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4903bb79-762e-402d-9d1b-c9d0132b1738 | Nancy Bell v. City of Phenix City, Alabama | N/A | 1190602 | Alabama | Alabama Supreme Court | REL: October 16, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190602
Nancy Bell v. City of Phenix City, Alabama (Appeal from
Russell Circuit Court: CV-19-900279).
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. | October 16, 2020 |
3a1fc96a-47cf-4296-90fa-0a2878d16e66 | Ex parte Stacey P. Mason. | N/A | 1190884 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190884
Ex parte Stacey P. Mason. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Stacey P. Mason v. Alabama Department of Corrections)
(Montgomery Circuit Court: CV-19-335; Criminal Appeals : CR-19-0294).
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 |
7841228f-43c8-4a18-90c2-d668490ff962 | Ex parte T.Y. | N/A | 1190922 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190922
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-17-243.03; Civil Appeals : 2190016).
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 |
8621221a-701c-4799-a13b-4ca1dacf29ca | Ex parte Joe Lee Brown. | N/A | 1191033 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1191033
Ex parte Joe Lee Brown. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Joe Lee Brown v. State of Alabama) (Choctaw Circuit Court:
CC-15-35.60; Criminal Appeals : CR-19-0207).
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 |
dcd71491-77e2-4f55-9e8a-51fa11800e3d | Richardson et al. v. County of Mobile | N/A | 1190468, 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 |
9b116f62-c2b9-47e5-807c-65d029672dd3 | Ex parte Christina Marie Beck. | N/A | 1190989 | 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
1190989
Ex parte Christina Marie Beck. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Christina Marie Beck v. State of Alabama) (Limestone Circuit
Court: CC-19-446; Criminal Appeals :
CR-19-0019).
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. 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. 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 |
9e4c2142-9b15-4111-a1b3-a1926e605260 | Ex parte Delantray Marques Bates. | N/A | 1190783 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190783
Ex parte Delantray Marques Bates. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Delantray Marques Bates v. State of Alabama.) (Morgan
Circuit Court: CC-18-1238; Criminal Appeals : CR-18-1168).
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 |
4f52418a-1eb5-4459-b492-9c8b16e1d410 | Ex parte Andrew Lee Jackson. | N/A | 1191041 | 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
1191041
Ex parte Andrew Lee Jackson. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Andrew Lee Jackson v. State of Alabama) (Morgan Circuit
Court: CC-16-1045; Criminal Appeals :
CR-19-0118).
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. 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. 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 |
24a65951-5374-4d13-9cb5-2fef7e702527 | Ex parte Henry W. Bradshaw. | N/A | 1190765 | Alabama | Alabama Supreme Court | RE: 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
_________________________
1190765
_________________________
Ex parte Henry W. Bradshaw
PETITION FOR WRIT OF MANDAMUS
(In re: Princeton Gregory
v.
Henry W. Bradshaw et al.)
(Mobile Circuit Court, CV-19-901666)
SHAW, Justice.
1190765
Henry W. Bradshaw, a defendant in a personal–injury action
pending below, petitions for a writ of mandamus directing the Mobile
Circuit Court to vacate its order denying his motion to dismiss the claims
of the plaintiff, Princeton Gregory, against him, and to enter an order
dismissing Gregory's claims against Bradshaw for lack of personal
jurisdiction. We grant the petition and issue the writ.
Facts and Procedural History
As alleged in Gregory's complaint and agreed to by the parties, in
June 2017, Gregory, a resident of Mobile, and Bradshaw, a resident of
Florida, were involved in a motor-vehicle accident in Mississippi. As a
result, Gregory sued Bradshaw and others seeking damages for negligence
and wantonness.1
In response, Bradshaw entered a limited appearance in the action
for the purpose of filing, pursuant to Rule 12(b)(2), Ala. R. Civ. P., a
motion to dismiss Gregory's claims based on the trial court's alleged lack
1Although not material to the resolution of the present appeal, the
remaining defendants include Gregory's insurers, against whom he sought
to recover uninsured/underinsured-motorist benefits.
2
1190765
of personal jurisdiction. In support of his motion, Bradshaw emphasized
his Florida residency, as alleged in Gregory's complaint, and the
undisputed location of the accident. More specifically, Bradshaw argued
that Gregory's complaint failed to allege that Bradshaw's contacts with
Alabama were sufficient to support personal jurisdiction over him. See
generally Elliott v. Van Kleef, 830 So. 2d 726, 730 (Ala. 2002) ("'Two types
of contacts can form a basis for personal jurisdiction: general contacts and
specific contacts. General contacts, which give rise to general personal
jurisdiction, consist of the defendant's contacts with the forum state that
are unrelated to the cause of action and that are both continuous and
systematic. ... Specific contacts, which give rise to specific jurisdiction,
consist of the defendant's contacts with the forum state that are related
to the cause of action.'" (quoting Ex Parte Phase III Constr., Inc., 723 So.
2d 1263, 1266 (Ala. 1998) (Lyons, J., concurring in the result))). Noting the
lack of any specific accident-related contact with Alabama that would give
rise to specific personal jurisdiction, Bradshaw maintained that general
personal jurisdiction was the only potential basis for an exercise of
personal jurisdiction. However, he disputed the existence of "continuous
3
1190765
and systematic" contact with Alabama to support such an exercise of
jurisdiction in this case. Bradshaw supported his motion with his own
affidavit attesting to the following facts: he possesses a Florida driver's
license; the accident occurred in Mississippi; he is not currently and was
not at the time of the accident an Alabama resident; and "[his] contacts
with the State of Alabama and its residents and businesses have been
minimal and sporadic."
Thereafter, Gregory amended his original complaint to add further
jurisdictional allegations, including an assertion that "Bradshaw regularly
does or solicits business, or engages in a persistent course of conduct
and/or derives substantial revenue from goods used or consumed or
services rendered in Alabama." Gregory also filed a response to
Bradshaw's motion, seeking to conduct jurisdiction-related discovery
regarding the factual allegations included in Bradshaw's affidavit, as
described above; the trial court granted Gregory's request.
Following further filings, Bradshaw filed a renewed motion to
dismiss Gregory's claims against him, which incorporated the above-
described prior filings. Bradshaw subsequently filed an amended motion
4
1190765
to dismiss, adding excerpts from his deposition testimony, which was
taken in response to Gregory's request to conduct discovery, and argued
that his contacts did not support the trial court's exercise of personal
jurisdiction. In his deposition testimony, which appears in the materials
before us, Bradshaw, a retiree, indicated that he was born in and resided
in Alabama until 2006, when he was 65 years old, at which time he
remarried and moved to Florida. He testified that he occasionally came
to Alabama to visit family or to purchase tobacco and that, while in
Alabama, he might eat, purchase gasoline, or use a local Alabama branch
of his bank. Bradshaw's testimony further indicated that the vehicle he
was operating at the time of the accident was purchased by him in Florida
and financed through a Florida-based bank and that the applicable
insurance policy covering that vehicle had been issued in Florida.
Relying on Bradshaw's deposition testimony, Gregory filed a further
response in opposition to Bradshaw's amended motion to dismiss in which
he argued that Bradshaw's connection to and activities in Alabama, as
described above, were sufficient to suggest that Bradshaw should have
anticipated that he might be sued in Alabama or, at the very least, created
5
1190765
a jury question on the issue of general personal jurisdiction. The trial
court apparently agreed and, following a hearing, denied Bradshaw's
motion to dismiss.2 This petition followed.3
Standard of Review
2The trial court's order did not include either the factual or legal
findings on which its decision was based.
3Gregory contends that Bradshaw's petition is untimely. This
argument, however, is without merit. Despite delay associated with the
trial court's grant of Gregory's request to conduct jurisdictional discovery,
the record reflects that the trial court's order denying Bradshaw's motion
was entered on May 27, 2020, and that the instant petition was filed on
June 24, 2020 -- well within the 42-day presumptively reasonable period
provided in Rule 21, Ala. R. App. P. See Ex parte Pelham Tank Lines,
Inc., 898 So. 2d 733, 734 (Ala. 2004) (" 'The time for taking an appeal'
referenced by Rule 21(a) is that established by Rule 4(a)(1), Ala. R. App.
P.: 'within 42 days (6 weeks) of the date of the entry of the judgment or
order appealed from.' "). We are further unpersuaded that Bradshaw's
participation in jurisdictional discovery below as ordered by the trial
court, which discovery occurred after Bradshaw asserted his jurisdictional
challenge, amounted to a waiver of his right to contest personal
jurisdiction. See Ex parte Gregory, 947 So. 2d 385, 389-90 (Ala. 2006)
(explaining that, despite his having allegedly "invoked the judicial system
of the State of Alabama sufficient to waive his jurisdictional challenge" by
submitting written discovery requests to the plaintiffs, the petitioner
could not "be charged with such a waiver ... because he timely presented
his challenge to the exercise of personal jurisdiction in his answer to the
complaint").
6
1190765
" '[A] petition for a writ of mandamus is the proper
device by which to challenge the denial of a motion
to dismiss for lack of in personam jurisdiction. See
Ex parte McInnis, 820 So. 2d 795 (Ala. 2001); Ex
parte Paul Maclean Land Servs., Inc., 613 So. 2d
1284, 1286 (Ala. 1993). " 'An appellate court
considers de novo a trial court's judgment on a
party's motion to dismiss for lack of personal
jurisdiction.' " Ex parte Lagrone, 839 So. 2d 620,
623 (Ala. 2002) (quoting Elliott v. Van Kleef, 830
So. 2d 726, 729 (Ala. 2002)). Moreover, "[t]he
plaintiff bears the burden of proving the court's
personal jurisdiction over the defendant." Daynard
v. Ness, Motley, Loadholt, Richardson & Poole,
P.A., 290 F.3d 42, 50 (1st Cir. 2002).'
"Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866
So. 2d 519, 525 (Ala. 2003).
" ' "In considering a Rule 12(b)(2),
Ala. R. Civ. P., motion to dismiss for
want of personal jurisdiction, a court
must consider as true the allegations of
the
plaintiff's
complaint
not
controverted
by
the
defendant's
affidavits, Robinson v. Giarmarco &
Bill, P.C., 74 F.3d 253 (11th Cir. 1996),
and Cable/Home Communication Corp.
v. Network Productions, Inc., 902 F.2d
829 (11th Cir. 1990), and 'where the
plaintiff's
complaint
and
the
defendant's affidavits conflict, the ...
court must construe all reasonable
inferences in favor of the plaintiff.'
Robinson, 74 F.3d at 255 (quoting
7
1190765
Madara v. Hall, 916 F.2d 1510, 1514
(11th Cir. 1990))." '
"Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So. 2d
888, 894 (Ala. 2002) (quoting Ex parte McInnis, 820 So. 2d 795,
798 (Ala. 2001)). However, if the defendant makes a prima
facie evidentiary showing that the Court has no personal
jurisdiction, 'the plaintiff is then required to substantiate the
jurisdictional allegations in the complaint by affidavits or
other competent proof, and he may not merely reiterate the
factual allegations in the complaint.' Mercantile Capital, LP
v. Federal Transtel, Inc., 193 F. Supp. 2d 1243, 1247 (N.D. Ala.
2002)(citing Future Tech. Today, Inc. v. OSF Healthcare Sys.,
218 F.3d 1247, 1249 (11th Cir. 2000)). See also Hansen v.
Neumueller GmbH, 163 F.R.D. 471, 474–75 (D. Del. 1995)
('When a defendant files a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(2), and supports that motion with affidavits,
plaintiff is required to controvert those affidavits with his own
affidavits or other competent evidence in order to survive the
motion.') (citing Time Share Vacation Club v. Atlantic Resorts,
Ltd., 735 F.2d 61, 63 (3d Cir. 1984))."
Ex parte Covington Pike Dodge, Inc., 904 So. 2d 226, 229-30 (Ala. 2004)
(emphasis added).
Discussion
In his petition, Bradshaw correctly notes that neither the allegedly
negligent and/or wanton conduct described in the complaint nor the
underlying accident that purportedly resulted from that conduct occurred
in Alabama. He further argues that his "infrequent" and "sporadic" visits
8
1190765
to Alabama since his move to Florida in 2006 were both unrelated to the
subject accident and were insufficient to support personal jurisdiction. We
agree.
As this Court states in Ex parte McNeese Title, LLC, 82 So. 3d 670,
673 (Ala. 2011):
"Jurisdiction over out-of-state defendants is acquired
pursuant to Rule 4.2(b), Ala. R. Civ. P., which provides, in
pertinent part:
" 'An appropriate basis exists for service of process
outside of this state upon a person or entity in any
action in this state when the person or entity has
such contacts with this state that the prosecution
of the action against the person or entity in this
state is not inconsistent with the constitution of
this state or the Constitution of the United
States....'
"In other words, '[t]his rule extends the personal jurisdiction
of Alabama courts to the limit of due process under the United
States and Alabama Constitutions.' Hiller Invs., Inc. v.
Insultech Group, Inc., 957 So. 2d 1111, 1115 (Ala. 2006).
Under this rule, the exercise of jurisdiction is appropriate so
long as the out-of-state defendant has ' "some minimum
contacts with this state [so that] ... it is fair and reasonable to
require the person to come to this state to defend an action." '
Dillon Equities v. Palmer & Cay, Inc., 501 So. 2d 459, 461 (Ala.
1986) (quoting former Rule 4.2(a)(2)(I), Ala. R. Civ. P.)."
This Court has also stated:
9
1190765
"The sufficiency of a party's contacts are assessed as follows:
" ' "Two types of contacts can form
a basis for personal jurisdiction: general
contacts and specific contacts. General
contacts, which give rise to general
personal jurisdiction consist of the
defendant's contacts with the forum
state that are unrelated to the cause of
action and that are both 'continuous
and
systematic.'
Helicopteros
Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 414 n. 9, 415, 104 S.Ct.
1868, 80 L. Ed. 2d 404 (1984); [citations
omitted]. Specific contacts, which give
rise to specific jurisdiction, consist of
the defendant's contacts with the forum
state that are related to the cause of
action.
Burger
King
Corp.
v.
Rudzewicz, 471 U.S. 462, 472-75, 105 S.
Ct. 2174, 85 L. Ed. 2d 528 (1985).
Although the related contacts need not
be continuous and systematic, they
must rise to such a level as to cause the
defendant to anticipate being haled into
court in the forum state. Id."
" 'Ex parte Phase III Constr., Inc., 723 So. 2d 1263,
1266 (Ala. 1998) (Lyons, J., concurring in the
result). ...
" 'In the case of either general in personam
jurisdiction or specific in personam jurisdiction,
"[t]he
'substantial
connection'
between
the
defendant and the forum state necessary for a
10
1190765
finding of minimum contacts must come about by
an action of the defendant purposefully directed
toward the forum State." Asahi Metal Indus. Co. v.
Superior Court of California, 480 U.S. 102, 112, 107
S. Ct. 1026, 94 L. Ed. 2d 92 (1987). This
purposeful-availment requirement assures that a
defendant will not be haled into a jurisdiction as a
result of the " 'unilateral activity of another person
or a third person.' " Burger King, 471 U.S. at 475,
105 S. Ct. 2174, quoting Helicopteros Nacionales de
Colombia, S.A. v. Helicopteros Nacionales, 466 U.S.
408, 417, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984).'
"In Burger King the United States Supreme Court explained:
" '[I]t is essential in each case that there be some
act by which the defendant purposefully avails
itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and
protections of its laws.
" 'This purposeful availment requirement
ensures that a defendant will not be haled into a
jurisdiction solely as a result of random, fortuitous,
or attenuated contacts, or of the unilateral activity
of another party or a third person. Jurisdiction is
proper, however, where the contacts proximately
result from actions by the defendant himself that
create a substantial connection with the forum
State. Thus where the defendant deliberately has
engaged in significant activities within a State, or
has created continuing obligations between himself
and residents of the forum, he manifestly has
availed himself of the privilege of conducting
business there, and because his activities are
11
1190765
shielded by the benefits and protections of the
forum's laws it is presumptively not unreasonable
to require him to submit to the burdens of
litigation in that forum as well.'
"471 U.S. at 475-76, 105 S. Ct. 2174 (internal quotations and
citations omitted)."
Ex parte Georgia Farm Bureau Mut. Auto. Ins. Co., 889 So. 2d 545, 550-51
(Ala. 2004).
Further,
" 'If there are substantial contacts with the state, for
example a substantial and continuing business, and if the
cause of action arises out of the business done in the state,
jurisdiction will be sustained. If there are substantial contacts
with the state, but the cause of action does not arise out of
these contacts, jurisdiction may be sustained. But if there is
a minimum of contacts, and the cause of action arises out of
the contacts, it will normally be fair and reasonable to sustain
jurisdiction. If there is a minimum of contacts and the cause
of action does not arise out of the contacts, there will normally
be no basis of jurisdiction, since it is difficult to establish the
factors necessary to meet the fair and reasonable test.' "
View-All, Inc. v. United Parcel Serv., 435 So. 2d 1198, 1201 (Ala. 1983)
(quoting 2 J. Moore, Federal Practice,¶ 4.25, pp. 4-258 through 4-267 (2d
ed. 1982) (emphasis added)).
12
1190765
As an initial matter, we note that because Gregory appears to have
argued in the trial court that Alabama courts possess only general
personal jurisdiction over Bradshaw based on his contacts with our State,
we also limit our consideration to that claim. Gregory, who bore the
burden of establishing the jurisdiction of Alabama courts over Bradshaw,
see, e.g., Branded Trailer Sales, Inc. v. Universal Truckload Servs., Inc.,
74 So. 3d 404, 409 (Ala. 2011), argues that he presented evidence of
Bradshaw's contacts with Alabama that were sufficient to, "at a minimum,
... create a jury question whether exercising jurisdiction would comport
with due process."
As Gregory concedes, however, "'"regardless of whether jurisdiction
is alleged to be general or specific, the nexus between the defendant and
the forum state must arise out of an '"action of the defendant [that was]
purposefully directed toward the forum State."'"'" Branded Trailer Sales,
Inc., 74 So. 3d at 410 (quoting Ex parte Covington Pike Dodge, 904 So. 2d
at 230, quoting in turn other cases (emphasis added)). Further, as the
United States Supreme Court explained in Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011), "[f]or an individual,
13
1190765
the paradigm forum for the exercise of general jurisdiction is the
individual's domicile."
Gregory's amended complaint alleges that Bradshaw regularly
conducts personal business in Alabama. Bradshaw, however, submitted
affidavit and deposition testimony establishing that he has not lived in
Alabama since 2006 and that his contacts with Alabama since that time
have been "sporadic and insubstantial" in nature, including occasional
familial or other brief visits amounting to an estimated total of six
contacts per year. Bradshaw's testimony, as described above, further
indicated that the nature of his contacts was largely derived from a motive
of personal benefit to himself rather than an attempt to benefit from the
protections of the laws of Alabama or an effort to further conduct aimed
at Alabama or its citizens. Further, Bradshaw's alleged tortious conduct,
which occurred on the return trip to Florida from a family vacation to visit
relatives in Mississippi, indisputably did not arise out of any action by
Bradshaw that was directed at Alabama or its residents. See Branded
Trailer Sales, Inc., supra. See also Ex parte City Boy's Tire & Brake, Inc.,
87 So. 3d 521, 529 (Ala. 2011) (" 'As a general rule, the exercise of judicial
14
1190765
power is not lawful unless the defendant "purposefully avails itself of the
privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws." ' ") (quoting J. McIntyre Mach., Ltd.
v. Nicastro, 564 U.S. 873, ___ (2011), quoting in turn other cases)), and Ex
parte Alamo Title Co., 128 So. 3d 700, 710 (Ala. 2013) (" 'In the case of
either general in personam jurisdiction or specific in personam
jurisdiction, "[t]he 'substantial connection' between the defendant and the
forum state necessary for a finding of minimum contacts must come about
by an action of the defendant purposefully directed toward the forum
State." ' ") (quoting Elliott v. Van Kleef, 83 So. 2d 726, 731 (Ala. 2002),
quoting in turn other cases)). We agree that Gregory failed to establish
that Bradshaw, whose domicile is Florida, engaged in any "continuous and
systematic" contacts that should have led Bradshaw to reasonably
anticipate being haled into Alabama's courts or that created a "substantial
connection" to Alabama. To the contrary, as we held in Ex parte
Dragomir, 65 So. 3d 388, 392-93 (Ala. 2010):
"In attempting to demonstrate that Alabama has general
jurisdiction over Dragomir, Pike cites evidence indicating (1)
that Dragomir, before he moved to Michigan, had been an
15
1190765
Alabama resident from approximately 1992 to 1998 and (2)
that Dragomir had some sporadic contact with Alabama after
the accident in Iowa. However, Dragomir's prior residency in
Alabama -- some 10 years before the accident in Iowa -- is
temporally too remote to serve as a basis for establishing that
Dragomir had 'continuous and systematic' contacts with
Alabama that would sustain jurisdiction over Dragomir in the
underlying action. Ex parte Phil Owens Used Cars, Inc., 4 So.
3d 418, 426–27 (Ala. 2008) (rejecting, as too remote to support
general jurisdiction, the defendant's contacts with Alabama
that had occurred approximately 15 years before the accrual
of the plaintiffs' causes of action)."
In Dragomir, we further rejected the notion that the "few occasions" on
which the petitioner, a long-haul truck driver, had transported goods
through or delivered goods to Alabama were, even when coupled with
other alleged contacts, sufficient to sustain an exercise of personal
jurisdiction in that case.
We thus disagree that Bradshaw's contacts with Alabama, the brief
and intermittent nature of which were established below, amount to the
contacts that this Court has deemed sufficient to sustain an exercise of
personal jurisdiction in other cases. Compare Leithead v. Banyan Corp.,
926 So. 2d 1025, 1031 (Ala. 2005) (holding that the trial court had general
jurisdiction over a foreign corporation based on the corporation's contacts
16
1190765
with Alabama, which included more than 270 business-related telephone
calls to the plaintiff in Alabama; its execution and provision of an
employment contract and stock certificates to the plaintiff in Alabama; the
mailing of stock certificates to the plaintiff in Alabama; and its
employment of an Alabama resident as a bookkeeper), Ex parte McInnis,
820 So. 2d at 805-07 (holding, in a case involving a product placed into the
stream of commerce that allegedly caused harm upon reaching its
eventual destination, exercise of personal jurisdiction was appropriate
over two nonresident corporate officers who had visited Alabama four
times "to develop a market [there]" for the allegedly defective product and
who had traveled to Alabama to visit an existing corporate customer, i.e.,
both were deemed to have engaged in acts directed toward Alabama
and/or to serve its consumer markets, but declining to exercise personal
jurisdiction over a third nonresident corporate officer who denied having
any physical presence within Alabama); and Ex parte Newco Mfg. Co., 481
So. 2d 867, 869 (Ala. 1985) (holding that corporate defendant was subject
to general jurisdiction in Alabama where it had engaged in a total of 2,000
transactions in Alabama over a 6-year period resulting in annual sales
17
1190765
revenue exceeding $65,000). In rejecting Gregory's claims to the contrary,
we note that he cited no authority indicating that the purported
convenience of Alabama-based litigation to Bradshaw -- as opposed to
Mississippi-based litigation -- is relevant to a jurisdictional analysis,
especially in light of Bradshaw's obvious challenge to Alabama's
jurisdiction over him.
In sum, because Gregory, even with the benefit of jurisdictional
discovery, does not demonstrate minimum contacts between Bradshaw
and Alabama sufficient to establish general jurisdiction, we conclude that
an exercise of personal jurisdiction over Bradshaw in this case would not
satisfy "the fair and reasonable test." View-All, Inc., 435 So. 2d at 1201.
Conclusion
Bradshaw has demonstrated a clear lack of general personal
jurisdiction over him in connection with Gregory's claims. Thus,
Bradshaw has demonstrated both that the trial court erred in denying his
motions to dismiss and a clear legal right to the requested relief. We,
therefore, grant the petition and issue the writ directing the Mobile
Circuit Court to vacate its order denying Bradshaw's amended motion to
18
1190765
dismiss and to enter an order dismissing Gregory's claims against
Bradshaw on the basis of a lack of personal jurisdiction.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Wise, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
19 | December 4, 2020 |
ed761505-2b26-4ad4-a28e-421bb23c416b | Ex parte Ronald Bradford Gardner. | N/A | 1191022 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1191022
Ex parte Ronald Bradford Gardner. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: Ronald Bradford Gardner v. Joy Connally) (Jackson Circuit
Court: CV-17-900167; Civil Appeals : 2190205).
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 |
0079b914-5ddb-4d41-a416-490043eeaa22 | State of Alabama v. Epic Tech, LLC, et al. | N/A | 1180794 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2020
_________________________
1180675
_________________________
State of Alabama
v.
Epic Tech, LLC, et al.
Appeal from Lowndes Circuit Court
(CV-17-900069)
_________________________
1180794
_________________________
State of Alabama
v.
Epic Tech, LLC, et al.
Appeal from Macon Circuit Court
(CV-17-900150)
1180675; 1180794
WISE, Justice.
These appeals have been consolidated for the purpose of
writing one opinion. In case no. 1180675 (hereinafter
referred to as "the Lowndes County case"), the State of
Alabama, the plaintiff below, appeals from the
Lowndes Circuit
Court's order granting the motions to dismiss filed by Epic
Tech, LLC; White Hall Enrichment Advancement Team d/b/a
Southern
Star
Entertainment; White
Hall
Entertainment; and
the
White Hall Town Council (hereinafter collectively referred to
as "the Lowndes County defendants"). In case no. 1180794
(hereinafter referred to as "the Macon County case"), the
State appeals from the Macon Circuit Court's order granting
the motions to dismiss filed by Epic Tech, LLC, and K.C.
Economic
Development,
LLC,
d/b/a
VictoryLand
Casino
("KCED")(hereinafter collectively referred to as "the Macon
County defendants"). We reverse and remand.
