, likewise, equitable
remedies. Indeed, resolution of the case was bolstered by a
number of important stipulations. In particular, the parties
stipulated that '[b]etween 1996 and March 18, 2003, certain
executive, financial, and accounting managers at HealthSouth
engaged in a conspiracy and fraud to overstate the financial
health of HealthSouth in HealthSouth's financial statements.'
It was stipulated that '[t]he public financial reports issued for
HealthSouth after July 1, 1996, and before March 18, 2003,
were false and unreliable, and materially overstated
HealthSouth's net income and the net assets on HealthSouth's
balance sheet.' The parties further stipulated that 'the crucial
issue in the case, overshadowing all others, is whether or not
Scrushy knew of the fraud or intentionally disregarded his
responsibilities to HealthSouth.'
"On June 18, 2009, the trial court entered a final
judgment 'in favor of Derivative Plaintiffs, Wade C. Tucker
and the Wendell J. Cook, Sr., Testamentary Trust, John P.
Cook, Trustee, for and on behalf of HealthSouth Corporation,
and against Richard M. Scrushy,' for $2,876,103,000. In
connection with its findings of fact, the trial court stated its
'firm and confident conclusion that Scrushy knew of and
participated in the fraud from and after the summer of 1996'
but that, in any event, 'Scrushy [had] clearly breached his
fiduciary duty of loyalty by consciously disregarding his
responsibilities to HealthSouth.' (Emphasis added.)
16
1180904
"For purposes of this appeal, three portions of the trial
court's award are particularly pertinent. First, the court found
that Scrushy had breached three of his employment contracts
with HealthSouth, namely, (1) a 1986 employment agreement,
(2) a 1998 employment agreement, and (3) a 2002 employment
agreement, 'by engaging in massive fraud and by consciously
disregarding his responsibilities to HealthSouth.' The trial
court held those three employment contracts to be 'rescinded
on [that] ground,' and it ordered the forfeiture of $26,725,000,
plus prejudgment interest, which represented all compensation
Scrushy had received for his services to HealthSouth under
those contracts. Second, the court awarded $147,450,000, plus
prejudgment interest, which represented 'the total net profit
Scrushy received from ... two stock sales' Scrushy made on the
basis of 'inside information,' in violation of principles set forth
in Brophy v. Cities Service Co., 70 A.2d 5 (Del. Ch. 1949).
Third, the court awarded $206,383,000, plus prejudgment
interest, based on Scrushy's participation in projects involving
HealthSouth, namely, (1) sale and lease-back transactions
with First Cambridge, 'a real estate investment trust' started
by 'members of HealthSouth's management team'; and (2) the
uncompleted construction of a facility known as the Digital
Hospital, which was begun, but soon abandoned, by
HealthSouth. The trial court certified its judgment as final,
pursuant to Rule 54(b), Ala. R. Civ. P."
Scrushy, 70 So. 3d at 293-98 (footnote omitted).
Scrushy challenged the judgment on several grounds, including that
the derivative claims were barred by the doctrine of res judicata. This
Court rejected Scrushy's argument, reasoning:
17
1180904
"Scrushy ... insists that 'Tucker's claims are barred by
the doctrine of res judicata in that his claims and/or causes of
action were brought, and some causes of action[, i.e., the
"Buyback" claims,] were actually litigated to a final judgment,
in [In re HealthSouth Shareholders Litig., 845 A.2d 1096 (Del.
Ch. 2003), aff'd, 847 A.2d 1121 (Del. 2004) (table)].' Scrushy's
brief, at 59 (emphasis added).
"Tucker and Cook contend that consideration of [this]
defense[] is precluded by the doctrine of the law of the case.
That is so, because, they say, Scrushy failed to assert them
when this Court resolved the bonuses issue presented in
Tucker, supra, where, in affirming the partial summary
judgment against Scrushy for restitution of the amount paid
to him in bonuses, '[w]e conclude[d] that, under the law of
either Delaware or Alabama, Scrushy was unjustly enriched by
the payment of the bonuses, which were the result of the vast
accounting fraud perpetrated upon HealthSouth and its
shareholders.' 955 So. 2d at 1012. Tucker and Cook contend
that both defenses should have been asserted in that first
appeal of this case.
"According to Scrushy, the doctrine of the law of the case
'turns on whether the Court addressed the issue between the
parties' and does not apply because the defenses were not
asserted in the first appeal. Reply brief, at 19–20. Scrushy's
understanding of the law-of-the-case doctrine is inaccurate: it
is not essential to the application of the doctrine that the issue
be asserted in the first appeal. It is enough that the issue
should have been raised in the first appeal. 'Under the law of
the case doctrine, "[a] party cannot on a second appeal
relitigate issues which were resolved by the Court in the first
appeal or which would have been resolved had they been
properly presented in the first appeal." ' Kortum v. Johnson,
786 N.W.2d 702, 705 (N.D. 2010)(quoting State ex rel. North
18
1180904
Dakota Dep't of Labor v. Riemers, 779 N.W.2d 649 (N.D.
2010)(emphasis added)); see also Judy v. Martin, 381 S.C. 455,
458, 674 S.E.2d 151, 153 (2009) ('Under the law-of-the-case
doctrine, a party is precluded from relitigating, after an
appeal, matters that were either not raised on appeal, but
should have been, or raised on appeal, but expressly rejected
by the appellate court. C.J.S. Appeal & Error § 991 (2008)....').
"The doctrine is the same in Alabama. '[I]n a second
appeal, ... a matter that had occurred before the first appeal,
but that was not raised in the first appeal, [is] the law of the
case.' Life Ins. Co. of Georgia v. Smith, 719 So. 2d 797, 801
(Ala. 1998) (summarizing the holding in Sellers v. Dickert, 194
Ala. 661, 69 So. 604 (1915)).3 The doctrine in this form was
applied in Bankruptcy Authorities, Inc. v. State, 620 So. 2d
626 (Ala. 1993), which was the second of two appeals in that
case. There, this Court held that the failure of the appellant
to raise an issue in its first appeal regarding the sufficiency of
the evidence to support the judgment precluded review of that
issue in the second appeal.4
"Procedurally, Scrushy had ample opportunity to assert
... the doctrine of res judicata as [a] defense[] to the partial
summary judgment in the bonus case. The judgment in In re
HealthSouth Shareholders Litigation, on which Scrushy relies
for his res judicata defense, was affirmed by the Delaware
Supreme Court on April 14, 2004. Scrushy did not file his
cross-motion for a partial summary judgment in the bonus
case until September 21, 2005, and the partial summary
judgment was entered on January 3, 2006.
"Indeed, on May 27, 2004, Scrushy actually raised in the
trial court the statute-of-limitations defense in his motion to
dismiss the third and fourth amended complaints. In
particular, he argued that 'any claim for unjust enrichment or
19
1180904
innocent misrepresentation that seeks the return of [salary,
bonuses, options and incentive compensation] paid to Mr.
Scrushy more than two years prior to [August 28, 2002,] [was]
barred by [the statute of limitations].' (Emphasis added.)
However, he did not raise that defense again until after this
Court had affirmed the partial summary judgment in the
bonus case. Thus, because [this] defense[ was] not presented
to this Court in the bonus case, we will not consider [it] here.
"_____________________
" 3The law-of-the case doctrine is procedural. Halliburton
Energy Servs., Inc. v. NL Indus., 553 F. Supp. 2d 733, 778
(S.D. Tex. 2008); State v. Kiles, 222 Ariz. 25, 36, 213 P.3d 174,
185 (2009).
" 4Although the Court referred to the appellant's failure
to raise the issue as a 'waiver,' it is just as properly referred to
as a basis for the application of the law-of-the-case doctrine."
70 So. 3d at 303-04.
Also, in Wehle v. Bradley, 195 So. 3d 928 (Ala. 2015), this Court
addressed an issue following remand concerning interest on payments
that had been made without prior court approval. We explained:
"Section § 43–2–844(7), Ala. Code 1975, provides that
'[u]nless expressly authorized by the will, a personal
representative, only after prior approval of court, may ... [p]ay
compensation of the personal representative.' It is undisputed
that
the
personal
representatives
paid
themselves
compensation before obtaining court approval for that
compensation. The daughters contend that the circuit court
20
1180904
erred by denying their claim seeking interest from the
personal representatives from the date of the compensation
payments through the date those payments were approved by
the circuit court.
"The daughters first note that, in contradiction of the
decision in Wehle I [Wehle v. Bradley, 49 So. 3d 1203 (Ala.
2010)], the circuit court concluded in its final order that Robert
G. Wehle's will 'expressly allowed advanced payments to be
made to the Personal Representatives.' According to the circuit
court, because the will authorized the payments and because
the payments were made in good faith and upon the advice of
counsel, there was no basis for imposing an interest charge
against the personal representatives. The circuit court quoted
several provisions of the will that it concluded 'expressly give[
] the Personal Representatives the right to advance themselves
money.'
"In Wehle I, this Court noted several provisions of Robert
G. Wehle's will upon which the personal representatives
sought to rely as justification for making compensation
payments to themselves without first obtaining court approval.
We concluded that those provisions did ' "not satisfy the
requirement in [§ 43–2–844] that there be an 'express
provision' " authorizing the payment of such fees without court
approval.' 49 So. 3d at 1209 (quoting Green v. Estate of
Nance, 971 So. 2d 38, 42 (Ala. Civ. App. 2007)).
"As the daughters correctly observe, the circuit court's
conclusion on remand that no prior court approval was
necessary violates the doctrine of the law of the case.
" ' "Under the doctrine of the 'law of the case,'
whatever is once established between the same
parties in the same case continues to be the law of
21
1180904
that case, whether or not correct on general
principles, so long as the facts on which the
decision was predicated continue to be the facts of
the case." Blumberg v. Touche Ross & Co., 514 So.
2d 922, 924 (Ala. 1987). See also Titan Indem. Co.
v. Riley, 679 So. 2d 701 (Ala. 1996). "It is well
established that on remand the issues decided by
an appellate court become the 'law of the case,' and
that the trial court must comply with the appellate
court's mandate." Gray v. Reynolds, 553 So. 2d 79,
81 (Ala. 1989).'
"Southern United Fire Ins. Co. v. Purma, 792 So. 2d 1092,
1094 (Ala. 2001). It does not matter that the circuit court in
some instances in its order quoted provisions of the will this
Court did not quote in Wehle I. The personal representatives
could have cited those provisions as authority for the
premature payments in their appeal in Wehle I; they did not
do so. Moreover, whether they did so or not, the issue at hand
-- whether the will contained 'express provisions' authorizing
the payment of fees to personal representatives without prior
court approval -- was before this Court and was decided by this
Court in Wehle I.
" ' "Under the law of the case doctrine, '[a] party
cannot on a second appeal relitigate issues which
were resolved by the Court in the first appeal or
which would have been resolved had they been
properly presented in the first appeal.' " Kortum v.
Johnson, 786 N.W.2d 702, 705 (N.D. 2010) (quoting
State ex rel. North Dakota Dep't of Labor v.
Riemers, 779 N.W.2d 649 (N.D. 2010) ...); see also
Judy v. Martin, 381 S.C. 455, 458, 674 S.E. 2d 151,
153 (2009) ("Under the law-of-the-case doctrine, a
party is precluded from relitigating, after an
22
1180904
appeal, matters that were either not raised on
appeal, but should have been, or raised on appeal,
but expressly rejected by the appellate court. C.J.S.
Appeal & Error § 991 (2008)....").'
"Scrushy v. Tucker, 70 So. 3d 289, 303–04
(Ala.
2011)(emphasis omitted); see also Schramm v. Spottswood, 109
So. 3d 154, 162 (Ala. 2012) (applying the law-of-the-case
doctrine where a party attempted to' ‘advance a new argument
in order to revisit an issue already decided by the trial court'
and affirmed in a previous appeal)."
195 So. 3d at 937-38 (emphasis added).
Similarly, in this case, after the circuit court entered a summary
judgment in favor of Stockham, Stockham filed a motion requesting
reimbursement of attorney fees and expenses pursuant to § 19–3B–709,
Ala. Code 1975, as well as other statutes. Although Ladd filed a response
in opposition to Stockham's motion and quoted § 19-3B-709 and argued
that Stockham was not entitled to reimbursement under that statute, she
never argued that Stockham was not entitled to reimbursement because
Herbert willfully or wantonly had committed a material breach of the
trusts. Likewise, Ladd did not raise such an argument in opposition to
the motion for reimbursement in her brief on appeal to this Court in Ladd
v. Stockham. Clearly, Ladd could have raised an argument that Herbert
23
1180904
had willfully or wantonly committed a material breach of the trusts at any
of those times. Therefore, because Ladd first raised her argument in the
circuit court following remand by this Court, it was not properly before the
circuit court and could not serve as a basis for denying Stockham’s request
for reimbursement of costs and attorney fees.
Conclusion
For the above-stated reasons, the circuit court erred in denying
Stockham's motion for reimbursement of costs and attorney fees based on
Ladd's newly raised argument that Herbert had willfully and wantonly
committed material breaches of the trusts. Accordingly, we reverse the
circuit court's judgment and remand this case for the circuit court to
reconsider Stockham's motion for reimbursement without consideration
of Ladd's newly raised arguments.
REVERSED AND REMANDED.
Parker, C.J., and Bolin, Shaw, Bryan, and Stewart, JJ., concur.
Mendheim, J., concurs in the result.
Mitchell, J., recuses himself.
24 | December 4, 2020 |
2a0447fe-a144-4844-b660-217b9b04481b | Joseph McClure v. Warrior Enterprises, LLC, and H. Vann Gravlee | N/A | 1190662 | Alabama | Alabama Supreme Court | Rel: November 20, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190662
Joseph McClure v. Warrior Enterprises, LLC, and H. Vann Gravlee
1190699
Warrior Enterprises, LLC, and H. Vann Gravlee v. Joseph McClure
(Appeals from Jefferson Circuit Court: CV-14-900659).
BOLIN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur. | November 20, 2020 |
b563fbbd-6de6-4e16-ae45-7162343ca1f7 | Ex parte A.S. | N/A | 1191063 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 20, 2020
1191063
Ex parte A.S. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: A.S. v. DeKalb County Department of Human
Resources) (DeKalb Juvenile Court: JU-17-97.03; Civil Appeals :
2190436).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 20, 2020:
Writ Denied. No Opinion. Sellers, J. -
Shaw, Bryan, Mendheim, and
Stewart, JJ., concur. Parker, C.J., and Bolin, Wise, and Mitchell, JJ.,
dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 20th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 20, 2020 |
69a10806-a8e9-4d1c-b2a0-926e703396fd | Warrior Enterprises, LLC, and H. Vann Gravlee v. Joseph McClure | N/A | 1190699 | Alabama | Alabama Supreme Court | Rel: November 20, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190662
Joseph McClure v. Warrior Enterprises, LLC, and H. Vann Gravlee
1190699
Warrior Enterprises, LLC, and H. Vann Gravlee v. Joseph McClure
(Appeals from Jefferson Circuit Court: CV-14-900659).
BOLIN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur. | November 20, 2020 |
15e60f41-14fa-44af-9221-2d0f1c1db5c0 | Vanessa Carr v. Kenneth Wayne Tidmore and Quality Mill Works Co., Inc. | N/A | 1190309 | Alabama | Alabama Supreme Court | Rel: November 13. 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190309
Vanessa Carr v. Kenneth Wayne Tidmore and Quality Mill Works Co.,
Inc. (Appeal from Tuscaloosa Circuit Court: CV-18-900859).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | November 13, 2020 |
d243fafd-0f24-457d-854f-b425d7268255 | Ex parte Ronald Marshall McCraney. | N/A | 1200110 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 11, 2020
1200110
Ex parte Ronald Marshall McCraney. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Ronald
Marshall McCraney v. State of Alabama) (Covington Circuit Court:
CC-16-218; Criminal Appeals :
CR-19-0654).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 11, 2020:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Mendheim,
and Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 11th day of Decem ber, 2020.
Clerk, Supreme Court of Alabama | December 11, 2020 |
87dcf179-0227-4fb6-843a-7a2290e81b43 | Toomey v. Riverside RV Resort, LLC | N/A | 1180521 | Alabama | Alabama Supreme Court | REL: December 4, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1180521
____________________
Larry Toomey
v.
Riverside RV Resort, LLC
Appeal from Baldwin Circuit Court
(CV-17-900203)
MITCHELL, Justice.
Larry Toomey blocked a culvert that had been installed to channel
water away from the only road providing access to his property and to the
1180521
property of his neighbor, Riverside RV Resort, LLC ("Riverside"). He did
so with the knowledge that the blockage might damage the road and
Riverside's property. Riverside sued and obtained an injunction against
Toomey, as well as a judgment awarding it compensatory damages,
punitive damages, and attorney fees. Toomey now appeals. We affirm the
judgment to the extent it enjoins Toomey from blocking the culvert and
grants Riverside compensatory and punitive damages, but we reverse it
to the extent it awards attorney fees to Riverside.
Facts and Procedural History
Riverside is the owner and operator of a recreational-vehicle park in
Robertsdale. When this action was filed, Riverside possessed the park
property under a seller-financed purchase agreement with Styx, LLC
("Styx"), the developer and original owner of the park. The purchase
agreement granted Riverside immediate management and control of the
park, with a reversionary interest in the property preserved for Styx until
the balance of the purchase price was paid. Two days after the trial court
entered its judgment in this case, Riverside made its final payment to
Styx and became the sole owner of the property.
2
1180521
Toomey owns property that shares a boundary line with Riverside.
Water Rapids Road is on that boundary line and provides access to both
properties. As a result, the parties are each burdened with an
ingress/egress easement for the benefit of the other party ("the
easement"). The existence of the easement is confirmed in two places –
first, a prior order of the Baldwin Circuit Court, and second, the property
description in Toomey's deed, which states that his property has a "50-foot
easement for ingress and egress along the South line and 25.0 feet along
the East line of said parcel."
At some point before 2008, Water Rapids Road was raised and
improved, and a drainage pipe was installed under the road. The
drainage pipe ends in a culvert located on Toomey's property but within
the easement. The properties are located downhill from a 200-acre area
near Interstate 10, commonly referred to as the I-10 watershed, from
which water drains naturally onto both properties. Surface water from
the I-10 watershed flows into a ditch running alongside Water Rapids
Road where the drainage pipe and culvert are located. A portion of the
water from the I-10 watershed remains in the ditch and eventually flows
3
1180521
into the Styx River. Another portion of the water flows into the drainage
pipe under Water Rapids Road, exits out of the culvert, and then flows in
a naturally diffuse manner onto Toomey's property, as it did before the
improvements to Water Rapids Road.
The culvert is central to the controversy between Riverside and
Toomey. Before August 2016, Toomey placed hay bales in front of the
culvert to prevent sediment from moving with the water flowing naturally
onto his property. But in August 2016, Toomey blocked the flow of water
exiting the culvert with a piece of tin. After the culvert was completely
blocked, significant erosion began in the area around it, causing the
culvert to become elevated. The blocked culvert contributed to cracking
in the pavement of Water Rapids Road, and eventually led the ditch on
Riverside's property to increase in size from 3 feet wide up to 20 feet wide
in some places.
In January 2017, during a major rainstorm, Riverside removed the
tin blocking the culvert to reduce the force of the water coming back onto
its property. Riverside notified Toomey that it had done so. Toomey was
also made aware of the significant erosion that had occurred around the
4
1180521
culvert after his intentional blockage. A month later, despite seeing the
damage caused to Water Rapids Road and the Riverside property by
blocking the culvert with tin, Toomey poured concrete into the culvert to
create a new, more permanent blockage.
Riverside then sued Toomey in the Baldwin Circuit Court. In its
complaint, Riverside brought claims of wrongful interference with the
easement, wantonness, negligence, trespass, and nuisance.1 Toomey filed
a trespass counterclaim and filed a motion to join Styx as a necessary
party under Rule 19, Ala. R. Civ. P., as holder of a reversionary interest
in the Riverside property.
Approximately two months after the complaint was filed, Riverside
asked the trial court to enter a temporary restraining order and
preliminary injunction against Toomey. Riverside made this request
because, it said, there was a high likelihood that a major springtime
rainfall would further damage the Riverside property if the culvert
remained blocked. The trial court granted Riverside's request for a
1Riverside later withdrew its negligence claim.
5
1180521
preliminary injunction, but its written order did not go into effect until
several months later, when Riverside paid the required bond. In issuing
the preliminary injunction, the trial court ordered Toomey to remove the
concrete and to restore the culvert to its pre-blockage elevation. Toomey
partially complied with the trial court's order by removing the concrete
but failed to return the culvert to its pre-blockage elevation. That failure
caused the water from the I-10 watershed to continue to be blocked from
flowing through the culvert onto Toomey's property.
The matter proceeded to a bench trial. April Givens, a co-owner and
manager of Riverside, testified about the erosion and other harms the
blocked culvert caused to the ditch, the road, and the Riverside property.
She also testified that Toomey and visitors to his property would park
their vehicles so that access to the Riverside property would be blocked or
impaired. Finally, Givens testified that she saw Toomey remove the
concrete from the culvert, then use his tractor to change the elevation of
the culvert to prevent water from flowing through it onto his property.
Toomey also testified. He did not deny that he had blocked the
culvert with tin and later with concrete or that the blocked culvert had
6
1180521
caused erosion to the road and surrounding areas. He acknowledged that
the ditch on the Riverside property sustained significant erosion from the
January 2017 rainfall and that it was possible for the road to "blow out"
if a large amount of water stopped at the blocked culvert. When asked
why he did not comply with the preliminary-injunction order and return
the culvert to its pre-blockage condition, Toomey said he complied only
after Riverside paid the required bond.
In addition to Givens's and Toomey's testimony, both sides offered
expert witnesses to testify about how water flows onto the Riverside and
Toomey properties from the I-10 watershed. The expert offered by
Toomey to rebut Riverside's civil-engineering expert was Greg Spies, a
licensed land surveyor. The trial court admitted expert testimony by
Spies in the areas of land surveying, topographical surveying, and wetland
delineations. But the court did not accept Spies as an expert able to
provide opinions that required an engineering degree, such as opinions
about the cause of erosion or drainage problems caused by the blocked
culvert.
7
1180521
After receiving the evidence, testimony, and arguments, the trial
court issued its final order, finding, among other things, that Toomey
acted intentionally with knowledge that damage would occur to
Riverside's property; that the sums expended by Riverside to repair the
culvert and surrounding area were necessary to protect and preserve the
culvert and the road; and that Toomey had interfered with Riverside's use
and enjoyment of the easement by permanently placing obstacles in the
easement. The trial court then concluded: (1) that Styx was not required
to be joined to the action under Rule 19; (2) that the culvert is a necessary
improvement for the easement to be used for its intended purpose; (3) that
Riverside met its burden of proving that Toomey had wrongfully diverted
water onto the Riverside property and that the diversion had caused
undue and unreasonable damage; (4) that Riverside met its burden of
proving its claim of wantonness by presenting sufficient evidence of
Toomey's intention to cause damage and harm to Riverside; (5) that
Toomey's actions constituted trespass; and (6) that Riverside proved
common-law nuisance. Based on those conclusions, the trial court entered
a judgment in favor of Riverside, awarding compensatory damages of
8
1180521
$49,000 and punitive damages of $50,000, and entering a permanent
injunction prohibiting Toomey from blocking, interfering with, or
impeding Riverside's use and enjoyment of the easement. After a separate
hearing, the trial court awarded Riverside $50,000 in attorney fees.
Toomey appealed.
Analysis
Toomey raises several issues on appeal. We first consider his
argument that Styx was a necessary party required to be joined under
Rule 19. After concluding that joinder was not required, we address: (1)
whether the trial court correctly held that the easement allowed Riverside
to maintain and improve the culvert; (2) whether the trial court properly
excluded Spies's testimony about the cause of erosion and drainage
problems, and (3) whether attorney fees were properly awarded to
Riverside.2
2Toomey also argues that the trial court erred by basing its judgment
on the belief that his action in blocking the culvert violated a previous
order of the Baldwin Circuit Court. Because the trial court had sufficient
independent evidence apart from that order to support its judgment, we
need not address that issue in detail.
9
1180521
A. Rule 19 Joinder
Toomey argues that the trial court exceeded its discretion when it
failed to join Styx as a necessary party because the purchase agreement
between Riverside and Styx provided Styx a reversionary interest in the
Riverside property. This Court will not disturb a trial court's Rule 19
determination unless it exceeded its discretion, because such a
determination is based on equitable and pragmatic considerations. See
Ross v. Luton, 456 So. 2d 249, 256 (Ala. 1984).
In support of his argument, Toomey cites Chandler v. Branch
Banking & Trust Co., 275 So. 3d 531 (Ala. Civ. App. 2018). In Chandler,
the Court of Civil Appeals held that both co-owners of a mortgaged
property were necessary and indispensable parties required to be sued in
an ejectment action brought by a mortgaging bank. But this case is
different. Unlike the mortgagees in Chandler, Riverside and Styx are not
co-owners of real property, and neither Riverside nor Styx are seeking to
eject Toomey from his property. Therefore, Chandler is not applicable.
A more analogous case is AmSouth Bank, N.A. v. City of Mobile, 500
So. 2d 1072 (Ala. 1986), in which the landlord of a property sought to
10
1180521
bring a trespass claim against the City of Mobile for injury to the property
while the land was in possession of the tenant. This Court held that a
landlord may not bring a trespass claim against a third party because
such a claim rests solely with the tenant. Id. at 1074. Like the tenant in
AmSouth, Riverside holds exclusive possession of the property and has
brought only personal claims against Toomey. And because Styx does not
have possession of the Riverside property, it cannot seek the remedies
sought by Riverside from Toomey. See Jeffries v. Bush, 609 So. 3d 362,
362 (holding that trespass is a wrong against the right of possession and
is a personal claim, not a real-property claim). To the extent that
Toomey's actions might have provided Styx a basis to sue for an injury to
its reversionary interest, Riverside completed purchasing the property
from Styx two days after the trial court entered its order, and Styx no
longer has any interest in the Riverside property. Thus, the trial court did
not exceed its discretion when it declined to join Styx as a necessary party
under Rule 19.
11
1180521
B. The Easement
We now turn to the claims based on the easement. When evidence
is presented to the trial court ore tenus, a presumption of correctness is
accorded to the court's findings of fact, and those findings will not be
disturbed unless they are clearly erroneous, without supporting evidence,
manifestly unjust, or against the great weight of the evidence. Weeks v.
Wolf Creek Indus., Inc., 941 So. 2d 263, 268 (Ala. 2006). Questions of law
are reviewed de novo. Id. at 269.
Toomey argues that the great weight of evidence does not support
the trial court's finding that the culvert was reasonably necessary to
maintain the easement – – and that Riverside therefore trespassed when
it repaired the culvert on his property. In response, Riverside argues that
the easement included the authority to maintain or repair the culvert and
that, regardless of the existence of the easement, Toomey wrongfully
forced storm water onto its property by blocking the culvert, causing
damage to the Riverside property and the shared roadway, Water Rapids
Road. Therefore, Riverside argues, the actions it took after the culvert
was blocked were to protect its property from further harm.
12
1180521
There is no dispute that an easement exists along the property line
between Toomey and Riverside, that the culvert is located within the
easement, and that the culvert was installed before 2008. Toomey argues
that, in making the repairs and improvements to the culvert, Riverside
exceeded its rights granted under the easement. In making that
argument, Toomey cites Kratchoville v. Cloverleaf Plaza, Inc., 165 So. 2d
112 (Ala. 1964). But that case is distinguishable. In Kratchoville, a
landowner installed pipes under a neighboring property to divert surface
water, without an easement or any form of permission from the
neighboring landowner. In response, the neighboring landowner sought
a preliminary injunction to remove the underground pipes. This Court
held that no easement existed to install underground pipes because there
was no assertion or evidence of any easement by deed, prescription, or an
adverse user for the statutory period. Here, by contrast, there is no
dispute that the easement exists.
Whether an ingress/egress easement may include the right to
construct a culvert was addressed in Byerley v. Griffin, 512 So. 2d 91 (Ala.
1987). In Byerley, the Griffins constructed a culvert for drainage on the
13
1180521
Byerley property within an ingress/egress easement that was granted for
their benefit. Like Toomey, the Byerleys argued that an existing
ingress/egress easement did not include the construction of a culvert near
the roadway that had been constructed for ingress and egress. After
receiving the evidence ore tenus, however, the trial court determined that
the culvert and related improvements were "necessary and reasonable" to
provide the Griffins access to their property via the ingress/egress
easement. This Court affirmed, holding that the construction of a culvert
by the Griffins on property owned by the Byerleys was not outside the
grant of the ingress/egress easement because the culvert was related to
the roadway for which the ingress/egress easement was provided.
Similarly, the easement for Riverside's benefit does not preclude the
construction, maintenance, or improvement of a culvert because the
culvert is reasonably necessary for the purpose of the easement. The
easement from Toomey to Riverside is for "ingress and egress." Riverside
presented evidence indicating that the culvert is reasonably necessary for
that use of the easement. And, in its order, the trial court found that the
construction of the head wall and other remedial efforts by Riverside
14
1180521
around the culvert "were necessary to protect and preserve the culvert
and Water Rapids Road."
On review, we conclude that the evidence in the record is sufficient
to support the trial court's factual finding that the culvert was necessary
and that the law allows for the grant of an ingress/egress easement in this
case to reasonably include the construction, maintenance and
improvement of the culvert. We therefore hold that Riverside did not
exceed the grant of the easement when it improved the culvert and the
surrounding area to maintain access to its property.3
C. Expert Testimony
Toomey next argues that the trial court exceeded its discretion when
it refused to allow Spies, a land surveyor, to provide expert-witness
testimony about the cause of erosion on the properties based on his
personal observations and interpretation of topography, contours, and
water accumulation. The standard of review applicable to whether a trial
court properly permits or excludes an expert witness is well settled.
3This conclusion makes it unnecessary to discuss Toomey's trespass
claims against Riverside based on those actions.
15
1180521
"[T]he trial court has broad discretion over whether to consider a witness
qualified as an expert and to consider that witness's expert testimony,"
and this Court will not disturb those findings unless the trial court
exceeds its discretion. Vesta Fire Ins. Corp. v. Milan & Co. Constr., Inc.,
901 So. 2d 84, 106 (Ala. 2004). See also Kyser v. Harrison, 908 So. 2d 914
(Ala. 2005) (holding that a trial court did not exceed its discretion when
it excluded the testimony of a forensic pathologist who was not specialized
in the area of pediatric pathology in a case involving the death of an
infant).
From our review of the record, it is clear that the trial court did not
exceed its discretion when it limited Spies's testimony to the area of land
surveying, topographical surveying, and wetland delineations. Although
engineers rely on maps created by land surveyors to provide opinions and
plan engineering projects, Alabama law recognizes that the work and
expertise of an engineer is different from that of a land surveyor. See §
34-11-1 et seq., Ala. Code 1975 (setting forth licensing and education
requirements for engineers and land surveyors). Spies, as a land
surveyor, is a professional specialist in the technique of measuring land.
16
1180521
But only the direction and erosive effects of the water flowing over the
properties and the water's natural drainage paths were in controversy, not
the boundaries and topography of the properties. Thus, the trial court's
decision not to allow Spies to testify or to rebut the testimony of an
engineer on drainage and causes of erosion is not a basis for reversal.
D. Attorney Fees
Toomey finally argues that the evidence presented by Riverside does
not support the award of attorney fees. Although Toomey concedes that
the trial court has equitable power to award attorney fees to a prevailing
party, he says that his actions do not justify such an award. See Reynolds
v. First Alabama Bank of Montgomery, N.A., 471 So. 2d 1238, 1243 (Ala.
1985) (recognizing authority to award attorney fees "where fraud, willful
negligence or malice has been practiced"). Ordinarily, we defer to the trial
court when it makes an award of attorney fees because it " 'has presided
over the entire litigation [and] has a superior understanding of the factual
questions that must be resolved' " to make such a determination. See Ex
parte Shinaberry, __ So. 3d __, __ [No. 1180935, July 31, 2020] (Ala. 2020)
(quoting Pharmacia Corp. v. McGowan, 915 So. 2d 549, 553 (Ala. 2004)).
17
1180521
Even so, where a trial court awards attorney fees, its order " 'must allow
for meaningful appellate review by articulating the decisions made, the
reasons supporting those decisions, and how it calculated the attorney
fee.' " Id.
In its order awarding attorney fees in this case, the trial court gave
no explanation for its decision, nor did it discuss the factors a court must
consider to determine the reasonableness of the fees. The order simply
stated:
"This is a matter coming on for a hearing on [Riverside's]
motion to establish attorney fees. This matter being submitted
upon the pleadings, testimony taken ore tenus and argument
of counsel on February 19, 2019. Based upon the foregoing,
the court is of the opinion that the following judgment order is
due to be entered.
"It is therefore, ordered, adjudged and decreed by the
Circuit Court of Baldwin County, Alabama, as follows:
"1. To the extent authorized by law, the court grants
[Riverside's] request for reasonable attorney fees in the
amount of $50,000.00.
"2. Any specific request for relief not specifically
addressed herein is denied."
18
1180521
The record also does not indicate what evidence, if any, the trial court
relied on to award Riverside its attorney fees or to calculate the amount
awarded. Although an attorney-fee award is within the sound discretion
of the trial court, this Court cannot provide meaningful appellate review
without the trial court providing a reasoned order of its award.
Shinaberry, __ So. 3d at __. We hold, therefore, that the trial court
exceeded its discretion in awarding Riverside $50,000 in attorney fees
without explaining the basis for its award, and we reverse the judgment
to the extent it awarded attorney fees and remand the case to the trial
court for further proceedings.
Conclusion
We affirm the trial court's judgment granting Riverside
compensatory damages and punitive damages, as well as a permanent
injunction prohibiting Toomey from impeding access to the easement,
including blocking the culvert. But we reverse the trial court's judgment
to the extent it awards attorney fees, and we remand this case for the trial
court to reconsider the attorney-fee award in accordance with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
19
1180521
Parker, C.J., and Wise, Bryan, and Stewart, JJ., concur.
Bolin, Shaw, Sellers, and Mendheim, JJ., concur in the result.
20 | December 4, 2020 |
131318fc-2bb6-423b-83b9-4cba3857f862 | Ex parte Iqbal Singh, M.D. | N/A | 1190256 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 20, 2020
1190256
Ex parte Iqbal Singh, M.D. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
Frank Rivers, as the administrator of the Estate of Linda Rivers, deceased v. Iqbal
Singh, M.D.) (Montgomery Circuit Court: CV-16-900819).
ORDER
The petition for writ of mandamus in this cause is denied.
MITCHELL, J. - Parker, C.J., and Shaw, Wise, Bryan, Mendheim, and Stewart,
JJ., concur. Bolin and Sellers, JJ., dissent.
Witness my hand this 20th day of November, 2020.
/ra | November 20, 2020 |
ed01bcc7-999b-449e-8ee1-5374fb0af9c5 | Ex parte Robert Jamal Wiggins. | N/A | 1191083 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1191083
Ex parte Robert Jamal Wiggins. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Robert Jamal Wiggins v.
State of Alabama) (Lee Circuit Court: CC16-646; Criminal Appeals :
CR-18-1218).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
49d962ce-b8d6-4369-822a-f578862e7314 | Ex parte K.M. | N/A | 1190756 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1190756
Ex parte K.M. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: K.M. v. DeKalb County
Department of Human Resources) (DeKalb Juvenile Court: JU-18-287.02;
Civil Appeals :
2190151).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on November 13, 2020:
Writ Quashed. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
9ada33e6-d200-440f-87a4-4b0ef929bc0a | Ex parte Jason McWhorter. | N/A | 1200014 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
Novem ber 13, 2020
1200014
Ex parte Jason McWhorter. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jason
McWhorter v. State of Alabama) (Morgan Circuit Court: CC-14-703.60;
Criminal Appeals : CR-19-0100).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on November 13, 2020:
Writ Denied. No Opinion. Parker, C.J. - Shaw, Bryan, Mendheim, and
Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as sam e appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
f99c7ecb-a243-453e-88d8-c097dc97309f | Doyle Ray Blackmon v. Miriam Tisdale Archer | N/A | 1190635 | Alabama | Alabama Supreme Court | REL: November 13, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190635
Doyle Ray Blackmon v. Miriam Tisdale Archer (Appeal from Jefferson
Circuit Court: CV-17-904937).
MENDHEIM, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur. | November 13, 2020 |
7e16271f-861b-407b-a68c-cb8ded5c85bb | William Reese Mobley and COPACO, Inc. v. John Glass, d/b/a/ Corner One Convenience Store, and Rhonda H. Glass | N/A | 1190368 | Alabama | Alabama Supreme Court | Rel: November 13, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190368
William Reese Mobley and COPACO, Inc. v. John Glass, d/b/a Corner One
Convenience Store, and Rhonda H. Glass (Appeal from Randolph Circuit
Court: CV-17-900040).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur. | November 13, 2020 |
5107f720-8edb-4049-8899-f09cbff482de | Ex parte Jastyn Dakota Weeks. | N/A | 1200011 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1200011
Ex parte Jastyn Dakota Weeks. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Jastyn Dakota Weeks v.
State of Alabama) (Coffee Circuit Court: CC19-18.70; Criminal Appeals :
CR-19-0595).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
936b3409-d4c9-48c3-9999-95ec7168230f | Ex parte Taskinnya Larandle Burt. | N/A | 1191086 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1191086
Ex parte Taskinnya Larandle Burt. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Taskinnya
Larandle Burt v. Alabama Board of Pardons and Paroles) (Montgomery
Circuit Court: CV-19-449; Criminal Appeals :
CR-19-0656).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
701b1d72-9aa3-4a63-bebc-a82be5fe593c | Ex parte Thomas Robert Lane. | N/A | 1191036 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 20, 2020
1191036
Ex parte Thomas Robert Lane. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Thomas Robert Lane v. State
of Alabama) (Mobile Circuit Court: CC05-1499.80; Criminal Appeals :
CR-15-1087).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 20, 2020:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and Shaw, Wise, Bryan,
Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 20th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 20, 2020 |
fd78a0d0-f7fb-4c69-8f6c-51a2d2fa3d51 | Borden v. Malone | N/A | 1190327 | Alabama | Alabama Supreme Court | REL: November 25, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190327
____________________
Dennis Borden, individually and as father and next friend of
J.B., a minor
v.
Bobby L. Malone and B.L. Malone and Associates, Inc.
Appeal from Calhoun Circuit Court
(CV-19-900631)
MENDHEIM, Justice.
Dennis Borden, individually and as father and next friend of his son
J.B., a minor, appeals the dismissal by the Calhoun Circuit Court of his
1190327
claims alleging defamation and negligence, wantonness, and willfulness
against Bobby L. Malone and Malone's counseling clinic, B.L. Malone and
Associates, Inc. ("the clinic"). We affirm in part, reverse in part, and
remand.
I. Facts
From 1999 to 2012 Borden was married to Kathy Smith, and during
their marriage they had one son, J.B. The complaint that precipitated
this case alleged that, during the marriage, Borden and Smith received
marriage counseling from Malone at the clinic. However, in 2010 Borden
filed for divorce from Smith. The complaint in this case alleged that in the
divorce proceedings Malone, as an employee of the clinic, "served in the
role of custody evaluator" and that Malone recommended to the court that
Smith be given sole custody of J.B. According to Borden's complaint,
instead of following Malone's recommendation, the court awarded Borden
and Smith joint custody of J.B. The divorce was finalized in 2012.
In 2019, Smith apparently filed a petition for a modification of
custody, seeking sole custody of J.B. Borden opposed the petition.
According to Borden's complaint: "In July of 2019, during the pendency
2
1190327
of an adversarial custody dispute involving litigation, Defendant Malone
began seeing ... J.B. for counseling at the behest of his mother Kathy
Smith, but without Plaintiff Borden's knowledge or consent." The
complaint asserted that, even though Borden was responsible for J.B.'s
health insurance, "Malone did not file those initial counseling visits on ...
J.B.'s health insurance in an effort to conceal those counseling sessions
from ... Borden." On August 14, 2019, Malone wrote a letter addressed to
Trudie Phillips, the attorney representing Kathy Smith in the custody
dispute, that included many deeply personal statements concerning J.B.'s
relationship with Borden that J.B. had related to Malone in their
counseling sessions. The letter began: "I am writing to you to share some
of my concerns and that [J.B.] has given me permission to share with you
and the court some of his feelings." The letter ended by stating:
"This case is not about whose [sic] winning but what's in
the best interest of [J.B.]. All of the writs and threats need[]
to stop. This only heightens [J.B.'s] anxiety. This kind of
trauma can seriously affect his adolescence and other
relationships.
"... Therefore, my concern[] is for [J.B.] and his safety of
himself and others [sic]. I hope the court will not allow this
3
1190327
case to drag out like other similar ones for five or six years.
The damage is being done to the child."
(Emphasis omitted.)
Borden's complaint alleged that in the letter "Malone made
numerous false, defamatory, dishonest, malicious, fraudulent, reckless
and unprofessional allegations and misrepresentations about and against
Plaintiff Borden." The complaint then detailed several of the statements
made about Borden in the letter. The complaint asserted that the letter
was "openly filed in court, [was] given to [J.B.'s] mother to openly
distribute with no discretion or oversight, and [was] distributed to
personnel at [J.B.'s] school." The complaint further alleged that the "false,
defamatory, malicious, reckless and unprofessional claims [in the letter]
... caused Plaintiff Borden to suffer worry, fear, embarrassment, severe
emotional distress and anguish and have caused damage to his reputation
in and throughout the community. These damages [sic] are likely to
continue in the future, some being permanent in nature." The complaint
similarly alleged as to J.B. that
"Malone's release, disclosure, and publication of the subject
[letter] and the numerous false, dishonest, reckless allegations
4
1190327
about ... J.B., as well as the critically private information
disclosed and made public by said [letter] have and will
continue to cause ... J.B. to suffer worry, fear, embarrassment,
severe emotional distress and anguish, as well as damage to
his reputation in and throughout the community. These
damages [sic] are likely to continue in the future, some being
permanent in nature."
A week after the letter was written, on August 21, 2019, Borden
commenced an action individually and on behalf of J.B. against Malone
and the clinic in the Calhoun Circuit Court. Borden's complaint asserted
three counts based upon Malone's August 14, 2019, letter: (1) defamation,
libel, and slander; (2) negligence, wantonness, and willfulness; and (3) the
tort of outrage. With respect to the negligence/wantonness/willfulness
claims, Borden alleged, in part, that Malone had "breached and violated
numerous ethical rules and regulations by serving in multiple conflicting
capacities for Plaintiff Borden, ... J.B., and even Plaintiff's ex-wife Kathy
Smith."
On September 18, 2019, Malone and the clinic filed a motion to
dismiss or, in the alternative, for a summary judgment. In the motion,
Malone and the clinic contended that Borden had failed to state a claim
for which relief could be granted, that Borden had failed to allege facts
5
1190327
that would support his tort-of-outrage claim, and that "[a]ll of the
statements in the [August 14, 2019,] letter ... were made for a judicial
proceeding which is recognize[d] by law as absolute[ly] privilege[d],
Barnett v. Mobile County Personnel Bd., 536 So. 2d 46 [(Ala. 1988)]."
Malone and the clinic attached to the motion a copy of the August 14,
2019, letter and an affidavit from Malone. Malone's affidavit included
several factual assertions regarding his role as a marriage counselor to
Borden and Smith, his role in the divorce proceeding, the nature of the
payments for J.B.'s counseling sessions, the reasons Smith engaged his
services for counseling J.B., and the circumstances surrounding his
writing of the August 14, 2019, letter that precipitated the litigation.
On November 22, 2019, Borden filed a response in opposition to the
motion from Malone and the clinic. In the response, Borden noted various
factual discrepancies between the allegations in the complaint, the
August 14, 2019, letter, and Malone's affidavit. The response also argued
that by writing and distributing the letter Malone had violated the
privilege between a licensed professional counselor and a patient codified
in § 34-8A-21, Ala. Code 1975, and that, therefore, Malone and the clinic
6
1190327
were not entitled to a litigation privilege as to the letter. Borden further
asserted that the counselor-patient privilege was the reason the court
adjudicating the custody-modification dispute between Borden and Smith
had stricken the August 14, 2019, letter from evidence and had not
allowed Malone to testify as a witness in the custody-modification
proceeding. Borden's response to the motion to dismiss requested that the
August 14, 2019, letter and Malone's affidavit be stricken because, he
said, they contained private and privileged information. The response
further requested that any hearing on the motion to dismiss should be
continued pursuant to Rule 56(f), Ala. R. Civ. P., so that discovery could
be conducted; an affidavit from Borden's counsel attached to the response
contended that information from discovery "could be essential and
necessary to justify and support" opposition to the motion. Borden also
attached to his response his own affidavit that sought to refute factual
assertions Malone had made in his affidavit.
On November 25, 2019, the trial court held a hearing on the motion
filed by Malone and the clinic. At the outset of the hearing, the trial court
stated: "So we're looking at a motion to dismiss filed by the
7
1190327
defense/motion for summary judgment, but right now I'm just treating it
as a motion to dismiss. We can look at [it] however." During the hearing,
Borden voluntarily dismissed the tort-of-outrage count that he had
asserted in his complaint, leaving the defamation/libel/slander and
negligence/wantonness/willfulness counts. The parties argued about the
application of the litigation privilege, as well as the assertions made in the
dueling affidavits from Malone and Borden.
On December 11, 2019, the trial court granted the motion filed by
Malone and the clinic. The order stated:
"The Court finds [Malone] has immunity covering his
actions in this case.
"Therefore, the MOTION TO DISMISS, OR IN THE
ALTERNATIVE SUMMARY JUDGMENT filed by MALONE
BOBBY L. is hereby GRANTED.
"This matter is Dismissed with Prejudice with costs
taxed as paid."
The record on appeal does not reflect that the trial court ever ruled upon
Borden's motion to strike materials submitted by Malone and the clinic.
On January 10, 2020, Borden filed a motion to alter, amend, or vacate the
8
1190327
judgment. On January 17, 2020, the trial court denied the postjudgment
motion. Borden filed an appeal the same day.
On June 15, 2020, this Court entered an order noting that the trial
court's December 11, 2019, order did not appear to dispose of the claims
asserted against the clinic and remanding the case for the trial court to
make its interlocutory order final by certifying it pursuant to Rule 54(b),
Ala. R. Civ. P., or to enter a final order. The order noted that if there was
no response within 14 days, Borden's appeal would be dismissed. On
July 15, 2020, this Court entered an order dismissing the appeal. The
next day, Borden filed a motion to set aside the order dismissing the
appeal on the ground that the trial court had entered a final order on
June 23, 2020, in response to this Court's June 15, 2020, remand order,
but that Borden had failed to notify this Court of the trial court's order
because he had not received a copy of this Court's remand order. The
motion noted that the trial court had granted a motion to supplement the
record so that the trial court's final order could be included in the record
on appeal. Subsequently, a supplemental record was filed with this Court
that included the trial court's order of June 23, 2020, which provided: "In
9
1190327
accordance with this Court's previous order finding Defendant Bobby
Malone had immunity covering his actions, this Court hereby dismisses
with prejudice all claims against Bobby Malone and B.L. Malone &
Associates, Inc." On August 4, 2020, this Court entered an order
reinstating Borden's appeal.
II. Standard of Review
To apply the proper standard of review, we must first determine
whether the trial court considered matters outside the pleadings in
granting the motion to dismiss, i.e., whether we are reviewing a ruling on
a motion to dismiss or a summary judgment. Rule 12(b), Ala. R. Civ. P.,
provides, in part:
"If, on a motion asserting the defense numbered (6) to dismiss
for failure of the pleading to state a claim upon which relief
can be granted, matters outside the pleading are presented to
and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable opportunity
to present all material made pertinent to such a motion by
Rule 56."
Concerning this portion of Rule 12(b), this Court has observed:
"Whether additional materials attached to a Rule 12(b)(6)
motion will be considered is within the trial court's discretion.
10
1190327
If an appellate court's review automatically converts a motion
to dismiss supported by additional materials to a motion for a
summary judgment, the discretion provided the trial court to
determine whether to exclude matters outside the pleadings
would be constrained."
Ex parte Price, 244 So. 3d 949, 955 (Ala. 2017). In other words, this Court
no longer assumes that a motion to dismiss must be converted to a motion
for summary judgment when a trial court fails to affirmatively state that
it did not consider matters outside the pleadings in ruling upon such a
motion.
In this case, matters outside the pleadings were submitted to the
trial court in the form of affidavits from Borden and Malone, along with
the August 14, 2019, letter written by Malone. With respect to the letter,
we note that
" ' " 'if a plaintiff does not incorporate by reference or attach a
document to its complaint, but the document is referred to in
the complaint and is central to the plaintiff's claim, a
defendant may submit an indisputably authentic copy to the
court to be considered on a motion to dismiss.' " ' "
Bell v. Smith, 281 So. 3d 1247, 1252 (Ala. 2019) (quoting Donoghue v.
American Nat'l Ins. Co., 838 So. 2d 1032, 1035 (Ala. 2002), quoting in turn
Wilson v. First Union Nat'l Bank of Georgia, 716 So. 2d 722, 726 (Ala. Civ.
11
1190327
App. 1998), quoting in turn GFF Corp. v. Associated Wholesale Grocers,
Inc., 130 F.3d 1381, 1384–85 (10th Cir. 1997)). The August 14, 2019,
letter is central to this action, and it was repeatedly referenced
throughout Borden's complaint. Therefore, the attachment of the letter
to the motion to dismiss did not alone convert the motion to dismiss to a
motion for a summary judgment.
The affidavits submitted by Malone and Borden clearly are matters
outside the pleadings, consideration of which would require conversion of
the motion. However, the trial court's only statement on this subject -- in
the hearing on the motion -- indicated that it was going to consider the
motion as a motion to dismiss rather than a motion for a summary
judgment. The trial court's December 19, 2019, order granted the motion
based on "immunity covering [Malone's] actions in this case," a principle
that, as we shall discuss at more length in Part III of this opinion, is more
traditionally referred to as "the litigation privilege" or "absolute
privilege."
"Alabama courts treat the litigation privilege as an affirmative
defense. See, e.g., Webster [v. Byrd], 494 So. 2d [31,] 32 [(Ala.
1986)]. Nevertheless, a court may dismiss a complaint for
12
1190327
failure to state a claim based on an affirmative defense when
the allegations of the complaint, on their face, show that the
defense bars recovery. Douglas v. Yates, 535 F.3d 1316, 1321
(11th Cir. 2008). 'Thus, a court may dismiss claims based on
the litigation privilege where the allegations in the complaint
establish that the defendant's conduct occurred under
circumstances that amounted to a privileged setting.' Tolar v.
[Bradley Arant Boult] Cummings, [No. 2:13-cv-00132-JEO]
(N.D. Ala. Aug. 11, 2014 [not selected for publication in Fed.
Supp.] ..."
July v. Terminix Int'l Co., Ltd. P'ship, 387 F. Supp. 3d 1306, 1315 (S.D.
Ala. 2019). The complaint specifically noted that the August 14, 2019,
letter was written "during the pendency of an adversarial custody dispute
involving litigation," that it was "addressed to the attorney for
Kathy Smith," and that it was "being openly filed in court." The
August 14, 2019, letter began with the statement: "I am writing to you to
share some of my concerns and that [J.B.] has given me permission to
share with you and the court some of his feelings." (Emphasis added.)
Therefore, the trial court may have deemed it possible to determine that
the litigation privilege applied based solely upon the complaint and the
letter. Accordingly, in line with Price, we conclude that the correct
standard of review is that applicable to the denial of a motion to dismiss.
13
1190327
" 'The appropriate standard of review of a trial court's
denial of a motion to dismiss is whether "when the allegations
of the complaint are viewed most strongly in the pleader's
favor, it appears that the pleader could prove any set of
circumstances that would entitle [the pleader] to relief."
Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993); Raley v.
Citibanc of Alabama/Andalusia, 474 So. 2d 640, 641 (Ala.
1985). This Court does not consider whether the plaintiff will
ultimately prevail, but only whether the plaintiff may possibly
prevail. Nance, 622 So. 2d at 299. A "dismissal is proper only
when it appears beyond doubt that the plaintiff can prove no
set of facts in support of the claim that would entitle the
plaintiff to relief." Nance, 622 So. 2d at 299; Garrett v.
Hadden, 495 So. 2d 616, 617 (Ala. 1986); Hill v. Kraft, Inc., 496
So. 2d 768, 769 (Ala. 1986).' "
BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So. 2d 310, 313 (Ala.
2004) (quoting Lyons v. River Road Constr., Inc., 858 So. 2d 257, 260 (Ala.
2003)).
Under the foregoing standard, the only facts before this Court are
those alleged in the complaint and in the August 14, 2019, letter written
by Malone. Borden contends on appeal, as he did before the trial court,
that the August 14, 2019, letter and Malone's affidavit, which largely
seeks to defend Malone's writing of the letter, should be stricken because,
he says, they contain information that is privileged under the counselor-
patient privilege. Our determination as to the appropriate standard of
14
1190327
review eliminates any need to strike Malone's affidavit because the
affidavit cannot be considered in reviewing a ruling on a motion to
dismiss. As for the August 14, 2019, letter, it is central to all the claims
asserted by Borden on behalf of himself and J.B. Borden cannot use the
August 14, 2019, letter as the basis for this action and simultaneously
assert that this Court cannot consider the letter in assessing the viability
of his claims. Accordingly, Borden's motion to strike is denied.
III. Analysis
As we have already observed, the trial court granted Malone and the
clinic's motion to dismiss on the ground that they were entitled to
"immunity covering [their] actions in this case." The only "immunity"
asserted by Malone and the clinic is the litigation privilege, also referred
to in our cases as absolute privilege.
"This Court has recognized that a party that has published
allegedly defamatory matter in the course of a judicial
proceeding may claim, as a defense to a defamation action
based on that publication, the absolute privilege described in
the Restatement (Second) of Torts § 587 (1977). See Walker v.
Majors, 496 So. 2d 726, 729–30 (Ala. 1986)."
15
1190327
Hollander v. Nichols, 19 So. 3d 184, 195 (Ala. 2009). Concerning the
decision in Walker v. Majors, 496 So. 2d 726 (Ala. 1986), this Court has
explained:
"In Walker, the owner of a parcel of land brought a defamation
action against a real estate broker for allegedly defamatory
remarks in a letter that the broker had written to some
prospective purchasers of the land. The broker wrote these
letters after the owners refused to sell the property and pay
him his commission. In his letters, the broker stated: ' "I am
filing suit against the Walkers for the breach of their contract
with me and to recover for the damages I have suffered as a
result of their fraudulent conduct." ' (Emphasis added in
Walker.) Shortly after writing these letters, the broker filed
suit against the Walkers for breach of contract and fraud.
"In affirming the summary judgment for the broker, we
adopted the Restatement (Second) of Torts, § 587 (1977), as
the appropriate standard when determining whether
defamatory matter is absolutely privileged by virtue of its
connection with a judicial proceeding:
" 'A party to a private litigation or a private
prosecutor or defendant in a criminal prosecution
is absolutely privileged to publish defamatory
matter concerning another in communications
preliminary to a proposed judicial proceeding, or in
the institution of or during the course and as a part
of, a judicial proceeding in which he participates, if
the matter has some relation to the proceeding.'
"(Emphasis added.) We continued, in the Walker case, to
examine the rationale behind this privilege:
16
1190327
" ' " 'There is another
c l a s s
o f
p r i v i l e g e d
communications where the
privilege is absolute. They
are defined in Hastings v.
Lusk, 22 Wend. [N.Y.] 410,
34 Am. Dec. 330 [(1839)]. In
this
class
are
included
slanderous statements made
by
parties,
counsel,
or
witnesses in the course of
judicial proceedings, and ...
libelous
charges
in
pleadings,
affidavits,
or
other papers used in the
course of the prosecution or
defense of an action. In
questions falling within this
absolute
privilege
the
question of malice has no
place. However malicious
the intent, or however false
the charge may have been,
the law, from considerations
of public policy, and to
secure the unembarrassed
and efficient administration
of justice, denies to the
defamed party any remedy
through an action for libel
or slander. This privilege,
however, is not a license
which
protects
every
slanderous publication or
statement made in the
17
1190327
c o u r s e
o f
j u d i c i a l
proceedings. It extends only
to such matters as are
relevant or material to the
litigation, or, at least, it
does not protect slanderous
i m p u t a t i o n s
p l a i n l y
irrelevant and impertinent,
voluntarily made, and which
the party making them
could not reasonably have
supposed to be relevant.' "
" ' O'Barr v. Feist, 292 Ala. [440] at 446, 296 So. 2d
[152]
at
157
[1974],
quoting
Moore
v.
Manufacturers' National Bank, 123 N.Y. 420, 25
N.E. 1048, 1049 (1890).
" 'Comment (e) to Restatement § 587
(regarding statements made preliminary to trial)
states:
" ' "As to communications preliminary to
the proposed judicial proceeding, the
rule stated in this section applies only
when the communication has some
relation to a proceeding that is
contemplated in good faith and under
serious
consideration. The bare
possibility that the proceeding might be
instituted is not to be used as a cloak to
provide immunity for a defamation
when the possibility is not seriously
considered." '
18
1190327
"496 So. 2d at 729.
"... While the 'issue of the relevancy of the
communication is a matter for the determination of the court,
... the adjudicated cases have established a liberal view in the
interpretation of the language used, and all doubts are
resolved in favor of its relevancy or pertinence' to the judicial
proceeding in question. Walker, supra, 496 So. 2d at 730,
citing O'Barr v. Feist, 292 Ala. 440, 296 So. 2d 152 (1974).
"We acknowledge that the circumstances of this
particular case may delineate the limits of the area in which
we would be willing to recognize the existence of an absolute
privilege for communications preliminary to a judicial
proceeding. We recognize, as did the court in Brown v. Collins,
402 F.2d 209 (D.C. Cir. 1968), the need for caution in the
granting of absolute privilege to preliminary statements:
" 'The doctrine of absolute immunity for statements
in judicial proceedings reflects a judgment that the
need for completely free speech for litigants is
dominant, and that this freedom is not to be
endangered by subjecting parties to the burden of
defending their motives in subsequent slander
litigation, or to the risk that juries may
misapprehend those motives. Such special
immunity is not lightly conferred, however, as it
protects deliberate lies told with intent to destroy
reputation. Where dealing with preliminary
statements
other
than
witness
briefings,
settlement discussions and the like, there is need
for particularly close attention to the factual
circumstances, recognizing that unlike statements
made in court, these communications are not
cabined by a litigant's recognition that contempt of
19
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a court may follow if they are outrageously
unnecessary and intemperate, even though more or
less relevant.
" '...
Business conversations are not
absolutely privileged merely because they deal
with matters likely to end up in court in the
future.... Although the Restatement standard of
"relation" to the proceedings is broad, and does not
require legal relevance, even that liberal standard
is not met merely by showing that the defamatory
comments were triggered by some pending lawsuit
or the facts involved therein.... [T]he mere mention
of the possibility of suing the communicant [does
not] automatically convert the entire conversation
to one "related" to a proposed judicial proceeding.'
"402 F.2d at 213–14. (Footnotes omitted.)"
Barnett v. Mobile Cnty. Pers. Bd., 536 So. 2d 46, 51–52 (Ala. 1988).
In the present case, Malone and the clinic argue that the August 14,
2019, letter clearly falls within the parameters of the litigation privilege
because, they say, it was written during the pendency of a custody-
modification proceeding for the purpose of communicating to the court the
attitudes and feelings of J.B. about his father, Borden. In short, they
contend that, because the letter was triggered by pending litigation and
20
1190327
because its content was relevant to the dispute before the court, the
litigation privilege bars any action against them based on the letter.
Borden counters that Malone's letter should not qualify for the
litigation privilege because, he says, Malone was not, in fact, a witness in
the custody dispute; to the contrary, Borden contends, Malone voluntarily
wrote the letter to Smith's attorney, and the trial court in the custody-
modification proceeding struck the letter from the record and did not allow
Malone to testify. Borden contends that, because Malone did not
"participate" in judicial proceedings, the alleged disparagements of him
and J.B. in the letter are not protected by the litigation privilege. See
Borden's appellate brief, pp. 23-24. Borden further argues that Malone's
statements in the letter were "unquestionably, 'irrelevant and
impertinent' as to Borden." Id. at 25. Finally, Borden contends that
Malone's violation of the counselor-patient privilege is not protected by
the litigation privilege.
Our cases do not support Borden's first argument that the litigation
privilege is inapplicable because Malone did not testify in the custody-
modification proceeding. In Walker, the Court -- relying on Restatement
21
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(Second) of Torts § 587 (1977) -- concluded that communications directly
related to a contemplated judicial proceeding were absolutely privileged.
See Walker, 496 So. 2d at 730. The letters at issue in Walker were
written before any lawsuit had been filed, but the Court concluded that
because the letters directly referenced a contemplated judicial proceeding
they constituted communications directly related to a judicial proceeding
and that, therefore, they were protected by the litigation privilege.
Similarly, in Barnett the Court determined that a letter that the
then director of the Mobile County Personnel Board wrote to the town
council of Mount Vernon, Alabama, which allegedly contained defamatory
statements about the Mount Vernon town clerk, was absolutely privileged
because the letter was "clearly relevant" to a "proposed [judicial]
proceeding" that was actually filed a few weeks after publication of the
letter. Barnett, 536 So. 2d at 52. The lawsuit subsequently filed by the
Personnel Board and the director against the town clerk to recover payroll
overpayments was dismissed based on a lack of standing. Thus, even
though the letter was never submitted in a judicial proceeding and the
personnel-board director never testified in a judicial proceeding, the Court
22
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concluded that the "allegedly defamatory letter was absolutely privileged
due to its clear relevance to a judicial proceeding that was 'contemplated
in good faith and under serious consideration.' Restatement (Second) of
Torts, § 587, comment (e) (1977)." 536 So. 2d at 52.
In Cutts v. American United Life Insurance Co., 505 So. 2d 1211
(Ala. 1987), two companies provided an assistant district attorney for
Mobile County inaccurate information about a contract they were involved
in with a company owned by William Cutts. Based on the information,
the district attorney's office obtained grand-jury indictments against
Cutts. After Cutts provided the district attorney's office with correct
information about the transaction in question, the district attorney's office
nol-prossed the indictments and discontinued its investigation. Cutts
sued the two companies, asserting, among other things, a defamation
claim based on a letter the two companies had provided to the district
attorney's office. This Court concluded that the defamation claim was due
to be dismissed because "an absolute privilege exists in favor of those
involved in judicial proceedings, including judges, lawyers, jurors, and
witnesses, shielding them from an action for defamation." Cutts, 505 So.
23
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2d at 1215. Thus, in Cutts, although the judicial proceeding was only in
the investigatory stage when the companies provided information to the
district attorney's office, the criminal case against Cutts was never taken
to trial, and the two companies were not parties to the criminal case, the
Court concluded that the litigation privilege applied to the communication
in question.
The decisions in Walker, Barnett, and Cutts illustrate that, for the
litigation privilege to apply, an allegedly defamatory communication need
not occur during a judicial proceeding and one accused of defamation need
not actually participate in the judicial proceeding. It is enough that the
communication is directly related and clearly relevant to a judicial
proceeding that was " 'contemplated in good faith and under serious
consideration.' " Barnett, 536 So. 2d at 52 (quoting Restatement § 587
Comment (e)). On August 14, 2019, Malone wrote the letter to the
attorney for Borden's ex-wife purportedly for the court's consideration in
the custody-modification proceeding. Therefore, the facts that the letter
was ultimately excluded from evidence in the custody-modification
24
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proceeding and that Malone was not permitted to testify in that
proceeding do not prevent the application of the litigation privilege.
Borden's second contention -- that Malone's statements in the
August 14, 2019, letter were not relevant to the matter at issue in the
custody-modification proceeding -- overlooks the fact that this Court has
repeatedly stated that "the issue of the relevancy of the communication is
a matter for the determination of the court, and the adjudicated cases
have established a liberal view in the interpretation of the language used,
and all doubts are resolved in favor of its relevancy or pertinence."
Walker, 496 So. 2d at 730 (citing O'Barr v. Feist, 292 Ala. 440, 445, 296
So.2d 152, 156 (1974), and Adams v. Alabama Lime & Stone Corp., 225
Ala. 174, 176–77, 142 So. 424, 425 (1932)). It is certainly understandable
why Borden would view some of the statements about him in the letter as
gratuitous, but, viewed broadly, Malone's statements were relevant to the
determination of whether Borden should retain joint custody of J.B.
Based on the foregoing, we conclude that the trial court correctly
applied the litigation privilege to Borden's defamation claims in the
25
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context of the custody-modification proceeding. However, this Court has
noted:
"Such absolutely privileged communications ... must not
be published outside the circle of those who must have
knowledge of them pursuant to the decision-making process.
The recipient of a communication made outside the judicial or
quasi-judicial proceeding must have a direct or close
relationship to that proceeding or the absolute privilege is
lost."
Webster v. Byrd, 494 So. 2d 31, 35 (Ala. 1986). In his complaint, Borden
expressly alleged that Malone and the clinic "maliciously and falsely
wrote, typed, printed and/or published a letter or 'report' dated August 14,
2019, to various persons, agencies and/or institutions concerning
Plaintiff[] Borden and J.B., which maliciously and falsely accused
Plaintiff[] of wrongful conduct as previously set forth above and herein."
More specifically, Borden alleged that the letter had been "distributed to
personnel at [J.B.'s] school," and he suggested that it had been "openly
distributed with no discretion" to others, such that the defamatory
statements had done "damage to [Borden's and J.B.'s] reputation[s] in and
throughout the community." In short, the allegations in the complaint are
broad enough to include the possibility that Malone and the clinic bore
26
1190327
some culpability for disseminating the contents of the August 14, 2019,
letter beyond Kathy Smith and her attorney, i.e., those who had a direct
or close relationship to the custody-modification proceeding. In Webster,
the Court concluded:
"Thus, although we have decided that as a matter of law
the letter of termination was a communication made in the
course of a quasi-judicial proceeding, and was therefore
cloaked by an absolute privilege, a question of fact remains as
to whether the privilege was lost by its being published outside
the confines of the quasi-judicial proceeding."
Webster, 494 So. 2d at 35. Likewise, in this case, although we have
determined that the August 14, 2019, letter was a communication made
in the course of the custody-modification proceeding and was therefore
cloaked by the litigation privilege, it remains possible that Borden could
prove a set of facts under which the litigation privilege would be lost,
depending on what role Malone and the clinic played in disseminating the
letter outside the litigation context. Therefore, the trial court erred in
dismissing Borden's defamation claims.
Borden's second count alleging negligence, wantonness, and
willfulness requires further analysis because, at its core, that count is
27
1190327
based upon the allegation that Malone breached the counselor-patient
privilege belonging to J.B. Communications between "licensed
psychologists, licensed psychiatrists, [and] licensed psychological
technicians and their clients" are protected under § 34-26-2, Ala. Code
1975, a statutory privilege our courts have addressed many times.
However, we have no evidence indicating or allegations regarding whether
Malone is a licensed psychologist, a licensed psychiatrist, or a licensed
psychological technician. Rather, the allegations contend that Malone is
a "professional counselor." Communications between a licensed
professional counselor and a client are protected by § 34-8A-21, Ala. Code
1975, which provides:
"For the purpose of this chapter, the confidential
relations and communications between licensed professional
counselor or certified counselor associate and client are placed
upon the same basis as those provided by law between
attorney and client, and nothing in this chapter shall be
construed to require any such privileged communication to be
disclosed."