Facts and Procedural History
The Lowndes County Case
On October 26, 2017, the State sued the Lowndes County
defendants in the Lowndes Circuit Court, asserting a public-
nuisance claim. On that same day, the State also filed a
2
1180675; 1180794
motion for a preliminary injunction pursuant to Rule 65(a),
Ala. R. Civ. P. The State subsequently filed two amendments
to its complaint. In its second amended complaint, the State
asserted that it was "seeking declaratory and injunctive
relief to abate a public nuisance of unlawful gambling,
pursuant to § 6-5-120[, Ala. Code 1975]." It also alleged
that the Lowndes County defendants' "continued operation of
illegal
slot
machines
and
unlawful
gambling
devices"
constituted a public nuisance. The State requested that the
Lowndes Circuit Court enter an order declaring the gambling
activities conducted by or through the Lowndes County
defendants to be a public nuisance and "permanently enjoining
the [Lowndes County defendants] from providing such unlawful
gambling activities."
The Lowndes County defendants filed motions to dismiss
the State's complaint in which they alleged that the Lowndes
Circuit Court did not have subject-matter jurisdiction over
the State's request for a declaratory judgment and injunctive
relief; that the complaint failed to state a claim upon which
relief could be granted; and that the State had failed to join
the operators of Wind Creek Casino Montgomery and Wind Creek
3
1180675; 1180794
Casino Wetumpka (hereinafter collectively referred to as "the
Wind Creek casinos") as indispensable parties pursuant to
Rule
19, Ala. R. Civ. P.
The Lowndes Circuit Court subsequently conducted a
hearing. During the hearing, the court decided that it would
hear arguments and rule on the motions to dismiss before it
proceeded further on the State's motion for a preliminary
injunction. On April 26, 2019, the Lowndes Circuit Court
entered a judgment granting the motions to dismiss. In its
judgment, the court found that it did not have subject-matter
jurisdiction "to adjudicate the legal issues for injunctive
and declaratory relief." It also found that, even if it did
have subject-matter jurisdiction, "the Complaint, as amended,
would be dismissed for failure to state a claim upon which
relief could be granted and for failure to include
indispensable parties."
The Macon County Case
On October 4, 2017, the State sued the Macon County
defendants in the Macon Circuit Court; it
subsequently amended
its complaint. In its amended complaint, the State asserted
that it was "seeking declaratory and injunctive relief to
4
1180675; 1180794
abate a public nuisance of unlawful gambling, pursuant to § 6-
5-120[, Ala. Code 1975]." It also alleged that the Macon
County defendants' "continued operation of illegal slot
machines and unlawful gambling devices" constituted a public
nuisance. The State requested that the Macon Circuit Court
enter an order declaring the gambling activities conducted by
or through the Macon County defendants to be a public nuisance
and "permanently enjoining the [Macon County defendants] from
providing such unlawful gambling activities."
The Macon County defendants filed motions to dismiss the
complaints against them. Like the Lowndes County defendants,
the Macon County defendants asserted that the Macon Circuit
Court did not have subject-matter jurisdiction over the
State's request for a declaratory judgment and injunctive
relief; that the complaint failed to state a claim upon which
relief could be granted; and that the State failed to join the
operators of the Wind Creek casinos as indispensable parties.
The Macon Circuit Court subsequently conducted a hearing.
During the hearing, the court decided to hear arguments and
rule on the motions to dismiss before it proceeded further on
the State's motion for a preliminary injunction. On June 14,
5
1180675; 1180794
2019, the Macon Circuit Court entered a judgment granting the
Macon County defendants' motions to dismiss on the grounds
that it lacked subject-matter jurisdiction; that the
State had
failed to state a claim upon which relief could be granted;
and that the State had failed to join the operators of the
Wind Creek casinos as indispensable parties.
These appeals followed.
Discussion
I.
The State argues that the Lowndes Circuit Court and the
Macon Circuit Court (hereinafter collectively referred to as
"the circuit courts") erroneously determined that they did not
have
subject-matter
jurisdiction
over
its claims
for
declaratory and injunctive relief and that it had failed to
state claims upon which relief could be granted.
In its complaints in both cases,1 the State alleged that
the Lowndes County defendants and the Macon County defendants
(hereinafter collectively referred to as "the defendants")
"operate,
administer,
license
and/or
provide
gambling
devices"
1The factual allegations, the public-nuisance claims, and
the claims for relief in the second amended complaint in the
Lowndes County case and the amended complaint in the Macon
County case are virtually identical.
6
1180675; 1180794
for casinos located in their respective counties. It further
alleged that, at those casinos, the defendants "provide
hundreds of slot machines and gambling devices in open,
continuous, and notorious use." The complaints also included
the following factual allegations:
"Gambling is generally illegal in Alabama, and slot
machines are particularly so. The State's general
prohibition on gambling is so fundamental that the
People enshrined it in the Constitution. See Ala.
Const, art. IV, § 65. The Legislature has
specifically
criminalized
possession
of
slot
machines and other gambling devices. Ala. Code
[1975,] § 13A-12-27. Nevertheless, because of the
immense profits associated with organized gambling,
the industry frequently has tried to 'evade[]' these
prohibitions, as the Alabama Supreme Court put it in
Barber v. Jefferson Cnty. Racing Ass'n, 960 So. 2d
599 (Ala. 2006), by asserting that 'loophole[s]' in
Alabama law were much larger than they in fact were.
Id. at 614. For example, in 2006, the Alabama
Supreme Court rejected the industry's attempt to
pass off what were slot machines as machines that
were playing a 'legal sweepstakes.' Id. at 603-15.
The Alabama Supreme Court held that substance is
more important than legal technicality; accordingly,
gambling devices are illegal if they 'look like,
sound like, and attract the same class of customers
as conventional slot machines.' Id. at 616. See
also Ex parte State, 121 So. 3d 337 (Ala. Mar. 1,
2013); Barber v. Cornerstone Comm. Outreach, 42 So.
3d 65 (Ala. 2009); State ex rel Tyson v. Ted's Game
Enterprises, 893 So. 2d 376, 380 (Ala. 2004).
"... The Alabama Supreme Court has repeatedly
held that the game of bingo cannot be played on
electronic machines in the State of Alabama. See
HEDA v. State, 168 So. 3d 4 (Ala. 2014); State v.
7
1180675; 1180794
$223,405.86 et al., 203 So. 3d 816 (Ala. 2016);
State v. 825 Electronic Gambling Devices, [226] So.
3d [660] (Ala. 2016).
"... Defendants' gambling devices are slot
machines completely reliant on games of chance.
Someone who wants to play one of Defendants'
gambling devices can insert money directly into the
face of the machine and/or load money onto a swipe
card that the player inserts into the machine. The
player then presses a button to bet a certain amount
of money. Once the bet is placed, the player
presses a button to start the spinning of slot reels
that appear on the gambling devices. On the
machines, the slot reels are digital; simulating the
mechanical reels found on traditional slot machines.
Seconds later, the machine displays the game's
result. If the customer wins, then his or her
credits go up; if not, the credits go down. The
player can then either play again or cash out to
receive money for any credits he or she has
remaining.
"... All it takes to operate the gambling
devices at Defendants' casinos is a touch of a
button. With a touch of a button, the machines
initiate
a
game
and/or
bring
that
game
to
conclusion.
"... Defendants' devices may display a small
'bingo card' to the side, below, or above the slot
reels. However, the predominant display on all
Defendants' gambling devices is a large, digital or
mechanical representation of 'reels' commonly seen
on acknowledged slot machines.
"... Defendants' gambling devices replicate a
game of chance in an electronic format. There is no
interaction
between
players.
There
is
no
competition to be the first person who covers a
bingo card. No player must call out 'bingo.' There
is no holder of a bingo card who covers randomly
8
1180675; 1180794
drawn numbers on the card. No player can 'sleep a
bingo' or forfeit a prize based on his or her
failure
to
recognize
a
predetermined
winning
pattern. The player does not need to pay attention,
listen
to
alphanumeric
designations
drawn
one-by-one, or match them up to a bingo card.
Instead the player presses a single button, watches
slot-machine reels spin, and is told whether he or
she has won by the gambling device. As such, as the
Supreme Court of Alabama has held, the machines are
illegal and not permitted to play the game commonly
known as bingo in Alabama.
"... Defendants' gambling devices play like,
look like, sound like, and attract the same class of
customers as acknowledged slot machines."
The State further alleged:
"The Defendants' devices used at the casinos do not
play the game 'commonly known as bingo' as defined
by Alabama law. See Barber v. Cornerstone Comm.
Outreach, 42 So. 3d 65 (Ala. 2009); HEDA v. State,
168 So. 3d 4 (Ala. 2014); State v. $223,405.86 et
al., 203 So. 3d 816 (Ala. 2016); State v. 825
Electronic Gambling Devices, [226] So. 3d [660]
(Ala. 2016).
"... The Defendants' devices used at the ...
[casinos] are prohibited gambling devices, as
defined in Alabama Code [1975,] § 13A-12-20(5).
They are machines or equipment used in the playing
phases of gambling activity between persons or
machines. Id.
"... The Defendants' devices used at the
[casinos] are slot machines or readily convertible
to slot machines, as defined in Alabama Code [1975,]
§ 13A-l2-20(10). As a result of the insertion of an
object, Defendants' devices operate with the aid of
a physical act by the player to eject something of
value based on the element of chance.
9
1180675; 1180794
"... Defendants do not have legal authority to
operate, advance, or profit from unlawful gambling
activity in violation of Article IV, Section 65 of
the Alabama Constitution (1901) and Ala. Code
[1975,] § 13A-12-20 et seq.
"... Defendants because of their engaging in
interstate commerce in the State of Alabama, have an
obligation to comply with Alabama's laws. This
includes
the
prohibition
of
the
possession,
promotion or transportation of gambling devices and
records. See Ala. Code [1975,] § 13A- 12-20 et seq.
The Defendants have engaged in all these illegal
behaviors by contracting and offering the games in
[their respective counties].
"... This continued operation of illegal slot
machines and unlawful gambling devices by Defendants
is a public nuisance. See Ala. Code [1975,] §
6-5-120 et seq.; Restatement (Second) of Torts §
821B; Try-Me Bottling Company et al v. State of
Alabama, 178 So. 231 (Ala. 1938).
"... The continued operation of slot machines
and unlawful gambling devices by Defendants works
hurt, inconvenience, or damage to the public
interest.
"...
The
public
policy
of
Alabama
is
emphatically against lotteries or any scheme in the
nature of a lottery.
"... The State has an interest in the welfare of
the people within her domain and, of consequence, in
enforcement of the State's declared public policy
against lotteries or gift schemes. Try-Me Bottling
Co. at 235.
"... Defendants' operation of lotteries and
their use of slot machines and unlawful gambling
devices are enjoinable in suit by the State by
virtue of this Court's equity jurisdiction to abate
10
1180675; 1180794
a public nuisance. See Try-Me Bottling Company et
al v. State of Alabama, 178 So. 2d 231 (Ala. 1938).
"... The State of Alabama, through its Attorney
General, is a proper party to file an action to
enjoin the public nuisance of unlawful gambling in
the State of Alabama."
A. Jurisdiction as to the State's Requests for a
Declaratory Judgment
In State ex rel. Tyson v. Ted's Game Enterprises, 893 So.
2d 355, 361–62 (Ala. Civ. App. 2002), aff'd, 893 So. 2d 376
(Ala. 2004), the State filed a complaint seeking the
forfeiture of video-gaming machines, currency, and documents
that law-enforcement officers had seized from various
businesses in Mobile County. Ted's Game Enterprises
("Ted's"), the owner and distributor of the machines, was
served with the complaint. The State alleged that the
machines were "'slot machines and video gambling devices,
paraphernalia, currency and records,' which pursuant to the
criminal gambling statutes, were contraband and were used and
intended for use in unlawful gambling activity." 893 So. 2d
at 358. The State subsequently filed an amended complaint.
In the amended complaint the State requested, in part, a
"judgment declaring that the
machines owned and distributed by
Ted's are illegal 'slot
machines' and 'gambling devices' under
11
1180675; 1180794
Alabama's criminal gambling statutes and that they are not
'bona fide coin-operated amusement machines' protected by §
13A-12-76[, Ala. Code 1975,] from the prohibitions of those
gambling statutes." Id. The State subsequently voluntarily
dismissed its forfeiture claims as to 12 of those machines
that had been returned to Ted's but did not dismiss its
declaratory-judgment action. The State also filed a second
amended complaint that "added a new claim seeking declaratory
judgment as to the constitutionality of § 13A-12-76 in
relation to Alabama Constitution 1901, Art. IV, § 65." 893
So. 2d at 359. Ted's and one of the businesses from which the
machines had been seized filed a joint answer to the complaint
asserting the defenses of res judicata and collateral
estoppel. They also filed joint motions for a summary
judgment and for a judgment as a matter of law. The trial
court denied those motions. After a hearing on the merits,
the trial court concluded that the eight machines that were
still in the State's possession were illegal gambling devices
that were not protected by § 13A-12-76 and were subject to
forfeiture. Ultimately, the trial court entered an amended
judgment in which it held that § 13A-12-76 "did not authorize
12
1180675; 1180794
the operation of a lottery and was 'not unconstitutional for
that reason.'" 893 So. 2d at 360. The State appealed the
trial court's decision to this Court. Ted's argued that the
State did not have standing to pursue the appeal. In
addressing one of Ted's standing arguments, this Court stated:
"First, Ted's states in a footnote in its brief to
this Court that 'it does not affirmatively appear
that the State is a "person" under the Declaratory
Judgment Act entitled to assert this action. Ala.
Code [1975,] §§ 6–6–220, 6–6–223.'
"Ted's cites no authority, however, to indicate
that the Legislature did not intend that the State,
like other persons, could avail itself, in an
appropriate case, of the remedies afforded by the
Declaratory Judgment Act. We note that other
jurisdictions
that
have
adopted
the
Uniform
Declaratory Judgment Act have construed the term
'person' to include the State. See, e.g., State v.
General American Life Ins. Co., 132 Neb. 520, 272
N.W. 555 (1937); see also, 26 C.J.S., Declaratory
Judgments, §§ 133–34, pp. 225–28 (2001) (noting that
a state, a political subdivision of a state, the
attorney general of the state, and other state
officers and county officers may generally file an
action for declaratory relief).
"'To enforce its rights or redress its wrongs,
as a political corporation, a state may ordinarily
avail itself of any remedy or form of action which
would be open to a private suitor under similar
circumstances.' Ex parte State ex rel. Attorney
General, 245 Ala. 193, 195, 16 So. 2d 187, 188
(1943); see also Ala. Code 1975, § 6–5–1(a) ('The
state may commence an action in its own name and is
entitled
to
all
remedies
provided
for
the
enforcement of rights between individuals without
13
1180675; 1180794
giving bond or security or causing an affidavit to
be made, though the same may be required as if the
action
were
between
private
citizens.');
Consolidated Indem. & Ins. Co. v. Texas Co., 224
Ala. 349, 140 So. 566 (1932).
"The
purpose of
the
Declaratory Judgment Act
'is
to settle and to afford relief from uncertainty and
insecurity with respect[] to rights, status, and
other legal relations and is to be liberally
construed and administered.' Ala. Code 1975, §
6–6–221; see also Thompson v. Chilton County, 236
Ala. 142, 144, 181 So. 701, 703 (1938) ('the
Declaratory Judgment Act was designed to supply the
needs
of
a
form
of
action
that
will
set
controversies
at
rest
before
they
lead
to
repudiation of obligations, the invasion of rights,
and the commissions of wrongs' (emphasis added)).
In light of the invasive power the State wields when
it seeks to enforce statutory provisions against its
citizens, the State's right to seek a declaratory
judgment with respect to matters such as those at
issue here appears to be particularly appropriate."
893 So. 2d at 361–62. Similarly, in these cases, in which the
State is seeking to enjoin an alleged public nuisance, the
State's right to seek a judgment declaring whether the
defendants'
electronic-bingo
machines
are
illegal
and
constitute a public nuisance "appears to be particularly
appropriate." Id. at 362.
In its order, the Lowndes Circuit Court concluded, in
pertinent part:
"Because the State's requested relief would require
the Court to make factual determinations as to
14
1180675; 1180794
whether the Defendants' activity and conduct in
Lowndes County is criminal, the Court lacks
jurisdiction
over
the
State's
Complaint
for
declaratory judgment."
The Lowndes Circuit Court based this conclusion on this
Court's decisions in Tyson v. Macon County Greyhound Park,
Inc., 43 So. 3d 587 (Ala. 2010), and State v. Greenetrack,
Inc., 154 So. 3d 940 (Ala. 2014).
However, Macon County Greyhound Park and Greenetrack are
factually distinguishable from the case presently before us.
Neither Macon County Greyhound Park nor Greenetrack involved
an action in which the State sought to have conduct declared
a public nuisance. Rather, in those cases, private parties
instituted collateral proceedings seeking to have gaming
devices declared legal after the State had seized those
devices and other items from their premises. Our decisions in
Macon County Greyhound Park and Greenetrack were based on the
separation-of-powers doctrine and
the
fact that a court should
not interfere with the
executive branch's authority to enforce
the laws of this State. However, in this case, the executive
branch instituted judicial proceedings to aid in its efforts
to enforce the laws of the State. Thus, this case does not
implicate the same separation-of-powers concerns that were at
15
1180675; 1180794
issue in Macon County Greyhound Park and Greenetrack.
Additionally, neither Macon County Greyhound Park nor
Greenetrack speaks to the issue whether the State, in an
action seeking to enjoin an alleged public nuisance, can seek
a judgment declaring that conduct is, in fact, illegal and
constitutes a public nuisance. Therefore, the
Lowndes Circuit
Court's reliance on Macon County Greyhound Park and
Greenetrack was misplaced.
B. Jurisdiction as to the State's Requests for
Injunctive Relief
In both cases, the circuit courts concluded that they did
not have jurisdiction to enjoin the commission of criminal
offenses and that, therefore, the State had failed to state
a claim upon which relief could be granted.
Section 6-5-121, Ala. Code 1975, provides, in pertinent
part:
"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. ...
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."
(Emphasis added.) "The state, under its police power, has the
authority to abate nuisances offensive to the public health,
16
1180675; 1180794
welfare, and morals." College Art Theatres, Inc. v. State ex
rel. DeCarlo, 476 So. 2d 40, 44 (Ala. 1985).
"Traditionally, continuing activity contrary to
public morals or decency have constituted public
nuisances. Price v. State, 96 Ala. 1, 11 So. 128
(1891); Ridge v. State, 206 Ala. 349, 89 So. 742
(1921); Hayden v. Tucker, 37 Mo. 214 (1866); Federal
Amusement Co. v. State, ex rel. Tuppen, 159 Fla.
495, 32 So. 2d 1 (1947); Abbott v. State, 163 Tenn.
384, 43 S.W.2d 211 (1931); Perkins on Criminal Law,
p. 395 (Foundation Press, 1969); Wood, Law of
Nuisances, § 68, p. 87, vol. 1 (3d ed., 1893); 66
C.J.S. Nuisance § 18 d, p. 766. Under the police
power, a court of equity with proper legislative
authorization can assume jurisdiction to abate a
nuisance
notwithstanding
the
fact
that
the
maintenance of that nuisance may also be a violation
of the criminal law. Ridge v. State, supra; Evans
Theatre Corporation v. Slaton, 227 Ga. 377, 180 S.E.
2d 712 (1971), cert. denied[,] 404 U.S. 950, 92 S.
Ct. 281, 30 L. Ed. 2d 267 (1971)."
General Corp. v. State ex rel. Sweeton, 294 Ala. 657, 663, 320
So. 2d 668, 672–73 (1975)(emphasis added).
In Try-Me Bottling Co. v. State, 235 Ala. 207, 178 So.
231 (1938), the State sought and received injunctive relief
against Try-Me Bottling Co. based on an allegation that Try-Me
was conducting "a lottery or gift enterprise in the nature of
a lottery in disregard of the laws of this State." 235 Ala.
at 209, 178 So. at 232. In that case, Try-Me conducted a
promotion whereby it printed amounts ranging from five cents
17
1180675; 1180794
to one dollar on a bottle cap for bottled drinks. The amount
was located under the cork on the bottle cap. Purchasers of
the bottled drink would lift the cork and look for a number.
If the cap had a "'lucky' number," it was redeemable in cash
by the dealer. The dealer would then be reimbursed by Try-Me.
235 Ala. at 210, 178 So. at 233. The corporation president
and manager of Try-Me noted that a lot of the bottle caps were
thrown out in the trash and then picked up by children. This
Court noted that "[n]o skill is required, the 'lucky' number
determines the value." Id.
In addressing the merits of the case in Try-Me, this
Court stated:
"The question of what constitutes a lottery or
gift enterprise in the nature of a lottery has been
here recently considered in Grimes v. State, Ala.
Sup., [235 Ala. 192,] 178 So. 73 [(1937)], and needs
no reiteration.
"Under that authority, there can be no doubt
that defendants' advertising scheme comes within the
definition of a lottery as therein set forth, and
therefore runs counter to our constitutional and
statutory provision for the suppression of lotteries
and
gambling
devices
generally.
Section
65,
Constitution 1901; Section 4247, Code of 1923; Gen.
Acts 1931, p. 806.
"Our decisions recognize the general rule that
courts of equity have no jurisdiction to enjoin the
commission of offenses against the criminal laws of
18
1180675; 1180794
the State. Pike County Dispensary v. Mayor, etc.,
Brundidge, 130 Ala. 193, 30 So. 451 [(1901)].
"On the other hand, if the facts presented
disclose the need of equity intervention for the
protection of rights cognizable by equity, then
injunctive relief may be granted, though as an
incident thereto the writ may also restrain the
commission of a crime. Or, as otherwise stated,
equity will not withhold the remedy of injunctive
relief merely because the acts constituting a
nuisance are also of a criminal nature. Numerous
illustrative cases are noted in the annotations
found in 40 A.L.R. p. 1145 et seq.; 91 A.L.R. p. 316
et seq. Some authorities have persistently held to
the view that equity will grant injunctive relief
only when property rights are involved, but this
court long since repudiated any such theory as
wholly unsound. State v. Ellis, 201 Ala. 295, 78
So. 71, L.R.A. 1918D, 816 [(1918)], and authorities
therein cited, including that of Stead v. Fortner,
255 Ill. 468, 99 N.E. 680, 684 [(1912)], wherein was
the following language here pertinent: 'The
maintenance of the public health, morals, safety,
and welfare is on a plane above mere pecuniary
damage, although not susceptible of measurement in
money, and to say that a court of equity may not
enjoin a public nuisance because property rights are
not involved would be to say that the state is
unable to enforce the law or protect its citizens
from public wrongs.'
"The bill, therefore, rests for its equity upon
the well-recognized and ancient jurisdiction of
equity courts to restrain by injunction public
nuisances. Ridge v. State, 206 Ala. 349, 89 So. 742
[(1921)]; State v. Ellis, 201 Ala. 295, 78 So. 71,
72, L.R.A. 1918D, 816 [(1918)].
"But defendants insist there is no public
nuisance shown, and that at most only a violation of
the criminal statute is involved. We cannot agree.
19
1180675; 1180794
The device under the cap of the bottle is for
convenience referred to in the argument as the
'flicker device,' and, as previously observed, they
are so distributed as to average 15 cents a case.
It is an advertising scheme, as more fully indicated
by the following handbills distributed to the public
by defendants:
"'....'
"According to the marking of the 'flicker,' any
one finding these bottle caps or crowns may be
entitled to receive from 5 cents to $1. Of course,
the larger number have no such marking. And, as we
have observed, children often find these crowns in
trash piles, and it is quite evident they are widely
distributed over the State. These 'flicker devices'
are manufactured at defendant's plant. Perhaps the
language of section 4281, Code of 1923, may not be
interpreted so as to include the 'flicker device'
here involved, though it may tend in some degree to
demonstrate the legislative mind as to those places
where gambling devices are kept, and denominate them
common nuisances. But such a device is clearly
embraced in the broad and comprehensive language of
the Act 'To Suppress The Evils of Gambling Devices'
of July 1931, General Acts 1931, p. 806, with,
perhaps, particular reference to subdivision (h) of
section 1, page 807: 'Any machine, mechanical
device,
contrivance,
appliance
or
invention,
whatever its name or character, intended for the
purpose of winning money or any other thing by
chance or hazard.'
"And
being thus embraced within the
influence of
this act, these 'flicker devices,' manufactured at
defendant's plant, are unlawfully in defendants'
possession and subject to seizure (section 5 of the
act, p. 808) and condemnation, forfeiture, and
destruction (sections 6 and 9 of the act, pp. 808,
809) under decree of a court of equity. Their
20
1180675; 1180794
possession is under section 4, p. 807, also made a
misdemeanor.
"And under section 4247, Code of 1923, any
person who conducts a lottery or any gift enterprise
or scheme in the nature of a lottery is likewise
guilty of a misdemeanor.
"Statutes of this character were passed in
obedience to the mandate of section 65 of our
Constitution,
which
expressly
denies
to
the
Legislature any power to authorize lotteries, and
directs the passage of laws 'to prohibit the sale in
this state of lottery or gift enterprise tickets, or
tickets in any scheme in the nature of a lottery.'
In this State, therefore, the public policy is
emphatically declared against lotteries or any
scheme in the nature of a lottery, both by
Constitution and by statutes.
"The attitude of this State in reference to such
practices was well expressed by this court in
Johnson v. State, 83 Ala. 65, 3 So. 790, 791
[(1888)], in the following language: 'This
construction is in full harmony with the policy of
the constitution and laws of Alabama prohibitory of
the vicious system of lottery schemes and the evil
practice of gaming, in all their protean shapes,
tending, as centuries of human experience now fully
attest, to mendicancy and idleness on the one hand,
and moral profligacy and debauchery on the other.
No state has more steadfastly emphasized its
disapprobation of all these gambling devices of
money-making by resort to schemes of chance than
Alabama. For more than 40 years past -- we may say,
from the organization of the state, with some few
years of experimental leniency -- the voice of the
legislature has been loud and earnest in its
condemnation of these immoral practices, now deemed
so enervating to the public morals.'
21
1180675; 1180794
"True, the lawmaking body has not in so many
words declared the use of such devices a nuisance,
but it is our view that in substance and effect this
has been done.
"We have said these 'flicker devices' come
within the condemnation of the 1931 act and their
possession unlawful. They can be used for no lawful
purpose, and are scattered unlawfully throughout
defendants' trade territory.
"In Lee v. City of Birmingham, 223 Ala. 196, 135
So. 314, 315 [(1931)], speaking to a like question,
this court observed that 'it is held by respectable
authority that, if a gambling device is prohibited
by statute, its operation may be considered a
nuisance, and abated upon proper proceedings.'
"And in Mullen & Co. v. Moseley, 13 Idaho 457,
90 P. 986, 990, 12 L.R.A., N.S., 394, 121 Am. St.
Rep. 277, 13 Ann. Cas. 450 [(1907)], (cited in the
Lee Case, supra), the court said: 'It has been
urged by counsel for appellants that, in order to
authorize the destruction of these machines, it was
necessary for the Legislature to declare them a
nuisance. The Legislature has in effect done so. It
has prohibited their use in any manner or form, and
has also directed that, when any such instruments
are found within this state, they shall be seized
and destroyed. Making their use a crime and
rendering them incapable of any legitimate use
reduces them to the condition and state of a public
nuisance which they clearly are. This amounts as
effectually to declaring them a nuisance as if the
word "nuisance" itself had been used in the
Statute.'
"The mere prosecution for a misdemeanor here
involved will not give complete relief. The State
is interested in the welfare of the people within
her domain, and, of consequence, in the enforcement
of the declared public policy against lotteries or
22
1180675; 1180794
gift schemes in the nature thereof. And, as said by
the Illinois court, Stead v. Fortner, 255 N.E. 468,
99 N.E. 680 [(1912)], here approvingly quoted in
State v. Ellis, supra: 'As we have noted above,
this
court
has
never
regarded
a
criminal
prosecution, which can only dispose of an existing
nuisance and cannot prevent a renewal of the
nuisance, for which a new prosecution must be
brought, as a complete and adequate remedy for a
wrong inflicted upon the public. The public
authorities have a right to institute the suit where
the general public welfare demands it and damages to
the public are not susceptible of computation. The
maintenance of the public health, morals, safety,
and welfare is on a plane above mere pecuniary
damage, although not susceptible of measurement in
money; and to say that a court of equity may not
enjoin a public nuisance because property rights are
not involved would be to say that the state is
unable to enforce the law or protect its citizens
from public wrongs.'
"And, as observed by this court in the Ellis
Case, supra, 'whether the maintenance of a public
nuisance is or is not punishable in the law courts
as a crime is an immaterial incident so far as the
preventive jurisdiction of equity is concerned; for
equity ignores its criminality, and visits upon the
offender no punishment as for a crime.'
"The Pike County Dispensary Case [Pike County
Dispensary v. Mayor, etc., of Town of Brundidge, 130
Ala. 193, 30 So. 451 (1901)], upon which defendants
lay some stress, involved no question of public
nuisance. At that time there had been no such
declared policy as presented in the instant case
concerning lotteries. The education and interest of
the public in the evils there involved were gradual,
and became later crystallized into definite statutes
on the subject. As we stated in the beginning, that
case is authority only against equity jurisdiction
for prevention of crime, and nothing more."
23
1180675; 1180794
235 Ala. at 210-13, 178 So. at 233-35 (emphasis added).
In their motions to dismiss, the defendants based their
arguments that the circuit courts did not have jurisdiction to
enjoin criminal behavior on this Court's prior decision in
Wilkinson v. State ex. rel. Morgan, 396 So. 2d 86 (Ala. 1981).
Additionally, the
Lowndes
Circuit
Court
specifically
based
its
conclusion that it did not have jurisdiction to enjoin the
commission of criminal offenses, and that, therefore, the
State had failed to state a claim upon which relief could be
granted, on Wilkinson.
In Wilkinson,
"[t]he State of Alabama sought and received a
permanent injunction to abate an alleged gaming
nuisance under the provisions of [Ala.] Code 1975,
§ 13-7-90, viz:
"'All places maintained or resorted to
for the purpose of gaming and all places
where gaming tables or other gaming devices
are kept for the purpose of permitting
persons to game thereon or therewith are
declared to be common nuisances and may be
abated by writ of injunction issued out of
a court upon a complaint filed in the name
of the state by the attorney general or any
district attorney whose duty requires him
to prosecute criminal cases in behalf of
the state in the county wherein the
nuisance is maintained, ....'
24
1180675; 1180794
"The State alleged that the conducting of bingo
games by defendants constituted 'gaming' within the
purview of the statute. Defendant Gateway Malls,
Inc., is the owner of the property on which the
bingo games were played. The other defendants are
the alleged operators of the games.
"Defendants raised a defense of discriminatory
enforcement, claiming other bingo operations and
additional gambling activities were taking place
with impunity in Jefferson County and throughout the
state. They also filed counterclaims to enjoin the
state from an alleged discriminatory enforcement of
[Ala.] Code 1975, § 13-7-90. These were denied in
the trial court's decree granting the state a
permanent injunction."
396 So. 2d at 87–88. The defendants appealed to this Court
the trial court's order entering the permanent injunction.
On appeal, this Court held that the permanent injunction
was due to be dissolved. This Court noted that § 13-7-90,
Ala. Code 1975, had been repealed by the enactment of new
criminal code in Title 13A; that the complaint in that case
had relied solely on the provisions of § 13-7-90; that the
trial court had relied solely on § 13-7-90 to find a nuisance;
that there were not any independent claims or findings of a
nuisance; and that the repeal of § 13-7-90 destroyed the
premise on which the injunction had been issued. Relying on
Try-Me Bottling, supra, the State argued that, even if § 13-7-
90 had been repealed, the trial court still had the authority
25
1180675; 1180794
to issue the injunction. This Court addressed that assertion
as follows:
"We agree that a court of equity may have the
authority to enjoin a nuisance, even if it also
constitutes a crime, in some circumstances.
"'Our decisions recognize the general
rule that courts of equity have no
jurisdiction to enjoin the commission of
offenses against the criminal laws of the
State. Pike County Dispensary v. Mayor,
etc., Brundidge, 130 Ala. 193, 30 So. 451
[(1901)].
"'On the other hand, if the facts
presented disclose the need of equity
intervention for the protection of rights
cognizable by equity, then injunctive
relief may be granted, though as an
incident thereto the writ may also restrain
the commission of a crime.'
"Try-Me Bottling Co., 235 Ala. at 210, 178 So. 231
(Emphasis added).
"However,
that
authority
has
not
been
established in the instant case. For instance,
there are no findings here, as made in Try-Me, that
the mere prosecution for a misdemeanor would not
give complete relief. The Try-Me court was also
concerned with the detrimental effect of the lottery
scheme on children. Children were found to be
rooting about in trash piles to find bottle caps
with lucky numbers. Any such findings in the
instant case were pretermitted by complete reliance
on [Ala.] Code 1975, § 13-7-90, to establish an
enjoinable nuisance."
26
1180675; 1180794
Wilkinson, 396 So. 2d at 90. Thus, Wilkinson did not overrule
Try-Me. In fact, it recognized that, even though § 13-7-90
had been repealed, the principles set forth in Try-Me were
still applicable. Therefore, this Court's decision in
Wilkinson does not support a conclusion that a circuit court
does not, under any circumstances, have jurisdiction to grant
injunctive relief merely because the conduct complained of
constitutes a criminal offense.
Based on the foregoing, the circuit courts erred when
they determined that they did not have subject-matter
jurisdiction over the State's requests for injunctive relief
and that the State had failed to state claims upon which
relief could be granted.
C. The Macon Circuit Court's Additional Findings
In its judgment, the Macon Circuit Court stated, in
pertinent part:
"The Complaint fails to state a claim for which
relief can be granted; jurisdiction in equity is not
available for the State's claims; the State has
other available remedies for the alleged violation
of the State's criminal laws and ... the Defendants'
alleged conduct alone, without other demonstrable
harm, is not a public nuisance; and even assuming
the conduct is a public nuisance, the Wind Creek
Casinos are not parties here and without them
injunctive relief will not provide full and complete
27
1180675; 1180794
relief or protect the public health, safety, or
welfare -- the almost 5,000 electronic bingo
machines operated by them nearby will continue to
operate unhampered, unrestricted, and unmolested.
The Court is also troubled by the precedent that
would be set by a judgment in favor of the State
where there is no statute declaring Defendants'
alleged conduct to be a public nuisance. Other laws
are broken daily in Macon County such as the laws
imposing a speed limit which are readily ignored by
members of the public, specifically on I-85, and the
State is fully knowledgeable of the ongoing
violations. The breaking of these laws sometimes
has catastrophic consequences and results in damage
to property, persons and death. However, there is
no effort to enjoin the committing of other crimes.
As such, the Court would exercise its discretion by
refusing to enjoin Defendants' conduct merely for
the sake of its alleged criminality, especially
where Defendants' alleged conduct would, if a crime,
be a misdemeanor and no tangible and specific harm
to the public is alleged to arise from it."
The Macon Circuit Court's findings in this regard appear
to go to the merits of the State's claim for injunctive
relief. However, the Macon Circuit Court did not conduct a
hearing on the State's motions for a preliminary or permanent
injunction. Rather, it specifically stated that it was
considering only the motions to dismiss filed by the Macon
County defendants. Therefore, it appears that any such
finding is premature.
To the extent the Macon Circuit Court's statements in
this regard apply to its conclusion that the State has failed
28
1180675; 1180794
to State a claim upon which relief can be granted, such a
holding is not supported by this Court's prior caselaw.
"'The appropriate standard of review under
Rule 12(b)(6)[, Ala. R. Civ. P.,] 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 [it] to
relief. In making this determination, this
Court does not consider whether
the
plaintiff
will
ultimately
prevail,
but
only
whether [it] may possibly prevail. We note
that a Rule 12(b)(6) 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 v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)
(citations omitted)."
Ex parte Drury Hotels Co., [Ms. 1181010, February 28, 2020)
___ So. 3d ___, ___ (Ala. 2020).
"'"To be entitled to a permanent
injunction, a plaintiff must demonstrate
success on the merits, a substantial threat
of irreparable injury if the injunction is
not granted, that the threatened injury to
the plaintiff outweighs the harm the
injunction may cause the defendant, and
that granting the injunction will not
disserve the public interest."'
"[Grove Hill Homeowners' Ass'n v. Rice,] 43 So. 3d
[609,] 613 [(Ala. Civ. App. 2010)] (quoting TFT,
Inc. v. Warning Sys., Inc., 751 So. 2d 1238, 1242
29
1180675; 1180794
(Ala. 1999), overruled on other grounds, Holiday
Isle, LLC v. Adkins, 12 So. 3d 1173 (Ala. 2008))."
Grove Hill Homeowners' Ass'n, Inc. v. Rice, 90 So. 3d 731, 734
(Ala. Civ. App. 2011).
The Macon Circuit Court found that the Macon County
defendants' conduct "alone, without other demonstrable harm,
is not a public nuisance." It further stated that it
"would exercise its discretion by refusing to enjoin
Defendants' conduct merely for the sake of its
alleged criminality, especially where Defendants'
alleged conduct would, if a crime, be a misdemeanor
and no tangible and specific harm to the public ...
is alleged to arise from it."
This Court has stated:
"A nuisance is thus defined by both the statutes
and the decisions in this state:
"A nuisance is anything that works hurt,
inconvenience, or damage to another; and the fact
that the act may otherwise be lawful does not keep
it from being a nuisance. The inconvenience
complained of must not be fanciful, nor such as
would affect only one of fastidious taste, but it
should be such as would affect an ordinarily
reasonable man.
"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. ...
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
30
1180675; 1180794
person injured. Code, §§ 5193–5196. 'Nuisance'
signifies 'anything that worketh inconvenience,' and
a common or public nuisance is defined to be an
offense against the public, either by doing a thing
which tends to the annoyance of all persons, or by
neglecting to do a thing which the common good
requires. State v. Mayor and Aldermen of Mobile, 5
Port. 279, 30 Am. Dec. 564 [(1837)]; Ferguson v.
City of Selma, 43 Ala. 398 [(1869)]."
City of Selma v. Jones, 202 Ala. 82, 83–84, 79 So. 476, 477–78
(1918).
In the Macon County case, the State alleged that the
Macon County defendants' gaming devices were illegal slot
machines and that the operation of those machines constituted
unlawful gambling activity. It further alleged that the Macon
County defendants "do not have the authority to operate,
advance, or profit from unlawful gambling activity in
violation of Article IV, Section 65 of the Alabama
Constitution (1901) and Ala. Code [1975,] § 13A-12-20 et seq."
This Court has stated:
"Section 65 of the Constitution of Alabama of
1901, in prohibiting a lottery or 'any scheme in the
nature of a lottery,' was intended to provide a
broad proscription of the evils suffered by earlier
generations who, after experiencing the effects
firsthand, found lotteries to be 'among the most
dangerous and prolific sources of human misery.' 34
B.C.L. Rev. at 12–13, citing A.R. Spoffard,
Lotteries in American History, S. Misc. Doc. No. 57,
31
1180675; 1180794
52d Cong., 2d Sess. 194–95 (1893) (Annual Report of
the American Historical Society)."
Opinion of the Justices No. 373, 795 So. 2d 630, 643 (Ala.
2001) (emphasis added).
Section 13A-12-27, Ala. Code 1975, provides:
"(a) A person commits the crime of possession of
a gambling device if with knowledge of the character
thereof he manufactures, sells, transports, places
or possesses, or conducts or negotiates any
transaction
affecting
or
designed
to
affect
ownership, custody or use of:
"(1) A slot machine; or
"(2) Any other gambling device, with
the intention that it be used in the
advancement of unlawful gambling activity.
"(b) Possession of a gambling device is a Class
A misdemeanor."
Section 13A-12-22, Ala. Code 1975, provides:
"(a) A person commits the crime of promoting
gambling if he knowingly advances or profits from
unlawful gambling activity otherwise than as a
player.
"(b)
Promoting
gambling
is
a
Class
A
misdemeanor."
In Try-Me, this Court stated:
"In this State, therefore, the public policy is
emphatically declared against lotteries or any
scheme in the nature of a lottery, both by
Constitution and by statutes.
32
1180675; 1180794
"The attitude of this State in reference to such
practices was well expressed by this court in
Johnson v. State, 83 Ala. 65, 3 So. 790, 791
[(1888)], in the following language: 'This
construction is in full harmony with the policy of
the constitution and laws of Alabama prohibitory of
the vicious system of lottery schemes and the evil
practice of gaming, in all their protean shapes,
tending, as centuries of human experience now fully
attest, to mendicancy and idleness on the one hand,
and moral profligacy and debauchery on the other.
No state has more steadfastly emphasized its
disapprobation of all these gambling devices of
money-making by resort to schemes of chance than
Alabama. For more than 40 years past -- we may say,
from the organization of the state, with some few
years of experimental leniency -- the voice of the
legislature has been loud and earnest in its
condemnation of these immoral practices, now deemed
so enervating to the public morals.'
"True, the lawmaking body has not in so many
words declared the use of such devices a nuisance,
but it is our view that in substance and effect this
has been done.
"We have said these 'flicker devices' come
within the condemnation of the 1931 act and their
possession unlawful. They can be used for no lawful
purpose, and are scattered unlawfully throughout
defendants' trade territory.
"In Lee v. City of Birmingham, 223 Ala. 196, 135
So. 314, 315 [(1931)], speaking to a like question,
this court observed that 'it is held by respectable
authority that, if a gambling device is prohibited
by statute, its operation may be considered a
nuisance, and abated upon proper proceedings.'
"And in Mullen & Co. v. Moseley, 13 Idaho 457,
90 P. 986, 990, 12 L.R.A., N.S., 394, 121 Am. St.
Rep. 277, 13 Ann. Cas. 450 [(1907)], (cited in the
33
1180675; 1180794
Lee Case, supra), the court said: 'It has been
urged by counsel for appellants that, in order to
authorize the destruction of these machines, it was
necessary for the Legislature to declare them a
nuisance. The Legislature has in effect done so.
It has prohibited their use in any manner or form,
and
has
also
directed
that,
when
any
such
instruments are found within this state, they shall
be seized and destroyed. Making their use a crime
and rendering them incapable of any legitimate use
reduces them to the condition and state of a public
nuisance which they clearly are. This amounts as
effectually to declaring them a nuisance as if the
word "nuisance" itself had been used in the
Statute.'"
235 Ala. at 212, 178 So. at 234-35 (emphasis added).
Similarly, if the gaming devices at issue in the Macon County
case constitute illegal gambling devices, they can be used for
no lawful purpose and their "'operation may be considered a
nuisance, and abated upon proper proceedings.'" Try-Me, 235
Ala. at 235, 178 So. at 212 (quoting Lee v. City of
Birmingham, 223 Ala. 196, 197, 135 So. 314, 315 (1931)).
The Macon Circuit Court also held that the State had
other adequate remedies. However, as this Court noted in Try-
Me:
"The mere prosecution for a misdemeanor here
involved will not give complete relief. The State
is interested in the welfare of the people within
her domain, and, of consequence, in the enforcement
of the declared public policy against lotteries or
gift schemes in the nature thereof. And, as said by
34
1180675; 1180794
the Illinois court, Stead v. Fortner, 255 N.E. 468,
99 N.E. 680 [(1912)], here approvingly quoted in
State v. Ellis, [201 Ala. 295, 78 So. 71 (1918)]:
'As we have noted above, this court has never
regarded a criminal prosecution, which can only
dispose of an existing nuisance and cannot prevent
a renewal of the nuisance, for which a new
prosecution must be brought, as a complete and
adequate remedy for a wrong inflicted upon the
public. The public authorities have a right to
institute the suit where the general public welfare
demands it and damages to the public are not
susceptible of computation. The maintenance of the
public health, morals, safety, and welfare is on a
plane above mere pecuniary damage, although not
susceptible of measurement in money; and to say that
a court of equity may not enjoin a public nuisance
because property rights are not involved would be to
say that the state is unable to enforce the law or
protect its citizens from public wrongs.'"
235 Ala. at 212, 178 So. at 235.
Additionally, this Court's myriad decisions dealing with
the legality of
electronic bingo machines supports the State's
assertion that it does not have any other adequate remedy to
abate the public nuisances alleged here. In State v.
$223,405.86, 203 So. 3d 816 (Ala. 2016), this Court addressed
the State's appeal from an order dismissing a forfeiture
action against KCED on equal-protection grounds and the trial
court's conclusion "that 'the Macon County voter when voting
on [Local Amendment, Macon County, § 1, Ala. Const. 1901 (Off.
Recomp.) ('Amendment No. 744'),] understood it to be all forms
35
1180675; 1180794
of bingo."2 203 So. 3d at 822. In addressing the equal-
protection issue, this Court stated:
"This Court, however, may take notice of our own
prior decisions.
"The efforts of the State to enforce Alabama's
gambling laws and to prevent misuse of local
constitutional amendments legalizing bingo have
resulted in at least a dozen decisions by this Court
during the last six years.5 We began our analysis in
one of those cases, State v. Greenetrack, Inc., 154
So. 3d 940 (Ala. 2014), by noting the widespread
efforts
undertaken
by
State
law-enforcement
officials and by county and State courts to shut
down so-called 'electronic-bingo machines' in locale
after locale throughout Alabama:
"'[T]he State takes note of our holding in
[Barber
v.]
Cornerstone
[Community
Outreach, Inc., 42 So. 3d 65 (Ala. 2009),]
and our reliance upon Cornerstone last year
in Ex parte State, 121 So. 3d 337, 359
(Ala. 2013). The State also notes that,
consistent
with
these
holdings,
judges
have
in recent months issued warrants to the
State to seize so-called "electronic bingo
machines" in Greene, Houston, Jefferson,
and
Lowndes
Counties
and
judges
in
Jefferson and Houston Counties have issued
various final rulings finding this sort of
gambling illegal.'
2In State v. $223,405.86, this Court issued a writ of
mandamus disqualifying one of the Macon County circuit court
judges from presiding over the forfeiture case. After "[a]ll
the other eligible judges in the Fifth Judicial Circuit, which
includes Macon County, voluntarily recused themselves,"
Montgomery Circuit Judge William Shashy was appointed to
preside over that case. 203 So. 3d at 821.
36
1180675; 1180794
"154 So. 3d at 948. Indeed, Greenetrack itself and
other cases evidence continuing activity on the part
of the State since the February 19, 2013, raid at
VictoryLand [casino] to enforce Alabama's gambling
laws against other casinos operating in the State.
See, e.g., Houston Cty. Econ. Dev. Auth. v. State,
168 So. 3d 4 (Ala. 2014) (Houston County); Alabama
v. PCI Gaming Auth., 801 F.3d 1278 (11th Cir. 2015)
(relating to a challenge by the State to the
operation of tribal casinos in Alabama).
"_____________________
"5See Houston Cty. Econ. Dev. Auth. v. State,
168 So. 3d 4 (Ala. 2014); State v. Greenetrack,
Inc., 154 So. 3d 940 (Ala. 2014); Ex parte State,
121 So. 3d 337 (Ala. 2013); Chorba–Lee Scholarship
Fund, Inc. v. Hale, 60 So. 3d 279 (Ala. 2010);
Riley v. Cornerstone Cmty. Outreach, Inc., 57 So. 3d
704 (Ala. 2010); Barber v. Cornerstone Cmty.
Outreach, Inc., 42 So. 3d 65 (Ala. 2009); Ex parte
Rich, 80 So. 3d 219 (Ala. 2011); Surles v. City of
Ashville, 68 So. 3d 89 (Ala. 2011); Tyson v. Jones,
60 So. 3d 831 (Ala. 2010); Etowah Baptist Ass'n v.
Entrekin, 45 So. 3d 1266 (Ala. 2010); Tyson v. Macon
Cty. Greyhound Park, Inc., 43 So. 3d 587 (Ala.
2010); and Macon Cty. Greyhound Park, Inc. v.
Knowles, 39 So. 3d 100 (Ala. 2009)."
203 So. 3d at 826. Subsequently, in addressing the meaning of
the term "bingo" in Amendment No. 744, this Court stated:
"Section 65 of the Alabama Constitution of 1901
prohibits 'lotteries,' 'gift enterprises,' and 'any
scheme in the nature of a lottery.' The elements of
a lottery that violate § 65 of the Constitution of
Alabama are '(1) a prize, (2) awarded by chance, and
(3) for a consideration.' Pepsi Cola Bottling Co.
of Luverne, Inc. v. Coca–Cola Bottling Co.,
Andalusia, 534 So. 2d 295, 296 (Ala. 1988). It is
this so-called 'anti-lottery provision' that stands
37
1180675; 1180794
as the constitutional bar not just to what is known
in contemporary parlance as a 'lottery,' but to slot
machines and all other forms of gambling in Alabama.
In 1981, the Justices of this Court, quoting
Yellow–Stone Kit v. State, 88 Ala. 196, 7 So. 338
(1889), explained that '"[t]he courts have shown a
general disposition to bring within the term
'lottery' every species of gaming, involving a
disposition of prizes by lot or chance...."'
Opinion of the Justices No. 277, 397 So. 2d 546, 547
(Ala. 1981).9
"The efforts to circumvent § 65 have taken on a
seemingly endless variety of imaginative forms over
a long period. For over 100 years, the appellate
courts of this State have addressed cases involving
efforts by gambling interests to evade this
prohibition in an endless variety of new and
inventive ways. See, e.g., Grimes v. State, 235
Ala. 192, 193, 178 So. 73, 73 (1937) (noting that
the language of § 65 was adopted from the Alabama
Constitution of 1875 and that '[t]he lust for profit
by catering to and commercializing the gambling
spirit has given rise to many ingenious devices').
As this Court explained in 2006 in responding to yet
another of those attempts:
"'The
owners
[of
the
gambling
establishment] propose that they have
found, and exploited, a "loophole" in the
law....
Alabama's
gambling
law,
however,
is
not so easily evaded. It is "'the policy
of the constitution and laws of Alabama [to
prohibit] the vicious system of lottery
schemes and the evil practice of gaming, in
all their protean shapes.'"'
"Barber v. Jefferson Cty. Racing Ass'n, Inc., 960
So. 2d 599, 614 (Ala. 2006) (quoting Opinion of the
Justices No. 83, 249 Ala. 516, 517, 31 So. 2d 753,
754 (1947), quoting in turn Johnson v. State, 83
38
1180675; 1180794
Ala. 65, 67, 3 So. 790, 791 (1887) ([final] emphasis
added in Barber)).
"The latest 'protean shape' conceived by those
who would own or operate casinos in Alabama has been
electronic machines claimed to constitute the game
of 'bingo' within the meaning of various local
constitutional amendments that allow bingo in
certain counties for charitable or similar purposes.
Before directly examining this recent conception, it
is helpful to consider our courts' response to
earlier 'protean shapes' conceived in an effort to
circumvent § 65.
"One of the earliest rejections by our courts of
attempts to misuse local bingo amendments occurred
a little over 20 years ago. In City of Piedmont v.
Evans, 642 So. 2d 435 (Ala. 1994), this Court held
that 'instant bingo' was a form of lottery
prohibited by § 65. The Court narrowly construed
the term 'bingo' as found in Amendment No. 508, Ala.
Const. 1901 (now Local Amendments, Calhoun County,
§ 1, Ala. Const. 1901 (Off. Recomp.)), while citing
with approval the definition of that term employed
by a related municipal ordinance:
"'"'That
specific
kind
of
game,
or
enterprise, commonly known as "bingo," in
which prizes are awarded on the basis of
designated numbers, or symbols, which are
drawn, at random, by the operator of said
game and which are placed by the persons
playing, or participating in said game, on
cards, or sheets of paper, which contain,
or set out, numbered spaces, upon which
said designated numbers or symbols, may be
placed
by
the
persons
playing
or
participating in said game.'"'