In Ex parte Holm, 283 So. 3d 776 (Ala. Civ. App. 2019), the Court of
Civil Appeals concluded that a father's right to access medical records of
28
1190327
his minor child under § 30-3-154, Ala. Code 1975,1 did not negate the
privilege afforded to his child for the communications between the child
and a licensed professional counselor under § 34-8A-21. In the course of
evaluating that issue, the Court of Civil Appeals noted that "[t]his court's
research has not revealed any caselaw discussing the privilege between
a licensed professional counselor and his or her client pursuant to
§ 34-8A-21" but that "[t]he privilege afforded a licensed professional
counselor and his or her client pursuant to § 34-8A-21 is the same as that
afforded under § 34-26-2." Holm, 283 So. 3d at 779, 778. Accordingly, the
Court of Civil Appeals applied the reasoning from cases applying § 34-26-2
to address the issue presented to it concerning § 34-8A-21. We will do the
same.2
1Section 30-3-154 provides:
"Unless otherwise prohibited by court order or statute,
all records and information pertaining to the child, including,
but not limited to, medical, physiological, dental, scholastic,
athletic, extracurricular, and law enforcement, shall be equally
available to both parents, in all types of custody
arrangements."
2Holm was decided on March 29, 2019, several months before Borden
filed his complaint in this case.
29
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"We [have] stated that the psychotherapist-patient privilege
rested on the need to
" 'inspire confidence in the patient and encourage
him in making a full disclosure to the physician as
to his symptoms and condition, by preventing the
physician from making public information that
would result in humiliation, embarrassment, or
disgrace to the patient, and [is] thus designed to
promote the efficacy of the physician's advice or
treatment. The exclusion of the evidence rests in
the public policy and is for the general interest of
the community.' "
Ex parte University of South Alabama, 183 So. 3d 915, 921 (Ala. 2015)
(quoting Ex parte Rudder, 507 So. 2d 411, 413 (Ala. 1987)). "The strength
of the public policy on which the statutory psychotherapist-patient
privilege is based has been well recognized by this Court. It follows that
the privilege is not easily outweighed by competing interests." Ex parte
United Serv. Stations, Inc., 628 So. 2d 501, 504 (Ala. 1993). The same is
true for the nearly identical counselor-patient privilege.
"Alabama recognizes causes of action for breach of fiduciary duty and
breach of implied contract resulting from a physician's unauthorized
disclosure of information acquired during the physician-patient
relationship, Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973)." Mull
30
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v. String, 448 So. 2d 952, 953 (Ala. 1984). We assume for the purpose of
evaluating the applicability of the litigation privilege asserted by Malone
and the clinic in their motion to dismiss that a cause of action likewise
exists for a counselor's unauthorized disclosure of confidential
information.
"[L]ike the attorney-client privilege on which it was modeled,
the psychotherapist-patient privilege is personal to the
patient, and only the patient may waive it. Watson v. State,
504 So. 2d 339 (Ala. 1986). See Swain v. Terry, 454 So. 2d 948
(Ala. 1984). In order to impliedly waive a testimonial
privilege, the holder of the privilege must objectively manifest
a clear intent not to rely upon the privilege. Jordan v. State,
607 So. 2d 333, 336 (Ala. Crim. App. 1992)."
31
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Ex parte United Serv. Stations, Inc., 628 So. 2d at 505.3 In the August 14,
2019, letter, Malone asserts that J.B. waived his right to keep private
what he had related to Malone in counseling sessions. In the complaint,
Borden alleges on behalf of J.B. that J.B. did not waive his right to
confidentiality. In short, the record before us on the motion to dismiss
does not demonstrate a clear intent by J.B. to waive the privilege for the
purpose of the custody-modification proceeding. It is true that when a
party has placed his or her mental state in issue in a judicial proceeding,
the party is deemed to have waived any confidentiality privilege. See,
e.g., Mull, 448 So. 2d at 954. However, the Holm court noted:
3We recognize that J.B. is a minor. Our caselaw indicates that "[a]
child, the child's parent, or the child's psychotherapist may assert the
psychotherapist-patient privilege, but only the child may waive the
privilege." Ex parte Sims, 246 So. 3d 155, 157 (Ala. Civ. App. 2017). See
also Ex parte T.O., 898 So. 2d 706, 711 (Ala. 2004) ("Even though T.O.'s
psychotherapist-patient privilege could be claimed for him by the
psychiatrist Dr. Kahn, the patient T.O., the mother E.O., or the father
J.O., ... only the patient T.O. could waive the privilege .... Since T.O.'s
mother was not the patient, she lacked standing to waive T.O.'s
psychotherapist-patient privilege."); Ex parte Johnson, 219 So. 3d 655, 657
(Ala. Civ. App. 2016) (citing T.O. for the proposition that the
psychotherapist-patient privilege "belongs to the child and only he may
waive it").
32
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"[I]n the context of the similar privilege afforded a psychologist
and his or her client under § 34-26-2, this court has held that,
in a custody-modification action, the psychotherapy records for
the child that is the subject of the modification action remain
privileged and are not required to be disclosed. Ex parte
Johnson, 219 So. 3d 655, 657-58 (Ala. Civ. App. 2016)."
283 So. 3d at 779. The Holm court reasoned that a child is not considered
to be a party to a custody-modification action and that, therefore, the child
cannot be said to have willingly placed his or her mental state in issue for
such a proceeding, which would impliedly waive the privilege.4
All of this serves as background to the consideration of whether the
litigation privilege bars Borden's second count insofar as it is asserted on
behalf of J.B. The litigation privilege arises from the common law. See,
e.g., Hollander, 19 So. 3d at 195 (stating that " [t]his Court has recognized
that a party that has published allegedly defamatory matter in the course
of a judicial proceeding may claim, as a defense to a defamation action
based on that publication, the absolute privilege described in the
4Regardless of the reason for the trial court's exclusion of Malone's
letter and his exclusion as a witness in the custody-modification
proceeding, we do not intend to preclude the possibility that further
development of the facts could show that J.B. did, in fact, waive the
counselor-patient privilege.
33
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Restatement (Second) of Torts § 587 (1977)" (emphasis added)); Surrency
v. Harbison, 489 So. 2d 1097, 1104 (Ala. 1986) (discussing the litigation
privilege and observing that " [w]e have found no cases or rationale
providing a privilege as to violence in the labor setting, so we specifically
exempt the assault and battery claim from the purview of privileged
matters" (emphasis added)). At common law, the litigation privilege
applied solely to defamation claims. See, e.g., Lawson v. Hicks, 38 Ala.
279, 285 (1862) ("Words, calumnious in their nature, may be deprived of
their actionable quality by the occasion of their utterance or publication.
When this is the case, they are called in the law of defamation privileged
communications." (emphasis added)); Franklin Collection Serv., Inc. v.
Kyle, 955 So. 2d 284, 292 (Miss. 2007) (examining the history of the
litigation privilege and concluding that "the litigation privilege at common
law was only applicable to claims for defamation, such as libel and
slander"); Simms v. Seaman, 308 Conn. 523, 531-36, 69 A.3d 880, 885–87
(2013) (recounting the common-law origins of the litigation privilege and
explaining that it "developed in the context of defamation claims"). In
Butler v. Town of Argo, 871 So. 2d 1, 24 (Ala. 2003), this Court admitted
34
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that "this absolute privilege is rooted in defamation law," but, citing
Restatement (Second) of Torts § 652F (1977),5 the Court expanded the
privilege so that it "also applies to the publication of any matter that
amounts to an invasion of privacy." However, counselor-patient
confidentiality is statutory in its origin. See § 34-8A-21, Ala. Code 1975.
The common law is the law of Alabama unless it is repealed by statute.
See § 1-3-1, Ala. Code 1975 ("The common law of England, so far as it is
not inconsistent with the Constitution, laws and institutions of this state,
shall, together with such institutions and laws, 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."). Section 34-8A-21 does not contain an
express exception to the counselor-patient privilege based on the litigation
privilege. Therefore, the common-law litigation privilege must give way
to the statutory right of confidentiality. In other words, the litigation
privilege cannot insulate Malone and the clinic from a private action
5Restatement (Second) of Torts § 652F (1977) provides: "The rules
on absolute privileges to publish defamatory matter stated in §§ 583 to
592A apply to the publication of any matter that is an invasion of privacy."
35
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based on an unauthorized disclosure of patient confidentiality. Cf. Estape
v. Seidman, 269 So. 3d 565, 569 (Fla. Dist. Ct. App. 2019) (employing
similar reasoning to conclude that "absolute immunity for communications
during judicial proceedings does not provide immunity to a
psychotherapist for revealing communications regarding a patient
contrary to section 490.0147," Florida's statute establishing the
psychotherapist-patient privilege).
Based on the foregoing, we conclude that Borden's second count,
alleging negligence/wantonness/willfulness asserted on behalf of J.B.
against Malone and the clinic based on a breach of confidentiality between
Malone and J.B. is not protected by the litigation privilege.6 Accordingly,
the trial court erred in dismissing those claims based on the litigation
privilege. However, the complaint contains no specific allegation that
Malone violated any confidentiality with respect to Borden. Therefore, to
the extent that Borden's second count attempts to state claims on behalf
6This conclusion does not preclude the possibility that this claim as
to J.B. is subject to some other infirmity; all that is before us in this
appeal is the applicability of the litigation privilege to the claims asserted
against Malone and the clinic.
36
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of Borden, we fail to see a meaningful distinction between those claims
and Borden's defamation claim. Therefore, the trial court was correct in
dismissing the second count with respect to Borden.
IV. Conclusion
For the foregoing reasons, the trial court's dismissal of the
defamation claims asserted on behalf of Borden and J.B. is reversed to the
extent that it precluded Borden from maintaining his claim that Malone
and the clinic bear some culpability for the dissemination of the
August 14, 2019, letter beyond those who had a direct or close relationship
to the custody-modification proceeding. Furthermore, the trial court's
dismissal of the count alleging negligence/wantonness/willfulness is
reversed to the extent that it precluded claims based on a breach of
confidentiality on behalf of J.B., which are not foreclosed by the litigation
privilege. The trial court's dismissal of the claims asserted in that count
as to Borden is affirmed.
37
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MOTION TO STRIKE DENIED; AFFIRMED IN PART; REVERSED
IN PART; AND REMANDED.
Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur.
Mendheim, J., concurs specially.
Parker, C.J., and Mitchell, J., concur in part and concur in the
result.
38
1190327
MENDHEIM, Justice (concurring specially).
As the author of the main opinion, I write specially to explain why
I do not agree with Justice Mitchell's alternative rationale for why the
second
count
in
Dennis
Borden's
complaint,
alleging
"negligence/wantonness/willfulness" on J.B.'s behalf against Bobby L.
Malone and B.L. Malone and Associates, Inc. ("the negligence and
wantonness claims"), are not defeated by the litigation privilege, as well
as his conclusion that the main opinion "could lead to the dismissal of
meritorious claims." ___ So. 3d at ___ (Mitchell, J., concurring in part and
concurring in the result).
The majority concludes that the statutory counselor–patient
privilege, § 34-8A-21, Ala. Code 1975, takes precedence over the common-
law litigation privilege that provides immunity from liability for claims
based on relevant statements made for the purpose of a judicial
proceeding. Despite Justice Mitchell's protestations to the contrary, the
reasoning for that conclusion is simple and straightforward. It starts by
recognizing that the negligence and wantonness claims are grounded in
the counselor-patient privilege. This is patently obvious, given what
39
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Borden alleged in his complaint: that Malone was J.B.'s counselor; that
the letter Malone wrote to Kathy Smith's counsel divulged numerous
statements and mental impressions J.B. had shared with Malone in
counseling sessions; and specifically that "[d]efendant Malone negligently,
wantonly, or willfully breached and violated numerous ethical rules and
regulations by serving in multiple, conflicting capacities ... for ... J.B." and
that, as a result of Malone's breaches of confidence, J.B. "suffer[ed] severe
emotional distress, mental anguish, fear, humiliation, nervousness, stress,
embarrassment and other injuries and damages described above and
herein."7 The majority then recognizes that the counselor-patient
7I also note that, in his appellate brief to this Court, Borden
specifically argued:
"As to the portion of the [negligence and wantonness] claim on
J.B.'s behalf, Ex parte Holm, 283 So. 3d 776 [(Ala. Civ. App.
2019)], makes it clear that it would be improper and in clear
violation of privilege and privacy laws and statutes concerning
that of a child and his licensed professional counselor for
Malone to release information about J.B. unless J.B. waived
his privilege. In turn, the complaint more than sufficiently
pleaded that J.B. had not waived (and could not validly waive)
the privilege and that Malone's actions were negligent and
unprofessional."
40
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privilege is a privilege conferred by statute, § 34-8A-21, which did not
exist at common law.8 Thus, § 34-8A-21 stands on its own, and it does not
state that the privilege can be violated if a counselor's statements are
made in contemplation of a judicial proceeding. It follows that the
Borden's appellate brief, p. 27. As the majority opinion explains, Ex parte
Holm, 283 So. 3d 776 (Ala. Civ. App. 2019), concluded that the counselor-
patient privilege took precedence over a father's right to access medical
records of his minor child under § 30-3-154, Ala. Code 1975. Thus, Borden
plainly alleged and argued that the litigation privilege did not protect
Malone and the clinic from liability for Malone's violations of the
counselor-patient privilege held by J.B.
8Unlike the attorney-client privilege, which "is a creature of the
common law," Advisory Committee's Notes to Rule 502, Ala. R. Evid., the
psychotherapist-patient privilege, which was created in 1963 with the
enactment of § 34-26-2, Ala. Code 1975, and the counselor-patient
privilege, which was created in 1979 with the enactment of § 34-8A-21,
were new confidentiality privileges in the law. See, e.g., Deirdre M.
Smith, An Uncertain Privilege: Implied Waiver and the Evisceration of
the Psychotherapist-Patient Privilege in the Federal Courts, 58 DePaul
L. Rev. 79, 91 (2008) (noting that "[f]ew evidentiary privileges were
recognized at common law and, therefore, state legislatures took the lead
in establishing new privileges from the nineteenth century to the present"
and that "many privileges -- including the psychotherapist-patient
privilege -- came about by intensive lobbying efforts by professionals
seeking special status for their communications"). Despite its lack of
common-law pedigree, the psychotherapist-patient privilege at least
"represents a nationally recognized privilege principle," whereas the
counselor-patient privilege "is generally not found in the primary body of
evidence law nationally." Advisory Committee's Notes to Rule 503A, Ala.
R. Evid.
41
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common-law litigation privilege does not provide protection against claims
seeking liability for breaches of the counselor-patient privilege. Cf.
Palmer v. Bice, 28 Ala. 430, 431 (1856) (observing that "[a]s the right is
the creature of the statute, its extent must be determined by the statute").
In his special writing, Justice Mitchell employs a canon of
construction that provides that there is a presumption against changes in
the common law to argue that the legislature in enacting § 34-8A-21 had
to expressly state that the counselor-patient privilege takes precedence
over the common law in order for a claim based on that privilege not to be
covered by the litigation privilege. Aside from the fact that neither
Borden nor Malone and the clinic mention this canon in their arguments,
it simply does not belong in the analysis of this issue. The presumption
against changes in the common law becomes relevant when a statute
alters or contravenes a common-law claim or rule. All the statutes Justice
Mitchell cites as examples that expressly state that they supersede the
common law do so precisely because the legislature was altering or
42
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abolishing a common-law rule.9 However, when the legislature invents
something new, be it a cause of action, a right, or a privilege, that did not
exist in the common law, this presumption canon necessarily does not
apply because it is plain that the legislature intends not to follow the
common law when it creates something wholly new.10
If a reliance on canons of construction is necessary in this case -- and
I do not believe that it is -- then we should employ the most fundamental
principle of statutory construction: that we apply the plain meaning of the
text of the law at issue. See, e.g., Mobile Infirmary Med. Ctr. v. Hodgen,
884 So. 2d 801, 814 (Ala. 2003) ("The fundamental principle of statutory
construction is that words in a statute must be given their plain
meaning."). Section 34-8A-21 provides:
9Section 35-4A-8, Ala. Code 1975, is part of Alabama's Uniform
Statutory Rule Against Perpetuities; § 8-27-6, Ala. Code 1975, is part of
the Alabama Trade Secrets Act; and § 34-27-87, Ala. Code 1975, is part of
the Alabama Real Estate Consumer's Agency and Disclosure Act, and it
speaks to alterations in the common law of agency.
10Legions of examples could be cited, but one should suffice. The
Dram Shop Act, § 6-5-71, Ala. Code 1975, created a cause of action that
did not exist at common law. The statute does not state that it supersedes
the common law because, quite obviously, there was no need to do so when
no such cause of action existed at common law.
43
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"For the purpose of this chapter, the confidential
relations and communications between licensed professional
counselor or certified counselor associate and client are placed
upon the same basis as those provided by law between
attorney and client, and nothing in this chapter shall be
construed to require any such privileged communication to be
disclosed."
Nothing in the text of § 34-8A-21 itself indicates that the litigation
privilege constitutes an exception to the protection that statute affords to
the confidential communications described therein.
The majority opinion notes that the reasoning from cases involving
the psychotherapist-patient privilege can be used to address issues
involving the counselor-patient privilege because the two privileges are
closely aligned. ___ So. 3d at ___.
"This Court has stated that 'the Alabama legislature did not
limit the [psychotherapist-patient] privilege with specific
exceptions,' [Ex parte United Serv. Stations, Inc.,] 628 So. 2d
[501,] 504 [(Ala. 1993)], but that that 'privilege, however, is
subject to certain judicially created exceptions,' Id. (citing
cases in which this Court has recognized exceptions to the
privilege)....2
____________________
"2Rule 503(d), Ala. R. Evid., also contains a list of
judicially created exceptions."
44
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Ex parte Pepper, 794 So. 2d 340, 343 (Ala. 2001). Similarly, the only
stated exceptions to the counselor-patient privilege are listed in
Rule 503A(d), Ala. R. Evid. Those exceptions are:
"(1) Proceedings for Hospitalization. In proceedings to
hospitalize the client for mental illness, there is no privilege
under this rule for communications relevant to an issue in
those proceedings if the counselor or counselor associate has
determined, in the course of counseling, that the client is in
need of hospitalization.
"(2) Examination by Order of Court. If the court orders
an examination of the mental or emotional condition of a
client, whether a party or a witness, communications made in
the course thereof are not privileged under this rule with
respect to the particular purpose for which the examination is
ordered, unless the court orders otherwise.[11]
"(3) When the Client's Condition Is an Element of a
Claim or a Defense. There is no privilege under this rule as to
a communication relevant to an issue regarding the mental or
emotional condition of the client, in any proceeding in which
the client relies upon the condition as an element of the client's
claim or defense, or, after the client's death, in any proceeding
in which any party relies upon the condition as an element of
the party's claim or defense.
11Obviously, the evaluation of the negligence and wantonness claims
would be different if the trial court in the custody-modification proceeding
had ordered Malone to examine J.B. and to testify on the basis of that
examination.
45
1190327
"(4) Breach of Duty Arising Out of the Counselor-Client
Relationship. There is no privilege under this rule as to an
issue of breach of duty by the counselor, counselor associate,
or victim counselor to the client or by the client to the
counselor, counselor associate, or victim counselor.
"(5) Victim Counseling in Civil Cases. There is no
privilege under this rule in civil cases as to a communication
made to facilitate victim counseling when the person
conducting the counseling is neither a licensed professional
counselor nor a counselor associate, except that under no
circumstances may a victim counselor or a victim be compelled
to provide testimony in any proceeding that would identify the
name, address, location, or telephone number of a 'safe house,'
abuse shelter, or other facility that provided temporary
emergency shelter to the victim of the offense or transaction
that is the subject of the proceeding, unless the facility is a
party to the proceeding."
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Rule 503A(d), Ala. R. Evid.12 The Advisory Committee Notes to Rule 503A
indicate that the rule and its exceptions were derived from §§ 15-23-40
to -4613 and §§ 34-8A-1 to -21, Ala. Code 1975, as well as from exceptions
that already existed for the psychotherapist-patient privilege listed in
Rule 503(d), Ala. R. Evid. There is no indication from this list of
12I cite Rule 503A(d), Ala. R. Evid., as additional support for the
reasoning employed in the majority opinion, but, as its absence from the
majority opinion shows, the rule is not necessary to reach the conclusion
that the litigation privilege does not shield a defendant from a claim based
on the counselor-patient privilege.
Justice Mitchell makes much of the fact that the litigation privilege
is an immunity defense, whereas, "[t]he counselor-patient privilege ... is
a rule of evidence." ___ So. 3d at ___ (Mitchell, J., concurring in part and
concurring in the result). I certainly grant that distinction. See, e.g.,
Eileen A. Scallen, Relational and Informational Privileges and the Case
of the Mysterious Mediation Privilege, 38 Loy. L.A. L. Rev. 537, 595 n.4
(2004) ("Evidentiary privileges are different from substantive privileges.
Substantive privileges partly or completely shield the holder from liability
for certain claims. ... Evidentiary privileges, however, only shield the
holder from providing certain evidence."). But I fail to see its relevance
here because Borden did not cite the counselor-patient privilege to exclude
testimony in this case; instead, it serves as the underlying basis for the
negligence and wantonness claims.
13Sections 15-23-40 to -46, Ala. Code 1975, concern the privilege for
communications between the victim of sexual assault or family violence
and a victim counselor.
47
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exceptions that other exceptions to the counselor-patient privilege are
available to defeat liability for a breach of such confidentiality.14
The majority notes that the public policy behind the psychotherapist-
patient privilege, upon which the counselor-patient privilege is modeled,
is to
" ' "inspire confidence in the patient and
encourage him in making a full
disclosure to the physician as to his
symptoms and condition, by preventing
the physician from making public
information that would result in
humiliation,
embarrassment,
or
disgrace to the patient, and [is] thus
designed to promote the efficacy of the
physician's advice or treatment. The
exclusion of the evidence rests in the
public policy and is for the general
interest of the community." ' "
___ So. 3d at ___ (quoting Ex parte University of South Alabama, 183
So. 3d 915, 921 (Ala. 2015), quoting in turn Ex parte Rudder, 507 So. 2d
14This conclusion follows from the negative-implication canon, i.e.,
" 'expressio unius est exclusio alterius,' (the expression of one thing is the
exclusion of another). Under this maxim, if a statute specifies one
exception to a general rule, there are no other exceptions to the rule."
Glencoe Paving Co. v. Graves, 266 Ala. 154, 157, 94 So. 2d 872, 875 (1957).
48
1190327
411, 413 (Ala. 1987)). That public policy also counsels against further
exceptions than those already listed. Cf. Deatherage v. State of
Washington, Examining Bd. of Psychology, 134 Wash. 2d 131, 136, 948
P.2d 828, 830 (1997) (noting that "[t]he privilege of absolute witness
immunity creates an 'extraordinary breadth' of protection and should not
be extended absent the existence of compelling public policy
justifications"). Indeed,
"this Court in Ex parte Pepper, 794 So. 2d 340, 343 (Ala. 2001),
refused to create 'an exception to the [psychotherapist-patient]
privilege applicable when a party seeks information relevant
to the issue of the proximate cause of another party's injuries.'
In Ex parte Northwest Alabama Mental Health Center, 68 So.
3d 792, 799 (Ala. 2011), this Court refused to create 'an
exception to the privilege that would narrow those parameters
by making the privilege inapplicable when a plaintiff
establishes that privileged information is "necessary" to
proving a cause of action.' "
Ex parte University of South Alabama, 183 So. 3d at 921. In reaching its
conclusion in Ex parte Northwest Alabama Mental Health Center, 68
So. 3d 792 (Ala. 2011), the Court reasoned, in part:
"Northwest and Newman argue that the Alabama Rules
of
Evidence
state
five
exceptions
to
the
psychotherapist-patient privilege, see Rule 503(d), and that
the situation presented here falls into none of those five
49
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exceptions. In the face of those five exceptions, we decline to
use our adjudicatory authority over an individual case such as
this to create an additional exception in the interest of 'public
policy.' ' " 'The term "public policy" is inherently not subject to
precise definition.... "Public policy is a vague expression, and
few cases can arise in which its application may not be
disputed...." ' " ... Such creations are best left to the
legislature.' Hinrichs v. Tranquilaire Hosp., 352 So. 2d 1130,
1131 (Ala. 1977) (quoting Petermann v. International
Brotherhood of Teamsters, 174 Cal. App. 2d 184, 188, 344 P.2d
25, 27 (1959)). We agree that such creations are best left to
the legislature, or perhaps to the normal rule-making
authority of this Court. See 25 Charles Alan Wright &
Kenneth W. Graham, Jr., Federal Practice & Procedure:
Evidence § 5542 (1989) ('If there is not an applicable exception
to a statutory patient's privilege, courts have no power to
create exceptions by judicial decision.').
"....
"The legislature has established parameters for the
psychotherapist-patient
privilege,
namely,
that
'the
confidential relations and communications between licensed
psychologists, licensed psychiatrists, or licensed psychological
technicians and their clients are placed upon the same basis as
those provided by law between attorney and client.' Ala. Code
1975, § 34–26–2. ...
"Having concluded that none of the recognized exceptions
to the privilege apply here and that this Court should not in
this proceeding create a new exception to the privilege, the
only remaining question is whether Johnson waived that
privilege."
68 So. 3d at 798–800 (emphasis added).
50
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The fact that the litigation privilege is not a "new" principle does not
alter the applicability of the foregoing reasoning. Indeed, the fact that the
litigation privilege has existed for so long makes its absence from the
listed exceptions to the attorney-client privilege in Rule 502(d), Ala. R.
Evid., to the psychotherapist-patient privilege in Rule 503(d), Ala. R.
Evid., and to the counselor-patient privilege in Rule 503A(d), Ala. R. Evid.,
as well as the dearth of discussion concerning the litigation privilege in
cases concerning those confidentiality privileges, all the more conspicuous.
In short, the statutory language, the public policy behind the counselor-
patient privilege, and our cases addressing the very similar
psychotherapist-patient privilege all indicate that the common-law
litigation privilege is not an exception to the counselor-patient privilege.
Finally, aside from his objections to the majority's rationale, Justice
Mitchell's own rationale for reversing the dismissal of the negligence and
wantonness claims also has flaws. Justice Mitchell argues that the
negligence and wantonness claims are not covered by the litigation
privilege because they do not contain the same elements as an invasion-of-
privacy claim. However, Borden never suggested in any of his
51
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submissions to the trial court or in his briefs to this Court that the
litigation privilege applies solely to defamation and invasion-of-privacy
claims. I note that, absent clear statutory proscriptions, the trend
throughout the country has been for courts to apply the litigation privilege
to all civil claims based on statements made in view of a judicial
proceeding. See, e.g., Ogbin v. Fein, Such, Kahn & Shepard, P.C., 414 F.
App'x 456, 458 (3d Cir. 2011) (not selected for publication in the Federal
Reporter) (dismissing plaintiff's claims of intentional misrepresentation
and negligence because they fell "squarely within the scope of the New
Jersey litigation privilege"); Creamer v. Danks, 863 F.2d 1037, 1037 (1st
Cir. 1988) ("[T]he absolute privilege for statements made in the course of
judicial proceedings bars not only plaintiffs' defamation claim, but all the
causes of action alleged against defendant, including negligence for
professional malpractice." (applying Maine law)); McCullough v. Kubiak,
158 So. 3d 739, 741 (Fla. Dist. Ct. App. 2015) ("[T]he circuit court's proper
dismissal of the plaintiffs' defamation actions based on absolute privilege
also bars the plaintiffs' negligence actions for the same reason."); Estate
of Mayer v. Lax, Inc., 998 N.E.2d 238, 249 (Ind. Ct. App. 2013) ("Other
52
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torts related to defamation, or relying upon defamatory statements as
proof of wrongdoing, may also be barred by the absolute privilege."); Jones
v. Coward, 193 N.C. App. 231, 235, 666 S.E.2d 877, 880 (2008) (dismissing
plaintiff's claims of intentional infliction of emotional distress and
negligence based off allegedly false statements made during judicial
proceedings).
Justice Mitchell's rationale requires an examination of why the
litigation privilege has been consistently expanded beyond its origin in
defamation claims, including by this Court in Butler v. Town of Argo, 871
So. 2d 1 (Ala. 2003), which applied the litigation privilege to
invasion-of-privacy claims. To support its expansion of the litigation
privilege, the Butler Court cited Restatement (Second) of Torts § 652F
(1977). See 871 So. 3d at 24. The commentary to that section states in
part: "The circumstances under which there is an absolute privilege to
publish matter that is an invasion of privacy are in all respects the same
as those under which there is an absolute privilege to publish matter that
is personally defamatory." Restatement (Second) of Torts § 588 (1977)
concerns the litigation privilege for witnesses, and the commentary to that
53
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section states in part: "The function of witnesses is of fundamental
importance in the administration of justice. The final judgment of the
tribunal must be based upon the facts as shown by their testimony, and
it is necessary therefore that a full disclosure not be hampered by fear of
private suits for defamation." In short, the policy behind the litigation
privilege -- the need for participants in judicial proceedings to speak freely
so as to establish the true facts -- could apply just as readily to statements
made negligently or wantonly as it does to defamatory statements or
statements that implicate an invasion of privacy. To conclude simply that
the elements of a negligence claim are not the same as an invasion-of-
privacy claim does not address the crux of the issue concerning the scope
of the litigation privilege.
54
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PARKER, Chief Justice (concurring in part and concurring in the result).
I join Justice Mitchell's special writing except as to his suggestion
that this Court should revise its abrogation framework to hold that the
Legislature may abrogate the common law by "clear" means. I would
retain the present rule that the Legislature must expressly state that the
common law is abrogated in order to alter it.
55
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MITCHELL, Justice (concurring in part and concurring in the result ).
I concur with the majority concerning all of the plaintiff's claims,
except
I
concur
only
in
the
result
with
respect
to
the
"negligence/wantonness/willfulness" claims asserted on behalf of J.B.
("the negligence and wantonness claims"). Because I do not believe that
abrogation of the common-law litigation privilege occurred here, I write
separately to explain why I would still reverse the judgment on the
ground that the negligence and wantonness claims are not within the
scope of the litigation privilege.
The Litigation Privilege Has Not Been Abrogated Here
The majority opinion holds that the litigation privilege does not
apply to the negligence and wantonness claims because the privilege was
abrogated by the counselor-patient privilege created by § 34-8A-21, Ala.
Code 1975. ___ So. 3d at ___. Since § 34-8A-21 does not include an
express exception for the litigation privilege, the majority concludes that
the litigation privilege "must give way" to the statutory right of
confidentiality. ___ So. 3d at ___. I disagree.
56
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It is true that the common law can be abrogated if it is "inconsistent
with the Constitution, laws and institutions of this state" or is "altered or
repealed by the Legislature." § 1-3-1, Ala. Code 1975. But our Court has
consistently held that the common law may be abrogated only if the
Legislature does so expressly. See, e.g., West Dauphin Ltd. P'ship v.
Callon Offshore Prod., Inc., 725 So. 2d 944, 952 (Ala. 1998) (" '[S]tatutes
are presumed not to alter the common law in any way not expressly
declared.' " (quoting Arnold v. State, 353 So. 2d 524, 526 (Ala. 1977)));
Ex parte Parish, 808 So. 2d 30, 33 (Ala. 2001) (" 'If the legislature had
intended to [abrogate the common law], that body would have made its
intention evident and unmistakable.' " (quoting Holmes v. Sanders, 729
So. 2d 314, 316–17 (Ala. 1999))); Ex parte Key, 890 So. 2d 1056, 1061 (Ala.
2003) (holding that the common-law year-and-a-day rule survived
"because the Legislature did not expressly abolish [the rule] when it
reenacted the Criminal Code").
Indeed, the Legislature has expressly abrogated the common law
numerous times in statutes. See, e.g., § 35-4A-8, Ala. Code 1975 ("This
chapter supersedes the rule of the common law known as the rule against
57
1190327
perpetuities."); § 8-27-6, Ala. Code 1975 ("Those provisions of this chapter
that are inconsistent with the common law of trade secrets supersede the
common law ...."); § 34-27-87, Ala. Code 1975 ("The duties of licensees as
specified in this article ... shall supersede any duties of a licensee ... which
are based upon common law principles of agency to the extent that those
common law duties are inconsistent with the duties ... as specified in this
article."). The Legislature could have done so again when it enacted
§ 34-8A-21. But it clearly didn't.
Applying our precedent, it is obvious that no express abrogation
occurred here. Section 34-8A-21 does not expressly abrogate the common
law, and no one argues that it does. Therefore, it is inappropriate to
reverse the trial court's judgment as to the negligence and wantonness
claims on that ground.
I would be open to revising our Court's abrogation framework by
adopting what I believe is a more reasonable rule promoted by Justice
Antonin Scalia and Bryan Garner. Under their approach, "[a] statute will
be construed to alter the common law only when that disposition is clear."
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
58
1190327
Legal Texts § 52, at 318 (Thomson/West 2012). This approach accounts
for the commonsense conclusion that a legislature need not expressly state
that the common law is abrogated when it passes a law incompatible with
a common-law rule; the abrogation occurs by the very nature of the
incompatibility. Thus, a legislature could "clearly" abrogate the common
law in other ways, including by unmistakable implication.
But the majority's conclusion would not hold up even under this
more forgiving approach because there is no fundamental incompatibility
between the common-law litigation privilege and the counselor-patient
privilege. In fact, the two are different concepts serving different
purposes. The litigation privilege is a defense that governs who may
proceed with a claim, and the counselor-patient privilege is an evidentiary
rule that governs what communications are admissible.
Although repeatedly referred to as a "privilege" in our cases, the
litigation privilege is in fact a defense that is a species of immunity. See
Barnett v. Mobile Cnty. Pers. Bd., 536 So. 2d 46, 51-52 (Ala. 1988)
(referring to the litigation privilege as a "special immunity"); O'Barr v.
Feist, 292 Ala. 440, 446, 296 So. 2d 152, 157 (1974) (" ' "[The litigation
59
1190327
privilege] denies to the defamed party any remedy through an action for
libel and slander." ' " (quoting Adams v. Alabama Lime & Stone Corp., 225
Ala. 174, 176, 142 So. 424, 425 (1932), quoting another case) (emphasis
added)). Where applicable, immunities serve as defenses that bar a
plaintiff from even proceeding with his claim. In that vein, the litigation
privilege serves as an absolute bar in appropriate cases unless waiver has
occurred. O'Barr, 292 Ala. at 446, 296 So. 2d at 157. Hence the existence
of its alternative name in our jurisprudence: the absolute privilege. See,
e.g., Hollander v. Nichols, 19 So. 2d 184, 195 (Ala. 2009) (referring to the
litigation privilege as the "absolute privilege").
The counselor-patient privilege, by contrast, is a rule of evidence.
The special concurrence argues -- for the first time by anyone in this case
-- that the counselor-patient privilege's manifestation in Rule 503A(d),
Ala. R. Evid., abrogates the litigation privilege because the rule lacks an
exception for it. ___ So. 3d at ___ (Mendheim, J., concurring specially).
Using the negative-implication canon, the special concurrence reasons
that the absence of the litigation privilege from the list of exclusions in
60
1190327
Rule 503A(d) means that it must yield to the counselor-patient privilege.
Id. at n.14. That is not so.
The counselor-patient privilege is a rule of admissibility. Like other
rules of evidence, it governs what can and cannot be considered by a
tribunal in reaching a final judgment. Rules of evidence serve as a
filtering mechanism within matters that have already found their way
into the courthouse; immunities lock the door. Evidentiary rules and
immunities are not fundamentally incompatible concepts -- the former
deals with how a party may prove his claim, while the latter deals with
whether a party may even proceed with his claim. Because there is no
clear legislative directive to disregard the common-law litigation privilege,
I would conclude it can continue to operate alongside § 34-8A-21.
Negligence and Wantonness Are Outside
the Scope of the Litigation Privilege
All that said, I don't believe it is necessary here to consider the
complex interplay between statutes and common law. Rather, I would
send the negligence and wantonness claims back to the trial court on
narrower grounds -- by holding that those claims are not within the scope
61
1190327
of the litigation privilege. As the majority observes, our cases historically
applied the litigation privilege only to defamation claims. See Lawson v.
Hicks, 38 Ala. 279, 285 (1862); Walker v. Majors, 496 So. 2d 726, 729-30
(Ala. 1986); Hollander v. Nichols, 19 So. 3d 184, 195 (Ala. 2009) ("This
Court has recognized that a party that has published allegedly defamatory
matter in the course of a judicial proceeding may claim, as a defense to a
defamation action based on that publication, the absolute privilege
described in the Restatement (Second) of Torts § 587 (1977)." (emphasis
added)). This Court expanded the application of the privilege to include
"the publication of any matter that amounts to an invasion of privacy."
Butler v. Town of Argo, 871 So. 2d 1, 24 (Ala. 2003) (emphasis added).
Thus, a party can invoke the litigation privilege if the claim against him
sounds in defamation or privacy tort.
The negligence and wantonness claims here are not defamation
claims. So the question becomes whether those claims amount to an
invasion of privacy. Alabama law recognizes four claims under the
invasion-of-privacy umbrella: (1) wrongful intrusion; (2) publication that
violates ordinary decencies; (3) false light; and (4) appropriation of some
62
1190327
element of a plaintiff's personality. See Phillips v. Smalley Maint. Servs.,
435 So. 2d 705 (Ala. 1983) (wrongful intrusion); Smith v. Doss, 251 Ala.
250, 37 So. 2d 118 (1958) (indecent publication); Cottrell v. National
Collegiate Athletic Ass'n, 975 So. 2d 306 (Ala. 2007) (false light); Norris
v. Moskin Stores, Inc., 272 Ala. 174, 132 So. 2d 321 (1961) (appropriation
of image). Our menu of privacy claims closely mirrors those included in
the definition of "Invasion of Privacy" in the Restatement, which Butler
cited when broadening the scope of the litigation privilege. See
Restatement (Second) of Torts § 652A (1977). Accordingly, it appears
these are the types of claims that fall within the litigation privilege.
It is clear that the plaintiff did not plead a claim under the
invasion-of-privacy umbrella. He filed negligence and wantonness claims.
Those causes of action do not constitute an invasion of privacy -- which
means they are not covered by the litigation privilege. In my view, that
is a better way to reach the holding as to the negligence and wantonness
claims, making it unnecessary to engage with how § 34-8A-21 interacts
with the common law.
63
1190327
Conclusion
By engaging in abrogation analysis, the majority opinion implies
that negligence and wantonness claims (if not abrogated by a statute like
§ 34-8A-21) may fall within the scope of the litigation privilege. We have
never expanded the reach of the privilege that far, and we should not do
so now. In my view, that portion of the majority opinion only serves to
encourage a broader-than-intended use of the privilege by future litigants,
which could lead to the dismissal of meritorious claims.
Our cases require express abrogation. That didn't happen here. And
even under Justice Scalia and Garner's formulation, which I believe is a
better approach to analyzing abrogation, the Legislature is required to act
clearly. That didn't happen either. It is far easier -- and in my view
correct -- simply to hold what we have always held: that claims other than
those alleging defamation and invasion of privacy are outside the scope of
the litigation privilege.
64 | November 25, 2020 |
c66acb78-5975-4350-a67f-0bf8eecaa231 | Ex parte DeSean Henderson. | N/A | 1200085 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 11, 2020
1200085
Ex parte DeSean Henderson. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: DeSean Henderson v. State
of Alabama) (Tuscaloosa Circuit Court: CC-17-3904; Criminal Appeals :
CR-19-0425).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 11, 2020:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 11th day of Decem ber, 2020.
Clerk, Supreme Court of Alabama | December 11, 2020 |
506a0f77-d9ff-4a75-a974-7efea93753c9 | Ex parte S.E. | N/A | 1191042 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 11, 2020
1191042
Ex parte S.E. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: S.E. v. State of Alabama) (Mobile Circuit
Court: CC-16-4814; CC-16-4815; Criminal Appeals :
CR-18-0593).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 11, 2020:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 11th day of Decem ber, 2020.
Clerk, Supreme Court of Alabama | December 11, 2020 |
d8dc00c6-d5be-4864-91da-f26ec43614d7 | Ex parte G.L.Y. | N/A | 1191020 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1191020
Ex parte G.L.Y. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: G.L.Y. v. State of Alabama) (Cullman
Circuit Court: CC-18-698; Criminal Appeals :
CR-19-0521).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
914c1ce3-8a64-4241-9d15-36cf4cba8e61 | Plaintiff v. Defendant | N/A | 1190589 | Alabama | Alabama Supreme Court | REL: December 11, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190589
____________________
Mark Caton
v.
City of Pelham
Appeal from Shelby Circuit Court
(CV-16-900518)
MENDHEIM, Justice.
1190589
Mark Caton appeals from a summary judgment entered by the
Shelby Circuit Court in favor of the City of Pelham ("the City"), in his
action alleging retaliatory discharge against the City. We affirm.
I. Facts
Caton began a career as a police officer with the City of Birmingham
in 1990. In approximately 2001, he was hired as a police officer by the
City. In 2004, while he was still a police officer, Caton injured his neck
when he was wrestling with a suspect. Caton did not receive treatment
for his neck at the time, but the pain from the injury gradually increased.
In April 2006, Caton transferred from the Pelham Police Department to
the Pelham Fire Department. On June 26, 2012, Caton had a vertebrae-
fusion surgery.
On July 7, 2015, Caton was participating in a job-training exercise
with fellow firefighters. While some of the crew he worked with were
testing a fire engine, Caton pulled a three-inch fire hose off the bed of the
truck and began throwing it on the ground. Caton then began to feel his
neck spasming and hurting. Caton informed his supervisor, Timmy
Honeycutt, of the injury. A couple of days later, Caton informed
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Honeycutt that he needed to see a doctor, and Caton went to Pelham
Urgent Care, which prescribed muscle relaxers and told him that, if he did
not get better, he would be referred to a specialist. Caton's pain did not
subside, and he subsequently was referred to Dr. Thomas Powell, an
orthopedic specialist. Dr. Powell began treating Caton in September 2015,
and Caton visited Dr. Powell approximately four times over the course of
two months. On November 16, 2015, Dr. Powell determined that Caton
had reached maximum medical improvement with a zero percent
impairment rating. Dr. Powell believed that Caton could return to
regular-work duty with no restrictions. Caton testified that Dr. Powell did
not inform him about the zero percent impairment rating.
Caton testified that, despite being cleared for work, the pain in his
neck was so severe that he could not even put on a fire helmet without
experiencing intense pain. Consequently, he requested from his worker's
compensation insurer a panel of four doctors so that he could select a new
doctor for treatment. In December 2015, while Caton waited to be given
the panel of doctors, he stopped going to work at the fire station. On
December 29, 2015, Pelham Fire Chief Danny Ray (hereinafter
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"Chief Ray") had a telephone conversation with Caton about his absences;
Deputy Fire Chief Blair Sides was present with Chief Ray for the call and
heard the conversation because Chief Ray put Caton on speaker phone.
During the conversation, Chief Ray informed Caton that he would need to
show up for his next shift and that he would need to produce a doctor's
excuse for his previous absences. Caton stated that he did not have a
doctor's excuse because he had not been able to pick a new doctor for
treatment. Despite this information, Chief Ray warned Caton that he
needed to show up for his next shift. It is undisputed that on
December 31, 2015, Caton did not show up for his next shift and, as a
result, he was given a written employee warning notice and suspended for
a shift without pay.
In January 2016, Caton was given the names of a panel of four
doctors from which to select treatment. He selected Dr. E. Carter Morris
with the Birmingham Neurosurgery and Spine Group. Dr. Morris
diagnosed Caton with a nerve impingement at the C4-5 vertebrae of his
neck and took Caton off full-work duty. Dr. Morris also provided Caton
with two nerve-block injections, which gave Caton temporary relief from
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his pain. On March 3, 2016, Dr. Morris determined that Caton was at
maximum medical improvement and that he had a zero percent
impairment rating. Caton was told he could return to work with light
duty for one week, after which he would return to full duty.
On March 9, 2016, Caton had an argument with Chief Ray
concerning the amount of time Caton had taken off from work. Chief Ray
informed Caton that he would need a doctor's excuse for the time he had
taken off, and Caton stated that he had no doctor's excuse because he had
not been able to see a doctor during that period. Chief Ray stated that,
without an excuse, Caton's previous paid time off would be counted
against him during current work periods. Caton expressed that he
wanted to record the conversation with his cellular telephone, but
Chief Ray refused to continue the conversation if it was being recorded,
and Chief Ray subsequently left the fire station. Because of this incident,
Caton was given another employee warning notice, and he was suspended
from work until March 30, 2016, for failure to provide a doctor's excuse for
missed time and for insubordination.
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In early June 2016, while Caton was on full work duty with his fire
crew, they were dispatched to Oak Mountain State Park to help a hiker
who had injured her ankle. Caton, along with other members of the crew,
took turns carrying the hiker out of the park on a stretcher. Caton
aggravated and reinjured his neck during this task, and, as a result, he
filed another notice of injury. Caton testified that he returned to Dr.
Morris following this reinjury and that Dr. Morris told Caton that he
would perform surgery on Caton's neck if his worker's compensation
insurance would cover it, and that the surgery would solve Caton's
problems. However, according to Caton, Dr. Morris did not receive
clearance to perform the surgery; consequently, Dr. Morris told Caton that
there was nothing more he could to do to help Caton.1
1Medical records from Dr. Morris's office indicate that Caton's last
visit to Dr. Morris was in May 2016. Caton telephoned Dr. Morris's office
on June 27, 2016, requesting an appointment to discuss surgery.
Dr. Morris stated in a follow-up note that he "[r]ecommend[s] that [Caton]
see a physiatrist for neck pain. [Caton] does not have a new surgical
problem and I have not recommended that he consider further neck
surgery."
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The City next sent Caton to Dr. Michelle Turnley, a physiatrist2 at
the Workplace Occupational Health Clinic located on the campus of the
University of Alabama at Birmingham ("UAB"). Caton testified that he
was unaware that Dr. Turnley was a "pain-management" doctor; he had
thought that he was being referred to another spine-surgery doctor.
Caton first visited Dr. Turnley on July 26, 2016. Caton testified that
during that visit he had to wait over an hour before being seen, that no
one in the office informed him that he would need to provide a urine
sample to receive pain medications from Dr. Turnley, and that, as a
result, he used the restroom while there but did not provide a sample.
2
"Physical medicine and rehabilitation (PMR), also called
physiatry, is that branch of medicine that focuses on the
prevention, diagnosis, and treatment of disorders of the
musculoskeletal, cardiovascular, and pulmonary systems that
produce impairment and functional disability.
"... This type of physician concentrates on non-surgical
solutions and restoration of bodily function for individuals who
have simple mobility difficulties or more comprehensive
cognitive issues."
Samuel D. Hodge, Jr., The Independent Medical Evaluator, 61 No. 6 Prac.
Law. 31, 36 (Dec. 2015).
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Dr. Turnley's medical notes state that she offered to reinstate the pain
medications Caton had been taking under the direction of previous
physicians, but he refused to sign a pain contract and declined to give a
urine sample. Those notes also state that Dr. Turnley's office assistant
told Caton that he needed to provide a urine sample to receive narcotics
but that he stated that he would do without those drugs. Dr. Turnley
prescribed physical therapy to Caton, which included receiving pain
injections that Caton testified provided him with only temporary relief
from his pain.
On August 23, 2016, Caton met with Dr. Turnley again. On that
visit, Dr. Turnley recommended that Caton undergo a nerve study to gain
further information about his problem, but Caton declined the
recommendation because, he said, he had undergone a nerve study before
that did not help, and he felt "that is not treatment; that's something that
worker's comp people can say that there's nothing wrong with me when
I know there is." Dr. Turnley prescribed more physical therapy for Caton.
Caton testified that following his second visit he experienced intense
pain as a result of his injury, and so he telephoned Dr. Turnley's office and
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asked if there was a way he could get some pain medication or get an
immediate appointment. Dr. Turnley's office scheduled a visit for Caton
for two weeks from that day. On September 21, 2016, Caton visited Dr.
Turnley for the third time. Caton testified that he had to wait an hour
and a half before he was seen. When he was finally seen, Caton asked Dr.
Turnley for pain medication for the next time his pain became too intense,
but Dr. Turnley reminded Caton that on his first visit he had not signed
a pain contract and he had refused to provide a urine sample, so she
declined to give him pain medication. Caton testified:
"I said why aren't you treating me? And she goes, you
don't want to piss me off. Her voice changed, she got -- for lack
of a better word, an attitude. And that's why I said -- so my
voice changed; I don't care -- I don't care if I piss you off at all.
I mean, something to that effect. And that's when she said
this is -- this is over.
"I said why won't you treat me, why won't you do -- I'm
begging her, and she's walking out of the room. And like I
said, my other doctors, I ask questions, they talk to me; she
won't say anything. All she says is you need to leave.
"I said please refer me to Dr. Swaid [who treated Caton
in 2012], refer me to anybody, anything but here, you're not
doing anything for me, you've done nothing. And that's when
she said to the receptionist, call security. I said you don't have
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to call security. I just want an answer to my question, you
know."
Caton further testified that when Dr. Turnley would not help him, he left
her office without engaging with security personnel. He went home and
he called UAB to register a complaint about Dr. Turnley.
Dr. Turnley's patient notes relate the following with respect to the
September 21, 2016, visit:
"[Caton] comes in today fairly aggressively requesting pain
medication. When I attempt to explain for him a rationale for
not giving any he interrupted me [and] used a loud tone. He
became intimidating, stating 'I was going to treat him' and
'you will give me pain medicine.' He was fairly loud and
refused to leave the clinic and UAB police were called.
"....
"[Caton] became verbally aggressive in the clinic. During that
time he was noted to ambulate very quickly with a normal gait
and station, as well as move his neck in a full physiologic
pattern. He did not appear to have any functional deficits.
Additionally, someone in the waiting room saw him sling the
door open like he was about to 'pull it off the hinges'; therefore,
obviously he has no strength deficits."
On October 18, 2016, Dr. Turnley wrote Caton a letter in which she
stated:
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"I would like to take this opportunity to notify you that
I will no longer be your physician. You have been
noncompliant with treatment as well as confrontational in the
office.
You
have
failed
to
follow
my
advice
and
recommendations regarding management. And, there are
significant philosophical differences in our views of medical
care and treatment. I will no longer be able to provide you with
medical services because of these issues. You need to contact
the adjuster on your claim, if you want to see another
physician. ..."
On November 1, 2016, the City terminated Caton's employment.
The termination notice stated that the "[t]ypes of [v]iolation" he had
committed included "[i]nappropriate conduct" and "[v]iolation[s] of
Polices/Procedures." The termination notice listed three times in Caton's
career that he had been given warnings for failure to report to work
without an excused absence, including December 31, 2015. Under
"reasons" for the termination, the notice stated:
"During an unscheduled visit to Dr. Michelle Turnley's
office, your behavior and conduct became so egregious and
irrational, by demanding pain medication, the office personnel
called UAB Police to have you removed from the doctor's office.
This type of unprofessional behavior is not tolerated and does
not represent the City of Pelham image [sic]. Based on this
event, your employment with the City of Pelham is hereby
terminated."
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Caton appealed his termination to the City's Personnel Board, and
a hearing was conducted on December 1, 2016. Both Caton and the City
presented witnesses and testimony at the hearing. The Personnel Board
upheld the City's termination decision.
On November 6, 2016, Caton filed a claim for unemployment
benefits with the Alabama Department of Labor (hereinafter "the
Department"). A claims examiner for the Department determined, citing
§ 25-4-78(3)c., Ala. Code 1975,3 that Caton was partially disqualified from
receiving unemployment compensation benefits because he had been
discharged from his employment for misconduct committed in connection
with work. Caton appealed that determination to an administrative-
hearing officer. On December 14, 2016, Caton was mailed a "Notice of
Unemployment Compensation Hearing" from the Department informing
3The version of § 25-4-78(3)c. applicable at that time listed the
consequences for unemployment compensation eligibility "[i]f [a person]
was discharged from his most recent bona fide work for misconduct
connected with his work [other than acts mentioned in paragraphs a. and
b. of this subdivision (3)]." This Code section was amended effective
January 1, 2020. The changes were not substantive. The language quoted
is from the section as amended.
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him that a hearing on his claim would be held on January 6, 2017, at
3:00 p.m. The notice explained several aspects of the hearing parameters:
"REPRESENTATION: Testimony during the hearing may be
given by either party without representation as it is the
administrative hearing officer's responsibility to assist all
parties in developing the facts in the case. However, if you
wish, you may be represented by an attorney or other
competent individual."
"WITNESSES: If you have any witnesses whom you wish to
testify at the hearing, you must notify them of the time and
arrange for them to be at a telephone. The witnesses'
telephone number[s] should be provided to the administrative
hearing officer at the beginning of the hearing. Any requests
for the issuance of subpoenas should be made immediately to
the hearings and appeals division by calling .... Each party is
entitled to cross-examine opposing witnesses.
"DOCUMENTS: If you have documents or other evidence that
you wish to introduce as exhibits during the hearing, these
should be sent immediately to the hearing officer at the
address shown at the top of your notice of telephone hearing or
fax to ...."
On January 6, 2017, Caton was mailed a second "Notice of Unemployment
Compensation Telephone Hearing" informing Caton that the hearing had
been rescheduled for January 23, 2017, at 3:00 p.m. This second notice
advised Caton of the same information about the hearing as the first
notice. On January 24, 2017, Canton was mailed a third "Notice of
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Unemployment Compensation Telephone Hearing" informing Caton that
the hearing had again been rescheduled, this time for February 3, 2017,
at 11:30 a.m. The third notice, like the previous two, advised Caton about
the parameters of the hearing and his rights to representation, to
subpoena and question witnesses, and to submit documents into evidence
for the hearing.
On February 3, 2017, a hearing was held by telephone before the
administrative-hearing officer. The City was represented at the hearing
by an attorney and the City's mayor. Chief Ray was in attendance. Caton
represented himself; the administrative-hearing officer specifically asked
Caton if anyone was going to represent him in the hearing, and Caton
replied in the negative. Caton did not request testimony from other
witnesses, he did not state that he wanted any documents to be considered
as evidence, and he did not raise any objection to the fact that his claim
was not being decided by a jury. The administrative-hearing officer
explained the issue being determined in the appeal:
"Now, the reason we are here today, [Caton] was
disqualified from a definite period of time under an examiner's
determination. The claimant disagreed with that and filed an
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appeal. The section of law involved today will be 25-4-78(3)c of
the law, which provides for a disqualification if an individual
is discharged from their most recent bona fide work for
misconduct committed in connection with the work.
"So in the hearing today, I would need to determine was
the claimant discharged, was the discharge for an act of
misconduct, was that act of misconduct connected with work,
and any details surrounding the final incident that led to that
termination."
(Emphasis added.) The administrative-hearing officer asked if anyone
had "a question about anything that I've said so far," and Caton answered
"[n]o." All the testifying witnesses were placed under oath. Chief Ray
first testified, discussing the incident between Caton and Dr. Turnley at
her office, disciplinary actions that had been taken against Caton, and
pertinent civil-service laws he believed Caton had violated. Caton was
given the opportunity to ask questions of Chief Ray. He asked one
question, which the City's counsel answered. The City's mayor then
testified concerning the procedures the City used in terminating Caton's
employment. Caton asked the mayor one question:
"MR. CATON: Were there any other cases where an employee
has violated the misconduct, Civil Service misconduct law,
state law, and that he as a department head or mayor has
ignored it?
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"[Administrative-Hearing Officer]: Well, sir, today though,
we're here to discuss, you know, your separation, and I really
can't allow testimony for you know, for other separations
because this today is a fact -- you know, a fact-gathering
mission regarding your separation, sir. So really I would not
deem that as a relevant question for today. Any other
questions at this time, Mr. Caton?
"MR. CATON: No, ma'am, I was just -- you know, the City
has a tendency to pick and choose.
"[Administrative-Hearing Officer]: Yes, sir. And I'll allow that
in your testimony in just a moment, sir, but let's just kind of
move on. ..."
The administrative-hearing officer then heard testimony from Caton.
Caton testified about his perspective of what had occurred at Dr. Turnley's
office on September 21, 2016, he conceded that he had been given
reprimands on three occasions during his employment with the City, and
explained the process that had occurred with respect to the termination
of his employment. Caton was then cross-examined by the City's counsel,
primarily about the incident at Dr. Turnley's office on September 21, 2016,
and his suspension from work in December 2015. Caton was then given
another opportunity to provide additional testimony on his behalf and to
ask any more questions of the other witnesses. The administrative-
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hearing officer ended the hearing by informing all the parties present that
she would issue a written decision and that "[w]hoever disagrees with my
decision, there will be additional appeal rights listed on the decision form
itself."
On February 6, 2017, the administrative-hearing officer issued a
written decision affirming the claim examiner's decision. In part, the
administrative-hearing officer's decision stated:
"On or about October 27, 2016, the [the City's] human
resources manager received a worker's compensation physician
complaint about [Caton] for disrespectful attitude and
behavior toward the physician during an office visit on
September 21, 2016. [Caton] was on worker's compensation
due to an on-the-job injury. ... This behavior is in violation of
the [City's] civil service law adopted by the City as the code of
conduct for all city employees in 1988. As [Caton] was on a
final written warning for an unrelated incident, [Caton] was
discharged on November 1, 2016, by the Mayor for violation of
the standards of conduct policy for conduct unbecoming.
"CONCLUSIONS: Section 25-4-78(3)c of the law
provides that an individual shall be disqualified for total or
partial unemployment if he was discharged from his most
recent bona fide work for misconduct committed in connection
with the work. 'Misconduct' is defined as conduct evincing a
disregard of an employer's interests or of the standard of
behavior which he has the right to expect of his employee. The
employer has the right to expect an employee not to violate a
known company policy. The preponderance of evidence shows
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that [Caton] did violate the company policy. Thus, [Caton] was
discharged for misconduct connected with work and is subject
to disqualification under this section of the law."
Caton appealed the administrative-hearing officer's decision to the
Department's Board of Appeals. On March 24, 2017, the Board of Appeals
issued a decision: "The Board of Appeals, after reviewing the record and
the application for leave to appeal to the Board of Appeals, hereby denies
said application." The notice of this decision advised Caton that he had
a right to appeal the decision to the circuit court under § 25-4-95, Ala.
Code 1975. Caton chose not to exercise his right of appeal.
Caton had filed his original complaint in the Shelby Circuit Court
against the City on June 24, 2016, claiming worker's compensation
benefits for the injury to his neck he sustained on July 7, 2015. Caton's
attorneys of record were Alan K. Bellenger and Gregory Brockwell, both
of whom signed the complaint. Simultaneously with the filing of the
complaint, Caton filed interrogatories, a request for admissions, and a
request for production, all of which also were signed by both Bellenger and
Brockwell. On September 16, 2016, the City filed an answer to the
complaint.
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On March 14, 2017, Caton amended his complaint to allege
retaliatory discharge in violation of § 25–5–11.1, Ala. Code 1975.
Bellenger and Brockwell were both listed as Caton's attorneys of record
in the amended complaint.
On April 3, 2017, Caton and the City filed a Workers' Compensation
Settlement Petition and Agreement. The settlement agreement
specifically exempted from the release Caton's retaliatory-discharge claim.
Also on April 3, 2017, the trial court conducted a settlement hearing, and
on the same date the trial court entered an order approving the
settlement agreement. The settlement order specifically named Bellenger
as Caton's "attorney of record" for an award of attorney fees as part of the
settlement. Also on April 3, 2017, Caton filed a "Satisfaction of Judgment"
that expressly noted that "[t]his does not satisfy [Caton's] claim for
retaliatory discharge, which shall remain pending."
On May 9, 2017, the City filed its answer to the amended complaint.
Among other things, the City pleaded the affirmative defense of collateral
estoppel. On September 6, 2017, the City filed an amended answer in
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which it affirmatively pleaded the defenses of res judicata and collateral
estoppel.
On November 29, 2018, the City filed a motion for a summary
judgment. In that motion, the City argued, among other things, that
Caton was collaterally estopped from asserting a retaliatory-discharge
claim against the City because Caton had been denied unemployment
compensation on the basis of a determination that his employment had
been terminated for misconduct. The City sought to serve the motion
through the Alabama judicial system electronic-filing system, Alacourt, to
Bellenger and Brockwell. However, Brockwell was not registered on the
Alacourt filing system in this case, and, as a result, Brockwell did not
receive the City's summary-judgment motion.
The trial court did not hold a hearing on the City's summary-
judgment motion. On January 4, 2019, the trial court entered an order
granting the City's summary-judgment motion on the basis of collateral
estoppel. Like the motion, the summary-judgment order was not served
on Brockwell.
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On May 3, 2019, after learning about the entry of summary-
judgment order on January 4, 2019, Caton filed a Rule 60(b), Ala. R. Civ.
P., motion to set aside the judgment. In that motion, Caton explained
that his representation in this case had been bifurcated between Bellenger
and Brockwell. Specifically, Bellenger had handled Caton's worker's
compensation claim, and Brockwell was handling Caton's retaliatory-
discharge claim. Thus, according to Caton, Bellenger's representation of
him had ended on April 3, 2017, with the entry of the order approving the
settlement of the worker's compensation claim. The Rule 60(b) motion
asserted:
"Since the settlement of the workers' compensation
claim, [the City's] counsel has been in communication with
[Brockwell] as counsel for [Caton]. [The City] and [the City's]
counsel know that [Brockwell] is the counsel for Caton, not Mr.
Bellenger. Indeed, the last significant activity in the case was
the deposition of [Caton] that was taken by [the City's] counsel
in the offices of [Brockwell] in July, 2018."
The motion further asserted that "it should have been clear to [the City]
that [Caton's] current counsel[, Brockwell,] would not receive electronic
service" because the readout on the Alafile electronic system lists who is
registered to receive documents in each case and it did not list Brockwell.
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Both Caton and Brockwell professed not to know why Brockwell "did not
appear on the electronic service list and did not receive the e-filing
notices" of the summary-judgment motion or the summary-judgment
order.
On May 15, 2019, the City filed a response in opposition to Caton's
Rule 60(b) motion. In that motion, the City asserted that it had intended
to serve both of Caton's attorneys through the Alacourt filing system and
that Bellenger had received all filings, that the City was unaware that
Brockwell had not received the City's summary-judgment motion, that
Bellenger never formally withdrew from representing Caton in the case,
and that the City was unaware that Caton had a bifurcated system of
representation in the case. Based on the foregoing assertions, the City
contended that Caton was served with the November 29, 2018, summary-
judgment motion and the trial court's January 4, 2019, order granting
that motion. It also argued that, even if Caton had not been aware of the
summary-judgment motion or the order granting that motion, Caton was
entirely at fault for any such lack of awareness and that, therefore, the
Rule 60(b) motion should be denied. Finally, the City contended that lack
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of service is an error that may be remedied solely by a motion under
Rule 77(d), Ala. R. Civ. P., and that Caton had failed to file a timely
motion to extend his time for appealing the summary judgment.
On June 27, 2019, Caton filed a supplement to his Rule 60(b) motion
in which he submitted an affidavit from Bellenger. In his affidavit,
Bellenger affirmed that he had represented Caton only during the
worker's compensation portion of the litigation. He added:
"10. My representation of Mr. Caton ended on April 3, 2017.
I have had no further involvement with the matter since
April 3, 2017. This fact is known to [the City's] counsel, Frank
Head, Esq., and was known to him at all relevant times.
"11. After April 3, 2017, I had no reason to communicate
either with Mr. Caton or with Mr. Brockwell. They were
working directly with each other, and Mr. Brockwell was
handling the case from that point forward.
"12. After April 3, 2017, I also had no reason to communicate
with [the City's] counsel. [The City's] counsel was aware that
my involvement had ended and that Mr. Brockwell was
handling the case from that point forward.
"13. At no point was I ever aware that Mr. Brockwell was not
receiving AlaFile notices in the case."
On July 3, 2019, the trial court held a hearing on Caton's Rule 60(b)
motion. On the same day, the trial court entered an order granting
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Caton's motion and set aside the January 4, 2019, summary judgment in
favor of the City. The trial court also set a hearing for the City's
summary-judgment motion for October 16, 2019. On October 14, 2019,
Caton filed a response in opposition to the summary-judgment motion.
Caton attached to his response an affidavit and his deposition in this case.
Following the hearing, on October 21, 2019, the trial court entered
an order denying the City's summary-judgment motion, stating that it was
"satisfied that there are genuine issues of material fact that are not ripe
for summary judgment but rather must be resolved by trial." The case
was eventually set to be tried on March 9, 2020.
On January 29, 2020, the City filed a "Renewed Motion for Summary
Judgment." In its renewed summary-judgment motion, the City focused
solely on its previous contention that Caton's retaliatory-discharge claim
was barred by the doctrine of collateral estoppel because of the conclusion
reached as to the termination of Caton's employment in the
unemployment-compensation proceedings. Unlike in its previous
summary-judgment motion, the City provided a detailed rendition of the
facts in the unemployment-compensation proceedings, and it attached to
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its motion multiple documents from those proceedings, including the
transcript of the telephonic hearing held by the administrative-hearing
officer.
On March 5, 2020, Caton filed a response in opposition to the
renewed summary-judgment motion. In his response, Caton, in part,
contended that in the unemployment-compensation proceedings he was
not given an adequate opportunity to litigate the issue whether he had
been terminated for misconduct, and so the doctrine of collateral estoppel
should not apply in this case. Caton also argued that the motion should
be denied because application of the doctrine of collateral estoppel to his
retaliatory-discharge claim would violate his constitutional right to trial
by jury.
On April 16, 2020, the trial court entered a summary judgment in
favor of the City on the ground that Caton's "retaliatory-discharge claim
is barred by collateral estoppel in accordance with Wal-Mart Stores, Inc.
v. Smitherman, 743 So. 2d 442 (Ala. 1999), and Wal-Mart Stores, Inc. v.
Hepp, 882 So. 2d 329 (Ala. 2003)." The trial court specifically addressed
Caton's contention that he had not been able to adequately litigate in the
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unemployment-compensation proceedings the issue of the reason for the
termination of his employment:
"The submissions by the [City] in its Renewed Motion for
Summary Judgment clearly show [Caton] had an adequate
opportunity to litigate. He had a right to call or subpoena
witnesses for evidentiary purposes, present testimony,
cross-examine witnesses, present or subpoena documents as
evidence, be represented by counsel or otherwise, make
arguments, and have his case decided by a neutral, impartial
hearing officer. [Caton] was advised of his rights. [Caton] was
present and fully participated in the hearing. [Caton] had a
right to appeal the decision of the administrative hearing
officer, and did so, and had a right to appeal the decision of the
State Board of Appeals to the Circuit Court. [Caton] failed to
exercise this right, and did not appeal to the Circuit Court.
The transcript and appeal pleadings and decisions show that
the pertinent issues herein were litigated and decided in the
unemployment compensation proceeding. There has been a
determination that [Caton] was not terminated by the
Defendant for solely instituting or maintaining his workers'
compensation claim, but rather for misconduct in connection
with his work. The Court finds that [Caton's] other
contentions are also without merit."