"City of Piedmont, 642 So. 2d at 437 (emphasis
added).
39
1180675; 1180794
"Three years later, in Foster v. State, 705 So.
2d 534 (Ala. Crim. App. 1997), a unanimous Court of
Criminal Appeals held in an opinion authored by then
Judge Cobb that, where 'bingo' is authorized but not
otherwise defined by local constitutional amendment,
that term means nothing '"other than the ordinary
game of bingo."' 705 So. 2d at 538 (quoting Barrett
v. State, 705 So. 2d 529, 532 (Ala. Crim. App.
1996)). The Foster court upheld the appellant's
conviction
and
12–month
prison
sentence
for
promoting gambling and possession of a gambling
device where the appellant had contended that the
gambling activity he operated was 'bingo' within the
meaning of the local bingo amendment and of a city
ordinance adopted pursuant to that amendment. The
court acknowledged '"this state's strong public
policy against lotteries as expressed in § 65 of the
Alabama Constitution,"' declared that bingo is a
'narrow exception to the prohibition of lotteries in
the Alabama Constitution,' and, accordingly, held
that 'no expression in [an] ordinance [governing the
operation of bingo] can be construed to include
anything other than the ordinary game of bingo,'
lest the ordinance be 'inconsistent with the
Constitution of Alabama.' 705 So. 2d at 537–38
(emphasis added); see also Barrett v. State, 705 So.
2d 529 (Ala. Crim. App. 1996) (to similar effect).
"In more recent years, the strategy of misusing
local bingo amendments has been renewed with
additional vigor and creativity. Indeed, ... in
just the past six years, the appellate courts of
this State have rendered at least a dozen decisions
engendered by the advent of so-called 'electronic
bingo.'10 No less than six of those cases addressed
the meaning of the simple term 'bingo' found in
those amendments,11 including Amendment No. 744,
which we addressed in one of those cases.12 The
local bingo amendments at issue in those cases were
proposed and adopted following, and thus with an
actual or imputed knowledge of, the holdings in
Evans, Foster, and Barrett. See, e.g., Ex parte
40
1180675; 1180794
Fontaine Trailer Co., 854 So. 2d 71, 83 (Ala.
2003)('It is an ingrained principle of statutory
construction that "[t]he Legislature is presumed to
be aware of existing law and judicial interpretation
when it adopts [an act]. Ex parte Louisville &
N.R.R., 398 So. 2d 291, 296 (Ala. 1981)."' (quoting
Carson v. City of Prichard, 709 So. 2d 1199, 1206
(Ala.1998))). Consistent with the holdings in those
earlier cases, we repeatedly have made clear in our
more recent cases that references to 'bingo' in
local bingo amendments are references to the
ordinary game of bingo, and not to the electronic
machines at issue in those cases.
"The first in the most recent line of cases
addressing the meaning of the term 'bingo' was
Barber v. Cornerstone Community Outreach, Inc., 42
So. 3d 65 (Ala. 2009). In Cornerstone, this Court
addressed the meaning of the term 'bingo' in the
context of Amendment No. 674, Ala. Const. 1901
(Local Amendments, Lowndes County, § 3, Ala. Const.
1901 (Off. Recomp.)), applicable to the Town of
White Hall in Lowndes County. The operative
language of that amendment states simply that '[t]he
operation of bingo games for prizes or money by
nonprofit organizations for charitable, educational
or other lawful purposes shall be legal in The Town
of White Hall that is located in Lowndes County....'
(Emphasis added.) In addition to our reliance upon
Evans and Barrett, cited above, we noted in
Cornerstone that the operative language of Amendment
No. 674, including the unadorned reference to
'bingo,' was the same as in other local amendments
that had been adopted. See Cornerstone, 42 So. 3d
at 78–80 (comparing in particular the language of
Amendment No. 674 to that of Amendment No. 508
(Local Amendments, Calhoun County, § 1, Ala. Const.
1901 (Off. Recomp.)), which was at issue in Evans
and which states that '[t]he operation of bingo
games for prizes or money by certain nonprofit
organizations for charitable, educational, or other
lawful purposes shall be legal in Calhoun county'
41
1180675; 1180794
(emphasis added)). The language at issue in the
present case, in Amendment No. 744 applicable to
Macon County, is identical to the language found in
the White Hall and Calhoun County amendments (as it
is to the other local bingo amendments governing
various localities...): 'The operation of bingo
games for prizes or money by nonprofit organizations
for
charitable,
educational,
or
other
lawful
purposes shall be legal in Macon County.' (Emphasis
added.)
"In fact, we noted in Cornerstone that the only
local bingo amendment we could find in Alabama that
had any noteworthy variation in terminology was the
amendment applicable to Greene County, Amendment No.
743 (Local Amendments, Greene County, § 1, Ala.
Const. 1901 (Off. Recomp.)), which specifically
allows 'electronic marking machines.' Even this
language, we explained, does nothing more than allow
a player to physically mark an electronic screen
rather than a paper card. We specifically noted
that this variance in language did not change the
other
essential
characteristics
of
the
game
described in Cornerstone, 42 So. 3d at 79–80. See
also discussion of State v. Greenetrack, Inc., 154
So. 3d 940 (Ala. 2014), infra.
"Having thus noted the similarity in wording of
the various local bingo amendments, this Court in
Cornerstone went on to emphasize two rules of
construction applicable to that wording. We first
observed that,
"'"[s]ince
1980,
Alabama
has
adopted
various constitutional amendments creating
exceptions to § 65, specifically allowing
the
game
of
bingo
under
certain
circumstances. See Ala. Const. [1901],
Amendments 386, 387, 413, 440, 506, 508,
542, 549, 550, 565, 569, 599, and 612."
(Emphasis
added.)
Thus,
the
bingo
amendments are exceptions to the lottery
42
1180675; 1180794
prohibition, and the exception should be
narrowly construed.'
"Cornerstone, 42 So. 3d at 78 (quoting Opinion of
the Justices No. 373, 795 So. 2d 630, 634 (Ala.
2001) (second emphasis added)). In addition, we
recognized in Cornerstone that,
"'except
where
the
language
of
a
constitutional
provision
requires
otherwise, we look to the plain and
commonly understood meaning of the terms
used in [the constitutional] provision to
discern its meaning.'
"42 So. 3d at 79 (emphasis added). (Furthermore, we
noted that, '"[a]lthough a legislative act cannot
change the meaning of a constitutional provision,
such act may throw light on its construction."' Id.
at 79 (quoting Jansen v. State ex rel. Downing, 273
Ala. 166, 169, 137 So. 2d 47, 49 (1962)).)
"Based on these principles, as well as an
examination of the cases cited above and persuasive
authority from other jurisdictions, we held in
Cornerstone that the term 'bingo' 'was intended to
reference the game commonly or traditionally known
as bingo.' 42 So. 3d at 86. Furthermore, we
identified six elements that characterize that game,
the list being nonexhaustive:
"'Based on the foregoing, we must
conclude that the term "bingo" as used in
Amendment No. 674 was intended to reference
the game commonly or traditionally known as
bingo. The characteristics of that game
include the following:
"'1. Each player uses one or
more cards with spaces arranged
in five columns and five rows,
with an alphanumeric or similar
43
1180675; 1180794
designation
assigned
to
each
space.
"'2. Alphanumeric or similar
designations are randomly drawn
and announced one by one.
"'3. In order to play, each
player must pay attention to the
values announced; if one of the
values matches a value on one or
more of the player's cards, the
player must physically act by
marking
his
or
her
card
accordingly.
"'4. A player can fail to
pay
proper
attention
or
to
properly mark his or her card,
and thereby miss an opportunity
to be declared a winner.
"'5. A player must recognize
that his or her card has a
"bingo," i.e., a predetermined
pattern of matching values, and
in turn announce to the other
players and the announcer that
this is the case before any other
player does so.
"'6.
The
game
of
bingo
contemplates a group activity in
which multiple players compete
against each other to be the
first to properly mark a card
with the predetermined winning
pattern and announce that fact.'
"42 So. 3d at 86.
44
1180675; 1180794
"Several months after
the
release
of
our
opinion
in Cornerstone, we decided Riley v. Cornerstone
Community Outreach, Inc., 57 So. 3d 704 (Ala. 2010),
in which we explained that we had recognized in
Cornerstone 'that the game of bingo authorized by
the local amendment was that game commonly and
traditionally known as bingo, and we [had] provided
a non-exhaustive list of characteristics of that
game.' Riley, 57 So. 3d at 710. We also noted that
'the game traditionally known as bingo' is a game
that
"'is not played by or within the electronic
or computerized circuitry of a machine, but
one that is played on physical cards
(typically made of cardboard or paper) and
that
requires
meaningful
interaction
between those who are playing and someone
responsible for calling out the randomly
drawn
designations
corresponding
to
designations on the players' cards.'
"57 So. 3d at 734.
"On March 1, 2013, this Court again affirmed
that the Cornerstone test was applicable to the term
'bingo' as used in Alabama's various local bingo
amendments, including specifically the Macon County
amendment at issue in the case now before us. See Ex
parte State, 121 So. 3d 337 (Ala. 2013). This Court
left no doubt that the language of Amendment No. 744
authorizes only the game 'traditionally known as
bingo,' and we again affirmed the Cornerstone test.
We explained that the Cornerstone test 'refers to
the game commonly and traditionally known as
"bingo,"' which includes the six elements of that
traditional game as described in Cornerstone, and
that the test was 'more than clear enough to serve
as guide in measuring the facts of th[at] case'
against the language of Amendment No. 744. Ex parte
State, 121 So. 3d at 356.
45
1180675; 1180794
"On April 1, 2014, this Court decided State v.
Greenetrack, Inc., 154 So. 3d 940 (Ala. 2014), a
case in which we yet again affirmed that the
references to 'bingo' in the local bingo amendments,
including,
in
that
case,
Amendment
No.
743
applicable to Greene County, are references to the
'traditional game of bingo' and the nonexhaustive
list of six elements of that game as set out in
Cornerstone. As already noted, ... we began our
analysis by noting the widespread efforts undertaken
by State law-enforcement officials and by county and
State courts to shut down so-called electronic-bingo
machines in locale after locale throughout Alabama.
"As to the meaning of the term 'bingo' in
Amendment No. 743, we held that the denial of a
search warrant by a trial court judge had been made
based upon 'an incorrect legal standard,' namely, an
incorrect understanding of what constituted 'bingo'
for purposes of Amendment No. 743. Greenetrack,
Inc., 154 So. 3d at 958. We reaffirmed the
ubiquitous meaning of the term 'bingo' in Alabama's
various local bingo amendments:
"'Amendment No. 743, just like the
amendment at issue in Cornerstone and bingo
amendments applicable to other counties,
speaks of and permits the playing of "bingo
games" (provided that a number of other
restrictions,
including
charitable
purposes, are met).[14] We identified in
Cornerstone and we reaffirm today that the
game of "bingo" as that term is used in
local constitutional amendments throughout
the State is that game "commonly or
traditionally known as bingo," 42 So. 3d at
86, and that this game is characterized by
at least the six elements we identified in
Cornerstone. Id.'
"Greenetrack, Inc., 154 So. 3d at 959 (emphasis
added).
46
1180675; 1180794
"As already noted, we further explained in
Greenetrack that there was only one noteworthy
difference between the language of Amendment No. 743
and the other local bingo amendments throughout the
State. In this regard, we noted that Amendment No.
743 allows for the use of 'electronic marking
machines' rather than 'a "card" in the sense of a
flat rectangular or square object made of paper,
cardboard, or some similar material on which the
required designations are printed.' Greenetrack,
Inc., 154 So. 3d at 959. We emphasized that, in all
other respects, the characteristics of bingo as that
term is used in other local bingo amendments are
applicable under Amendment No. 743 and reiterated
and affirmed our discussion of Amendment No. 743 in
Cornerstone:
"'"Amendment No. 743 ... legalizes in
Greene County a form of bingo that would
include an 'electronic marking machine' in
lieu of a paper card. Even [Amendment No.
743], which is the only amendment in
Alabama we have located that makes any
reference
to
the
use
of
electronic
equipment of any form, contemplates a game
in all material respects similar to the
game of bingo described in § 45–8–150(1),
[Ala. Code 1975,] [15] and something that
is materially different from the types of
electronic gaming machines at issue here.
Amendment No. 743 begins by saying that
'bingo' is '[t]hat specific kind of game
commonly known as bingo.' The definition
then explains that bingo is a game 'in
which prizes are awarded on the basis of
designated numbers or symbols on a card or
electronic marking machine conforming to
numbers or symbols selected at random.'
Moreover, the equipment contemplated by
Amendment No. 743 for use in a bingo game
is entirely different than the equipment at
issue here. Specifically, Amendment No.
47
1180675; 1180794
743 defines 'equipment' for the game of
bingo as follows:
"'"'The receptacle and numbered
objects drawn from it, the master
board upon which such objects are
placed as drawn, the cards or
sheets bearing numbers or other
designations to be covered and
the objects used to cover them or
electronic card marking machines,
and the board or signs, however
operated, used to announce or
display
the
numbers
or
designations
as
they
are
drawn.'"'
"154 So. 3d at 960 (quoting Cornerstone, 42 So. 3d
at 79–80).
"Finally, on November 21, 2014, this Court
decided
Houston
County
Economic
Development
Authority v. State, 168 So. 3d 4 (Ala. 2014). As we
have done yet again in this opinion, we reviewed in
Houston County much of the history of this Court's
decisions addressing bingo over the past six years.
In so doing, we once again affirmed that the
unadorned term 'bingo' in Alabama's local amendments
is a reference to the game 'traditionally known as
bingo,' including the six elements for that game
discussed in Cornerstone:
"'This Court repeatedly has held that
"bingo" is a form of lottery prohibited by
Ala. Const. 1901, Art. IV, § 65. See,
e.g.,
Barber
v.
Cornerstone
Cmty.
Outreach,
Inc., 42 So. 3d 65, 78 (Ala. 2009); City of
Piedmont v. Evans, 642 So. 2d 435, 436
(Ala. 1994). We therefore begin our
analysis by emphasizing once again that the
various
constitutional
amendments
permitting "bingo" are exceptions to the
48
1180675; 1180794
general prohibition of § 65 and that, as
such, they must be "narrowly construed."
As we held in Cornerstone:
"'"'Since
1980,
Alabama
has
adopted various constitutional
amendments creating exceptions to
§ 65, specifically allowing the
game
of
bingo
under
certain
circumstances. See Ala. Const.
[1901], Amendments 386, 387, 413,
440, 506, 508, 542, 549, 550,
565,
569,
599,
and
612.'
(Emphasis added.) Thus, the
bingo amendments are exceptions
to the lottery prohibition, and
the exception should be narrowly
construed."
"'42 So. 3d at 78 (quoting Opinion of the
Justices No. 373, 795 So. 2d 630, 634 (Ala.
2001)).
"'In addition to this fundamental
principle
of
"narrow
construction," we
also
recognized
in
Cornerstone
the
need,
"except
where the language of a constitutional
provision requires otherwise," to "look to
the plain and commonly understood meaning
of the terms used in [the constitutional]
provision to discern its meaning." 42 So.
3d at 79. Furthermore, we noted that,
"'[a]lthough a legislative act cannot
change the meaning of a constitutional
provision, such act may throw light on its
construction."' Id. at 79 (quoting Jansen
v. State ex rel. Downing, 273 Ala. 166,
169, 137 So. 2d 47, 49 (1962)). Based on
the above-described rules of construction,
together with an examination of persuasive
authority
from
other
jurisdictions, we
held
in Cornerstone that the term "bingo" "was
49
1180675; 1180794
intended to reference the game commonly or
traditionally known as bingo." 42 So. 3d at
86. Furthermore,
we identified
six
elements that characterize the game of
bingo, the list being nonexhaustive:
"'"...."
"'We have since stated that our
analysis in Cornerstone is applicable to
the
other
local
bingo
constitutional
amendments in this State. State v.
Greenetrack, Inc., 154 So. 3d 940, 959
(Ala. 2014) ("[T]he game of 'bingo' as that
term is used in local constitutional
amendments throughout the State is that
game 'commonly or traditionally known as
bingo,' 42 So. 3d at 86, and ... this game
is characterized by at least the six
elements we identified in Cornerstone.").'
"168 So. 3d at 9–11 (first emphasis original; other
emphasis added).
"Moreover, it
was
necessary in
Houston County to
elaborate upon each of the Cornerstone elements to
respond to the construction given each of them by
the trial court in that case. Although it is not
necessary to reproduce here our elaboration upon
each of the six elements, by this reference we
reaffirm that analysis. Further, we reiterate our
conclusion in Houston County, which summarized much
of that analysis:
"'[T]he game traditionally known as bingo
is not one played by or within an
electronic
or
computerized
machine,
terminal, or server, but is one played
outside
of
machines
and
electronic
circuitry. It is a group activity, and one
that requires a meaningful measure of human
interaction and skill. This includes
50
1180675; 1180794
attentiveness
and
discernment
and
physical,
visual,
auditory,
and
verbal
interaction
by
and between those persons who are playing
and between the players and a person
commonly known as the "announcer" or
"caller," who is responsible for calling
out the randomly drawn designations and
allowing time between each call for the
players to check their cards and to
physically
mark
them
accordingly.
In
accordance with the previously stated list
of characteristics, each player purchases
and plays the game on one or more cards
that, in a county such as Houston County
(in which the amendment does not expressly
permit "electronic marking machines"), are
not
electronic
devices
or
electronic
depictions of playing surfaces but are
actual physical cards made of cardboard,
paper,
or
some
functionally
similar
material that is flat and is preprinted
with
the
grid
and
the
designations
[required].'
"168 So. 3d at 18 (emphasis added).
"KCED concedes that the machines at issue here
are not the game commonly and traditionally known as
bingo and that they do not meet the six elements
identified in Cornerstone and further explained in
Houston County. Nonetheless, KCED takes the
position that the term 'bingo' in Amendment No. 744
means something different than that term in
Alabama's
other
'bingo
amendments.'
KCED's
position,
however,
is
contrary
to
all
the
above-discussed
precedents,
as
well
as
the
well-settled principles of plain meaning and narrow
construction upon which they are based. The
language of Amendment No. 744 is clear, and the
'plain and commonly understood meaning' of the
simple term 'bingo,' especially when coupled with
the principle of narrow construction, necessarily
51
1180675; 1180794
yields the same meaning as a matter of law for that
term in Macon County's Amendment No. 744 as it does
for the same term in Alabama's numerous other bingo
amendments.
"As
Justice Harwood noted
in
his
special writing
in City of Bessemer v. McClain, 957 So. 2d 1061,
1082 (Ala. 2006) (Harwood, J., concurring in part
and dissenting in part): '[D]eference to the
ordinary and plain meaning of the language of a
statute is not merely a matter of an accommodating
judicial philosophy; it is a response to the
constitutional mandate of the doctrine of the
separation of powers set out in Art. III, § 43,
Alabama Constitution of 1901.' This principle, of
course, is equally applicable to constitutional
provisions.
"This Court is not at liberty to deviate from
the plain meaning of the term 'bingo' nor from the
principle of narrow construction heretofore noted.
It simply cannot feasibly be maintained that
Alabama's
local
bingo
amendments
permitting
charitable 'bingo,' by their repeated use of this
same unadorned term in amendment after amendment,
communicate an array of different meanings. Nor can
it be maintained that the meaning of each local
amendment was to be decided by the judicial branch
based upon what might later be proved in a courtroom
regarding who said what to whom following the
drafting and proposal of the amendment, or what
peculiar meaning some voter or group of voters did
or did not assume as to the words employed in the
amendment. ... See also [Jane S.] Schacter, [The
Pursuit of 'Popular Intent': Interpretive Dilemmas
in Direct Democracy,] 105 Yale L.J. [107,] 124–25
[(1995)] ('[T]he problem of aggregating multiple
individual intentions, substantial as it is in the
context of the legislative process, is compounded by
the daunting scale of direct lawmaking. Even if we
granted that individual voter intent existed -- a
dubious premise, I will argue -- courts simply could
52
1180675; 1180794
not cumulate what may be millions of voter
intentions.'). At best, it would be unseemly, and
at worst illogical and impracticable, not to mention
contrary to a proper understanding of the role of
the judiciary, for this and other courts of this
State to undertake to attribute some potentially
different meaning to each of the 17 local bingo
amendments, despite the fact that each of them uses
the same language.
"'"The intention of the Legislature,
to which effect must be given, is that
expressed in the [act], and the courts will
not
inquire
into
the
motives
which
influenced the Legislature or individual
members in voting for its passage, nor
indeed as to the intention of the draftsman
or of the Legislature so far as it has not
been expressed in the act. So in
ascertaining the meaning of a[n act] the
court will not be governed or influenced by
the views or opinions of any or all of the
members
of
the
Legislature,
or
its
legislative
committees
or
any
other
person."'
"James v. Todd, 267 Ala. [495,] 506, 103 So. 2d
[19,] 28–29 [(1957)] (quoting Wiseman v. Madison
Cadillac Co., 191 Ark. 1021, 88 S.W.2d 1007, 1009
(1935)); see also Fraternal Order of Police, Lodge
No. 64 v. Personnel Bd. of Jefferson Cty., 103 So.
3d 17, 27 (Ala. 2012) ('Words used in [an act] must
be given their natural, plain, 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. If the
language of the [act] is unambiguous, then there is
no room for judicial construction and the clearly
expressed intent of the legislature must be given
effect.' (internal quotation marks omitted)); Hill
v. Galliher, 65 So. 3d 362, 370 (Ala. 2010) ('"'If,
giving the ... language [of the act] its plain and
53
1180675; 1180794
ordinary meaning, we conclude that the language is
unambiguous,
there
is
no
room
for
judicial
construction.'"' (quoting Bright v. Calhoun, 988 So.
2d 492, 498 (Ala. 2008), quoting in turn City of
Bessemer v. McClain, 957 So. 2d 1061, 1074–75 (Ala.
2006))).
"Based on the foregoing, there is no room for
any conclusion other than that which we reached in
Ex parte State: The term 'bingo' as used in
Amendment No. 744 means the traditional game of
bingo as has been described by this Court. The
Cornerstone elements, as since expounded upon in
Houston County, are yet again reaffirmed. They are
applicable to the term 'bingo' in Amendment No. 744,
just as they are applicable to the use of that term
in Alabama's other local bingo amendments.
"In our opinion in Cornerstone, published over
six years ago, we noted certain arguments made by
the State at that time. It is surprising, given our
opinion
in
Cornerstone
and
our
opinions
in
subsequent cases during the ensuing six years, that
the following arguments remain germane today:
"'"First, there is no question
that this case 'involve[s] a
matter of public importance.'
Chapman[ v. Gooden], 974 So. 2d
[972,] 989 [(Ala. 2007)]....
"'"The issue is before the
Court because [the State has]
shown that there is no reasonable
chance that the machines at issue
could be found to be anything
other than slot machines, and no
reasonable
chance
that
the
computer program used to run them
qualifies as the game commonly
known as bingo within the meaning
of Amendment 674. A ruling by
54
1180675; 1180794
this Court to that effect would
surely put a practical end to
this latest effort by gambling
interests around the State to
make a mockery of this State's
gambling laws .... They prefer to
delay,
continue
to
rake
in
millions during the delay with
procedural
maneuvers
such
as
those they have engaged in here
and in other appeals before this
Court, and ultimately pin their
hopes
on
the
possibility
of
political
changes
which
they
believe may come with delay."
"'....
"'"... Despite this Court's
clear, emphatic, and repeated
disapproval
of
every
artful
attempt to circumvent Alabama's
anti-gambling law, see, e.g.,
Barber v. Jefferson County Racing
Assoc., 960 So. 2d 599, 614 (Ala.
2006), gambling interests, as
demonstrated
by
this
case,
continue to flout those laws."'
"Cornerstone, 42 So. 3d at 76 (quoting arguments
made on behalf of the State of Alabama).
"Today's decision is the latest, and hopefully
the last, chapter in the more than six years' worth
of attempts to defy the Alabama Constitution's ban
on 'lotteries.' It is the latest, and hopefully the
last, chapter in the ongoing saga of attempts to
defy the clear and repeated holdings of this Court
beginning in 2009 that electronic machines like
those at issue here are not the 'bingo' referenced
in local bingo amendments. It is the latest, and
hopefully the last, chapter in the failure of some
55
1180675; 1180794
local law-enforcement officials in this State to
enforce the anti-gambling laws of this State they
are sworn to uphold,18 thereby necessitating the
exercise and performance by the attorney general of
the authority and duty vested in him by law, as the
chief law-enforcement officer of this State, to
enforce the criminal laws of this State. And
finally, it is the latest, and hopefully last,
instance in which it is necessary to expend public
funds to seek appellate review of the meaning of the
simple term 'bingo,' which, as reviewed above, has
been declared over and over and over again by this
Court. There is no longer any room for uncertainty,
nor justification for continuing dispute, as to the
meaning of that term. And certainly the need for
any further expenditure of judicial resources,
including the resources of this Court, to examine
this issue is at an end. All that is left is for
the law of this State to be enforced.
"_______________________
"9The nature and the extent of the limitations
imposed by § 65 have been the subject of many
opinions by this Court. See, e.g., Opinion of the
Justices No. 373, 795 So. 2d 630, 634–35 (Ala. 2001)
(citing William Blackstone and numerous cases to the
effect that the prohibition of lotteries encompasses
a
wide
variety
of
gambling,
including
slot
machines); Minges v. City of Birmingham, 251 Ala.
65, 69, 36 So. 2d 93, 96 (1948)(quoting 34 Am.Jur.
Lotteries § 6 (1941), to explain that, under the
so-called 'American Rule' definition of a lottery,
'"chance must be the dominant factor,"' but that
this criterion '"is to be taken in the qualitative
or causative sense, rather than the quantitative
sense"'). See also McKittrick v. Globe–Democrat
Publ'g Co., 341 Mo. 862, 881, 110 S.W.2d 705, 717
(1937) (explaining the 'qualitative sense' to mean
that 'the fact that skill alone [would] bring
contestants to a correct solution of a greater part
of the problems does not make the contest any the
56
1180675; 1180794
less a lottery if chance enters into the solution of
another lesser part of the problems and thereby
proximately influences the final result'); Horner v.
United States, 147 U.S. 449, 459, 13 S. Ct. 409, 37
L. Ed. 237 (1893) (finding it dispositive that the
scheme in the case before it was one in which '[t]he
element of certainty [went] hand in hand with the
element of lot or chance,' but that 'the former
[did] not destroy the existence or effect of the
latter'); and State ex rel. Tyson v. Ted's Game
Enters., 893 So. 2d 355, 374 (Ala. Civ. App. 2002)
(reviewing substantial authority that, under the
'American Rule,' 'whether a game or activity
constitutes a "lottery" depends on whether ... skill
override[s] the effect of the chance'), aff'd, 893
So. 2d 376, 377 (Ala. 2004)) (holding that § 65
prohibits any game 'in which skill does not
predominate
over
chance
in
determining
the
outcome').
"10See cases cited in note 11, infra, as well as
the following cases: Ex parte Rich, 80 So. 3d 219
(Ala. 2011); Surles v. City of Ashville, 68 So. 3d
89 (Ala. 2011); Tyson v. Jones, 60 So. 3d 831 (Ala.
2010); Etowah Baptist Ass'n v. Entrekin, 45 So. 3d
1266 (Ala. 2010); Tyson v. Macon Cty. Greyhound
Park, Inc., 43 So. 3d 587 (Ala. 2010); and Macon
Cty. Greyhound Park, Inc. v. Knowles, 39 So. 3d 100
(Ala. 2009).
"11See Houston Cty. Econ. Dev. Auth. v. State,
168 So. 3d 4 (Ala. 2014); State v. Greenetrack,
Inc., 154 So. 3d 940 (Ala. 2014); Ex parte State,
121 So. 3d 337 (Ala. 2013); Chorba–Lee Scholarship
Fund, Inc. v. Hale, 60 So. 3d 279 (Ala. 2010); Riley
v. Cornerstone Cmty. Outreach, Inc., 57 So. 3d 704
(Ala. 2010); and Barber v. Cornerstone Cmty.
Outreach, Inc., 42 So. 3d 65 (Ala. 2009).
"12Ex parte State, 121 So. 3d 337 (Ala. 2013).
57
1180675; 1180794
"14In most, if not all, of the cases involving
electronic gaming decided by this Court over the
past six years, substantial questions would exist as
to whether, even if the machines at issue had
constituted 'bingo,' they were being operated for
the charitable purposes required by the local bingo
amendments at issue in those cases. This Court has
not reached this latter issue because the machines
have not met the threshold requirement of being
'bingo' within the meaning of the local bingo
amendment at issue in each case.
"15As we explained in Cornerstone, § 45–8–150(1)
(applicable to Calhoun County), describes bingo as
'[t]he game commonly known as bingo,' which, it
states,
"'"is a game of chance played with cards
printed with five rows of five squares
each. Participants place markers over
randomly called numbers on the cards in an
attempt to form a preselected pattern such
as a horizontal, vertical, or diagonal
line, or all four corners. The first
participant
to
form
the
preselected
pattern
wins the game. The term 'bingo' means any
game of bingo of the type described above
in which wagers are placed, winners are
determined, and prizes or other property is
distributed in the presence of all persons
placing wagers in that game. The term
'bingo' does not refer to any game of
chance other than the type of game
described in this subdivision."'
"42 So. 3d at 79.
"18As noted, even the trial court in this case
candidly stated to the deputy attorney general
prosecuting this case: 'You know as well as I do
[local law enforcement,] they're not going to do it,
so it comes to [your office].' ..."
58
1180675; 1180794
203 So. 3d at 834-45 (some emphasis added; footnotes 13, 16,
17, and 19 omitted).
Nevertheless, in State v. 825 Electronic Gambling
Devices, 226 So. 3d 660 (Ala. 2016), this Court was again
called upon to address whether another local amendment in
Houston County authorized electronic-bingo games in that
county. After determining that the games being played on the
machines
seized
in
that
case
did
not
satisfy
the
characteristics of the game of bingo set forth in Cornerstone,
this Court stated:
"In
State
v.
$223,405.86,
this
Court
emphasized,
and we now reaffirm:
"'There
is
no
longer
any
room
for
uncertainty,
nor
justification
for
continuing dispute, as to the meaning of
[the term "bingo"]. And certainly the need
for any further expenditure of judicial
resources, including the resources of this
Court, to examine this issue is at an end.
All that is left is for the law of this
State to be enforced.'
"203 So. 3d at 845."
226 So. 3d at 672.
However, yet again, this Court is presented with new
cases in which the State alleges that the defendants are
operating illegal slot machines and gambling devices in their
59
1180675; 1180794
respective counties. In its complaint in the Macon County
case, the State asserted that gambling is generally illegal in
Alabama; that "[t]he State's prohibition on gambling is so
fundamental that the People enshrined it in the Constitution.
See Ala. Cons. art. IV, § 65"; that the legislature has
criminalized the possession of slot machines and other
gambling devices; that, "because of the immense profits
associated with organized gambling, the industry frequently
has tried to 'evade[]' these prohibitions, as the Alabama
Supreme Court put it in Barber v. Jefferson Cnty. Racing
Ass'n, 960 So. 2d 599 (Ala. 2006), by asserting that
'loophole[s]' in Alabama law were much larger than they in
fact were. Id. at 614"; and that this Court has repeatedly
held that the game of bingo cannot be played on electronic
machines in Alabama. It then went on to allege that the
gambling devices at the Macon County defendants' casino were
slot machines.
In its complaint, the State alleged that the continued
operation of the illegal slot machines and gambling devices by
the Macon County defendants constituted a public nuisance. It
also alleged:
60
1180675; 1180794
"The continued operation of slot machines and
unlawful gambling devices by Defendants works hurt,
inconvenience, or damage to the public interest.
"...
The
public
policy
of
Alabama
is
emphatically against lotteries or any scheme in the
nature of a lottery.
"... The State has an interest in the welfare
of the people within her domain and, of consequence,
in enforcement of the State's declared public policy
against lotteries or gift schemes. Try-Me Bottling
Co. at 235."
Based on this Court's decision in Try-Me and this Court's
subsequent
decisions
addressing
the
enforcement of
the
State's
gambling laws in regard to electronic bingo games, it is clear
that the State adequately alleged facts that would support a
finding that the Macon County defendants' conduct caused harm
to the public and that the State lacked another adequate
remedy. Accordingly, this is not a situation where it appears
beyond doubt that the State can prove no set of facts that
would entitle the State to relief. Therefore, the Macon
Circuit Court erred when it dismissed the State's amended
complaint on this ground.
II.
The State also argues that the circuit courts erred in
holding that it had failed to join indispensable parties. In
61
1180675; 1180794
their motions to dismiss, the defendants asserted that the
operators of the Wind Creek casinos were indispensable
parties. In their motions to dismiss, the Lowndes County
defendants asserted that:
"The Wind Creek casinos operate openly and
notoriously, and are many times larger than Macon
County Greyhound Park, and entertain significantly
great volumes of patrons than the establishments
identified in the Complaint. Furthermore, whether
'Indian gaming' is legal or illegal is irrelevant to
the State's claims because legal conduct can also
constitute a public nuisance. See Ala. Code §
6-5-120 (1975) ('A "nuisance" is anything that works
hurt, inconvenience, or damage to another. The fact
that the act done may otherwise be lawful does not
keep it from being a nuisance.').
"In order to establish a public nuisance, the
State of Alabama must establish proximate causation,
Tennessee Coal, Iron Rail Co. v. Hartline, 244 Ala.
116, 122, 11 So. 2d 833, 837 (1943) ('"The injurious
consequences or nuisance complained of should be the
natural, direct and proximate cause of defendant's
acts to render him liable for maintaining a public
nuisance."') (Quoting Joyce's Law of Nuisances, §
476, p. 690). Whether a public nuisance is the
proximate cause of the public injury requires a
finding of cause in fact and legal cause. City of
Chicago v. American Cyanamid Co., 823 N.E.2d 126,
133 (Ill. App. Ct. 2003). A cause in fact cannot
exist where the harm continues to occur absent the
defendant's conduct. See City of Chicago v. Beretta
U.S.A. Corp., 821 N.E.2d 1099, 1132 (Ill. 2005)
('The relevant inquiry is whether the harm would
have occurred absent the defendants' conduct. ...').
"The
State
of
Alabama
cannot
establish
proximate
causation for its alleged injury unless the State
62
1180675; 1180794
also seeks to enjoin all persons whose acts create
or contribute to the alleged harm to the public.
Thus, to obtain complete relief, the State of
Alabama must join the Wind Creek Casino operators in
this lawsuit. Without the Wind Creek Casino
operators, complete relief cannot be accorded among
the parties; and the Wind Creek Casino operators
claim an interest relating to the subject of the
action that to proceed in their absence would leave
the present Defendants subject to a substantial risk
of incurring inconsistent obligations. Rule 19(a),
Ala. R. Civ. P."
The Macon County defendants included virtually identical
assertions in their motions to dismiss. In response, the
State asserted that the indispensable-party argument dealt
with casinos operated by the Poarch Band of Creek Indians
("the Poarch Band"). During the hearing in the Lowndes County
case, the State asserted that it had previously attempted to
sue the Poarch Band in federal court and that the federal
court had dismissed the case because, "as a state, we don't
have jurisdiction on federal land so we could not pursue
anything there." The State further asserted that the Poarch
Band was not an essential party in either case because it was
not involved in any activity in Lowndes County or Macon
County.
The Lowndes Circuit Court found that the operators of the
Wind Creek casinos and "their bingo software providers" were
63
1180675; 1180794
indispensable parties and that the State had failed to join
them as parties in that case. The Macon Circuit Court found
that
the
operators
of
the
Wind
Creek
casinos
were
indispensable parties and that the State had failed to join
them as parties in that case.
Rule 19(a), Ala. R. Civ. P., provides, in pertinent part:
"A person who is subject to jurisdiction of the
court shall be joined as a party in the action if
(1) in the person's absence complete relief cannot
be accorded among those already parties, or (2) the
person claims an interest relating to the subject of
the action and is so situated that the disposition
of the action in the person's absence may (i) as a
practical matter impair or impede the person's
ability to protect that interest or (ii) leave any
of the persons already parties subject to a
substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of the
claimed interest. If the person has not been so
joined, the court shall order that the person be
made a party. If the person should join as a
plaintiff but refuses to do so, the person may be
made a defendant, or, in a proper case, an
involuntary plaintiff. If the joined party objects
to venue and joinder of that party would render the
venue of the action improper, that party shall be
dismissed from the action."
(Emphasis added.)
In Alabama v. PCI Gaming Authority, 801 F.3d 1278 (11th
Cir. 2015), the State "sued under state and federal law to
enjoin gaming at casinos owned by the Poarch Band of Creek
64
1180675; 1180794
Indians ... and located on Indian lands within the state's
borders." 801 F.3d at 1282. Because the Poarch Band was
immune from suit, the State "instead named as defendants PCI
Gaming Authority ('PCI'), an entity wholly owned by the
[Poarch Band] that operates the casinos, and tribal officials
in their official capacity." Id. In that case, the State
alleged that the gaming at the casinos constituted a nuisance
and should be enjoined. It went on to assert why Alabama
state law should apply to the casinos. In addressing the
issue of tribal sovereign immunity, the Eleventh Circuit Court
of Appeals stated:
"'Indian
tribes
are
"domestic
dependent
nations"
that exercise inherent sovereign authority over
their members and territories.' Okla. Tax Comm'n v.
Citizen Band Potawatomi Indian Tribe of Okla., 498
U.S. 505, 509, 111 S. Ct. 905, 112 L. Ed. 2d 1112
(1991) (quoting Cherokee Nation v. Georgia, 30 U.S.
(5 Pet.) 1, 17, 8 L. Ed. 25 (1831)). Indian tribes
therefore possess '"the common-law immunity from
suit traditionally enjoyed by sovereign powers."'
[Florida v. Seminole Tribe of Florida], 181 F.3d
[1237,] 1241 [(11th Cir. 1999)] (quoting Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670,
56 L. Ed. 2d 106 (1978)). A suit against a tribe is
'barred unless the tribe clearly waived its immunity
or Congress expressly abrogated that immunity by
authorizing the suit.' Id. Although the Supreme
Court has expressed doubts about 'the wisdom of'
tribal
immunity,
the
Court
nonetheless
has
recognized that 'the doctrine of tribal immunity is
settled law and controls' unless and until Congress
65
1180675; 1180794
decides to limit tribal immunity. Kiowa Tribe of
Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 756–58,
118 S. Ct. 1700, 140 L. Ed. 2d 981 (1998); see also
[Michigan v.] Bay Mills [Indian Cmty.], [572 U.S.
782, 800,] 134 S. Ct. [2024,] 2037 [(2014)] ('[I]t
is fundamentally Congress's job, not ours, to
determine
whether
or
how
to
limit
tribal
immunity.'). Here, the [Poarch Band] has not waived
its immunity and Congress has not expressly
abrogated it. The question we face is whether PCI
and the Individual Defendants also enjoy tribal
immunity.
"A. PCI
"Alabama argues that PCI does not share in the
[Poarch Band's] immunity because PCI is a business
entity separate from the [Poarch Band] that engages
in
commercial,
not
governing,
activities.
We
conclude that PCI shares in the [Poarch Band's]
immunity because it operates as an arm of the
[Poarch Band].
"First, the Supreme Court has not 'drawn a
distinction between governmental and commercial
activities of a tribe' when deciding whether there
is tribal immunity from suit. Kiowa Tribe, 523 U.S.
at 754–55, 118 S. Ct. 1700. Second, we agree with
our sister circuits that have concluded that an
entity that functions as an arm of a tribe shares in
the tribe's immunity. See Allen v. Gold Country
Casino, 464 F.3d 1044, 1046 (9th Cir. 2006) ('When
the tribe establishes an entity to conduct certain
activities, the entity is immune if it functions as
an arm of the tribe.'); Ninigret Dev. Corp. v.
Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d
21, 29 (1st Cir. 2000) ('The Authority, as an arm of
the Tribe, enjoys the full extent of the Tribe's
sovereign immunity.'); Hagen v. Sisseton–Wahpeton
Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000)
(holding that entity that 'serves as an arm of the
tribe ... is thus entitled to tribal sovereign
66
1180675; 1180794
immunity'). Because Alabama does not dispute that
PCI operates as an arm of the [the Poarch Band], PCI
shares the [Poarch Band's] immunity."
801 F.3d at 1287-88 (footnote omitted). In addressing the
immunity of the individual defendants in that case, the court
stated:
"The immunity tribal officials enjoy from state
law claims brought in federal court is narrower than
the immunity of state officials from such claims,
however. Specifically, tribal officials may be
subject to suit in federal court for violations of
state law under the fiction of Ex parte Young[, 209
U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908),] when
their conduct occurs outside of Indian lands. See
Bay Mills, 134 S. Ct. at 2034–35. In Bay Mills, the
Supreme Court held that a tribe enjoyed immunity
from suit by a state to enjoin alleged illegal
gaming occurring at a casino that was not on Indian
lands. However, the state had other remedies and
could sue 'tribal officials ... (rather than the
Tribe itself) seeking an injunction for, say,
gambling without a license [under state law].' Id.
at 2035 (emphasis added). This is because 'a State,
on its own lands, has many other powers over tribal
gaming that it does not possess (absent consent) in
Indian territory'; when not on Indian lands, members
of a tribe, including tribal officials, 'are subject
to any generally applicable state law.' Id. at
2034–35. And tribal officials are not immune from
a state law claim seeking to enjoin gaming because
'analogizing to Ex parte Young, tribal immunity does
not bar such a suit for injunctive relief against
individuals, including tribal officers, responsible
for unlawful conduct' under state law that occurs
off Indian lands. Id. at 2035 (internal citation
omitted).
67
1180675; 1180794
"Alabama acknowledges that the Individual
Defendants enjoy immunity from its state law claim
if the casinos are located on Indian lands."
801 F.3d at 1290. In that case, the State argued that the
Wind Creek casinos were not located on Indian lands because,
it asserted, the Secretary of the Interior lacked the
authority to take land into trust on behalf of the Poarch
Band. The court rejected that argument, holding that the
State could not "raise a collateral challenge to the
Secretary's authority to take lands into trust (and
consequently, the status of the [Poarch Band's] lands)" in
that lawsuit. 801 F.3d at 1291. Thus, it concluded that the
individual defendants were entitled to immunity as to the
state-law claim. The court went on to address the State's
alternative claim that the individual defendants had waived
their immunity:
"Alabama argues in the alternative that the
Individual Defendants waived their immunity from the
state law claim by removing the case to federal
court. Alabama's argument rests on the assumption
that the Individual Defendants enjoy immunity from
the state law claim in federal court but not in
state court. The sole case on which Alabama relies
addresses state officials' immunity from state law
claims in state court, not tribal officials'
immunity from state law claims in state court. See
Ala. Dep't of Transp. v. Harbert Int'l, Inc., 990
So. 2d 831, 840 (Ala. 2008), abrogated in part by Ex
68
1180675; 1180794
parte Moulton, 116 So. 3d 1119 (Ala. 2013). State
law cannot limit the Individual Defendants' immunity
because 'tribal immunity is a matter of federal law
and is not subject to diminution by the States.'
Bay Mills, 134 S. Ct. at 2031 (internal quotation
marks omitted); see also Contour Spa at the Hard
Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200,
1206 (11th Cir. 2012) (explaining that a tribe's
sovereign immunity 'is not the same thing as a
state's Eleventh Amendment immunity' because tribes
are more akin to foreign sovereigns). Because the
premise of Alabama's argument -- that the Individual
Defendants were not immune from the state law claim
in state court -- does not hold up, Alabama's waiver
argument fails."
801 F.3d at 1293.
Based on the foregoing, the operators of the Wind Creek
casinos are not subject to the jurisdiction of the either the
Macon
Circuit
Court
or
the
Lowndes
Circuit
Court.
Accordingly, pursuant to Rule 19(a), the operators of the Wind
Creek casinos were not necessary parties.
"'Rule 19 ... provides a two-step process for the
trial court to follow in determining whether a party
is necessary or indispensable.' Holland [v. City of
Alabaster], 566 So. 2d [224,] 226 [(Ala. 1990)].
The question whether a nonparty is a necessary party
is governed by Rule 19(a); the question whether a
party is an indispensable party is governed by Rule
19(b). ...
"Under the two-step process, the trial court
must first determine, under the criteria set forth
in Rule 19(a), whether the nonparty in question is
one who should be joined if feasible. ...
69
1180675; 1180794
"'....'
"If a nonparty satisfies either prong set forth in
Rule 19(a)(1) or (2), then the party is a necessary
party that should be joined, if feasible. Ross[ v.
Luton, 456 So. 2d 249 (Ala. 1984)]."
Ex parte Advanced Disposal Servs. S., LLC, 280 So. 3d 356,
360-61 (Ala. 2018).
Because the operators of the Wind Creek casinos are not
necessary parties pursuant to Rule 19(a), they are not
indispensable parties pursuant to Rule 19(b). See Hall v.
Reynolds, 60 So. 3d 927, 929 (Ala. Civ. App. 2010).
Accordingly, the circuit courts exceeded their discretion in
holding that the State had failed to join indispensable
parties in each of these cases.
III.
On appeal, the State further argues that "this Court
should enjoin the defendants from further engaging in illegal
gambling." State's brief at p. 46. Specifically, it asserts:
"This Court has authority '[t]o issue writs of
injunction,' Ala. Code [1975,] § 12-2-7(3), or,
alternatively, to order circuit courts to enter such
an order. See Ex parte State of Alabama, 121 So. 3d
337, 340 (Ala. 2013) (ordering circuit court to
issue search warrant); see also Ala. Code [1975,] §
6-5-500 ('Injunction may be granted, returnable into
any of the circuit courts in this state, by the
judges of the supreme court, court of civil appeals,
70
1180675; 1180794
court of criminal appeals, and circuit courts.'); Ex
parte State ex rel. Ala. Policy Inst., 200 So. 3d
495, 511 (Ala. 2015) (recognizing Court's authority
to 'take jurisdiction where ... for special reasons
complete justice cannot otherwise be done.')."
State's brief at pp. 46-47.
Article VI, § 140, Ala. Const. 1901 (Off. Recomp.),
provides, in pertinent part:
"(b) The supreme court shall have original
jurisdiction (1) of cases and controversies as
provided by this Constitution, (2) to issue such
remedial writs or orders as may be necessary to give
it general supervision and control of courts of
inferior jurisdiction, and (3) to answer questions
of state law certified by a court of the United
States.
"(c) The
supreme court shall
have such appellate
jurisdiction as may be provided by law."
Section 12-2-7, Ala. Code 1975, provides, in pertinent
part:
"The Supreme Court shall have authority:
"....
"(3) To issue writs of injunction,
habeas corpus, and such other remedial and
original writs as are necessary to give to
it a general superintendence and control of
courts of inferior jurisdiction."
(Emphasis added.)
Section 6-6-500, Ala. Code 1975, provides:
"Injunctions
may
be
granted,
returnable
into
any
of the circuit courts in this state, by the judges
71
1180675; 1180794
of the supreme court, court of civil appeals, court
of criminal appeals, and circuit courts."
In addressing the precursors to §§ 12-2-7 and 6-5-500, this
Court has stated:
"The petitioner also cites §§ 17 and 18, Title
13, Code of 1940. Section 17 provides inter alia:
'The supreme court has authority: ... to issue writs
of injunction, habeas corpus, and such other
remedial and original writs as are necessary to give
to it a general superintendence and control of
inferior jurisdiction.' Section 18 provides that
the justices of the supreme court 'have each of them
authority to issue writs of certiorari, injunction
and
supersedeas,
subject
to
the
limitations
prescribed by this Code, as judges of the circuit
courts are authorized to grant the same.' It is
clear from section 17 that the justices of the
supreme court are limited in the issuance of these
extraordinary writs as necessary to give general
superintendence
and
control
of
inferior
jurisdictions. That is, to supervise persons and
bodies clothed with judicial power in the exercise
thereof. Section 18 also grants limited power to
the justices of the supreme court to grant
injunctions, such as judges of the circuit court are
authorized to grant."
State v. Albritton, 251 Ala. 422, 424, 37 So. 2d 640, 642
(1948).
Neither circuit court conducted a hearing on the merits
of the State's motions for a preliminary injunction. Rather,
the circuit courts specifically stated that they would hear
and decide the defendants' motions to dismiss before
72
1180675; 1180794
proceeding to the merits of the State's motions for a
preliminary injunction.
In Blount Recycling, LLC v. City of Cullman, 884 So. 2d
850, 855 (Ala. 2003), this Court stated:
"As the Court of Civil Appeals recognized in
Bamberg v. Bamberg, 441 So. 2d 970, 971 (Ala. Civ.
App. 1983), while Rule 65, Ala. R. Civ. P., 'does
not explicitly require that oral testimony be
presented at a preliminary injunction hearing, some
type of evidence which substantiates the pleadings
is implicitly required by subsection (a)(2) of the
rule.' The Court of Civil Appeals in Bamberg
continued, stating: 'In order to comply with
procedural due process, notice and an opportunity to
be heard are necessary under Rule 65(a).' Id.
"In this case it appears that the circuit court
did not conduct a hearing on the Commission's
petition for a preliminary injunction; therefore,
the Commission did not present any evidence and
Blount Recycling was not given an opportunity to be
heard. The injunction must be dissolved for failure
to comply with Rule 65(a), Ala. R. Civ. P., and the
cause remanded."
Although the State did attach some documents and affidavits in
support of its motions for a preliminary injunction, the
defendants have not had an opportunity to be heard as to the
merits of those motions. Therefore, we will not address the
merits of the State's motions for a preliminary injunction at
this time.
Conclusion
73
1180675; 1180794
Based on the foregoing, the Lowndes Circuit Court
erroneously granted the motions to dismiss filed by the
Lowndes County defendants and the Macon Circuit Court
erroneously granted the motions to dismiss filed by the Macon
County defendants. Accordingly, we reverse the judgments
entered by those courts and remand these cases for proceedings
consistent with this opinion.
1180675 -- REVERSED AND REMANDED.
1180794 -- REVERSED AND REMANDED.
Bolin, Mendheim, Stewart, and Mitchell, JJ., concur
specially.
Parker, C.J., concurs in part and concurs in the result.
Shaw and Sellers, JJ., concur in the result.
74
1180675; 1180794
MENDHEIM, Justice (concurring specially).
I fully concur with the main opinion. I write separately
to elaborate on my view of Part II, which concerns whether the
operators of the Wind Creek casinos in Montgomery and Wetumpka
(collectively "the Wind Creek casinos") are indispensable
parties under Rule 19, Ala. R. Civ. P., to the underlying
actions against the Lowndes County defendants and the Macon
County defendants.
The circuit courts ruled in part that the State's
nuisance actions must be dismissed because the operators of
the Wind Creek casinos are indispensable parties. The Lowndes
Circuit Court reasoned that because gaming activities at the
Wind Creek casinos are virtually identical to the gaming
activities that occur in Lowndes County and Macon County,
"[t]he State of Alabama cannot establish proximate causation
for its alleged injury unless the State also seeks to enjoin
all persons whose acts create or contribute to the alleged
harm to the public." The Macon Circuit Court expressly noted
that the gaming activities at the Wind Creek casinos occur
approximately 20 miles and 35 miles away from the gaming
establishment in Macon County, and so it concluded that
75
1180675; 1180794
"without [the operators of the Wind Creek casinos] injunctive
relief will not provide full and complete relief or protect
the public health, safety, or welfare."