Caton appealed the trial court's judgment on April 23, 2020.
II. Standard of Review
"Where, as in this case, the defendant moves for a
summary judgment based on an affirmative defense, this
Court applies the following standard of review:
26
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" 'When there is no genuine issue of material fact
as to any element of an affirmative defense, ... and
it is shown that the defendant is entitled to a
judgment as a matter of law, summary judgment is
proper. If there is a genuine issue of material fact
as to any element of the affirmative defense,
summary judgment is inappropriate. Rule 56(c),
Ala. R. Civ. P. In determining whether there is a
genuine issue of material fact as to each element of
an affirmative defense, this Court must review the
record in a light most favorable to the plaintiff (the
nonmoving party) and must resolve all reasonable
doubts against the defendant (the movant).'
"Bechtel v. Crown Central Petroleum Corp., 495 So. 2d 1052,
1053 (Ala. 1986)."
Wal-Mart Stores, Inc. v. Smitherman, 743 So. 2d 442, 444–45 (Ala. 1999),
overruled on other grounds, Ex parte Rogers, 68 So. 3d 773 (Ala. 2010)).
III. Analysis
A. The City's Motion to Dismiss the Appeal
The City has filed a motion to dismiss Caton's appeal. The City
contends that Caton's appeal is untimely because Caton never filed a
notice of appeal from the trial court's January 4, 2019, order entering a
summary judgment for the City. Of course, as we recounted in the
rendition of the facts, the trial court set aside its January 4, 2019, order
27
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in response to a Rule 60(b) motion Caton filed on May 3, 2019. The City
essentially regurgitates the arguments it presented in opposition to
Caton's Rule 60(b) motion before the trial court in contending that the
trial court should not have entertained that Rule 60(b) motion.
Caton contends that we should ignore the City's motion to dismiss
because, he says, it could have immediately challenged the trial court's
October 21, 2019, order that set aside the January 4, 2019, summary
judgment, but declined to do so. It is true that the City could have sought
immediate review of the trial court's October 21, 2019, order through a
mandamus petition. See, e.g., Ex parte A & B Transp., Inc., 8 So. 3d 924,
931 (Ala. 2007) (noting that "[a] petition for the writ of mandamus is a
proper method for attacking the grant of a Rule 60(b) motion"). But it
does not follow that the City was required to seek review by petition for
a writ of mandamus to challenge the October 21, 2019, order. Seeking
review of an order granting relief from a judgment is not like, for instance,
seeking review of a ruling on a motion for a change of venue, which may
be reviewed only through a petition for a writ of mandamus. See, e.g.,
Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297, 302 (Ala. 1986)
28
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(explaining that "[t]he denial of a motion for a change of venue in a civil
action is not such a ruling of the trial court as may be reviewed by this
Court on an appeal from a final judgment in the cause. ... The proper
method for obtaining review of a trial court's ruling on a motion for a
change of venue is by a writ of mandamus"). Instead, the grant of a
Rule 60(b) motion, like most interlocutory trial-court orders, may be
challenged after the trial court's entry of a final order. See, e.g., Cf.
Morton v. Clark, 403 So. 2d 234, 235 (Ala. Civ. App. 1981) (noting that an
order setting aside a default judgment "may ... be reviewable on appeal
after trial on the merits"); 11 Charles Alan Wright et al., Federal Practice
& Procedure § 2871 (3d ed. 2012) ("An order granting a motion under
Rule 60(b) and ordering a new trial is purely interlocutory and not
appealable, although on appeal from a judgment entered after the new
trial the appellate court will review whether it was error to have reopened
the first judgment." (footnote omitted)).
In a related vein, Caton argues that, in order for the City to properly
challenge the October 21, 2019, order setting aside the first summary
judgment, the City needed to file a cross-appeal in this case, which it
29
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failed to do. It is true that ordinarily "interlocutory orders merge with
final judgments" and, therefore, most interlocutory orders may be
appealed once a final judgment is entered. McCormack v. AmSouth Bank,
N.A., 759 So. 2d 538, 541 (Ala. 1999). See also Barnes v. George, 569 So.
2d 382, 383 (Ala. 1990) (allowing challenge to grant of Rule 60(b)(2)
motion for new trial after judgment in the new trial). However, the order
Caton appealed from, the April 16, 2020, order, entered a summary
judgment in favor of the City. "Generally an appeal can be brought only
by a party or his personal representative ... from an adverse ruling ...
contained in a final judgment." Home Indem. Co. v. Anders, 459 So. 2d
836, 842 (Ala. 1984) (citations omitted). The ruling in the April 16, 2020,
order was not adverse to the City. Thus, a cross-appeal was not available
to the City as a means to challenge the October 21, 2019, order that set
aside the first summary judgment in the City's favor. Accordingly, a
motion to dismiss the appeal is the City's only avenue to challenge the
October 21, 2019, order.
That said, the City's arguments in its motion to dismiss are not well
taken. The City argues that Caton's Rule 60(b) motion "was actually the
30
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initiation of a separate, independent proceeding which required a new
filing fee pursuant to § 12-19-70 and 71, [Ala. Code 1975]." City's
Memorandum in Support of Motion to Dismiss, p. 12. Because this Court
has concluded that the failure to pay a filing fee in a new action is a
jurisdictional defect, see Ex parte CVS Pharmacy, LLC, 209 So. 3d 1111,
1115-17 (Ala. 2016), and Caton did not pay such a fee when he filed his
Rule 60(b) motion, the City contends that Caton's Rule 60(b) motion was
due to be dismissed.
This is, frankly, a bizarre argument because, as the Committee
Comments to Rule 60(b) indicate, the ordinary course for seeking relief
under Rule 60(b) is to file a motion in the same case that the filing party
seeks to have reconsidered.
"The normal procedure to attack a judgment under this
rule will be by motion in the court which rendered the
judgment. If the relief does not appear to be available under
the rule, or if relief from the judgment is sought in some other
court than the court which rendered the judgment, the party
should bring an independent proceeding."
Rule 60, Ala. R. Civ. P., Committee Comments on 1973 Adoption. The
City offers no reason why Caton's Rule 60(b) motion had to be brought as
31
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a separate independent proceeding, and we see no reason why a separate
action was required, so no new filing fee was required for the trial court
to entertain Caton's Rule 60(b) motion.4
The City next contends that Caton's Rule 60(b) was really arguing
that he was entitled to relief based on a lack of notice from the circuit
clerk of the January 4, 2019, order entering a summary judgment for the
City. The City notes that this Court has held that "Rule 77(d)[, Ala. R.
Civ. P.,] provides the exclusive remedy in situations where a party claims
lack of notice, and Rule 60(b) cannot be substituted as a method to extend
the time within which to appeal." Lindstrom v. Jones, 603 So. 2d 960, 961
(Ala. 1992). Rule 77(d), Ala. R. Civ. P., provides, in part:
4Even if Caton's proper avenue had been an independent action, the
failure to file his Rule 60(b) motion as a new action would not have been
fatal to the filing. See 2 Gregory Cook, Alabama Rules of Civil Procedure
Annotated Rule 60 (5th ed. 2018) (explaining that "an erroneous choice
between these procedures [a motion or an independent action] is not fatal
to the party attacking the judgment. There is little procedural difference
between the two methods of attack, and since nomenclature is
unimportant, courts have consistently treated a proceeding in form an
independent action as if it were a motion, and vice versa, where one but
not the other was technically appropriate, and any procedural difference
between them was immaterial in the case").
32
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"Immediately upon the entry of an order or judgment the clerk
shall serve a notice of the entry by mail or by electronic
transmittal in the manner provided for in Rule 5 upon each
party who is not in default for failure to appear, and who was
not present in person or by that party's attorney or not
otherwise notified, when such order or judgment was rendered,
and make a note on the docket of the mailing or electronic
transmittal. Such mailing or electronic transmittal is sufficient
notice for all purposes for which notice of the entry of an order
is required by these Rules, but any party may in addition serve
a notice of such entry in the manner provided in Rule 5 for the
service of papers. Lack of notice of the entry by the clerk does
not affect the time to appeal or relieve or authorize the court
to relieve a party for failure to appeal within the time allowed,
except that upon a showing of excusable neglect based on a
failure of the party to learn of the entry of the judgment or
order the circuit court in any action may extend the time for
appeal not exceeding thirty (30) days from the expiration of the
original time now provided for appeals in civil actions."
The City contends that because Caton did not file an appeal from the
January 4, 2019, order within even the extended time Rule 77(d) permits
based on a lack of notice of the entry of judgment, Caton's appeal is due
to be dismissed as untimely.
The problem with this argument is that it misstates the grounds
under which Caton filed his Rule 60(b) motion. Specifically, Caton
contended not only that he failed to receive notice of the January 4, 2019,
summary-judgment order from the circuit clerk, but also that the City had
33
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failed to serve its November 29, 2018, summary-judgment motion on
either him or his attorney for the retaliatory-discharge claim, Brockwell,
even though the City was well aware that Brockwell was Caton's sole
attorney at that point in the litigation. Thus, Caton contended that he was
entitled to relief from the judgment in part based on the opposing party's
failure to fulfill its duty under Rule 5, Ala. R. Civ. P., to serve a potentially
dispositive motion upon his attorney. Such an alleged failure of service
is a cognizable ground under Rule 60(b). See, e.g., Nolan v. Nolan, 429
So. 2d 596, 596 (Ala. Civ. App. 1982).5
The City's remaining argument for dismissal consists of an
insistence that it did serve its November 29, 2018, summary-judgment
motion on one of Caton's attorneys, Bellenger, and so the trial court
5Alternatively, Caton also contended that his Rule 60(b) motion was
due to be granted based on the excusable neglect of Brockwell for failing
to ensure that he was registered in the Alabama judicial system's
electronic filing system for this case. That is also a cognizable ground
under Rule 60(b)(1). See Burleson v. Burleson, 19 So. 3d 233, 239 (Ala.
Civ. App. 2009) ("Our caselaw recognizes that the failure of a party to
advise the clerk of a proper service address may 'fall into the category of
excusable neglect ....' DeQuesada v. DeQuesada, 698 So. 2d 1096, 1099
(Ala. Civ. App. 1996).").
34
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should not have granted Caton relief from the judgment on the basis that
Caton's counsel had not been served.
" 'A strong presumption of correctness attaches to the
trial court's determination of a motion made pursuant to
Rule 60(b), and the decision whether to grant or deny the
motion is within the sound discretion of the trial judge, and
the appellate standard of review is whether the trial court
[exceeded] its discretion.' "
Osborn v. Roche, 813 So. 2d 811, 815 (Ala. 2001) (quoting Ex parte
Dowling, 477 So. 2d 400, 402 (Ala. 1985)). Caton presented evidence in
support of his Rule 60(b) motion, including affidavits from both of his
attorneys, detailing the nature of their respective representation in the
case. The City presented its own argument in opposition, noting that
Bellenger never withdrew as counsel from the case and that he continued
to receive electronic notices of all party filings and court orders in the
case. Given the conflict in the evidence, it was plainly within the trial
court's discretion to grant or deny Caton's Rule 60(b) motion. The trial
court granted the motion and set aside the first summary judgment in
favor of the City. Thereafter, the parties relitigated the summary-
judgment issues, and the trial court eventually entered another summary
35
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judgment in favor of the City. Caton filed a timely appeal to the April 16,
2020, summary-judgment order. Therefore, the City's motion to dismiss
the appeal is due to be denied.
B. Caton's Argument Against the Entry of the Summary Judgment
As we noted in the rendition of facts, the trial court entered a
summary judgment for the City on the ground that Caton was collaterally
estopped from maintaining his retaliatory-discharge claim against the
City because of the determination in the unemployment-compensation
proceedings that Caton's employment had been terminated for
misconduct.
"In order for an employee to establish a prima facie case of
retaliatory discharge the employee must show: 1) an
employment relationship, 2) an on-the-job injury, 3) knowledge
on the part of the employer of the on-the-job injury, and 4)
subsequent termination of employment based solely upon the
employee's on-the-job injury and the filing of a workers'
compensation claim."
Alabama Power Co. v. Aldridge, 854 So. 2d 554, 563 (Ala. 2002).
Conversely, if it is established that an employee was terminated for
reasons other than filing a worker's compensation claim, then the
employee's claim fails. See, e.g., Aldridge, 854 So. 2d at 568 ("[W]here a
36
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conclusive determination can be made that retaliation is not the sole basis
for the discharge a judgment as a matter of law is appropriate.").
In Wal-Mart Stores, Inc. v. Smitherman, 743 So. 2d 442 (Ala. 1999),
and Wal-Mart Stores, Inc. v. Hepp, 882 So. 2d 329 (Ala. 2003), "[t]he issue
... was whether the doctrine of collateral estoppel barred a
retaliatory-discharge action brought pursuant to a provision of the
Workers' Compensation Act, Ala. Code 1975, § 25–5–11.1, when an
unemployment-compensation claim had previously been adjudicated
against the employee in an administrative proceeding." Ex parte Rogers,
68 So. 3d 773, 776 (Ala. 2010).6
"In both Smitherman and Hepp, our supreme court determined
that
collateral
estoppel
could
be
used
to
bar
a
retaliatory-discharge plaintiff from arguing that he or she was
discharged for a reason other than 'misconduct connected with
his [or her] work' when that plaintiff had been denied full
unemployment-compensation benefits under Ala. Code 1975,
§ 25–4–78(3)c., because of 'misconduct connected with his [or
her] work.'1
"_______________
6Both Smitherman and Hepp were overruled by Rogers on a ground
that did not implicate the collateral-estoppel issue.
37
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"1Section 25–4–78(3)c. disqualifies an employee from
receiving full unemployment-compensation benefits when an
employee is discharged for misconduct connected with his or
her work but permits an award of partial benefits. Section
25–4–78(3)b., [Ala Code 1975,] however, disqualifies an
employee from receiving any unemployment-compensation
benefits because of misconduct connected with his or her work
repeated after previous warning regarding that misconduct."
Hale v. Hyundai Motor Mfg. Alabama, LLC, 86 So. 3d 1015, 1022 (Ala.
Civ. App. 2012). See also Ex parte Buffalo Rock Co., 941 So. 2d 273, 277
(Ala. 2006) (citing Smitherman and Hepp for the proposition that "[i]t is
clear that the doctrine of collateral estoppel may be raised as a defense to
a retaliatory-discharge claim to bar the relitigation of an issue raised and
decided in an unemployment-compensation hearing").
"In order for the doctrine of collateral estoppel to apply
to an issue raised in an administrative proceeding, the
following elements must be present:
" ' " '(1) there is identity of
the parties or their privies;
(2) there is identity of
issues; (3) the parties had
an adequate opportunity to
litigate the issues in the
administrative proceeding;
(4) the issues to be estopped
were actually litigated and
d e t e r m i n e d
i n
t h e
38
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administrative proceeding;
and (5) the findings on the
issues to be estopped were
n e c e s s a r y
t o
t h e
administrative decision.' " ' "
Smitherman, 743 So. 2d at 445 (quoting Ex parte Smith, 683 So. 2d 431,
433 (Ala. 1996), quoting in turn Ex parte Shelby Med. Ctr., Inc., 564
So. 2d 63, 68 (Ala. 1990), quoting in turn Pantex Towing Corp. v.
Glidewell, 763 F.2d 1241, 1245 (11th Cir.1985))).
The parties in the unemployment-compensation proceedings were
identical to the parties in this retaliatory-discharge action. In the
unemployment-compensation proceedings, the administrative-hearing
officer explained that "in the hearing today, I would need to determine
was the claimant discharged, was the discharge for an act of misconduct,
was that act of misconduct connected with work, and any details
surrounding the final incident that led to that termination." Thus, the
reasons for Caton's termination from employment with the City
constituted a necessary part of the determination whether Caton was
entitled to unemployment-compensation benefits. A determination was
made in Caton's unemployment-compensation proceedings that "[Caton]
39
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was discharged for misconduct connected with work and is subject to
disqualification under [§ 25–4–78(3)c.]." In other words, there was a
determination in the unemployment-compensation proceedings that
Caton's employment was terminated for a reason other than his filing of
a worker's compensation claim. Finally, because this Court, on multiple
previous occasions, has approved the application of the doctrine of
collateral estoppel in the unemployment-compensation context, it would
be difficult to conclude that Caton was not given an adequate opportunity
to litigate the issue (although we address that issue more fully below).
Consequently, collateral estoppel barred Caton's retaliatory-discharge
claim against the City.
Caton does not dispute the holdings in Smitherman and Hepp.
Instead, he contends that he presented an argument that was not
addressed in those cases and that the trial court failed to address as well.
Specifically, Caton contends that the application of the doctrine of
collateral estoppel based on a determination made in the administrative
unemployment-compensation proceedings violates his right to trial by jury
40
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protected by the Seventh Amendment to the United States Constitution7
and Art. I, § 11 of the Alabama Constitution of 1901.8 Caton asserts that,
even if he had appealed the denial of his application for appeal by the
Department's Board of Appeals to the circuit court, it still would not have
cured the jury-trial deficiency because such appeals are adjudicated by
bench trial. See § 25-4-95, Ala. Code 1975, providing for appeal to the
circuit court from a decision of the Department's Board of Appeals and
stating that "[a]ctions under this chapter shall be tried by any judge of the
circuit court to whom application is made at any location in said circuit";
and Ex parte Miles, 248 Ala. 386, 388, 27 So. 2d 777, 778 (1946) (holding
that " the statute means trial without a jury when it says that the actions
shall be tried 'by any judge of the circuit court' "). Caton insists that,
7The Seventh Amendment provides:
"In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise
reexamined in any Court of the United States, than according
to the rules of the common law."
8Article I, § 11 provides: "That the right of trial by jury shall remain
inviolate."
41
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"[f]or much too long, this Court and the lower courts of this
state have allowed non-jury unemployment compensation
proceedings to deny the people of Alabama the right to trial by
jury in retaliatory discharge actions. ... Mr. Caton is raising a
novel issue of constitutional law to this Court. This Court now
has the opportunity to correct the miscarriage of justice that
has happened not only to Mr. Caton, but also to countless
others before him."
Caton's brief, pp. 20-21.
Distilled to its essence, Caton is contending that determinations in
administrative proceedings should not have a preclusive effect in any case
where a trial by jury is ordinarily available.9 Although this Court has not
expressly addressed the issue of the right to trial by jury in cases from
administrative proceedings applying the doctrine of collateral estoppel,
multiple courts in other jurisdictions -- including the United States
Supreme Court10 -- have done so.
9Caton
has
not
argued
that
unemployment-compensation
proceedings are distinctive in some way from other administrative
proceedings such that applying the doctrine of collateral estoppel is
uniquely harmful in the unemployment-compensation context.
10We note that
"[t]he provisions of the Seventh Amendment are not binding
upon state courts. Minneapolis & St. Louis R.R. v. Bombolis,
241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961 (1916). Decisions of
42
1190589
"We have long favored application of the common-law
doctrines of collateral estoppel (as to issues) and res judicata
(as to claims) to those determinations of administrative bodies
that have attained finality. 'When an administrative agency
is acting in a judicial capacity and resolves disputed issues of
fact properly before it which the parties have had an adequate
opportunity to litigate, the courts have not hesitated to apply
res judicata to enforce repose.' United States v. Utah Constr.
& Mining Co., 384 U.S. 394, 422 (1966). Such repose is
justified on the sound and obvious principle of judicial policy
that a losing litigant deserves no rematch after a defeat fairly
suffered, in adversarial proceedings, on an issue identical in
substance to the one he subsequently seeks to raise. To hold
otherwise would, as a general matter, impose unjustifiably
upon those who have already shouldered their burdens, and
drain the resources of an adjudicatory system with disputes
resisting resolution. See Parklane Hosiery Co. v. Shore, 439
U.S. 322, 326 (1979). The principle holds true when a court
federal courts based on the Seventh Amendment are,
therefore, instructive but not compulsory. Kraas v. American
Bakeries Co., 231 Ala. 278, 164 So. 565 (1935)."
Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 164 (Ala. 1991). At the
same time,
"Alabama cases have held that the Seventh Amendment is not
materially different from Article I, § 11 of the Alabama
Constitution. See, e.g., Poston v. Gaddis, 335 So.2d 165 (Ala.
Civ. App.), cert. denied, 335 So. 2d 169 (Ala. 1976). Both
constitutional provisions preserve the right to jury trial as it
existed at common law when the provisions were ratified. Id."
Eason v. Bynon, 781 So. 2d 238, 241 (Ala. Civ. App. 2000).
43
1190589
has resolved an issue, and should do so equally when the issue
has been decided by an administrative agency, be it state or
federal, see University of Tennessee v. Elliott, 478 U.S. 788,
798 (1986), which acts in a judicial capacity."
Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 107–08 (1991)
(emphasis added). In B & B Hardware, Inc. v. Hargis Industries, Inc., 575
U.S. 138, 150 (2015), the United States Supreme Court reiterated its
belief that applying the doctrine of collateral estoppel based on
administrative determinations is appropriate:
"We reject Hargis' statutory argument that we should jettison
administrative preclusion in whole or in part to avoid potential
constitutional concerns. As to the Seventh Amendment, for
instance, the Court has already held that the right to a jury
trial does not negate the issue-preclusive effect of a judgment,
even if that judgment was entered by a juryless tribunal. See
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337 (1979). It
would seem to follow naturally that although the Seventh
Amendment creates a jury trial right in suits for trademark
damages, see Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477,
479–480 (1962), TTAB [Trademark Trial and Appeal Board]
decisions still can have preclusive effect in such suits. Hargis
disputes this reasoning even though it admits that in 1791 ' "a
party was not entitled to have a jury determine issues that had
been previously adjudicated by a chancellor in equity." ' Brief
for Respondent 39 (quoting Parklane Hosiery, supra, at 333).
Instead, Hargis contends that issue preclusion should not
apply to TTAB registration decisions because there were no
agencies at common law. But our precedent holds that the
Seventh Amendment does not strip competent tribunals of the
44
1190589
power to issue judgments with preclusive effect; that logic
would not seem to turn on the nature of the competent
tribunal. And at the same time, adopting Hargis' view would
dramatically undercut agency preclusion, despite what the
Court has already said to the contrary. Nothing in Hargis'
avoidance argument is weighty enough to overcome these
weaknesses."
(Emphasis added.)
The central point expressed by the United States Supreme Court in
both Solimino and B & B Hardware was that, as long as the
administrative process in question has the characteristics of an
adjudication, there is no reason determinations made in administrative
proceedings should not have the same preclusive effect that a court
decision would have. The same idea is expressed in the Restatement
(Second) of Judgments § 83(1) (1982), which provides that "a valid and
final adjudicative determination by an administrative tribunal has the
same effects under the rules of res judicata, subject to the same exceptions
and qualifications, as a judgment of a court" as long as the administrative
"proceeding resulting in the determination entailed the essential elements
of adjudication." Those "essential elements of adjudication" include
"[a]dequate notice to persons who are to be bound by the adjudication" and
45
1190589
"[t]he right on behalf of a party to present evidence and legal argument in
support of the party's contentions and fair opportunity to rebut evidence
and argument by opposing parties." Id. at § 83(2). Our Court of Civil
Appeals has similarly noted:
"It is well settled that the doctrine of res judicata -- a term
which encompasses within its scope both claim preclusion and
issue preclusion (see Marshall County Concerned Citizens v.
City of Guntersville, 598 So. 2d 1331, 1332 (Ala. 1992)) -- may
properly be said to apply to a previous agency decision 'only
when that decision is made after a trial-type hearing, i.e.,
"when what the agency does resembles what a trial court
does." ' Kid's Stuff Learning Ctr., Inc. v. State Dep't of Human
Res., 660 So. 2d 613, 617 (Ala. Civ. App. 1995) (quoting II K.
Davis & R. Pierce, Jr., Administrative Law Treatise § 13.3 at
250 (3d ed. 1994)); accord, Restatement (Second) of Judgments
§ 83(2) (1982) ...."
Alabama Bd. of Nursing v. Williams, 941 So. 2d 990, 996 (Ala. Civ. App.
2005) (emphasis added). Indeed, as one court has observed, any
"uncertainty and confusion [that] exist[s] in the case law as to whether the
decisions of an administrative agency may ever collaterally estop a later
action" arise, not from any perceived violation of the right to trial by jury,
but rather from " 'the varying types of administrative agencies and their
procedures, and widespread disagreement whether their decisions are
46
1190589
judicial, quasi-judicial, or administrative only.' " People v. Sims, 32 Cal.
3d 468, 477, 651 P.2d 321, 326–27, 86 Cal. Rptr. 77, 82 (1982) (quoting
Williams v. City of Oakland, 30 Cal. App. 3d 64, 68, 106 Cal. Rptr. 101,
103 (1973)).
Decision-making by an adjudicative tribunal is necessary for the
doctrine of collateral estoppel to apply because the goal of the doctrine is
"to encourage judicial economy by allowing issues ... to be decided in a
single proceeding, so that there can be a final resolution of the conflict
between the parties." Ex parte Smith, 683 So. 2d 431, 436 (Ala. 1996). If
Caton's reasoning was followed, then it would also be true that any
matters decided in bench trials could not have preclusive effect in
subsequent cases in which jury trials are available.11 As the United States
Supreme Court explained in Parklane Hosiery Co. v. Shore, 439 U.S. 322
(1979), however, finding preclusion based on bench-trial determinations
has never been viewed as contrary to the right to trial by jury.
11Indeed, this conclusion follows from Caton's contention that the
doctrine of collateral estoppel should not have applied even if he had
appealed his unemployment-compensation claim to the circuit court for a
trial de novo.
47
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" '[T]he thrust of the [Seventh] Amendment was to
preserve the right to jury trial as it existed in 1791.' Curtis v.
Loether, 415 U.S. 189, 193 [(1974)]. At common law, a litigant
was not entitled to have a jury determine issues that had been
previously adjudicated by a chancellor in equity. Hopkins v.
Lee, [19 U.S.] 6 Wheat. 109 [(1821)]; Smith v. Kernochen, [48
U.S.] 7 How. 198, 217–218 [(1849)]; Brady v. Daly, 175 U.S.
148, 158–159 [(1899)]; Shapiro & Coquillette, The Fetish of
Jury Trial in Civil Cases: A Comment on Rachal v. Hill, 85
Harv. L. Rev. 442, 448–458 (1971).21
"_______________
21"The authors of this article conclude that the historical
sources 'indicate[] that in the late eighteenth and early
nineteenth centuries, determinations in equity were thought
to have as much force as determinations at law, and that the
possible impact on jury trial rights was not viewed with
concern. ... If collateral estoppel is otherwise warranted, the
jury trial question should not stand in the way.' 85 Harv. L.
Rev., at 455–456. This common-law rule is adopted in the
Restatement of Judgments § 68, Comment j (1942)."
439 U.S. at 333.12
12Although not mentioned by the parties, we note that states are
split on whether determinations in administrative unemployment-
compensation proceedings should have a preclusive effect in retaliatory-
discharge cases. See, e.g., April D. Reeves, Employment Law Wal-Mart
Stores, Inc. v. Smitherman: Applying Collateral Estoppel to Issues Raised
in Administrative Proceedings, 24 Am. J. Trial Advoc. 679, 683-85 (2001)
(listing cases from states on both sides of the issue); Ann C. Hodges, The
Preclusive Effect of Unemployment Compensation Determinations in
Subsequent Litigation: A Federal Solution, 38 Wayne L. Rev. 1803, 1869
48
1190589
The only remaining question, then, is whether the unemployment-
compensation proceedings had the essential elements of adjudication such
that Caton had the opportunity to fully and fairly litigate the issue of the
reasons for the termination of his employment. As we recounted in the
rendition of the facts, Caton was given adequate notice of the telephonic
hearing before the administrative-hearing officer, he was repeatedly
informed that he had the right to be represented by counsel at that
hearing, that he had the right to subpoena and to call witnesses on his
behalf and to cross-examine witnesses of the opposing party, and that he
had the right to introduce documentary evidence in support of his
position. The fact that Caton did not exercise several of those rights is
immaterial to whether the elements of adjudication were available in the
telephonic hearing. At that hearing, it was clearly communicated to
Caton that the central issue to be decided was the reasons for his
(1992) (noting that "[t]wenty-three states have enacted statutory limits on
according preclusive effect to unemployment compensation decisions," but
also listing cases in several states applying the doctrine of collateral
estoppel based on determinations in unemployment-compensation
proceedings).
49
1190589
termination from employment with the City, and Caton did not express
any confusion about the purpose of the hearing. All the witnesses who
testified at the hearing were placed under oath before they testified, and
Caton was given the opportunity to ask questions of witnesses. Caton also
was given a full opportunity to tell his side of the events that led up to his
termination. Additionally, Caton had the opportunity to appeal the
decision of the administrative-hearing officer to the Department's Board
of Appeals and also to appeal the Board of Appeals' decision to the circuit
court for de novo review in a bench trial. In sum, it is clear that the
unemployment-compensation proceedings provided the essential elements
of an adjudication such that Caton had an opportunity to adequately
litigate the issue whether his termination from employment with the City
was based on misconduct. Therefore, applying the doctrine of collateral
estoppel in this case on the basis of the determination in the
administrative proceedings did not violate Caton's right to a trial by jury.
IV. Conclusion
Based on the foregoing, we conclude that the application of the
doctrine of collateral estoppel in this case does not violate Caton's right to
50
1190589
a trial by jury and that the doctrine of collateral estoppel bars Caton's
retaliatory-discharge claim against the City. Caton does not present any
other reason why the trial court's judgment should be reversed.
Therefore, we affirm the summary judgment in favor of the City.
MOTION TO DISMISS DENIED; AFFIRMED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, and Stewart,
JJ., concur.
Mitchell, J., concurs specially.
51
1190589
MITCHELL, Justice (concurring specially).
Because of our precedent applying the doctrine of collateral estoppel
to decisions of administrative tribunals, I concur in the majority opinion.
I write separately, however, to express concerns I have about the
foundation of this precedent and the inevitable questions it raises
concerning the separation of powers under our State's Constitution.
This Court has a long line of cases applying the doctrine of collateral
estoppel to administrative proceedings that includes Wal-Mart Stores, Inc.
v. Smitherman, 743 So. 2d 442 (Ala. 1999), and Wal-Mart Stores, Inc. v.
Hepp, 882 So. 2d 329, 333 (Ala. 2003). But when I trace this rule back to
its original appearance in our caselaw, it seems clear that it did not arise
organically through the substantive reasoning of this Court. Rather, it
was grafted from a nonbinding decision of the United States Court of
Appeals for the Eleventh Circuit. See Ex parte Shelby Med. Ctr., Inc., 564
So.2d 63, 68 (Ala.1990) (quoting Pantex Towing Corp. v. Glidewell, 763
F.2d 1241, 1245 (11th Cir.1985)).
Remarkably, the Eleventh Circuit provided no independent
reasoning in Pantex Towing for applying collateral estoppel to issues
52
2
1190589
decided by administrative agencies -- the court simply adopted the
premise because the parties to that case had agreed to it. Pantex Towing,
763 F.2d 1241, 1245 ("[T]he parties agree that when an administrative
body has acted in a judicial capacity and has issued a valid and final
decision on disputed issues of fact properly before it, collateral estoppel
will apply to preclude relitigation of fact issues only if" the requisite test
is satisfied.). And the line of United States Supreme Court decisions
giving rise to the parties' agreement in Pantex Towing has itself been
criticized as weakly reasoned. See B & B Hardware, Inc. v. Hargis Indus.,
Inc., 575 U.S. 138, 174 (2015) (Thomas, J., dissenting) ("I disagree with
the majority's willingness to endorse [the] unfounded presumption [that
Congress intends for the adjudicatory decisions of administrative agencies
to have preclusive effect in court] and to apply it to an adjudication in a
private-rights dispute, as that analysis raises serious constitutional
questions."). Although this shaky basis for our Court's application of
collateral estoppel to administrative determinations is not fatal, parties
53
3
1190589
denied the opportunity to litigate an issue before the judiciary deserve to
know why.13
Additionally, this application of collateral estoppel appears to offend
the traditional understanding of separation of powers. See The Federalist
No. 47 (James Madison) (Clinton Rossiter ed. 1961). Granting preclusive
effect to a determination of an administrative agency -- which is part of
the executive branch -- almost certainly siphons power granted to the
judicial branch. See Ala. Const. 1901, Art. III, § 42 ("[E]xcept as expressly
directed or permitted in this constitution, ... the executive branch may not
exercise the legislative or judicial power ...."). But Alabama's Constitution
departs from this historical understanding in Article VII, § 139(b), which
13 The application of the similar-but-distinct doctrine of res judicata
to findings from administrative hearings has a more organic grounding in
our cases, though its support is equally opaque. It seems that our Court
has merely stated that the practice is "accepted" without ever making an
attempt to justify the choice with supportive reasoning. See State v.
Brooks, 255 Ala. 689, 694, 53 So. 2d 329, 333 (1951) ) ("It is an accepted
principle that '[t]he rule which forbids the reopening of a matter once
judicially determined by competent authority applies as well to the
judicial and quasi-judicial acts of public, executive, or administrative
officers and boards acting within their jurisdiction as to the judgments of
courts having general judicial powers.'" (citation omitted)).
54
4
1190589
grants the Legislature the ability to "vest in administrative agencies
established by law such judicial powers as may be reasonably necessary
as an incident to the accomplishment of the purposes for which the
agencies are created." Logically, there can be no constitutional violation
where the administrative agencies are constitutionally entitled to act in
a judicial capacity properly delegated by the Legislature.
Nevertheless, our Constitution does not require that Alabama courts
give collateral-estoppel effect to administrative determinations. Collateral
estoppel is a doctrine of our Court, and we are the master of our own
doctrine. As such, I am open to revisiting whether the State judiciary
should apply the doctrine of collateral estoppel to administrative
adjudicatory decisions in a future case where the issue is properly before
us and is substantively briefed.
55
5 | December 11, 2020 |
c5c4de43-1c8f-460c-bb08-3711a777b770 | Ex parte Alfa Mutual Insurance Company. | N/A | 1190117 | Alabama | Alabama Supreme Court | REL: October 30, 2020
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190117
____________________
Ex parte Alfa Mutual Insurance Company
PETITION FOR WRIT OF MANDAMUS
(In re: Danielene Myricks
v.
Kelisha Saulsberry and Alfa Mutual Insurance Company)
(Jefferson Circuit Court, CV-18-901464)
MITCHELL, Justice.
Alfa Mutual Insurance Company ("Alfa") intervened in a
lawsuit brought by its insured, Danielene Myricks, against
1190117
Kelisha Saulsberry, an uninsured motorist. Two weeks before
the scheduled trial, Alfa moved to opt out of the lawsuit,
citing Lowe v. Nationwide Insurance Co., 521 So. 2d 1309 (Ala.
1988). The Jefferson Circuit Court issued an order granting
that motion, but it later vacated its order and required Alfa
to continue participating in the case as a named defendant.
Alfa now asks this Court to direct the trial court to allow it
to opt out. Because Alfa has not established a clear legal
right to intervene in the lawsuit and then opt out before
trial, we deny Alfa's petition.
Facts and Procedural History
Myricks sued Saulsberry for allegedly causing an April
2016 motor-vehicle accident in Birmingham. Saulsberry was
uninsured when the accident occurred, and she retained Legal
Services Alabama to defend her in the lawsuit.
Myricks was insured by Alfa at the time, and her policy
included uninsured-motorist benefits. She did not name Alfa
as a defendant, but she did notify Alfa of the filing of the
lawsuit. Alfa then filed a motion to intervene. In that
motion, Alfa stated that there was a "possibility that prior
to trial, [it] will opt out of the lawsuit." Myricks did not
2
1190117
object to Alfa's intervention generally, but she did object to
Alfa's apparent attempt to reserve the right to later opt out
of the case. In her opposition to Alfa's motion to intervene,
Myricks argued that, "[b]y the plain language of Lowe, Alfa
may not intervene and then later opt out." The trial court
allowed Alfa to intervene but acknowledged Myricks's right to
"renew her objection on the stated grounds if and when Alfa
attempts to later opt out of this case."
About two weeks before trial was scheduled to begin, Alfa
filed a motion to opt out of the case, which the trial court
granted the same day. The next day, Saulsberry's counsel
filed a motion to withdraw, noting that new attorneys would
represent her going forward. Myricks then asked the trial
court to vacate its order allowing Alfa to opt out. The trial
court granted Myricks's motion to vacate, holding that "Alfa
is once again a named Defendant in this case and shall
participate in trial ...." Alfa then filed its petition in
this Court.1
1Myricks opposes the petition; Alfa has not filed a reply.
3
1190117
Standard of Review
"A petition for a writ of mandamus is the appropriate
means for challenging a trial court's refusal to grant [an
uninsured-motorist] carrier the right to opt out
of
litigation
pursuant to Lowe." Ex parte Geico Cas. Co., 58 So. 3d 741,
743 (Ala. 2010). "[M]andamus is a drastic and extraordinary
writ" that should be issued 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
Edgar, 543 So. 2d 682, 684 (Ala. 1989). As the petitioner,
Alfa bears the burden of establishing a clear legal right to
the relief it seeks. Ex parte Metropolitan Prop. & Cas. Ins.
Co., 974 So. 2d 967, 972 (Ala. 2007).
Analysis
Alfa asks this Court to "issue a writ allowing [it] to
opt out of participation of trial, and further allow [its]
Counsel to defend [Saulsberry] at trial." Alfa's petition, p.
22. Because Alfa's second request hinges on whether it may
4
1190117
opt out of the lawsuit,2 we first consider whether Alfa has
met its burden of establishing a clear legal right to opt out
after intervening in the lawsuit. We hold that Alfa has not
met its burden and, thus, deny the petition.
In Lowe, this Court addressed for the first time whether
an insured motorist may file a claim against his or her
liability provider in an underlying lawsuit against the
negligent, underinsured motorist. This Court answered that
question by establishing the following procedure:
"A plaintiff is allowed either to join as a party
defendant his own liability insurer in a suit
against the underinsured motorist or merely to give
it notice of the filing of the action against the
motorist and of the possibility of a claim under the
underinsured motorist coverage at the conclusion of
the trial. If the insurer is named as a party, it
would have the right, within a reasonable time after
service of process, to elect either to participate
in the trial (in which case its identity and the
reason for its being involved are proper information
for the jury), or not to participate in the trial
(in which case no mention of it or its potential
involvement is permitted by the trial court). Under
either election, the insurer would be bound by the
factfinder's decisions on the issues of liability
and damages. If the insurer is not joined but
2See Driver v. National Sec. Fire & Cas. Co., 658 So. 2d
390, 395 (Ala. 1995) ("Understanding the need for the
uninsured
motorist
insurance
carrier
to
protect
its
interests,
we hold that once the carrier opts out of the trial under
Lowe, it may, in its discretion, hire an attorney to represent
the uninsured motorist defendant.").
5
1190117
merely is given notice of the filing of the action,
it can decide either to intervene or to stay out of
the case. The results of either choice parallel
those set out above -- where the insurer is joined
as a party defendant. Whether the choice is timely
made is left to the discretion of the trial court,
to be judged according to the posture of the case."
Lowe, 521 So. 2d at 1310.3
According to Alfa, this passage means that, once a
nonparty insurer decides to intervene in a case, "Lowe would
apply as if the insurer was originally named in the suit,
meaning the insurer would still have the choice on whether to
participate or not participate in the trial." Alfa's
petition, pp. 12-13. Specifically, Alfa contends that, where
Lowe stated that the "results of either choice parallel those
set out above," this Court was "referring to an insurance
carrier's right to eventually opt out of participation from
trial." Id., p. 15.
That interpretation of Lowe is wrong. The error seems to
stem from a misreading of the following sentence in Lowe: "The
results of either choice parallel those set out above -- where
the insurer is joined as a party defendant." Lowe, 521 So. 2d
3Although Lowe concerned an underinsured motorist, "[o]ur
analysis in Lowe and its progeny applies equally to
underinsured and uninsured motorists." Ex parte Electric Ins.
Co., 164 So. 3d 529, 530 (Ala. 2014).
6
1190117
at 1310. The "results" to which Lowe refers are whether the
insurer's identity will be made available to the fact-finder
and the fact that the insurer will be bound by the fact-
finder's findings on liability and damages regardless. See Ex
parte State Farm Mut. Auto. Ins. Co., 674 So. 2d 75, 76 (Ala.
1995) (quoting Lowe and noting that, whether the insurer is
named as a defendant or not, the insurer's identity and role
are available to the jury if the insurer decides to
participate in trial). Thus, the word "results" does not
refer to a defendant insurer's option to opt out.
Examining the complete passage of Lowe makes this reading
even clearer. In Lowe, this Court emphasized that a
plaintiff, at the outset, may "either" name the insurer as a
defendant "or" give the insurer notice of the filing of the
lawsuit. Once the plaintiff makes that election, the ball is
in the insurer's court. If the insurer has been named as a
defendant, the insurer can "either" participate in trial "or"
not participate in trial (i.e., opt out). In parallel
fashion, if the insurer has not been named as a defendant but
is given notice that the suit has been filed, the insurer can
"either" intervene "or" stay out of the case. In or out --
7
1190117
that is the only choice Lowe gives the insurer under either
scenario. See Ex parte Aetna Cas. & Sur. Co., 708 So. 2d 156,
158 (Ala. 1998) (noting that defendant insurer's attempt to
reserve a right to opt in after opting out was "inconsistent
with the procedure set forth in Lowe"); Edgar, 543 So. 2d at
685 (stating that defendant insurer's attempt to reserve the
right to continue participating in discovery after opting out
"is just the opposite of the procedure that was sanctioned in
Lowe"). Lowe does not provide a nonparty insurer with another
election once the insurer chooses to intervene -- and Alfa
does not convincingly point to any authority that says
otherwise.4
In short, Alfa has not identified -- and this Court is
not aware of -- any binding authority giving a nonparty
insurer the right to intervene in an uninsured-motorist suit
4Alfa cites State Farm, but that case does not bolster its
argument. In State Farm, this Court merely reiterated the
procedure prescribed by Lowe. See State Farm, 674 So. 2d at
76 (noting that, whether the plaintiff joins her insurer as
defendant or gives it notice of the case, the insurer "is
given the option to 'either ... participate in the trial (in
which case its identity and the reason for its being involved
are proper information for the jury), or not to participate in
trial (in which case no mention of it or its potential
involvement is permitted by the trial court)'" (quoting Lowe,
521 So. 2d at 1310)).
8
1190117
and then opt out before trial. Thus, Alfa has not shown that
it has a clear legal right under Lowe to opt out after
intervening, and its petition must be denied. Because Alfa
will remain a named defendant under the trial court's order,
its request to have its counsel represent Saulsberry moving
forward is moot.
Conclusion
Because Alfa has not established that it has a clear
legal right to intervene in an uninsured-motorist lawsuit and
then opt out before trial, we deny Alfa's petition for a writ
of mandamus.
PETITION DENIED.
Parker, C.J., and Shaw, Wise, Sellers, Mendheim, and
Stewart, JJ., concur.
Bolin, J., concurs in the result.
9 | October 30, 2020 |
cca2ce3a-047e-496a-a019-7d6069a083de | McElroy v. McElroy, as personal representative of the Estate of Clifton McElroy, Jr. | N/A | 1190888 | Alabama | Alabama Supreme Court | Rel: November 20, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190888
____________________
Tomeka McElroy and Marlon McElroy
v.
Tracy McElroy, as personal representative of the Estate of
Clifton McElroy, Jr., deceased
Appeal from Jefferson Probate Court
(No. 208001)
SELLERS, Justice.
Tomeka McElroy and Marlon McElroy (hereinafter referred to
collectively as "the contestants") appeal from a judgment entered in a will
1190888
contest by the Jefferson Probate Court in favor of Tracy McElroy, as
personal representative of the estate of Clifton McElroy, Jr., deceased.1
We affirm.
Facts and Procedural History
Clifton McElroy, Jr., a resident of Jefferson County, died on April 11,
2010, leaving a will that was purportedly executed by him on October 15,
2008. On April 14, 2010, Tracy petitioned the probate court to admit the
will to probate, averring that the will was self-proving in accordance with
the requirements of § 43-8-132, Ala. Code 1975. On that same day, the
probate court admitted the will to probate and issued letters testamentary
to Tracy.
On September 16, 2010, the contestants filed a will contest in the
probate court challenging the validity of the will. They specifically alleged
that Clifton's signature on the will was forged and that, therefore, the will
was not properly executed. The administration of the estate, including the
1The contestants and Tracy are siblings; Clifton McElroy, Jr., was
their father, and they are beneficiaries under his will.
2
1190888
will contest, was removed to the Jefferson Circuit Court pursuant to § 12-
11-41, Ala. Code 1975.
After discovery delays, multiple continuances, and a failed summary-
judgment motion filed by the contestants, the circuit court conducted a
three-day bench trial on the will contest. After hearing the evidence, the
circuit court entered a judgment finding that, although the will did not
meet the requirements of a self-proving will under § 43-8-132, it was
properly executed and witnessed and was, therefore, valid under § 43-8-
131, Ala. Code 1975. The contestants appealed. This Court dismissed their
appeal because the administration of the estate had not been properly
removed from the probate court; thus, the circuit court never obtained
subject-matter jurisdiction over the estate administration or the will
contest.2 McElroy v. McElroy, 254 So. 3d 872 (Ala. 2017).
After this Court dismissed the contestants' appeal, the probate court
held a status conference and ordered a new trial to determine the validity
2This Court specifically noted that there was no indication in the
record that any party filed a petition for removal in the circuit court or
that the circuit court ever entered an order removing the administration
of the estate from the probate court as required by § 12-11-41.
3
1190888
of the will, specifically whether the will had been properly executed and
proved as required by Alabama statutory law. The contestants moved for
a summary judgment or, alternatively, for a judgment on partial findings.
Tracy opposed the motion and filed a cross-motion for a summary
judgment. The parties thereafter agreed that, in lieu of another bench
trial, the probate court would base its ruling regarding the validity of the
will on written materials, including the transcript of the bench trial in the
circuit court.
The circuit-court transcript upon which the probate court relied
indicates, among other things, that the will, dated October 15, 2008, was
not personally signed by Clifton but, rather, was signed by Tracy.
Specifically, Tracy testified that she signed Clifton's name on the will at
Clifton's direction and in his presence. She stated that, after she signed
Clifton's name on the will, she never saw the will again until after he died.
Tracy admitted that Clifton had no physical impairment that would have
prevented him from personally signing the will. She testified, however,
that Clifton had routinely requested and/or told her to sign his name on
various documents. Tracy finally testified that she never told anyone that
4
1190888
she had signed Clifton's name on the will until after the contestants filed
the will contest and hired a handwriting expert who opined that Clifton's
signature on the will was a forgery. Tomeka testified that she was
surprised to learn that Clifton had a will because, she said, in the months
leading up to his death, she heard Clifton say that he did not have a will
and that he wanted his estate divided evenly among his four children.
Tomeka further testified that, after Clifton's funeral, she compared the
signature on the will to other documents Clifton had signed and
determined that the signature on the will was not Clifton's signature.
Tomeka stated that she hired attorneys to file a will contest, which
required a handwriting expert to prove that the signature on the will was
a forgery. Tomeka further stated that, after the handwriting expert
conducted his review of the signature and his identity and findings were
disclosed in the discovery process, she learned that Tracy, not Clifton, had
signed Clifton's name to the will.
Willie Jackson, one of the subscribing witnesses, testified that he
had known Clifton for over 40 years and that, while he was at Clifton's
house on one occasion, Clifton handed him a document and stated: "I need
5
1190888
you to witness this."3 Jackson testified that he signed the document in
Clifton's presence but that he could not recall if Clifton's signature was on
the document when he signed it. Jackson also testified that he assumed
the document Clifton had asked him to witness was a will. He clarified,
however, that he read the paragraph above his signature line, which
stated that the document was Clifton's will:
"Q. [Attorney reading paragraph above signature lines for
witnesses indicating that the document was Clifton's last will].
"....
"Q. All right. And [Clifton] was present and asked you to sign
this document?
"A. Yes.
"Q. And on the last page, it clearly states that this was his
last will and testament?
"A. Yes.
"Q. And you say you read that?
"A. Right.
3At the time of the bench trial in the circuit court, Angela Lewis, the
second subscribing witness, was deceased, and her death certificate was
entered as evidence of that fact.
6
1190888
"Q. And as a result of that, you signed this document?
"A. Right."
Juandalynn Givan, a licensed attorney, testified that she prepared
Clifton's will in accordance with Clifton's instructions; that she delivered
the will to Clifton; and that she told Clifton that the will needed to be
signed, notarized, and witnessed. Givan stated that she later received an
executed copy of the will, which she kept in her files. Gloria J. Patrick, a
notary public, testified that, at Clifton's request, she went to his house
and notarized the will. Patrick stated that, before notarizing the will, she
specifically asked Clifton if the signature on the will was his and that he
replied that it was. After considering the testimony, which, again,
included testimony in the transcript from the circuit-court bench trial, the
probate court entered a judgment declaring that the will was valid and
ordering that it be admitted to probate. The contestants appealed.
Standard of Review
The circuit court that conducted the bench trial in the will contest
never obtained subject-matter jurisdiction over the contest; thus, its
judgment was void and can be accorded no weight. McElroy, supra. By
7
1190888
agreement of the parties, the probate court tried the will contest solely on
written materials, including the transcript of the bench trial in the circuit
court, and entered a judgment declaring the will to be valid. In these
circumstances, the ore tenus rule does not apply, and this Court weighs
and considers the evidence de novo, without according any presumption
of correctness to the probate court's findings of fact. See § 12-2-7(1), Ala.
Code 1975 ("[I]n deciding appeals, no weight shall be given the decision of
the trial judge upon the facts where the evidence is not taken orally before
the judge, but in such cases the Supreme Court shall weigh the evidence
and give judgment as it deems just."); see also Ex parte Sacred Heart
Health Sys., Inc., 155 So. 3d 980, 985 (Ala. 2012)(citing § 12-2-7(1) and
stating that, in a case in which a trial court has not heard live testimony,
the reviewing court will not apply a presumption of correctness to a trial
court's findings of fact; rather, the reviewing court reviews the evidence
de novo); and Dombrowski Living Tr. v. Morgantown Prop. Owners Ass'n,
Inc., 229 So. 3d 239 (Ala. Civ. App. 2016).
Discussion
8
1190888
The contestants argue that Clifton's will is not valid because, they
say, it was not properly executed pursuant to § 43-8-131 and it was not
proved by the method set forth in § 43-8-167, Ala. Code 1975. Section 43-
8-131 governs the formal requirements for the execution of a will:
"Except as provided within section 43–8–135, [Ala. Code
1975,] every will shall be in writing signed by the testator or
in the testator's name by some other person in the testator's
presence and by his direction, and shall be signed by at least
two persons each of whom witnessed either the signing or the
testator's acknowledgment of the signature or of the will."
(Emphasis added.)
The contestants argue that the will was not properly executed under
§ 43-8-131 because, they say, Clifton failed to acknowledge to a witness,
either orally or through a written notation on the will, that he had
directed Tracy to sign his name on the will. The contestants claim that the
purpose for requiring such an acknowledgment is to avoid fraudulent wills
from being admitted to probate. The contestants, however, do not cite any
legal authority to support their assertion, and our research reveals no law
requiring a testator to make any representation to a witness other than
9
1190888
to indicate the document is his or her will and to ask the witness to sign
it.
As a threshold for a will to be admitted to probate, § 43-8-131
requires (1) that the will be in writing and (2) that it be signed by the
testator or by someone in the testator's presence and at his direction. See
generally Pickens v. Estate of Fenn, 251 So. 3d 34 (Ala. 2017). In this
case, it is undisputed that the will is in writing, and Tracy testified that,
at Clifton's direction, she signed his name on the will while she was in his
presence. Therefore, the first two requirements of the statute were
satisfied; contrary to the contestants' assertion, the statute does not
require that Clifton acknowledge, either orally or through a notation on
the will, that he directed Tracy to sign his name on the will. The statute
then requires (3) that a will be signed by at least two persons who
witnessed the testator performing one of three acts: signing the will,
acknowledging the document as his will, or acknowledging his signature
on the will. Id. In other words, it is the attestation of the subscribing
witnesses that gives effect to the instrument as a valid will. See Culver
v. King, 362 So. 2d 221, 222 (Ala. 1978)(noting that the purpose of
10
1190888
requiring the signature of two witnesses "is to remove uncertainty as to
the execution of wills and safeguard testators against frauds and
impositions").
In this regard, § 43-8-167 sets forth the requirements for proving the
proper execution of a will that is not a self-proved will. That section
provides, in relevant part:
"(a) Wills offered for probate, except nuncupative wills,
must be proved by one or more of the subscribing witnesses, or
if they be dead, insane or out of the state or have become
incompetent since the attestation, then by the proof of the
handwriting of the testator, and that of at least one of the
witnesses to the will. Where no contest is filed, the testimony
of only one attesting witness is sufficient."
In the present case, it is undisputed that Jackson, a subscribing
witness, did not witness the signing of the will, nor could he recall if
Clifton's signature was on the will when he signed it. Nonetheless, the
will would be valid, provided Clifton acknowledged to Jackson that the
document Jackson was witnessing was his will. As indicated, Jackson
testified that Clifton handed him a document and asked him to "witness"
it. Jackson testified that, before signing the document, he read the
paragraph above his signature line, which indicated to him that the
11
1190888
document was Clifton's will. The contestants do not argue that Jackson's
testimony was insufficient to satisfy the statutory requirement that a
testator acknowledge a document as his or her will. And, although it may
have been the better practice for Clifton to expressly acknowledge to
Jackson that the document was testamentary in nature, the mere fact
that he did not make such an express statement is insufficient to defeat
the admission of the will to probate. Recognizing that the intent of § 43-8-
131 is to provide minimum statutory formalities for a valid will, we
conclude that Jackson's testimony, i.e., acknowledging that the page he
signed was clearly marked as Clifton's will, satisfies the statutory
requirements of §§ 43-8-131 and 43-8-167.4 Our conclusion is further
bolstered by the additional evidence surrounding the execution of the will
4The contestants make no argument on appeal regarding the second
witness to the will, who is undisputedly deceased as demonstrated by a
death certificate submitted during the circuit-court bench trial. They do
not argue that Tracy was required, and failed, to produce any additional
evidence regarding the deceased witness to support a judgment that the
will as valid. Rather, as indicated, they argue that the will was not validly
executed or proved because, they say, Clifton did not acknowledge to a
witness, either orally or through a written notation on the will, that he
had directed Tracy to sign his name on the will.
12
1190888
and, specifically, the fact that the will was prepared by Clifton's attorney
at Clifton's request and in accordance with his instructions and the fact
that the will was acknowledged by a notary public, which is sufficient to
meet the statutory requirements of a witness. Pickens, supra. The totality
of these circumstances strongly suggest that the will was validly executed
and was not procured by fraud.5 To conclude otherwise would frustrate,
rather than further, the intent of § 43-8-131, which provides the minimum
formalities for a valid will. Our holding is also consistent with the public
policy of this State in carrying out the intent of the testator and adhering
to the presumption that Clifton, who possessed a will, did not intend to die
intestate. See Roberts v. Cleveland, 222 Ala. 256, 259, 132 So. 314, 316
(1931)(noting that it is presumed that, "when a testator undertakes to
make a will of all his property, he [does] not intend to die intestate as to
5The contestants also assert that the will also does not comply with
the requirements of § 43-8-131 because, they say, the notarization was
fraudulent insofar as Clifton represented to the notary that the signature
on the will was his signature when, in fact, he did not personally sign the
will. This argument is without merit because the statute does not require
that the signatures of the testator or the witnesses be notarized. See
Pickens, supra.
13
1190888
any of it or during any period of time"); see also Barnewall v. Murrell, 108
Ala. 366, 388, 18 So. 831, 841 (1895) (noting that, when the validity of a
will is being challenged, "[i]nstead of indulging suspicion or conjecture to
destroy the validity of wills, the courts are bound to support them against
mere suspicion or conjecture; bound to support them, when any theory or
hypothesis maintaining them, is as probable as that which is suggested to
defeat them").
Conclusion
Based on the foregoing, we conclude that Clifton's will was properly
executed pursuant to § 43-8-131 and that it was properly proved pursuant
to § 43-8-167. Accordingly, the judgment in favor of Tracy is affirmed.
AFFIRMED.
Wise and Stewart, JJ., concur.
Parker, C.J., and Bolin, J., concur in the result.
14 | November 20, 2020 |
e18adade-f44a-4b5c-8c07-f79d70fed118 | Sherry E. Phelps v. County of Mobile | N/A | 1190469 | Alabama | Alabama Supreme Court | Rel: November 25, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
_________________________
1190468
_________________________
Lewis A. Richardson and Ellen G. Richardson
v.
County of Mobile
_________________________
1190469
_________________________
Sherry E. Phelps
v.
County of Mobile
Appeals from Mobile Circuit Court
(CV-17-901056 and CV-16-902772)
1190468; 1190469
SELLERS, Justice.
In these consolidated appeals, Lewis A. Richardson and Ellen G.
Richardson (in case no. 1190468) and Sherry E. Phelps (in case no.
1190469) (hereinafter referred to collectively as "the landowners") contend
that the Mobile Circuit Court erred in entering summary judgments in
favor of Mobile County ("the County") in the landowners' respective
actions against the County. The landowners assert that the County is
responsible for flooding that has damaged the landowners' personal
property, allegedly has decreased the value of their residential property,
and has made travel over the roads in their neighborhood unsafe and
inconvenient.
The trial court concluded that the County owes no duty to remediate
the flooding. We agree with the County that the landowners have not
demonstrated that the County owes them a duty to prevent the flooding
of their property. However, we conclude that the County does owe a duty
to keep its roads safe and convenient for travel and that the landowners
2
1190468; 1190469
can seek to enforce that duty. Accordingly, we affirm the trial court's
judgments in part and reverse them in part.
The landowners are neighbors in a subdivision called Cottage Park
Estates in an unincorporated area of Mobile County ("Cottage Park").
Cottage Park was constructed in 1977 by a private developer. Phelps's
house and the Richardsons' house are located across the street from one
another in Cottage Park.
There is an open concrete drainage ditch in Cottage Park that is
located east and southeast of the landowners' houses. When it rains,
storm water enters the concrete ditch and travels to an underground
concrete culvert. After reaching the underground culvert, storm water
makes its way to a manhole under one of the streets in Cottage Park and
exits into an open ditch or creek to the north of the neighborhood. If too
much water enters the concrete ditch, water overflows at various points
in the drainage system, flooding the roads in Cottage Park and the
landowners' property.
The County had no input in designing, constructing, approving, or
permitting any part of the drainage system in Cottage Park. In 1978,
3
1190468; 1190469
however, pursuant to a County resolution, the County accepted dedication
of the roads in Cottage Park, "together with the drainage system as it
affects said roads."
Cottage Park has a history of flooding problems, which were
exacerbated by the construction of four subdivisions on land situated
uphill and to the east and southeast of Cottage Park. The first two
subdivisions were constructed in 1989 and the third was constructed in
1992. In 2015, the fourth subdivision, called the O'Fallon subdivision, was
constructed. The construction of the O'Fallon subdivision made the
flooding problem worse and prompted the landowners to file their actions
against the County. As it did with Cottage Park, the County accepted
dedication of the roads in the four referenced subdivisions, as well as
drainage systems to the extent they affect the roadways therein.1
The County approved the plans for the development of the four
upland subdivisions, including the O'Fallon subdivision. The drainage
1It appears, however, that, of the four upland subdivisions, only the
O'Fallon subdivision has improvements aimed at storm-water drainage.
It appears that the other three developments do not have drainage
systems.
4
1190468; 1190469
system constructed in the O'Fallon subdivision was designed by a licensed
engineer, and the plans for the subdivision were approved after review by
the County's own engineer, Bryan Kegley. According to the landowners'
brief,2 the developer's engineer submitted "a certification regarding pre
and post construction stormwater and surface water drainage." The
record suggests that the developer's engineer certified that, after
completion of the O'Fallon subdivision, the amount of storm-water runoff
in the area would be the same or less than it was before construction.
The O'Fallon developer's engineer was incorrect. Shortly after
construction began on the O'Fallon subdivision, the flooding problem in
Cottage Park worsened significantly. The evidence indicates that the
roads in Cottage Park frequently flood and become impassable. There is
also evidence indicating that portions of the roads in the subdivision have
caved in multiple times, necessitating repairs. Water also tends to escape
from the roads, flooding the residential lots.
Expert reports submitted to the trial court suggest that the recent
increase in the severity of flooding is largely the result of a decision by the
2The landowners filed the same joint brief in each appeal.
5
1190468; 1190469
O'Fallon developer's engineer not to route certain portions of the O'Fallon
subdivision's water runoff to the detention pond that is located in that
subdivision. The water from the areas in question should have been
routed to the pond or, if that was not possible, the discharge rate of the
pond should have been set lower to account for the uncontrolled runoff
coming from those areas. Design aspects of the Cottage Park drainage
system, built in the late 1970s, render it unable to accommodate the
increased storm water coming from the upland subdivisions.
The landowners sued the County and the developer of the O'Fallon
subdivision. They eventually settled their claims against the developer
and proceeded against only the County. Against the County, the
landowners asserted negligence, nuisance, and trespass. They alleged
that the flooding has made the roads in Cottage Park unsafe and that
floodwater escapes from the roads and onto the landowners' property.
They asserted that the County has a responsibility to ensure that the
drainage system in Cottage Park is sufficient to control flooding in that
subdivision. They also criticized the County for approving the plans for
the upland subdivisions, primarily the plan proposed by the developer of
6
1190468; 1190469
the O'Fallon subdivision. The landowners sought monetary awards and
an injunction requiring the County to alleviate the flooding.
The trial court granted the County's summary-judgment motions,
and the landowners filed two separate appeals. Those appeals were
consolidated for the purpose of issuing one opinion.
" '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)(3), Ala. R. Civ. P. The burden is on the
moving party to make a prima facie showing that
there is no genuine issue of material fact and that
it is entitled to a judgment as a matter of law. In
determining whether the movant has carried that
burden, the court is to view the evidence in a light
most favorable to the nonmoving party and to draw
all reasonable inferences in favor of that party. To
defeat a properly supported summary judgment
motion, the nonmoving party must present
"substantial evidence" creating a genuine issue of
material fact -- "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." Ala. Code
1975, § 12–21–12; West v. Founders Life Assurance
Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).'
"Capital Alliance Ins. Co. v. Thorough–Clean, Inc., 639 So. 2d
1349, 1350 (Ala. 1994). Questions of law are reviewed de novo.
Alabama Republican Party v. McGinley, 893 So. 2d 337, 342
(Ala. 2004)."
7
1190468; 1190469
Pritchett v. ICN Med. All., Inc., 938 So. 2d 933, 935 (Ala. 2006). As the
appellants, the landowners bear the burden of demonstrating that the
trial court erred in entering the summary judgments. Johnson v. Life Ins.
Co. of Alabama, 581 So. 2d 438, 444 (Ala. 1991).
Flooding of Private Property
The landowners rely on Long v. Jefferson County, 623 So. 2d 1130
(Ala. 1993). In that case, Jefferson County constructed an underground
sewer line within an easement it owned, which ran across a parcel of
private property. A house was later constructed on top of the sewer line,
and the plaintiffs purchased the property. Eventually, the sewer line
collapsed, causing structural damage to the house. The plaintiffs sued
Jefferson County, and the trial court entered a summary judgment in
Jefferson County's favor.
On appeal, this Court pointed to analogous cases involving
municipal drainage systems. Once a municipality chooses to provide such
a system, " 'a duty of care arises and a municipality may be liable for
damages proximately caused by its negligence [in designing or
maintaining the drainage system].' " 623 So. 2d at 1136 (quoting City of
8
1190468; 1190469
Mobile v. Jackson, 474 So. 2d 644, 649 (Ala. 1985)). According to Long,
"[a] county, like a city, is under a duty to exercise due care when it
constructs and operates a sewage or drainage system, and it may be liable
for damages proximately caused by its negligence." 623 So. 2d at 1137.
Jefferson County was aware when it installed the sewer line that a house
likely would be built on top of the line, but the county failed to install a
line that could withstand the weight of a house. It also failed to follow up
after the house was constructed to determine whether the sewer line
would hold up.
The landowners also point to Reichert v. City of Mobile, 776 So. 2d
761 (Ala. 2000). Reichert indicates that municipalities can be held liable
if they are negligent in the design and construction of their drainage
systems, if they negligently fail to correct design or construction problems
in their drainage systems, or if they negligently fail to provide appropriate
upkeep of their drainage systems.
As the County points out, it did not design or construct the drainage
system in Cottage Park. But the County acknowledges that it did accept
some responsibility over that system when it accepted dedication of the
9
1190468; 1190469
roads in Cottage Park. The County's primary response to the landowners'
reliance on Long and other authorities is that the County accepted
dedication of the Cottage Park drainage system only "as it affects" the
roads in Cottage Park. According to the County, unlike Jefferson County
in Long, the County "has never operated any [drainage] system for the
benefit of the surrounding landowners." The County suggests that it has
responsibility for only those portions of the drainage system that are
physically located in the County's rights-of-way and only to the extent
those portions are aimed at preventing flooding of the roads. The evidence
before the trial court indicates that the open concrete ditch and most of
the underground culvert are located outside the County's rights-of-way.
The landowners, who have the burden on appeal, have not offered
a convincing argument that the proviso in the resolution by which the
roads in Cottage Park were dedicated to the County was not effective in
limiting the County's responsibility over the drainage system in Cottage
Park. They have not established that the County accepted responsibility
over the entire drainage system when the roads were dedicated to the
County. See Chalkley v. Tuscaloosa Cnty. Comm'n, 34 So. 3d 667, 675
10
1190468; 1190469
(Ala. 2009) (indicating that a county can limit the portions of a drainage
system for which it will be responsible when accepting dedication of
roads). The landowners also have not established that the County's
responsibility over the Cottage Park drainage system to the extent "it
affects" the roads in Cottage Park exposes the County to liability for the
flooding of private property.
Notwithstanding the limiting language the County used when it
accepted dedication of the roads in Cottage Park, the landowners argue
that the County has since voluntarily assumed responsibility over the
entire drainage system. The landowners point to evidence indicating that
the County has performed a significant amount of work in Cottage Park
during the 40 years since it accepted dedication of the roads therein. It
appears, however, that the overwhelming majority of that work was
performed on portions of the drainage system located in the County's
rights-of-way, not on portions located on private property.
The landowners can identify only 4 specific instances during that 40-
year period when the County was involved in repairs or maintenance on
portions of the drainage system that are outside the County's rights-of-
11
1190468; 1190469
way. During a significant rainfall in 1980, the concrete ditch was
destroyed. According to an affidavit submitted by County Engineer
Kegley, "FEMA got involved with the repairs" and "provided all of the
funding and asked the County to help administer and coordinate the
project." According to Kegley, however, "the work itself was done by a
private construction firm and not by the County." Nevertheless, it is clear
that the County played a role in facilitating the rebuilding of the concrete
ditch. In the mid 1980s, the County dug a swale on one of the lots in
Cottage Park to divert water to the concrete ditch. In April 2009, the
County removed portions of the concrete ditch to determine if water was
flowing under the concrete and later replaced the concrete and filled the
area with soil. Finally, in 2013, the County removed a fallen tree from the
concrete ditch.