The main opinion correctly observes that the operators of
the Wind Creek casinos must first meet the criteria for being
necessary parties under Rule 19(a) before any determination
can be made as to whether they are also indispensable parties
under Rule 19(b). Rule 19(a) begins by stating: "A person
who is subject to jurisdiction of the court shall be joined as
a party in the action if ...." Thus, Rule 19(a) assumes that
in order for a party to be deemed necessary to an action, the
party must be "subject to the jurisdiction of the court." As
the State observes in its reply brief, the State previously
brought a public-nuisance action against the operators of the
Wind Creek casinos, but the United States Court of Appeals for
the Eleventh Circuit concluded that the State lacked
jurisdiction over those parties because the conduct at the
Wind Creek casinos is governed by federal authorities under
federal law. See Alabama v. PCI Gaming Auth., 801 F.3d 1278
(11th Cir. 2015). Thus, the operators of the Wind Creek
casinos cannot meet the threshold requirement to
be
considered
76
1180675; 1180794
necessary or indispensable parties to the underlying actions
because the circuit courts of this State lack jurisdiction
over those parties.
Simply stated, the Eleventh Circuit Court of Appeals,
applying federal law, has specifically held that the State
cannot bring a public-nuisance action against the
operators of
the Wind Creek casinos. "We conclude that PCI is entitled to
tribal sovereign immunity on all claims against it, and the
Individual Defendants are entitled to tribal sovereign
immunity
on
Alabama's
state
law
claim
[of
public
nuisance]...." PCI Gaming Authority, 801 F.3d at 1287. This
Court, as well as the Lowndes Circuit Court and the Macon
Circuit Court, is bound by this ruling pursuant to the
Supremacy
Clause
of
the
United
States
Constitution.3
Accordingly, the operators of the Wind Creek casinos cannot be
necessary or indispensable parties to the State's public-
nuisance claims against the Lowndes County defendants and the
3"This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the authority of the
United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the
Constitution
or
Laws
of
any
State
to
the
Contrary
notwithstanding." U.S. Const., Art. VI, clause 2 (emphasis
added).
77
1180675; 1180794
Macon County defendants. The lack of jurisdiction is simple,
direct, and unavoidable. Clearly, the circuit courts erred in
ruling otherwise.
Bolin, Stewart, and Mitchell, JJ., concur.
78
1180675; 1180794
PARKER, Chief Justice (concurring in part and concurring in
the result).
I concur in the result as to Part II of the main opinion;
I concur fully in the remainder of the opinion.
79 | September 25, 2020 |
04db83d0-4505-41d7-902e-d5d0412ff751 | Lisa Wilson v. University of Alabama Health Services Foundation, P.C., et al. | N/A | 1190337 | Alabama | Alabama Supreme Court | Rel: November 13, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190337
Lisa Wilson v. University of Alabama Health Services Foundation, P.C.,
et al. (Appeal from Jefferson Circuit Court: CV-17-900522).
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. | November 13, 2020 |
cf0760bd-2fe2-4116-ba8e-3250babad0ec | Ex parte Wakilii Brown. | N/A | 1190544 | 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
1190544
Ex parte Wakilii Brown. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Wakilii Brown v. State of Alabama) (Talladega Circuit Court:
CC-01-290.60; Criminal Appeals :
CR-18-0416).
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. Shaw, J. - Parker, C.J., and Bolin, Bryan, Sellers, Mendheim,
Stewart, and Mitchell, JJ., concur. Wise, 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 |
790ea29a-dc9b-439c-b975-ca48f02c4e58 | Ex parte D. C. R. | N/A | 1191013 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1191013
Ex parte D. C. R. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS (In re: D. C. R. v. State of Alabama) (Chilton Circuit Court: CC-17-248; Criminal
Appeals : CR-19-0223).
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 |
9868737b-df6d-4df7-a01c-4e4f29ee571d | Ex parte Michael J. Green. | N/A | 1190932 | 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
1190932
Ex parte Michael J. Green. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: Michael J. Green v. Madix, Inc., a Texas corporation) (Elmore Circuit
Court: CV-17-86; Civil Appeals :
2190118).
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. - 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. 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 |
e6f6ab50-4b6b-4b95-becf-978c1c2abeda | Ex parte Adam Justin Stovall. | N/A | 1190979 | 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
1190979
Ex parte Adam Justin Stovall. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Adam Justin Stovall v. State of Alabama) (Walker Circuit Court:
CC-13-698.60; Criminal Appeals :
CR-18-0618).
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 |
8f826aa8-2669-44e5-8dbe-6209d73afdca | Ex parte Ricky Turrentine. | N/A | 1190764 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190764
Ex parte Ricky Turrentine. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Ricky Turrentine v. State of Alabama) (Lauderdale Circuit Court:
CC-17-1013; Criminal Appeals : CR-18-0124).
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 |
ee727e20-2313-4dfb-a15f-0bf7d35fd1ed | Ex parte Stephon Lindsay. | N/A | 1190668 | 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
1190668
Ex parte Stephon Lindsay. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Stephon Lindsay v. State of Alabama) (Etowah Circuit Court:
CC13-652; Criminal Appeals :
c R-15-1061).
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. Bryan, J. - Parker, C.J., and Bolin, Shaw, Wise, 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 |
20f7fb31-4a82-46ea-ba0a-c83a08a88a46 | Ex parte Pariss Shevee Kimbrough. | N/A | 1191021 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1191021
Ex parte Pariss Shevee Kimbrough. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Pariss Shevee Kimbrough v. State of Alabama)
(Madison Circuit Court: CC-17-676; Criminal Appeals : CR-19-0247).
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 |
b7401677-a593-4893-858d-794fe401ceb5 | Ex parte Derrick Lamont Clemons. | N/A | 1191040 | 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
1191040
Ex parte Derrick Lamont Clemons. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Derrick Lamont Clemons v. State of Alabama) (Madison
Circuit Court: CC-16-1539.60; Criminal Appeals :
CR-18-1189).
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 |
0b883add-0f08-4959-83e3-d90b7146dbad | Ex parte D.R. | N/A | 1190958 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190958
Ex parte D.R. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: D.R. v. State of Alabama) (Jefferson Juvenile Court: JU-99-46884.01; Civil Appeals :
2190238).
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 |
d1192991-e353-47fa-9332-f5a58d6f0773 | Ex parte Hattie B. Bragg. | N/A | 1190866 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190866
Ex parte Hattie B. Bragg. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: Colburn Alison Bragg v. Hattie B. Bragg) (Jefferson Circuit Court:
DR-15-900325; Civil Appeals : 2180949).
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 |
86b5164a-adf4-4eae-a69f-a19435173395 | Virginia McDorman, as conservator for Sim T. Moseley, a protected person v. Ralph Carmichael Moseley, Jr. | N/A | 1190819 | Alabama | Alabama Supreme Court | Rel: September 18, 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
SPECIAL TERM, 2020
____________________
1190819
____________________
Virginia McDorman, as conservator for Sim T. Moseley, a
protected person
v.
Ralph Carmichael Moseley, Jr.
____________________
1190820
____________________
Sim T. Moseley, a protected person, by and through Virginia
McDorman, as conservator for Sim T. Moseley
v.
Ralph Carmichael Moseley, Jr.
Appeals from Jefferson Probate Court
(PR-11-3393)
1190819, 1190820
SELLERS, Justice.
Virginia McDorman, conservator for Sim T. Moseley, and
Sim T. Moseley, a protected person, by and through his
conservator, appeal, in two separate appeals, from a judgment
of the Jefferson Probate Court awarding Ralph Carmichael
Moseley, Jr., attorney fees pursuant to the Alabama Litigation
Accountability Act, § 12-19-270 et seq., Ala. Code 1975 ("the
ALAA"). We affirm in part, reverse in part, and remand.
I. Jurisdiction
The timely filing of a notice of appeal is a
jurisdictional act, which cannot be waived. Harden v. Laney,
118 So. 3d 186 (Ala. 2013). In this case, the parties do not
raise the issue of subject-matter jurisdiction; we therefore
address the issue ex mero motu. Thomas v. Merritt, 167 So. 3d
283 (Ala. 2013). Specifically, we consider whether these
appeals are governed by Act No. 1144, Ala. Acts 1971 ("the
local act"), in which case they are untimely, or by Rule
4(a)(1), Ala. R. App. P., in which case they are timely.
Section 1 of the local act grants the Jefferson Probate
Court "general jurisdiction concurrent with that of the
Circuit Courts of this State, in equity, in the administration
2
1190819, 1190820
of the estates of ... minors and insane or non compos mentis
persons," which would include conservatorship proceedings
under
the
Uniform
Guardianship and
Protective Proceedings
Act,
§ 26-2A-1 et seq., Ala. Code 1975.
Section 4 of the local act requires that appeals to this
Court be filed within 30 days from a judgment or order of the
Jefferson Probate Court:
"Appeals may be taken from the orders, judgments and
decrees of such a Probate Court, relating to the
administration of such aforesaid estates, including
decrees on partial settlements and rulings on
demurrer, or otherwise, relating to action taken
pursuant to jurisdiction conferred by this act, to
the Supreme Court within thirty days from the
rendition thereof, or within thirty days from the
decision of such a Probate Court on a motion for new
trial, in the manner and form as is provided for
appeals from the Probate Courts to the Supreme
Court."
(Emphasis added.)
Section 6 of the local act states that the primary intent
of the local act is to "expedite and facilitate the
administration of estates and such other matters as are
mentioned herein in counties of over 500,000 population."
The general law governing appeals from the probate courts
is set forth in Ala. Code 1975, §§ 12-22-20 through 12-22-27.
Section 12-22-21, Ala. Code 1975, considers the same
3
1190819, 1190820
procedural matter set forth in § 4 of the local act but
provides that appeals from the probate court to this Court
"shall be governed by the Alabama Rules of Appellate
Procedure, including the time for taking an appeal." Rule
4(a)(1), Ala. R. App. P., states that a party must file a
notice of appeal "within 42 days (6 weeks) of the date of the
entry of the judgment or order appealed from." In this case,
the Jefferson Probate Court entered a judgment on July 1,
2019. The notices of appeals were filed in the probate court
on August 12, 2019 –- more than the 30 days provided by the
local act, but on the 42d day as provided by Rule 4(a)(1).
Thus, we are presented with a conflict between, on the one
hand, a statute and a rule prescribing the time for taking an
appeal to this Court and, on the other, a local act providing
a more limited time. In resolving this conflict, we look to
the intent of the legislature.
"A general act may amend or repeal a local act by express
words or by necessary implication." Pittsburg & Midway Coal
Mining Co. v. Tuscaloosa Cnty., 994 So. 2d 250, 261 (Ala.
2008). In Connor v. State, 275 Ala. 230, 234, 153 So. 2d 787,
4
1190819, 1190820
791 (1963)(quoting 50 Am. Jur. Statutes § 564), this Court
observed, in relevant part:
"'There is no rule which prohibits the repeal by
implication of a special or specific act by a
general or broad one. The question is always one of
legislative intention, and the special or specific
act must yield to the later general or broad act,
where there is a manifest legislative intent that
the general act shall be of universal application
notwithstanding the prior special or specific act.'"
There being no express repeal of § 4 of the local act,
the question is whether § 12-22-21, being the latest
expression of the legislature, repeals by implication § 4 of
the local act, thus providing that appeals from the Jefferson
Probate Court to this Court must be filed within the 42-day
period prescribed by Rule 4(a). We conclude that it does.
In 1971, the legislature authorized this Court to
promulgate a new system of rules to govern procedure in
appeals to this Court, the Court of Civil Appeals, and the
Court of Criminal Appeals –- the purpose being to simplify
existing appellate procedure and to assure the speedy
determination of every proceeding on its merits. Act No. 964,
Ala. Acts 1971.1 Pursuant to its rule-making authority, this
1We note that § 150, Ala. Const. 1901 (Off. Recomp.),
provides: "The supreme court shall make and promulgate rules
governing the administration of
all courts and rules governing
5
1190819, 1190820
Court adopted the Alabama Rules of Appellate Procedure, which
became effective December 1, 1975.2 The legislature has
expressly indicated that the Alabama Rules of Appellate
Procedure govern procedure in this Court and the courts of
appeals unless stated otherwise. Specifically, in 1977, as
part of its adoption of the "Code of Alabama 1975," the
legislature included § 12-1-1, Ala. Code 1975, which provides
that
"[a]ny provisions of this title regulating
procedure shall apply only if the procedure is not
governed by the Alabama Rules of Civil Procedure,
the Alabama Rules of Appellate Procedure or any
other rule of practice and procedure as may be
Adopted by the Supreme Court of Alabama."
practice and procedure in all courts ...." See also § 12-2-
19(a), Ala. Code 1975, recognizing that "the Supreme Court now
has the initial primary duty to make and promulgate rules
governing practice and procedure in all courts ...."
2When the local act was enacted in 1971, the Alabama Rules
of Appellate Procedure were not in existence, and appeals to
this Court or to a court of appeals, unless otherwise
prescribed, were governed by statute and generally were
required to be filed within six months of the order or
judgment appealed from. Title 7, § 788, Code of Alabama 1940
(1958 Recomp.). Given the stated intent of the local act,
i.e., to expedite and facilitate the administration of
estates, the 30-day time frame provided in the local act was
apparently intended to shorten the 6-month time frame then in
existence for filing a notice of appeal in some appeals and to
standardize the time for taking an appeal.
6
1190819, 1190820
See also, e.g., Appendix III, Ala. R. App. P. (providing a
list of statutes modified by the adoption of the Alabama Rules
of Appellate Procedure, including some statutes providing 30
days in which to appeal from probate court).
Based on the foregoing, we conclude that § 12-22-21,
providing that "[a]ppeals to the Supreme Court shall be
governed by the Alabama Rules of Appellate Procedure,
including the time for taking an appeal," prevails as the
latest expression of legislative will and thus repeals by
implication § 4 of the local act providing that appeals to
this Court be filed within 30 days of the entry of the order
or judgment appealed from. To hold otherwise would create an
exception only for appeals to this Court from the Jefferson
Probate Court that would become a trap for the unwary.3
Having a uniform time standard for taking an appeal not only
supports judicial economy and aids lawyers with a single rule,
3By similar local act, the legislature granted the Mobile
Probate Court jurisdiction concurrent with the Mobile Circuit
Court in the administration of estates. Act No. 974, Ala.
Acts 1961. As originally enacted, Act No. 974 provided for
appeals to this Court within 30 days of the entry of the order
or judgment of the probate court. In 1991, the legislature
amended § 5 of Mobile's local act to provide that appeals from
the Mobile Probate Court lie to this Court within the 42-day
period prescribed in the Alabama Rules of
Appellate Procedure.
See Act No. 91-131, Ala. Acts 1991.
7
1190819, 1190820
but it also eliminates, as presented here, a dual and
conflicting system for which there is no rational basis.
Because we confirm that the notices of appeal were timely and
that jurisdiction is therefore proper, we now address the
merits of the appeals before us.
II. Facts and Procedural History
Virginia is the guardian of her son Sim. She is also the
conservator of Sim's estate. Sim has a brother, Ralph
Carmichael Moseley III ("Mike"), who was born during the
marriage of Virginia and Ralph. Sim also has a half brother,
Slate McDorman, who was born during the marriage of Virginia
and her current husband, Clarence L. McDorman, Jr.
In February 2013, Mike, as brother and next friend of
Sim, petitioned the Jefferson Probate Court to, among other
things, remove Virginia as Sim's conservator because of an
alleged conflict of interest, appoint Ralph as successor
conservator, and order an accounting of the conservatorship.4
Ralph filed a response consenting to the relief sought in the
petition and specifically to being appointed as successor
4Mike asserted in the petition that the alleged conflict
stemmed from a trust action pending in the Barbour Circuit
Court in which Virginia had been named a respondent both
individually and in her capacity as Sim's conservator.
8
1190819, 1190820
conservator for Sim. The probate court thereafter ordered
Virginia to file a full accounting for the entirety of the
conservatorship.
During the pendency of the proceeding, a dispute arose
about an IRA Ralph had created and funded for Sim's benefit.
During discovery, Virginia requested that Ralph produce a
copy
of "any and all receipts, checks, or other documents
reflecting contributions made by you to the IRA" belonging to
Sim. Ralph answered that "[t]here has not been an IRA for a
number of years."
On February 28, 2014, Slate, acting as counsel for
Virginia, sent Ralph a letter confirming everyone's desire
that the IRA matter be concluded without further effort and
expense. That letter states, in pertinent part:
"We need to reschedule a time for your deposition
and I ask that you provide available dates. It is
important that your testimony be taken in time for
us to include anything relevant in [Virginia's]
accounting. Please contact me with dates you are
available so that I may schedule your deposition.
"However, I believe everyone is in agreement
that this matter should be concluded without further
effort and expense. Although we still have questions
regarding Sim's IRA account and these questions must
be answered for [Virginia's] accounting, the largest
remaining issue of contention appears to be who will
be responsible to pay the court costs and fees
9
1190819, 1190820
requested in [the] petition filed last February. It
was requested in this petition that Sim be taxed all
costs and fees in our matter. Judge King granted
this request. Even though Sim has no means to pay
these costs as SSI payments are non-attachable, Sim
is upset knowing that he is responsible for these
costs. If we can resolve the issue of who is
responsible for these fees, I believe we can quickly
conclude the remaining issues.
"....
"In an effort to move toward reconciliation and
to avoid additional fees, I ask if you and/or Mike
will
consider
paying
the
current
outstanding
expenses on Sim's behalf so that we can begin
placing this behind us. My mom[, Virginia,] has
spent a considerable sum recently on accountants and
others
regarding
her
accounting
for
Sim's
conservatorship. She is not in a position to pay
anything toward the outstanding fees. However, if
this matter is not resolved, the fees will only
increase to the detriment of Sim."
(Emphasis added.)
On April 23, 2014, Virginia submitted to the probate
court an accounting for the conservatorship, along with a
"Settlement Agreement" executed by Sim and by Virginia as
Sim's conservator releasing Ralph from any and all claims
related directly or indirectly to Ralph's funding or removing
funds from an IRA Ralph had attempted to establish on behalf
of Sim. The agreement states:
"In accordance with Alabama Code section
26-2A-l52(19), Sim T. Moseley, by and through his
10
1190819, 1190820
Mother and Curator/Conservator Virginia Thomas
McDorman, does hereby agree that in exchange for the
total compromise payment of Five Thousand and
no/lO0ths Dollars ($5000) from Sim's father Ralph
Moseley,
any
and
all
claims
disputes
or
controversies of any kind against Ralph Moseley,
including but not limited to anything, arising from
or in any way related directly or indirectly to
Ralph Moseley funding or removing funds from an IRA
account attempted to be established on behalf of Sim
T.
Moseley,
are
hereby
fully
released
and
discharged, with no admission of liability. Each
party shall bear their own attorney fees, and Sim T.
Moseley shall bear all court costs in this matter."
(Emphasis added.)
Virginia also filed with the accounting an affidavit
signed by Ralph stating that he agreed to withdraw any request
that Virginia be removed as conservator for Sim's estate and
affirming that his payment of $5,000 pursuant to the agreement
was in exchange for a full release of all claims against him.
In December 2015, more than a year and a half after the
agreement and Ralph's affidavit were executed, Virginia and
Sim filed a motion to set aside the agreement, as well as a
motion to show cause why Ralph should not be held in contempt
of court. Virginia and Sim alleged that Ralph had fraudulently
induced them to execute the agreement by failing to truthfully
answer discovery and, more specifically, by withholding
information about an IRA with Charles Schwab & Company, which,
11
1190819, 1190820
they claimed, Ralph had established, funded, and maintained
using Sim's name and Social Security number. They further
stated that in 2013 Ralph closed the IRA and that in 2014 he
filed a fraudulent tax return on behalf of Sim, listing the
IRA distribution as income –- causing Sim to owe federal taxes
and impacting his qualification for various governmental
disability benefits. They further explained that the Internal
Revenue Service ultimately determined that Sim had been the
victim of identity theft and removed the tax deficiency from
Sim's records. Virginia and Sim finally noted that Virginia,
as Sim's conservator, had filed an action against Ralph in the
Jefferson Circuit Court alleging fraud and intentional
infliction of emotional distress.
Ralph responded to the motion to set aside the
agreement, asserting that the allegations in the motion were
without merit because, he said, during the discovery process,
his counsel had informed Virginia's counsel that the Charles
Schwab IRA existed and that Ralph had named Sim as the owner
of the IRA. Ralph stated that, with this knowledge,
Virginia's counsel wrote him a letter confirming everyone's
desire that the IRA matter should be concluded without further
12
1190819, 1190820
effort and expense. Thus, Ralph argued that Virginia and Sim
were aware of the Charles Schwab IRA when they signed the
agreement. Ralph requested that the probate court award him
attorney fees he incurred as a result of responding to and
opposing the motion to set aside the agreement and the motion
to show cause why he should not be held in contempt of court.
On June 29, 2016, the probate court held a hearing on the
motions to set aside the agreement and to show cause why Ralph
should not be held in contempt of court. Virginia and Sim did
not testify at that hearing. On September 2, 2016, the
probate court entered an order denying the motions,
concluding, in relevant part, that the very words of the
agreement demonstrated that Virginia and Sim knew or
reasonably should have known about the existence of any IRA
and any distribution therefrom and that Virginia and Sim had
released all claims against Ralph relating to any IRA. The
probate court further determined that the attempts by
Virginia
and Sim to set aside the agreement were without merit, and it
ordered them to pay Ralph's attorney fees. Ralph thereafter
filed a fee petition with an affidavit from his counsel
seeking $19,920 in attorney fees and $188.77 in expenses.
13
1190819, 1190820
Virginia and Sim, through his counsel of record, each
filed a motion to reconsider the September 2016 order, arguing
for the first time that, when they executed the agreement, the
only IRA they were aware of was an IRA established during
Sim's employment at Children's Hospital of Alabama in
Birmingham. They contended that, had they known about the
Charles Schwab IRA, they would not have executed the
agreement. Virginia and Sim attached to the motions their
affidavits explaining their lack of knowledge of the Charles
Schwab IRA.
On October 11, 2017, the probate court entered an order
denying the motions to reconsider; the court ordered Virginia
and Sim to pay Ralph's attorney fees within 30 days. The
probate court declined to consider the affidavits that
Virginia and Sim attached to their postjudgment motions,
noting:
"[Virginia's]
and
Sim's
suggestions
that
the
Settlement and Release should be set aside because
it was induced by fraud was presented in the
December 2015 Motion to Show Cause and Motion to Set
Aside Settlement, and argued to the Court [on June
29, 2016]. Because no circumstances prevented Sim
or [Virginia] from offering testimony at or before
the June 29 hearing, the newly presented affidavits
of Sim and [Virginia] ... may not be considered by
this Court. Regardless, [Virginia] and Sim
14
1190819, 1190820
explicitly released [Ralph] from and against all
claims directly or indirectly related to any IRA.
The Release was not limited to a particular time
frame, and therefore [Virginia] and Sim released
present and future claims relating to any IRA."
Virginia and Sim thereafter filed a motion for relief from the
October 2017 order or, alternatively, to certify the order as
a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.
On July 1, 2019, the probate court entered a judgment
disposing of all claims against Ralph, and certified its
judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. In
that judgment, the probate court reiterated its findings
regarding the validity of the agreement, discussed its
September 2016 and October 2017 orders, and addressed each of
the factors for an award of attorney fees as required by the
ALAA. These appeals followed.
III. Standard of Review
The standard of review for an award of attorney fees
under the ALAA depends upon the basis for the trial court's
determination for the award. Morrow v. Gibson, 827 So. 2d
756, 762 (Ala. 2002). If a trial court finds that a claim or
defense is without substantial justification because it is
groundless in law, that determination will be reviewed de
15
1190819, 1190820
novo, without a presumption of correctness. Pacific Enters.
Oil Co. (USA) v. Howell Petroleum Corp., 614 So. 2d 409 (Ala.
1993). If, however, a trial court finds that a claim or
defense is without substantial justification using terms or
phrases
such
as
"frivolous,"
"groundless
in
fact,"
"vexatious," or "interposed for any improper purpose," that
determination will not be disturbed on appeal unless it is
clearly erroneous, without supporting evidence, manifestly
unjust, or against the great weight of the evidence. Id. The
latter standard is applicable here. The probate court
determined that the filings by Virginia and Sim were not
pleaded in good faith or that they otherwise failed to rise to
the level of initiating a legal and/or equitable action, thus
implying that the filings were interposed for an improper
purpose.
IV. Analysis
The ALAA provides in § 12-19-272(a), Ala. Code 1975, in
relevant part, that, in any civil action, "the court shall
award, as part of its judgment ..., reasonable attorneys'
fees" against any party who has brought a civil action "that
a court determines to be without substantial justification,
16
1190819, 1190820
either in whole or part." The ALAA defines "without
substantial justification" in § 12-19-271, Ala. Code 1975, as
an action that is "frivolous, groundless in fact or in law, or
vexatious, or interposed for any improper purpose, including
without limitation, to cause unnecessary delay or needless
increase in the cost of litigation, as determined by the
court." Finally, the ALAA provides in § 12-19-273, Ala. Code
1975, that, when a court awards attorney fees under the ALAA,
it must "specifically set forth the reasons for such award."
Virginia and Sim first argue that the probate court
lacked jurisdiction to award attorney fees in a related case
filed against Ralph in the circuit court. We agree. While the
conservatorship proceeding was pending in the probate court,
Virginia, as Sim's conservator, filed an action against Ralph
in the circuit court, alleging fraud and the intentional
infliction of emotional distress. Ralph moved the circuit
court to dismiss the action but never included a motion in
that court for attorney fees under the ALAA. The probate
court awarded Ralph attorney fees and expenses in the amount
of $20,108.77. Virginia and Sim assert that approximately
$10,915 of that amount represents fees incurred by Ralph in
17
1190819, 1190820
defending the circuit court action. Ralph, on the other hand,
contends that the attorney-fee award properly included the
fees he incurred in the circuit court action, because, he
says, Virginia and Sim filed the circuit court action in an
attempt to circumvent the agreement they had filed in the
probate court action. However, he cites no authority in
support of that contention. See Rule 28, Ala. R. App. P.