The landowners point to Lott v. City of Daphne, 539 So. 2d 241 (Ala.
1989). In that case, the plaintiff sued the City of Daphne after his
property began eroding because of increased runoff caused by a new
upland development. There was a gully running across the plaintiff's
property, referred to as "Mazie's Gulch." Daphne's drainage system
12
1190468; 1190469
consisted of underground pipes and junction boxes that discharged water
from the area near Mazie's Gulch into the head of the gulch. When the
new development was proposed, Daphne required the developer to build
a drainage system that emptied into Daphne's existing system and
required the developer to build an "energy suppressor" at the head of
Mazie's Gulch. After the development was finished, Daphne maintained
the drainage system and the energy suppressor. The additional runoff
from the new development increased the water running through the gulch,
which caused the plaintiff's property to erode. After a jury trial, the trial
court in Lott directed a verdict3 in favor of the City of Daphne.
On appeal, this Court held that there was sufficient evidence to
support a conclusion that Daphne had undertaken responsibility to control
the amount of storm water running into Mazie's Gulch. Specifically, the
Court noted:
"The mayor of Daphne, Victor Guarisco, and Daphne's former
city engineer, Arthur Rigas, both testified that the City had
constructed various pipes and junction boxes leading from the
areas surrounding Mazie's Gulch to carry storm water that
3Effective October 1, 1995, a directed verdict is called a judgment as
a matter of law. See Rule 50(b), Ala. R. Civ. P.
13
1190468; 1190469
eventually emptied into Mazie's Gulch. Prior to the
construction of the [new] Subdivision, the City required the
developers to construct a drainage system that fed into the
City's system, and to construct an energy suppressor at the
head of Mazie's Gulch where the City's system emptied.
Moreover, both witnesses testified that the City had
continually maintained the drainage system. These facts
clearly show that the City had undertaken the responsibility
for insuring the proper drainage of storm water from the areas
surrounding Mazie's Gulch. However, the City contends that
although it has maintained the drainage system surrounding
Mazie's Gulch, it has never undertaken to maintain the gully
itself and, therefore, is under no duty to maintain it. We
cannot agree with such reasoning.
"First, the facts show that the City has undertaken to
maintain Mazie's Gulch itself. Arthur Rigas testified that the
City repaired the energy suppressor, located at the head of
Mazie's Gulch, at least once to protect the gully from erosion.
More important, however, is the testimony of Mayor Guarisco
that the City had been using Mazie's Gulch as an important
part of the City's drainage system for the surrounding area. As
noted above, once a municipality undertakes to maintain a
'drainage system,' a duty of care attaches in the maintenance
thereof. Kennedy [v. City of Montgomery, 423 So. 2d 187 (Ala.
1982)]. Consequently, Mazie's Gulch being an integral part of
the City's drainage system, it is subject to the same standards
of due care to be exercised by the City in preventing harm to
adjoining property owners. The fact that the City has failed or
refused to maintain the gully is some evidence of the City's
negligence. To hold otherwise would permit the City to channel
any volume of water into Mazie's Gulch without taking any
responsibility for its consequences to the landowners below."
539 So. 2d at 244.
14
1190468; 1190469
For its part, the County relies on Royal Automotive, Inc. v. City of
Vestavia Hills, 995 So. 2d 154 (Ala. 2008). In that case, four businesses
sued Vestavia Hills and Hoover after the businesses incurred property
damage when a creek flooded. According to the businesses, the cities had
assumed a duty to maintain the creek and keep it from flooding. This
Court disagreed:
"Three dredgings of [the creek] by Vestavia over a
23–year period and the removal of debris in ditches and
channels of the creek to prevent the flooding of public roads do
not constitute undertaking maintenance of the creek. Such
occasional activity constitutes the sporadic exercise of
discretion to meet exigent circumstances. 'Sporadic' is defined
as 'occurring occasionally, singly, or in irregular or random
instances.' Merriam–Webster's Collegiate Dictionary 1207
(11th ed. 2003). The fact that Vestavia spent more than
$100,000 per dredging on 3 occasions over a 23–year period
does not serve to bring such intermittent activity above the
level of sporadic activity. Further, we decline to hold that
evidence indicating that Vestavia monitored the effects of
storm-water runoff from some residential and commercial
developments is sufficient evidence of the assumption of a duty
to maintain the creek.
"Hoover's occasional cleaning of [the creek] in response
to requests from residents of adjoining property and one
public-works project to remove silt and debris from the creek
is also insufficient to support a finding that Hoover undertook
maintenance of [the creek]."
15
1190468; 1190469
995 So. 2d at 160 (citations omitted). The Court in Royal Automotive
distinguished Lott on the following grounds:
"Surface water has flowed down adjoining mountainous
terrain into and through [the creek] for hundreds of years.
There is no evidence indicating that Vestavia or Hoover has
constructed devices to direct water that would not otherwise
naturally flow through or into [the creek]. In Lott, this Court
held that 'in order for the City to be held liable for any
damages caused by its failure to act, it must also be shown
that the water from the City's drainage system, rather than
the natural drainage of surface water, caused the damage
complained of by the plaintiff.' 539 So. 2d at 244. Unlike Lott,
in which Daphne purposefully constructed 'a series of
underground pipes and junction boxes' to redirect surface
water through one area of Mazie's Gulch, there is no evidence
here indicating that Vestavia or Hoover constructed a drainage
system that directed surface water, other than by natural
drainage, into [the creek]. We conclude that neither Vestavia
nor Hoover has undertaken a duty to maintain [the creek]
because the cities have not purposefully directed into [the
creek] water that would not otherwise naturally flow through
the creek."
995 So. 2d at 159–60 (emphasis omitted). See also City of Dothan v. Sego,
646 So. 2d 1363, 1364 (Ala. 1994) (holding that a city's occasional clearing
of a drainage ditch on private property did not amount to the assumption
of a duty to maintain the ditch).
16
1190468; 1190469
The present case is more like Royal Automotive and Sego than it is
Lott. The County's acts of maintenance on the private portions of the
drainage system in Cottage Park were "sporadic" and not sufficient to
justify a conclusion that the County assumed responsibility over the entire
drainage system. Moreover, like Vestavia Hills and Hoover in Royal
Automotive, the County did not purposefully construct a drainage system
in the O'Fallon subdivision to redirect water into the Cottage Park
drainage system. Further, the landowners have not demonstrated that,
like the City of Daphne in Lott, the County uses the Cottage Park
drainage system as "an integral part" of its own drainage system.4
The landowners also criticize the County for approving the plans for
the O'Fallon subdivision, which was constructed in 2015.5 The landowners
suggest that, by undertaking to review and approve development plans,
4The landowners have not established that the County's acceptance
of the drainage system in the O'Fallon subdivision to the extent that
system "affects" the roads therein puts the County in the same position as
the City of Daphne in Lott.
5Although the landowners make passing reference to the County's
approval of the plans for the other three subdivisions that lie uphill from
Cottage Park, they concentrate on the O'Fallon subdivision.
17
1190468; 1190469
the County assumes a duty to the owners of downhill property to ensure
that the plans include adequate drainage systems. According to the
landowners, if the County approves a plan for an upland subdivision that
lacks a sufficient drainage system, the County can be held liable for the
flooding of downhill private property.
The landowners rely primarily on Havard v. Palmer & Baker
Engineers, Inc., 293 Ala. 301, 302 So. 2d 228 (1974), overruled on other
grounds in Ex parte Insurance Co. of North America, 523 So. 2d 1064 (Ala.
1988). In Havard, the plaintiff's decedent was killed in a fire in the
Bankhead Tunnel in the City of Mobile. Thereafter, the plaintiff sued an
engineering firm that had contracted with Mobile to inspect the tunnel,
including the fire-suppression equipment kept in the tunnel. The plaintiff
alleged that the engineering firm had failed to identify faulty fire-fighting
equipment in the tunnel. In considering whether the engineering firm
owed a duty to the decedent, with whom the firm was not in contractual
privity, this Court stated:
"[T]he test [for whether a duty existed] here is, would an
ordinary man in defendant's position, knowing what they knew
or should have known, anticipate that injury of the nature of
18
1190468; 1190469
that suffered was likely to result. Applying this test, the
complaint ... alleges a duty. It could be foreseen or anticipated
by [the engineering firm] that a fire could break out in the
Tunnel and when it did break out, good and workable
fire-fighting equipment would be needed to fight the fire."
293 Ala. at 307, 302 So. 2d at 232.
The landowners assert that the County should be held liable
because, they say, it was foreseeable that flooding could occur as a result
of the County's approval of the plans for the O'Fallon subdivision. They
analogize the County's role in approving those plans to the role the
engineering firm played in inspecting the Bankhead Tunnel in Havard.
Pursuant to its contract with the City of Mobile, the engineering
firm in Havard specifically assumed a duty to ensure that the fire-
suppression equipment in the tunnel worked properly, and it was clearly
foreseeable to the firm that people could be injured or killed if the firm
was negligent in doing so. In the present case, the County asserts that it
simply undertakes to ensure that a licensed engineer has designed a
drainage system for a private developer and that that engineer has
concluded that the development will not increase the amount of storm-
water runoff. According to the County, it does not make engineering
19
1190468; 1190469
calculations itself or check the private engineer's work. As the County
points out, the landowners "offer this Court no caselaw transforming the
permitting process into an engineering study of drainage."
In Brickman v. Walter Schoel Engineering Co., 630 So. 2d 424 (Ala.
1993), the plaintiffs, who owned homes in a new subdivision in Vestavia
Hills, sued the city's engineer after their homes were damaged by water
runoff. They claimed that the drainage system built by the developer of
the subdivision was insufficient and that the city's engineer should have
discovered the problem. This Court held that the city engineer had no
duty to inspect portions of the drainage system that were located on
private property. In reaching that conclusion, the Court consulted the
city's regulations setting forth the engineer's responsibilities and the
engineer's own testimony as to what his duties were.
In the present case, the County points to § 11-24-2(b), Ala. Code
1975, which provides, in part:
"No proposed plat shall be approved or disapproved by the
county commission without first being reviewed by the county
engineer or his or her designee. Following the review, the
county engineer or his or her designee shall certify to the
commission whether the proposed plat meets the county's
20
1190468; 1190469
regulations. If the proposed plat meets the regulations, it shall
be approved by the commission. Should the proposed plat be
determined by the county engineer to be deficient in any
regard, the county engineer shall detail the deficiency to the
county commission along with a recommendation that it be
disapproved."
Although § 11-24-2(b) states that county engineers are to "certify to the
[county] commission whether [a] proposed plat meets the county's
regulations," as the County points out nothing in § 11-24-2(b) requires a
county engineer to determine whether the calculations of a private
developer's engineer regarding a proposed drainage system are correct.
Regarding the requirements of its regulations, the County points to
an affidavit submitted by County Engineer Kegley. Kegley testified as
follows:
"The County process [for approving proposed subdivision
plats] is governed by ... laws from the Alabama Code and
County regulations adopted by the County Commission.
"The County requires an owner and developer to submit
the proposed plat to the county commission for approval and
obtain a permit to develop. The County Engineer, or one of
his/her delegates, checks to see if the plan meets County
regulations to ensure it has been prepared by a licensed
professional engineer, and that the plans show the proposed
drainage route and drainage calculations, such that they are
sufficient to show the subdivision's storm water runoff flows
21
1190468; 1190469
meet a minimum of a 10-year storm level. The subdivisions are
required to release storm water at a rate that is equal to or
less than what would be released prior to development, and
the engineer's calculations are meant to attest to that
requirement being met by ensuring that the sizing of the
improvements inside the roadways and the drainage
easements can handle the anticipated flows. The specific
numerical guidelines for detention and dispersal of storm
water that the County distributes to developers are broadly
accepted standards, and to my knowledge are in use all over
the country.
"The rationale behind this County procedure is simple:
by requiring developers to use licensed professional engineers,
the County is able to feel certain that the design and
construction of buildings, drains, streets, and other items are
done competently while providing any aggrieved person with
an avenue for redress against the designing entity.
"The O'Fallon subdivision plans were submitted by a
licensed professional engineer. They show calculations that
indicate that the project will actually release less water than
what was being released by the natural slope of the land.
These calculations appear mathematically correct, using the
traditional method of engineering formulas, as is used by other
counties throughout the United States. The County has not
inspected or measured the outfall flow, and it is my
understanding that the County is not obligated to do so by
law."
22
1190468; 1190469
The only specific portion of the County's regulations the landowners cite
to this Court is a requirement that proposed subdivisions "shall have an
adequate storm water collection system."6
The County construes its regulations as requiring only that the
County engineer ensure that a developer's licensed engineer has
concluded that a new development will not result in increased storm-
6Another County regulation provides:
"Street, utility, and other improvements shall be installed in
each new subdivision in accordance with the standards and
requirements of these Regulations and the detailed
construction specifications and engineering requirements.
Approval of the Final Plat shall be subject to the proper
installation of such improvements, as determined by the
County Engineer, or the posting of a surety or irrevocable
letter of credit in such form and amount as approved by the
County Engineer, such amount not to exceed 125% of the
estimated cost of completion, to secure the actual construction
of such improvements."
Although this regulation seems to require the County engineer to verify
that a new subdivision has been constructed according to approved plans,
there apparently was no final inspection performed with respect to the
O'Fallon subdivision. Even though this regulation calls for the County
engineer to perform an inspection prior to "approval of the Final Plat,"
the landowners do not link this regulatory process to the flooding in
Cottage Park and fail to show how it imposes any duty on the County for
their benefit.
23
1190468; 1190469
water runoff. The County asserts that nothing in the regulations requires
the County engineer to perform the same work of the developer's engineer
to ensure that his or her conclusions are correct. In any event, to the
extent the regulations can be construed to impose such a duty, the County
suggests that that duty runs to the public in general, not to individual
citizens, and therefore cannot support a cause of action against the County
for the flooding of private property. In support, the County points to Rich
v. City of Mobile, 410 So. 2d 385 (Ala. 1982).
In Rich, this Court held that a city could not be held liable for the
negligent inspection of a faulty connection between the plaintiff's house
and the city's sewer system. The city's plumbing inspectors were tasked,
presumably pursuant to municipal ordinances, with ensuring that proper
materials were used in residential plumbing lines and connections, that
no leaks existed, and that lines and connections were installed in
compliance with the city's plumbing code. This Court held that there is
no "legal duty, the breach of which imposes liability, in those narrow areas
of governmental activities essential to the well-being of the governed,
where the imposition of liability can be reasonably calculated to
24
1190468; 1190469
materially thwart the City's legitimate efforts to provide such public
services." 410 So. 2d at 387. The Court suggested that the duty of the city
plumbing inspectors in Rich was owed "to the public generally" and not "to
individual homeowners." Id. at 385. In the present case, the County
analogizes the inspection of sewer connections in Rich to the County's
consideration of development plans. The County also cites Hilliard v. City
of Huntsville, 585 So. 2d 889 (Ala. 1991), in which this Court held that
municipal electrical inspections benefit the general public and that any
benefit to an individual is merely incidental and not a guarantee of safety.
It is the landowners' burden to show that the trial court erred in
entering the summary judgments in favor of the County. Considering the
appellate record and the arguments before this Court, we simply cannot
conclude that the landowners have met that burden with respect to their
claims based on the County's approval of the O'Fallon subdivision.7
7The landowners suggest that Reichert, supra, supports their claim
that the County can be held liable for approving the plans for the O'Fallon
subdivision. Although the Court in Reichert noted that the City of Mobile
had "issued additional permits for development to the north and to the
west of the plaintiffs' subdivision, causing an increased discharge of
surface water to be directed to the area of the plaintiffs' property," 776 So.
2d at 766, the gist of the plaintiffs' claims was that the City of Mobile had
25
1190468; 1190469
The landowners also appear to suggest that, simply because water
enters the County's rights-of-way in Cottage Park, the County
automatically becomes responsible to stop the water from entering
surrounding private property. In support, they refer to testimony given
by County Engineer Kegley indicating that, once water reaches the
County's roadway, the county "maintains" the water:
"Q. The stormwater system where the underground culvert ...
that goes under your road, that's not the County's system?
"A. Once it gets to our right-of-way, it becomes County
maintained, yes, sir.
"....
"A. And that inlet pipe flows downstream a little bit further
until it gets to the County right-of-way. And then just inside
the County right-of-way there's a manhole. Once it reaches the
County right-of-way, it becomes our maintenance.
"Q. You're saying that the inlet pipe is not within the County's
right-of-way?
"A. That's correct."
been negligent in designing, constructing, or maintaining its own drainage
system. Reichert does not establish that the County is liable in the
present case for approving upland-development plans.
26
1190468; 1190469
As the County asserts, Kegley was simply testifying to "the boundaries or
limits of what physical part of the [drainage] system was
County-maintained and within the County right-of-way." He did not
concede that the County owes a duty to "maintain" floodwater by keeping
it off private property simply because it enters the County's rights-of-way.
The landowners also rely on the foreseeability test in support of their
theory that the County has a duty to stop storm water once it enters the
County's rights-of-way. See Smitherman v. McCafferty, 622 So. 2d 322,
324 (Ala. 1993) ("The key factor [in determining whether a duty exists] is
whether the injury was foreseeable by the defendant."). They claim it is
foreseeable to the County that, if it does not stop water once it enters the
County's roads, the water will "escape" onto private property. But
foreseeability is not the only factor courts consider in determining
whether a duty exists. See DiBiasi v. Joe Wheeler Elec. Membership
Corp., 988 So. 2d 454, 461 (Ala. 2008) (identifying foreseeability, public
policy, social considerations, the nature of the defendant's activity, the
relationship between the parties, and the type of injury or harm
threatened as factors to be considered when determining whether a duty
27
1190468; 1190469
exists). The landowners have not convincingly argued that foreseeability
alone creates an affirmative duty to stop water from flowing onto adjacent
property simply because it enters a roadway.
Finally, at various points in their brief, the landowners point to
Mitchell v. Mackin, 376 So. 2d 684 (Ala. 1979), in which the Court
discussed principles relating to a landowner's altering of property and
interference with the natural flow of surface water to the detriment of
downhill neighbors. The landowners, however, have not demonstrated
that, for purposes of the rules discussed in Mitchell, the County is an
owner of property lying uphill from the landowners' property and has
interfered with the natural flow of surface water to the detriment of the
landowners.
With respect to their claim that the County is liable for negligence
in connection with the flooding of private property in Cottage Park, the
landowners have not demonstrated that the trial court erred in entering
summary judgments in favor of the County. Regarding the landowners'
nuisance and trespass theories, the trial court concluded that those claims
fail for the same reason their negligence claim fails. See generally Royal
28
1190468; 1190469
Automotive, 995 So. 2d at 160 ("The trial court correctly found that
because the [plaintiffs'] negligent-maintenance claims fail, their nuisance
and trespass claims must also fail."). The landowners do not point to any
authority supporting the proposition that, even if the County does not owe
them a duty that would support a negligence claim in connection with the
flooding of private property, the landowners can still succeed under a
nuisance or trespass theory as to such flooding.
The County's Responsibility to Keep its Roads Safe and Convenient
The landowners argue that the County has a duty to alleviate the
flooding on the roads in Cottage Park to make the roads safe and
convenient to use. The landowners submitted evidence to the trial court
indicating that the flooding of the roads makes them impassable at times
and that residents have had to park their vehicles uphill and walk
barefoot to their homes. There are photographs and videos in the record
showing the roads in Cottage Park completely covered by swiftly flowing,
muddy water.
In its brief to this Court, the County does not address the
landowners' argument that the County has a duty to keep its roads safe
29
1190468; 1190469
and convenient. During oral argument, counsel for the County suggested
that the landowners had not argued to the trial court that the County has
such a duty. Although the landowners' complaint concentrates primarily
on the flooding of their private property, it does assert that the flooded
roadways in Cottage Park create a dangerous condition and requests an
injunction directing the County to alleviate the flooding in the
neighborhood. Moreover, in response to the County's summary-judgment
motions, the landowners pointed to statutory law and caselaw that, they
asserted, made the County responsible for alleviating the flooding on the
roads in Cottage Park to make them safe and convenient. We conclude
that the landowners sufficiently raised this theory in the trial court.
The landowners cite § 23-1-80, Ala. Code 1975, which provides:
"The county commissions of the several counties of this
state have general superintendence of the public roads,
bridges, and ferries within their respective counties so as to
render travel over the same as safe and convenient as
practicable. To this end, they have legislative and executive
powers, except as limited in this chapter. They may establish,
promulgate, and enforce rules and regulations, make and enter
into such contracts as may be necessary or as may be deemed
necessary or advisable by such commissions to build, construct,
make, improve and maintain a good system of public roads,
bridges, and ferries in their respective counties, and regulate
30
1190468; 1190469
the use thereof; but no contract for the construction or repair
of any public roads, bridge, or bridges shall be made where the
payment of the contract price for such work shall extend over
a period of more than 20 years."
(Emphasis added.) In Macon County Commission v. Sanders, 555 So. 2d
1054 (Ala. 1990), upon which the landowners rely, the plaintiff sued
Macon County and the Macon County Commission in tort after the
plaintiff's decedent was killed in a car accident on a county road. The trial
court entered a judgment on a jury verdict against the defendants. On
appeal, this Court, citing § 23-1-80, noted that "[a] county has the duty to
keep its roads in a reasonably safe condition for travel and to remedy
defects in the roadway on receipt of notice of those defects." 555 So. 2d at
1057. See also Jefferson Cnty. v. Sulzby, 468 So. 2d 112, 114 (Ala. 1985)
("[G]overnmental entities, by virtue of their exclusive authority to
maintain and control the roadways[,] are under a common law duty to
keep the streets in repair and in a reasonably safe condition for their
intended use."). The Court in Sanders affirmed the trial court's judgment,
noting that the road on which the decedent was killed was overgrown with
vegetation, had ruts and washouts, was too narrow, had insufficient sight
31
1190468; 1190469
distances, and lacked warning signs. Although Sanders involved a
monetary award based on a wrongful death and not a claim seeking an
injunction, as noted the Court in Sanders did state that counties have a
duty "to remedy defects in the roadway on receipt of notice of those
defects." 555 So. 2d at 1057.
The landowners also rely on a nuisance theory not discussed in
Sanders. According to the landowners, the frequent flooding of the roads
in Cottage Park is a nuisance. The landowners acknowledge hurdles for
individuals attempting to remedy a "public" nuisance as opposed to a
"private" nuisance. Specifically, they note that § 6-5-121, Ala. Code 1975,
provides:
"Nuisances are either public or private. A public nuisance
is one which damages all persons who come within the sphere
of its operation, though it may vary in its effects on
individuals. A private nuisance is one limited in its injurious
effects to one or a few individuals. Generally, a public nuisance
gives no right of action to any individual, but must be abated
by a process instituted in the name of the state. A private
nuisance gives a right of action to the person injured."
But, as the landowners point out, "a public nuisance may ... give an
individual a cause of action for abatement when he has suffered damages
32
1190468; 1190469
different in degree and kind from those suffered by the general public."
City of Birmingham v. City of Fairfield, 375 So. 2d 438, 441 (Ala. 1979).
See also § 6-5-123, Ala. Code 1975 ("If a public nuisance causes a special
damage to an individual in which the public does not participate, such
special damage gives a right of action.").
Hall v. North Montgomery Materials, LLC, 39 So. 3d 159 (Ala. Civ.
App. 2008), a per curiam opinion of the Court of Civil Appeals joined by
two judges, with three judges concurring in the result, concluded that
individuals could maintain an action to abate a public nuisance in the
form of a proposed gravel quarry, which would have increased the use of
heavy trucks in a residential area. The use of the trucks would have
caused the roads to deteriorate, making it difficult and unsafe for the
plaintiffs to use the roads to reach their houses. The opinion in Hall
states:
"An individual who cannot reach his home (or any other
destination, such as a family cemetery, that holds a
significance that society is prepared to recognize as
compelling) without having to take a circuitous alternate route
in order to avoid a public nuisance has established special
injury different in kind as well as degree from the injury
suffered by the public at large. A fortiori, an individual who
33
1190468; 1190469
cannot avoid a public nuisance by taking an alternate route to
his home -- because there is no alternate route -- has
established a special injury.
"Applying those principles to the facts of the present case
leads to the following conclusion: The local residents, who
cannot travel to or from their homes without encountering the
inherent danger of driving on [the roads in question] because
those roads provide the only means of ingress and egress to
their homes, established special injury different in kind as well
as degree from the injury suffered by the public at large.
Accordingly, they had a right of action, pursuant to § 6–5–123,
to abate a public nuisance."
39 So. 3d at 178–79. The opinion in Hall references three decisions by this
Court holding that individuals could seek to abate nuisances that blocked
access to public roads. See Barnes v. Kent, 292 Ala. 508, 296 So. 2d 881
(1974) (noting that nuisance blocked plaintiff's access to public road
leading to his property and required him to take circuitous route that
added "two or three extra miles"); Scruggs v. Beason, 246 Ala. 405, 20 So.
2d 774 (1945) (noting that nuisance blocked access to public road leading
to
cemetery
where
plaintiffs'
family
members
were
buried);
Sloss–Sheffield Steel & Iron Co. v. Johnson, 147 Ala. 384, 41 So. 907
(1906) (noting that nuisance blocked public road and required plaintiff to
take a circuitous route to his property). See also McIntosh v. Moody, 228
34
1190468; 1190469
Ala. 165, 167, 153 So. 182, 184 (1934) (holding that a nuisance in the form
of a building that had been erected on a public road could be abated in an
action brought by the owners of another building "at the point where the
alleged obstruction [was] maintained").
In the present case, the County has taken the position that it does
not cause the flooding of the roads in Cottage Park. But it has not been
disputed that the County has responsibility over those roads and a duty
to maintain their safety and convenience. A county can be held liable for
injuries suffered by people using roads that are in an unsafe condition.
Sanders. We have not been presented with a persuasive argument that
a county cannot be enjoined from refusing to remediate the unsafe
condition of a road.
We reverse the summary judgments to the extent they are based on
the proposition that the County simply has no duty to maintain the roads
in Cottage Park so that they are safe and convenient by taking steps to
alleviate flooding on those roads and remand the cases for further
proceedings. We express no opinion as to whether the landowners will
ultimately succeed based on that theory.
35
1190468; 1190469
1190468 -- AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED.
1190469 -- AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED.
Parker, C.J., and Bolin, Wise, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Sellers, J., concurs specially.
Shaw and Bryan, JJ., concur in the result in part and dissent in
part.
36
1190468; 1190469
SELLERS, Justice (concurring specially).
I authored the main opinion. I write specially to address one aspect
of Justice Shaw's opinion dissenting in part. That opinion appears to
conclude that the County of Mobile does not have a responsibility to take
reasonable steps to alleviate flooding on its roads, when those roads
become dangerous or impassable, because the County itself did not cause
the flooding by, for example, altering uphill land to the detriment of
downhill land. But counties have a statutory and common-law duty to
keep their roads as safe and convenient as practicable, and they must take
reasonable steps to remedy unsafe or inconvenient conditions once notified
of their existence. § 23-1-80, Ala. Code 1975; Macon Cnty. Comm'n v.
Sanders, 555 So. 2d 1054 (Ala. 1990); Jefferson Cnty. v. Sulzby, 468 So. 2d
112 (Ala. 1985). I do not view the existence of that duty as contingent
upon the counties themselves having affirmatively caused the unsafe or
inconvenient condition.
37
1190468; 1190469
SHAW, Justice (concurring in the result in part and dissenting in part).
I agree with the conclusion of the main opinion insofar as it affirms
the summary judgments entered by the trial court on the basis that
Mobile County ("the County") owes no duty to alleviate flooding on
privately owned property; therefore, I concur in the result reached in that
portion of the opinion. However, I am unable to agree with the opinion's
second conclusion that the summary judgments for the County were
inappropriate to the extent that they were allegedly based on the
proposition that the County has no duty to maintain its roads so that they
are safe and convenient.
In their original complaints, as to the County, in addition to
damages for the alleged devaluation of and interference with privately
owned real property, Lewis A. Richardson and Ellen G. Richardson and
Sherry E. Phelps ("the landowners") sought "a permanent mandatory
injunction ... against the ... County ... that the [County] be required to
provide adequate stormwater and surface water drainage systems so as
to alleviate the continued flooding or possibility of flooding on [the
landowners'] property." I see nothing in those pleadings referencing
38
1190468; 1190469
public roads or any duty of the County with respect to public roads.
Thereafter, the landowners amended their complaints to add allegations
connected to new flooding events. However, as reflected in the County's
summarization of the landowners' claims in its brief in support of the
summary judgments, at no time did their requests for injunctive relief
against the County appear to change. During the proceedings on the
County's summary-judgment motions, as observed in the main opinion,
the landowners' evidentiary submissions did include reference to and
evidence of corresponding flooding of the roads in the subdivision;
however, it appears clear that the emphasis of the landowners' arguments
was the effect of the alleged flooding on their privately owned real
property.
Following the filing of the County's summary-judgment motions and
after the trial court had taken the matter under advisement, the
landowners filed amended complaints in each case, alleging for the first
time that the County "allowed storm water and surface water from its
right of way to flood private property and to damage private property."
Nonetheless, the landowners' request for injunctive relief as to the County
39
1190468; 1190469
was not amended and remained the same. In addition, the record
indicates that the landowners expressly conceded that, "in the event the
[trial] Court grants [the County's] summary judgment ..., [the landowners]
agreed that the amended complaint would be moot and of no effect ."
The trial court's subsequent orders entering summary judgments for
the County on the landowners' negligence claims reflects that it concluded
as a matter of law "that the County had no duty to maintain the drainage
ditch/system in question." In reaching that conclusion, the trial court
specifically noted that the "primary criticism" of the landowners' expert
"focuses on the initial design of the drainage system and the failure to
upgrade that original design." As the trial court correctly pointed out, the
landowners' complaint thus "points to an issue of design of the drainage
system of the subdivision and not a lack of maintenance by the County."
Similarly, as to its subsequent orders entering summary judgments for
the County on the landowners' nuisance and trespass claims, the trial
court found that "the nuisance, if any, arose out of a breach of a duty to
provide " 'appropriate up-keep,' a duty which does not belong to the
County" and that the landowners' trespass claims also failed because "[a]t
40
1190468; 1190469
best [they] demonstrate a failure to act or take actions which the county
had no legal duty to take, i.e., redesign or provide appropriate upkeep of
the private drainage system. " Thus, I see nothing to suggest that the
trial court's summary judgments were based, to any extent, on its
rejection of the notion that the County has a legal duty to maintain its
roads. To the contrary, the landowners specifically argued in
postjudgment proceedings that the trial court's summary-judgment orders
"do not address the flooding from the County’s right-of-way."
In any event, and assuming that the landowners' road-based claims
were properly presented below, I see nothing to suggest that ordering the
County to perform its statutory responsibility to maintain its roads will
afford the landowners relief: the landowners' evidence does not
demonstrate that the rights-of-way -- or any other aspect of the roads
under the County's responsibility -- were improperly designed,
constructed, or maintained. Moreover, it appears that the primary source
of the flooding is not runoff from the County's roads.
Like the trial court, the main opinion in its initial holding appears
to accept the County's conclusion that it is responsible only for portions of
41
1190468; 1190469
the drainage system located in the County's rights-of-way and only to the
extent necessary to prevent flooding of the roads. However, not only are
the portions of the affected drainage ditch, according to the main opinion,
located "outside the County's rights-of-way," ___ So. 3d at ___, but the
record suggests alternate sources of flooding and, as the main opinion also
concludes, the recent increase in flooding within Cottage Park is largely
attributable to the detention pond located in the O'Fallon subdivision. See
___ So. 3d at ___. That being the case, it appears to me that the second
holding of the opinion not only places the trial court in error on grounds
that the trial court did not consider, but also awards to the landowners
relief that they never actually requested and, to the extent that it does so,
relies on a conflicting analysis. If the flooding in Cottage Park -- both on
private property and the roads -- is caused by the improperly designed
drainage system in a neighboring subdivision over which the County has
no duty or responsibility, then I see no causation demonstrated on the
County's part in relation to the flooding on the roads. Thus, as to that
portion of the main opinion, I respectfully dissent.
Bryan, J., concurs.
42 | November 25, 2020 |
9627f660-5a73-4422-9084-c478dd5b3225 | Ex parte Jennifer Alley Wood. | N/A | 1190946 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1190946
Ex parte Jennifer Alley Wood. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: Jennifer Alley Wood v. ADT LLC
and Defenders, Inc.) (Lee Circuit Court: CV-14-900640; Civil Appeals :
2180739).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
ee3f8df1-a981-40a6-8848-0fcf7076c1d8 | Ex parte N.W. | N/A | 1191054 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1191054
Ex parte N.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: N.W. v. Mobile County Department of Human
Resources) (Mobile Juvenile Court: JU-10-909.04; Civil Appeals :
2190554).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
ef224332-4e83-4771-a925-0e6747d9b9cf | Ex parte Alabama Department of Environmental Management. | N/A | 1190191 | Alabama | Alabama Supreme Court | Rel: November 6, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020 - 2021
_________________________
1190191
_________________________
Ex parte Lance R. LeFleur, in his official capacity as Director of
the Alabama Department of Environmental Management
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Ronald C. Smith, Latonya Gipson, and William T. Gipson
v.
Lance R. LeFleur, in his official capacity as Director of the
Alabama Department of Environmental Management)
(Montgomery Circuit Court, CV-17-900021;
Court of Civil Appeals, 2180375)
1190191
WISE, Justice.
We granted the petition for a writ of certiorari filed by Lance R.
LeFleur, in his official capacity as director ("the director") of the Alabama
Department of Environmental Management ("ADEM"), seeking review of
the Court of Civil Appeals' decision in Smith v. LeFleur, [Ms. 2180375,
October 11, 2019] ___ So. 3d ___ (Ala. Civ. App. 2019), in which the Court
of Civil Appeals held that ADEM did not have the authority to amend Ala.
Admin. Code (ADEM), Rule 335-13-4-.15, Rule 335-13-4-.22, or Rule 335-
13-4-.23 to permit the use of alternative-cover materials at landfills ("the
alternative-cover-materials rules"). For the reasons set forth below, we
reverse the judgment of the Court of Civil Appeals.
Facts and Procedural History
The following facts from the Court of Civil Appeals' opinion are
helpful to an understanding of this case:
"Ronald C. Smith, Latonya Gipson, and William T.
Gipson ('the appellants') appeal from a summary judgment
entered by the Montgomery Circuit Court ('the trial court') in
favor of Lance R. LeFleur ('the director'), in his official capacity
as the director of the Alabama Department of Environmental
Management ('ADEM'). We reverse the summary judgment
2
1190191
and remand the case to the trial court with instructions to
enter a summary judgment for the appellants.
" Procedural History
"Since 2004, Ronald C. Smith has resided near the
Stone's Throw Landfill located in Tallapoosa County. During
that time, ADEM has permitted the operators of the Stone's
Throw Landfill to use at least one material other than earth to
cover solid waste deposited in the landfill. Since 2005,
Latonya Gipson has resided near the Arrowhead Landfill
located in Perry County. William T. Gipson, Latonya's
brother, has resided with her at the same location for the last
10 years. Since 2009, ADEM has permitted the operators of
the Arrowhead Landfill to use several materials other than
earth to cover solid waste deposited in the landfill.
"On January 9, 2017, the appellants filed a multicount
complaint seeking, among other things, a judgment declaring
that ADEM had impermissibly adopted Ala. Admin. Code
(ADEM), Rules 335-13-4-.15, -.22, and -.23 ('the alternative-
cover-materials rules'), allowing landfill operators to use
alternative materials to cover solid waste in violation of the
Solid Wastes and Recyclable Materials Management Act ('the
SWRMMA'), Ala. Code 1975, § 22-27-1 et seq., which, they
argued, authorizes the use of only earth to cover solid waste.
The appellants further requested that the trial court enjoin
ADEM from enforcing the alternative-cover-materials rules
and from permitting the continued use of alternative-cover
materials at the Stone's Throw Landfill and the Arrowhead
Landfill. The trial court dismissed the complaint, but, on
appeal, this court reversed the judgment insofar as it
dismissed the claims against the director. See Keith v.
LeFleur, 256 So. 3d 1206 (Ala. Civ. App. 2018).
3
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"Following the issuance of this court's opinion in Keith,
the trial court entered a judgment dismissing the first five
counts of the complaint as moot, leaving for adjudication only
the claims for a declaratory judgment and for injunctive relief.
The appellants and the director both moved for a summary
judgment as to those claims. The director argued that the
appellants lacked standing to contest the validity of the
alternative-cover-materials rules and asserted that those rules
had been validly promulgated by ADEM pursuant to its
statutory authority. The appellants asserted that they had
standing to contest the alternative-cover-materials rules,
which, they argued, had been adopted without statutory
authority. On December 18, 2018, the trial court entered
separate orders denying the appellants' summary-judgment
motion and granting the director's summary-judgment motion.
The appellants filed their notice of appeal to this court on
January 23, 2019.5 This court conducted oral arguments in the
case on August 14, 2019.
" Regulatory Background
"In 1965, the United States Congress enacted the federal
Solid Waste Disposal Act, formerly codified at 42 U.S.C. §§
3521-3259, 'primarily to provide federal support for
development of state solid waste management plans.' Kim
Diana Connolly, Small Town Trash: A Model Comprehensive
Solid Waste Ordinance for Rural Areas of the United States,
53 Cath. U.L. Rev. 1, 9 (2003). In response to the federal
incentive, in 1969, the Alabama Legislature enacted this
state's Solid Wastes Disposal Act ('the SWDA'). See Ala. Acts
1969, Act No. 771. The SWDA regulated the disposal of solid
wastes within the state. The SWDA defined 'solid wastes' to
include '[a]ll putrescible and non-putrescible discarded
materials,' including, but not limited to, 'garbage,' 6 demolition
4
1190191
materials, and industrial waste. Act No. 771, § 1(c). The Act
provided that
" '[g]arbage and rubbish containing garbage shall
be disposed of by sanitary landfill, approved
incineration, composting, or by other means now
available or which may later become available as
approved by the Health Department and under the
supervision and control of a governmental, private,
or other agency acting within the provisions of this
Act.'
"Act No. 771, § 2(b).
"The SWDA defined 'landfill' as
" '[a] method of compaction and earth cover of solid
wastes other than those containing garbage or
other putrescible wastes including but not limited
to tree limbs and stumps, demolition materials,
incinerator residues, and like materials not
constituting a health or nuisance hazard, where
cover need not be applied on a per day used basis.'
"Act No. 771, § 1(i), (now codified at Ala. Code 1975, § 22-27-
2(20)) (emphasis added). The SWDA defined 'sanitary landfill'
as
" '[a] controlled area of land upon which solid waste
is deposited and is compacted and covered with
compacted earth each day as deposited, with no
on-site burning of wastes, and so located,
contoured, and drained that it will not constitute a
source of water pollution as determined by the
Alabama Water Improvement Commission.'
5
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"Act No. 771, § 1(h) (now codified at Ala. Code 1975, § 22-27-
2(32)) (emphasis added).
"In 1976, Congress completely restructured federal laws
regulating solid-waste disposal through the passage of the
Resource Conservation and Recovery Act ('RCRA') of 1976,
Pub. L. No. 94-580, 90 Stat. 2795 (codified as 42 U.S.C. §§
6901-6992k). Through the RCRA, Congress ordered the
United States Environmental Protection Agency ('the EPA') to
establish regulations 'containing criteria for determining
which facilities shall be classified as sanitary landfills and
which shall be classified as open dumps ....' 42 U.S.C. §
6944(a). In 1979, the EPA acted on that legislative directive
by promulgating regulations defining the minimum standards
for sanitary landfills, 40 C.F.R. Part 257, which included
regulations requiring '[p]eriodic application of cover material'
described as 'soil or other suitable material.' 40 C.F.R. §§
257.3-6(c)(4) and 257.3-8(e)(6) (emphasis added).
"Although the EPA regulations recognized that material
other than soil could be used to cover solid waste at a sanitary
landfill, the first comprehensive rules and regulations adopted
pursuant to the SWDA in 1981 established that solid waste
disposed into any 'sanitary landfill' operated within the state
'shall be covered' by '[a] minimum of six inches of compacted
earth' 'at the conclusion of each day's operation.' Ala. Admin.
Code, Rule 335-13-4-.22(1)(a)1 (1981). The regulations did not,
at that time, authorize the use of any alternative materials to
cover solid waste.
"In 1982, the Alabama Legislature created ADEM, Ala.
Acts 1982, Act No. 32-612, § 4(i), and appointed ADEM as the
state agency responsible for regulating solid-waste disposal.
See Act No. 32-612, § 3(n); see also Ala. Code 1975, § 22-27-9
6
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(enacted in 2008). On July 21, 1988, ADEM revised Rule 335-
13-4-.22(1) to provide:
" '(a) All waste [deposited in a sanitary landfill]
shall be covered as follows:
" '1. A minimum of six inches of
compacted earth or other alternative
cover material that includes but is not
limited to foams, geosynthetic or waste
products, and is approved by [ADEM]
shall be added at the conclusion of each
day's
operation
or
as
otherwise
approved by [ADEM].'
"Rule 335-13-4-.22(1)(a)1. (1988) (emphasis added). That 1988
amendment introduced into Alabama the option for sanitary-
landfill operators to cover solid waste by materials other than
earth.
"In 1991, the EPA promulgated regulations regarding the
disposal of household waste in 'municipal solid waste landfills,'
see 40 C.F.R. Part 258, pursuant to Subtitle D of the RCRA.
See 42 U.S.C. §§ 6941-6949a. In response, on November 2,
1993, ADEM adopted new regulations incorporating the
federal definition of 'municipal solid waste landfill,' see 40
C.F.R. § 258.2, as
" 'a discrete area of land or an excavation that
receives household waste and that is not a land
application unit, surface impoundment, injection
well, or waste pile, as those terms are defined in
this Rule. A MSWLF [municipal solid waste
landfill] unit also may receive other types of solid
wastes,
such
as
commercial
solid
waste,
7
1190191
nonhazardous sludge, conditionally exempt small
quantity generator waste, industrial solid waste,
construction/demolition waste and/or rubbish. Such
a landfill may be publicly or privately owned. A
MSWLF unit may be a new MSWLF unit, an
existing MSWLF unit or a lateral expansion....'
"Ala. Admin. Code (ADEM), Rule 335-13-1-.03 (1993) (a
substantially similar definition is currently found in Ala.
Admin. Code (ADEM), Rule 335-13-1-.03(88)). ADEM further
clarified in the definition that '[a] municipal solid waste
landfill is a sanitary landfill.' Id.
"In 1993, ADEM also amended Rule 335-13-4-.22(1) to
provide:
" '(a) All waste [deposited at a municipal solid
waste landfill] shall be covered as follows:
" '1. A minimum of six inches of
compacted earth or other alternative
cover material that includes but is not
limited to foams, geosynthetic or waste
products, and is approved by [ADEM]
shall be added at the conclusion of each
day's
operation
or
as
otherwise
approved by [ADEM] to control disease
vectors, fires, odors, blowing litter, and
scavenging.' 7
"Ala. Admin. Code (ADEM), Rule 335-13-4-.22(1)(a)1. (1993)
(bracketed language and emphasis
added). ADEM
furthermore introduced the terms 'construction/demolition-
inert landfill' and 'industrial landfill,' see Ala. Admin. Code
(ADEM), Rule 335-13-1-.03 (1993) (the definitions for these
8
1190191
terms can now be found at Rule 335-13-1-.03(28) and (67)), and
recognized that those types of landfills could use alternative-
cover materials by amending Rule 335-13-4-.23(1) to provide:
" '(a)
All
waste
[deposited
at
a
construction/demolition-inert landfill or industrial
landfill] shall be covered as follows:
" '1. A minimum of six inches of
compacted earth or other alternative
cover material that includes but is not
limited to foams, geosynthetic or waste
products, and is approved by [ADEM]
shall be added at the conclusion of each
day's
operation
or
as
otherwise
approved by [ADEM] to control disease
vectors, fires, odors, blowing litter, and
scavenging.'
"Rule 335-13-4-.23(1)(a)1. (1993) (emphasis added). Finally,
ADEM amended Rule 335-13-4-.15 to provide that
" '[d]aily, weekly, or some other periodic cover shall
be required at all landfill units, as determined by
[ADEM].
" '(1) The suitability and volume of any
soils for daily, intermediate and final
cover requirements shall be determined
by soil borings and analysis.
" '(2) Any proposal to use alternate
cover systems shall be submitted to and
approved
by
[ADEM]
prior
to
implementation.'
9
1190191
"Rule 335-13-4-.15 (emphasis added). Those 1993 amendments
established the alternative-materials-cover rules challenged by
the appellants in this litigation. The alternative-materials-
cover rules have remained in effect since 1993 without
substantive change.8
"In 2005, the Alabama Legislature adopted ADEM's
definition of 'municipal solid waste landfill,' providing that '[a]
municipal solid waste landfill is a sanitary landfill.' Ala. Acts
2005, Act No. 2005-302, § 1 (now codified at Ala. Code 1975, §
22-27-2(23)). The Alabama Legislature has not enacted any
statute specifically addressing construction/demolition-inert
landfills or industrial landfills but, instead, has maintained
the general definition of 'landfill,' since the inception of the
SWDA, as a method of disposing of construction/demolition
materials and industrial waste by 'compaction and earth
cover.' Ala. Code 1975, § 22-27-2(20).
"As noted earlier, in 2008 the Alabama Legislature
renamed the SWDA, and it is now known as the SWRMMA.
See Ala. Acts 2008, Act No. 2008-151, § 1. The SWRMMA, as
currently drafted, maintains much of the regulatory
framework established in the SWDA, including maintaining
that ADEM shall have regulatory control over solid-waste
disposal. See Ala. Code 1975, § 22-27-7. The SWRMMA
continues to define 'landfill,' see Ala. Code 1975, § 22-27-2(20),
and 'sanitary landfill,' § 22-27-2(32), as did the SWDA as
methods of disposal of solid waste by 'compaction and earth
cover' or by 'compact[ing] and cover[ing] with compacted
earth.' The SWRMMA also continues to define 'municipal solid
waste landfill,' as did the 2005 amendment to the SWDA, to
provide that '[a] municipal solid waste landfill is a sanitary
landfill.' § 22-27-2(23). As under the SWDA, the SWRMMA
provides that 'garbage and rubbish containing garbage shall be
disposed of by sanitary landfill, approved incineration,
10
1190191
composting, or by other means now available or which may
later become available as approved by [ADEM].' Ala. Code
1975, § 22-27-3(d).
"In adopting the SWRMMA, the legislature added Ala.
Code 1975, § 22-27-10(a), which provides, in pertinent part:
" 'Solid waste shall be collected, transported,
disposed, managed, or any combination thereof,
according to the requirements of this article, and
the rules of [ADEM] ..., as authorized by this
article, and if disposed of in this state, shall be
disposed in a permitted landfill or permitted
incineration, or reduced in volume through
composting, materials recovery, or other existing or
future means approved by and according to the
requirements of [ADEM], under authorities
granted by this article.'
"Finally, the 2008 amendments also added Ala. Code 1975, §
22-27-17, which provides, in pertinent part:
" '(a) Beginning on October 1, 2008, the
following disposal fees are levied upon generators
of solid waste who dispose of solid waste at solid
waste management facilities permitted by [ADEM]
subject to this chapter, which shall be collected in
accordance with subsection (b):
" '....
" '(4) Regulated solid waste that
may be approved by [ADEM] as
alternate cover materials in landfills
11
1190191
shall be assessed the disposal fees
applicable in subdivisions (1) and (2).'
"(Emphasis added.)
" Issues
"The appellants request that this court reverse the
judgment of the trial court insofar as it granted the director's
summary-judgment motion and denied the motion for a
summary judgment filed by the appellants. See Mountain
Lakes Dist., North Alabama Conference, United Methodist
Church, Inc. v. Oak Grove Methodist Church, 126 So. 3d 172,
180 (Ala. Civ. App. 2013) ('Where cross-motions for a summary
judgment are filed in the trial court, the party whose motion
was not granted is entitled to have that motion reviewed on
appeal from the grant of the opponent's motion.'). As framed
by the parties, the issues before this court are: (1) whether the
appellants have standing to contest the alternative-cover-
materials rules and (2) whether ADEM exceeded its statutory
authority in adopting the alternative-cover-materials rules.
"_______________
" 5This court has appellate jurisdiction over appeals 'from
administrative agencies.' See Ala. Code 1975, § 12-3-10. Our
supreme court has held that this court has ' "exclusive
jurisdiction of all appeals involving the enforcement of, or
challenging, the rules, regulations, orders, actions, or decisions
of administrative agencies," even when the appeal is, in form,
an appeal from a circuit court.' Ex parte Mt. Zion Water
Auth., 599 So. 2d 1113, 1119 (Ala. 1992) (quoting
Kimberly–Clark Corp. v. Eagerton, 433 So. 2d 452, 454 (Ala.
1983)). This appeal lies within this court's exclusive appellate
jurisdiction because it arises from a judgment entered by a
12
1190191
circuit court adjudicating a challenge to the validity of the
rules of an administrative agency.
" 6The SWDA defined 'garbage' as:
" 'Putrescible
animal
and
vegetable
wastes
resulting from the handling, preparation, cooking
and consumption of food, including wastes from
markets, storage facilities, handling and sale of
produce and other food products, and excepting
such materials that may be serviced by garbage
grinders and handled as household sewage.'
"Act No. 771, § 1(c) (now codified at Ala. Code 1975, § 22-27-
2(11)).
" 7A 'disease vector' is 'an organism that is capable of
transmitting a disease from one host to another.' Ala. Admin.
Code (ADEM), Rule 335-13-1-.03(38).
" 8ADEM revised its administrative code in 1996 and
2018,
but
those
revisions
did
not
alter
the
alternative-materials-cover rules in any significant aspect."
___ So. 3d at ___ (some footnotes omitted).
On appeal, the Court of Civil Appeals concluded that the appellants
in the Court of Civil Appeals and the respondents in this Court, Ronald C.
Smith, Latonya Gipson, and William T. Gipson, had standing to contest
the alternative-cover-materials rules. It then concluded that ADEM had
exceeded its statutory authority in adopting the alternative-cover-
13
1190191
materials rules. The Court of Civil Appeals reversed the trial court's
judgment and remanded the case with instructions that that court enter
a summary judgment in favor of the appellants.1
The director petitioned this Court for certiorari review of the Court
of Civil Appeals' judgment. In his petition, he argued that the Court of
Civil Appeals' holding that the respondents had standing to contest the
alternative-cover-materials rules conflicted with prior Alabama caselaw.
The director also argued that this case presents an issue of first
impression as to whether ADEM possessed the statutory authority to
authorize the use of ADEM-approved nonearthen cover materials to cover
solid waste at landfills. This Court granted the petition for a writ of
certiorari.
Standard of Review
1After the Court of Civil Appeals released its decision in Smith, the
legislature enacted Act No. 2020-30, Ala. Acts 2020, which amended the
definitions in § 22-27-2 to include a definition for "alternative cover," i.e.,
"material other than earth used to cover a landfill or sanitary landfill."
However, those amendments did not include any retroactivity provisions
and did not address the issue of the validity of the previously enacted
alternative-cover-materials rules at issue in this case.
14
1190191
"In reviewing a decision of the Court of Civil Appeals on
a petition for a writ of certiorari, this Court 'accords no
presumption of correctness to the legal conclusions of the
intermediate appellate court. Therefore, we must apply de
novo the standard of review that was applicable in the Court
of Civil Appeals.' Ex parte Toyota Motor Corp., 684 So. 2d 132,
135 (Ala. 1996)."
Ex parte Exxon Mobil Corp., 926 So. 2d 303, 308 (Ala. 2005).
"We review a summary judgment by the following
standard:
" ' " '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' and
whether the movant was entitled to a
judgment as a matter of law. Bussey v.
John Deere Co., 531 So. 2d 860, 862
(Ala. 1988); Rule 56(c), Ala. R. Civ. P.
When the movant makes a prima facie
showing that there is no genuine issue
of material fact, the burden then shifts
to the nonmovant to present substantial
evidence creating such an issue. Bass
v. SouthTrust Bank of Baldwin County,
538 So. 2d 794, 797–98 (Ala.1989).
Evidence is 'substantial' if it is 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
15
1190191
proved.' West v. Founders Life
Assurance Co. of Florida, 547 So. 2d
870, 871 (Ala.1989)."
" ' Ex parte General Motors Corp., 769 So. 2d 903,
906 (Ala. 1999). When the basis of a
summary-judgment motion is a failure of the
nonmovant's evidence, the movant's burden,
however, is limited to informing the court of the
basis of its motion -- that is, the moving party must
indicate where the nonmoving party's case suffers
an evidentiary failure. See General Motors, 769
So. 2d at 909 (adopting Justice Houston's special
concurrence in Berner v. Caldwell, 543 So. 2d 686,
691 (Ala. 1989), in which he discussed the burden
shift attendant to summary-judgment motions);
and Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (stating
that "a party seeking summary judgment always
bears the initial responsibility of informing the
[trial] court of the basis of its motion"). The
moving party must support its motion with
sufficient evidence only if that party has the
burden of proof at trial. General Motors, 769 So.
2d at 909.'
" Rector v. Better Houses, Inc., 820 So. 2d 75, 79–80 (Ala.
2001). Additionally, we 'accept the tendencies of the evidence
most favorable to the nonmoving party and must resolve all
reasonable doubts in favor of the nonmoving party.' Bruce v.
Cole, 854 So. 2d 47, 54 (Ala. 2003)."
Farr v. Gulf Agency, 74 So. 3d 393, 397–98 (Ala. 2011).
Discussion
16
1190191
The director argues that the respondents have not established that
they have standing to challenge the alternative-cover-materials rules.
"The concept of 'standing' refers to a plaintiff's ability to
bring the action; the plaintiff must have a legally sufficient
interest in that lawsuit, and, if he or she does not, the trial
court does not obtain jurisdiction over the case:
" ' "To say that a person has standing is to say
that that person is the proper party to bring the
action. To be a proper party, the person must have
a real, tangible legal interest in the subject matter
of the lawsuit." Doremus v. Business Council of
Alabama Workers' Comp. Self–Insurers Fund, 686
So. 2d 252, 253 (Ala. 1996). "Standing ... turns on
'whether the party has been injured in fact and
whether the injury is to a legally protected right.' "
[State v. Property at] 2018 Rainbow Drive, 740 So.
2d [1025, 1027 (Ala. 1999)] (quoting Romer v.
Board of County Comm'rs of the County of Pueblo,
956 P.2d 566, 581 (Colo. 1998) (Kourlis, J.,
dissenting) )(emphasis omitted). In the absence of
such an injury, there is no case or controversy for
a court to consider. Therefore, were a court to make
a binding judgment on an underlying issue in spite
of absence of injury, it would be exceeding the
scope of its authority and intruding into the
province of the Legislature. See City of Daphne v.
City of Spanish Fort, 853 So. 2d 933, 942 (Ala.
2003)("The power of the judiciary ... is 'the power to
declare finally the rights of the parties, in a
particular case or controversy ....' " (quoting Ex
parte Jenkins, 723 So. 2d 649, 656 (Ala. 1998)))....'
17
1190191
" Town of Cedar Bluff v. Citizens Caring for Children, 904 So.
2d 1253, 1256 (Ala. 2004).
"In determining whether a party has standing in
Alabama courts, we are guided by whether the following exist:
'(1) an actual, concrete and particularized "injury in fact" -- "an
invasion of a legally protected interest"; (2) a "causal
connection between the injury and the conduct complained of";
and (3) a likelihood that the injury will be "redressed by a
favorable decision." ' Alabama Alcoholic Beverage Control Bd.
v. Henri–Duval Winery, L.L.C., 890 So. 2d 70, 74 (Ala. 2003)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61,
112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). In their motion to
dismiss, the defendants contended that the plaintiffs failed to
demonstrate all three of these elements; however, we address
primarily one: Whether the complaint sufficiently alleges that
the plaintiffs suffered an injury in fact.
" ' "Injury will not be presumed; it must be shown." '
Town of Cedar Bluff, 904 So. 2d at 1256 (quoting Jones v.
Black, 48 Ala. 540, 543 (1872)). 'A party's injury must be
"tangible," see Reid v. City of Birmingham, 274 Ala. 629, 639,
150 So. 2d 735, 744 (1963); and a party must have "a concrete
stake in the outcome of the court's decision." ' Kid's Care, Inc.
v. Alabama Dep't of Human Res., 843 So. 2d 164, 167 (Ala.
2002)(quoting Brown Mech. Contractors, Inc. v. Centennial
Ins. Co., 431 So. 2d 932, 937 (Ala. 1983)). The plaintiffs 'must
allege "specific concrete facts demonstrating that the
challenged practices harm [them], and that [they] personally
would benefit in a tangible way from the court's intervention." '
Ex parte HealthSouth, 974 So. 2d at 293 (quoting Warth v.
Seldin, 422 U.S. 490, 508, 95 S. Ct. 2197, 45 L. Ed. 2d 343
(1975) (footnote omitted)). At a minimum, they must show
that they personally have suffered some actual or threatened
injury as a result of the purportedly illegal conduct. Stiff v.
18
1190191
Alabama Alcoholic Beverage Control Bd., 878 So. 2d 1138,
1141 (Ala. 2003)."
Ex parte Merrill, 264 So. 3d 855, 862-63 (Ala. 2018) (footnotes omitted).
In its opinion, the Court of Civil Appeals addressed the standing
issue as follows:
"In Keith[ v. LeFleur, 256 So. 3d 1206 (Ala. Civ. App.
2018),] this court explained:
" ' "A party establishes standing to
bring a ... challenge ... when it
demonstrates the existence of (1) an
actual, concrete and particularized
'injury in fact' -- 'an invasion of a legally
protected
interest';
(2)
a
'causal
connection between the injury and the
conduct complained of'; and (3) a
likelihood that the injury will be
'redressed by a favorable decision.'
Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61, 112 S. Ct. 2130, 119 L. Ed.
2d 351 (1992). A party must also
demonstrate that 'he is a proper party
to invoke judicial resolution of the
dispute and the exercise of the court's
remedial powers.' Warth [v. Seldin],
422 U.S. [490,] 518, 95 S. Ct. 2197, 45
L. Ed. 2d 343 [(1975)]."
" ' Alabama Alcoholic Beverage Control Bd. v.
Henri–Duval Winery, L.L.C., 890 So. 2d 70, 74
(Ala. 2003). See also Ex parte Alabama Educ.
19
1190191
Television Comm'n, 151 So. 3d 283, 287 (Ala.
2013).'
"256 So. 3d at 1210-11. Section 41-22-10, Ala. Code 1975, a
part of the Alabama Administrative Procedure Act, Ala. Code
1975, § 41-22-1 et seq., incorporates the requirement of
standing by providing that
" '[t]he validity or applicability of a rule may
be determined in an action for a declaratory
judgment or its enforcement stayed by injunctive
relief in the circuit court of Montgomery County,
unless otherwise specifically provided by statute, if
the court finds that the rule, or its threatened
application, interferes with or impairs, or threatens
to interfere with or impair, the legal rights or
privileges of the plaintiff. ...'
"(Emphasis added.)
"In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992),
the United States Supreme Court explained that a party
asserting standing to contest environmental regulations bears
the burden of proving each element of standing. In response
to a motion for a summary judgment, the party asserting
standing cannot rest on mere allegations, but must set forth
specific facts in affidavits or other evidence proving each
element of standing. 504 U.S. at 561.
"To meet their burden, the appellants presented evidence
in support of their summary-judgment motion indicating that
the Stone's Throw Landfill and the Arrowhead Landfill have
been permitted by ADEM to use, and have used, alternative-
cover materials in their operations pursuant to the alternative-
cover-materials rules adopted by ADEM. The evidence
20
1190191
presented by Smith in his affidavit indicates that he lives
within 2,500 feet of the Stone's Throw Landfill; that he had
observed tarps being used as alternative cover at that landfill;
that he had observed vultures accessing solid waste through
holes in those tarps; that the operation of that landfill has
generated and exposed him on an almost daily basis to
offensive odors that have negatively affected his use and
enjoyment of his property; that the operation of the landfill has
exposed him to vultures, feral dogs, and coyotes, among other
pests, that have entered his property; and that the value of his
property has declined as a result of the operation of that
landfill.
"The evidence presented by the Gipsons in their
affidavits indicates, among other things, that they live within
120 feet of the Arrowhead Landfill; that the operation of that
landfill has generated and exposed them on an almost daily
basis to offensive odors that have affected them physically and
have negatively affected their use and enjoyment of their
property; that the operation of the landfill has exposed them
to buzzards and flies, among other pests, that have entered
their property; and that the value of their property has
declined as a result of the operation of that landfill.
"The director asserted in his summary-judgment motion
that the appellants had not demonstrated standing because, he
argued, they could not show a causal link between their
claimed injuries and the alternative-cover materials permitted
at the nearby landfills from which they were claiming injury.
The United States Supreme Court has observed that 'there
must be a causal connection between the injury and the
conduct complained of -- the injury has to be "fairly ...
trace[able] to the challenged action of the defendant, and not
... th[e] result [of] the independent action of some third party
21
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not before the court." ' Lujan, 504 U.S. at 561 (quoting Simon
v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)).
"The appellants presented evidence indicating that their
rights to the use and enjoyment of their properties had been
adversely affected by the operation of the landfills near their
homes and that those landfills have been authorized to use,
and have used, alternative-cover materials in lieu of earth
cover or compacted earth. The director argues that the
appellants did not prove specifically that they suffered
increased adverse environmental impacts due to the use of
alternative-cover materials in lieu of earth cover or compacted
earth. We conclude that this argument is misplaced. In order
to have standing to contest the alternative-cover-materials
rules, the appellants did not have to prove that the
alternative-cover materials were not as effective as earth cover
or compacted earth at controlling odors, disease vectors, and
other harmful environmental effects of solid-waste disposal.
They only had to present substantial evidence indicating that
the use of alternative-cover materials was causing or
threatening to cause injury to their private-property interests,
which they did. Compare Student Pub. Interest Research Grp.
of New Jersey, Inc. v. Tenneco Polymers, Inc., 602 F. Supp.
1394, 1397 (D.N.J. 1985) (holding that the plaintiffs in that
case had proved standing by showing that pollution of waters
had adversely affected their interests and stating that the
plaintiffs were not required to further prove the degree of
pollution caused by particular discharges in order to maintain
standing). We conclude that the appellants have presented
sufficient evidence from which it can be reasonably inferred
that the use of alternative-cover materials at the Arrowhead
Landfill and the Stone's Throw Landfill 'interferes with or
impairs, or threatens to interfere with or impair,' the
appellants' legal rights or privileges. See § 41-22-10 and
Medical Ass'n of State of Alabama v. Shoemake, 656 So. 2d
22
1190191
863, 865-68 (Ala. Civ. App. 1995) (discussing the 'liberal
construction' of § 41-22-10). Therefore, the appellants have
established standing to challenge the alternative-cover-
materials rules.
"In Massachusetts v. Environmental Protection Agency,
549 U.S. 497, 518 (2007), the United States Supreme Court
stated, in pertinent part:
" 'When a litigant is vested with a procedural right,
that litigant has standing if there is some
possibility that the requested relief will prompt the
injury-causing party to reconsider the decision that
allegedly harmed the litigant. [Lujan v. Defenders
of Wildlife, 504 U.S. 555, 572 n.7 (1992)]; see also
Sugar Cane Growers Cooperative of Fla. v.
Veneman, 289 F.3d 89, 94–95 (C.A.D.C. 2002) ("A
[litigant] who alleges a deprivation of a procedural
protection to which he is entitled never has to
prove that if he had received the procedure the
substantive result would have been altered. All
that is necessary is to show that the procedural
step was connected to the substantive result").'
"In Duke Power Co. v. Carolina Environmental Study
Group, Inc., 438 U.S. 59 (1978), the United States Supreme
Court considered the standing of certain landowners who lived
in close proximity to nuclear-power plants to contest an act
limiting the liability of the owners of those plants in the event
of a single nuclear accident. The Supreme Court concluded
that, because the nuclear-power plants that were allegedly
injuring the landowners would not have been in operation
absent the act at issue, the injury suffered by the landowners
would likely be redressed by the invalidation of the act. 438
23
1190191
U.S. at 77-78. Thus, it held that the landowners had standing
to contest the act. Id.
"The appellants in the present case have presented
evidence indicating that the Stone's Throw Landfill and the
Arrowhead Landfill each qualify as a municipal solid-waste
landfill, an industrial landfill, and a construction/demolition-
inert landfill. The appellants have further presented evidence
indicating that ADEM approved the use of materials other
than earth cover or compacted earth to cover solid waste at the
landfills pursuant to the permitting process outlined in Rule
335–13–4–.15(2). It is undisputed that ADEM relies
exclusively
on
Rule
335–13–4–.22(1)(a)1.
and
Rule
335–13–4–.23(1)(a)1. to permit the use of alternative-cover
materials at municipal solid-waste landfills and industrial and
construction/demolition-inert landfills, respectively. Thus, like
in Duke Power Co., the appellants in this case have shown a
likelihood that, but for the rules pursuant to which the permits
for the use of alternative-cover materials had been granted,
the Stone's Throw Landfill and the Arrowhead Landfill would
not have been permitted to use alternative-cover materials in
their daily operations. Accordingly, we conclude that the
appellants have demonstrated standing to challenge ADEM's
alternative-cover-materials rules, and we hold that the trial
court erred in granting [the director's] motion for a summary
judgment and in denying the appellants' motion for a summary
judgment on the ground that the appellants lacked standing."
___ So. 3d at ___-___ (footnotes omitted).
In its opinion, the Court of Civil Appeals stated that the respondents
did not have to prove that the alternative-cover materials were not as
effective as earth cover or compacted earth at controlling odors, disease
24
1190191
vectors, and other harmful environmental effects of solid-waste disposal.
It went on to assert that the respondents "only had to present substantial
evidence indicating that the use of alternative-cover materials was
causing or threatening to cause injury to their private-property interests,
which they did." ___ So. 3d at ___.
In this case, the respondents presented evidence about how the
operation of the landfills near their houses had negatively impacted them
and had negatively impacted their use and enjoyment of their land. The
respondents went on to allege that the use of alternative-cover materials
threatened to result in the generation of more frequent and more offensive
odors and disease vectors and threatened to expose them to more offensive
odors and disease vectors.
During his deposition, Eric Sanderson, the chief of the solid-waste
branch of the land division of ADEM, testified that , during the comment
period for the most recent landfill permit for the Arrowhead Landfill,
ADEM had received complaints about odors, wild dogs, insects, flies,
buzzards, and other unwanted pests. In its response to those comments,
ADEM stated:
25
1190191
" To date the ADEM inspectors had not noted any odors or
disease vectors from the Arrowhead Landfill that would be
considered uncommon to typical municipal solid waste
landfills."
Subsequently, the following occurred:
"[Plaintiffs' Counsel:] Does it state that there -- or does
it even imply that there are no objectionable odors coming
from the landfill?
"[Sanderson:] No. There are odors coming from the
landfill.
"[Plaintiffs' Counsel:] There are odors?
"[Sanderson:] Yes -- I mean, there could be odors coming
from the landfill.
"[Plaintiffs' Counsel:] Okay. As well as disease vectors,
right?
"[Sanderson:] Yes.
"[Plaintiffs' Counsel:] In fact, odors and disease vectors
are typical around landfills, aren't they?
"[Sanderson:] I would say in some form or fashion, I
would not be surprised to smell an odor or see a vector --
disease vector."
26
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Sanderson further testified that, during the renewal of the permit for
Stone's Throw Landfill, ADEM had "received a couple of complaints about
the odor and whatnot." In its response to the comments, ADEM stated:
"[T]o date the ADEM inspectors have not noted any odors or
disease vectors from the Stone's Throw Landfill that we --
[that] would be considered uncommon to typical municipal
solid waste (MSW) landfills."
Sanderson agreed that, in its response, ADEM was not saying that the
person complaining did not experience odors and disease vectors. He went
on to state: "And I also want to point out that the subtitle D regulations
nor state regulations stipulate no odor. All the regulations stipulate is
methods to control the odor." Sanderson stated that he was familiar
with ADEM's air-pollution-and-control rules and regulations and that they
did not stipulate no odor. When asked if the rules and regulations
describe some prohibited odor, Sanderson replied: "No. They describe
odor as a contaminant, but they -- in air regulations, they do not stipulate
specific odor thresholds or limits per se." After Sanderson testified that
there is no numerical threshold or limits, the following occurred:
"[Plaintiffs' Counsel:] And they do describe the effects of
odors that are prohibited, don't they?
27
1190191
"....
"[Plaintiffs' Counsel] Such as odors that cause headaches
or nausea or interfere with sleep, that sort of thing?
"[Sanderson:] Correct. But there's not a specific
threshold --
"....
"[Sanderson:] -- to measure that."
According to Sanderson's testimony, the rules and regulations regarding
landfills do not require the elimination of all odor or disease vectors at
landfills; also, the rules and regulations provide for methods to control
odors. Additionally, he testified that he would expect some disease vectors
near landfills.
In this case, the respondents did not challenge the operation of the
Arrowhead Landfill and the Stone's Throw Landfill. Rather, they
challenged the rules that allowed the use of alternative-cover materials
instead of earth or compacted-earth cover. Thus, the respondents must
show a causal connection between the rules authorizing the use of
alternative-cover materials and the alleged injury. Without presenting
evidence that alternative-cover materials are not as effective as earth or
28
1190191
compacted earth in controlling odors and disease vectors, they cannot
establish that the negative impacts they have already suffered were fairly
traceable to the alternative-cover-materials rules at issue and were not
merely the result of the operation of a landfill. Also, they cannot
establish that the use of alternative-cover materials threatens to result in
the generation of more frequent and more offensive odors and disease
vectors or that they will be exposed to more frequent and more offensive
odors and disease vectors. Additionally, without such a showing, the
respondents cannot establish that there is a likelihood that their injuries
will be redressed by a favorable decision. If earth and compacted-earth
covers are not more effective than the approved alternative-cover
materials in controlling odors and disease vectors, the respondents would
continue to suffer the same negative impacts from the landfills even if
ADEM no longer permitted the use alternative-cover materials. Thus, the
Court of Civil Appeals erroneously held that, for purposes of establishing
standing, the respondents were not required to present substantial
evidence that alternative-cover materials were less effective than earth or
compacted earth in controlling odors and disease vectors.
29
1190191
Next, we must determine whether the respondents did present
substantial evidence to establish that the use of alternative-cover
materials was not as effective in controlling odors and disease vectors as
using earth or compacted earth.
The respondents submitted affidavits from Smith and the Gipsons
to support their argument that they had standing to bring this case.2 In
their affidavits, the respondents included factual allegations regarding the
negative impact the operation of the landfills had had on them and on
their use and enjoyment of their property. However, they did not allege
any facts to establish that those negative impacts were actually caused by
2In his brief to this Court, the director asserts that portions of the
respondents' affidavits were inadmissible and should have been stricken.
The director asserts that he moved to strike certain portions of those
affidavits but that the trial court did not rule on that motion. The trial
court's order does not indicate whether the trial court considered such
evidence. Additionally, in its opinion, the Court of Civil Appeals did not
address the issue whether the trial court should have granted the motion
to strike. Rather, it stated that it had reached its determination that the
respondents had standing without regard to the respondents' assertions
that the use of tarps as was not effective as the use of earthen cover.
Although the director noted in his petition for a writ of certiorari that he
had moved to strike the affidavits in the trial court, he did not raise this
issue as a ground for review in his petition. Therefore, we will not
consider this argument.
30
1190191
the use of alternative-cover materials and that they would not have
experienced those negative impacts had those landfills used earth or
compacted earth as cover.
The respondents presented evidence indicating that, since October
2001, Stone's Throw Landfill had been authorized to use alternative-cover
materials, including tarps. However, the respondents did not present any
evidence as to when Stone's Throw Landfill started using alternative-
cover materials. If Stone's Throw Landfill has been continuously using
tarps since that time, Smith, who has resided near the landfill since 2004,
would have no firsthand knowledge as to whether the use of tarps had
resulted in an increase in odors and disease vectors. At most, in his
September 6, 2018, affidavit, Smith asserted that he had observed tarps
being used at that landfill "on many occasions during the last three years."
Based on Smith's affidavit, it is not clear whether the Stone's Throw
Landfill used tarps continuously during that three-year period or whether
the use of tarps was occasional. Further, Smith did not include any
31
1190191
allegation that he had noticed any increase in odors or disease vectors
during that period.3
The respondents also submitted affidavits from Latonya Gipson and
William Gipson. In her affidavit, Latonya asserted that her residence
was less than 500 feet from the Arrowhead Landfill and that she had lived
there since 2005. In his affidavit, which was dated September 5, 2018,
William stated that he had lived at that residence for 10 years. The
respondents presented evidence indicating that, in 2009, ADEM
authorized the Arrowhead Landfill to use alternative-cover materials,
3In his affidavit, Smith asserted that, in June 2016, he had observed
vultures accessing solid waste beneath the tarps at the Stone's Throw
Landfill because the tarps had holes in them. He further asserted that
the tarps did not completely cover the solid waste. However, whether the
tarps had holes in them and whether the solid waste was completely
covered appear to implicate the actions of the operator of the Stone's
Throw Landfill in covering the solid waste. As the Supreme Court stated
in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), "the injury has to
be 'fairly ... trace[able] to the challenged action of the defendant, and not
... th[e] result [of] the independent action of some third party not before
the court.' " 504 U.S. at 560 (quoting Simon v. Eastern Ky. Welfare
Rights Org., 426 U.S. 26, 41-42 (1976)). Further, an allegation that Smith
had observed such an occurrence on only one occasion in a three-year
period does not rise to the level of substantial evidence that alternative-
cover materials are not as effective in controlling odors and disease
vectors as are earth and compacted earth.
32
1190191
including tarps. Latonya and William both stated that they did not know
whether tarps had been used at the Arrowhead Landfill. In his
deposition, Sanderson testified that he had been told that tarps had been
used at the Arrowhead Landfill. However, neither Latonya nor William
testified that he or she had observed any increase in odors or disease
vectors at any time after ADEM authorized the Arrowhead Landfill to use
alternative-cover materials. Therefore, the respondents have not
presented any facts to support their opinion that the use of alternative-
cover materials threatens to increase their exposure to odors and disease
vectors or to support their opinion that alternative-cover materials are
less effective than earth or compacted earth at controlling odors and
disease vectors. Although the respondents' opinions might constitute
some evidence of a causal connection between the alternative-cover-
materials rules and their claimed injuries, such unsupported opinions do
not rise to the level of substantial evidence.
In its opinion, the Court of Civil Appeals also relied on the United
States Supreme Court's decision in Massachusetts v. Environmental
Protection Agency, 549 U.S. 497 (2007), to support its holding that the
33
1190191
respondents had standing to challenge the alternative-cover-materials
rules. In that case, the Supreme Court stated:
"To ensure the proper adversarial presentation, Lujan[
v. Defenders of Wildlife, 555 U.S. 504 (1992),] holds that a
litigant must demonstrate that it has suffered a concrete and
particularized injury that is either actual or imminent, that
the injury is fairly traceable to the defendant, and that it is
likely that a favorable decision will redress that injury. See
id., at 560–561. However, a litigant to whom Congress has
'accorded a procedural right to protect his concrete interests,'
id., at 572, n. 7, ... 'can assert that right without meeting all
the normal standards for redressability and immediacy,' ibid.
When a litigant is vested with a procedural right, that litigant
has standing if there is some possibility that the requested
relief will prompt the injury-causing party to reconsider the
decision that allegedly harmed the litigant. Ibid.; see also
Sugar Cane Growers Cooperative of Fla. v. Veneman, 289 F.3d
89, 94–95 (C.A.D.C.2002) ('A [litigant] who alleges a
deprivation of a procedural protection to which he is entitled
never has to prove that if he had received the procedure the
substantive result would have been altered. All that is
necessary is to show that the procedural step was connected to
the substantive result')."
549 U.S. at 517–18 (emphasis added). However, the respondents do not
challenge the alternative-cover-materials rules based on the deprivation
of a procedural right that has been afforded to them. Additionally, the
Court of Civil Appeals does not point to any specific procedural right that
has been implicated in this case. Therefore, the Court of Civil Appeals'
34
1190191
reliance on Massachusetts v. Environmental Protection Agency is
misplaced.
The Court of Civil Appeals also cites Duke Power Co. v. Carolina
Environmental Study Group, Inc., 438 U.S. 59 (1978). In that case, Duke
Power Company, an "investor-owned pubic utility" that was constructing
nuclear power plants in North Carolina and South Carolina, was sued by
Carolina Environmental Study Group, Inc., the Catawba Central Labor
Union, and 40 individuals who lived in close proximity to the planned
nuclear facilities. The plaintiffs in that case sought a judgment declaring
that the Price-Anderson Act, which limited liability in the event of a
nuclear incident causing damages, was unconstitutional. In addressing
the issue whether the plaintiffs had standing to challenge the
constitutionality of the Price-Anderson Act, the Supreme Court stated:
"The essence of the standing inquiry is whether the
parties seeking to invoke the court's jurisdiction have 'alleged
such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions.' Baker v.
Carr, 369 U.S. 186, 204 (1962). As refined by subsequent
reformulation, this requirement of a 'personal stake' has come
to be understood to require not only a 'distinct and palpable
35
1190191
injury,' to the plaintiff, Warth v. Seldin, 422 U.S. 490, 501
(1975), but also a 'fairly traceable' causal connection between
the claimed injury and the challenged conduct. Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261
(1977). See also Simon v. Eastern Ky. Welfare Rights Org.,
426 U.S. 26, 41–42 (1976); Linda R. S. v. Richard D., 410 U.S.
614, 617 (1973). Application of these constitutional standards
to the factual findings of the District Court persuades us that
the Art. III requisites for standing are satisfied by appellees."
Duke Power Co., 438 U.S. at 72. In addressing whether the plaintiffs in
that case had established distinct and palpable injuries, the Supreme
Court stated:
"For purposes of the present inquiry, we need not
determine whether all the putative injuries identified by the
District Court, particularly those based on the possibility of a
nuclear accident and the present apprehension generated by
this future uncertainty, are sufficiently concrete to satisfy
constitutional requirements. Compare O'Shea v. Littleton, 414
U.S. 488 (1974), with United States v. SCRAP, 412 U.S. 669
(1973). See also Conservation Society of Southern Vermont v.
AEC, Civ. Action No. 19–72 (DC Apr. 17, 1975). It is enough
that several of the 'immediate' adverse effects were found to
harm appellees. Certainly the environmental and aesthetic
consequences of the thermal pollution of the two lakes in the
vicinity of the disputed power plants is the type of harmful
effect which has been deemed adequate in prior cases to satisfy
the 'injury in fact' standard. See United States v. SCRAP,
supra. Cf. Sierra Club v. Morton, 405 U.S. 727, 734 (1972).
And the emission of non-natural radiation into appellees'
environment would also seem a direct and present injury,
given our generalized concern about exposure to radiation and
36
1190191
the apprehension flowing from the uncertainty about the
health and genetic consequences of even small emissions like
those concededly emitted by nuclear power plants.
"The more difficult step in the standing inquiry is
establishing that these injuries 'fairly can be traced to the
challenged action of the defendant,' Simon v. Eastern Ky.
Welfare Rights Org., supra, 426 U.S., at 41, or put otherwise,
that the exercise of the Court's remedial powers would redress
the claimed injuries. 426 U.S., at 43. The District Court
discerned a 'but for' causal connection between the
Price-Anderson
Act,
which
appellees
challenged
as
unconstitutional, 'and the construction of the nuclear plants
which the [appellees] view as a threat to them.' 431 F. Supp.
[203,] 219 [(D.C. N.C. 1977)]. Particularizing that causal link
to the facts of the instant case, the District Court concluded
that 'there is a substantial likelihood that Duke [Power] would
not be able to complete the construction and maintain the
operation of the McGuire and Catawba Nuclear Plants but for
the protection provided by the Price-Anderson Act.' Id., at 220.
"These findings, which, if accepted, would likely satisfy
the second prong of the constitutional test for standing as
elaborated in Simon, are challenged on two grounds. First, it
is argued that the evidence presented at the hearing, contrary
to the conclusion reached by the District Court, indicated that
the McGuire and Catawba nuclear plants would be completed
and operated without the Price-Anderson Act's limitation on
liability. And second, it is contended that the Price-Anderson
Act is not, in some essential sense, the 'but for' cause of the
disputed nuclear power plants and resultant adverse effects
since if the Act had not been passed Congress may well have
chosen to pursue the nuclear program as a Government
monopoly as it had from 1946 until 1954. We reject both of
these arguments."
37
1190191
Duke Power Co., 438 U.S. at 73–75.
In this case, the Court of Civil Appeals concluded:
"The appellants in the present case have presented
evidence indicating that the Stone's Throw Landfill and the
Arrowhead Landfill each qualify as a municipal solid-waste
l a n d f i l l ,
a n
i n d u s t r i a l
l a n d f i l l ,
a n d
a
construction/demolition-inert landfill. The appellants have
further presented evidence indicating that ADEM approved
the use of materials other than earth cover or compacted earth
to cover solid waste at the landfills pursuant to the permitting
process outlined in Rule 335–13–4–.15(2). It is undisputed that
ADEM relies exclusively on Rule 335–13–4–.22(1)(a)1. and
Rule
335–13–4–.23(1)(a)1.
to
permit
the
use
of
alternative-cover materials at municipal solid-waste landfills
and industrial and construction/demolition-inert landfills,
respectively. Thus, like in Duke Power Co., the appellants in
this case have shown a likelihood that, but for the rules
pursuant to which the permits for the use of alternative-cover
materials had been granted, the Stone's Throw Landfill and
the Arrowhead Landfill would not have been permitted to use
alternative-cover materials in their daily operations."
Smith, ___ So. 3d at ___ (footnote omitted). However, the respondents
have not presented substantial evidence to establish that the alternative-
cover materials are less effective than earth or compacted earth in
controlling odors or disease vectors. Thus, they have not established that,
but for the rules permitting the use of alternative-cover materials, they
38
1190191
would be exposed to less frequent and less offensive odors and fewer
disease vectors from the landfills in question.
Conclusion
Based on the foregoing, the respondents did not present substantial
evidence to establish that they had standing to challenge the alternative-
cover materials rules. Therefore, the trial court properly granted the
director's motion for a summary judgment and properly denied the
respondents' motion for a summary judgment. Accordingly, we reverse
the Court of Civil Appeals' judgment and remand this case for proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Parker, C.J., concurs.
Bryan, Sellers, Mendheim, and Stewart, JJ., concur in the result.
Bolin and Shaw, JJ., dissent.
Mitchell, J., recuses himself.
39
1190191
BRYAN, Justice (concurring in the result).
Ronald C. Smith, Latonya Gipson, and William T. Gipson, the
plaintiffs, challenge rules permitting alternative-cover materials in
landfills on the basis that those rules conflict with § 22-27-2, Ala. Code
1975. However, that statute was recently amended to permit the use of
alternative-cover materials in landfills. Thus, even if the plaintiffs are
correct in arguing that the rules conflict with the previous version of § 22-
27-2, they would not be entitled to any meaningful relief because
alternative-cover materials are now permitted under that statute. In
practical terms, a successful argument by the plaintiffs on the merits
would not prevent the landfill operators in this case from using
alternative-cover materials. Thus, I believe this case is moot. "[A] matter
is moot where 'there is no effective remedy upon which relief can be
granted' based on subsequent events." Ex parte Carter, 275 So. 3d 115,
123 (Ala. 2018) (quoting AIRCO, Inc. v. Alabama Pub. Serv. Comm'n, 360
So. 2d 970, 971 (Ala. 1978)). "A case is moot when there is no real
controversy and it seeks to determine an abstract question which does not
40
1190191
rest on existing facts or rights." State ex rel. Eagerton v. Corwin, 359 So.
2d 767, 769 (Ala. 1977) (emphasis omitted).
The main opinion concludes that the plaintiffs lack standing, and it
reverses the judgment of the Court of Civil Appeals and remands the case.
Both standing and mootness are categories of justiciability. Ex parte
Richardson, 957 So. 2d 1119, 1125 (Ala. 2006) (stating that standing is an
essential component of justiciability); Town of Elmore v. Town of
Coosada, 957 So. 2d 1096, 1100 (Ala. 2006) (stating that mootness
implicates justiciability); and 13 Charles Alan Wright et al., Federal
Practice and Procedure § 3529, at 278-79 (2d ed. 1984) (stating that
standing and mootness are categories of justiciability). Thus, by
concluding that this case is moot, I agree with the main opinion that there
is not a justiciable controversy here, albeit for a different reason.
Typically, this Court would dismiss an appeal or a petition in a moot case.
However, the judgment of the Court of Civil Appeals, which decided the
case on the merits in favor of the plaintiffs, should be vacated, either by
this Court or by the Court of Civil Appeals, based on the lack of
justiciability. Thus, I have no problem reversing that judgment and
41
1190191
remanding the case only for the purpose of restoring jurisdiction to the
Court of Civil Appeals so that court may vacate its judgment and dismiss
the appeal. Such action by the Court of Civil Appeals on remand would
seem to be the only action that would be consistent with the main opinion.
Thus, I concur in the result.
Stewart, J., concurs.
42
1190191
SHAW, Justice (dissenting).
I believe that the standing analysis in the Court of Civil Appeals'
unanimous opinion is correct; therefore, I respectfully dissent from
reversing that court's decision and remanding the case. Nevertheless,
during the pendency of this appeal following the issuance of the Court of
Civil Appeals' opinion, the legislature amended the Code sections at issue
to allow the alternate-cover materials approved by the Alabama
Department of Environmental Management ("ADEM"). The trial court
cannot force ADEM to comply with now superseded law and thus cannot
afford the plaintiffs any relief. Therefore, I believe that this appeal is due
to be dismissed as moot. See Irwin v. Jefferson Cnty. Pers. Bd., 263 So.
3d 698, 704 (Ala. 2018) (dismissing an appeal of a judgment denying a
claim for injunctive relief that had become moot).
Bolin, J., concurs.
43 | November 6, 2020 |
e266931a-be97-425c-9fa6-86f72eb6f3ff | Ex parte Andrew Laughinghouse. | N/A | 1191019 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1191019 Ex parte Andrew Laughinghouse. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Andrew
Laughinghouse v. Alabama Board of Pardons and Paroles) (Montgomery
Circuit Court: CV-19-902208; Criminal Appeals : CR-19-0620).
CORRECTED CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on November 13, 2020:
Writ Denied. No Opinion. Parker, C.J. - Bolin, Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of November, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
32642be4-b90c-4393-86c2-059a911037d6 | Jefferson County Board of Education v. City of Irondale | N/A | 1180752 | Alabama | Alabama Supreme Court | REL: October 23, 2020
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1180752
____________________
Jefferson County Board of Education
v.
City of Irondale
____________________
1180777
____________________
Martin Blankenship et al.
v.
City of Irondale
Appeals from Jefferson Circuit Court
(CV-18-904402)
1180752, 1180777
MITCHELL, Justice.
The Jefferson County Board of Education ("the Board") and
several of its employees seek to avoid the application of an
occupational tax imposed by the City of Irondale ("City").
The Board and its employees argue that public-school employees
are exempt from the occupational tax because, they say, they
provide an essential government service. But the importance
of a state employee's role, even a role as important as a
public-school employee, does not remove that employee's
obligation to pay a duly owed occupational tax. Other
arguments made by the Board and its employees are equally
unavailing. We therefore affirm the trial court's judgment in
favor of the City.
Facts and Procedural History
In 2018, the City enacted municipal ordinance no. 2018-10
("the ordinance"), which imposed a 1% occupational tax on "any
person ... [who] engage[s] in or follow[s] any trade,
occupation or profession ... within the city ... without
paying license fees for the privilege o[f] engaging in or
following such trade, occupation or profession." Several
months after the ordinance went into effect, the Board, which
2
1180752, 1180777
provides K-12 public-education services in four schools
located in Irondale, sued the City in the Jefferson Circuit
Court seeking injunctive relief and a judgment declaring that
the City lacked authority to impose an occupational tax on the
Board's employees who provide services in Irondale.
After the Board filed its complaint, eight Board
employees who render services in Irondale filed a motion to
intervene
as
additional
plaintiffs
("the
intervening
employees"). The intervening employees are all teachers or
support workers employed by the Board who provide services for
students in schools located in Irondale. The trial court
granted the motion to intervene.
The Board, the intervening employees, and the City each
filed a motion for summary judgment. The trial court entered
a summary judgment for the City and denied the summary-
judgment motions of the other parties. The Board and the
intervening employees then appealed.
Standard of Review
The standard of review applicable to a summary judgment
is the same as the standard the trial court applied when
granting the summary-judgment motion. McClendon v. Mountain
3
1180752, 1180777
Top Indoor Flea Mkt., Inc., 601 So. 2d 957, 958 (Ala. 1992).
That is, we must determine whether there was a genuine issue
of material fact and, if not, whether the moving party is
entitled to a judgment as a matter of law. Id. at 958. If
the only question presented is a question of law, such as the
interpretation or validity of an ordinance, the summary
judgment is reviewed de novo. See Alabama Republican Party v.
McGinley, 893 So. 2d 337, 342 (Ala. 2004). An ordinance
enacted by a local governing body "is presumed reasonable and
valid, and ... the burden is on the one challenging the
ordinance to clearly show its invalidity." Jefferson Cnty. v.
Richards, 805 So. 2d 690, 706 (Ala. 2001).
Analysis
This Court must determine whether the ordinance may
lawfully be applied to Board employees who provide services at
schools located in Irondale. The Board and the intervening
employees argue that the ordinance creates an unlawful burden
on or interferes with essential government services because,
they say, (1) Board employees perform essential functions for
the operation of public schools in the State; (2) Board
employees have State-agent immunity from occupational-tax
4
1180752, 1180777
liability to Irondale; and (3) the ordinance creates an
arbitrary pay disparity among Board employees based on the
location of where they work within Jefferson County. These
arguments are unconvincing.
First, the Board and the intervening employees argue that
Board employees are exempt from the occupational tax because,
they say, the ordinance essentially conditions the provision
of public education on the payment of an occupational tax by
Board employees. A similar argument was made in McPheeter v.
City of Auburn, 288 Ala. 286, 259 So. 2d 833 (1972), in which
employees of Auburn University contested a 1%
occupational tax
imposed by the City of Auburn. The employees of Auburn
University asserted that they were shielded from paying the
occupational tax because, they said, they performed an
essential government function of providing higher education
for the State of Alabama. But this Court disagreed,
observing:
"Imposing payment of the tax or license fee on
the individual so engaged and employed, place[d] no
tax burden on Auburn University, the State, or the
federal government as such. The tax [was] not levied
on the employer-employee relationship, but on the
taxable event of rendering services or following a
trade, business, or profession. The ordinance
place[d] the tax on an employee's privilege of
5
1180752, 1180777
working in the city limits of Auburn regardless of
the person's employer or the place of residence of
the employee."
288 Ala. at 291, 259 So. 2d at 836. Thus, this Court held
that "if there is no principle of law clothing government
employees with immunity, because they are such, we can
conceive of no reasonable cause why they should be excluded
from a tax that others bear." 288 Ala. at 290, 259 So. 2d at
835.
Although the government employees in McPheeter provided
services in an Alabama public university rather than an
Alabama public K-12 school, the holding of McPheeter
nonetheless applies here. As in McPheeter, the occupational
tax imposed by the ordinance on Board employees providing
services in Irondale places no tax burden on the Board or the
State, nor does it interfere with the essential state function
of providing K-12 education. The ordinance also applies to
all employees working in the city limits of Irondale,
regardless of the person's employer or place of residence.
And the Irondale occupational tax does not create a new or
additional requirement for gaining or maintaining employment
by the Board. Thus, the nature of the services performed by
6
1180752, 1180777
Board employees is not an adequate basis for excluding them
from having to pay the occupational tax.
Next, the Board and the intervening employees argue that
Board employees are shielded by State-agent immunity from
complying with the ordinance. But State-agent immunity does
not apply here. The ordinance does not affect any government
function of the Board, nor is payment of the occupational tax
related to a Board employee's government responsibilities.
See Estes v. City of Gadsden, 266 Ala. 166, 172-73, 94 So. 2d
744, 750 (1957) (upholding the City of Gadsden's occupational
tax covering all types of work as valid so long as the
imposition of the tax is not capricious or discriminatory).
And if the Board is unwilling to withhold the occupational tax
for its employees, the ordinance provides a procedure for
employees to independently comply with the requirements of
the
ordinance. Therefore, State-agent immunity does not shield
Board employees from the ordinance's requirements.
Finally, the Board and the intervening employees argue
that the ordinance creates an unlawful pay disparity among
Board employees. See § 16-13-231.1(b)(2), Ala. Code 1975
("[E]ach local board of education shall adopt a salary
7
1180752, 1180777
schedule that shall pay each teacher employed at least 100
percent of the appropriate cell of the State Minimum Salary as
determined by the Legislature."). The Board claims that a
difference in net wages occurs based on where Board employees
provide services within Jefferson County –– and that this
disparity violates the statutorily mandated salary schedule
and fails to ensure equitable pay for its employees. But
nothing in the ordinance prohibits the Board from paying
employees gross wages exactly as required under the mandated
salary schedule. Nor does § 16-13-231.1 state that Board
employees are otherwise exempt from local, state, or federal
taxes. Thus, any difference in net wages for Board employees
does not affect the validity of the ordinance or its
application to Board employees.
Conclusion
The Board employees who provide services in Irondale are
not exempt from the City's occupational tax. The Board and
the intervening employees' argument that essential state
employees are exempt from an occupational tax tracks the
argument made in McPheeter. We rejected that argument in
McPheeter, and we do so again here. The other arguments made
8
1180752, 1180777
by the Board and the intervening employees are likewise
without merit.1 Therefore, we hold that the ordinance applies
to Board employees.
1180752 –– AFFIRMED.
1180777 –- AFFIRMED.
Parker, C.J., concurs.
Shaw, Sellers, and Mendheim, JJ., concur in the result.
1The City moved to strike certain material below before
the trial court ruled on its motion for summary judgment. In
entering a summary judgment in favor of the City, the trial
court did not rule on the City's motion to strike, other than
to say that the motion had become moot. The intervening
employees now argue that it is unclear whether the trial court
considered the material that the City sought to strike. We
need not consider this argument in detail. Because the trial
court did not affirmatively strike the material, that material
is properly before us and, in any event, would not create a
genuine issue of material fact under the summary-judgment
standard, such that reversal would be required.
9 | October 23, 2020 |
cc9ec534-40ca-45d2-9f56-7e1913ccb919 | Ex parte N.W. | N/A | 1191055 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1191055
Ex parte N.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: N.W. v. Mobile County Department of Human
Resources) (Mobile Juvenile Court: JU-10-910.04; Civil Appeals :
2190555).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
a1fa818a-6d76-4e22-90d8-2425180bdae2 | Ex parte K.N. | N/A | 1200030 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1200030
Ex parte K.N. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: K.N. v. J.L.) (Tuscaloosa Juvenile Court:
JU-11-220.07; Civil Appeals :
2190274).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
9122c15f-77e1-43d3-8646-15cb82753741 | Guthrie v. Fanning | N/A | 1190852 | Alabama | Alabama Supreme Court | Rel: December 11, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190852
____________________
Winston Guthrie
v.
David Ray Fanning
Appeal from Limestone Circuit Court
(CV-20-01)
SELLERS, Justice.
Winston Guthrie sued David Ray Fanning seeking damages for false
arrest, malicious prosecution, and defamation. The Limestone Circuit
1190852
Court entered a summary judgment in favor of Fanning, and Guthrie,
acting pro se, appeals. We affirm.
Facts
In August 2009, Guthrie entered a guilty plea to the charges of
sodomy and sexual abuse of several minor boys, including Fanning's son
(hereinafter referred to as "the victim"). Guthrie was sentenced to 10
years' imprisonment; that sentence was split and Guthrie served 1 year
followed by 3 years' supervised probation. As a convicted sex offender,
Guthrie was required to comply with all parts of the Alabama Sex
Offender Registration and Community Notification Act, § 15-20A-1 et seq.,
Ala. Code 1975 ("the ASORCNA"). At issue in this appeal is § 15-20A-
16(c), Ala. Code 1975, a part of the ASORCNA, which provides that "[n]o
sex offender shall make any harassing communication, directly or
indirectly, in person or through others, by phone, mail, or electronic
means to the victim or any immediate family member of the victim." Any
person who knowingly violates § 15-20A-16(c) is guilty of a Class C felony.
See § 15-20A-16(f), Ala. Code 1975.
2
1190852
In 2012, following resolution of the 2009 case, Guthrie sued Fanning
in the Limestone Circuit Court; that case was dismissed. In April 2018,
Guthrie sent a letter addressed to Fanning and Fanning's wife that
Fanning perceived as harassing. An investigator with the Madison
County Sheriff's Department reviewed the letter and advised Fanning of
the warrant procedure and the necessity to talk with a magistrate, which
Fanning did. After determining that probable cause existed, a Madison
County district-court magistrate issued a complaint against Guthrie
charging him with the offense of harassing communications, a violation
of § 13A-11-8(b)(1)(a), Ala. Code 1975.1 The offense of harassing
communications under § 13A-11-8(b)(1)(a) constitutes a Class C
misdemeanor. See § 13A-11-8(b)(2), Ala. Code 1975.
1Section 13A-11-8(b)(1) provides that "[a] person commits the crime
of harassing communications if, with intent to harass or alarm another
person, he or she does any of the following:
"a. Communicates with a person, anonymously or
otherwise, by telephone, telegraph, mail, or any other form of
written or electronic communication, in a manner likely to
harass or cause alarm."
3
1190852
Christopher J. Donovan, an assistant district attorney assigned to
prosecute the case, determined that Guthrie should not have been charged
with the misdemeanor offense of harassing communications under § 13A-
11-8(b)(1)(a); rather, he should have been charged with the felony offense
of contacting the victim's family with the intent to harass, under § 15-20A-
16(c) of the ASORCNA. Donovan explained in his affidavit:
"I was assigned to prosecute the case pursuant to the
standard procedures within the Madison County District
Attorney's Office. As part of our standard procedures and
practice within the Department, I reviewed the letter from
Guthrie, the [district-court] complaint, and the criminal
history of the accused, Winston Guthrie. I found where Mr.
Guthrie had been convicted in 2009 of sexual abuse and was a
registered sex offender pursuant to Alabama law. I then
discussed the content of the [district-court] complaint with
Madison County Deputy District Attorney, Tim Gann. Mr.
Gann had been the prosecutor in the sex abuse case against
Mr. Guthrie in 2009. Mr. Gann and I agreed that while
Guthrie's letter was certainly harassing in content, the
[district-court] complaint should actually have been a felony
charge pursuant to [§ 15-20A-16(c) of the ASORCNA]."
(Emphasis added.)
The State thereafter nolle prossed the district-court case charging
Guthrie with the misdemeanor offense of harassing communications and
indicted him for the felony offense of contacting the victim's family
4
1190852
member with intent to harass under the ASORCNA. At that time,
Guthrie also had another indictment pending charging him with two
counts of failing to properly register as a sex offender as required by the
ASORCNA. Guthrie entered into a plea agreement as to the ASORCNA
violations, and he was sentenced to eight years' imprisonment; that
sentence was split, and Guthrie was ordered to serve one year in a
community-corrections program followed by four years' probation.
On January 13, 2020, while Guthrie was serving time in the
community-corrections program, he sued Fanning seeking damages for
false arrest, malicious prosecution, and defamation of character. The gist
of the complaint is that Fanning had unlawfully accused Guthrie of
harassing communications which, Guthrie alleged, resulted in Guthrie
being falsely arrested. Fanning moved for a summary judgment pursuant
to Rule 56(c), Ala. R. Civ. P., which Guthrie opposed. Following a hearing,
the trial court entered a summary judgment in favor of Fanning. This
appeal followed.
Discussion
5
1190852
As indicated, this case stems from Guthrie's violation of § 15-20A-
16(c) of the ASORCNA. Guthrie has favored this Court with a brief that
not only fails to acknowledge the ASORCNA, but also fails to comply with
Rule 28, Ala. R. App. P. Rule 28(a)(10), Ala. R. App. P., requires the
argument section of an appellant's brief to include "the contentions of the
appellant ... with respect to the issues presented, and the reasons therefor,
with citations to the cases, statutes, other authorities, and parts of the
record relied on." This rule simply reflects that in appellate advocacy, it
is neither the function nor the duty of this Court to perform a party's legal
research. Ex parte Borden, 60 So. 3d 941 (Ala. 2007). When an appellant
fails to support his arguments with any legal authority, this Court will not
address those arguments. Lee v. Houser, 148 So. 3d 406 (Ala. 2013). We
further add that this Court is no more forgiving of pro se litigants than
those represented by counsel. Walker v. Blackwell, 800 So. 2d 582 (Ala.
2001). In this case, Guthrie's brief is entirely devoid of any citations to the
record, and the only legal authority cited pertains to the summary-
judgment standard of review. The brief also contains arguments that are
presented for the first time on appeal and that thus cannot be considered.
6
1190852
Andrews v. Merritt Oil Co., Inc., 612 So. 2d 409 (Ala. 1992). Because
Guthrie has failed to present this Court with a brief that complies with
Rule 28, the arguments presented in the brief are deemed waived and the
summary judgment in favor of Fanning is affirmed.
Finally, Fanning has requested an award of attorney fees pursuant
to the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala.
Code 1975 ("the ALAA"), for defending this appeal which, he says, Guthrie
knew or should have known was without substantial justification.
Fanning also asserts that Guthrie has used the court system to
improperly penalize Fanning for Guthrie's criminal convictions and to
continue to harass Fanning despite the ASORCNA's prohibition against
contact with the victim's family.
Initially, we note that the appellate courts of this State are
authorized under the ALAA and Rule 38, Ala. R. App. P., to award
attorney fees as a sanction for certain filings. Section 12-19-272(a), Ala.
Code 1975, a part of the ALAA, provides, in relevant part:
"(a) Except as otherwise provided in this article, in any
civil action commenced or appealed in any court of record in
this state, the court shall award, as part of its judgment and
7
1190852
in addition to any other costs otherwise assessed, reasonable
attorneys' fees and costs against any attorney or party, or
both, who has brought a civil action, or asserted a claim
therein, or interposed a defense, that a court determines to be
without substantial justification, either in whole or part;
" ....
"(c) The court shall assess attorneys' fees and costs
against any party or attorney if the court, upon the motion of
any party or on its own motion, finds that an attorney or party
brought an action or any part thereof, or asserted any claim or
defense therein, that is without substantial justification, or
that the action or any part thereof, or any claim or defense
therein, was interposed for delay or harassment, or if it finds
that an attorney or party unnecessarily expanded the
proceedings by other improper conduct ...."2
(Emphasis added.) See Williams v. Capps Trailer Sales, Inc., 607 So. 2d
1272 (Ala. Civ. App. 1992) (awarding attorney fees for defendants under
ALAA for appeal brought without substantial justification); see also § 12-
19-276, Ala. Code 1975 (noting that the provisions of the ALAA "are
cumulative and in addition to the damages which may be awarded for a
frivolous appeal pursuant to Rule 38, Alabama Rules of Appellate
2Section 12-19-271, Ala. Code 1975, requires that for an action,
claim, or defense to be "without substantial justification," it must be
"frivolous, groundless in fact or in law, or vexatious, or interposed for any
improper purpose."
8
1190852
Procedure"). Rule 38, Ala. R. App. P., authorizes an appellate court, ex
mero motu, to "award just damages and single or double costs to the
appellee" if the court determines that an appeal is frivolous. See Walker,
supra. (imposing Rule 38, Ala. R. App. P., sanctions against pro se litigant
for frivolous appeal), and May v. May, 292 So. 3d 385 (Ala. Civ. App. 2019)
(awarding attorney fees to wife under Rule 38, Ala. R. App. P., for
husband's frivolous appeal that presented the wife and appellate court
with no legal argument for reversal).
After reviewing the facts and history of this case, we conclude that
Fanning's request for attorney fees in defending this appeal is justified
under either Rule 38 or the ALAA because the appeal is frivolous, it was
brought without substantial justification, and it was interposed for the
primary improper purpose of harassing Fanning and disparaging his
character. Guthrie's opening brief grossly misrepresents the nature of
this appeal. As indicated, the State indicted Guthrie for contacting the
victim's family with the intent to harass, a felony offense under § 15-20A-
16(c) of the ASORCNA. Guthrie, however, fails to disclose any facts
regarding his conviction and history of sexual abuse, nor does he provide
9
1190852
any discussion of the ASORCNA. Rather, he makes numerous
unsupported allegations against Fanning and insists that he was justified
in bringing a civil action against him. Specifically, Guthrie represents
that the district-court case charging him with the misdemeanor offense of
harassing communications under § 13-11-8(b)(1)(a) was nolle prossed
because, he says, the State determined that the case had no merit.
Guthrie then asserts that, because the State determined that the case
charging him with the misdemeanor offense had no merit, he was justified
in suing Fanning to recover damages for false arrest, malicious
prosecution, and defamation. Those assertions are far from true and are
material misstatements intended to mislead this Court. The district-court
case charging Guthrie with the misdemeanor offense of harassing
communications under § 13-11-8(b)(1)(a) was nolle prossed not because it
lacked merit, but because the State determined that Guthrie should have
been charged with a felony offense instead of a misdemeanor. Guthrie
ignores the fact that harassing communications with the victim's family
are prohibited by the ASORCNA. In fact, during the summary-judgment
10
1190852
hearing, the trial court admonished Guthrie for initiating the civil action
against Fanning:
"I have no sympathy for you. You should not have ever
initiated this [action]. You have no claim. I'm going to grant
summary judgment. I am astounded, frankly, that [the
Fanning family has not] asked for costs ... against you under
the [ALAA], which had they asked I probably would have
granted, attorney's fees. I'm astounded that you haven't been
prosecuted for your actions. If you were in my court and I had
sentenced you I promise I would have dealt with you, because
there is a reason -- you need to leave this family alone."
In other words, Guthrie clearly knew or should have known that the
action he filed against Fanning was without substantial justification. Yet,
despite the trial court's admonishment of Guthrie for filing the action and
despite being told that he had no claim, Guthrie filed the instant appeal,
in which he has presented this Court with no legal basis for reversal.
Guthrie flagrantly ignored the requirements of Rule 28; the arguments
in the brief are not supported by legal authority, there are no citations to
the record, and the facts contain substantial omissions and material
misstatements. In essence, this appeal stems from the second
unsuccessful complaint that Guthrie has filed against Fanning resulting
in litigation that has burdened the judicial resources of both the trial court
11
1190852
and this Court, interfered with the effective administration of justice, and
subjected Fanning and his family to unwarranted and continued
harassment.
Fanning has submitted with his brief an affidavit of his attorney,
Byrd R. Latham, who avers that he charged Fanning $3,495 for reviewing
the trial-court transcript, researching the law, reviewing Guthrie's
appellate brief, and drafting Fanning's appellate brief.3 Latham further
asserts that the amount he charged Fanning in defending this appeal is
reasonable. In his reply brief, Guthrie wholly fails to acknowledge
Fanning's request for attorney fees in defending the appeal and, to his
detriment, pleads nothing in opposition to the contents of Latham's
affidavit regarding the reasonableness of the fees charged. In light of the
factual background of this case, we assess attorney fees against Guthrie
in the amount of $3,495.
Conclusion
3Fanning did not request attorney fees in defending the underlying
action in the trial court, which, he states, totaled $6,177.40.
12
1190852
The summary judgment in favor of Fanning is affirmed, and
Fanning's request for an award of attorney fees on appeal is granted.
AFFIRMED; REQUEST FOR ATTORNEY FEES GRANTED.
Parker, C.J., and Bolin, Wise, and Stewart, JJ., concur.
13 | December 11, 2020 |
12f47cb2-5743-4bab-918f-2de12d177b55 | Ex parte Willie Leon Banks. | N/A | 1200010 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1200010
Ex parte Willie Leon Banks. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Willie Leon Banks v. State of
Alabama) (Tuscaloosa Circuit Court: CC-05-733.61; Criminal Appeals :
CR-19-0657).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
22e891b4-64f0-4e2e-8e3f-0cef0cc60db9 | Ex parte Richard Burgin, Jr. | N/A | 1200038 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1200038
Ex parte Richard Burgin, Jr. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Richard Burgin, Jr. v. State
of Alabama) (Madison Circuit Court: CC-15-335.60; Criminal Appeals :
CR-19-0154).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
c32ce558-21f6-44b2-a8cb-e786e8eab555 | Roosevelt Finley, Nathan White, and David Gallew v. Town of Camp Hill | N/A | 1181044 | Alabama | Alabama Supreme Court | Rel: November 13. 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1181044
Roosevelt Finley, Nathan White, and David Gallew v. Town of Camp Hill
(Appeal from Tallapoosa Circuit Court: CV-14-900127).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | November 13, 2020 |
a2bc0e73-82da-441f-b486-fb165b8bd035 | Ex parte D.R.J. | N/A | 1190769 | Alabama | Alabama Supreme Court | Rel: October 30, 2020
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190769
____________________
Ex parte D.R.J. and Dana Sides
PETITION FOR WRIT OF MANDAMUS
(In re: Kathy King and Barry King
v.
D.R.J., a minor; Dana Sides; and State Farm Mutual
Automobile Insurance Company)
(Lee Circuit Court, CV-18-900058)
SELLERS, Justice.
D.R.J. and his mother, Dana Sides, petition this Court
for a writ of mandamus directing the Lee Circuit Court to
1190769
vacate its February 7, 2020, and May 15, 2020, orders holding
that a pro tanto release executed in their favor was void,
thus restoring them as defendants in the underlying lawsuit.
We deny the petition.
Facts
On January 26, 2018, Kathy King and Barry King sued
D.R.J. and Sides (hereinafter referred to collectively as
"the
defendants"),
seeking
damages
for
injuries
the
Kings
sustained
as a result of an automobile accident allegedly caused by the
negligence of D.R.J., who was driving Sides's vehicle and who,
at the time of the accident, was a minor. The Kings also sued
their
insurer,
State
Farm
Mutual
Automobile Insurance Company,
seeking to recover underinsured-motorist ("UIM") benefits.
Pursuant to Lowe v. Nationwide Insurance Co., 521 So. 2d 1309
(Ala. 1988), State Farm opted out of active participation in
the litigation.
Thereafter, the defendants and their insurer, Alfa Mutual
Insurance Company, offered to settle the Kings' claims for
$95,000. On January 18, 2019, counsel for the Kings notified
State Farm of the settlement offer and requested that State
Farm provide notice within 30 days as to whether it intended
2
1190769
either to consent to the settlement offer or to advance the
amount of the settlement offer and preserve its subrogation
rights against the defendants.
On February 21, 2019, State Farm responded by offering
the Kings $25,000 to settle the UIM claim. State Farm
explained in its response that, if the Kings rejected the
offer to settle the UIM claim, then it would advance the
$95,000 settlement offer and preserve its subrogation rights
against the defendants. The next day, the Kings rejected
State Farm's offer to settle the UIM claim. There were no
further communications between the parties regarding the
settlement offer or the UIM claim.
On March 21, 2019, the Kings, without State Farm's
consent, accepted the $95,000 settlement offer and executed a
pro tanto release in favor of the defendants, expressly
reserving their UIM claim against State Farm. The Kings then
filed a motion to dismiss all claims against the defendants,
and, on March 29, 2019, the trial court entered an order
dismissing all claims against the defendants with prejudice
and noting that the Kings' UIM claim against State Farm
remained pending. When State Farm learned of the settlement
3
1190769
and the pro tanto release, it moved the trial court for a
summary judgment, arguing that the Kings had forfeited their
rights to UIM benefits by executing the pro tanto release
without its consent as required by the policy the Kings had
with State Farm. Alternatively, State Farm moved the trial
court to set aside its March 29, 2019, order dismissing the
defendants with prejudice and to place the litigation in the
appropriate procedural posture that would have existed but
for
the Kings' alleged improper conduct. The Kings filed a motion
in opposition, arguing that they were entitled to UIM benefits
under the policy because of State Farm's alleged unreasonable
delay in either consenting to the settlement offer or
advancing the amount of the settlement offer. See Lambert v.
State Farm Mut. Auto. Ins. Co., 575 So. 2d 160 (Ala. 1991).1
1In Lambert, this Court stated that a settlement should
not take place without a UIM carrier having a "reasonable
time" within which to investigate the claim and to notify its
insured of its proposed action. The Kings asserted that 62
days had passed between the time State Farm was put on notice
of the settlement offer and the date they accepted the offer.
We express no opinion as to whether the timeliness of State
Farm's response in this case was reasonable.
4
1190769
On February 7, 2020, the trial court entered an order
finding, as a matter of law, that "an unreasonable amount of
time had not elapsed, after receiving notice, for State Farm
to object to the proposed settlement." The trial court made
no ruling on State Farm's motion for a summary judgment;
rather, it declared that the pro tanto release executed by the
Kings was void and that its ruling "restore[d] the status quo"
of the case.
On May 15, 2020, the trial court entered an order, noting
that its March 29, 2019, order dismissing the claims against
the defendants was "neither expressly nor impliedly a final
order" and that, pursuant to Rule 54(b), Ala. R. Civ. P., it
was thus subject to revision at any time before the entry of
a judgment adjudicating all the claims of all the parties. The
trial court clarified that
"[t]he March 29, 2019, order dismissing the
[defendants] pro tanto is hereby SET ASIDE. The
intended effect of this order ... is that: (1) [The
defendants] are restored to the action; (2) all of
the [Kings'] claims remain pending as to [the
defendants and State Farm]; and (3) the parties are
welcome to, should they choose, renew previous
settlement offers, resume negotiating, and the
like."
5
1190769
State Farm thereafter advanced the Kings $95,000, the amount
the defendants and Alfa offered to settle the Kings' claims.
Standard of Review
A writ of mandamus is an extraordinary remedy available
only when the petitioner can demonstrate "'(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) the properly
invoked jurisdiction of the court.'" Ex parte Nall, 879 So. 2d
541, 543 (Ala. 2003)(quoting Ex parte BOC Grp., Inc., 823 So.
2d 1270, 1272 (Ala. 2001)).
Discussion
As indicated, on March 29, 2019, the trial court entered
an order granting the Kings' motion to dismiss all claims
against the defendants with prejudice. On February 7, 2020,
the trial court entered an order holding that the pro tanto
release executed by the Kings was void and stating that its
ruling "restore[d] the status quo." The trial court entered
the May 15, 2020, order to clarify that the intended effect of
its previous order was that the March 29, 2019, order granting
the Kings' motion was set aside because the release executed
6
1190769
by the Kings, on which that order was based, was void, that
the defendants were restored as parties to the lawsuit, and
that all of the Kings' claims against the defendants and State
Farm remained pending.
The defendants argue that they have a clear legal right
to an order directing the trial court to set aside its
February 7, 2020, and May 15, 2020, orders because, they say,
in the absence of fraud or mutual mistake, the trial court
lacked authority to void the pro tanto release –- the result
of which restores them as parties to the lawsuit. The
defendants further assert that, rather than voiding the pro
tanto release, the trial court should have granted State
Farm's motion for a summary judgment, which, they say, would
have ended the litigation. The defendants, however, make no
attempt to show how the matter complained of comes within any
of the recognized situations appropriate for mandamus review.
It is well settled that mandamus will not be granted for the
purpose of merely reviewing trial-court error; rather,
mandamus review has essentially been limited to well
recognized situations in which the petitioners have a clear
legal right to the relief sought from the trial court but the
7
1190769
trial court has refused to grant the relief. See Ex parte U.S.
Bank Nat'l Ass'n, 148 So. 3d 1060 (Ala. 2014) (providing list
of exceptional situations in which this Court has held
mandamus review to be appropriate); see also Ex parte Hodge,
153 So. 3d 734 (Ala. 2014)(same). Accordingly, the defendants
have not met their burden for the issuance of a writ of
mandamus.
Conclusion
The defendants' petition for a writ of mandamus is
denied.
PETITION DENIED.
Parker, C.J., and Bolin, Shaw, Bryan, Mendheim, Stewart,
and Mitchell, JJ., concur.
8 | October 30, 2020 |
7339ca3f-cfcd-48eb-9bbf-134317064fd2 | Ex parte W. Perry Hall. | N/A | 1180976 | Alabama | Alabama Supreme Court | REL: November 6, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1180976
____________________
Ex parte W. Perry Hall
PETITION FOR WRIT OF MANDAMUS
(In re: Briargrove Homeowners Association, Inc., et al.
v.
DMIH, LLC, et al.)
(Mobile Circuit Court, CV-17-273)
MITCHELL, Justice.
1180976
Attorney W. Perry Hall petitions this Court for a writ of mandamus
directing the Mobile Circuit Court ("the circuit court"), Judge James
Patterson presiding, to vacate its order entered on August 15, 2019 ("the
order"), requiring Hall, among other things, to issue a letter of apology to
his clients. We dismiss the petition as moot.
Hall represents a homeowners association and multiple individual
homeowners in a Mobile subdivision in a lawsuit against the developer of
that subdivision. After Hall moved to dismiss certain counterclaims
asserted against those homeowners, the circuit court entered an order
demanding that Hall "provide a copy of this order and a copy of Ala. R.
Civ. P. Rule 19, as well as a copy of [the motion to dismiss] to [his
homeowner clients], along with a letter explaining how Rule 19 works,
apologizing for the invectives and sheer puffery used in this frankly
scandalous pleading." (Emphasis in original.) The circuit court entered
the order because it "dislike[d]" Hall's use of the phrase "forced Plaintiff's
[sic]" to describe the plaintiffs, as well as other terms used in the motion
to dismiss. The circuit court provided no other basis for the directives in
its order.
2
1180976
On August 30, 2019, Hall filed this petition for a writ of mandamus
because, he says, the circuit court had exceeded its discretion by entering
the order. We need not address that issue, however, because, six days
later, the circuit court vacated the order after the individual homeowners
were dismissed from the action by joint stipulation. It is unclear whether
all the parties named in the order were dismissed before the circuit court
vacated the order, but, because the order was vacated, Hall's petition is
now moot.
Although we do not review whether the circuit court exceeded its
discretion by entering the order, we emphasize that a judge is expected to
maintain "the decorum and temperance befitting his office" and should be
"patient, dignified and courteous to litigants, jurors, witnesses, lawyers,
and others with whom he deals in his official capacity." Canon 2.B.,
Canon 3.A.(3), Canons of Judicial Ethics. This is because deference to the
judgments and rules of courts depends on public confidence in the
integrity and independence of judges. Canon 2.A., Canons of Judicial
Ethics. "The Canons are not merely guidelines for proper judicial conduct"
but have "the force and effect of law." In re Sheffield, 465 So. 2d 350, 355
3
1180976
(Ala. 1984). We expect the circuit court to faithfully comply with the
Canons at all times in its interaction with the litigants and attorneys who
appear before it.
PETITION DISMISSED.
Parker, C.J., and Bolin, Wise, Bryan, Mendheim, and Stewart, JJ.,
concur.
Shaw and Sellers, JJ., concur in the result.
4 | November 6, 2020 |
f16fdb0f-6be3-466b-9dcf-b3ccf25abd7c | Ex parte N.W. | N/A | 1191056 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1191056
Ex parte N.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: N.W. v. Mobile County Department of Human
Resources) (Mobile Juvenile Court: JU-18-1312.04; Civil Appeals :
2190556).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
1ba07e78-da77-4773-a25f-8237b7ba7f37 | Leo Group, Co., LTD., and Leo Group Pump | N/A | 1190238 | Alabama | Alabama Supreme Court | Rel: October 23, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190238
Leo Group, Co., LTD., and Leo Group Pump (Zhejiang) Co., LTD.
v. Lowe's Companies, Inc. and WaterSource, LLC (Appeal from
Lauderdale Circuit Court: CV-18-900053).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Bolin, Shaw, Wise, Sellers, Mendheim, and Stewart, JJ.,
concur.
Mitchell, J., recuses himself. | October 23, 2020 |
eaef7a12-7138-40c8-8f34-b38ff1421011 | Ex parte Patrick Benard Alexander. | N/A | 1190927 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 6, 2020
1190927 Ex parte Patrick Benard Alexander. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Patrick
Benard Alexander v. State of Alabama) (Morgan Circuit Court: CC-18-411;
Criminal Appeals : CR-19-0224).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on November 6, 2020:
Writ Denied. No Opinion. PER CURIAM - Bolin, Shaw, Wise, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur. Parker, C.J., and Bryan, J.,
dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 6th day of November, 2020.
Clerk, Supreme Court of Alabama | November 6, 2020 |
c042ab58-138e-4e3e-a5e1-9662698ccbfc | Ex parte Heratio Sanchez Moore. | N/A | 1191095 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1191095
Ex parte Heratio Sanchez Moore. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Heratio Sanchez Moore v.
State of Alabama) (Madison Circuit Court: CC-18-2106.70; Criminal
Appeals :
CR-19-0496).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
85a4d51f-480d-423b-bbfb-0372a2c8cc9e | Ex parte The Terminix International Co., LP, et al. | N/A | 1180863 | Alabama | Alabama Supreme Court | REL: October 30, 2020
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1180863
____________________
Ex parte The Terminix International Co., LP, Terminix
International, Inc., and Matthew Cunningham
PETITION FOR WRIT OF MANDAMUS
(In re: Bay Forest Condominium Owners Association, Inc., et
al.
v.
The Terminix International Co., LP, et al.)
(Baldwin Circuit Court, CV-18-900579)
MITCHELL, Justice.
1180863
Birmingham law firm Campbell Law, P.C., represents
consumers
in
legal
proceedings
against
pest-control
companies,
including The Terminix International Co., LP, and Terminix
International, Inc. (hereinafter referred to collectively as
"Terminix"). After Campbell Law initiated arbitration
proceedings against Terminix and Matthew Cunningham, a
Terminix branch manager, on behalf of owners in the Bay Forest
condominium complex ("Bay Forest") in Daphne, Terminix and
Cunningham asked the Baldwin Circuit Court to disqualify
Campbell Law from the proceedings because it had retained a
former manager of Terminix's Baldwin County office as an
investigator and consultant. The trial court denied the
motion to disqualify. Terminix and Cunningham ("the
petitioners") now petition this Court for a writ of mandamus,
arguing that the Alabama Rules of Professional Conduct require
Campbell Law's disqualification. We deny the petition.
Facts and Procedural History
In December 1996, the Bay Forest Condominium Owners
Association, Inc. ("the Association"), and Terminix entered
into contracts obligating Terminix to provide termite-
protection services to the four buildings in Bay Forest. The
2
1180863
Association renewed the contracts multiple times in the
following years, during which Terminix periodically inspected
and treated the Bay Forest buildings.
In May 2016, suspected termite damage was discovered in
one of the buildings. After the Association notified
Terminix, a Terminix representative conducted an inspection
and confirmed that there was termite damage. The Association
and its members (hereinafter referred to collectively as
"BFCOA") state that Terminix initially agreed to treat and
repair the damaged building but later refused to respond to
telephone calls and never returned to perform the needed
treatment and repairs.
Steve Barnett was the manager of Terminix's Baldwin
County office when the termite damage was discovered at Bay
Forest. The extent of Barnett's personal involvement with Bay
Forest is not clear from the materials before us, but, in
January 2017, while the Association was apparently trying to
get Terminix to address the termite damage, Barnett's
employment was terminated.1 Shortly thereafter, Barnett
1Terminix says that Barnett was fired because he was not
properly communicating with customers; Barnett says that he
was fired because he was honest with customers, and, as a
result, the Baldwin County office was paying more damage
3
1180863
approached Campbell Law, which he knew from its involvement
representing parties in previous disputes with Terminix, for
legal advice related to the termination of his employment.
Barnett ended up not retaining Campbell Law to pursue any
employment-related claims, but, in February 2017, the firm
hired
him
as
an
independent
contractor
to
provide
investigative and consulting services.
As part of Barnett's duties, he began attending property
inspections and providing testimony in arbitration and other
proceedings involving pest-control companies, including
Terminix. In fact, in the same month he was hired by Campbell
Law, Barnett submitted affidavits supporting a discovery
motion that was filed in an arbitration proceeding involving
Terminix and he attended an inspection at a property that was
the subject of another dispute with Terminix. That prompted
Terminix's national counsel in Chicago to telephone Campbell
Law to question the ethics of the firm's use of Barnett.
Campbell Law's Thomas Campbell states that he responded by
explaining that Barnett had been instructed not to divulge
privileged or confidential information to anyone at Campbell
claims than it had before he became the manager.
4
1180863
Law. According to Campbell, the attorney representing
Terminix replied by saying that his law firm would investigate
the ethics of Barnett's employment further. But Campbell Law
says no further communication was ever received from Terminix
or its counsel concerning Barnett. Thus, Campbell Law
continued to employ Barnett and use him as a witness in
proceedings against Terminix.
At some point, BFCOA retained Campbell Law to represent
it in its dispute with Terminix. BFCOA then petitioned the
Baldwin Circuit Court to appoint an arbitrator to hear their
dispute.2 After the trial court granted that petition and
appointed an
arbitrator,
BFCOA
initiated
arbitration by
filing
a statement of claims against Terminix and Cunningham,
Barnett's successor as the manager of Terminix's Baldwin
County office.3 About three months later, the petitioners
2Some of the contracts executed by the Association and
Terminix contained an arbitration provision, but the arbitral
forum named in those contracts has since ceased to offer
consumer-arbitration services. Under § 5 of the Federal
Arbitration Act, 9 U.S.C. § 1 et seq., a trial court may
appoint a replacement arbitrator if the arbitrator designated
in the arbitration agreement is unavailable. See, e.g.,
Robertson v. Mount Royal Towers, 134 So. 3d 862, 869 (Ala.
2013).
3Campbell Law had named Barnett as a defendant in other
proceedings involving Terminix's Baldwin County office before
5
1180863
moved the trial court to disqualify Campbell Law from
representing BFCOA in the Bay Forest dispute because, they
alleged, Campbell Law's employment of Barnett violated the
Alabama Rules of Professional Conduct. Campbell Law denied
the existence of an ethical problem and argued that, in any
event, the petitioners had waived their right to object
because they had known about Barnett's hiring since shortly
after it occurred but failed to formally object in any other
proceeding in which Campbell Law was representing a party
against Terminix. Following a hearing, the trial court denied
the motion to disqualify without stating its rationale. The
petitioners sought mandamus relief.
Standard of Review
"A writ of mandamus is an extraordinary remedy,
and is appropriate when the petitioner can show
(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) the properly
invoked jurisdiction of the court. Ex parte
Inverness Constr. Co., 775 So. 2d 153, 156 (Ala.
2000)."
his employment with Terminix was terminated. It appears
Barnett has been dismissed from those proceedings since
leaving Terminix and being hired by Campbell Law.
6
1180863
Ex parte BOC Grp., Inc., 823 So. 2d 1270, 1272 (Ala. 2001).
A petitioner bears the burden of proving all four of these
elements before a writ of mandamus will issue. Ex parte State
Farm Fire & Cas. Co., [Ms. 1180451, April 24, 2020] ___ So. 3d
___ (Ala. 2020).
In Ex parte Taylor Coal Co., 401 So. 2d 1, 3 (Ala. 1981),
this Court recognized that rulings on a motion to disqualify
counsel are within the discretion of the trial court. While
noting that mandamus review is typically not available to
review a trial court's discretionary decisions, the Taylor
Coal Court concluded that such review was appropriate in that
case because of the "serious charges" leveled against the
attorneys involved and the potential for the underlying
proceedings to be tainted if the alleged ethical issues were
not resolved before trial. Id. This Court later confirmed
that a trial court's ruling on a motion to disqualify can be
reviewed only by mandamus. See Ex parte Central States Health
& Life Co. of Omaha, 594 So. 2d 80, 81 (Ala. 1992) ("To avoid
future problems with incorrect filings and to
provide specific
instructions to the Bar as to the correct method for seeking
review of a lower court's ruling on a motion to disqualify an
7
1180863
attorney, this Court holds that review of such a ruling is by
a petition for writ of mandamus only.").
Analysis
It is well established that a trial court has the
authority to disqualify counsel for violating the Alabama
Rules of Professional Conduct. See Ex parte Utilities Bd. of
Tuskegee, 274 So. 3d 229, 232 (Ala. 2018). Nonetheless, this
Court has explained that a "common-sense approach" should
guide the trial court when considering motions to disqualify
and that a violation of the Rules of Professional Conduct does
not require disqualification in every instance. See, e.g., Ex
parte Wheeler, 978 So. 2d 1, 7 (Ala. 2007) (concluding that
counsel's disqualification was inappropriate even though he
had violated Rule 1.11, Ala. R. Prof. Cond.). In sum, the
decision of whether to disqualify counsel who has violated the
Rules of Professional Conduct falls squarely within the sound
discretion of the trial court. Taylor Coal, 401 So. 2d at 3.
Accordingly, the trial court's denial of the motion to
disqualify must be affirmed unless it is established that the
ruling "is based on an erroneous conclusion of law" or that
the trial court "has acted arbitrarily without employing
8
1180863
conscientious judgment, has exceeded the bounds of reason in
view of all circumstances, or has so far ignored recognized
principles of law or practice as to cause substantial
injustice." Edwards v. Allied Home Mortg. Capital Corp., 962
So. 2d 194, 213 (Ala. 2007).
The petitioners argue that the trial court erred by
concluding that Campbell Law did not violate Rules 4.2(a),
1.6(a), 1.9, and 4.4, Ala. R. Prof. Cond., and that, based on
the circumstances of those violations, the trial court
exceeded its discretion by denying the motion to disqualify.
We analyze each of the rules that the petitioners say Campbell
Law violated, in the order presented by them in their
petition.
A. Rule 4.2(a)
Rule 4.2(a) provides that, when representing a client, "a
lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer
has the consent of the other lawyer or is authorized by law to
do so." The Comment to Rule 4.2(a) further explains:
"In the case of an organization, this Rule
prohibits communications by a lawyer for one party
9
1180863
concerning the matter in representation with persons
having a managerial responsibility on behalf of the
organization, and with any other person whose act or
omission in connection with that matter may be
imputed to the organization for purposes of civil or
criminal liability or whose statement may constitute
an admission on the part of the organization."4
The petitioners argue that, while Rule 4.2(a) expressly
applies to only current employees of an organization, its
application
should
be
expanded
to
cases
in
which
communications have been received from a former employee. The
petitioners insist that because Barnett acquired confidential
knowledge about Terminix while he was employed by Terminix,
under Rule 4.2(a), "Campbell Law had a duty to seek Terminix's
consent before contacting Barnett and before hiring him to be
an investigator and consultant." Petition, at p. 14. We
disagree.
This Court has explained that the words in the rules
adopted by the Court must be interpreted according to their
plain meaning. Ex parte Jett, 5 So. 3d 640, 643 (Ala. 2007).
By
its
terms,
Rule
4.2(a)
prohibits
a
lawyer
from
communicating with a person only if the lawyer knows the
4Although the Comment to a rule sheds light on the meaning
of the rule, "the text of each Rule is authoritative," and
Comments "do not add obligations to the Rules." Scope, Ala.
R. Prof. Cond.
10
1180863
person "to be represented by another lawyer in the matter."
As the Comment to Rule 4.2 indicates, by virtue of being an
employee with "managerial responsibility," Barnett was
effectively "represented" by counsel for Terminix while he
was
employed by Terminix; Rule 4.2 therefore generally prohibited
Campbell Law from communicating with Barnett while he was a
Terminix employee.
But there is no allegation that Campbell Law had any
communication with Barnett while he was employed by Terminix.
Rather, Barnett initiated his communication and eventual
relationship with Campbell Law after his employment with
Terminix was terminated and he ceased to have any managerial
responsibility. And Campbell has testified that Barnett was
never personally served in actions initiated against Terminix
while he was a Terminix employee and that Barnett never agreed
to be represented by Terminix's lawyers. The petitioners cite
no evidence to refute Campbell's statements.
Although the petitioners acknowledge the limits of the
text of Rule 4.2(a), they nonetheless argue that an ethics
opinion issued by the Alabama State Bar Disciplinary
Commission ("the Commission") in 1993 supports its position.
11
1180863
In ethics opinion RO-93-05, the Commission responded to a
lawyer's question about the ethics of contacting the former
employees of a factory that had closed and was alleged to have
polluted surrounding properties. The Commission concluded
that "Rule 4.2, Alabama Rules of Professional Conduct, does
not prohibit plaintiff's counsel from contacting former
employees of a corporate defendant," but further explained
that there "might be" an exception for "those employees who
occupied a managerial level position and were involved in the
underlying transaction." The petitioners argue that Barnett
is such an employee and that Rule 4.2 should therefore apply.
We decline this invitation to expand Rule 4.2. As the
American Bar Association Standing Committee on Ethics and
Professional Responsibility ("the Committee") explained in an
advisory
opinion
concerning Model
Rule
of
Professional
Conduct
4.2 –– on which Alabama's Rule 4.2 is based –– there may be
sound policy arguments that support expanding Rule 4.2 in the
way the petitioners now urge, but doing so would be
inconsistent with the text of the rule:
"While the Committee recognizes that persuasive
policy arguments can be and have been made for
extending the ambit of Model Rule 4.2 to cover some
former corporate employees, the fact remains that
12
1180863
the text of the Rule does not do so and the comment
gives no basis for concluding that such coverage was
intended. Especially where, as here, the effect of
the
Rule
is
to
inhibit
the
acquisition
of
information about one's case, the Committee is
loath, given the text of Model Rule 4.2 and its
comment, to expand its coverage to former employees
by means of liberal interpretations."
ABA Comm. on Ethics and Prof. Resp., Formal Op. 91-359 (March
1991).
The majority of states that have interpreted a rule
derived from Model Rule 4.2 have likewise concluded that it
applies only to current employees. The petitioners have
identified one state that has rejected the Committee's view of
Model Rule 4.2, see Lang v. Superior Court of Maricopa Cnty.,
170 Ariz. 602, 607, 826 P.2d 1228, 1233 (Ct. App. 1992)
(concluding that Rule 4.2 prohibits ex parte communications
with former employees in
some circumstances), but the majority
of jurisdictions that have considered the issue have followed
the Committee's text-based approach and concluded that Rule
4.2 has no field of operation as it relates to former
employees. See, e.g., H.B.A. Mgmt., Inc. v. Estate of
Schwartz, 693 So. 2d 541, 544 (Fla. 1997) (concluding that
Rule 4.2 does not bar communication with "former employees of
defendant-employers who can no longer speak for or bind the
13
1180863
organization"); State ex rel. Charleston Area Med. Ctr. v.