Under the plain language of § 12-19-272, the probate court had
jurisdiction to award attorney fees regarding only fees
incurred in the probate court proceeding, not the circuit
court proceeding, "as part of its judgment." Accordingly, the
probate court erred in awarding attorney fees relating to the
circuit court proceeding, and we remand the cause with
instructions for the probate court to determine the amount of
fees Ralph incurred in defending the validity of the agreement
in the probate court.
Virginia and Sim also contend that the probate court's
award of attorney fees attributable to setting aside the
agreement in the probate court was erroneous, without
supporting evidence, manifestly unjust, or against the great
weight of the evidence. As they argued below, Virginia and
18
1190819, 1190820
Sim assert that they were justified in their attempts to set
aside the agreement because, they say, the agreement was
induced by fraud insofar as Ralph had allegedly failed to
disclose the Charles Schwab IRA during discovery and because
the Internal Revenue Service had determined that Sim had been
the victim of identity theft. Ralph, on the other hand,
maintains that Virginia and Sim had knowledge of the existence
of the Charles Schwab IRA before executing the agreement. The
record indicates that the probate court held a hearing on the
matter, at which time Virginia and Sim did not testify,
although there were no circumstances preventing them from
doing so. The transcript of that hearing, if one exists, is
not in the record. Therefore, this Court will presume that
the probate court, exercising its equitable powers, correctly
resolved
any issue
concerning
the
alleged
fraudulent
inducement in favor of Ralph. See Davis v. Davis, 278 Ala.
328, 330, 178 So. 2d 154, 155 (1965)(noting the rule that,
"where no testimony is contained in the record on appeal, a
decree which recites that it was granted on pleadings, proofs
and testimony will not be disturbed on appeal").
19
1190819, 1190820
In Cleghorn v. Scribner, 597 So. 2d 693, 696 (Ala. 1992),
this Court stated that,
"in the absence of fraud, a release supported by a
valuable consideration, unambiguous in meaning, will
be given effect according to the intention of the
parties from what appears within the four corners of
the instrument itself, and parol evidence may not be
introduced to establish the existence of a mutual
mistake of fact when the release was signed as a
basis for a rescission of that release."
The agreement the parties negotiated is broad and it
unambiguously releases Ralph from "any and all claims ... of
any kind ... including but not limited to anything, arising
from or in any way related directly or indirectly to [Ralph]
funding or removing funds from an IRA account attempted to be
established on behalf" of Sim. (Emphasis added.) "An" is an
indefinite article, which refers to a person, place, or thing
in a general or nonspecific manner. Whereas, "the" is a
definite article, which refers to a specific person, place, or
thing. Bryan A. Garner, The Redbook: A Manual on Legal Style
§ 10.38 (2d ed. 2006). Use of the indefinite article "an" in
the agreement released Ralph from any and all claims relating
directly or indirectly to any IRA in general, including future
claims.
See
Jehle-Slauson
Constr.
Co.
v.
Hood-Rich,
Architects
& Consulting Eng'rs, 435 So. 2d 716, 720 (Ala. 1983)(noting
20
1190819, 1190820
that, regarding future damages, "[i]f the parties had
intended
to limit the release to prior contract litigation, they could
have specifically stated their intention in the release").
In its judgment, the probate court concluded that
Virginia and Sim's attempts to set aside the agreement and
their continued filings –- for more than three years after the
initial motion to set it aside –- were without substantial
justification. The judgment provides the factual background
concerning
the
filings
and
reflects
an
appropriate
application
of the ALAA. The judgment also sets forth substantial reasons
for the attorney-fee award as required by § 12-19-273. As
part of its reasoning for the attorney-fee award, the probate
court noted that Virginia and Sim had made little to no effort
to determine the validity of their motions to set aside the
agreement, "because they negotiated the agreement and
terms of
the [agreement] which explicitly released [Ralph] for all
claims relating to any IRA." Finally, the probate court noted
that Virginia and Sim received what they requested in 2014,
i.e., that Ralph withdraw his objections to
Virginia's serving
as Sim's conservator and that Ralph pay their court costs and
fee obligations. Accordingly, we conclude that the award of
21
1190819, 1190820
attorney fees related to defending the validity of the
agreement in the probate court action was not erroneous,
without
supporting
evidence,
manifestly unjust,
or
against
the
great weight of the evidence. Pacific Enters. Oil Co. (USA),
supra.
V. Conclusion
We reverse the probate court's judgment awarding attorney
fees and remand the cause with instructions for the court to
determine the amount of fees attributable to defending the
validity of the agreement in the probate court action. In all
other respects, we affirm the judgment in favor of Ralph.
1190819--AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
WITH INSTRUCTIONS.
1190820--AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
WITH INSTRUCTIONS.
Parker, C.J., and Bolin, Wise, and Stewart, JJ., concur.
22 | September 18, 2020 |
36bc7355-933b-4e47-a727-44a324536d80 | Ledbetter v. Ledbetter | N/A | 1180200 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2020
____________________
1180200
____________________
Laurie Ann Ledbetter and Warren Lewis Ledbetter
v.
William Russell Ledbetter
Appeal from Elmore Circuit Court
(CV-17-900012)
PARKER, Chief Justice.1
Laurie Ann Ledbetter ("Laurie Ann") and Warren Lewis
Ledbetter ("Warren") sued their brother, William Russell
1This case was originally assigned to another Justice on
this Court. The case was reassigned to Chief Justice Parker on
June 17, 2020.
1180200
Ledbetter ("Russell"), alleging that he improperly used money
placed in an oral trust by their deceased mother, Lois Ann
Ledbetter ("Lois"). The Elmore Circuit Court entered a summary
judgment in favor of Russell. Laurie Ann and Warren appeal,
contending that they presented substantial evidence of the
existence and terms of the oral trust. We agree and reverse.
I. Facts
Lois died on August 5, 2015. She was survived by her
three children, Russell, Laurie Ann, and Warren. Her estate
included a lake house in Eclectic ("the lake house"), and
there was a $500,000 life-insurance policy on her life ("the
policy"). With respect to these two assets, Lois's will
stated:
"I give, devise and bequeath, subject to the
conditions stated below, [the lake house] to my son,
[Russell].
"... This bequest is made subject to any and all
mortgage indebtedness against [the lake house]. As
a condition of receiving this bequest, [Russell]
shall
be
responsible
for
...
such
mortgage
indebtedness. I specifically note that I have
identified [Russell] as the beneficiary of a
$500,000.00 life insurance policy on my life. It is
my intent that he use the proceeds from this life
insurance policy to pay such mortgage indebtedness.
Any life insurance proceeds over and above such
mortgage indebtedness, if any, shall be and become
the property of [Russell]."
2
1180200
Lois expressly excluded Laurie Ann and Warren from the will,
stating that "[i]t is my direction that they not share in or
receive any part of my Estate. The exclusion of my son ...
and my daughter ... is not out of any spite, negative intent,
or lack of love for my son and daughter."
Laurie Ann and Warren tried, unsuccessfully, to contest
the will. In the course of the will contest, Laurie Ann and
Warren learned that the beneficiary of the policy was listed
as "William R. Ledbetter, Trustee of The Lois Ann Ledbetter
Family Irrevocable Trust dated August 19, 1998," not Russell
individually. They also learned that Russell had claimed the
life-insurance proceeds and had deposited them in
his
personal
checking account and that he had used the proceeds to pay
various estate and personal expenses, including mortgage
payments on the lake house.
Laurie Ann and Warren then sued Russell in the Elmore
Circuit Court, alleging that Lois had created The Lois Ann
Ledbetter Family Irrevocable Trust ("the Trust") for their
benefit and asserting claims of breach of fiduciary duty,
conversion,
fraudulent
misrepresentation,
deceit,
and
fraudulent suppression. Because no signed trust document was
3
1180200
found and an unsigned trust document referred to an "oral
agreement" between Lois and Russell, Laurie Ann and Warren
alleged that the Trust was an oral trust. Russell moved for
a summary judgment, arguing that an oral trust must be proved
by clear and convincing evidence and that Laurie Ann and
Warren did not have such evidence. In response, Laurie Ann
and Warren submitted the following evidence.
One of Lois's attorneys, Paul Johnson, testified in
deposition that Lois and Russell visited him in August 1998.
At the time, Johnson's practice was to have his clients create
an oral trust before applying for life insurance benefiting
the trust. After the insurance application was accepted,
Johnson would refer the client to another attorney to
memorialize the oral trust in a written trust document.
Although he could not recall specifically, Johnson stated that
that appeared to be what he did in this case and that he would
not have submitted the application for life insurance if Lois
had not created a valid oral trust.
Laurie Ann and Warren also submitted Lois's life-
insurance application, dated August 22, 1998.
The
application
listed Lois as the insured and the grantor and listed "William
4
1180200
R. Ledbetter, Trustee of the Lois Ann Ledbetter Family
Irrevocable Trust dated August 19, 1998," as sole owner and
beneficiary. The application was signed by Lois as the
insured and by Russell as the trustee of the Trust. The
application was accompanied by a trust certification, the
purpose of which was to verify a trustee's authority to act on
behalf of a trust. The certification stated that the Trust
had been created on August 19, 1998, and that it was "in full
force and effect" at the time the application was filed. Lois
and Russell signed the trust certification. Additionally,
Laurie Ann and Warren submitted evidence that Russell, as
trustee, applied for a tax-identification number for
the
Trust
and made at least the initial premium payment on the policy.
Next, Laurie Ann and Warren submitted an unsigned trust
document, prepared by Holt Spier, another of
Lois's attorneys,
titled "The Lois Ann Ledbetter Family Irrevocable Insurance
Trust Agreement." Its preamble stated: "This Instrument is an
agreement of trust between Lois Ann Ledbetter ... (referred to
in this Instrument as the 'Grantor') and William R. Ledbetter
(referred to in this Instrument as the 'Trustee') .... This
instrument reflects an oral agreement between the Grantor and
5
1180200
the Trustee effective as of August 19, 1998." In addition to
provisions concerning administration of the trust and
distribution of the corpus and income, the trust document
provided:
"The Grantor and any other person shall have the
right at any time to make additions to the Trust
Fund by ... designation of the Trustee as the
beneficiary of the proceeds of life insurance
policies or any other benefits payable by reason of
a person's death .... In the absence of contrary
instructions by the person making the additions to
the Trust Fund, the additional property shall be
divided into equal shares for each of the Grantor's
children for whom a separate trust under this
instrument is then in existence and transferred to
the trustee of each of those separate trusts."
No signed copy of the trust document was found.
Laurie Ann and Warren also submitted Spier's handwritten
notes from his meetings with Lois. The first page of notes
was apparently taken during an estate-planning meeting with
Lois in December 1998. Although nearly illegible, the notes
clearly stated: "Lois Ann Ledbetter Irrevocable Family Trust
dated August 19, 1998[.] Policy in place[.] Keep Warren's
share in trust and Laurie's share [illegible]." The second
page of notes was dated March 1, 1999, and did not expressly
6
1180200
reference the Trust. However, under the heading "ILiT"2 were
the words "Give Warren 40% of ILiT[,] 30% to Laurie[,] 30% to
Russ." Farther down the page was a second section headed
"ILiT," with the notation: "40% to Warren - in trust w/ Russ
as tee[,] 30% to Laurie outright[,] 30% to Russ outright."
Finally, Laurie Ann and Warren submitted an affidavit of
(C. 1530.) Barbara Allen, a longtime friend of Lois's. Allen
testified that she visited Lois about a month before Lois died
and that, during that visit, Lois discussed her estate plans.
According to Allen, Lois "stated that there was a life
insurance policy of $500,000.00 that was to be equally split
between Warren, Laurie and Russell Ledbetter[]." Allen noted
that she had not specifically asked Lois about her will or a
trust.
After a hearing, the trial court entered a summary
judgment in favor of Russell without stating a rationale.
II. Standard of Review
"Summary judgment is appropriate only when
'there is no genuine issue as to any material fact
and ... the moving party is entitled to a judgment
as a matter of law.' Rule 56(c)(3), Ala. R. Civ. P.
A court considering a motion for summary judgment
2"ILiT" was apparently an acronym for "irrevocable life-
insurance trust."
7
1180200
will view the record in the light most favorable to
the nonmoving party; will accord the nonmoving party
all
reasonable
favorable
inferences
from
the
evidence; and will resolve all reasonable doubts
against the moving party.
"An appellate court reviewing a ruling on a
motion for summary judgment will, de novo, apply
these same standards applicable in the trial court."
Ex parte Rizk, 791 So. 2d 911, 912 (Ala. 2000) (citations
omitted).
Under the Alabama Uniform Trust Code, proponents of an
oral trust must prove its creation and terms by clear and
convincing evidence. See § 19-3B-407, Ala. Code 1975.
"[W]hen the law imposes the higher burden of proof of clear
and convincing evidence as to a particular claim or factual
issue,
the
nonmovant
must
present
evidence
at
the
summary-judgment stage that would qualify as clear and
convincing evidence if accepted and believed by the
fact-finder." Phillips v. Asplundh Tree Expert Co., 34 So. 3d
1260, 1266 (Ala. Civ. App. 2007); see also Ex parte McInish,
47 So. 3d 767, 776 (Ala. 2008) ("'"[S]ubstantial evidence in
the context of a case in which the ultimate standard for a
decision is clear and convincing evidence is evidence that a
fact-finder reasonably could find to clearly and convincingly
establish [the existence of] the fact sought to be proved.
8
1180200
Thus, even if a trial judge reaches his or her own conclusion
that the evidence presented does not clearly and convincingly
establish [the subject fact], it is not for him or her to act
upon that factual determination, but to determine instead
whether the actual fact-finder could reasonably make a
different finding based upon the same evidence."'" (quoting
KGS Steel, Inc. v. McInish, 47 So. 3d 749, 761–62 (Ala. Civ.
App. 2006) (Murdock, J., concurring in result), quoting in
turn Gary v. Crouch, 923 So. 2d 1130, 1142 (Ala. Civ. App.
2005) (Murdock, J., concurring in result))).
III. Analysis
Laurie Ann and Warren argue that, taken as a whole, the
evidence they submitted constituted substantial evidence of
the creation and terms of the Trust. Russell argues that
Lois's will, which does not mention a trust, is authoritative
evidence that she did not intend to create a trust. He also
argues that each of the other items of evidence was too weak,
standing alone, to
constitute clear and convincing evidence of
the existence and terms of an oral trust. We agree with
Laurie Ann and Warren.
As discussed above, proponents of an oral trust are
required to prove its creation and terms by clear and
9
1180200
convincing evidence. See § 19-3B-407, Ala. Code 1975. A
trust is created when a settlor "transfer[s] ... property to
another person as trustee during the settlor's lifetime or by
will or other disposition taking effect upon the settlor's
death." § 19-3B-401. The "terms of a trust" are defined as
"the manifestation of
the settlor's intent regarding a trust's
provisions as expressed in the trust instrument or as may be
established by other evidence that would be admissible in a
judicial proceeding." § 19-3B-103(19).
Here, Johnson, the attorney Lois and Russell visited in
August 1998, testified regarding his consistent use of oral
trusts in preparing clients to apply for life insurance.
Lois's life-insurance application specified that Russell was
to be the beneficiary of the insurance "as trustee." The
trust certification stated that Russell was the trustee of the
Trust. The unsigned trust document stated that it reflected
an oral agreement between Lois and Russell. Attorney Spier's
notes from his meetings with Lois indicated that the Trust had
been created on August 19, 1998, and was intended to benefit
Laurie Ann, Warren, and Russell. Drawing all inferences in
favor of Laurie Ann and Warren as the summary-judgment
nonmovants, we conclude that a fact-finder could reasonably
10
1180200
have found, by clear and convincing evidence, that an oral
trust was created.
As for the terms of the Trust, the unsigned trust
document provided for equal distribution among the three
children.3 Allen's affidavit regarding her conversation with
Lois reflected the same equal split. Based on these items, a
fact-finder could reasonably have concluded that Laurie Ann
and Warren proved, by clear and convincing evidence, that Lois
manifested an intent that the Trust benefit the three children
equally. It is true that Spier's handwritten notes from his
March 1999 meeting with Lois referenced a trust being split
among the
children 40%-30%-30%. However, that evidence merely
created an issue of fact as to Lois's intent regarding the
3The dissent, relying on Tierce v. Macedonia United
Methodist Church of Northport, 519 So. 2d 451 (Ala. 1987),
argues that the unsigned trust document was not "stand-alone
evidence ... [of] the terms of the Trust." ___ So. 3d at ___.
However, in addition to being a plurality opinion, Tierce is
inapposite. In that case, there was no issue of whether the
unsigned trust document was evidence of the terms of an
existing oral trust. See 519 So. 2d at 454 ("[I]t is
uncontradicted that the inter vivos trust described [in the
unsigned trust document] was
never actually established by the
decedent."). Instead, the part of Tierce relied on by the
dissent addressed whether a pour-over provision in the
decedent's will successfully devised property to an otherwise
nonexistent trust. See id. at 453-56.
11
1180200
precise distribution. It was not the province of the trial
court to resolve that issue of fact on a motion for a summary
judgment. See Ex parte McInish, 47 So. 3d at 778 ("[W]eighing
the evidence is solely a function of the trier of fact.").
Accordingly, Laurie Ann and Warren submitted substantial
evidence from which a fact-finder could reasonably have
concluded that they established, by clear and convincing
evidence, the creation and terms of an oral trust benefiting
them. Therefore, we reverse the summary judgment and remand
this case for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Wise, Bryan, Mendheim, and Stewart, JJ., concur.
Bolin, J., concurs in the result.
Mitchell, J., dissents.
Sellers, J., recuses himself.
12
1180200
MITCHELL, Justice (dissenting).
To survive summary judgment, Laurie Ann Ledbetter and
Warren Lewis Ledbetter were required to present clear and
convincing evidence of both the existence of an oral trust --
the Lois Ann Ledbetter Family Irrevocable Trust ("the Trust")
-- and the terms of the Trust. See § 19-3B-407, Ala. Code
1975. I agree with the main opinion that Laurie Ann and
Warren brought forward clear and convincing evidence from
which a jury could find that the Trust exists. But they also
alleged that the Trust required its proceeds to be distributed
equally to each of them and to their brother William Russell
Ledbetter; in my view, Laurie Ann and Warren failed to support
that
allegation
with
clear
and
convincing
evidence.
Accordingly, I believe that the summary judgment entered by
the trial court was appropriate.
Laurie Ann and Warren submitted three items of evidence
to support their allegation that the Trust proceeds were to be
divided equally among Lois's three living children: (1) an
unsigned trust agreement; (2) an affidavit by Lois's longtime
friend Barbara Allen describing a conversation between her and
Lois in 2015 ("the 2015 affidavit"); and (3) the name of the
13
1180200
Trust. These items do not amount to clear and convincing
evidence of what Laurie Ann and Warren allege.
First, Laurie Ann and Warren submitted an unsigned trust
agreement, which was allegedly drafted for Lois and purported
to divide the Trust proceeds equally among her living
children. The parties have not cited, nor have I found, any
cases in Alabama in which a court accepted an unsigned trust
agreement as evidence of the terms of an irrevocable oral
trust. But it has been held in other circumstances that an
unsigned trust instrument is not dispositive evidence of the
creation of a trust or its terms. In Tierce v. Macedonia
United Methodist Church of Northport, 519 So. 2d 451 (Ala.
1987), a putative trust beneficiary sued a settlor's estate
and asserted that it had rights to alleged trust proceeds
based upon (1) a provision in an executed will contemplating
the creation of a trust instrument and (2) an unsigned trust
agreement. In ruling against the putative beneficiary, this
Court, in a plurality opinion, held that the existence of an
unsigned trust instrument, without proof it was created at the
same time as the executed will, was not evidence that a trust
was created or probative of the terms of a trust. Id. at 456-
57.
14
4
1180200
Applying the principle from Tierce, a jury in this case
would not be entitled to regard the division of the proceeds
set forth in the unsigned trust agreement –- which was drafted
approximately four months after the Trust was allegedly
created –- as stand-alone evidence that the terms within that
agreement were, in fact, the terms of the Trust. See also In
re Estates of Gates, 876 So. 2d 1059, 1064 (Miss. Ct. App.
2004) (explaining that, "until execution, the thoughts and
written notes and drafts [of wills and trust agreements]
remain merely possibilities, subject to alteration or total
abandonment by the creator of the interests"). And there is
no contemporaneous testimony or other evidence to confirm that
the unsigned trust agreement accurately set forth the terms of
the Trust. Thus, the unsigned trust agreement should be given
no weight in determining the terms of the Trust.
Second, Laurie Ann and Warren offer the 2015 affidavit as
evidence of Lois's alleged intentions to divide the Trust
proceeds equally among her children. But the 2015 affidavit
says nothing about Lois's intentions at the time the oral
trust was allegedly created; nor does it reference a trust.
Those are critical omissions. Evidence offered in support of
the allegation of equal distribution must show that Lois
15
5
1180200
intended that distribution in 1998; but the 2015 affidavit
does not provide any relevant information about that
allegation. See Thurlow v. Berry, 249 Ala. 597, 604, 32 So.
2d
526,
532
(1947)
(observing
that
"[i]t
has
been
authoritatively stated that the intent and purpose of the
settlor of the trust is the law of the trust"). Instead, the
2015 affidavit simply relates Lois's alleged desire for the
distribution of the proceeds of her life-insurance policy in
2015 -- 17 years after she had allegedly disclaimed ownership
of the policy and placed it in the Trust.
Finally, Laurie Ann and Warren assert that the name of
the Trust, the "Lois Ann Ledbetter Family Irrevocable Trust,"
is evidence indicating that Lois intended for the proceeds of
the Trust to benefit Lois's three children equally, not
Russell exclusively. But Lois was survived by not only her
children, but also at least one grandchild who received a
disposition in Lois's will. A trust entitled "Lois Ann
Ledbetter Family Irrevocable Trust" could have been intended
to benefit some or all of those individuals, or even other
family members. Therefore, the name of the Trust, even when
paired with the other items of evidence offered by Laurie Ann
and Warren, does not constitute clear and convincing evidence
16
6
1180200
that Lois intended for her living children to receive a
distribution in equal measure to each other.
Notably, none of the evidence submitted by Laurie Ann and
Warren includes testimony from any individual who would have
had firsthand knowledge of the Trust's terms. Paul Johnson,
Lois's financial advisor and an attorney, does not dispute the
existence of a trust, but he also does not recall whether the
proceeds of such a trust were to be divided equally. Russell,
the purported trustee, testified that he was not in the room
when Lois discussed the terms of the Trust with Johnson and W.
Holt Spier III, another of Lois's attorneys; that Lois did not
inform him that the Trust had been finalized; and that he
believed Lois intended for the life-insurance proceeds to be
used to pay off the mortgage on Lois's lake house. And Spier,
the attorney who drafted the unsigned trust agreement, has not
stated that the unsigned trust agreement reflects Lois's
finalized intentions for the proceeds of the Trust. Thus,
there is no testimony about what Lois intended in 1998 for the
terms of the Trust to be.
The failure to provide clear and convincing evidence is
underscored by the fact that Laurie Ann and Warren have
themselves
provided
counterevidence
showing
that
Lois
intended
17
7
1180200
to make an altogether different distribution of the Trust
proceeds. See Laurie Ann and Warren's brief, p. 5. The
record includes handwritten notes from a meeting attended by
Lois, Johnson, and Spier to discuss drafting a trust
agreement. Those notes, written by Spier, reference terms of
an irrevocable life-insurance trust (commonly referred to as
an ILiT) but do not contemplate that the proceeds would be
equally distributed among the siblings. Rather, under the
heading "ILiT," the notes say: "Give Warren 40% of ILiT, 30%
to Laurie, 30% to Russ[ell]." The main opinion describes
Spier's notes as merely conflicting evidence that creates a
genuine issue of material fact, but they are more than that.
The notes, taken by the same attorney who drafted the unsigned
trust agreement, demonstrate how Laurie Ann and Warren are
unable to make a consistent presentation of what the terms of
the Trust were. This discrepancy in Laurie Ann and Warren's
own evidence -- did Lois intend to make an equal distribution
or a 40/30/30 split? -- falls far short of the quantum of
proof necessary to support an oral-trust claim.
In enacting § 19-3B-407, the Legislature sought to
discourage the filing of oral-trust claims that lack clear and
convincing evidence. In my view, the evidence put forward by
18
8
1180200
Laurie Ann and Warren does not clearly and convincingly
establish that Lois intended for the proceeds of the Trust to
be distributed equally to each of them and their brother. See
Ex parte McInish, 47 So. 3d 767, 778 (Ala. 2008) (holding that
clear and convincing means evidence that will produce in the
mind of the fact-finder "a firm conviction as to each element
of the claim and a high probability as to the correctness of
the conclusion"). For that reason, I believe the summary
judgment in favor of Russell was appropriate, and I would
affirm. I respectfully dissent.
19
9 | September 30, 2020 |
731afcb2-87d1-42a9-9517-73e015fc6727 | Ex parte Terri Lynn Grant. | N/A | 1191043 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1191043
Ex parte Terri Lynn Grant. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Terri Lynn Grant v. State of Alabama) (Mobile Circuit Court:
CC-17-1626; Criminal Appeals : CR-18-0355).
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 |
84fbfb1a-d110-4128-898a-d67ec9935647 | Cecelia N. King v. Duane A. Graham | N/A | 1180833 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 18, 2020
1180833 Cecelia N. King v. Duane A. Graham (Appeal from Mobile Circuit Court:
CV-19-900510).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on September 18, 2020:
Application Overruled. No Opinion. Wise, J. - Parker, C.J., and Bolin, Shaw, 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 June 19, 2020:
Affirmed. No opinion. Wise, J. - Parker, C.J., and Bolin, Shaw, Bryan, Sellers, Stewart, and
Mitchell, JJ., concur. Mendheim, 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 18th day of September, 2020.