Zakaib, 190 W. Va. 186, 190, 437 S.E.2d 759, 763 (1993) ("[A]
majority of jurisdictions that have had occasion to consider
whether Rule 4.2 restrictions are applicable to former
employees have concluded that they are not."); Strawser v.
Exxon Co., U.S.A., 843 P.2d 613, 622 (Wyo. 1992) ("[T]he
overwhelming recent trend has been for courts to find that
Rule 4.2 does not generally bar ex parte contacts with former
employees."). Because we apply Court rules in accordance with
the plain meaning of their text, Jett, 5 So. 3d at 644, we
join those jurisdictions that have limited the application of
Rule 4.2 to current employees. Accordingly, Campbell Law did
not violate Rule 4.2 by communicating with and retaining
Barnett once he was no longer employed by Terminix.
B. Rules 1.6(a) and 1.9(b)
Rules 1.6(a) and 1.9(b) both concern the unauthorized
disclosure of information obtained from clients. Rule 1.6(a)
provides that, with limited exceptions not applicable here,
"[a] lawyer shall not reveal information relating to
representation of a client unless the client consents after
consultation." And Rule 1.9(b) prohibits, again with limited
14
1180863
exceptions not applicable here, a lawyer "who has formerly
represented a client in a matter" from "us[ing] information
relating to the representation to the disadvantage of the
former client." The petitioners do not allege that Campbell
Law has directly revealed information protected by
Rule 1.6(a)
or Rule 1.9(b) but argue that under Rule 5.3(c), Ala. R. Prof.
Cond., Campbell Law is responsible for the acts of Barnett,
who, the petitioners allege, has revealed confidential
information he obtained from Terminix. See Rule 5.3(c)
(explaining that a lawyer may be responsible for acts of a
nonlawyer
employee
that
would
violate
the
Rules
of
Professional Conduct if that employee was a lawyer).
In support of their argument, the petitioners rely almost
exclusively on an unreported decision of the United States
District Court for the Eastern District of
Pennsylvania, Grant
Heilman Photography, Inc. v. McGraw-Hill Global Education
Holdings, LLC, No. 17-694, May 2, 2018 (E.D. Pa. 2018) (not
reported in F. Supp.), in which a federal district court
granted a motion to disqualify plaintiff's counsel after they
retained a former employee of the defendant who "was deeply
involved
in
discovery
management
and
other
litigation
support"
15
1180863
as a consultant to assist with litigation against the
defendant. The federal district court concluded that, "once
a non-lawyer possessing material confidential information
'switches sides' on the same case, a presumption attaches to
the new employer that such information will be improperly
shared." Id. Because there was no evidence indicating that
plaintiff's counsel had taken measures to avoid the improper
sharing of confidential information, the court disqualified
plaintiff's counsel. The petitioners argue that Campbell
Law's hiring of Barnett is analogous to plaintiff's counsel's
hiring of the consultant in Grant Heilman and contend that
Campbell Law should likewise be disqualified. We disagree.
The federal district court's decision to disqualify
plaintiff's counsel in Grant Heilman was centered on the
failure of plaintiff's counsel to take any steps to ensure
that the former employee did not share privileged and
confidential information in spite of the obvious potential for
that to occur based on her job duties while employed by the
defendant. The federal district court explained that "[t]he
appearance of impropriety, and [counsel's] lack of
controls in
ensuring compliance with the Rules, dictates that the proper
16
1180863
result is disqualification." Id. In contrast, the materials
before this Court indicate that Campbell Law took affirmative
steps to ensure that Barnett did not disclose privileged and
confidential information that he may have obtained while
working for Terminix. In an affidavit submitted to the trial
court, Campbell described the instructions he gave Barnett
when he was hired:
"I have never received confidential information
about Terminix from Steve Barnett. I admonished him
when consulting me about his potential employment
claims and, later, when discussing his proposal to
work
with
us
as
an
independent-contractor
investigator that he should not reveal attorney-
client privileged information or work product. I
explained [and] defined privileged and work product
information. I also explained that he could never
share confidential information.
"....
"I explained to Barnett that some Terminix
information was confidential and could never be
divulged either directly or indirectly to me, any
employee of the firm, others working for the firm,
or its clients. For example, I knew that as branch
manager Barnett would know some customers with good
claims and some with claims that allowed Terminix to
make repairs that would have been partial in keeping
with its practice of failing to make all the
necessary repairs needed to find the end of
infestations. I explained that he could not
identify those customers, solicit them, or have
anyone else solicit them. I explained carefully
that when it came to ethical duties we had as
lawyers that he could not violate those and that one
17
1180863
'cannot do through the back door what you cannot do
through the front door.'
"....
"Barnett has never shared privileged, work-
product or privileged information."
Barnett has confirmed under oath the points made in
Campbell's affidavit. Barnett has testified that Campbell
gave him instructions along these lines when he was hired.
Barnett has also stated that, after his employment with
Terminix was terminated, he asked Terminix for copies of any
confidentiality agreements that applied to him; he said he
received no response from Terminix.5 He further stated that,
although he originally retained possession of some Terminix
documents after his termination, he disposed of them "after
Mr. Campbell informed me that I could not provide him any
documents I may have received while at Terminix."
In the absence of evidence indicating that Barnett
actually provided confidential Terminix information to
Campbell Law, the petitioners say this Court "must presume
5Terminix submitted a copy of a "Confidentiality/Non-
Compete Agreement" that Barnett executed in May 2008 with the
motion to disqualify Campbell Law. But the effect of that
agreement and any issues related to Barnett's compliance with
it are outside the scope of this petition.
18
1180863
that Barnett shared with Campbell Law all of the confidential
information he had obtained as Terminix's highest manager in
Baldwin County." Petition, at p. 20. The petitioners
emphasize that Barnett acknowledged having a box
of
materials,
including Terminix's confidential "Aspire Service Manual,"
after leaving Terminix. But as discussed above, Barnett said
that he disposed of those materials after being told by
Campbell that he could not share them with Campbell Law.
Given the evidence indicating that Campbell Law clearly
instructed Barnett that he could not disclose any privileged
and confidential information that he had obtained from
Terminix and the absence of any evidence indicating that
Barnett violated that instruction, we cannot conclude that
Rules 1.6(a) and 1.9(b) have been violated.
C. Rule 1.9(a)
Like Rule 1.9(b), Rule 1.9(a) concerns a lawyer's duty to
former clients. It provides that a lawyer "who has formerly
represented a client in a matter shall not thereafter ...
represent another person in the same or a substantially
related matter in which that person's interests are
materially
adverse to the interests of the former client, unless the
19
1180863
former client consents after consultation." As one leading
treatise summarizes, Rule 1.9(a) "prevents the disloyal act
of
switching sides in the same or a related matter." Geoffrey C.
Hazard, Jr. & W. William Hodes, The Law of Lawyering § 1.9:103
(1990). The petitioners argue that, under Rule 5.3(c),
Campbell Law is responsible for Barnett's actions and that,
because Barnett has effectively switched from the "Terminix
side" to the "Campbell Law side" of the Bay Forest dispute
(and other proceedings in which Campbell Law represents
parties against Terminix), Campbell Law has violated Rule
1.9(a) and should be disqualified.
Again, the petitioners rely almost entirely upon Grant
Heilman. In that unreported case, it was undisputed that the
former employee was intimately involved in the litigation
process while in her former job. There was testimony
indicating that she assisted in collecting information for
discovery and in witness preparation and, crucially, that she
was a participant in conversations in which litigation
strategy
was
discussed
between
her
employer's
in-house
counsel
and outside counsel. In sum, the former employee had
knowledge not only of information about her former employer's
20
1180863
operations that the employer desired to keep
confidential, but
also of specific privileged information about her former
employer's strategy for the litigation against her new
employer.
In this case, by contrast, there is no indication that
the extent of Barnett's involvement in any legal proceedings
rose to the level of the former employee in Grant Heilman.
The petitioners emphasize generally that Barnett was the
highest-ranking Terminix employee in Baldwin County while he
was manager and that he was therefore responsible for all
Terminix operations there, including the handling of termite-
damage claims. Barnett was also responsible for managing the
Baldwin County office's compliance with Alabama Department of
Agriculture and Industries ("ADAI") regulations and for
completing reports notifying the corporate office when ADAI
was investigating services that had been provided to a
customer.
But when we drill down to the particulars, it is clear
that Barnett's involvement in legal matters was limited.
Barnett has testified that he could recall "two or three"
lawsuits that were filed while he was Terminix's manager in
21
1180863
Baldwin County. On a separate occasion, he testified that
there was only one time when he actually spoke to a Terminix
lawyer about a case.6 Barnett also stated under oath that his
discretion in dealing with termite-damage claims was limited
–– that, in fact, he had no authority over the process for
handling claims and no authority to settle claims exceeding
$3,000. And while Barnett was Terminix's Baldwin County
manager when termite damage was discovered at Bay Forest, it
is not clear from the materials before us that he was even
involved in handling BFCOA's eventual claim. It is clear
though, that by the time BFCOA formally initiated proceedings
against the petitioners in May 2018, Barnett had not been
working for Terminix for well over a year. These facts
distinguish Barnett from the former employee in
Grant Heilman,
who "was deeply involved in discovery management and other
litigation support" for her former employer, including the
specific dispute in which plaintiff's counsel was involved.
As Campbell Law notes in its response to the mandamus
petition, the Supreme Court of Texas has recognized that there
is a meaningful distinction between lawyer employees who
6Barnett testified that he has not shared information
about that telephone call with Campbell Law.
22
1180863
"switch sides" and non-lawyer employees who do the same.7 In
In re RSR Corp., 475 S.W.3d 775, 776 (Tex. 2015), that court
held that a trial court erred by disqualifying a law firm for
hiring an opposing party's former finance manager as a
consultant. Explaining that the finance manager's position
"existed independently of litigation and [that] he did not
primarily report to lawyers," the court concluded that the
finance manager was essentially a fact witness and that the
ethical considerations that apply to "a side-switching
paralegal" therefore did not apply. Id. We are persuaded by
this analysis. Based on the evidence of Barnett's limited
involvement in Terminix's legal affairs generally and the Bay
Forest matter in particular, we agree with the trial court
that there has been no violation of Rule 1.9(a) by Campbell
Law in this case.
7Like
the
Alabama
Rules
of
Professional Conduct,
the
Texas
Disciplinary Rules of Professional Conduct are "based on the
American
Bar
Association
Model
Rules
of
Professional
Conduct."
Board of Law Exam'rs v. Stevens, 868 S.W.2d 773, 777 (Tex.
1994). See also In re Whitcomb, 575 B.R. 169, 172 (Bankr.
S.D. Tex. 2017) (explaining that "the ABA Model Rules and
Texas Disciplinary Rules of Professional Conduct parallel one
another regarding attorney use of confidential information").
23
1180863
D. Rule 4.4
The petitioners' final argument is that Campbell Law
violated Rule 4.4 by improperly obtaining evidence from
Barnett. Subsection (a) of Rule 4.4 provides that "a lawyer
shall not ... use methods of obtaining evidence that violate
the legal rights of [a third] person," while subsection (b)
generally sets forth the procedure a lawyer should follow when
he or she "receives a document that on its face appears to be
subject to the attorney-client privilege or otherwise
confidential." Rule 4.4(b) expressly provides that a lawyer
in receipt of such privileged or confidential information
should "notify the sender." The petitioners argue that
Campbell Law violated Rule 4.4(b) by obtaining and using
privileged and confidential information from Barnett without
notifying Terminix and that Campbell Law should therefore be
disqualified. In support, the petitioners rely on Harris
Davis Rebar, LLC v. Structural Iron Workers Local Union No. 1,
Pension Trust Fund, 17-C-6473, February 5, 2019 (N.D. Ill.
2019) (not reported in F. Supp.), an unreported decision in
which the United States District Court for the Northern
District of Illinois sanctioned –– but did not disqualify –-
24
1180863
defense counsel after it concluded that they had violated
Illinois's Rule 4.4 by failing to disclose that the plaintiff-
company's former employee had given them over 3,000 internal
e-mails, including confidential documents and privileged
communications
between
the
plaintiff-company
and
its
attorneys.
Harris Davis Rebar is distinguishable. As discussed,
while the petitioners have generally alleged that Barnett
shared privileged and confidential Terminix information with
Campbell Law, they have not identified any specific document
or information that was allegedly shared. At most, the
petitioners point to the fact that Barnett may have retained
a copy of its confidential Aspire Service Manual following his
departure from Terminix. But Campbell Law has rebutted any
allegation that Barnett improperly shared that document by
submitting Barnett's testimony that he disposed of all
Terminix materials that he had in his possession without
sharing them with Campbell Law. Campbell Law further states
that Terminix knows that the firm has already received
multiple copies of the Aspire Service Manual in other
proceedings –– and that Terminix has even asserted in other
25
1180863
cases that it should not be required to produce that manual
again because it had already done so. Without any evidence
indicating that Barnett actually shared privileged or
confidential information with Campbell Law, the petitioners
have failed to show that the trial court exceeded its
discretion by declining to disqualify Campbell Law for an
alleged violation of Rule 4.4.
Conclusion
The petitioners moved the trial court to disqualify
Campbell Law from representing BFCOA based on the firm's
hiring of Terminix's former manager Barnett as an
investigator
and
consultant. The petitioners argued that Barnett possessed
privileged and confidential information related to disputes
between Terminix and parties represented by Campbell Law and
that Campbell Law had therefore violated Rules 4.2(a), 1.6(a),
1.9, and 4.4, Ala. R. Prof. Cond. After the trial court
denied the motion to disqualify, the petitioners sought
mandamus relief. As explained above, the petitioners have not
shown that Campbell Law has violated the Rules of Professional
26
1180863
Conduct.8 Thus, the petitioners have not established that
they have a clear legal right to the relief they seek.
PETITION DENIED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers,
Mendheim, and Stewart, JJ., concur.
8It is unnecessary to consider Campbell Law's alternative
argument that the petitioners waived any right to seek the
disqualification of Campbell Law by failing to timely object
to Barnett's employment.
27 | October 30, 2020 |
65cdb2be-c318-4fd8-9f30-5ef290e7ec25 | S.C. et al. v. Autauga County Board of Education et al. | N/A | 1190382 | Alabama | Alabama Supreme Court | Rel: October 30, 2020
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190382
____________________
S.C., individually, and K.C., individually and as next
friend of A.C., a minor
v.
Autauga County Board of Education et al.
Appeal from Autauga Circuit Court
(CV-19-900199)
BOLIN, Justice.
This is an appeal from the Autauga Circuit Court's
dismissal, with prejudice, of a complaint following an
alleged
sexual assault of a minor at an Autauga County school.
1190382
Facts and Procedural History
On July 15, 2019, S.C. and K.C., the parents of the
minor, A.C., sued the Autauga County School System; Spencer
Agee, the superintendent of the Autauga County School System,
in his individual and official capacities; Brock Dunn,
principal of the school at which the alleged assault occurred,
in his individual and official capacities; and the Autauga
County Board of Education ("the ACBOE") and its members in
their official capacities (hereinafter collectively referred
to as "the board defendants"). The parents also sued N.A.,
individually, and O.A. and A.A., individually and as next
friend of N.A., a minor (hereinafter collectively referred to
as "the nongovernment defendants").
On August 15, 2019, Agee and the board defendants filed
a motion for a more definite statement, which the circuit
court granted on September 26, 2019. On October 3, 2019, S.C.
and K.C. filed an amended complaint.
On October 15, 2019, the board defendants filed a motion
to dismiss, asserting sovereign immunity pursuant to Art. I,
§ 14, Ala. Const. 1901. They also asserted that S.C. and K.C.
2
1190382
nonetheless had a remedy because, they said, the State Board
of Adjustment had jurisdiction to hear their claims.
On October 17, 2019, Agee and Dunn filed a motion to
dismiss,
incorporating
the
board
defendants' motion
and
adding
State-agent immunity as a bar to the claims brought against
them in their individual capacity. They also asserted that
S.C. and K.C.'s claims were barred by the statute of
limitations.
On October 18, 2019, the circuit court set the board
defendants' motion to dismiss for a hearing on November 21,
2019. That same day, the circuit court also set a hearing
date for Agee and Dunn's motion for November 21, 2019. On
October 25, 2019, S.C. and K.C. filed a response to the
motions to dismiss.
On November 6, 2019, Agee and Dunn filed a motion to
continue the hearing set for November 21, 2019. Defense
counsel for Agee and Dunn asserted:
"During the week of November 18th through 22nd,
2019, undersigned counsel is scheduled to be
defending depositions in a Federal Court case
pending before Honorable Myron Thompson. Said case
involves
six
plaintiffs
and
nine
(9)
total
attorneys. The week of November 18th through 22nd
has been coordinated among all counsel for quite
some time."
3
1190382
On November 7, 2019, the circuit court granted the motion
to continue and rescheduled the hearing on the motions to
dismiss for December 12, 2019. On November 15, 2019, the
nongovernment defendants filed a motion to
dismiss for failure
to state a claim or, in the alternative, a motion for a more
definite statement.
On December 9, 2019, Agee and Dunn filed a second motion
to continue the hearing on the motions to dismiss set for
December 12, 2019. The motion provided, in pertinent part:
"1. Undersigned counsel is scheduled to be in
depositions in a Federal case pending before Hon.
Myron Thompson on December 11, 12 and 13. These
depositions have been noticed and scheduled since
October 24, 2019 and involve the coordination of
nine (9) attorney and party schedules.
"2. Undersigned counsel has communicated this
conflict to all other counsel of record who have
graciously advised that there is no objection to
continuing the hearing.
"3. In contacting the Hon. Ben Fuller’s
chambers, counsel was advised that civil motions
will be heard in Autauga County on February 27,
2020. Undersigned counsel has conferred with all
other counsel of record and can advise that all
party counsel are available on this date pending
Court approval.
4
1190382
"4. As no party has an objection to a
continuance, no
prejudice will result to
any
party."1
On December 10, 2019, the circuit court granted Agee and
Dunn's motion to continue, but scheduled the hearing for
December 20, 2019. The circuit court's order provided that
"[t]his hearing will not be further continued absent a showing
of extraordinary circumstances."
On December 16, 2019, S.C. and K.C. filed a motion to
continue, citing a scheduling conflict involving mediation in
a separate case in another county. Counsel for S.C. and K.C.
stated that the motion to continue was made in good faith and
not for the purpose of delay. The circuit court did not rule
on the motion.
On December 20, 2019, the circuit court entered the
following order:
"This case was scheduled for and called for
hearing on Defendants' Motion[s] to Dismiss at 8:30
a.m. on December 20, 2019. Counsel for the
Defendants were present at the time of the scheduled
hearing. None of Plaintiffs counsel appeared for the
said hearing at 8:30 a.m. as scheduled by the Court.
The Court waited until 9:00 a.m. to convene the
hearing and counsel for the Plaintiffs having still
not arrived, it is ORDERED as follows:
1Agee and Dunn attached a proposed order for the circuit
court, rescheduling the hearing.
5
1190382
"1. That the Defendants' Motions to Dismiss are
hereby granted in their entirety and this case is
dismissed with prejudice. The costs are taxed as
paid."
On December 27, 2019, S.C. and K.C. filed a motion to set
aside the circuit court's order of dismissal. The motion
provided:
"1. That the above-styled matter was scheduled
for a hearing before the Honorable Judge Ben Fuller
on Friday December 20, 2019 at 8:30 a.m. in the
Civil Court of Autauga County.
"2. That there have been two continuances filed
on behalf of the defendants in this matter due to
conflict in cases. Both continuances were granted by
the Court and new court dates were ordered. The most
recent order was entered on December 10, 2019
resetting this case for a hearing on December 20,
2019.
"3.
That counselors for
the
Plaintiff have
filed
one Motion to Continue on December 16, 2019. Our
legal assistant attests that multiple calls were
made to the court as follow up to the motion but
received no response.
"4. That there was miscommunication between the
attorneys in the office due to each attorney having
multiple conflicts on December 20, 2019 where
counsel mistakenly were under the impression the
hearing had been continued.
"5.
The
undersigned
counselors
for
the
Plaintiffs are counselors of record in the matter of
Shelby County Circuit Case CV-2017-135, Shirley
Sadler v. Riverchase Country Club, and stated that
they were scheduled to attend mediation in Jefferson
6
1190382
County for the entirety of December 20, 2019 on this
two year old pending case.
"6. That said mediation had a deadline to
conduct on or before December 20, 2019 and has been
difficult to schedule due to the multiple parties
involved and has been continued several times."
On December 29, 2019, the circuit court denied S.C. and
K.C.'s motion to set aside. S.C. and K.C. timely appealed.
Discussion
The issue presented is whether the circuit court erred in
dismissing S.C. and K.C.'s claims with prejudice under Rule
41(b), Ala. R. Civ. P.2
2Agee, Dunn, and the board defendants assert that there
is no evidence indicating that the circuit court's order was
entered pursuant to Rule 41(b), Ala. R. Civ. P., and that the
order should be considered a Rule 12(b)(6), Ala. R. Civ. P.,
dismissal. In their reply brief, S.C. and K.C. state that
they "are willing to concede the dismissal was in fact
pursuant to Rule 12(b)." We disagree; the substance of the
circuit court's order and the circumstances under which it was
entered indicate that it was based on Rule 41(b). First, the
general rule is that the circuit court has the inherent power
to act sua sponte to dismiss an action for want of
prosecution. Smith v. Wilcox Cnty. Bd. of Educ., 365 So. 2d
659 (Ala. 1978). Second, nothing in Rule 41 provides that the
rule must be mentioned in the order. See generally Osborn v.
Roche, 813 So. 2d 811 (Ala. 2001)(holding that this Court will
consider
the
substance
of
the
order
and
review
it
accordingly). Third, the circuit court dismissed S.C. and
K.C.'s
claims
with
prejudice following
two
continuances
sought
by defense counsel and a warning that no further continuances
would be allowed absent extraordinary circumstances, and the
dismissal order states that the dismissal was the result of
7
1190382
As the Court of Civil Appeals correctly noted in Kendrick v.
Earl's, Inc., 987 So. 2d 589, 592–93 (Ala. Civ. App. 2007):
"Rule 41(b), Ala. R. Civ. P., permits a trial
court to dismiss an action when a plaintiff fails to
prosecute that action or fails to comply with the
Rules of Civil Procedure or orders of the court.
Although the trial court in the present case did not
specifically indicate that its dismissal of the
employee's action against both the employer and the
individual defendants was 'with prejudice,' the
practical effect of the dismissal judgments in this
case is the same as if the trial court had entered
a dismissal with prejudice because the statute of
limitations on each of the employee's claims had
expired by the time of the entry of the April 2006
and the April 2007 dismissal judgments. See
Riddlesprigger v. Ervin, 519 So. 2d 486, 487 (Ala.
1987). Typically, an appellate court will review a
dismissal pursuant to Rule 41(b) to determine only
whether the trial court abused its discretion.
Riddlesprigger, 519 So. 2d at 487.
"'However, since dismissal with prejudice is a
drastic sanction, it is to be applied only in
extreme situations,' and 'appellate courts will
carefully scrutinize such orders and occasionally
will find it necessary to set them aside.' Smith v.
Wilcox County Bd. of Educ., 365 So. 2d 659, 661
(Ala. 1978) (citing, among other things, 9 Wright &
Miller, Federal Practice & Procedure § 2370, p. 203,
n. 1). Our supreme court has explained that 'the
plaintiff's conduct must mandate the dismissal,' and
it has further reiterated the rule espoused by the
United States Court of Appeals for the Fifth Circuit
S.C.'s and K.C.'s failure to appear at the scheduled hearing.
"[A] Rule 41(b) dismissal is deemed a sanction for
disobedience, while a Rule 12(b)(6) dismissal carries no such
stigma." Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th
Cir. 2004).
8
1190382
that a trial court 'may dismiss with prejudice an
action "only in the face of a clear record of delay
or contumacious conduct by the plaintiff."' Smith,
365 So. 2d at 661 (quoting Durham v. Florida East
Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967))."
Our appellate decisions affirming Rule 41(b) dismissals
involve flagrant behavior by the plaintiff. For example,
Cassady v. Montgomery County Board of Education, 496 So. 2d
764 (Ala. 1986), involved the sua sponte dismissal by the
circuit court when the plaintiff sought and obtained a series
of continuances over a period of 20 months, failed to appear
at 2 scheduled pretrial conferences, and failed to appear on
the date the case was set for trial. In Ex parte Folmar
Kenner, LLC, 43 So. 3d 1234 (Ala. 2009), this Court held that
the trial court did not err in dismissing with prejudice a
tenant's counterclaims against her landlord when the trial
court repeatedly warned the tenant to confine her testimony to
questions posed by the landlord's counsel and not to volunteer
information and expound on her answers and the tenant ignored
the court's warnings. Cartee v. Community Spirit Bank, 214
So. 3d 362 (Ala. Civ. App. 2015), involved the dismissal of
the debtors' loan dispute with their bank when the debtors
initially failed
to
initiate
arbitration
proceedings
within
90
9
1190382
days as ordered by trial court. The trial court granted the
debtors an additional 30 days to secure an arbitrator. The
trial court did not receive a status update for almost three
months, despite having ordered the debtors to provide one.
The debtors then requested to cancel the
scheduled arbitration
based on the illness of one of the debtors, and the debtors
still had not attempted to reschedule arbitration a month
after the date of the canceled arbitration. This Court held
that the trial court acted within its discretion in dismissing
the debtors' case for failure to prosecute.
When our appellate courts have reversed an order
dismissing with prejudice, it was because the record did not
reveal the extreme circumstances sufficient to warrant the
harsh sanction of dismissal. In Smith v. Savage, 655 So. 2d
1022 (Ala. Civ. App. 1995), the pro se plaintiffs sued the
defendant alleging wrongful detainer of personal property.
The plaintiffs failed to appear at trial at 8:30 a.m. as
directed by the court's docket list. One of the plaintiffs
was incarcerated at the time of trial, and the other plaintiff
stated in her affidavit that she did not reach the courthouse
until 9:30 a.m. on the morning scheduled for trial because her
10
1190382
automobile had a flat tire. Based on the record, there did
not appear to be any undue delay, willful default, or
contumacious conduct on the part of the plaintiffs, and the
Court of Civil Appeals held that the trial court exceeded its
discretion
in
dismissing
the
plaintiffs'
action
with
prejudice.
State ex rel. S.M. v. A.H., 832 So. 2d 79 (Ala. Civ. App.
2002), involved the State's action brought on behalf of a
mother against a putative father seeking an adjudication of
paternity and child support. The Court of Civil Appeals held
that the juvenile court's order of dismissal was not supported
by the evidence. The mother had requested only two
continuances, and those were requested because of a delay in
the receipt of DNA test results, and, although it was possible
that the State, at worst, was not diligent in checking on
whether the DNA lab had what it needed to complete the
testing, there was no indication that the mother or the State
had engaged in willful delay or contumacious conduct.
In Ace American Insurance Co. v. Rouse's Enterprises,
LLC, 280 So. 3d 402 (Ala. 2018), a logistics-company employee
sued a grocery store on August 11, 2016, to recover damages
11
1190382
for injuries he sustained while making a delivery, as the
result of the allegedly negligent operation of a pallet jack
by a grocery-store employee. The logistic company's workers'
compensation insurer, which alleged that it had paid worker's
compensation benefits to the employee, intervened in the
action. The trial court dismissed the action for want of
prosecution, and the insurer appealed. This Court held that
the trial court, while dismissing the logistics-company
employee's negligence action against the grocery store for
want of prosecution, could not also dismiss the claim asserted
by the logistic company's insurer, which had intervened in the
action as a plaintiff, to recover worker's compensation
benefits that it had paid to the employee. The insurer filed
its action to intervene within a reasonable time after the
employee's complaint was filed to protect its own interests.
Following some discovery, the employee took no action after
his attorney withdrew from representing him in October 2017.
The trial court ordered the employee to respond to the grocery
store's motion to dismiss by April 12, 2018, and when it
became apparent that the employee was not going to respond to
the grocery store's motion to dismiss within the time allotted
12
1190382
by the trial court, the insurer promptly filed a response to
the grocery store's motion to dismiss. The insurer argued
that there was no evidence indicating that it or its insured
(the logistics company) had engaged in any undue delay,
willful default, or contumacious conduct, and this Court held
that there was no clear record of delay on the insurer's part.
In the present case, the circuit court exceeded its
discretion in dismissing S.C. and K.C.'s claims when there was
no clear record of delay or contumacious conduct by the
plaintiffs. The first two continuances were sought by Agee
and Dunn. S.C. and K.C. did not object to the second
continuance sought by Agee and Dunn, and the parties contacted
circuit-court personnel in an attempt to find a date to
schedule the hearing on the motions to dismiss that would
accommodate the parties and their counsel, pending court
approval. By contacting court personnel, the parties were
attempting to find a date for the circuit court's convenience
as well as to make sure that the case proceeded to the merits
in a timely manner. S.C. and K.C. sought their first
continuance following the circuit court's order rescheduling
the hearing and after the parties had found a convenient date
13
1190382
in accordance with motion-docket dates provided by court
personnel. We also note that the time for S.C. and K.C. to
file their motion to continue in response to the circuit
court's rescheduled hearing date was only 10 days.
"[D]ismissals with prejudice or defaults are drastic
sanctions, termed 'extreme' by the Supreme Court, National
Hockey League [v. Metropolitan Hockey Club, Inc.], 427 U.S.
[639] at 643, 96 S.Ct. [2778] at 2781 [(1976)], and are to be
reserved for comparable cases." Poulis v. State Farm Fire &
Cas. Co., 747 F.2d 863, 867–68 (3d Cir. 1984). That most
severe sanction in the spectrum of sanctions is not warranted
in this case.
REVERSED AND REMANDED.
Parker, C.J., and Sellers, Stewart, and Mitchell, JJ.,
concur.
Wise, J., recuses herself.
14 | October 30, 2020 |
2e5dfeb8-1a7d-4edf-ac20-89772ff8b924 | Ex parte Natasha Cunningham. | N/A | 1190187 | Alabama | Alabama Supreme Court | Rel: November 6, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190187
____________________
Ex parte Natasha Lashay Cunningham
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Natasha Lashay Cunningham
v.
State of Alabama)
(Houston Circuit Court, CC-18-888 and CC-18-889;
Court of Criminal Appeals, CR-18-0551)
1190187
SELLERS, Justice.1
Natasha Lashay Cunningham petitioned for, and this Court granted,
certiorari review of the judgment of the Court of Criminal Appeals
holding that the offense of possession of a controlled substance is a lesser-
included offense of the offense of distribution of a controlled substance.
See Cunningham v. State, [Ms. CR-18-0551, September 20, 2019] ___ So.
3d ___ (Ala. Crim. App. 2019). We reverse and remand.
Facts
The Houston County grand jury returned an indictment charging
Cunningham with distribution of a controlled substance, a violation of §
13A-12-211, Ala. Code 1975.2 That indictment reads:
"The Grand Jury of said county charge that before the finding
of this indictment, Natasha Lashay Cunningham, whose name
is otherwise unknown to the Grand Jury, did unlawfully sell,
furnish, give away, deliver or distribute a controlled substance,
to-wit: methamphetamine, in violation of Section 13A-12-211
1This case was previously assigned to another Justice on this Court;
it was reassigned to Justice Sellers on October 1, 2020.
2Cunningham was also indicted for second-degree possession of
marijuana, a violation of § 13A-12-214, Ala. Code 1975. She was convicted
of that charge. That conviction is not at issue in this appeal.
2
1190187
of the Code of Alabama against the peace and dignity of the
State of Alabama."
(Emphasis added.)
Following a trial, the Houston Circuit Court granted Cunningham's
motion for a judgment of acquittal as to the distribution-of-a-controlled-
substance charge because the evidence did not support that charge. Over
Cunningham's objection, the circuit court instructed the jury on possession
of a controlled substance as a lesser-included offense of distribution of a
controlled substance. The jury returned a verdict finding Cunningham
guilty of possession of a controlled substance, a violation of § 13A-12-212,
Ala. Code 1975. The circuit court sentenced Cunningham to 48 months in
prison. She appealed. On appeal, the Court of Criminal Appeals held that
the circuit court properly instructed the jury on the offense of possession
of a controlled substance as a lesser-included offense of distribution of a
controlled substance. As part of its analysis, the Court of Criminal
Appeals recognized that there could be circumstances in which a
controlled substance could be distributed without a defendant being in
actual or constructive possession of the substance. The court then
3
1190187
reasoned that, because there was evidence indicting that Cunningham
actually possessed a controlled substance, the jury was free to consider
possession as a lesser-included offense of the charged offense of
distribution. This Court granted the petition for the writ of certiorari to
review the Court of Criminal Appeals' decision.
Standard of Review
In reviewing the Court of Criminal Appeals' decision on a petition for
a writ of certiorari, this Court applies de novo the standard of review
applicable in the Court of Criminal Appeals. Ex parte Knox, 201 So. 3d
1213 (Ala. 2015).
Discussion
Cunningham argues that the circuit court erred in instructing the
jury on the possession-of-a-controlled-substance offense as a lesser-
included offense of distribution of a controlled substance. In an unusual
stance and contrary to its position below, the State agrees with
Cunningham that, under the facts presented, the possession-of-a-
controlled-substance offense should not have been submitted to the jury
for its consideration. For the reasons provided herein, we agree.
4
1190187
"[T]o be a lesser included offense of one charged in an indictment,
the lesser offense must be one that is necessarily included, in all of its
essential elements, in the greater offense charged." Payne v. State, 391 So.
2d 140, 143 (Ala. Crim. App. 1980). "Whether a crime constitutes a lesser-
included offense is to be determined on a case-by-case basis." Aucoin v.
State, 548 So. 2d 1053, 1057 (Ala. Crim. App. 1989). In determining
whether an offense is a lesser-included offense of the charged offense, "the
potential relationship of the two offenses must be considered not only in
the abstract terms of the defining statutes but must also be considered in
light of the particular facts of each case." Ingram v. State, 570 So. 2d 835,
837 (Ala. Crim. App. 1990). To that end, the Court of Criminal Appeals
has explained:
"The 'particular facts' of each case are those facts alleged in
the indictment. Thus, 'the statutory elements of the offenses
and facts alleged in an indictment -- not the evidence
presented at trial or the factual basis provided at the
guilty-plea colloquy -- are the factors that determine whether
one offense is included in another.' Johnson v. State, 922 So.
2d 137, 143 (Ala. Crim. App. 2005)."
Williams v. State, 104 So. 3d 254, 264 (Ala. Crim. App. 2012) (emphasis
added).
5
1190187
Moreover, § 15–8–25, Ala. Code 1975, provides:
"An indictment must state the facts constituting the
offense in ordinary and concise language, without prolixity or
repetition, in such a manner as to enable a person of common
understanding to know what is intended and with that degree
of certainty which will enable the court, on conviction, to
pronounce the proper judgment."
Similarly, Rule 13.2(a), Ala. R. Crim. P., mandates:
"The indictment or information shall be a plain, concise
statement of the charge in ordinary language sufficiently
definite to inform a defendant of common understanding of the
offense charged and with that degree of certainty which will
enable the court, upon conviction, to pronounce the proper
judgment."
In other words, an indictment must clearly inform the criminal
defendant of the offense with which he or she is being charged and against
which he or she is expected to defend. In this case, the indictment
charging Cunningham tracked the distribution-of-a-controlled-substance
statute and alleged that "Cunningham ... did unlawfully sell, furnish, give
away,
deliver
or
distribute
a
controlled
substance,
to-wit:
methamphetamine, in violation of Section 13A-12-211 of the Code of
Alabama." The circuit court granted Cunningham's motion for a judgment
of acquittal as to that charge and, over her objection, instructed the jury
6
1190187
on the offense of possession of a controlled substance as a lesser-included
offense of the offense of distribution. Section § 13A-12-212(a)(1) provides
that "[a] person commits the crime of unlawful possession of a controlled
substance if[,] ... [e]xcept as otherwise authorized, he or she possesses a
controlled substance enumerated in Schedules I through V."
The indictment charging Cunningham with distribution of a
controlled substance, however, does not include the statutory element of
possession, nor does it allege any facts essential to the offense of
possession of a controlled substance. Thus, under the facts of this case,
because the indictment enumerated only the statutory language for the
offense of distribution of a controlled substance, Cunningham was not
given sufficient notice that she would have to defend against the offense
of possession of a controlled substance. As indicated, the Court of Criminal
Appeals held that the circuit court properly found possession of a
controlled substance to be a lesser-included offense of distribution of a
controlled substance because, it reasoned, evidence was presented at trial
indicating that Cunningham actually possessed a controlled substance.
However, it is not the evidence adduced at trial that anchors our analysis;
7
1190187
rather, we look to the indictment and must strictly construe it. To do
otherwise would treat the proceedings in this case as if the terms of the
indictment were so flexible as to imply a factual allegation that
Cunningham was in possession of a controlled substance. To reach such
a determination would require us to disregard the law enunciated in
Williams, supra. That is, the statutory elements of the offenses and the
facts alleged in an indictment -- not the evidence presented at trial -- are
the factors that determine whether one offense is included in another.
Conclusion
Based on the foregoing, we reverse the judgment of the Court of
Criminal Appeals, and we remand the cause to that court for proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Parker, C.J., and Stewart, J., concur.
Bryan and Mitchell, JJ., concur in the result.
Bolin, Shaw, Wise, and Mendheim, JJ., dissent.
8
1190187
MITCHELL, Justice (concurring in the result).
In its brief to this Court, the State confesses error and urges us to
reverse Natasha Lashay Cunningham's conviction for possession of a
controlled substance. That is a remarkable position for the State to take,
and it weighs heavily as I analyze the issue before us. For that reason,
and for the reasons generally outlined in the main opinion, I concur in the
result.
9
1190187
BOLIN, Justice (dissenting).
Because Natasha Lashay Cunningham failed to raise the issue
whether her indictment was defective, I must respectfully dissent.
Cunningham was indicted for distributing a controlled substance
(methamphetamine), a violation of § 13A-12-211(a), Ala. Code 1975, and
second-degree possession of marijuana, a violation of § 13A-12-214, Ala.
Code 1975. She was convicted of unlawful possession of a controlled
substance (methamphetamine), a violation of § 13A-12-212, Ala. Code
1975, and second-degree possession of marijuana. On appeal to the Court
of Criminal Appeals, Cunningham argued that the circuit court erred: 1)
by considering the offense of possession of a controlled substance to be a
lesser-included offense of the offense of distribution of a controlled
substance and submitting a charge on possession of a controlled substance
to the jury for consideration; 2) by denying her motion for a mistrial after
a witness stated that Cunningham had prior drug offenses; 3) by, in effect,
denying her motion for a judgment of acquittal; 4) by denying her motion
10
1190187
to suppress the evidence seized from her purse; and 5) by denying her
Batson3 motion.
With regard to the lesser-included offense of possession, which is the
ground as to which Cunningham argues a conflict exists and as to which
this Court granted certiorari review, the Court of Criminal Appeals
stated:
"Cunningham argues that the circuit court erred when,
after granting her motion for a judgment of acquittal to the
charge of distributing a controlled substance, it submitted the
charge of unlawful possession of a controlled substance as a
lesser-included charge to the jury.
"This Court has never directly decided the question of
whether simple possession of a controlled substance is a
lesser-included offense of distribution of a controlled
substance. However, in Harris v. State, 274 So. 3d 304 (Ala.
Crim. App. 2018), this Court held that possession of a
controlled substance was a lesser-included offense of an
attempt to commit distribution. Because Harris had been
convicted of attempting to commit distribution of a controlled
substance and of marijuana, double jeopardy precluded his
convictions for possession of a controlled substance and
possession of marijuana.
"....
3Batson v. Kentucky, 476 U.S. 79 (1986).
11
1190187
" 'In Williams v. State, 104 So. 3d 254 (Ala. Crim.
App. 2012), this Court explained that,
" ' " ' " 'to
be
a
lesser included
offense of one
charged in an
indictment, the
lesser
offense
must be one that
is
necessarily
included, in all
of its essential
elements, in the
greater offense
charged[,]' Payne
v. State, 391 So.
2d 140, 143 (Ala.
Cr. App.), writ
denied, 391 So.
2d
146
(Ala.
1980), ... unless
it is so declared
by statute."
" ' " ' James v. State, 549 So.
2d 562, 564 (Ala. Cr. App.
1989). "Whether a crime
constitutes a lesser-included
offense is to be determined
on a case-by-case basis."
Aucoin v. State, 548 So. 2d
1053, 1057 (Ala. Cr. App.
1989).
"In
determining
whether one offense is a
12
1190187
lesser included offense of
the charged offense, the
potential relationship of the
two
offenses
must
be
considered not only in the
abstract
terms
of
the
defining statutes but ... also
... in light of the particular
facts of each case." Ingram
v. State, 570 So. 2d 835, 837
(Ala. Cr. App. 1990) (citing
Ex parte Jordan, 486 So. 2d
485,
488
(Ala.
1986);
emphasis in original). See
also Farmer v. State, 565
So. 2d 1238 (Ala. Cr. App.
1990).'
" ' "[Ford v. State,] 612 So. 2d [1317,]
1318 [(Ala. Crim. App. 1992)]. The
'particular facts' of each case are those
facts alleged in the indictment. Thus,
'the statutory elements of the offenses
and facts alleged in an indictment -- not
the evidence presented at trial or the
factual basis provided at the guilty-plea
colloquy
--
are
the factors
that
determine whether one offense is
included in another.' Johnson v. State,
922 So. 2d 137, 143 (Ala. Crim. App.
2005)."
" ' Williams, 104 So. 3d at 264.'
" Harris v. State, 274 So. 3d at 308.
13
1190187
"Section 13A-12-211, Ala. Code 1975, provides that '[a]
person commits the crime of unlawful distribution of controlled
substances if, except as otherwise authorized, he or she sells,
furnishes, gives away, delivers, or distributes a controlled
substance enumerated in Schedules I through V.' Section
13A-12-212(a)(1), Ala. Code 1975, provides that '[a] person
commits the crime on unlawful possession of a controlled
substance if[,] ... [e]xcept as otherwise authorized, he or she
possesses a controlled substance enumerated in Schedules I
through V.'
" 'Based on the statutory elements of the
offenses and facts as alleged in the indictments,
possession of [methamphetamine] ... [is a]
lesser-included
offense[]
of
[distribution
of
methamphetamine]. Specifically, the commission of
the [distribution offense] as alleged in the
indictment necessarily included all the elements of
the possession offense[] as alleged in the
indictment.'
" Harris, 274 So. 3d at 309.
"This Court recognizes, as have other courts, that there
may be circumstances in which a substance may be distributed
without the defendant's having any actual or constructive
possession. However, in this case, Cunningham did have
possession of the controlled substance; therefore, under these
circumstances, the circuit court properly found possession to
be a lesser-included offense of distribution. Thus, the circuit
court did not err in instructing the jury on the offense of
unlawful possession of a controlled substance."
14
1190187
Cunningham v. State, [Ms. CR-18-0551, Sept. 20, 2019] So. 3d ,
(Ala. Crim. App. 2019) (footnotes omitted).
In her petition for certiorari review, Cunningham argues conflict as
the only ground for review. See Rule 39(a)(1)(d), Ala. R. App. P.
Specifically, she argues that possessing a controlled substance is not a
lesser-included offense of distributing a controlled substance because, she
says, possession, either actual or constructive, is not an element of
distribution. Although Cunningham cites general propositions of law
regarding indictments, she does not argue that the indictment in her case
was defective. Instead, her argument is that the indictment included the
statutory elements of unlawful distribution and that those elements do
not include the element of possession.
This Court granted certiorari review of the only issue Cunningham
raised. In her brief, Cunningham again argues that the statutory
elements of unlawful distribution do not include the element of possession.
In response, the State argues that the indictment was defective because
it did not include a charge of possession or facts that indicated
Cunningham possessed the controlled substance. I disagree -- the
15
1190187
indictment was sufficient to serve its constitutional purpose of enabling
the accused to prepare a defense, and the alleged factual defect raised by
the State does not rise to the level of rendering the indictment defective.4
Furthermore, the State did not concede this point before the Court of
Criminal Appeals. If we were to address the defective-indictment
argument the State raises before this Court, we would be reversing the
judgment of the Court of Criminal Appeals on a ground not raised in that
court and not raised by the petitioner for certiorari review. Although
there may be an occasion when a lower appellate court opinion raises a
"new" issue that may then be addressed in a certiorari petition, that is not
the case here. Cunningham could have raised the issue now raised by the
State before the circuit court and before the Court of Criminal Appeals,
but she did not.
4" The fundamental constitutionally guaranteed benefits of an
indictment to an accused are ' "that he may prepare his defence, and plead
the judgment as a bar to any subsequent prosecution for the same
offence." ' Gayden v. State, 262 Ala. 468, 47[1], 80 So. 2d 501, 504 (1955)
(quoting United States v. Simmons, 96 U.S. 360, 362, 24 L.Ed. 819
(1877))." Ash v. State, 843 So. 2d 213, 216 (Ala. 2002), overruled on other
grounds, Ex parte Seymour , 946 So. 2d 536 (Ala. 2006).
16
1190187
The State is correct that whether a crime constitutes a lesser-
included offense depends on the particular facts of each case. The State's
argument that the indictment should have included the word "possession"
(or facts that indicated Cunningham possessed the drugs) was not made
by Cunningham in her certiorari petition. Additionally, the State's
argument ignores the fact that, although there may be circumstances in
which a substance may be distributed without the defendant's having any
actual or constructive possession, Cunningham did have possession of the
controlled substance. In other words, in this case, it is a question of law
as to whether possession of a controlled substance is a lesser-included
offense of distribution of a controlled substance.
I do not believe that the Court of Criminal Appeals' opinion conflicts
with Harris v. State, 274 So. 3d 304 (Ala. Crim. App. 2018), as
Cunningham argues in her petition, because Harris involved "attempt"
and actually supports the argument that possession is a lesser-included
offense of the offense of distribution as explained by the Court of Criminal
Appeals. Second, the petition is not before us on the ground of first
impression; only the ground of conflict is before this Court.
17
1190187
Therefore, I dissent to reversing the Court of Criminal Appeals'
judgment.
Mendheim, J., concurs.
18
1190187
SHAW, Justice (dissenting).
According to the main opinion, because the indictment in this case
"enumerated only the statutory language for the offense of distribution of
a controlled substance," ___ So. 3d at ___, the petitioner and defendant in
this case, Natasha Lashay Cunningham, "was not given sufficient notice
that she would have to defend against the offense of possession of a
controlled substance." ___ So. 3d at ___. I disagree; the common
understanding of the description in the Alabama Code of what it means
to "distribute" a controlled substance can clearly indicate possession of the
controlled substance. Thus, under the law specifying what an indictment
must describe, the language of the indictment in this case was sufficient
to give Cunningham "notice" that she was accused of not only distributing,
but also possessing, that controlled substance. I therefore respectfully
dissent.
An indictment, among other things, (1) is a statement of legal
conclusions rather than a statement of facts; (2) is not required to set up
the proof necessary for a conviction; (3) needs to allege only the essential
facts necessary to apprise a defendant of the crime charged, not the
19
1190187
State's theory of the case; and (4) is sufficient if it substantially tracks the
language of the statute violated. See Vaughn v. State, 880 So. 2d 1178,
1193 (Ala. Crim. App. 2003), and the numerous authorities quoted and
cited therein. The "'"particulars as to manner, means, place or
circumstances [of the offense] need not in general be added to the
statutory definition."'" Smith v. State, 797 So. 2d 503, 514 (Ala. Crim.
App. 2000) (quoting People v. Soto, 74 Cal. App. 3d 267, 273, 141 Cal.
Rptr. 343, 346 (1977), quoting in turn People v. Britton, 6 Cal. 2d 1, 5, 56
P.2d 494, 496 (1936)). Rule 13.2(a), Ala. R. Crim. P., provides that an
indictment "shall be a plain, concise statement of the charge in ordinary
language sufficiently definite to inform a defendant of common
understanding of the offense charged and with that degree of certainty
which will enable the court, upon conviction, to pronounce the proper
judgment." Further, "[t]he words used in an indictment must be
construed in their usual acceptation in common language." Ala. Code
1975, § 15-8-5. Finally, "[s]pecification of an offense in an indictment or
information shall constitute a charge of that offense and of all lesser
offenses necessarily included therein." Rule 13.2(c), Ala. R. Crim. P.
20
1190187
A person commits the crime of unlawful distribution of a controlled
substance if "he or she sells, furnishes, gives away, delivers, or distributes
a controlled substance." Ala. Code 1975, § 13A-12-211(a). A person
commits the crime of unlawful possession of a controlled substance if he
or she "possesses a controlled substance." Ala. Code 1975, § 13A-12-
212(a)(1). In order to "possess" something, one must "have physical
possession or otherwise ... exercise dominion or control over" it. Ala. Code
1975, § 13A-1-2(13) (emphasis added). "Possession" of a controlled
substance includes what is called "constructive possession," which is
simply defined as being "knowingly in a position to exercise dominion and
control over the drug, either directly or through others." Bailey v. State,
67 So. 3d 145, 156 (Ala. Crim. App. 2009). The common meaning of an
allegation that one "sells, furnishes, gives away, delivers, or distributes"
a controlled substance can easily be understood as an allegation that one
exercises "dominion or control" over the controlled substance.5
5The State contends that there can be situations in which
distribution of a controlled substance under § 13A-12-211(a) could be
accomplished by someone who is not in possession of the controlled
substance. But that is not the way this language, under its usual
21
1190187
In the instant case, the indictment alleged that the petitioner,
Cunningham, "did unlawfully sell, furnish, give away, deliver[,] or
distribute" methamphetamine, which, under the common meaning of
those terms, can be read as alleging, among other things, that she
exercised dominion and control over that controlled substance; thus, it can
clearly
be
understood
as
alleging
that
she
possessed
the
methamphetamine. No further facts must be alleged to indicate
possession. Just because it may be possible for one to distribute a
controlled substance without possessing it does not negate a common
meaning of those terms; it cannot be said that the words "sell, furnish,
give away, deliver, or distribute" cannot include possession, which is how
one must read those terms to say that Cunningham had no "notice" that
possession was alleged in this case. The allegations of the distribution
charge in the indictment, which track the language of the distribution
statute, were sufficient to inform a defendant of common understanding
acceptance, would be solely understood. The terms "sells, furnishes, gives
away, delivers, or distributes" encompass many acts, including, but not
limited to, exercising dominion or control.
22
1190187
that possession was alleged and enabled the court to pronounce the proper
judgment. I thus respectfully dissent.
23 | November 6, 2020 |
eaf83fd8-43fa-42e5-a6de-f62a06060040 | Kimberlee Spencer, as personal representative of the Estate of James Scott Spencer, deceased v. Michael A. Remillard, M.D., and Helena Family Medicine, LLC. | N/A | 1180650 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
October 23, 2020
1180650
Kimberlee Spencer, as personal representative of the Estate of James Scott
Spencer, deceased v. Michael A. Remillard, M.D., and Helena Family Medicine, LLC. (Appeal
from Shelby Circuit Court: CV-11-900701).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on October 23, 2020:
Application Overruled. No Opinion. Mendheim, J. - Parker, C.J., and Shaw, Wise, Bryan,
Sellers, Stewart, and Mitchell, JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on September 4, 2020:
Reversed And Remanded. Mendheim, J. - Parker, C.J., and Wise, Bryan, Stewart, and
Mitchell, JJ., concur. Sellers, J., concurs in part and dissents in part as to the rationale and
concurs in the result. Shaw, J., concurs in the result.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 23rd day of October, 2020.
Clerk, Supreme Court of Alabama | October 23, 2020 |
e2812fd1-516e-4e49-9b23-51ea51401e10 | Faith Properties, LLC, Marjan Vakili and Kevin Vakili v. First Commercial Bank | N/A | 1061149 | Alabama | Alabama Supreme Court | Rel: 01/11/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2007-2008
_________________________
1061149
_________________________
Faith Properties, LLC, Marjan Vakili, and Kevin Vakili
v.
First Commercial Bank
Appeal from Madison Circuit Court
(CV-05-2125)
WOODALL, Justice.
Faith Properties, LLC ("Faith"), Marjan Vakili, and her
husband, Kevin Vakili, appeal from a summary judgment in favor
of First Commercial Bank ("the Bank") in the Bank's action
against them to set aside as fraudulent certain conveyances of
1061149
2
real estate from the Vakilis to Faith. We vacate the judgment
and dismiss the appeal.
I. Factual Background
The facts essential to the resolution of this case are
undisputed. On October 19, 2005, the Bank filed a complaint
(case no. CV-05-2125) against Kevin Vakili alleging breach of
agreements personally guaranteeing payment of loans the Bank
made to corporations Vakili owned. On November 29, 2005, the
Vakilis sold their principal residence located at "The
Ledges" in Huntsville.
On December 16, 2005, the Bank filed a "motion for
temporary restraining order, preliminary injunction, and
permanent injunction, and to seize sales proceeds of
defendant, Kevin Vakili" ("the seizure motion"). In this
motion, the Bank averred that proceeds from the sale of the
Huntsville residence were to have been used to pay the loans,
and it sought an order requiring Kevin Vakili "to tender one-
half of the proceeds realized from the sale of the property
... to the Circuit Court of Madison County, ... so that the
same [could] be held pending a hearing on [the] motion and the
ultimate resolution of the complaint." That same day, the
1061149
Rule 64 deals with "pre-judgment seizure or attachment."
1
3
trial court entered a "temporary restraining order and order
for writ of seizure," stating, in part:
"[The Bank] has made application in compliance
with Rule 64(b) of the Alabama Rules of Civil
Procedure
for an Order prohibiting the Defendant,
[1]
Kevin
Vakili,
from
transferring
or
otherwise
disposing of those proceeds he received from the
sale of property he owned in Huntsville, Alabama,
and for the seizure of said funds and the placement
of the funds with the Circuit Court of Madison
County. The court has examined the affidavit and
exhibits attached thereto and finds that reasonable
grounds exist to authorize issuance of this order.
Accordingly,
"IT IS ORDERED, ADJUDGED AND DECREED THAT the
Defendant, Kevin Vakili, is hereby ordered to
immediately cease transferring, spending, using or
encumbering any of the proceeds he received from the
sale of that property he owned [in] Huntsville,
Alabama, which sale occurred on or about November
29, 2005. Said Defendant's failure to comply with
this order shall result in his being held in
contempt of this order.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED
THAT the Motion for Preliminary Injunction shall be
heard on THURSDAY, DECEMBER 22, 2005, AT 4:30
P.M....
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED
THAT upon approval by the clerk of this court of the
[Bank's] bond in the amount of $10,000.00, that the
Defendant, Kevin Vakili, shall immediately pay into
the registry of the Circuit Court of Madison County,
Alabama, those sums that he received from the sale
of the real property located at The Ledges in
Huntsville, Alabama, which sale occurred on or about
1061149
4
November 29, 2005. Said proceeds shall include one-
half of the net proceeds received from said sale,
which half is attributed to the one-half ownership
interest that [he] had in said property. Defendant
Kevin Vakili shall also provide proof to the court
of the amount that he received from the sale of the
property, including a copy of the closing statement
or settlement statement received from the sale of
said property.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED
THAT should the Defendant fail to pay said sums into
court within five (5) days of the date hereof, that
the Sheriff or other duly constituted officer shall
seize said funds and hold the same subject to
further orders of this court.
"TAKE NOTICE THAT THE DEFENDANT IS ENTITLED AS
A MATTER OF RIGHT TO A PRE-JUDGMENT HEARING ON THE
ISSUE OF DISSOLUTION OF THE WRIT OF SEIZURE IF A
WRITTEN REQUEST FOR HEARING IS SERVED UPON COUNSEL
FOR [THE BANK] WITHIN FIVE (5) DAYS FROM THE DATE OF
SEIZURE OF THE PROPERTY BY THE SHERIFF OR OTHER DULY
CONSTITUTED OFFICER.
"SHOULD DEFENDANT DESIRE SUCH PRE-JUDGMENT
HEARING, HE SHOULD FILE THE ORIGINAL OF HIS WRITTEN
REQUEST FOR SETTING THE HEARING WITH THE CLERK OF
THIS COURT AND A COPY OF SAID REQUEST SHOULD BE
SERVED ON SAID COUNSEL FOR [THE BANK]. IF, AFTER
TIMELY AND PROPER REQUEST, NO HEARING HAS BEEN HELD,
THE WRIT OF SEIZURE AUTHORIZED HEREIN SHALL EXPIRE
ON THE FIFTEENTH (15th) DAY AFTER THE SEIZURE OF THE
PROPERTY BY THE SHERIFF OR OTHER DULY CONSTITUTED
OFFICER. IF NO REQUEST FOR HEARING IS MADE, THE
WRIT SHALL REMAIN IN EFFECT PENDING ORDERS OF THE
COURT. HOWEVER, THE COURT, IN ITS DISCRETION, MAY
HEAR A REQUEST FOR DISSOLUTION OF THE WRIT, ALTHOUGH
SAID REQUEST IS SERVED MORE THAN FIVE (5) DAYS FROM
THE DATE OF SEIZURE.
1061149
5
"IT IS FURTHER ORDERED THAT a copy of this order
be served upon the defendant with the aforementioned
writ of seizure."
(Capitalization in original.) The order roughly tracks the
language of Rule 64, Ala. R. Civ. P.
On December 23, 2005, following a hearing at which Kevin
Vakili did not appear, the court entered an "order for
preliminary injunction," requiring Vakili to immediately "pay
to the Clerk of the Court one half of the net proceeds
received from [the sale of the Vakilis' residence], which half
is attributed to the one-half ownership interest that
Defendant Kevin Vakili had in the property" (the December 16
order and the December 23 order are hereinafter collectively
referred to as "the attachment order").
Meanwhile, on December 19, 2005, a default judgment was
entered against Kevin Vakili, and reflected in the State
Judicial Information System, assessing damages in the amount
of $705,710.01. On January 13, 2006, Vakili moved for relief
from the default judgment, asserting as a ground the absence
of effective service of process. On March 3, 2006, the trial
court denied Vakili's motion.
1061149
6
On July 31, 2006, the Bank filed a "Motion for Leave to
Amend Complaint and Add Third-party Defendants." The amended
complaint purported to add Faith and Marjan Vakili as
defendants. The Bank averred that three parcels of real
estate -- two of which were owned by Kevin and one of which
was owned by Kevin and Marjan jointly -- were transferred on
December 16, 2005, to Faith for no consideration, and that
Faith was owned by Marjan and the Vakilis' son. The complaint
asserted claims under the Alabama Fraudulent Transfer Act,
Ala. Code 1975, §§ 8-9A-4 and -5. It sought a judgment
setting aside the transfers as void and declaring "that the
properties [were] owned by the prior owners, Kevin Vakili and
Marjan Vakili, as if no such subsequent transfer occurred."
It further sought a judgment against Kevin Vakili declaring
that the default judgment attached as a lien on the properties
in favor of the Bank as of the date of the judgment.
On February 5, 2007, the Bank moved for a summary
judgment on the claims in the amended complaint. Faith and
the Vakilis filed a response in opposition to the motion for
a summary judgment. Concurrently, they moved to dismiss the
amended complaint for lack of jurisdiction, contending that
1061149
7
case no. CV-05-2125 had become final and conclusive between
the parties more than 30 days before the Bank attempted to
amend the complaint.
On March 28, 2007, the trial court entered a summary
judgment for the Bank. The judgment stated, in pertinent
part:
"IT IS FURTHER ORDERED, ADJUDGED, and DECREED
that the transfers of the three (3) tracts of
properties from Kevin Vakili and Marjan Vakili to
[Faith]
...
constitute
fraudulent
conveyances
pursuant to Alabama law and therefore are null and
void and due to be set aside as if the transfers
never
occurred.
Accordingly,
title
to
the
properties shall vest in the prior owners of said
properties as if the transfers had never occurred.
"IT IS FURTHER ORDERED, ADJUDGED, and DECREED
that upon the setting aside of said transfers, that
[the Bank's] judgment recorded on December 20, 2005,
shall attach as a lien to said three (3) properties
as of the date of recordation pursuant to applicable
law."
On April 26, 2007, the trial court entered an amended
judgment denying the motion of Faith and the Vakilis to
dismiss the amended complaint. From that judgment Faith and
the Vakilis appealed, contending, among other things, that the
trial court "lost jurisdiction to entertain [the Bank's] July
31, 2006, Motion for Leave to Amend Complaint when it entered
its March 3, 2006, denial of Vakili's post-judgment motion."
1061149
8
Appellants' brief, at 26. We are thus presented with a
threshold question regarding our subject-matter jurisdiction,
the resolution of which turns on the degree of finality to be
afforded the March 3, 2006, order denying Kevin Vakili's
motion to set aside the default judgment.
II. Discussion
A judgment entered by a trial court without subject-
matter jurisdiction is void. Ex parte Norfolk Southern Ry.,
816 So. 2d 469, 472 (Ala. 2001). Thus, unless the trial court
had subject-matter jurisdiction when it entered the summary
judgment, that judgment was a nullity and must be set aside.
Pinkerton Sec. & Investigation Servs., Inc. v. Chamblee, 961
So. 2d 97 (Ala. 2006).
In that connection, it is well settled that "a judgment
is not subject to revision after all the claims of all
parties have been adjudicated, absent a timely motion filed
pursuant to Rules 55, 59, or 60, Ala. R. Civ. P." Pratt
Capital, Inc. v. Boyett, 840 So. 2d 138, 143 (Ala. 2002)
(emphasis added). See also Harper v. Brown, Stagner,
Richardson, Inc., 845 So. 2d 777, 779 (Ala. 2002) (Rule 60,
Ala. R. Civ. P., is not a vehicle by which to amend a
1061149
9
complaint following a final judgment to "add new claims
against a new defendant"). Otherwise stated, a trial court
has no jurisdiction to entertain a motion to amend a complaint
to add new claims or new parties after a final judgment has
been entered, unless that "judgment is first set aside or
vacated" pursuant to the state's rules of civil procedure.
Greene v. Eighth Judicial Dist. Court of Nevada, 115 Nev. 391,
393, 990 P.2d 184, 185 (1999); see also Paganis v. Blonstein,
3 F.3d 1067 (7th Cir. 1993); DiPaolo v. Rollins Leasing
Corp., 700 So. 2d 31 (Fla. Dist. Ct. App. 1997); 6 Charles
Alan Wright et al., Federal Practice and Procedure § 1489 (2d
ed. 1990).
The default judgment in this case has not been set aside.
Indeed, the trial court declined Vakili's invitation to set it
aside, and the Bank has never challenged the judgment. On the
contrary, the Bank argues that, because Vakili did not appeal
from the denial of his motion to set aside the judgment, the
judgment is now final and unreviewable. The Bank's brief, at
10, 19 n.8.
The
Bank,
however,
contends
that
"the
court
had
jurisdiction over the case notwithstanding the entry of the
1061149
10
default judgment against Vakili." The Bank's brief, at 26
(emphasis added). This is so, because, it argues, "the court
only entered a Temporary Restraining Order and Preliminary
Injunction, reserving the right of the court to also enter a
Permanent Injunction at a later date." Id. Thus, according
to the Bank, through the seizure motion and the trial court's
action on that motion, the court retained jurisdiction to
consider an amended pleading at a later date, specifically, on
July 31, 2006. We disagree.
"'A judgment that conclusively determines all of the
issues before the court and ascertains and declares the rights
of the parties involved is a final judgment.'" Boyett, 840
So. 2d at 144 (quoting Nichols v. Ingram Plumbing, 710 So. 2d
454, 455 (Ala. Civ. App. 1998)). "A judgment that declares
the rights of the parties and settles the equities is final
even though the trial court envisions further proceedings to
effectuate the judgment." Wyers v. Keenon, 762 So. 2d 353,
355 (Ala. 1999). Otherwise stated, a judgment that is
"definitive of the cause in the court below, leaving nothing
further to be done, save [its enforcement]," is a final
judgment. Ex parte Gilmer, 64 Ala. 234, 235 (1879).
1061149
11
"Claims adjudicated in a previous non-final order become
final ... at the time the last party or claim is disposed of."
Oliver v. Townsend, 534 So. 2d 1038, 1046 (Ala. 1988). A
trial "'court cannot, by its subsequent action, divest a
[judgment] of its character of finality. A final [judgment]
is not rendered interlocutory by the retention of the case on
the docket, nor by the subsequent rendition of another
[judgment] therein.'" Boyett, 840 So. 2d at 144-45 (quoting
Nichols, 710 So. 2d at 456, quoting in turn Mingledorf v.
Falkville Downtown Redev. Auth., 641 So. 2d 830, 832 (Ala.
Civ. App. 1991)). Neither can a final judgment "be made
nonfinal by the trial court's calling it nonfinal." Smith v.
Fruehauf Corp., 580 So. 2d 570, 572 (Ala. 1991) (emphasis
added).
After the denial of a postjudgment motion directed at a
final judgment, "the trial court loses jurisdiction over the
action." Chamblee, 961 So. 2d at 102. The application of
these principles compels the conclusion that, when the trial
court denied Vakili's postjudgment motion on March 3, 2006, it
lost jurisdiction to entertain an amendment to the complaint.
1061149
12
It is clear that the relief sought by the seizure motion
and granted by the attachment order was essentially that of a
"pre-judgment seizure or attachment." Rule 64(b)(2)(C).
"[A]ttachment is a legal process which seizes and holds the
property of the defendant until the rights of the parties are
determined in the principal suit." Old Kent Bank v. Stoller,
254 Ill. App. 3d 1085, 1092, 627 N.E.2d 265, 269, 194 Ill.
Dec. 149, 153 (1993) (emphasis added). "The levy of an
attachment ... creates a lien in favor of the plaintiff."
Ala. Code 1975, § 6-6-76. However, the lien is "inchoate and
imperfect, until [the] judgment is rendered, for it is that
alone which determines the claim on which the attachment rests
to be just." Hale v. Cummings, 3 Ala. 398, 400 (1842). "If
[the plaintiff] fails to establish his claim, the inchoate
lien is entirely gone ...." Id. A "[f]inal judgment marks
the completion of the attachment and the underlying suit."
Enterprise Bank v. Magna Bank of Missouri, 894 F. Supp. 1337,
1343 (E.D. Mo. 1995), aff'd, 92 F.3d 743 (8th Cir. 1996)
(emphasis added). Thus, after a judgment for the plaintiff,
the disposition of the lien perfected by the judgment devolves
into a matter of enforcement of the judgment, which, as we
1061149
As noted above, Kevin Vakili did not appear at the
2
December 22, 2005, hearing on the seizure motion. Pursuant to
Rule 64(b)(2)(C), nonattendance constitutes a "waiver of any
objections to the pre-judgment seizure or attachment." This
appeal involves no issue regarding the propriety of the
default judgment or the attachment order.
"This Court [looks] at the substance of a motion ... to
3
determine how that motion is to be construed under the Alabama
Rules of Civil Procedure." Pontius v. State Farm Mut. Auto.
Ins. Co., 915 So. 2d 557, 562-63 (Ala. 2005).
13
have already noted, does not disturb the finality of the
judgment. See Wyers, 762 So. 2d at 355.
In entering the default judgment and the attendant
attachment order, the trial court granted all the relief the
Bank had requested. Despite the use in the attachment order
2
of the term "preliminary injunction," no further action in
3
the case was contemplated as of March 3, 2006, other than
enforcement of the judgment, as no claim remained outstanding.
Attachment of the proceeds of the sale of the Vakilis'
residence at The Ledges was sought merely as an aid in
enforcing the judgment; it was not a vehicle to extend
indefinitely the life of the lawsuit. Thus, it could not
serve as a conduit to connect the undisputedly final default
judgment, which became unappealable 43 days after March 3,
1061149
14
2006, with the motion to amend the complaint filed on July 31,
2006.
III. Conclusion
For these reasons, the summary judgment was void, and it
is hereby vacated. Moreover, a void judgment will not support
an appeal. Gulf Beach Hotel, Inc. v. State ex rel. Whetstone,
935 So. 2d 1177, 1183 (Ala. 2006). Therefore, the appeal is
dismissed.
JUDGMENT VACATED; APPEAL DISMISSED.
Cobb, C.J., and See, Smith, and Parker, JJ., concur. | January 11, 2008 |
8502e543-0b69-464e-8c86-fac8aea7c823 | Robert C. Bitterman v. Angela S. Wade | N/A | 1190506 | Alabama | Alabama Supreme Court | Rel: October 16, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190506
Robert C. Bitterman v. Angela S. Wade (Appeal from Jefferson
Circuit Court: CV-17-904364).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ.,
concur. | October 16, 2020 |
5fdd6317-b303-4dcf-8302-43365141870a | Ex parte Wilson Calvin Gurley. | N/A | 1200023 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1200023
Ex parte Wilson Calvin Gurley. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Wilson Calvin Gurley v.
State of Alabama) (Morgan Circuit Court: CC-87-489.63; Criminal Appeals :
CR-19-0697).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
eeed1db7-2bbf-4bab-9a24-5a86a275f3a5 | Lashel Hale v. Spartan Invest, LLC. | N/A | 1190600 | Alabama | Alabama Supreme Court | Rel: October 16, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190600
Lashel Hale v. Spartan Invest, LLC. (Appeal from Shelby
Circuit Court: CV-18-900615).
SHAW, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ.,
concur. | October 16, 2020 |
d66f5fd3-b925-4b9f-92ce-07abc95b4395 | Mark Stiff v. Equivest Financial, LLC | N/A | 1181051 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
October 23, 2020
1181051
Mark Stiff v. Equivest Financial, LLC (Appeal from Jefferson Circuit Court:
CV-18-900776).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on October 23, 2020:
Application Overruled. No Opinion. Mitchell, J. - Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur. Shaw, Wise, Bryan, and Mendheim, JJ., dissent.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on June 26, 2020:
Reversed And Remanded. Mitchell, J. - Parker, C.J., and Bolin, and Stewart, JJ., concur.
Sellers, J., concurs in the result. Shaw, Wise, Bryan, and Mendheim, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 23rd day of October, 2020.
Clerk, Supreme Court of Alabama | October 23, 2020 |
dfb6cf46-b902-4980-8ee0-b030f9d8194d | Ex parte The City of Birmingham. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: The City of Birmingham v. Floyd Lee George) | N/A | 1061225 | Alabama | Alabama Supreme Court | REL: 2/1/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2007-2008
____________________
1061225
____________________
Ex parte City of Birmingham
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: City of Birmingham
v.
Floyd Lee George)
(Jefferson Circuit Court, CV-04-7131;
Court of Civil Appeals, 2050179)
SEE, Justice.
1061225
2
The City of Birmingham ("the City") petitioned this Court
for the writ of certiorari to review whether the Court of
Civil Appeals erred when it reversed the trial court's
judgment and awarded the City a partial setoff against its
worker's
compensation
obligations
to
Floyd
Lee
George.
City
of
Birmingham v. George, [Ms. 2050179, May 11, 2007] ___ So. 2d
___, ___ (Ala. Civ. App. 2007). This Court granted certiorari
review on September 12, 2007. For the reasons discussed
below, we affirm the judgment of the Court of Civil Appeals.
Facts and Procedural History
On May 12, 2003, George, an employee of the City, was
injured and permanently disabled when he stood up and touched
an electrical power line while changing lightbulbs in a
traffic signal, as part of his job with the City. Following
his accident, George received 180 days of "injury-with-pay
leave" from the City pursuant to the Birmingham Pension Act.
Act No. 1272, Ala. Acts 1973. When that leave expired, the
City continued to pay his related medical and disability
expenses and 70% of his monthly salary as extraordinary
disability
benefits
("EOD
benefits") pursuant to the
Birmingham Pension Act.
1061225
3
In 2004, George brought an action seeking compensation
under the Alabama Workers' Compensation Act, § 25-5-1 et seq.,
Ala. Code 1975 ("the Act"), in addition to his EOD benefits.
The threshold issue was whether the City, which is governed by
the Birmingham Pension Act, is subject to the Act. The trial
court held that it was. The Act provides, in part:
"In calculating the amount of workers' compensation
due:
"(1) The employer may reduce or accept
an assignment from an employee of the
amount of benefits paid pursuant to a
disability plan, retirement plan, or other
plan providing for sick pay by the amount
of compensation paid, if and only if the
employer provided the benefits or paid for
the plan or plans providing the benefits
deducted."
§ 25-5-57(c), Ala. Code 1975. Pursuant to this provision, the
trial court allowed a setoff of the amount due under the Act
for the funds the City had paid George as "injury-with-pay
leave" and for its payment of medical and disability expenses,
but it denied a setoff for the EOD benefits the City had paid,
because the City had provided only one-half of the funds that
constituted those benefits. The other one-half had come from
employee contributions.
1061225
Before the Court of Civil Appeals, the City, as it had
1
in the trial court, argued that it was exempt from the Act.
The Act was amended in 1984 and again in 1992. Act No. 84-
322, Ala. Acts 1984; Act No. 92-537, Ala. Acts 1992. The
Court of Civil Appeals held that the cumulative effect of
these amendments was to make the Act applicable to cities with
populations greater than 2,000 but less than 250,000. The
Court of Civil Appeals rejected the City's population-based
arguments and affirmed the trial court's judgment that the
City is subject to the Act. This issue is not before us on
certiorari review.
4
The Court of Civil Appeals affirmed the trial court's
judgment. On rehearing, however, it withdrew its original
1
opinion and substituted a new opinion; the substituted
opinion,
although
affirming the trial court's
holding
that the
City is subject to the Act, held that, under § 25-5-57(c)(1),
Ala. Code 1975, an employer that provides a portion of the
benefits under a disability plan is entitled to a setoff from
liability under the Act equal to the percentage of its
contribution to the plan. Therefore, the Court of Civil
Appeals awarded the City a setoff from any payments owed to
George under the Act to compensate for the City's 50%
contribution to the EOD benefits George had received. ___ So.
2d at ___.
We granted the City's petition for the writ of certiorari
to determine, as a material question of first impression,
1061225
Section 25-5-53, Ala. Code 1975, provides:
2
"The rights and remedies granted in this chapter
to an employee shall exclude all other rights and
remedies of the employee, his or her personal
representative, parent, dependent, or next of kin,
at common law, by statute, or otherwise on account
5
whether
§
25-5-57(c)(1),
Ala.
Code
1975,
entitles
employers
to
a deduction from the benefits required to be paid under the
Act, in whole or pro rata, for other benefits paid to an
injured employee from a plan only partially funded by the
employer.
Standard of Review
"In reviewing the Court of Civil Appeals'
decision on a petition for the writ of certiorari,
'this Court "accords no presumption of correctness
to the legal conclusions of the intermediate
appellate court. Therefore, we must apply de novo
the standard of review that was applicable in the
Court of Civil Appeals."'"
Ex parte Wade, 957 So. 2d 477, 481 (Ala. 2006) (quoting Ex
parte Exxon Mobil Corp., 926 So. 2d 303, 308 (Ala. 2005),
quoting in turn Ex parte Toyota Motor Corp., 684 So. 2d 132,
135 (Ala. 1996)).
Analysis
The City argues that § 25-5-57(c)(1), Ala. Code 1975,
"should be construed in pari materia with § 25-5-53,[ ]
2
1061225
of injury, loss of services, or death. Except as
provided in this chapter, no employer shall be held
civilly liable for personal injury to or death of
the employer's employee, for purposes of this
chapter, whose injury or death is due to an accident
or to an occupational disease while engaged in the
service or business of the employer, the cause of
which accident or occupational disease originates in
the employment. ..."
6
prohibiting additional statutory remedies, and the City's
Pension Act," and that, if § 25-5-57(c)(1) is so construed,
"the City should be afforded a full offset for [the EOD]
benefits against any [worker's compensation] award." City's
brief at 65-66. The City argues that George is entitled to no
additional benefits under the Act and that, even if a setoff
is allowed against the worker's compensation benefits for the
EOD benefits, unless that setoff is 100% George would receive
duplicate compensation for the same injury. George argues
that the City is not entitled to any offset for the EOD
benefits he was paid, because § 25-5-57(c)(1), Ala. Code 1975,
provides for an offset only when "the plan is provided or
funded completely by the Employer." George's brief at 5.
The issue whether § 25-5-57(c)(1), Ala. Code 1975, which
provides for a setoff against workers' compensation benefits
for employer-funded disability plans, permits a full setoff,
1061225
7
a partial setoff, or no setoff when the plan is not fully
funded by the employer is a matter of first impression for
this Court. Section 25-5-57, Ala. Code 1975, was amended in
1992 to include the setoff provision, and all previous
decisions of this Court construing this section of the Act
dealt with plans that had been entirely funded by the
employers. See Ex parte Fort James Operating Co., 895 So. 2d
294, 297
(Ala.
2004)
("[The employer]
has
provided
substantial
evidence indicating that it was the sole source of funding for
the plan. [The employee] has not offered any evidence
indicating that he funded any portion of his sick-pay plan.");
Ex parte Dunlop Tire Corp., 706 So. 2d 729, 731 (Ala. 1997)
("The question before us, therefore, is whether Dunlop
'provided the benefits or paid for the plan or plans providing
the benefits deducted.'" (quoting § 25-5-57(c)(1), Ala. Code
1975)).
The issue in this case requires us to construe a statute
–- § 25-5-57(c)(1). We have stated:
"'The
fundamental
principle
of
statutory
construction is that words in a statute must be
given their plain meaning.' Mobile Infirmary Med.
Ctr. v. Hodgen, 884 So. 2d 801, 814 (Ala. 2003).
'When a court construes a statute, "[w]ords used in
[the] statute must be given their natural, plain,
1061225
8
ordinary, and commonly understood meaning, and where
plain language is used a court is bound to interpret
that language to mean exactly what it says."' Ex
parte Berryhill, 801 So. 2d 7, 10 (Ala. 2001)
(quoting IMED Corp. v. Systems Eng'g Assocs. Corp.,
602 So. 2d 344, 346 (Ala. 1992)). Additionally,
'"[c]ourts must liberally construe the workers'
compensation law 'to effectuate its beneficent
purposes,' although such a construction must be one
that the language of the statute 'fairly and
reasonably' supports."' Ex parte Weaver, 871 So. 2d
820, 824 (Ala. 2003)(quoting Ex parte Beaver Valley
Corp., 477 So. 2d 408, 411 (Ala. 1985))."
Trott v. Brinks, Inc., [Ms. 1050895, May 4, 2007] ___ So. 2d
___, ___ (Ala. 2007).
Here, the Court of Civil Appeals construed § 25-5-
57(c)(1), Ala. Code 1975, as allowing a partial setoff in
proportion to the employer's contribution to the plan
established to provide the EOD benefits and reversed the
judgment of the trial court insofar as it allowed no setoff
for the EOD benefits. The Court of Civil Appeals held:
"[T]he plain language of § 25-5-57(c)(1) indicates
that it was intended to prevent an employer from
paying duplicate benefits to the employee for the
same disability. To prevent such a duplicate
payment, the City is entitled to a proportionate
credit equal to the rate of its contribution to the
'Extraordinary Disability' payments made to George.
The City contributed 50% of the 'Extraordinary
Disability' payments made to George. Accordingly,
the City is entitled to receive a setoff against its
workers' compensation liability equal to 50% of the
'Extraordinary
Disability'
payments
made to George."
1061225
9
City of Birmingham, ___ So. 2d at ___.
The language of the statute suggests that the legislature
wanted to do substantial justice both to the employer and to
the employee by not giving a windfall to or imposing a penalty
on
either
when
employer-funded compensation is available
to
an
employee outside the provisions of the Act. § 25-5-57(c)(1),
Ala. Code 1975 ("The employer may reduce or accept an
assignment from an employee of the amount of benefits paid
pursuant to a disability plan ... by the amount of
compensation paid, if and only if the employer provided the
benefits or paid for the plan or plans providing the benefits
deducted."). In Ex parte Fort James Operating Co., this Court
recognized that, under the language of § 25-5-57(c)(1), "any
payment by [the employer] under such a qualifying plan would
reduce its obligation to [the employee] for workers'
compensation benefits by that amount." 895 So. 2d at 296.
In this case, it is undisputed that the City provided
one-half the funding of the plan established to pay EOD
benefits and employees provided the other half. City of
Birmingham, ___ So. 2d at ___ ("'[George], like all employees
1061225
10
with [the] City, made contributions to the pension fund in
regular payroll deductions, with [the City] matching the
contributions.'" (quoting the trial court's order)). To the
extent that the City funded the EOD benefits plan, the City
did pay for part of a disability plan contemplated by the
statute.
When George's injury-with-pay leave expired, the City
continued to pay his related medical and disability expenses
and 70% of his monthly salary as EOD benefits. Presumably,
the payments of the expenses and the EOD benefits, available
before a worker's compensation hearing was held, benefited
George at a time of financial need, and, as we noted above,
"'"'[c]ourts
must
liberally
construe
the
workers'
compensation
law "to effectuate its beneficent purposes."'"'" Trotts, ___
So. 2d at ___ (quoting other cases). The beneficent
purposes of the Act are fostered by encouraging employees to
fund such plans as the one that provided the EOD benefits here
so that injured employees are not compelled to look
exclusively to workers' compensation benefits.
The City argues that granting a proportionate setoff for
the EOD benefits paid to George against the worker's
1061225
11
compensation benefits will result in a double compensation to
George. City's brief at 66. The City reaches this conclusion
by adding George's EOD benefits back to the total compensation
he will receive under the Act, which results in an amount
greater than he would receive if he were entitled only to EOD
benefits or only to worker's compensation benefits. City's
reply brief at 13. However, this argument ignores the plain
language of § 25-5-57(c)(1), Ala. Code 1975, which provides
for the setoff "if and only if the employer provided the
benefits or paid for the plan or plans providing the benefits
deducted." There is no language in the statute indicating
that the legislature intended for employee-funded benefits to
reduce an employer's worker's compensation obligations. To
the
contrary,
even
though
George
will
receive
more
compensation if he is allowed worker's compensation benefits
in addition to the EOD benefits than if he were to receive
only worker's compensation benefits or only EOD benefits, the
additional compensation he receives over those amounts
represents benefits for which he and other City employees
provided the funding, and not benefits provided by the City as
his employer. City of Birmingham, ___ So. 2d at ___ ("The City
1061225
The City would read § 25-5-57(c)(1), Ala. Code 1975, as
3
if it says: "[I]f and only if the employer ... paid [any of
the costs] for the plan or plans providing the benefits
deducted ...," then the City is entitled to a full setoff.
George and Justice Woodall, concurring in the result, would go
the other way and read § 25-5-57(c)(1) as if it says: "[I]f
and only if the employer ... paid [100% of the cost] for the
plan or plans providing the benefits deducted ..." is the City
entitled to any setoff at all. Under this latter reading,
whether the employer paid 50% or 99% –- perhaps with the State
subsidizing the plan with a 1% contribution (or with a federal
grant, or a charitable contribution) -- it would be treated as
not having paid at all for the plan, and no setoff would be
allowed for the employer's 99% payment.
The uncontested fact is that the City and the employees
both contributed to the plan. In light of this fact, a strict
reading of the provision –- out of statutory context –- can,
as the City argues, support its position that it is entitled
12
provided 50% of the funds in the pension fund from which the
'Extraordinary Disability' payments were made."). To hold
otherwise would discourage employees from participating in
employer-sponsored disability plans.
Because it is clear from the plain language and context
of § 25-5-57(c)(1), Ala. Code 1975, that the legislature
intended to provide for a setoff to the extent an employer
provides
disability benefits outside the framework
of
the Act,
and only to that extent, the Court of Civil Appeals did not
err in granting the City a setoff in proportion to the extent
to which it funded the plan that provided the EOD benefits.3
1061225
to a full offset; however, neither of the two extreme
positions is supported by a reading of the statute as a whole,
consistent with the purposes of the Act.
We are called upon to effectuate the beneficent purposes
of the statute, provided that such a construction of the
statute is, "'one that the language of the statute "fairly and
reasonably" supports.'" Ex parte Weaver, 871 So. 2d 820, 824
(Ala. 2003)(quoting Ex parte Dunlop Tire Corp., 706 So. 2d at
733). At the same time, in Ex parte Taylor, 728 So. 2d 635,
637 (Ala. 1998), we stated that "the legislature's intent
behind the amendment of the Workers' Compensation Act [adding
§ 25-5-57(c)] was to prevent 'double recovery,' such as
payments from a disability plan or sick plan that a worker
might receive as a result of an injury in addition to workers'
compensation benefits." Both the City and the employees
contributed to this plan, and each is receiving credit for 50%
of the benefits provided by that party's contribution. George
has received payments from the plan, one-half, and only one-
half, of which is attributable to the City's contribution (and
would constitute a double recovery were he to receive it), and
one-half of which is not attributable to the City. Therefore,
a proportionate setoff is the most reasonable construction of
§ 25-5-57(c)(1), Ala. Code 1975.
13
This result ensures that the City will not be forced to
provide
duplicate
compensation
to
employees
and
that
employees
who are injured on the job receive the additional benefits
provided by their own contributions to the plan that funds the
EOD benefits.
Conclusion
Based on our interpretation of the setoff provision in §
25-5-57(c)(1), Ala. Code 1975, we conclude that the 50% setoff
1061225
14
the Court of Civil Appeals awarded the City against the
worker's
compensation
benefits
it
owes to George, which setoff
represents the percentage of the City's contribution to the
plan funding the EOD benefits, was proper in this case. We
therefore affirm the judgment of the Court of Civil Appeals.
AFFIRMED.
Stuart, Smith, Bolin, and Parker, JJ., concur.
Cobb, C.J., and Lyons and Woodall, JJ., concur in the
result.
Murdock, J., recuses himself.
1061225
15
WOODALL, Justice (concurring in the result).
I agree with the majority that the City is not entitled
to the 100% setoff that it seeks. Consequently, I concur in
the result.
The majority acknowledges George's argument "that the
City is not entitled to any offset for the EOD benefits he was
paid, because § 25-5-57(c)(1), Ala. Code 1975, provides for an
offset only when 'the plan is provided or funded completely by
the Employer.' George's brief at 5." ___ So. 2d at ___
(emphasis added). I agree with George. The plain language of
§ 25-5-57(c)(1) allows a setoff "if and only if the employer
... paid for the plan or plans providing the benefits
deducted." (Emphasis added.) This condition cannot be met
when the employee has contributed to the plan. In my
judgment, the statutory language does not fairly and
reasonably support the majority's substitution of "to the
extent the employer paid" for "if and only if the employer
paid." "'If a statute is not ambiguous or unclear, the courts
are not authorized to indulge in conjecture as to the intent
of the Legislature or to look to consequences of the
interpretation of the law as written.'" Gray v. Gray, 947 So.
1061225
16
2d 1045, 1050 (Ala. 2006)(quoting Ex parte Presse, 554 So. 2d
406, 411 (Ala. 1989)). However, because George did not
petition for certiorari review of the decision of the Court of
Civil Appeals, his no-setoff argument is beyond the proper
scope of this Court's review and, in this case, the City will
remain entitled to the pro rata setoff.
Cobb, C.J., and Lyons, J., concur. | February 1, 2008 |
0e069fb9-c610-4833-afee-821cc77e7e8d | Ex parte Alabama Department of Revenue. | N/A | 1190826 | Alabama | Alabama Supreme Court | Rel: October 30, 2020
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190826
____________________
Ex parte Alabama Department of Revenue
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama, Department of Revenue
v.
Greenetrack, Inc.)
(Greene Circuit Court, CV-19-900056)
BOLIN, Justice.
The Alabama Department of Revenue petitions this Court
for a writ of mandamus ordering Judge Eddie Hardaway to recuse
1190826
himself from an appeal challenging a decision of the Alabama
Tax Tribunal in favor of Greenetrack, Inc. We grant the
petition and issue the writ.
Facts and Procedural History
In 2009, the Alabama Department of Revenue determined
that Greenetrack owed $75 million in sales taxes and consumer-
use taxes for its electronic-bingo activities for the period
from January 1, 2004, through December 31, 2008. On June 11,
2011, Greenetrack filed a notice of appeal from the tax
assessments in the Greene Circuit Court. See § 40-2A-7(b)(5),
Ala. Code 1975. The case was styled as Alabama Department of
Revenue v. Greenetrack, Inc., was docketed as case no. CV-
2011-000015, and was assigned to Judge Hardaway. It appears
from the materials before us that the case was consolidated
with Greenetrack, Inc. v. Tim Russell, in his official
capacity as the Commissioner of Revenue for the Alabama
Department of Revenue, case no. CV-2009-900048, an action
filed by Greenetrack challenging certificates of lien for
taxes filed by the Alabama Department of Revenue. On October
16, 2013, the Alabama Department of Revenue moved for Judge
Hardaway to recuse himself in both cases, arguing that recusal
2
1190826
was required because Judge Hardaway had recused himself two
months earlier from another case on a related matter involving
these same parties, styled as State of Alabama v. Greenetrack,
case no. CV-2011-900030. The Alabama Department of Revenue
noted that Judge Hardaway, in his notice of recusal and
request for assignment of a judge in State of Alabama v.
Greenetrack, case no. CV-2011-900030, stated in the section
entitled "reason for recusal":
"[The State] ask[s] that I recuse because I presided
over State of Alabama v. [825 Electronic Gambling
Devices, CV-2010-20,1] in which the Supreme Court
removed me from said case because of several orders
I entered in the case."
On October 17, 2013, Greenetrack responded, arguing that
evidence that Judge Hardaway had been removed in one case
(case no. CV-2010-20) and had recused himself in another
involving the same parties did not satisfy the burden of the
1After this Court had entered over a four-day period three
emergency orders vacating three separate orders of the trial
court before ultimately dismissing the appeals in State of
Alabama v. 825 Electronic Gambling Devices (No. 1091340, July
1, 2010) and State of Alabama v. 825 Electronic Gambling
Devices et al. (No. 1091342, July 1, 2010), a case seeking the
forfeiture of 825 electronic-gaming machines, this Court
removed Judge Hardaway from presiding over the underlying
case. Even though a properly supported motion seeking his
recusal had not been heard in the trial court, this Court
determined that the removal of Judge Hardaway was necessary to
preserve the appearance of justice and fairness.
3
1190826
Alabama Department of Revenue to prove that his recusal was
necessary. Judge Hardaway, however, rejected Greenetrack's
argument and on July 5, 2014, entered orders recusing himself
from case no. CV-2011-000015 and case no. CV-2009-900048. In
the orders, Judge Hardaway provided that, after considering
the submitted motions and the law, he was recusing himself "to
avoid any appearance of bias or impropriety."
Alabama Department of Revenue v. Greenetrack, case no.
CV-2011-000015, was then assigned to Judge D. Al Crowson.
Before the case was litigated, Greenetrack exercised its
right
to pursue its challenge to the tax assessments with the
Alabama Tax Tribunal, see § 40-2A-7(b)(5), Ala. Code 1975.
The Greene Circuit Court dismissed the action. On August 29,
2019, the Alabama Tax Tribunal entered a judgment in favor of
Greenetrack.
On September 27, 2019, the Alabama Department of Revenue
filed a notice of appeal and complaint in the Greene Circuit
Court, seeking reversal of the Alabama Tax Tribunal's final
order2 and affirmation of the Alabama Department of Revenue's
assessments against Greenetrack for $75 million in
sales taxes
2Greenetrack, Inc., Taxpayer v. State of Alabama, Dep't
of Revenue, case no. S. 11-422-JP, August 29, 2019.
4
1190826
and consumer-use taxes for its electronic-bingo activities
from January 1, 2004, through December 31, 2008. See §
40-2B-2(m)(2), Ala. Code 1975.3 The case was styled as State
of Alabama, Department of Revenue v. Greenetrack, Inc., was
docketed as case no. CV-2019-900056, and was assigned to Judge
Hardaway.
On October 11, 2019, the Alabama Department of Revenue
filed a motion asking Judge Hardaway to recuse himself. In
its motion, the Alabama Department of Revenue argued that
Judge Hardaway had recused himself "to avoid any appearance of
bias or impropriety" in case no. CV-2011-000015, a challenge
to the same tax assessments that are at issue in this case;
had recused himself in case no. CV-2009-900048; and had
recused himself in 2013 in case no. CV-2011-900030, a third
case between the parties involving the seizure of gambling
devices. The Alabama Department of Revenue reasoned that,
because the reasons for recusal in the earlier cases remained,
Judge Hardaway should recuse himself in the underlying case.
3Section 40-2B-2(m)(2) provides: "[T]he Department of
Revenue may appeal to circuit court from a final or other
appealable order issued by the Alabama Tax Tribunal by filing
a notice of appeal with the appropriate circuit court within
30 days from the date the final or other appealable order was
entered."
5
1190826
On March 23, 2020, Greenetrack filed its response, making the
same arguments it made in its response to the motion to recuse
filed in case no. CV-2011-000015. Specifically, Greenetrack
argued:
"[Judge Hardaway's] recusal or disqualification in
... prior cases with very limited issues presented
in them does not require recusal in the instant case
related solely to the Department of Revenue's appeal
from a final tax assessment held void by the Alabama
Tax Tribunal."
On April 8, 2020, the Alabama Department of Revenue filed its
reply, arguing that Judge Hardaway had properly recused
himself from hearing case no. CV-2011-000015, "to avoid any
appearance of bias or impropriety," and that he should do so
in this case. The Alabama Department of Revenue maintained
that, although the underlying action is an appeal filed by
the Alabama Department of Revenue, the case constitutes
continued litigation of case no. CV-2011-00015. The Alabama
Department of Revenue reasoned that, even though the
underlying case has a different case number, Judge Hardaway's
recusal is required because, it said, the substantive issues
remain the same, the parties remain the same, the tax
assessments remain the same, and the reasons supporting
recusal remain the same as those presented in case no. CV-
6
1190826
2011-000015. The Alabama Department of Revenue urged:
"Nothing has changed save for the passage of time, a trip to
the Tax Tribunal, and a new case number." Additionally, the
Alabama Department of Revenue insisted:
"[T]he State has never before, nor does it argue
now, that the Court should recuse itself from any
case involving it or Greenetrack, when presented as
a single party. Instead, it was the combination of
both parties and their consequent interactions with
the Court that provided the impetus for the Court's
previous recusal and removal."
On April 15, 2020, the circuit court conducted a hearing on
the motion to recuse.4 On May 31, 2020, the circuit court
denied the Alabama Department of Revenue's motion to recuse
without providing any specific rationale or reasoning in its
order, stating: "The cases and authorities relied upon by the
Alabama Department of Revenue do not support recusal under the
facts and circumstances of this case." On July 10, 2020, the
Alabama Department of Revenue petitioned this Court for a writ
of mandamus directing Judge Hardaway to recuse himself.
Standard of Review
"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
4A transcript of the hearing is not included in the
materials submitted to this Court.
7
1190826
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 Butts, 775 So. 2d 173, 176 (Ala. 2000)(quoting Ex
parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala.
1993)).
"A mandamus petition is a proper method by which
to seek review of a trial court's denial of a motion
to recuse. Ex parte City of Dothan Pers. Bd., 831
So. 2d 1, 5 (Ala. 2002); Ex parte Cotton, 638 So. 2d
870, 872 (Ala. 1994), abrogated on other grounds, Ex
parte Crawford, 686 So. 2d 196 (Ala. 1996). A trial
judge's ruling on a motion to recuse is reviewed to
determine whether the judge exceeded his or her
discretion. See Borders v. City of Huntsville, 875
So. 2d 1168, 1176 (Ala. 2003). The necessity for
recusal is evaluated by the 'totality of the facts'
and circumstances in each case. Dothan Pers. Bd.,
831 So. 2d at 2. The test is whether '"facts are
shown which make it reasonable for members of the
public or a party, or counsel opposed to question
the impartiality of the judge."' In re Sheffield,
465
So.
2d
350,
355–56
(Ala.
1984)(quoting
Acromag–Viking v. Blalock, 420 So. 2d 60, 61 (Ala.
1982))."
Ex parte George, 962 So. 2d 789, 791 (Ala. 2006).
Discussion
The Alabama Department of Revenue contends that it has a
clear legal right to the recusal of Judge Hardaway from the
underlying case. Specifically, the Alabama Department of
Revenue urges that Judge Hardaway exceeded his discretion in
8
1190826
denying its motion to recuse because, it insists, a reasonable
person would question Judge Hardaway's impartiality in light
of his recusal in earlier challenges to the tax assessments at
issue in the underlying case, as well as his recusals in other
cases involving the same parties and this Court's removal of
Judge Hardaway in a case involving the same parties without
the issue of recusal having been heard in the circuit court.
"Canon 2(A)[, Canons of Judicial Ethics,] states:
"'A judge should respect and comply
with the law and should conduct himself at
all times in a manner that promotes public
confidence
in
the
integrity
and
impartiality of the judiciary.'
"Given the concept of promoting public confidence in
the system, Canon 3(C)(1)[, Canons of Judicial
Ethics,] states that '[a] judge should disqualify
himself
in
a
proceeding
in
which
...
his
impartiality might reasonably be questioned' by
members of the public, a party, or counsel. See
Wallace [v. Wallace, 352 So. 2d 1376 (Ala. Civ. App.
1977)]; Acromag-Viking v. Blalock, 420 So. 2d 60
(Ala. 1982); affirmed on other grounds, 474 So. 2d
91 (Ala. 1985). Nonetheless, recusal is not
required based on a 'mere accusation of bias
unsupported by substantial fact. Each case must
stand on its own.' Wallace, supra at 1379; see
Acromag-Viking, supra; Ford v. Ford, 412 So. 2d 789
(Ala. Civ. App. 1982); Miller v. Miller, 385 So. 2d
54 (Ala. Civ. App.), cert. denied, 385 So. 2d 56
(Ala. 1980). ... 'For the law will not suppose a
possibility of bias or favor in a judge who is
already sworn to administer impartial justice and
whose
authority
greatly
depends
upon
that
9
1190826
presumption and idea.' Fulton [v. Longshore], 156
Ala. [611,] 613, 46 So. [989,] 990 [(1908)]."
Ex parte Balogun, 516 So. 2d 606, 609 (Ala. 1987), abrogated
on other grounds, Ex parte Crawford, 686 So. 2d 196 (Ala.
1996). Prejudice on the part of a judge is not presumed, see
Hartman v. Board of Trs. of Univ. of Alabama, 436 So. 2d 837,
841 (Ala. 1983), and substantial evidence must support a
finding that disqualification of a judge is required, see Ex
parte Melof, 553 So. 2d 554, 557 (Ala. 1989), abrogated on
other grounds, Ex parte Crawford, 686 So. 2d 196 (Ala. 1996).
The test to be applied is: "'"'Would a person of ordinary
prudence in the judge's position knowing all the facts known
to the judge find that there is a reasonable basis for
questioning the judge's impartiality?'"'" Ex parte Monsanto
Co., 862 So. 2d 595, 605 (Ala. 2003) (quoting Ex parte City of
Dothan Pers. Bd., 831 So. 2d 1, 6 (Ala. 2002), quoting in turn
Ex parte Duncan, 638 So. 2d 1332, 1334 (Ala. 1994)).
"'[A] judge's recusal in a prior case involving
a party is not alone sufficient for disqualification
in a later case involving that party.' Communities
for Equity v. Michigan High Sch. Athletic Ass'n, 459
F.3d 676, 699 (6th Cir. 2006)(summarizing the
holding in Person v. General Motors Corp., 730 F.
Supp. 516, 518-19 (W.D.N.Y. 1990)). The party
moving for recusal of the trial judge must still
present substantial evidence showing that it is
10
1190826
'"reasonable for members of the public or a party,
or counsel opposed to question the impartiality of
the judge."' Ex parte Duncan, 638 So. 2d [1332,]
1334 [(Ala. 1994)] (quoting Acromag-Viking v.
Blalock, 420 So. 2d 60, 61 (Ala. 1982))."
Ex parte Rogers, 218 So. 3d 859, 865-66 (Ala. Civ. App. 2016).
When recusal is required, a judge may reassume jurisdiction
over a case only when the disqualification that led to his or
her recusal has been removed. Ex parte George, 962 So. 2d at
792.
According to the Alabama Department of Revenue, Judge
Hardaway's recusal in the underlying case is
required because,
it says, the disqualification that led to his earlier recusals
and removal remain present. The Alabama Department of Revenue
insists that nothing has changed that would obviate Judge
Hardaway's earlier disqualification; consequently, it reasons
that Judge Hardaway's impartiality over the underlying case
might reasonably be questioned. In support of its contention,
the Alabama Department of Revenue directs this Court to Ex
parte Balogun, supra.
In Ex parte Balogun, after the parties' divorce case had
settled and certain documents that had been identified for
trial (allegedly involving the husband, the Macon County Dog
11
1190826
Track, and unethical conduct) had been turned over to law-
enforcement agencies and other parties, the former husband
moved to have the trial court return all the exhibits in the
divorce case. When the former husband learned that the trial
judge was the one who had turned over the documents to law-
enforcement agencies, the former husband moved for the trial
judge to recuse himself from further proceedings in the
divorce case. The former husband reasoned that the trial
judge's giving the documents to law-enforcement agencies was
an indication of bias. The trial court denied the motion,
finding that the relinquishing of the documents to law-
enforcement agencies did not show bias. This Court agreed
that giving the documents to law-enforcement agencies did not
show bias on the trial judge's part but held that the trial
judge's recusals in two earlier cases and the reasons
supporting those recusals constituted substantial evidence
requiring the trial judge's recusal. The two earlier cases
involved the Macon County Dog Track, and, when recusing
himself from those cases, the trial judge had reasoned that
his recusals were required because his impartiality might be
questioned. The trial judge stated that he had expressed
12
1190826
opinions regarding the legalization of dog racing in both a
legal and political context and that his views were known by
the public. This Court held that the evidence of the trial
judge's two earlier recusals in cases involving the Macon
County Dog Track and the trial judge's reasons set forth for
those recusals demonstrated that "a person of ordinary
prudence could reasonably question [the trial judge's]
impartiality" and, thus, that the former husband had met his
burden of proof. Ex parte Balogun, case no. 516 So. 2d at
610.
Greenetrack, on the other hand, contends that evidence of
Judge Hardaway's earlier recusals and removal and the reasons
set forth explaining his disqualifications leading to them do
not satisfy the Alabama Department of Revenue's burden of
proving that recusal is necessary. According to Greenetrack,
Judge Hardaway's removal by this Court in State of Alabama v.
825 Electronic Gambling Devices, case no. CV-2010-20 (see note
1 supra), and his earlier recusals in the initial challenge to
the tax assessments, case no. CV-2011-000015, and a challenge
to the certificates of lien for taxes, case no. CV-2009-
900048, in and of themselves do not provide substantial
13
1190826
evidence to question Judge Hardaway's impartiality in the
underlying case. Greenetrack maintains that the underlying
case, in which the Alabama Department of Revenue appeals the
final order of the Alabama Tax Tribunal that voided the tax
assessments against it, constitutes a brand new case, and it
states that the Alabama Department of Revenue presented no
evidence indicating that Judge Hardaway "expressly or
impliedly [has] shown any bias for or prejudice against either
party, or has acted or failed to act in any manner that would
give the appearance of impropriety." Ex parte Rogers, 218 So.
3d at 865. Greenetrack reasons that a reasonable, prudent
person could understand that the passage of time could
mitigate or completely alleviate the circumstances or
conditions that required Judge Hardaway to recuse himself or
be removed in the previous proceedings. In support of its
contention, Greenetrack relies on Ex parte Rogers.
In Ex parte Rogers, the former wife sought the recusal of
the trial judge in a postdivorce action based on the trial
judge's recusal in the divorce case. In the postdivorce
action, as she did in the divorce action in which the trial
judge had recused himself, the former wife argued that the
14
1190826
trial judge's impartiality could be questioned because the
former husband's father, an attorney and a potential witness,
practiced before the trial judge and the trial judge's
interactions with the former husband's father would place the
trial judge in an awkward position when reaching a decision.
The trial judge denied the former wife's motion to recuse.
The former wife then petitioned the Court of Civil Appeals for
a writ of mandamus directing the trial judge to recuse
himself. In support of her request, the former wife urged
that application of the law set forth in Ex parte Balogun
required issuance of the writ. The Court of Civil Appeals
disagreed, noting that, unlike the evidence in Ex parte
Balogun, the evidence did not establish that the trial judge
had made public comments regarding the former wife or the
former husband, nor did the evidence indicate that the trial
judge had "shown any bias for or against either party, or
[had] acted or failed to act in any manner that would give the
appearance of impropriety." 218 So. 3d at 865. The Court of
Civil Appeals further observed that the trial judge in his
answer to the former wife's petition for a writ of mandamus
stated that, at that time, unlike when the divorce case was
15
1190826
pending, the former husband's father rarely practiced before
the court and, consequently, the passage of time had removed
the earlier reason for recusal. Accordingly, the Court of
Civil Appeals held that the former wife had not met her burden
of producing substantial evidence that a reasonable person
could question the trial judge's impartiality or that there
was an appearance of impropriety stemming from the trial
judge's recusal in the divorce case.
Although Ex parte Balogun and Ex parte Rogers are
instructive, this case is unique. The State and Greenetrack
have a lengthy history of litigation before Judge Hardaway;
Judge Hardaway has recused himself in several cases involving
these parties; in one case this Court ordered Judge Hardaway's
removal without the issue having been entertained in the
circuit court; and Judge Hardaway recused himself in
Greenetrack's initial challenge to the tax assessments filed
in the circuit court. We are mindful that issues in some of
the earlier cases, such as the legality of electronic bingo
and the propriety of the seizure of gaming machines or illegal
gambling devices are not issues in the underlying case. We
further recognize that the main issue presented in the
16
1190826
underlying case is whether the Alabama Tax Tribunal properly
ruled that the tax assessments were void, and we admit that
the passage of time and factual distinctions may have tempered
the reasons supporting the past recusals and removal.
However, in light of the totality of the facts and
circumstances surrounding the past decisions of recusal and
removal and the litigiousness of the parties regarding past
recusal requests, a reasonable, prudent person might question
the impartiality of Judge Hardaway. And, because nothing in
the materials before us indicates that the reasons for recusal
set forth in case no. CV-2011-000015 and case no. CV-2009-
900048 do not remain, we agree with the Alabama Department of
Revenue that the reasons for recusal in the earlier cases
remain5 and that Judge Hardaway exceeded his discretion when
5We observe that neither Greenetrack nor Judge Hardaway
provides any evidence or offers any reason, other than the
passage of time, regarding why the reasons for recusal or
removal that existed in the other cases do not remain. This
statement does not obviate the burden on the party requesting
recusal
to
present
substantial
evidence
that
it
is
"'"reasonable for members of the public or a party, or counsel
opposed to question the impartiality of the judge."'" Ex parte
Rogers, 218 So. 3d at 865-66. This observation should not be
viewed as creating a burden-shifting process; rather, it is
simply an observation that, in this case, in light of the
contentiousness between these parties and the interactions
with the circuit court, the totality of the facts and
circumstances in earlier cases, and Judge Hardaway's earlier
17
1190826
he refused to recuse himself in the underlying case. As we
stated in Ex parte Smith, 282 So. 3d 831, 841 (Ala. 2019):
"'"A fair and impartial judge is the cornerstone of the
integrity of the judicial system. Even the appearance of
partiality [or bias] can erode the public's confidence in the
integrity of the judiciary."'" (Quoting State v. Moore, 988
So. 2d 597, 601 (Ala. Crim. App. 2007), quoting in turn In re
Judicial
Disciplinary Proceedings Against
Laatsch,
299
Wis.
2d
144, 150, 727 N.W.2d 488, 491 (Wis. 2007).)
Lastly, we decline the request of the Alabama Department
of Revenue in its petition to reassign this case. This Court
has set forth well established procedures for a trial judge to
request reassignment of a case once a trial judge recuses
himself or herself or is disqualified, and the materials
before us indicate that Judge Hardaway, when having recused
himself in other cases, has followed those procedures;
therefore, the Alabama Department of Revenue has not
demonstrated a clear, legal right to relief in this regard.
Conclusion
recusal in Greenetrack's initial challenge to the tax
assessments in the circuit court, nothing in the materials
before us indicates that the reasons for the earlier recusals
or removal no longer remain.
18
1190826
The Alabama Department of Revenue has demonstrated a
clear, legal right to the recusal of Judge Hardaway in the
underlying case. Accordingly, we grant its petition and
direct Judge Hardaway to recuse himself in the underlying
case.
PETITION GRANTED; WRIT ISSUED.
Shaw, Wise, Bryan, Stewart, and Mitchell, JJ., concur.
Parker, C.J., and Sellers, J., concur in the result.
19 | October 30, 2020 |
4c2fb9ed-c85b-4588-9608-1266b719cec7 | Ex parte Kenneth Earle Pate. | N/A | 1190831 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 30, 2020
1190831 Ex parte Kenneth Earle Pate. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Kenneth
Earle Pate v. State of Alabama) (Marion Circuit Court: CC-18-369.70;
Criminal Appeals : CR-18-1139).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on October 30, 2020:
Writ Denied. No Opinion. PER CURIAM - Parker, C.J., and Bolin, Shaw,
Wise, Bryan, and Mitchell, JJ., concur. Sellers, Mendheim, and Stewart, JJ.,
dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 30th day of October, 2020.
Clerk, Supreme Court of Alabama | October 30, 2020 |
385b2c2b-deee-426e-87bb-81a83190925d | Ex parte Paula DiNardi. | N/A | 1180978 | Alabama | Alabama Supreme Court | 1180978
Ex parte Paula DiNardi. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
Paula DiNardi v. Ronan Francis McSharry) (Baldwin Circuit Court: CV-19-900614).
ORDER
October 30, 2020
IN THE SUPREME COURT OF ALABAMA
The petition for writ of mandamus in this cause is denied.
SHAW, J. - Parker, C.J., and Bolin, Wise, Bryan, Mendheim, and Mitchell, JJ.,
concur. Sellers and Stewart, JJ., dissent.
Witness my hand this 30th day of October, 2020.
Clerk, Supreme Court of Alabama
/ra | October 30, 2020 |
71284c4a-3ff5-4e1f-8361-1fa0691168bd | Ex parte LaForest Carmichael. | N/A | 1200020 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1200020
Ex parte LaForest Carmichael. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: LaForest Carmichael v. State
of Alabama) (Calhoun Circuit Court: CC-16-2162, CC-16-2163, CC-16-2164,
CC-16-2165; CC-16-2166; Criminal Appeals :
CR-18-0660).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
879cc6ac-bd4d-46c8-b049-dc0f3e41929e | Volha Sumina v. The Board of Trustees of the University of Alabama, for and on behalf of the University of Alabama in Huntsville; and Rankin Sneed, in his capacity as personal representative of the Estate of Ralph Edwin Geiger, Jr., deceased | N/A | 1190661 | Alabama | Alabama Supreme Court | Rel: October 16, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190661
Volha Sumina v. The Board of Trustees of the University of
Alabama, for and on behalf of the University of Alabama in
Huntsville; and Rankin Sneed, in his capacity as personal
representative of the Estate of Ralph Edwin Geiger, Jr.,
deceased (Appeal from Madison Circuit Court: CV-18-117).
SELLERS, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Bolin, Shaw, and Stewart, JJ.,
concur. | October 16, 2020 |
c1e62898-ce75-4e46-842c-108a6aefd746 | Edward Lemuel McRight v. Alabama State Bar | N/A | 1190420 | Alabama | Alabama Supreme Court | Rel: November 13. 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190420
Edward Lemuel McRight v. Alabama State Bar (Appeal from the
Disciplinary Board of the Alabama State Bar, ASB-2018-167).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | November 13, 2020 |
88bf2539-1557-4ad6-9cb2-52e3a2e3db4b | Scott T. Morro, Mandy Powrzanas, and Shawna Stewart v. The Water Works Board of the City of Birmingham | N/A | 1190582 | Alabama | Alabama Supreme Court | Rel: October 16, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190582
Scott T. Morro, Mandy Powrzanas, and Shawna Stewart v. The
Water Works Board of the City of Birmingham (Appeal from
Jefferson Circuit Court: CV-19-903999).
WISE, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Sellers, and Stewart, JJ.,
concur. | October 16, 2020 |
84001644-0885-4962-b3f9-623e071a8162 | Ex parte George Martin. | N/A | 1190996 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
October 23, 2020
1190996
Ex parte George Martin. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: George Martin v. State of Alabama) (Mobile Circuit Court:
CC-99-2696.81; Criminal Appeals :
CR-18-0891).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 23, 2020:
Writ Denied. No Opinion. Sellers, J. - Bolin, Shaw, Wise, Bryan, Mendheim, and
Mitchell, JJ., concur. Parker, C.J., dissents. Stewart, J., recuses herself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 23rd day of October, 2020.
Clerk, Supreme Court of Alabama | October 23, 2020 |
61b64397-5a7b-4b4e-8ef3-ab89c08689dc | Fagan v. Warren Averett Companies, LLC | N/A | 1190285 | Alabama | Alabama Supreme Court | Rel: October 23, 2020
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
_________________________
1190285
_________________________
Gerriann Fagan
v.
Warren Averett Companies, LLC
Appeal from Jefferson Circuit Court
(CV-19-901956)
WISE, Justice.
Gerriann Fagan, the plaintiff below, appeals from the
Jefferson Circuit Court's order granting the motion to compel
arbitration filed by Warren Averett Companies, LLC, one of the
defendants below. We reverse and remand.
1190285
Facts and Procedural History
Fagan alleged that, from February 2001 to March 2015, she
was the owner of The Prism Group, LLC, a human-resources
consulting firm. Fagan also alleged that, in February 2015,
Warren Averett approached her and asked her to join Warren
Averett and to build a human-resources consulting practice for
it and that, in February 2015, she agreed to join Warren
Averett. Fagan and Warren Averett entered into a "Transaction
Agreement" effective April 1, 2015, which provided that Fagan
would wind down the operations of The Prism Group; that Fagan
would become a member of Warren Averett; that Warren Averett
would purchase The Prism Group's equipment and
furniture; that
Warren Averett would assume responsibility for The Prism
Group's leases; and that Warren Averett would assume The Prism
Group's membership in Career Partners International, LLC.
The
Transaction Agreement further provided that Fagan would enter
into a "Standard Personal Service Agreement" ("the PSA") with
Warren Averett; that Fagan's title would be president of
Warren Averett Workplace; and that Fagan would be paid in
accordance with the compensation schedule outlined in
the
PSA.
2
1190285
Fagan alleged that the compensation schedule included in
the PSA was drafted by April Harry, who was then chief
financial officer of Warren Averett and who was the chief
operating officer of Warren Averett at the time Fagan filed
the complaint. The PSA included the following dispute-
resolution section, which contains an arbitration provision:
"19. DISPUTE RESOLUTION. All controversies,
claims, issues and other disputes arising out of or
relating to this Agreement or the breach thereof
(collectively, the 'Disputes') shall be subject to
the applicable provisions of this Section 19.
"....
"(b) Arbitration. Except as provided in
Section 19(a)[1] hereof, all Disputes shall be
settled by arbitration in Birmingham, Alabama in
accordance with the Commercial Arbitration Rules of
the
American
Arbitration
Association.
Any
disagreement as to whether a particular Dispute is
subject to arbitration under this Section 19 shall
be decided by arbitration in accordance with the
provisions of this Section 19. Judgment upon any
award rendered by the arbitrator in any such
arbitration may be entered in any court having
jurisdiction thereof. The arbitrator(s) shall have
the power to grant all legal and equitable relief
1Section
19(a)
provided
for
certain
equitable
relief
under
the following circumstances: in the event Fagan breached the
nonsolicitation
covenant
and
confidentiality
provisions
of
the
PSA; "in the event any client terminates or modifies his, her
or its relationship with [Warren Averett] and directly or
indirectly engages [Fagan] in breach of this Agreement"; and
in the event that one or more of Warren Averett's employees
left for direct or indirect employment with Fagan.
3
1190285
and remedies and award compensatory damages as
provided for by law but shall not award any damages
other than, or in excess of, compensatory damages.
In the event that the amount in question of such
arbitration is over $200,000, [Warren Averett], in
its sole discretion, may require a panel of three
independent arbitrators.
"....
"(d) Costs and Fees. The parties shall
bear their respective costs in connection with the
dispute resolution procedures described in this
Section 19 except that the parties share equally the
fees and expenses of any arbitrator(s) and the costs
of any facility used in connection with the dispute
resolution procedures."
Fagan alleged that she subsequently resigned from Warren
Averett when she was unable to resolve a claim that Warren
Averett had failed to properly compensate her in accordance
with the PSA. On or about February 28, 2019, Fagan filed a
demand
for
arbitration
with
the
American
Arbitration
Association ("AAA"). She filed her demand on an AAA form
titled "Employment Arbitration Rules Demand for Arbitration."
She asserted that she was claiming "$451,910.49 + additional
interest as it accrues and any other damages for tort claims."
She described the nature of her claim as follows:
"Warren
Averett
Companies,
LLC
breached
its
employment contract with Gerriann Fagan by failing
to compensate her and provide her commission in
accordance with the contract. Ms. Fagan also brings
4
1190285
claims of bad faith, fraud, unjust enrichment,
minority shareholder oppression, and breach of
fiduciary duty against Warren Averett. In addition,
Ms. Fagan brings a claim under Alabama Code [1975],
Section 8-24-1 for unpaid commission."
The form used by Fagan also included the following:
"Filing Fee requirement or $300 (max amount per AAA)
"Filing by Company: G $2,200 single arbitrator G
$2,800 three arbitrator panel"
Counsel for Fagan sent counsel for Warren Averett a
letter dated February 28, 2019, attaching the demand for
arbitration and the arbitration provision in the PSA Fagan had
filed with the AAA.
The employment-filing team of the AAA sent a letter dated
March 4, 2019, to the parties. That letter stated:
"The outcome of our preliminary administrative
review,
which
is
subject
to
review
by
the
arbitrator,
is
that
this
dispute
will
be
administered
in
accordance
with
the
American
Arbitration
Association
('AAA')
Commercial
Arbitration Rules and Employment/Workplace Fee
Schedule, which can be found on our website.
www.adr.org.
"In
cases
before
a
single
arbitrator,
a
non-refundable filing fee, of $300.00, is due from
the employee when a claim is filed, unless the
arbitration agreement provides that the employee pay
less. A non-refundable fee of $1,900.00 is due from
the employer unless the arbitration agreement
provides that the employer pay more.
5
1190285
"We have received the employee's portion of the
filing fee in the amount of $300.00. Accordingly,
we request that the employer pay its share of the
filing fee in the amount of $1,900.00 on or before
March 18, 2019. Upon receipt of the balance of the
filing
fee,
the
AAA
will
proceed
with
administration.
"....
"The AAA's administrative fees are based on filing
and service charges. Arbitrator compensation is not
included in this schedule. The AAA may require
arbitrator compensation deposits in advance of any
hearings. Unless the employee chooses to pay a
portion of the arbitrator's compensation, the
employer shall pay all of the arbitrator's fees and
expenses."
(Emphasis added.)
On March 28, 2019, counsel for Warren Averett sent an e-
mail to the employment-filing team of the AAA, in which he
stated:
"My firm is outside counsel for Warren Averett. We
are confused about this invoice. The arbitration
agreement specifies the parties will split the costs
of arbitration equally, but this invoice does not
appear to acknowledge this fact. Please advise."
The employment-filing team responded:
"The outcome of our preliminary administrative
review,
which
is
subject
to
review
by
the
arbitrator,
is
that
this
dispute
will
be
administered
in
accordance
with
the
American
Arbitration
Association
('AAA')
Commercial
Arbitration Rules and Employment/Workplace Fee
Schedule. (Please see attached)."
6
1190285
(Emphasis added.)
On April 8, 2019, counsel for Fagan sent an e-mail to
counsel for Warren Everett, stating:
"The American Arbitration Association made its
determination at this stage that the attached
employment fee schedule will apply. Is Warren
Averett refusing to pay the arbitration fee?
"It is our position that their determination is
appropriate, in keeping with their rules and
regulations, and consistent with applicable law."
Counsel for Warren Averett responded, stating, in pertinent
part:
"Warren Averett is asking that the parties' contract
be enforced as written. The contract provides the
parties will equally share the mediation costs. It
also says it will be conducted pursuant to the AAA
Commercial
Rules,
which
nowhere
include
the
application of an employment dispute fee schedule.
The agreement does not state the arbitration has to
be conducted by the AAA (only that the AAA
Commercial Rules be applied). We would be agreeable
to a different forum than AAA that will enforce the
terms of the parties' arbitration agreement.
"If there is law you believe applies which supports
a departure from the parties' agreement, I will
certainly review it."
On April 9, 2019, counsel for Warren Averett sent an e-
mail to the employment-filing team of the AAA, stating:
"Hi, with whom do we dispute the AAA's decision as
to the fee split? We do not want to pay more than
7
1190285
our 1/2 of fees as contractually agreed without
having that dispute decided first."
The employment-filing team responded:
"Any dispute regarding filing fee allocation should
be raised to the arbitrator for a determination once
the full filing requirements, including fee, are
satisfied."
On April 18, 2019, the employment-filing team notified
the parties that Warren Averett had failed to submit the
requested filing fee and that it was administratively closing
the file in the matter.
On April 30, 2019, Fagan sued Warren Averett and Harry in
the Jefferson Circuit Court. In her complaint, Fagan alleged
claims of breach of contract, misrepresentation, unjust
enrichment/restitution,
minority shareholder
oppression,
breach of fiduciary duty, and fraudulent suppression.
On June 5, 2019, Harry and Warren Averett each filed a
motion to dismiss the claims. In its motion to dismiss,
Warren Averett moved to dismiss all of Fagan's claims against
it except the breach-of-contract claim. Warren Averett
included a footnote stating that it was contemporaneously
filing "a motion to compel the remaining claim asserted
8
1190285
against Warren Averett (Count I -- Breach of Contract) to
arbitration as agreed by the parties."
On that same date, Warren Averett filed its "Motion to
Compel Arbitration and to Dismiss or Stay this Action." In
its motion, Warren Averett stated, in pertinent part:
"Defendant Warren Averett Companies, LLC ('Warren
Averett') hereby moves this Court to dismiss without
prejudice (or, alternatively, stay) Plaintiff's
Complaint and order that Plaintiff's claims (to the
extent not dismissed by this Court under Ala. R.
Civ. P. 12(b)(6)) be compelled to arbitration."
Warren Averett asserted that Fagan's complaint alleged a
breach of the PSA, which included an arbitration provision,
and that, before filing this action, Fagan had filed a demand
for arbitration with the AAA. It further alleged:
"However, rather than filing a demand under the
Commercial Rules that the parties agreed would
govern any such arbitration, Plaintiff filed a
demand under the 'Employment Arbitration Rules.'
... The AAA contacted Warren Averett, advising that
it had determined its 'Employment Workplace Fee
Schedule' would apply to the arbitration, which in
essence meant Warren Averett had to bear all costs
of arbitration except for a $300 filing fee paid by
the Plaintiff. Ex. 3 (AAA Ltr.). Warren Averett
inquired as to why the terms of the parties'
agreement concerning cost-sharing were not being
followed, and the AAA advised this issue would not
be addressed until Warren Averett paid a filing fee
which was far in excess of its contractually agreed
1/2 of the fee. Ex. 4 (Email chain).
9
1190285
"Plaintiff's counsel stated it was Plaintiff's
position that the AAA's determination to disregard
the parties' agreement was supported by 'applicable
law.' ... Warren Averett's counsel responded that
Warren Averett expected the parties' agreement to be
enforced as written, and that the PSA provides the
parties will share costs equally:
"'It also says [the arbitration] will be
conducted pursuant to the AAA Commercial
Rules,
which
nowhere
include
the
application of an employment dispute fee
schedule. The agreement does not state the
arbitration has to be conducted by the AAA
(only that the AAA Commercial Rules be
applied). We would be agreeable to a
different forum than AAA that will enforce
the terms of the parties' arbitration
agreement.
"'If there is law you believe applies which
supports a departure from the parties'
agreement, I will certainly review it.'
"...
Plaintiff
did
not
respond
to
this
communication, and instead filed this action two
weeks later."
On July 31, 2019, Fagan filed an amended complaint. On
that same date, she also filed a response to Warren Averett's
motion to compel arbitration. In her response, she asserted
that Warren Averett had failed to participate in the
arbitration and had failed to pay its required filing fee.
She stated:
"Despite repeated requests by the AAA, Warren
Averett failed to participate in the arbitration and
10
1190285
pay its required filing fee. Now that Fagan has
filed this action in circuit court, Warren Averett
seeks to compel arbitration. Warren Averett,
however, has materially breached the employment
contract as to the forum for filing this action and
is in default under 9 U.S.C. § 3 in proceeding with
the arbitration. Thus, Warren Averett is precluded
from enforcing the arbitration provision. By
failing to participate in the arbitration initiated
by Fagan, Warren Averett has also waived its right
to arbitrate the matter. In addition, the
arbitration provision in the employment contract is
unconscionable. For these reasons and more, Warren
Averett's Motion to Compel is due to be denied."
After Fagan filed her amended complaint, Harry again
filed a motion to dismiss the claims against her. Warren
Averett also filed a motion to dismiss all of Fagan's claims
in
the
amended
complaint, except
the
breach-of-contract claim.
The trial court subsequently entered an order in which it
granted Harry's and Warren Averett's motions to dismiss as to
the minority-shareholder-oppression claim but denied the
motions to dismiss as to the remaining claims. The trial
court also granted Warren Averett's motion to compel
arbitration and assigned the case to the administrative
docket.
Fagan filed a motion to alter, amend, or vacate the
portion of the trial court's order granting Warren Averett's
11
1190285
motion to compel arbitration, which the trial court denied.
This appeal followed.
Standard of Review
"'"This Court's review of an
order
granting
or
denying
a
motion to compel arbitration is
de novo. ..."
"'United
Wisconsin
Life Ins. Co. v.
Tankersley, 880 So. 2d 385, 389 (Ala.
2003). Furthermore:
"'"'A motion to compel
a r b i t r a t i o n
i s
analogous to a motion
for summary judgment.
TranSouth Fin. Corp. v.
Bell, 739 So. 2d 1110,
1114 (Ala. 1999). The
party seeking to compel
arbitration
has
the
burden of proving the
existence of a contract
calling for arbitration
and proving that that
contract
evidences
a
transaction
affecting
interstate
commerce.
Id. "After a motion to
compel arbitration has
b e e n
m a d e
a n d
supported, the burden
is on the non-movant to
present evidence that
t h e
s u p p o s e d
arbitration
agreement
is not valid or does
not
apply
to
the
dispute in question."'
12
1190285
"'"Fleetwood Enters., Inc. v.
Bruno, 784 So. 2d 277, 280 (Ala.
2000) (quoting Jim Burke Auto.,
Inc. v. Beavers, 674 So. 2d 1260,
1265 n. 1 (Ala. 1995) (emphasis
omitted))."
"'Vann v. First Cmty. Credit Corp., 834 So.
2d 751, 753 (Ala. 2002).'
"Cartwright v. Maitland, 30 So.3d 405, 408–09 (Ala.
2009)."
SCI Alabama Funeral Servs., LLC v. Hinton, 260 So. 3d 34,
36–37 (Ala. 2018).
Discussion
In this case, Fagan does not argue that Warren Averett
did not prove the existence of a contract calling for
arbitration or that Warren Averett did not prove that that
contract
evidences
a
transaction
involving
interstate
commerce. Rather, Fagan argues that the trial court erred
when it failed to find that Warren Averett was in default of
the arbitration provision in the PSA.2 Specifically, she
asserts that Warren Averett materially breached the PSA when
2In her brief to this Court, Fagan raises additional
defenses
challenging
the
validity
of
the
arbitration
provision. However, based on our disposition of this claim,
we pretermit those remaining arguments.
13
1190285
it failed to pay the filing fee and to participate in the
arbitration proceedings she had initiated with the AAA.
Section 9 U.S.C. § 3 provides:
"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."
(Emphasis added.)
In Pre-Paid Legal Services, Inc. v. Cahill, 786 F.3d 1287
(3d Cir. 2015), Pre-Paid Legal Services, Inc., d/b/a Legal
Shield ("Pre-Paid"), sued Todd Cahill. Pre-Paid alleged tort
claims and contract violations against Cahill, a former
employee of Pre-Paid. Cahill removed the case from state to
federal court. Cahill then moved the district court to stay
the proceedings under the Federal Arbitration Act ("the FAA")
so the parties could pursue arbitration, and the district
court granted that motion. Pre-Paid initiated arbitration
proceedings with the AAA and paid its share of the arbitration
fees. The AAA repeatedly warned Cahill's attorney that the
14
1190285
arbitration proceedings would be suspended if Cahill did not
pay his share of the arbitration fees. Pre-Paid declined to
pay Cahill's share of the arbitration fees. After Cahill
failed to pay his share of the arbitration fees, the
arbitrators
directed
termination
of
the
arbitration
proceedings. Pre-Paid then moved the district court to remove
the stay and resume the litigation. The magistrate judge
"recommended
lifting
the
stay
because
the
arbitrators
'elected
to terminate' the proceedings and '[i]t is clear under these
circumstances
that
the
arbitrators
considered
Cahill's
failure
to pay to be a default in arbitration.'" 786 F.3d at 1288.
The district court granted Pre-Paid's motion and lifted the
stay. Cahill appealed the order lifting the stay to the
United States Court of Appeals for the Tenth Circuit. Cahill
argued that the district court's order violated 9 U.S.C. § 3
and asked the Tenth Circuit to reinstate the stay.
In Pre-Paid, the Tenth Circuit stated:
"Failure to pay arbitration fees constitutes a
'default' under § 3. Because Mr. Cahill failed to
pay his arbitration fees, he was in 'default.' See
Garcia[ v. Mason Certified Contract Prods., LLC (No.
08-23103-CIV, Aug. 18, 2010) (S.D. Fla. 2010) (not
selected for publication in F. Supp.)] ('[T]his
default was ... an intentional and/or reckless act
because the AAA provided repeated notices to the
15
1190285
Defendant that timely payment of the fee had not
been received.... There is no other description the
Court can find for this self-created situation other
than
"default."');
Rapaport
v.
Soffer,
No.
2:10–cv–00935–KJD–RJJ, ... (D. Nev. May 12, 2011)
(unpublished) (finding the defendant was in default
under § 3 because the AAA 'closed' or 'terminated'
the case because of his failure to pay fees);
Sanderson Farms, Inc. v. Gatlin, 848 So. 2d 828,
837–38 (Miss. 2003) (finding the defendant refused
to pay its one-half of the costs pursuant to an
arbitration agreement and that this constituted
'default' under § 3). Because Mr. Cahill was in
default, the district court was not obligated under
§ 3 to maintain the stay so that arbitration could
proceed.3
"______________________
"3The FAA does not define '[d]efault in
proceeding with [the] arbitration.' 9 U.S.C. § 3.
As noted above, some courts have viewed a party's
failure to pay its share of the arbitration fees as
a breach of the arbitration agreement, which
precludes any subsequent attempt by that party to
enforce that agreement. Other courts have treated
the failure to pay arbitration fees as a waiver of
the right to arbitrate. See, e.g., Brown[v.
Dillards, Inc.], 430 F.3d [1004,] 1012–13 [(9th Cir.
2005)]. Under either approach, the result is the
same: Mr. Cahill's failure to pay his share of costs
precludes him from seeking arbitration."
786 F.3d at 1294–95.
It is undisputed that Warren Averett did not pay the
administrative filing fee that the AAA had requested from it.
In its brief to this Court, Warren Averett argues that Fagan
16
1190285
was actually the party in default under the arbitration
provision. Specifically, it asserts:
"Here, the terms of the parties' agreement to
arbitrate required the parties to follow the AAA
Commercial Rules. In order to initiate an
arbitration under those Rules, the claimant is
required to submit the 'COMMERCIAL ARBITRATION RULES
DEMAND FOR ARBITRATION' along with a filing fee set
forth in the Commercial Arbitration Rules and
Mediation Procedures Fee Schedules. Fagan did not
do this. Rather, in disregard of the parties'
agreement,
Fagan
submitted
an
'EMPLOYMENT
ARBITRATION RULES DEMAND FOR ARBITRATION,' along
with the filing fee called for on that form, which
comes from the Employment/Workplace Fee Schedule.
That then led to a series of communications with the
AAA's 'Employment Filing Team' over the proper split
of the filing fees and other costs of arbitration."
(Citations omitted; emphasis in original.) However, Rule R-
4(a) of the AAA's Commercial Arbitration Rules provides, in
pertinent part:
"Arbitration under an arbitration provision shall be
initiated by the initiating party ('claimant')
filing with the AAA a Demand for Arbitration, the
administrative filing fee, and a copy of the
applicable arbitration agreement from the parties'
contract which provides for arbitration."
The Commercial Arbitration Rules include the information to
be
included with any arbitration filing. Further, Rule R-4(f)
provides that a claimant may file or submit a dispute to the
AAA either through "AAA WebFile" or "by filing the complete
17
1190285
Demand or Submission with any AAA office, regardless of the
intended locale of hearing." However, Rule R-4 does not
specify which form is to be used when filing a demand for
arbitration.
Rule R-4(b) also provides for the payment of "the
administrative filing fee." The Commercial Arbitration Rules
provide, in pertinent part:
"Beginning October 1, 2017, AAA will apply the
Employment Fee Schedule to any dispute between an
individual employee or an independent contractor
(working or performing as an individual and not
incorporated) and a business or organization and the
dispute involves work or work-related claims,
including any statutory claims and including work-
related
claims
under
independent
contractor
agreements."
Fagan filed her demand for arbitration in 2019. Thus, the
Commercial Arbitration Rules that were in place at the time
Fagan filed her request for arbitration specifically provided
that the Employment/Workplace Fee Schedule would apply to
claims such as Fagan's.
For these reasons, Warren Averett's argument that Fagan
initially defaulted
under
the
arbitration
agreement is
without
merit.
18
1190285
In arguing that it was not in default, Warren Averett
argues that it "merely insisted on the parties' agreement
being enforced as written, such that the parties would equally
share in the costs of arbitration." It further argues that
its "good faith attempt to follow the terms of the parties'
agreement cannot be considered a 'default' under the FAA."
(Warren Averett's brief at p. 31.) The dispute-resolution
section of the PSA addresses costs and expenses as follows:
"The parties shall bear their respective costs in
connection with the dispute resolution procedures
described in Section 19 except that the parties
share equally the fees and expenses of any
arbitrator(s) and the costs of any facility used in
connection with such dispute resolution procedures."
(Emphasis added.) The PSA does not specifically state that
the parties will equally share all the costs of arbitration.
Rather, it provides only that the parties will equally share
"the fees or expenses of any arbitrator(s)" as well as the
costs for the use of any facility. Rule R-53 of the
Commercial Arbitration Rules provides for the payment of
administrative fees, including the filing fee. Rule R-54
deals with the
payment of expenses, including "required travel
and other expenses of the arbitrator." Finally, Rule R-55
provides for compensation for arbitrators. Accordingly, the
19
1190285
AAA's Commercial Arbitration Rules differentiate between
administrative fees charged by the AAA, the expenses of
arbitrators, and the compensation for arbitrators. When
reading the PSA in conjunction with the AAA's Commercial
Arbitration Rules, it appears that, other than fees and
expenses of the arbitrators and the costs of facility usage,
each party was to pay her or its own costs associated with the
arbitration, including the filing fees. Thus, the PSA did not
unambiguously provide that Fagan and Warren Averett would
equally split the filing fees in this case.
The employment-filing team notified Warren Averett that
it had initially determined that the Employment/Workplace Fee
Schedule applied but that that determination was subject to
review by the arbitrator. Additionally, the employment-
filling team informed counsel for Warren Averett that
"[a]ny dispute regarding filing fee allocation
should
be
raised
to
the
arbitrator
for
a
determination once the full filing requirements,
including fee, are satisfied."
However, rather than going forward with arbitration and
letting the arbitrator resolve any disputes regarding the fee
schedule and the cost-sharing provisions in the PSA, Warren
Averett refused to pay the AAA filing fee and sought to change
20
1190285
to another arbitral forum. As was the case in Pre-Paid,
Warren Averett's failure to pay the filing fee constituted a
default under the arbitration provision. Accordingly, the
trial court erred when it granted Warren Averett's motion to
compel arbitration.
Conclusion
Based on the foregoing, the trial court erroneously
granted Warren Averett's motion to compel arbitration.
Accordingly, we reverse the order compelling arbitration and
remand the case to the trial court for proceedings consistent
with this opinion.
REVERSED AND REMANDED.
Parker, C.J., and Bolin, Sellers, and Mitchell, JJ.,
concur.
Stewart, J., recuses herself.
21 | October 23, 2020 |
e7fb2b17-3be3-4981-8a8d-f1adebc68871 | Ex parte Carlotta S. Kutschenreuter. | N/A | 1190795 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190795
Ex parte Carlotta S. Kutschenreuter. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Carlotta S. Kutschenreuter v. State of Alabama)
(Etowah Circuit Court: CC-10-1304.60; Criminal Appeals : CR-18-0982).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and Sellers, JJ.,
concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
6810e358-80c0-4e88-9947-38c53b28c8e0 | Ex parte Olajuwon Delshaun White. | N/A | 1191015 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
October 23, 2020
1191015
Ex parte Olajuwon Delshaun White. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Olajuwon Delshaun White v. State of Alabama)
(Morgan Circuit Court: CC-17-752; Criminal Appeals :
CR-18-1222).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 23, 2020:
Writ Denied. No Opinion. Bolin, J. - Shaw, Wise, Bryan, Mendheim, Stewart, and
Mitchell, JJ., concur. Parker, C.J., and Sellers, J., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 23rd day of October, 2020.
Clerk, Supreme Court of Alabama | October 23, 2020 |
2647a74d-81c9-49d8-8212-047b2762e69e | Ex parte M.N. | N/A | 1190738 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190738
Ex parte M.N. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: M.N. v. Mobile County Department of Human Resources) (Mobile Juvenile Court:
JU-18-488.02; Civil Appeals : 2190131).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan, and Mendheim,
JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
5c2768db-3fdf-49ef-8df0-326d815e817d | Ex parte Jibrail Hutchinson. | N/A | 1200039 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 13, 2020
1200039
Ex parte Jibrail Hutchinson. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Jibrail Hutchinson v. State of
Alabama) (Jefferson Circuit Court: CC-16-2485.60; Criminal Appeals :
CR-19-0348).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 13, 2020:
Writ Denied. No Opinion. Mitchell, J. -
Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 13th day of Novem ber, 2020.
Clerk, Supreme Court of Alabama | November 13, 2020 |
dfc0c010-0e19-44f3-99b3-d76d913abeab | Eric Cisney and Kerri Cisney v. Jerry Blevins | N/A | 1190601 | Alabama | Alabama Supreme Court | Rel: October 16, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190601
Eric Cisney and Kerri Cisney v. Jerry Blevins (Appeal from
Montgomery Circuit Court: CV-19-9000257).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ.,
concur. | October 16, 2020 |
859dd853-edc4-428b-9b4c-518442e0ee03 | Sharon G. Callan and William J. Callan v. John W. Bargainer, DMD, and Drs. Fry & Bargainer, a partnership | N/A | 1181049 | Alabama | Alabama Supreme Court | Rel: October 23, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1181049
Sharon G. Callan and William J. Callan v. John W. Bargainer,
DMD, and Drs. Fry & Bargainer, a partnership (Appeal from
Montgomery Circuit Court: CV-16-901492).
WISE, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Sellers, Mendheim, Stewart, and
Mitchell, JJ., concur.
Bolin, J., dissents. | October 23, 2020 |
a43cc064-a162-4f53-bfcc-b6279add7159 | Magers v. Alabama Women's Center Reproductive Alternatives, LLC | N/A | 1190010 | Alabama | Alabama Supreme Court | REL: October 30, 2020
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190010
____________________
Ryan Magers, individually and on behalf of Baby Roe, a
deceased unborn child
v.
Alabama Women's Center Reproductive Alternatives, LLC
Appeal from Madison Circuit Court
(CV-19-900259)
PER CURIAM.
Ryan Magers appeals the Madison Circuit Court's dismissal
of his wrongful-death claim against Alabama Women's Center
Reproductive Alternatives, LLC ("the AWC"), for its role in
1190010
the abortion of Baby Roe. Because Magers's brief fails to
comply with Rule 28, Ala. R. App. P., we must affirm.
Facts and Procedural History
On February 10, 2017, Baby Roe was aborted at
approximately six weeks of gestation after the AWC provided
Baby Roe's mother with an abortifacient pill to end her
pregnancy. Magers, Baby Roe's father, then petitioned the
Madison Probate Court to be appointed personal representative
of Baby Roe's estate. The probate court granted Magers's
petition, and, on February 6, 2019, Magers filed suit in the
Madison
Circuit
Court
asserting
a
wrongful-death claim
against
the AWC, individually and on behalf of Baby Roe. The AWC
moved to dismiss Magers's complaint, and its motion was
granted. Magers appealed.
Analysis
Magers has failed to comply with Rule 28, leaving this
Court with nothing to review on appeal. Rule 28 requires the
argument section of an appellant's initial brief to set out
"the contentions of the appellant/petitioner with respect to
the issues presented, and the reasons therefor, with citations
to the cases, statutes, other authorities, and parts of the
2
1190010
record relied on." Rule 28(a)(10), Ala. R. App. P. Magers's
brief falls far short of this requirement.
Magers's argument section, in its entirety, is as
follows:
"Under Alabama law, an unborn child is a legal
person and the estate of a child who was killed by
abortion in utero can sue the abortion providers (et
al.) for wrongful death. Ala. Act [No.] 2017-188 (to
be codified in Ala. Const. 1901);[1] § 1, Ala. Const.
1901; § 6-5-391, Ala. Code 1975; § 13A-6-1(a)(3),
Ala. Code 1975; § 13A-5-40(10), Ala. Code 1975; §
13A-5-49(9), Ala. Code 1975; § 26-15-3.2, Ala. Code
1975; § 26-22-1(a), Ala. Code 1975; Ex parte
Phillips, No. 1160403 (Ala. Oct. 19, 2018) [287 So.
3d 1174 (Ala. 2018)], slip op. at 41, 70-71;
Hamilton v. Scott, No. 1150377 (Ala. Mar. 9,
2018)[278 So. 3d 1180 (Ala. 2018)] (Hamilton II),
slip op. at 11; Stinnett v. Kennedy, 232 So. 3d 202,
203, 215 (Ala. 2016); Ex parte Hicks, 153 So. 3d 53,
66-72, 84 (Ala. 2014); Ex parte Ankrom, 152 So. 3d
397, 411, 421, 429, 439 (Ala. 2013); Hamilton v.
Scott, 97 So. 3d 728, 734 n.4, 737, 739 (Ala. 2012)
(Hamilton I); Mack v. Carmack, 79 So. 3d 597, 599,
600, 607, 611 (Ala. 2011) (per curiam); Zaide v.
Koch, 952 So. 2d 1072, 1082 (Ala. 2006); Gentry v.
Gilmore, 613 So. 2d 1241, 1249 (Ala. 1993) (Maddox,
J., dissenting); Ankrom v. State, 152 So. 3d 373,
382 (Ala. Crim. App. 2011). Therefore, the trial
court should be reversed."
Magers's brief at pp. 7-8. Magers's argument thus consists of
one conclusory statement followed by a string citation.
1Amendment No. 930, proposed by Act No. 2017-188, was
proclaimed ratified December 3, 2018, and is now included as
§ 36.06, Ala. Const. 1901 (Off. Recomp.).
3
1190010
Magers does not discuss how the cited authority is relevant to
his argument. See Spradlin v. Spradlin, 601 So. 2d 76, 78-79
(Ala. 1992) (holding that a citation to a single case with no
argument about how that case supports the appellant's
contention failed to satisfy Rule 28). Nor does Magers cite
to the record or apply the cited authorities to facts in the
record that might support his wrongful-death claim. These
omissions are fatal to his appeal. See Alonso v. State, 228
So. 3d 1093, 1108 (Ala. Crim. App. 2016) (explaining that an
appellant must provide an argument and analysis supported with
authority and citations to the record and show how those
authorities support the existence of a reversible error); Hart
v. State, 852 So. 2d 839, 848 (Ala. Crim. App. 2002) ("By
failing to include any citation to the record on this issue,
[the appellant] has failed to comply with Rule 28(a)(10), Ala.
R. App. P., and has waived this claim for purposes of
appellate review.").
Rule 28(a)(10) is in place for at least two reasons.
First, it enables the appellate court to focus on determining
whether the arguments presented by the appellant have merit.
It is not the responsibility of this Court to construct
4
1190010
arguments for a party or to fill in gaps from string citations
offered in lieu of arguments. Rather, it is our duty to
decide whether the arguments presented have merit. See Wagner
v. State, 197 So. 3d 517, 520 n.3 (Ala. 2015) ("It is well
settled that it is not the function of this Court to create
legal arguments for the parties before us."). It is the
responsibility of the appellant to make arguments accompanied
by analysis, supported by relevant authority and citations to
the record, and to show how that authority supports the
finding of reversible error. A conclusory statement followed
by a string citation does not suffice.2
Second, delineated arguments advise the appellee of the
issues that must be addressed in response. Ex parte Borden,
2Alabama's
requirement
that
an
appellant
provide
more
than
a bald citation to authority in support of an argument is not
unique. See Wisconsin v. Freeman (No. 2019AP205, Sept. 1,
2020)(pending final publication decision, see Wis. State Ann.
§ 809.23) __ N.W.2d __ (Wis. App. Ct. 2020) (refusing to
address legal contention based upon a conclusory statement
followed by a string citation of cases); Beaman v.
Freesmeyer,[No. 4-16-0527, Dec. 17, 2019] __ N.E.3d __, __
(Ill. App. Ct. 2019) (holding that the appellant forfeited his
claim when he "simply provided string cites and left the
burden on this court to research those cases and to surmise
his position"); State v. Thomas, 961 P.2d 299, 304 (Utah 1998)
(holding that, when the overall analysis of an issue is so
lacking as to shift the burden of research and argument to the
reviewing court, the issue is inadequately briefed for
review).
5
1190010
60 So. 3d 940, 943 (Ala. 2007). If an argument is presented
without reasoned analysis, specific legal authority, and
adequate facts from the record to support the appellant's
contention that the trial court's ruling was in error, it is
difficult, if not impossible, for the appellee to adequately
respond. And it creates an unfair advantage for the appellant
-- because he or she can make arguments for the first time in
a reply brief, leaving the appellee without an opportunity to
counter those arguments absent permission from this Court.
For these reasons, even though the reply brief Magers filed
contained some reasoned arguments and analysis of pertinent
caselaw, it was insufficient to cure his initial failure to
comply with Rule 28. See United States v. Leffler, 942 F.3d
1192, 1197-98 (10th Cir. 2019) (explaining that allowing an
appellant to raise an argument for the first time in a reply
brief would be manifestly unfair to an appellee that has no
opportunity for a written response); Meigs v. Estate of
Mobley, 134 So. 3d 878, 889 n.6 (Ala. Civ. App. 2013)
(explaining that Rule 28 "requires compliance in an
appellant's initial brief" (emphasis added)).
6
1190010
Conclusion
Magers's initial brief fails to comply with Rule 28,
leaving this Court with nothing to review. We therefore
affirm the judgment of the circuit court.
AFFIRMED.
Bryan and Stewart, JJ., concur.
Parker, C.J., and Bolin, Wise, and Mitchell, JJ., concur
specially.
Shaw, Sellers, and Mendheim, JJ., concur in the result.
7
1190010
MITCHELL, Justice (concurring specially).
The judgment of the Madison Circuit Court must be
affirmed because Ryan Magers failed to comply with Rule 28,
Ala. R. App. P., which is necessary to properly bring an
appeal before our Court. I write separately, however, to
state my view that Roe v. Wade, 410 U.S. 113 (1973), and
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992), are due to be overruled by the United States
Supreme Court.
Much has been written about the deficiencies of Roe and
Casey.3 I won't recite all of those arguments here. But
because abortion is a subject that does not frequently come
before our Court, I take this opportunity to point out what I
consider to be several serious problems with those decisions.
3Even judges and legal scholars who have supported
abortion rights have been critical of Roe's reasoning and
analysis. See, e.g., Ruth Bader Ginsburg, Some Thoughts on
Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L.
Rev. 375, 376, 382 (1985) (noting that the United States
Supreme Court "ventured too far" and "went astray" in Roe);
Laurence H. Tribe, Foreword: Toward a Model of Roles in the
Due Process of Life and Law, 87 Harv. L. Rev. 1, 7 (1973)
("One of the most curious things about Roe is that, behind its
own verbal smokescreen, the substantive judgment on which it
rests is nowhere to be found.").
8
1190010
First, the central holding of Roe -- that there is a
constitutional right to have an abortion based on a judicially
created trimester framework -- has no grounding in the text of
the United States Constitution. See, e.g., June Med. Servs.,
L.L.C. v. Russo, __ U.S. __, __, 140 S. Ct. 2103, 2150 (2020)
(Thomas, J., dissenting) ("Roe is grievously wrong for many
reasons, but the most fundamental is that its core holding –-
that the Constitution protects a woman's right to abort her
unborn child –- finds no support in the text of the Fourteenth
Amendment."); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S.
502, 520 (1990) (Scalia, J., concurring) ("[T]he Constitution
contains no right to abortion. It is not to be found in the
longstanding traditions of our society, nor can it be
logically deduced from the text of the Constitution –- not,
that is, without volunteering a judicial answer to the
nonjusticiable question of when human life begins."). That
holding was pulled out of thin air by using a novel theory put
forward only a few years earlier in Griswold v. Connecticut,
381 U.S. 479 (1965), in which the United States Supreme Court
identified a constitutional right of privacy based on
"penumbras" extending from
the
"emanations"
of
five
amendments
9
1190010
in the Bill of Rights. Unfortunately, the Court compounded
its error in Casey, when it affirmed the holding of Roe and
invented a new analytical framework based on a judicially
created "undue burden" standard.4 505 U.S. at 874. Casey,
which is simply a reimagining of Roe, fares no better when
held up to the text of the Constitution.
Second, the right to have an abortion has no foundation
"so rooted in the traditions and conscience of our people as
to be ranked as fundamental." Snyder v. Massachusetts, 291
U.S. 97, 105 (1934). The English common law did not recognize
a right to have an abortion. See 1 William Blackstone,
Commentaries on the Laws of England *125-26. American
colonists brought that common-law view with them when they
crossed the Atlantic and established their own governments.
See 5 St. George Tucker, Blackstone's Commentaries: With Notes
of Reference to the Constitution and Laws of the Federal
Government of the United States and of the Commonwealth of
4That undue-burden standard is itself an "aberration of
constitutional law," West Alabama Women's Ctr. v. Williamson,
900 F.3d 1310, 1314 (11th Cir. 2018), and is rife with
problems when applied. See Harris v. West Alabama Women's
Ctr., 588 U.S. ___, ___, 139 S. Ct. 2606, 2607 (2019) (Thomas,
J., concurring) (explaining that the Court's "abortion
jurisprudence has spiraled out of control").
10
1190010
Virginia 198 (1803). States soon adopted statutes restricting
abortion, beginning with Connecticut in 1821. Conn. Stat.,
Tit. 22, §§ 14, 16 (1821). By the time the Fourteenth
Amendment was adopted in 1868, at least 36 states and
territories had laws limiting abortion. Roe, 410 U.S. at 174
n.1 (Rehnquist, J., dissenting) (listing abortion-limitation
laws in existence by 1868).
To conjure the right to have an abortion from the Due
Process Clause, the United States Supreme Court "had to find
within the Scope of the Fourteenth Amendment a right that was
apparently completely unknown to the drafters of the
Amendment." Id. at 174 (Rehnquist, J., dissenting). And
while we are bound by text rather than drafters' intentions,
no reasonable person in 1868 would have equated "liberty" --
let alone "due process of law" -- with "right to have an
abortion." See Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts § 7, at 78 (Thomson/West
2012) ("Words must be given the meaning they had when the text
was adopted."). Yet that is exactly what the United States
Supreme Court did.
11
1190010
Finally, Roe and Casey hamstring states as they seek to
prevent human tragedy and suffering. Take, for example, West
Alabama Women's Center v. Williamson, 900 F.3d 1310 (11th Cir.
2018), in which a constitutional challenge was
brought against
an Alabama law regulating a particularly gruesome type of
abortion. Id. at 1314. The United States Court of Appeals
for the Eleventh Circuit described the procedure -- referred
to
clinically
as
dilation
and
evacuation
and
more
descriptively as dismemberment abortion -- in excruciating
detail:
"In this type of abortion the unborn child dies
the way anyone else would if dismembered alive. It
bleeds to death as it is torn limb from limb. It
can, however, survive for a time while its limbs are
being torn off. The plaintiff practitioner [in an
earlier] case testified that using ultrasound he had
observed a heartbeat even with extensive parts of
the fetus removed. But the heartbeat cannot last.
At the end of the abortion –- after the larger
pieces of the unborn child have been torn with
forceps and the remaining pieces sucked out with a
vacuum –- the abortionist is left with a tray full
of pieces."
Id. at 1319-20 (citations and quotation marks omitted). At
least two of the three judges who decided Williamson did not
like having to invalidate a law restricting such a brutal
12
1190010
method of abortion.5 Id. at 1314, 1329-30. Yet they were
duty-bound to follow Roe and Casey, leading the court to
strike down the law. Id. at 1330. Thus, as demonstrated in
Williamson, states remain severely constrained in their
ability to account for the unborn by enacting and enforcing
laws that protect them in the womb, even in the face of a
procedure as horrific as dismemberment abortion.
In my view, the doctrine of stare decisis creates no
barrier to overruling Roe and Casey. As has been observed:
"Stare decisis is a cornerstone of our legal system, but it
5They are far from outliers in their discontent about the
United States Supreme Court's abortion jurisprudence. See,
e.g., McCorvey v. Hill, 385 F.3d 846, 853 (5th Cir. 2004)
(Jones, J.,
concurring) ("It takes no expert prognosticator to
know that research on women's mental and physical health
following abortion will yield an eventual medical consensus,
and neonatal science will push the frontiers of fetal
'viability' ever closer to the date of conception. One may
fervently hope that the [United States Supreme] Court will
someday acknowledge such developments and re-evaluate Roe and
Casey
accordingly.
That
the
Court's
constitutional
decisionmaking leaves our nation in a position of willful
blindness
to
evolving
knowledge
should
trouble
any
dispassionate observer not only about the abortion decisions,
but about a number of other areas in which the Court
unhesitatingly steps into the realm of social policy under the
guise of constitutional adjudication."); Edwards v. Beck, 786
F.3d 1113, 1119 (8th Cir. 2015) ("Courts are ill-suited to
second-guess
these
legislative judgments [on
abortion]
....
To
substitute its own preference to that of the legislature in
this area is not the proper role of a court." (citation
omitted)).
13
1190010
has less power in constitutional cases, where, save for
constitutional amendments, this Court is the only body able to
make needed changes." Webster v. Reproductive Health Servs.,
492 U.S. 490, 518 (1989); see also Bryan A. Garner et al., The
Law of Judicial Precedent, § 40, at 352 (Thomson/Reuters 2016)
("The doctrine of stare decisis applies less rigidly in
constitutional cases ...."); Amy Coney Barrett, Statutory
Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev.
317, 321 (2005). Roe and Casey are untethered from the text
and history of the Constitution and, for that reason, have
never been accepted by a critical mass of the American people.
Further, those precedents require judges -- many of whom are
unelected -- to make policy decisions that lie outside the
judicial power. All of these features make Roe and Casey ripe
for reversal. See Scalia & Garner, Reading Law at 411-12.
The time has come for the United States Supreme Court to
overrule Roe and Casey. I respectfully urge the Court to do
so at the earliest opportunity. I also encourage other courts
across the country to raise their judicial voices, as
appropriate, by
pointing
out
the
constitutional infirmities of
14
1190010
Roe and Casey and asking the Court to overrule those highly
regrettable decisions.
Parker, C.J., and Bolin and Wise, JJ., concur.
15 | October 30, 2020 |
c208fa90-9db1-4fe7-9012-299260b16b35 | Ex parte Dorothy Williams. | N/A | 1190829 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190829
Ex parte Dorothy Williams. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: Dorothy Williams v. Aaron Keith Massey) (Shelby Circuit Court:
DR-17-900766; Civil Appeals : 2180593).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and Sellers, JJ.,
concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
2471a089-68c9-435c-9f32-b40148a27b5a | Blankenship et al. v. City of Irondale | N/A | 1180777, 1180752 | Alabama | Alabama Supreme Court | REL: October 23, 2020
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1180752
____________________
Jefferson County Board of Education
v.
City of Irondale
____________________
1180777
____________________
Martin Blankenship et al.
v.
City of Irondale
Appeals from Jefferson Circuit Court
(CV-18-904402)
1180752, 1180777
MITCHELL, Justice.
The Jefferson County Board of Education ("the Board") and
several of its employees seek to avoid the application of an
occupational tax imposed by the City of Irondale ("City").
The Board and its employees argue that public-school employees
are exempt from the occupational tax because, they say, they
provide an essential government service. But the importance
of a state employee's role, even a role as important as a
public-school employee, does not remove that employee's
obligation to pay a duly owed occupational tax. Other
arguments made by the Board and its employees are equally
unavailing. We therefore affirm the trial court's judgment in
favor of the City.
Facts and Procedural History
In 2018, the City enacted municipal ordinance no. 2018-10
("the ordinance"), which imposed a 1% occupational tax on "any
person ... [who] engage[s] in or follow[s] any trade,
occupation or profession ... within the city ... without
paying license fees for the privilege o[f] engaging in or
following such trade, occupation or profession." Several
months after the ordinance went into effect, the Board, which
2
1180752, 1180777
provides K-12 public-education services in four schools
located in Irondale, sued the City in the Jefferson Circuit
Court seeking injunctive relief and a judgment declaring that
the City lacked authority to impose an occupational tax on the
Board's employees who provide services in Irondale.
After the Board filed its complaint, eight Board
employees who render services in Irondale filed a motion to
intervene
as
additional
plaintiffs
("the
intervening
employees"). The intervening employees are all teachers or
support workers employed by the Board who provide services for
students in schools located in Irondale. The trial court
granted the motion to intervene.
The Board, the intervening employees, and the City each
filed a motion for summary judgment. The trial court entered
a summary judgment for the City and denied the summary-
judgment motions of the other parties. The Board and the
intervening employees then appealed.
Standard of Review
The standard of review applicable to a summary judgment
is the same as the standard the trial court applied when
granting the summary-judgment motion. McClendon v. Mountain
3
1180752, 1180777
Top Indoor Flea Mkt., Inc., 601 So. 2d 957, 958 (Ala. 1992).
That is, we must determine whether there was a genuine issue
of material fact and, if not, whether the moving party is
entitled to a judgment as a matter of law. Id. at 958. If
the only question presented is a question of law, such as the
interpretation or validity of an ordinance, the summary
judgment is reviewed de novo. See Alabama Republican Party v.
McGinley, 893 So. 2d 337, 342 (Ala. 2004). An ordinance
enacted by a local governing body "is presumed reasonable and
valid, and ... the burden is on the one challenging the
ordinance to clearly show its invalidity." Jefferson Cnty. v.
Richards, 805 So. 2d 690, 706 (Ala. 2001).
Analysis
This Court must determine whether the ordinance may
lawfully be applied to Board employees who provide services at
schools located in Irondale. The Board and the intervening
employees argue that the ordinance creates an unlawful burden
on or interferes with essential government services because,
they say, (1) Board employees perform essential functions for
the operation of public schools in the State; (2) Board
employees have State-agent immunity from occupational-tax
4
1180752, 1180777
liability to Irondale; and (3) the ordinance creates an
arbitrary pay disparity among Board employees based on the
location of where they work within Jefferson County. These
arguments are unconvincing.
First, the Board and the intervening employees argue that
Board employees are exempt from the occupational tax because,
they say, the ordinance essentially conditions the provision
of public education on the payment of an occupational tax by
Board employees. A similar argument was made in McPheeter v.
City of Auburn, 288 Ala. 286, 259 So. 2d 833 (1972), in which
employees of Auburn University contested a 1%
occupational tax
imposed by the City of Auburn. The employees of Auburn
University asserted that they were shielded from paying the
occupational tax because, they said, they performed an
essential government function of providing higher education
for the State of Alabama. But this Court disagreed,
observing:
"Imposing payment of the tax or license fee on
the individual so engaged and employed, place[d] no
tax burden on Auburn University, the State, or the
federal government as such. The tax [was] not levied
on the employer-employee relationship, but on the
taxable event of rendering services or following a
trade, business, or profession. The ordinance
place[d] the tax on an employee's privilege of
5
1180752, 1180777
working in the city limits of Auburn regardless of
the person's employer or the place of residence of
the employee."
288 Ala. at 291, 259 So. 2d at 836. Thus, this Court held
that "if there is no principle of law clothing government
employees with immunity, because they are such, we can
conceive of no reasonable cause why they should be excluded
from a tax that others bear." 288 Ala. at 290, 259 So. 2d at
835.
Although the government employees in McPheeter provided
services in an Alabama public university rather than an
Alabama public K-12 school, the holding of McPheeter
nonetheless applies here. As in McPheeter, the occupational
tax imposed by the ordinance on Board employees providing
services in Irondale places no tax burden on the Board or the
State, nor does it interfere with the essential state function
of providing K-12 education. The ordinance also applies to
all employees working in the city limits of Irondale,
regardless of the person's employer or place of residence.
And the Irondale occupational tax does not create a new or
additional requirement for gaining or maintaining employment
by the Board. Thus, the nature of the services performed by
6
1180752, 1180777
Board employees is not an adequate basis for excluding them
from having to pay the occupational tax.
Next, the Board and the intervening employees argue that
Board employees are shielded by State-agent immunity from
complying with the ordinance. But State-agent immunity does
not apply here. The ordinance does not affect any government
function of the Board, nor is payment of the occupational tax
related to a Board employee's government responsibilities.
See Estes v. City of Gadsden, 266 Ala. 166, 172-73, 94 So. 2d
744, 750 (1957) (upholding the City of Gadsden's occupational
tax covering all types of work as valid so long as the
imposition of the tax is not capricious or discriminatory).
And if the Board is unwilling to withhold the occupational tax
for its employees, the ordinance provides a procedure for
employees to independently comply with the requirements of
the
ordinance. Therefore, State-agent immunity does not shield
Board employees from the ordinance's requirements.
Finally, the Board and the intervening employees argue
that the ordinance creates an unlawful pay disparity among
Board employees. See § 16-13-231.1(b)(2), Ala. Code 1975
("[E]ach local board of education shall adopt a salary
7
1180752, 1180777
schedule that shall pay each teacher employed at least 100
percent of the appropriate cell of the State Minimum Salary as
determined by the Legislature."). The Board claims that a
difference in net wages occurs based on where Board employees
provide services within Jefferson County –– and that this
disparity violates the statutorily mandated salary schedule
and fails to ensure equitable pay for its employees. But
nothing in the ordinance prohibits the Board from paying
employees gross wages exactly as required under the mandated
salary schedule. Nor does § 16-13-231.1 state that Board
employees are otherwise exempt from local, state, or federal
taxes. Thus, any difference in net wages for Board employees
does not affect the validity of the ordinance or its
application to Board employees.
Conclusion
The Board employees who provide services in Irondale are
not exempt from the City's occupational tax. The Board and
the intervening employees' argument that essential state
employees are exempt from an occupational tax tracks the
argument made in McPheeter. We rejected that argument in
McPheeter, and we do so again here. The other arguments made
8
1180752, 1180777
by the Board and the intervening employees are likewise
without merit.1 Therefore, we hold that the ordinance applies
to Board employees.
1180752 –– AFFIRMED.
1180777 –- AFFIRMED.
Parker, C.J., concurs.
Shaw, Sellers, and Mendheim, JJ., concur in the result.
1The City moved to strike certain material below before
the trial court ruled on its motion for summary judgment. In
entering a summary judgment in favor of the City, the trial
court did not rule on the City's motion to strike, other than
to say that the motion had become moot. The intervening
employees now argue that it is unclear whether the trial court
considered the material that the City sought to strike. We
need not consider this argument in detail. Because the trial
court did not affirmatively strike the material, that material
is properly before us and, in any event, would not create a
genuine issue of material fact under the summary-judgment
standard, such that reversal would be required.
9 | October 23, 2020 |
f9c5135d-341a-4e5a-b7c1-38d96b391b9b | Ex parte Thomas Hubbard. | N/A | 1190396 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
October 16, 2020
1190396
Ex parte Thomas Hubbard. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Thomas Hubbard v. State of Alabama) (Colbert Circuit Court:
CC-16-341; Criminal Appeals :
CR-17-1122).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Shaw, J. - Parker, C.J., and Bryan, Mendheim, and Mitchell,
JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
79bd8278-0946-4208-b429-687396732709 | Ex parte Sandra Shinaberry. | N/A | 1180935 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
October 23, 2020
1180935
Ex parte Sandra Shinaberry. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Sandra Shinaberry v. Mark Wilson, as guardian ad litem
for G.G., H.G., N.P., and S.P., minors) (Shelby Circuit Court: CV-14-900876; Civil Appeals :
2180359).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on October 23, 2020:
Application Overruled. No Opinion. Bolin, J. - Parker, C.J., and Shaw, Wise, Bryan, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on July 31, 2020:
Reversed And Remanded. Bolin, J. - Parker, C.J., and Shaw, Wise, Bryan, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 23rd day of October, 2020.
Clerk, Supreme Court of Alabama | October 23, 2020 |
1b705c36-d7ab-4342-a34e-b6776970284d | Shera Minor and Derrick Minor v. John Brad Owen and Southeastern Biomedical Services, LLC | N/A | 1190669 | Alabama | Alabama Supreme Court | Rel: October 16, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190669
Shera Minor and Derrick Minor v. John Brad Owen and
Southeastern Biomedical Services, LLC (Appeal from Chilton
Circuit Court: CV-17-900230).
BOLIN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Wise, Sellers, and Stewart, JJ.,
concur. | October 16, 2020 |
5e41293f-c196-421c-8b0e-bc2955408de4 | Ex parte T.Y. | N/A | 1190921 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190921
Ex parte T.Y. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: T.Y. v. R.M.) (Lee Juvenile Court: JU-17-242.03; Civil Appeals : 2190015).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and Sellers, JJ.,
concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
938e7f13-a375-4037-a433-f80bb191dd85 | Ex parte Dathony Lee Brown. | N/A | 1190970 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
October 16, 2020
1190970
Ex parte Dathony Lee Brown. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APp Ea LS (In re: Dathony Lee Brown v. State of Alabama) (Enterprise Circuit
Court: CC-18-255.70; Criminal Appeals :
CR-18-1209).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Bryan, J. - Parker, C.J., and Shaw, Mendheim, and Mitchell,
JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
fa28cbe1-1017-40db-9a17-f6db0d8f19ec | Ex parte L.B. | N/A | 1190830 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190830
Ex parte L.B. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: L.B. v. Etowah County Department of Human Resources) (Etowah Juvenile Court:
JU-15-162.03; Civil Appeals : 2180921).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Mendheim, J. - Parker, C.J., and Shaw, Bryan, and Mitchell,
JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
789462e2-70e2-4a54-8903-ad854bd39b9e | Shari M. Parker and Frank Parker v. Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust, as Trustee for Normandy Mortgage Loan Trust, Series 2016-1 | N/A | 1190581 | Alabama | Alabama Supreme Court | REL: 11/13/2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190581
Shari M. Parker and Frank Parker v. Wilmington Savings Fund Society,
FSB, d/b/a Christiana Trust, as Trustee for Normandy Mortgage Loan
Trust, Series 2016-1 (Appeal from Mobile Circuit Court: CV-17-901135).
PARKER, Chief Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Bolin, Wise, Sellers, and Stewart, JJ., concur. | November 13, 2020 |
ff61d308-c482-4608-9db5-569cd49ca037 | Ex parte M.B. | N/A | 1190720 | Alabama | Alabama Supreme Court | Rel: December 4, 2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190720
____________________
Ex parte M.B.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: M.B.
v.
J.S. and Ja.S.)
(Houston Juvenile Court, JU-15-504.02;
Court of Civil Appeals, 2181008)
1190720
SHAW, Justice.1
WRIT QUASHED. NO OPINION.
Parker, C.J., and Bolin, Wise, and Stewart, JJ., concur.
Bryan, Sellers, Mendheim, and Mitchell, JJ., dissent.
1This case was originally assigned to another Justice on this Court;
it was reassigned to Justice Shaw on September 28, 2020.
2
1190720
SELLERS, Justice (dissenting).
The Houston Juvenile Court entered a judgment terminating the
parental rights of M.B. ("the father") to his son B.B. ("the child"), who has
been in the custody of J.S. ("the maternal grandfather") and Ja.S. ("the
maternal grandmother") (hereinafter referred to collectively as "the
maternal grandparents"), who want to adopt the child. In a plurality
opinion, the Court of Civil Appeals affirmed that judgment of the juvenile
court. M.B. v. J.S., [Ms. 2181008, March 27, 2020] ___ So. 3d ___ (Ala.
Civ. App. 2020). The father petitioned for, and this Court granted,
certiorari review. The majority now quashes the writ without an opinion;
I dissent as to that decision.
Facts
The father and B.C. ("the mother") were unmarried when the child
was born in April 2015; their relationship ended in January 2016. The
child has been in the custody of the maternal grandparents since
November 2015, at which time the juvenile court awarded them pendente
lite custody and awarded the mother and the father visitation.
3
1190720
On July 14, 2016, the juvenile court, following a hearing, entered an
order finding the child dependent and awarding legal custody of the child
to the maternal grandparents. It is undisputed that neither the mother
nor the father received notice of the dependency hearing; thus, neither
was present. In June 2018, the maternal grandparents obtained a
judgment requiring the father to pay child support.
In January 2019, the maternal grandparents filed a petition seeking
to terminate the parental rights of the father to the child.2 The maternal
grandparents alleged in their petition that the father had abandoned the
child, had failed to provide for the material needs of the child, had failed
to maintain consistent contact with the child, and had failed to adjust his
circumstances to meet the needs of the child. The maternal grandparents
further indicated that they desired to adopt the child.
On June 14, 2019, the juvenile court held a hearing at which only
the father and the maternal grandmother testified. The father testified
2The maternal grandparents also sought to terminate the parental
rights of the mother. The juvenile court's judgment reflects that the
mother stipulated to the termination of her parental rights to the child.
The mother did not appeal from that judgment.
4
1190720
that, since the maternal grandparents were awarded pendente lite
custody of the child in November 2015, they had thwarted his efforts to
visit the child. The father further testified that it was his understanding
from the pendente lite order that he would be allowed to visit the child a
minimum of four hours a week but that he had been limited to only one
hour a week on Tuesdays. The father admitted that there were times
when he had not shown up for scheduled visits and that there were other
times when he had shown up late. The father stated that three months
was the longest he had gone without seeing the child and that he did not
see the child during that time because he did not have a job, a vehicle, or
a cellular telephone to contact the maternal grandparents to arrange
visitation. The father explained that the child, who was four years old at
the time of the hearing, was "pretty excited" to see him during visits, that
their visits "usually go pretty good," and that they have a good time
during those visits.
The father indicated that he had been employed as a "concrete
finisher" for approximately four months and that he sometimes worked
until 6:30 p.m. or 7:00 p.m. He stated that, because of his work schedule,
5
1190720
he had occasionally sent the maternal grandmother text messages
requesting to see the child on weekends but that she never responded to
those messages. The father stated that, in April 2018, the maternal
grandparents told him that he did not deserve the child, that he would
never get the child back, and that he needed to leave them alone. He
further stated that the maternal grandparents had denied his request to
allow the child to visit with him and his family during the Christmas
holidays in 2018. The father testified that the child had recently started
referring to the maternal grandmother and the maternal grandfather as
"mom" and "dad" and calling the father by his first name; he stated that
this made him "feel terrible." The father stated that he sent the maternal
grandmother a text message regarding his concerns over those things and
that she told him to stop sending her text messages or she would "call the
police."
The father stated that, since August 2017, he had been living with
his girlfriend and her seven-year-old child in a rented house that, he said,
was clean, well stocked with necessities, and an appropriate place for the
child to visit. He further indicated that he had a vehicle but not a valid
6
1190720
driver's license; he explained that he usually gets others, including his
girlfriend, to drive his vehicle and to transport him to scheduled
visitations. The father testified that, although he had not paid any child
support in the past, he was now willing and able to do so. He further
stated that he had sent the maternal grandmother a text message
inquiring how to pay child support but that she did not respond. The
father testified that he had no pending criminal charges against him but
that he had been arrested once for possession of illegal drugs in 2015,
which was before the maternal grandparents were involved with the
custody of the child. He stated that he no longer used drugs. Finally, the
father indicated that he loved his child, that he wanted to continue having
a relationship with the child, that he wanted to see the child more often,
and that he would visit with the child every day if permitted.
The maternal grandmother testified about the father's inconsistent
visits with the child, stating that, since the maternal grandparents were
awarded custody of the child in 2015, the father had missed approximately
20 scheduled visits and that, of those he had not missed, he had often
shown up late. She testified that transportation had always been an issue
7
1190720
for the father and that he had occasionally either walked or rode a bicycle
to visits. The maternal grandmother further testified that, once the father
learned of the petition to terminate his parental rights, he "ramped" up
his efforts to see the child. According to the maternal grandmother, the
father had at times requested to see the child on weekends; she said that
he never followed up with those requests. The maternal grandmother
admitted that the father had telephoned in attempts to talk to the child
but that he always called after the child had gone to bed. She stated that
she had recently allowed the child to talk to the father over the telephone,
but, because of his age, the child simply did not have much to say.
The maternal grandmother stated that the father constantly sends
her text messages about the child and other random things, and she
admitted that she had told him that she would call the police if he did not
stop sending her so many messages. The maternal grandmother also
admitted that the father had sent her a text message inquiring how to pay
child support, but she did not state whether she responded to him. The
maternal grandmother stated that the only time the father had given the
child a gift was when the child turned two years old.
8
1190720
The maternal grandmother denied that she had instructed the child
to call her and the maternal grandfather "mom" and "dad," explaining
that the child probably learned that in preschool. She further denied that
she had instructed the child to call the father by his first name. The
maternal grandmother testified that the child is on Medicaid, that he has
some speech and behavioral issues requiring therapy twice a week, and
that he was attending preschool. According to the maternal grandmother,
there had been a history of domestic violence between the father and the
mother, but she did not go into any detail. Finally, the maternal
grandmother testified that she and the maternal grandfather intended to
adopt the child, and she felt it would be in the child's best interests if the
father's parental rights were terminated.
After hearing the testimony, the juvenile court entered a judgment
terminating the father's parental rights to the child, stating in its order
that "it would be in the child's best interest ... for the [maternal
grandparents] to provide a stable permanent home for [the] child through
adoption." The juvenile court specifically determined that the father had
failed to adjust his circumstances to meet the needs of the child, that he
9
1190720
had failed to pay child support although he was able to do so, and that he
had failed to maintain consistent contact or communication with the child.
Standard of Review
In reviewing the Court of Civil Appeals' decision on a petition for a
writ of certiorari, this Court applies de novo the standard of review
applicable in the Court of Civil Appeals. Ex parte Wade, 957 So. 2d 477
(Ala. 2006). In this case, the Court of Civil Appeals applied the ore tenus
standard in reviewing the juvenile court's judgment. To terminate
parental rights, a juvenile court not only must find by clear and
convincing evidence that a child is dependent, but also must determine
that an alternative less drastic than termination of parental rights is not
available. Ex parte A.S., 73 So. 3d 1223 (Ala. 2011). When the juvenile
court has not made specific factual findings in support of its judgment
terminating parental rights, an appellate court must presume that the
court made those findings necessary to support its judgment, provided
those findings are supported by the evidence. Id. The party seeking to
terminate a parent's parental rights has the burden of producing clear and
convincing evidence that the parent is not capable of discharging, or is
10
1190720
unwilling to discharge, his or her parental responsibilities and that there
are no viable alternatives to the termination of his or her parental rights.
Id.
Analysis
The juvenile court determined that the child was dependent;
however, it made no express finding on whether it had considered
maintenance of the status quo, i.e., continuing the present custody and
visitation arrangement, a viable and less drastic alternative to
terminating the father's parental rights. See S.N.W. v. M.D.F.H., 127 So.
3d 1225, 1230 (Ala. Civ. App. 2013)(noting that "maintaining the status
quo is a viable option to terminating parental rights when the parent and
the child enjoy a relationship with some beneficial aspects that should be
preserved such that it would be in the child's best interests to continue
that relationship"). Thus, the issue presented is whether the evidence
supports the juvenile court's implicit conclusion that maintaining the
status quo was not a viable and less drastic alternative to terminating the
father's parental rights.
11
1190720
The Court of Civil Appeals determined that maintaining the status
quo would not be a viable alternative to termination of the father's
parental rights because, it reasoned, the child had been in the custody of
the maternal grandparents for more than four years and the evidence
supported a finding that the father had been content to maintain the
status quo indefinitely. In this regard, the Court of Civil Appeals relied
on K.A.P. v. D.P., 11 So. 3d 812 (Ala. Civ. App. 2008). In K.A.P., the
father, who was incarcerated for murder, argued that it would better serve
the interests of the children if the nonrelative legal custodians continued
acting in that capacity without terminating his parental rights. The Court
of Civil Appeals rejected that argument, noting that the father would not
be in a position to reunite with the children until their adolescence. The
court explained that, in order to achieve stability and continuity for the
children, "appellate courts generally hold that maintaining an indefinite
custody arrangement with a third party is not in the best interests of the
child." K.A.P., 11 So. 3d at 820.
Since the release of K.A.P., the Court of Civil Appeals has carved out
an exception to the general rule opposing indefinite custody arrangements
12
1190720
with third parties in situations where the third party is a relative and the
parent and child enjoy a positive relationship. For example, in L.R. v.
C.G., 78 So. 3d 436 (Ala. 2011), the maternal grandparents obtained legal
custody of their three grandchildren through dependency proceedings. The
grandparents then sought to terminate the parental rights of both the
mother and the father, alleging, among other things, that the parents had
not paid child support and had not consistently exercised visitation with
the children. The maternal grandmother also testified that she intended
to adopt the children so that she could provide health insurance for them
in the future. The father had been incarcerated for drug-related charges,
but he was later released. The evidence established, among other things,
that, after his release from prison, the father had improved, and continued
to improve, his circumstances, that he had visited with the children by
telephone and in person as permitted, and that the children desired to
have a relationship with him. Accordingly, the Court of Civil Appeals
reversed the termination-of-parental-rights judgment, concluding that the
juvenile court should have protected the best interests of the children by
13
1190720
maintaining the custody and visitation arrangement, rather than
terminating the father's parental rights.
In L.M.W. v. D.J., 116 So. 3d 220 (Ala. Civ. App. 2012), the Court of
Civil Appeals also concluded that maintaining the status quo was a viable
alternative to terminating the mother's parental rights. In that case, the
paternal grandparents obtained custody of their grandchild through a
dependency proceeding and then moved the juvenile court to terminate
the mother's parental rights. The evidence demonstrated that the mother
had maintained both a residence and employment for over two years at
the time of the trial and that the mother and the child shared a strong
bond. The juvenile court entered a judgment terminating the mother's
parental rights, citing, among other things, the mother's failure to support
the child financially and her lack of consistent visits with the child. The
juvenile court stated that maintaining the status quo would provide little,
if any, benefit to the child, whereas, if the child was adopted, she would
have access to the grandfather's Social Security benefits and health
insurance. The Court of Civil Appeals determined that the juvenile court
14
1190720
had erred in failing to find that it would be in the best interests of the
child to maintain custody in the paternal grandparents subject to the
visitation rights of the mother. The court emphasized that a parent has
a fundamental right to be a parent to his or her child and that a juvenile
court should terminate those rights " 'only in the most egregious of
circumstances.' " 116 So. 3d at 225 (quoting Ex parte Beasley, 564 So. 2d
950, 952 (Ala. 1990)).
Like the grandparents in L.M.W. and L.R., the maternal
grandparents in this case gained custody of the child through a
dependency proceeding and then sought to terminate the father's parental
rights so they could adopt the child. I recognize the presumption of
correctness that attaches to a juvenile court's judgment when that
judgment is based on ore tenus evidence. However, after reviewing the
record, I cannot conclude that the maternal grandparents presented clear
and convincing evidence warranting a termination of the father's parental
rights. The father testified that he is currently drug-free, that he has a
job, that he is willing and able to pay child support, that he shares a
stable home with his girlfriend, that he has visited with the child in
15
1190720
person as permitted, and that he loves the child and desires to maintain
a relationship with the child.
The maternal grandparents offered no testimony to dispute the
father's testimony concerning his current conditions, nor did they offer
any evidence indicating that the father's visits with the child were in any
way detrimental to the child. Although the maternal grandmother
testified that the father had not paid child support and had inconsistently
visited with the child, that evidence alone, under the holdings of L.R. and
L.M.W., does not compel a conclusion that continued visitation between
the father and the child would no longer serve the best interests of the
child. By all accounts, the child is presently in a stable and loving
environment, and, according to the father, he loves the child and wants to
visit with the child as much as possible. There is simply no evidence to
justify denying him his fundamental right to do so simply because the
maternal grandparents have expressed a desire to adopt the child. See
L.R., 78 So. 3d at 444 ("We are especially mindful that the root of the
maternal grandparents' desire for termination in this case appears to be
the desire to be able to adopt the children for purposes of providing
16
1190720
insurance coverage to them in the future. Although we commend the
maternal grandparents for their obvious love for the children and their
careful planning for the future, we cannot agree that the parental rights
of the mother should be terminated for such a reason."). Based on the
reasoning set forth in L.R. and L.M.W., I conclude that the juvenile court
erred in terminating the father's parental rights rather than maintaining
the current custody and visitation arrangement. Accordingly, I would
reverse the judgment of the Court of Civil Appeals affirming the juvenile
court's judgment terminating the father's parental rights.
Bryan and Mendheim, JJ., concur.
17 | December 4, 2020 |
debeb09c-265d-4ca4-b805-e9a0fd8cdc5e | Ex parte Russell Truck Repair. | N/A | 1190681 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190681
Ex parte Russell Truck Repair. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: Russell Truck Repair v. Jeff McClure) (Montgomery Circuit Court:
CV-18-181; Civil Appeals : 2180866).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and Sellers, JJ.,
concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
d528d566-d430-4873-b3f5-872e1b333d01 | Teresa Porter v. The Caring Corporation, Inc., d/b/a Troy Health and Rehabilitation Center; Hugo Marx; and Warren Kelly | N/A | 1190708 | Alabama | Alabama Supreme Court | REL:10/16/2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190708
Teresa Porter v. The Caring Corporation, Inc., d/b/a Troy
Health and Rehabilitation Center; Hugo Marx; and Warren Kelly
(Appeal from Pike Circuit Court: CV-19-102).
PARKER, Chief Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Shaw, Bryan, Mendheim, and Mitchell, JJ., concur. | October 16, 2020 |
ee279dbe-a1d1-4cb0-b3dc-6276f3f02256 | Ex parte Kelly Lavar Rashad Brooks. | N/A | 1190965 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190965
Ex parte Kelly Lavar Rashad Brooks. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Kelly Lavar Rashad Brooks v. State of Alabama)
(Madison Circuit Court: CC-03-3288.60; Criminal Appeals : CR-19-0248).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Mendheim, J. - Parker, C.J., and Shaw, Bryan, and Mitchell,
JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
f341a6da-f5c1-4602-a443-2a5d618a7471 | Ex parte T.B.B. | N/A | 1190828 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190828
Ex parte T.B.B. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: T.B.B. v. Etowah County Department of Human Resources) (Etowah
Juvenile Court: JU-15-162.03; Civil Appeals : 2180913).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Mendheim, J. - Parker, C.J., and Shaw, Bryan, and Mitchell,
JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
074f1342-591d-4943-a11f-d25b277e7e21 | Ex parte Stephanie Lashay Phifer. | N/A | 1190957 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
October 16, 2020
1190957
Ex parte Stephanie Lashay Phifer. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: Stephanie Lashay Phifer v. Marcus Leverne Hill) (Colbert Circuit
Court: DR-15-900074; Civil Appeals :
2190208).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Wise, J. - Parker, C.J., and Bolin, Sellers, and Stewart, JJ.,
concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
eb230136-d3b3-4c87-9fa0-9a2cc65ceca6 | Ex parte M.N. | N/A | 1190739 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190739
Ex parte M.N. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: M.N. v. Mobile County Department of Human Resources) (Mobile Juvenile Court:
JU-18-489.02; Civil Appeals : 2190132).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan, and Mendheim,
JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
8ca6190d-7285-4fc4-88a4-c129c370b9ba | Ex parte Miranda Simpson Yancey and Slocumb Law Firm, LLC. | N/A | 1190871 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190871
Ex parte Miranda Simpson Yancey and Slocumb Law Firm, LLC. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Miranda Simpson Yancey and
Slocumb Law Firm, LLC v. Alfa Mutual Insurance Company; Pamela Bassoe; and Long and
Long, P.C.) (Baldwin Circuit Court: CV-19-900873; Civil Appeals : 2190346).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Sellers, J. - Parker, C.J., and Bolin, Wise, and Stewart, JJ.,
concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
05868d5d-e835-4319-9e65-6165685dfa33 | Gustin v. Vulcan Termite and Pest Control, Inc. | N/A | 1190255 | Alabama | Alabama Supreme Court | REL: October 30, 2020
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190255
____________________
Brenda Gustin and James Gustin
v.
Vulcan Termite and Pest Control, Inc., and Fred Smith
Appeal from Shelby Circuit Court
(CV-15-901042)
PARKER, Chief Justice.
Brenda Gustin and James Gustin appeal from a summary
judgment entered by the Shelby Circuit Court in favor of
Vulcan Termite and Pest Control, Inc. ("Vulcan"), and its
1190255
general manager, Fred Smith. We reverse the judgment in part
and affirm it in part.
I. Facts
In 1998, Vulcan was hired by a construction company to
pretreat a house in Shelby County for termites. The house was
three stories tall, with three concrete decks overlooking a
lake. The decks were supported by 18 wooden columns.
Additionally, to the left of the front door was a porte
cochere -- a covered entrance for vehicles to pass through on
their way up the driveway. The exterior of the house was
entirely covered in faux-stone cladding. The house was
purchased by the Gustins in 2006.
In 2009, the Gustins entered into a contract with Vulcan
for termite-damage inspection, treatment, and repair. The
contract provided that Vulcan would periodically inspect the
house for termites and would "provide remedial service and/or
treatment as deemed necessary by Vulcan so as to control said
termites. Such service and/or treatment will be performed in
accordance with requirements of federal and state regulations
...." The contract also provided that Vulcan would repair any
2
1190255
damage caused by termites but excluded "damage[] resulting
from wood in direct contact with the soil."
In 2015, the Gustins hired a decorating company to
renovate one of the rooms in the house. The company removed
several sections of beadboard from the porte cochere,
revealing extensive termite damage. The Gustins continued to
investigate, removing the faux-stone cladding from the facade
of the house. Under the cladding, the Gustins discovered
active termites and severe damage to all levels and all sides
of the house, as well as damage to a deck. The Gustins hired
an expert, who estimated that it would cost roughly $950,000
to repair the house.
Several days after the damage was discovered, Vulcan's
general manager, Smith, went to the house to inspect. Smith
observed active termites, but Vulcan did not repair the house.
The Gustins sued Vulcan and Smith in the Shelby Circuit
Court, alleging that Vulcan had breached the contract in
multiple respects and that Vulcan had been negligent and
wanton in multiple respects. After extensive discovery,
Vulcan and Smith moved for a summary judgment. The court
granted the motion. The court ruled that some of the Gustins'
3
1190255
claims were barred by a class-action settlement. Further,
regarding the breach-of-contract claims, the court ruled:
"[T]here is no evidence that Vulcan breached the contract by
failing to discover hidden termites. The Gustins presented no
evidence that the annual inspections were not performed in
accordance with the regulations or industry standards." With
respect to the negligence and wantonness claims, the court
ruled: "The Gustin[s'] negligence/recklessness/wantonness
claim[s] ... also revolve around the inspections and
treatment
of the home. There is no evidence that [Vulcan and Smith] did
not perform their duties in accordance with the regulations or
industry standards." The Gustins appeal.
II. Standard of Review
This
Court
reviews
a
summary
judgment
de
novo,
"apply[ing] the same standard of review as the trial court."
Slay v. Keller Indus., Inc., 823 So. 2d 623, 624 (Ala. 2001).
"In order to enter 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." Williams v. Ditto, 601 So. 2d 482, 484 (Ala.
1992). This Court must view the evidence in the light most
4
1190255
favorable to, and draw all reasonable inferences in favor of,
the nonmoving party. Nationwide Prop. & Cas. Ins. Co. v. DPF
Architects, P.C., 792 So. 2d 369, 372 (Ala. 2001).
III. Analysis
A. The Class-Action Settlement
The Gustins argue that the trial court incorrectly ruled
that a 2005 class-action-settlement agreement between Vulcan
and the previous owners of the Gustins' house barred some of
the Gustins' claims. In the summary-judgment order, the court
wrote: "The Gustins are ... barred [from] asserting any claims
[that arose] prior to their April 2006 purchase[,] due to a
class action settlement that the previous owners entered into
with Vulcan." On appeal, the Gustins concede that, in the
trial court, they were not attempting to assert any claims
that arose before their purchase of the house. Therefore, the
trial court's ruling on this issue did not affect the
viability of any of the Gustins' claims. Hence, the
correctness or incorrectness of that ruling is irrelevant to
the outcome of the case and cannot be a basis for reversal of
the summary judgment.
B. Contractual Duty-to-Repair Claim
5
1190255
The Gustins argue that the trial court erred by entering
a
summary
judgment
on
their
breach-of-contract claim
involving
Vulcan's duty to repair termite damage because, they assert,
there was a genuine issue of material fact regarding whether
Vulcan breached that duty. Vulcan and Smith respond that the
termite damage came within the exclusion in the contract of
"damages resulting from wood in direct contact with the soil."
Vulcan and Smith assert that W. Bruce Alverton, Vulcan's
termite expert, testified in a deposition that some of the
wood framing of the house was "below-grade," that is, below
ground level. Vulcan and Smith also argue that Alverton
identified several instances of "wood-to-ground contact."
However, as the Gustins point out, Alverton's testimony
was not clearly evidence of the condition required to meet the
exclusion: "wood in direct contact with the soil" (emphasis
added). Rather, in the context of Alverton's whole testimony,
his statements can reasonably be interpreted as meaning that,
although the wood was below ground level and in contact with
the concrete foundation, it was shielded from direct contact
with the soil by the faux-stone cladding and the foundation.
For example, Alverton testified that "the level of the
6
1190255
[concrete foundation] slab to the edge of the outside grade is
almost even" and that "on the ... outside perimeter of that
concrete slab there is a faux-stone installation that rests
below grade that allowed the termites to enter from the
outside foundation up behind the faux stone into the stud
wall." Alverton also indicated that the "outside grade"
(presumably including the soil) had been in contact with the
faux stone before it was removed and that "the faux stone came
to the ground and came to the top of the concrete all the way
around the property." Although Alverton's testimony is not a
model of clarity, it appears to indicate that the wood-stud
walls of the house rested on the concrete foundation and were
covered on the exterior by the faux-stone cladding. Thus, a
genuine issue of material fact remains as to whether the wood
was in direct contact with the soil.
Moreover, even assuming wood-to-soil contact existed,
there was a genuine issue of material fact regarding whether
the damage to the house "result[ed] from" that contact, as
required by the exclusion. In his deposition, Alverton
discussed at least four causes of the termite infestation,
including (1) moisture intrusion caused by the angle of a
7
1190255
portion of the roof, which allowed rain to "continually wet[]
the [front] foundation wall, causing wood rot and decay and
subterranean termite damage"; (2) a roof leak that, coupled
with the lack of a "footer" or concrete barrier against the
ground, allowed a moisture intrusion that permitted termites
to enter from the ground; (3) the angle of the roof over the
deck columns, which allowed rainwater to enter an "envelope"
between the faux stone and the columns, which "made a
situation where it was possible for subterranean termites to
survive
without
wood-to-ground contact"; and
(4)
decaying
wood
in the framing around a basement window. Alverton did not
explain which of these causes, if any, were related to direct
wood-to-soil contact. Therefore, genuine issues of material
fact existed as to whether the wood-to-soil exclusion applied
and thus whether Vulcan breached its duty to repair.
Accordingly, we reverse the summary judgment as to the
Gustins' breach-of-contract claim regarding the duty to
repair.
C. Negligence and Wantonness Claims
The Gustins also argue that the trial court erred by
determining that there was not substantial evidence that
8
1190255
Vulcan was negligent or wanton. The Gustins identify a number
of duties they assert that Vulcan breached. Specifically, the
Gustins assert that Vulcan was negligent or wanton in the
following ways:
•
Vulcan did not report conditions conducive to
termites when it inspected the house at the
time of the Gustins' purchase; Vulcan thereby
failed to perform its work in a good and
workmanlike manner.
•
Vulcan never informed the Gustins that it could
not perform an adequate inspection.
•
Although aware that it could not perform a
visual inspection in certain areas, Vulcan did
not "sound or probe" anywhere on the Gustins'
house.
•
Vulcan never inspected portions of the house
not amenable to visual inspection to determine
whether there were construction defects or
deficiencies that created conditions conducive
to termites or that hindered Vulcan's ability
to perform a meaningful inspection.
•
Vulcan never sought information about the
construction materials used in the house.
•
Vulcan never re-treated the house, even though
it knew the earlier-applied termiticide was no
longer effective.
•
Vulcan never re-treated the house, even though
it knew the spot treatment it performed in 2009
did not cover the front of the house.
9
1190255
The Gustins' tort claims were predicated exclusively on
duties,
actions,
and
omissions related
to
Vulcan's
performance
of its termite-treatment contract. "[A] mere failure to
perform a contractual obligation is not a tort." Barber v.
Business Prods. Ctr., Inc., 677 So. 2d 223, 228 (Ala. 1996).
The Gustins have cited no legal authority in support of their
position that a negligence or wantonness claim can be
predicated merely on a defendant's failure to
properly perform
under a contract, nor have they cited any authority or
provided any reasoning in support of their implicit argument
that
Vulcan's
acts
and
omissions
were
somehow
extracontractual. Thus, we affirm the trial court's summary
judgment on all the negligence and wantonness claims.
D. Other Breach-of-Contract Claims
In opposition to the motion for a summary judgment and in
their appellate briefs, the Gustins advanced numerous other
breach-of-contract arguments related to the allegations that
were also included in their tort claims:
"Vulcan breached its duties to use reasonable care
and perform its work in a workman-like manner in 6
ways: (1) during the seven ... years it inspected
the home for the Gustins, Vulcan never inspected or
treated
the
rear
posts/columns
and
only
inspected/treated the porte cochere once; (2) Vulcan
10
1190255
knew of previous termite activity at the home but
never investigated to see if additional activity was
present at the home; (3) Vulcan knew it was
incapable of adequately inspecting behind the home's
exterior cladding for areas conducive to termite
activity but never performed any tests, other than
site evaluations, and never advised the Gustins that
it could not adequately inspect the property; (4)
Vulcan was aware of areas of the home's exterior
faux-stone cladding that extended below grade but
never alerted the Gustins that such condition was
conducive
to
termites;
(5)
Vulcan
knew
the
termiticide it used in 1998 was ineffective for long
periods of time and failed to retreat the property
with another chemical until over ten ... years later
in 2009; (6) Vulcan improperly treated areas of the
home's foundation by drilling application holes over
twelve ... inches apart, contrary to applicable
labels and regulations; and (7) even after being
advised to properly treat the home by the [Alabama
Department of Agriculture and Industries] in 2015,
Vulcan
failed
to
use
the
proper
amount
of
termiticide."
(Gustins' brief, pp. 25-26.) With respect to these breach-of-
contract claims, the trial court's summary-judgment order
stated:
"[T]here is no evidence that Vulcan breached the
contract by failing to discover hidden termites. The
Gustins presented no evidence that the annual
inspections were not performed in accordance with
the regulations or industry standards. Summary
judgment is granted as to the breach of contract
claims."
Notably, the alleged acts and omissions that underlay the
Gustins' breach-of-contract claims quoted above were not tied
11
1190255
to any duty Vulcan had to find hidden termites or to comply
with inspection regulations or standards. In particular, the
Gustins'
breach-of-contract
claims
were
predicated
on
Vulcan's
alleged failure to report conditions conducive to termites in
accordance with industry standards; Vulcan's alleged failure
to adequately advise the Gustins of termite activity and of
Vulcan's inability to inspect certain areas; and Vulcan's
alleged failure to properly treat the house.
Moreover, there was substantial overlap between the
evidence and arguments that the Gustins advanced in support of
these breach-of-contract claims and those they advanced in
support of their tort claims. Although the trial court
assessed in detail this evidence and these arguments in
relation to the Gustins' tort claims, the court did not
indicate that it assessed the overlapping evidence and
arguments in relation to the breach-of-contract claims. This
inconsistency indicates either that the trial court did not
recognize that the evidence that supported the tort claims
also supported the breach-of-contract claims or that it
incorrectly concluded that the evidence that was insufficient
to support the tort claims was therefore insufficient to
12
1190255
support
the
related
breach-of-contract
claims.
Regardless,
the
trial court's judgment was incorrect. Our review of the record
indicates
that
the
Gustins
submitted substantial evidence
that
Vulcan committed the acts and omissions underlying each of the
seven breach-of-contract claims listed above. That evidence
created a genuine issue of material fact regarding whether
Vulcan breached its duty to "perform all services in a
workmanlike manner," as the contract required.
The determination whether a defendant has committed a
material breach of contract is "typically for a [fact-finder]
to make," and summary judgment is appropriate only when "'"the
question is so clear as to be decided only in one way."'"
LNM1, LLC v. TP Props., LLC, 296 So. 3d 792, 797 (Ala. 2019)
(quoting Harrison v. Family Home Builders, LLC, 84 So. 3d 879,
890 (Ala. Civ. App. 2011), quoting in turn Birmingham News Co.
v. Fitzgerald, 222 Ala. 386, 388, 133 So. 31, 32 (1931)).
Therefore, the trial court erred in entering a summary
judgment on these other breach-of-contract claims.
IV. Conclusion
For the foregoing reasons, we reverse the summary
judgment with respect to the Gustins' breach-of-contract
13
1190255
claims. We affirm the judgment in all other respects, and we
remand the case for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Bolin, Wise, Sellers, Mendheim, Stewart, and Mitchell,
JJ., concur.
Bryan, J., concurs in the result.
Shaw, J., concurs in the result and dissents in part.
14
1190255
SHAW, Justice (concurring in the result and dissenting in
part).
I concur in the result reached by the main opinion. I
dissent, however, as to Part III.D.
15 | October 30, 2020 |
843d3419-958c-4d00-a2b8-e24a3f87f006 | Ex parte S.C.T. | N/A | 1190752 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190752
Ex parte S.C.T. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: S.C.T. v. Mobile County Department of Human Resources) (Mobile
Juvenile Court: JU-18-489.02; Civil Appeals : 2190084).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan, and Mendheim,
JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
cee21dba-5af5-45b4-a846-e8e9cb1fb471 | Ex parte J.L.P. | N/A | 1190939 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
October 16, 2020
1190939
Ex parte J.L.P. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: J.L.P. v. K.W. and J.D.) (Houston Juvenile Court: JU-18-381.01; Civil
Appeals :
2190143).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Parker, C.J. - Bolin, Wise, Sellers, and Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
ad0ed7d1-9498-4989-820f-b5a27151a254 | Ex parte Elmore County Department of Human Resources. | N/A | 1190953 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
October 16, 2020
1190953
Ex parte Elmore County Department of Human Resources. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: B.L., Jr. v. Elmore County
Department of Human Resources) (Elmore Juvenile Court: JU-18-144.02; Civil Appeals :
2190066).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Shaw, J. - Parker, C.J., and Bryan, Mendheim, and Mitchell,
JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
af104743-783a-47f0-8ab2-43cf7c223719 | Ex parte S.C.T. | N/A | 1190751 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190751
Ex parte S.C.T. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: S.C.T. v. Mobile County Department of Human Resources) (Mobile
Juvenile Court: JU-18-488.02; Civil Appeals : 2190083).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan, and Mendheim,
JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
7a4f98e6-874e-4a83-93e5-ce7b0ce4f9cc | Ex parte Martin Tracy McBurnett. | N/A | 1190879 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
October 16, 2020
1190879
Ex parte Martin Tracy McBurnett. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Martin Tracy McBurnett v. State of Alabama) (Etowah
Circuit Court: CC-08-388.80; Criminal Appeals :
CR-18-1073).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Parker, C.J. - Bolin, Wise, Sellers, and Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
25af4251-ac95-4420-8bd8-298fcdfa49e1 | Ex parte Charles Bryant Hughes, Jr. | N/A | 1190906 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190906
Ex parte Charles Bryant Hughes, Jr. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Charles Bryant Hughes, Jr. v. State of Alabama)
(Elmore Circuit Court: CC-17-5; Criminal Appeals : CR-19-0124).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on October 16, 2020:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and Sellers, JJ.,
concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 16th day of October, 2020.
Clerk, Supreme Court of Alabama | October 16, 2020 |
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