Clerk, Supreme Court of Alabama | September 18, 2020 |
74880b3b-bb98-42bf-afe9-588e1b76f12c | Ex parte Antuan Deteiro Johnson. | N/A | 1190998 | 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
1190998
Ex parte Antuan Deteiro Johnson. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Antuan Deteiro Johnson v. State of Alabama) (Montgomery
Circuit Court: CC-19-502; Criminal Appeals :
CR-19-0073).
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 |
bb11a3c1-acbb-4b02-a1b6-3dead5dd1b50 | Ex parte Johnny K. Treadway. | N/A | 1190993 | 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
1190993
Ex parte Johnny K. Treadway. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: Johnny K. Treadway v. Wendy Michelle Treadway) (Lawrence Circuit
Court: DR-15-900035; Civil Appeals :
2190133).
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. 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. 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 |
a45b3cf3-2d8c-4998-8af2-57be7ebf35df | Ex parte Broderick Darnell McCoy. | N/A | 1190575 | 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
September 11, 2020
1190575
Ex parte Broderick Darnell McCoy. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Broderick Darnell McCoy v. State of Alabama) (Russell
Circuit Court: CC-15-614; Criminal Appeals :
CR-18-0559).
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 September 11,2020:
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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
071e8c74-7c9f-4f36-88f4-845c7253aeb8 | Ex parte Thomas Denault and Carol Denault. | N/A | 1190896 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1190896
Ex parte Thomas Denault and Carol Denault. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: Thomas Denault and Carol Denault v. Federal
National Mortgage Association and Seterus, Inc.) (Jefferson Circuit Court: CV-14-901195;
Civil Appeals : 2180849).
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 |
202eff03-1517-4971-8b00-e0edef24117f | Ex parte Russell Alan Lashley, Jr. | N/A | 1190753 | 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
September 25, 2020
1190753
Ex parte Russell Alan Lashley, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Russell Alan Lashley, Jr. v. State of Alabama) (Chambers
Circuit Court: CC-17-900023; Criminal Appeals :
CR-19-0327).
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 September 25, 2020:
Writ Denied. No Opinion. (Special Writing) p e r c u r ia m - Bolin, Wise, Bryan,
Sellers, Mendheim, Stewart, and Mitchell, JJ., concur. Parker, C.J., and Shaw, 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 25th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 25, 2020 |
2b8942bb-1599-4234-ab53-a3923a35524a | Tyler Marable v. Northeast Alabama Regional Medical Center, Dr. Nalia Siddiqui, and Thelma Rowden | N/A | 1190089 | Alabama | Alabama Supreme Court | REL: September 11, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190089
Tyler Marable v. Northeast Alabama Regional Medical Center,
Dr. Nalia Siddiqui, and Thelma Rowden (Appeal from Calhoun
Circuit Court: CV-19-900348).
MITCHELL, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur. | September 11, 2020 |
86d5adb2-a09d-4015-af82-c8f99369ee04 | Mid-Century Insurance Company v. Watts | N/A | 1180852 | Alabama | Alabama Supreme Court | Rel: September 18, 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
SPECIAL TERM, 2020
____________________
1180852
____________________
Mid-Century Insurance Company
v.
Rodney Watts, as personal representative of the Estate of
Leiah Watts, deceased, et al.
Appeal from Talladega Circuit Court
(CV-17-900251)
BOLIN, Justice.
This Court granted Mid-Century Insurance Company ("Mid-
Century") permission to appeal from the denial of its motion
for a partial summary judgment in an action seeking
1180852
underinsured-motorist benefits filed by Rodney Watts, as the
personal representative of the estate of his wife Leiah Watts,
deceased, and others (hereinafter collectively referred to as
"the Watts plaintiffs"). See Rule 5, Ala. R. App. P.
Facts and Procedural History
On July 16, 2016, Leiah Watts, Caiden Watts, Jackson
Watts, Faye Howard, Mary Adair, Evelyn Watts, Tammy McBurnett,
Renee Stone, and Victoria Stone were traveling in a 2014 Ford
Expedition sport-utility vehicle ("the Watts vehicle") when
the Watts vehicle was struck by a vehicle being driven by
Wiley "Pete" Whitworth. The collision killed Leiah Watts,
Faye Howard, Mary Adair, and Evelyn Watts. Tammy McBurnett,
Renee Stone, Caiden Watts, Jackson Watts, and Victoria Stone
suffered serious injuries in the collision.
The Watts vehicle was insured by a policy of insurance
issued by Farmers Insurance Exchange to Rodney Watts
("Rodney") and underwritten by Mid-Century.1 The insurance
policy
provided
underinsured/uninsured-motorist
("UIM")
1Following the accident, Whitworth's insurer tendered the
liability policy limits of $300,000 available under a policy
of insurance issued to Whitworth. Farmers and Mid-Century
authorized Rodney's acceptance of those moneys and waived
their subrogation interests.
2
1180852
coverage of $50,000 per person and $100,000 per accident. The
insurance policy listed five vehicles that were covered under
the policy. The insurance policy also contained a "stacking"
provision in the policy endorsements "Part II-Uninsured
Motorist" section, allowing the stacking of benefits.
A dispute arose between Mid-Century and Rodney as to the
amount of UIM benefits payable to the Watts plaintiffs under
the policy. Mid-Century contended that, because the policy
allowed for the stacking of up to three UIM coverages, the
maximum amount of UIM benefits available under the policy for
the accident in this case is $300,000, based on $100,000 per
accident. However, the Watts plaintiffs contended that each
of the nine occupants of the Watts vehicle involved in the
accident (or his/her personal representative) was entitled to
$150,000 in UIM benefits ($50,000 per person limit of the
occupied vehicle plus the per person limit of $50,000 for two
additional coverages under the stacking provision of the
policy). Thus, the total sought by Rodney in UIM benefits was
$1,350,000 (9 x $150,000).
3
1180852
On August 3, 2017, the Watts plaintiffs sued Mid-Century,
Farmers
Insurance
Exchange,
and
Farmers
Group,
Inc.2
(hereinafter
collectively
referred
to
as
"the
defendants"),
in
the Talladega Circuit Court ("the trial court"), asserting
claims alleging fraud, breach of contract, wrongful denial of
UIM benefits, and bad faith. On August 28, 2017, the
defendants filed, pursuant to 28 U.S.C. § 1446, a notice of
removal of the action to the United States District Court for
the Northern District of Alabama, Eastern Division ("the
federal district court"). On that same date, the defendants
moved the federal district court to dismiss the Watts
plaintiffs' fraud claims, breach-of-contract claim, and bad-
faith claim. On October 19, 2017, the federal district court
entered an order requiring, among other things, that the Watts
plaintiffs file an "Amended Complaint setting out with the
specificity required by the Federal Rules of Civil Procedure
(including Rule 9 as to any fraud claims) all claims against
all defendants."
On November 30, 2017, the Watts plaintiffs filed their
first amended complaint, reasserting their claims against the
2Farmers Group is an entity that administers insurance
policies issued by Farmers Insurance Exchange.
4
1180852
defendants with more specificity. On December 14, 2017, the
defendants moved the federal district court to dismiss the
fraud claims, the bad-faith claim, and the breach-of-contract
claim asserted against them in the Watts plaintiffs' first
amended complaint.
On April 27, 2018, the federal district court entered an
order granting in part and denying in part the defendants'
motion to dismiss. The court granted the motion to dismiss the
fraud claims as to Farmers Group only and denied the motion to
dismiss the fraud claims as to Farmers Insurance Exchange and
Mid-Century. Additionally, the court dismissed without
prejudice -- based on ripeness grounds -- the breach-of-
contract and bad-faith claims against all the defendants.
On May 25, 2018, the Watts plaintiffs filed a second
amended complaint against Farmers Insurance Exchange and Mid-
Century, reasserting their fraud claims and to more
specifically
state
a
breach-of-contract claim
for
UIM
benefits
("the UIM claim"). On June 14, 2018, the Watts plaintiffs
moved to dismiss their UIM claim against Farmers Insurance
Exchange. On June 29, 2018, the federal district court entered
an order granting the Watts plaintiffs' unopposed motion to
5
1180852
dismiss, without prejudice, the UIM claim against Farmers
Insurance Exchange.
On July 27, 2018, the Watts plaintiffs moved the federal
district court to remand the case to the trial court. On
September 6, 2018, the federal district court entered an order
remanding the case to the trial court.
On February 18, 2019, Mid-Century moved the trial court
for a partial summary judgment on the UIM claim, arguing that
the UIM coverage available to the Watts plaintiffs under the
uninsured-motorist statute, § 32-7-23, Ala. Code 1975, and the
UIM provisions of the policy issued to Rodney was $300,000.
Mid-Century also moved the trial court for an order allowing
it to pay UIM benefits of $300,000 into the trial court for
distribution to the Watts plaintiffs. On March 12, 2019,
Farmers Insurance Exchange and Mid-Century moved the trial
court pursuant to Rule 21, Ala. R. Civ. P., to sever the Watts
plaintiffs' fraud claims from the UIM claim.
On March 22, 2019, the Watts plaintiffs filed their
motion in opposition to Mid-Century's motion for a partial
summary judgment on the UIM claim, arguing that Mid-Century's
limit of liability under the uninsured-motorist statute and
6
1180852
the UIM provisions of the policy was $150,000 per injured
person, for a total of $1,350,000.
On March 26, 2019, the trial court entered an order
granting Mid-Century's motion to pay its asserted UIM policy
limit of $300,000 into the trial court. On April 29, 2019, the
trial court entered an order granting the motion to sever the
fraud claims from the UIM claim. On June 21, 2019, the trial
court entered an order denying Mid-Century's motion for a
partial summary judgment as to the Watts plaintiffs' UIM
claim.
On July 10, 2019, Mid-Century moved the trial court
pursuant to Rule 5, Ala. R. App. P., for permission to appeal
the interlocutory order denying its motion for a partial
summary judgment as to the UIM claim, and on July 19, 2019,
the trial court entered an order granting Mid-Century
permission to appeal. On July 26, 2019, Mid-Century petitioned
this Court for permission to appeal. On October 2, 2019, this
Court granted Mid-Century permission to appeal pursuant to
Rule 5, Ala. R. App. P.
Standard of Review
"'Where, as here, the facts of a case are
essentially undisputed, this Court must determine
7
1180852
whether the trial court misapplied the law to the
undisputed facts, applying a de novo standard of
review. Carter v. City of Haleyville, 669 So. 2d 812,
815 (Ala. 1995). Here, in reviewing the denial of a
summary judgment when the facts are undisputed, we
review de novo the trial court's interpretation of
statutory language and our previous caselaw on a
controlling question of law.'"
Wood v. Wayman, 47 So. 3d 1212, 1215 (Ala. 2010)(quoting
Continental Nat'l Indem. Co. v. Fields, 926 So. 2d 1033, 1035
(Ala. 2005)).
This Court has stated the following with regard to
permissive appeals:
"In the petition for a permissive appeal, the
party seeking to appeal must include a certification
by the trial court that the interlocutory order
involves a controlling question of law, and the trial
court must include in the certification a statement
of the controlling question of law. Rule 5(a), Ala.
R. App. P. In conducting our de novo review of the
question presented on a permissive appeal, 'this
Court will not expand its review ... beyond the
question of law stated by the trial court. Any such
expansion would
usurp
the
responsibility entrusted
to
the trial court by Rule 5(a).' BE&K, Inc. v. Baker,
875 So. 2d 1185, 1189 (Ala. 2003). ..."
Alabama Powersport Auction, LLC v. Wiese, 143 So. 3d 713, 716
(Ala. 2013). The trial court certified the controlling
question of law as follows:
"What are the total amount of limits available to the
[Watts] Plaintiffs under the governing automobile
insurance policy as dictated by, and in accordance
8
1180852
with,
the
Alabama
uninsured motorist
statute (Section
32-7-23[, Ala. Code 1975])?"
Discussion
I. Permissive Appeal
The Watts plaintiffs initially argue that this Court
improvidently granted the Rule 5 motion for a permissive
appeal. Rule 5 provides, in part:
"(a) Petition for Permission to Appeal. A party
may
request
permission
to
appeal
from
an
interlocutory order in civil actions under limited
circumstances. Appeals of interlocutory orders are
limited to those civil cases that are within the
original
appellate jurisdiction of
the
Supreme Court.
A petition to appeal from an interlocutory order must
contain a certification by the trial judge that, in
the
judge's
opinion,
the
interlocutory order involves
a controlling question of law as to which there is
substantial ground for difference of opinion, that an
immediate appeal from the order would materially
advance the ultimate termination of the litigation,
and that the appeal would avoid protracted and
expensive litigation. The trial judge must include in
the certification a statement of the controlling
question of law.
"....
"(b) Content of Petition; Answer.
"(1) Petition. The petition shall contain a
statement of the facts necessary to an understanding
of the controlling question of law determined by the
order of the trial court, supported by reference to
the appendix accompanying the petition; a statement
of the question itself, as stated by the trial court
in its certification; and a statement of the reasons
9
1180852
why a substantial basis exists for a difference of
opinion on the question, why an immediate appeal
would materially advance the termination of the
litigation, and why the appeal would avoid protracted
and expensive litigation."
It is "our time-honored rule that a final judgment is an
essential precondition for appealing to this Court." John
Crane–Houdaille, Inc. v. Lucas, 534 So. 2d 1070, 1073 (Ala.
1988). However, in exercising its rule-making authority, this
Court has provided in Rule 5 that "[a] party may request
permission to appeal from an interlocutory order in civil
actions under limited circumstances." Rule 5 "allows for an
appeal of an interlocutory order involving a controlling issue
of law as to which there is substantial ground for difference
of opinion when an immediate appeal would materially advance
termination of the litigation and would avoid protracted and
expensive litigation." Ex parte U.S. Bank Nat'l Ass'n, 148 So.
3d 1060, 1062 (Ala. 2014).
A. Controlling Question of Law.
The Watts plaintiffs argue that no controlling question
of law is presented in this permissive appeal, because, they
say, this Court is being asked only to apply well established
10
1180852
principles of uninsured-motorist law to the facts of this
case.
"Rule 5 does not apply in situations that involve the
application of law to facts or factual issues that
are so one-sided that it can be said that 'as a
matter of law' those issues can be decided only one
way. 'Rule 5 is not a vehicle by which to obtain
review of "significant and unresolved factual
issues."' Gowens v. Tys. S., 948 So. 2d 513, 530
(Ala. 2006) (quoting Spain v. Brown & Williamson
Tobacco
Corp.,
872
So.
2d
101,
104
(Ala.
2003)(emphasis added in Gowens). See also McFarlin v.
Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir.
2004)
(stating
that
permissive appeals
are
'intended,
and should be reserved, for situations in which the
court of appeals can rule on a pure, controlling
question of law without having to delve beyond the
surface of the record in order to determine the
facts' (emphasis added) ...."
Once Upon a Time, LLC v. Chappelle Props., LLC, 209 So. 3d
1094, 1106-07 (Ala. 2016)(Murdock, J., dissenting).
Section
32-7-23,
the
uninsured-motorist
statute,
provides,
in pertinent part:
"(a) No automobile liability or motor vehicle
liability policy insuring
against
loss
resulting from
liability imposed by law for bodily injury or death
suffered by any person arising out of the ownership,
maintenance, or use of a motor vehicle shall be
delivered or issued for delivery in this state with
respect
to
any
motor
vehicle
registered
or
principally garaged in this state unless coverage is
provided therein or supplemental thereto, in limits
for bodily injury or death set forth in subsection
(c) of Section 32-7-6, under provisions approved by
the Commissioner of Insurance for the protection of
11
1180852
persons insured thereunder who are legally entitled
to recover damages from owners or operators of
uninsured motor vehicles because of bodily injury,
sickness or disease, including death, resulting
therefrom ....
"....
"(c) The recovery by an injured person under the
uninsured
provisions
of
any
one
contract
of
automobile insurance shall be limited to the primary
coverage plus such additional coverage as may be
provided for additional vehicles, but not to exceed
two additional coverages within such contract."
Section 32-7-6(c), Ala. Code 1975, provides, in pertinent
part:
"[E]very policy or bond is subject, if the accident
has resulted in bodily injury or death, to a limit,
exclusive of interest and costs, of not less than
twenty-five thousand dollars ($25,000) because of
bodily injury to or death to one person in any one
accident and subject to the limit for one person, to
a limit of not less than fifty thousand dollars
($50,000) because of bodily injury to or death of two
or more persons in any one accident ...."
Thus, § 32–7–6(c) requires that uninsured-motorist coverages
provide coverages on both a per person basis and a per
accident basis. See also Weaver v. Champion Ins. Co., 567 So.
2d 380 (Ala. 1990); Safeco Ins. Co. v. Jones, 243 So. 2d 730
(Ala. Civ. App. 1970).
In accordance with § 32–7–6(c), the insurance policy at
issue here provides UIM coverage of $50,000 per person and
12
1180852
$100,000 per accident. Five vehicles were listed in and
covered by the policy. The insurance policy also contained the
following "stacking" provision:
"2.
When there is more than one insured car on the
policy:
"a.
And the insured was occupying your
insured car at the time of the
accident:
"(1)
The limit of liability
for Uninsured Motorist
coverage stated in the
Declarations for
each
person for the occupied
insured car, plus the
sum
of
the
highest
limits of liability for
Uninsured
Motorist
coverage stated in the
Declarations
for
each
person applicable to any
other insured car on the
policy, up to a maximum
of
two
additional
limits, is our maximum
limit of liability for
all damages....
"(2)
Subject to the limit for
each person, the limit
of
liability
for
Uninsured
Motorists
coverage stated in the
Declarations
for
each
accident
for
the
occupied
insured
car,
plus the sum of the
13
1180852
highest
limits
of
liability for Uninsured
Motorists
coverage
s t a t e d
i n
t h e
Declarations
for
each
accident applicable to
any other insured car on
the policy, up to a
m a x i m u m
o f
t w o
additional
limits,
is
our maximum limit of
liability
for
all
damages
for
bodily
injury
resulting
from
any one accident...."
Mid-Century argues that the phrase in § 32–7–6(c), "two
or more persons in any one accident," as incorporated by §
32–7–23(a), makes clear that when two or more injured persons
seek UIM benefits under the same policy arising out of the
same accident, those injured persons are eligible to receive
only the per accident limit under the policy. Mid-Century
continues that the phrase "subject to the limit for one
person" in § 32–7–6(c) makes it clear that when only one
person seeks UIM benefits under a policy, that injured person
is eligible to receive only the per person limit under the
policy. Mid-Century concludes that, because the accident here
involved "two or more injured persons," the per accident
benefit of $100,000 is applicable. Mid-Century further argues
14
1180852
that the "stacking" provision in § 2a.(2) of the insurance
policy allows the Watts plaintiffs to stack the per accident
benefit of $100,000 for up to two additional coverages. Thus,
Mid-Century concludes that the Watts plaintiffs are entitled
to $300,000 in UIM benefits pursuant to the uninsured-motorist
statute and Rodney's insurance policy.
The Watts plaintiffs' initially argue that the per
accident limit in the insurance policy is an exclusion not
authorized by the uninsured-motorist statute. The Watts
plaintiffs contend that "in the absence of an exclusion in the
Act, none is authorized to be read into it. In other words,
the legislature could have authorized exclusions in the
uninsured motorist statute but not having done so, no such
exclusions are permitted." Gatson v. Integrity Ins. Co., 451
So. 2d 361, 362-63 (Ala. Civ. App 1984).
The Watts plaintiffs further argue that the phrase
"subject to the limit for each person" contained in § 2a.(2)
of the insurance policy is ambiguous and that, like all
ambiguities in provisions of an insurance policy, it should be
construed strictly against the insurance company. See Twin
City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So. 2d 687 (Ala.
15
1180852
2001). The Watts plaintiffs contend that § 2a.(2) of the
insurance policy should be construed so that the per accident
limit of liability is subordinate or inferior to the per
person limit of liability because the per accident limit of
liability is "subject to the limit for each person." The Watts
plaintiffs contend that this understanding is consistent with
the commonly understood meaning of "subject to" and best
reflects the reasonable expectations of Rodney, as the
contracting party, that UIM coverage would be available on
all five vehicles for which the coverage was purchased. Thus,
the Watts plaintiffs conclude that each of the persons in the
Watts vehicle is entitled to "stack" the per person limit of
liability of $50,000 up to two additional coverages for an
individual UIM benefit of $150,000 per person and total UIM
benefits for the accident of $1,350,000 under the policy.
In the alternative, the Watts plaintiffs argue that at a
minimum they are entitled to at least $500,000 in UIM
benefits. The Watts plaintiffs state that the accident
resulted in the death of four persons and injury to five
others. They also state that there are five vehicles covered
under the UIM policy for a total of five available coverages.
16
1180852
The Watts plaintiffs contend that § 32-7-23(c) permits each
injured person to recover from the primary coverage plus two
additional coverages but places no limitations on which
additional coverages the injured persons may rely upon to draw
the UIM benefits. For example, the Watts plaintiffs contend
that all nine persons could draw UIM benefits from the primary
coverage under the policy and that four of the nine could draw
UIM benefits from the second and third available coverages.
The Watts plaintiffs further argue that the remaining five
injured persons could then draw UIM benefits from the fourth
and fifth available coverages. Applying the $100,000 per
accident limit, the Watts plaintiffs conclude that the total
UIM benefit limit using all five available coverages is at
least $500,000. The Watts plaintiffs state that Mid-Century's
contrary position deprives them of two coverages sold and
issued by Mid-Century and violates the illusory-promises
doctrine.
As noted earlier, the trial court has certified the
following question of law:
"What are the total amount of limits available to the
[Watts] Plaintiffs under the governing automobile
insurance policy as dictated by, and in accordance
17
1180852
with,
the
Alabama
uninsured motorist
statute (Section
32-7-23)?"
The underlying facts of this case are not disputed, and
this Court is not called upon to review any unresolved factual
questions or to apply any well settled principles of law to a
particular set of facts. The certified question presented by
the trial court requires this Court to undertake a legal
analysis of the relevant portions of the uninsured-motorist
statute and the policy of insurance issued in this case.
Although the question as certified by the trial court is
rather broad, it adequately encompasses the purely legal issue
presented to this Court under the uninsured-motorist statute
and the UIM provisions of the policy as set forth and argued
by the parties. Accordingly, we conclude that the trial court
has properly certified the controlling question of law in this
case.3
B. Substantial Ground for Difference of Opinion.
The Watts plaintiffs next argue that the underlying legal
principles of law that this Court must invoke in answering the
3Because we have determined that the trial court has
certified a proper controlling question of law presented in
this case, we pretermit discussion of the Watts plaintiffs'
argument that this Court should reframe that question.
18
1180852
question of the available limits of UIM coverage involves
basic rules of statutory construction and the application of
the uninsured-motorist statute, both of which, they say, are
well established and lacking of any substantial ground for a
difference of opinion.
"[T]he limitation in Rule 5 to issues 'as to which
there is substantial ground for difference of
opinion' is a limitation to questions of law that
either have never been decided or are the subject of
a split of authority or a conflict in our precedents.
Otherwise, this Court is merely performing the trial
court's function of researching and deciding legal
issues, a task for which the trial court is well
equipped and to which it equally is assigned. See,
e.g., Couch v. Telescope Inc., 611 F.3d 629, 633 (9th
Cir. 2010) (noting that '[c]ourts traditionally will
find that a substantial ground for difference of
opinion exists where "... novel and difficult
questions of first impression are presented"'
(quoting 3 Federal Procedure § 3:212 (Lawyers ed.
2010)))."
Once Upon a Time, 209 So. 3d at 1107 (Murdock, J.,
dissenting).
The Watts plaintiffs' argument misapprehends the query
presented here. It is true that principles of law related to
statutory and contract construction are well settled and lack
any ground for a difference of opinion. Likewise, the
application of the uninsured-motorist statute is largely well
settled and lacks any ground for a difference of opinion.
19
1180852
However, the actual legal question presented here pertaining
to the amount of coverage available under the insurance
policy, as dictated by the applicable provisions of the
uninsured-motorist statute, appears to be a question of first
impression.
Therefore,
we
conclude
that
there
is
a
"'substantial ground for a difference of opinion.'" Once Upon
a Time, 209 So. 3d at 1107 (Murdock, J., dissenting).
C. Materially Advance the Ultimate Termination of the
Litigation and Avoid Protracted and Expensive Litigation.
The Watts plaintiffs state that two actions are pending
in the trial court against Mid-Century -- the fraud claims and
the UIM claim that were originally filed together but that
were later severed by the trial court. The Watts plaintiffs
argue that, whatever the outcome of this appeal, the fraud
claims remain to be litigated. Thus, they contend, it is
likely that there will be multiple, piecemeal appeals in this
matter and that, therefore, this permissive appeal will not
"materially
advance
the
ultimate
termination
of
the
litigation" between them and Mid-Century. We disagree.
The trial court entered an order severing the fraud claims
from the UIM claim pursuant to Rule 21, Ala. R. App. P. The
trial court ordered that the fraud claims and the UIM claim
20
1180852
proceed as independent actions. The trial court also directed
the circuit court clerk to designate the fraud claims with
their own civil-action case number. Thus, this permissive
appeal consists only of the Watts plaintiffs' UIM claim
seeking to recover UIM benefits, and a determination of that
claim by this Court on permissive appeal would effectively
end the litigation of the UIM claim. Accordingly, we conclude
that this permissive appeal will materially advance the
ultimate termination of this litigation and will help to avoid
protracted litigation and the expense associated with such
litigation; thus, the permissive appeal was properly granted.
II. UIM Claim
As
mentioned above, pursuant to § 32–7–6(c), the insurance
policy here provides UIM coverage on both a per person basis
and a per accident basis. The coverage limit on the per
person basis is $50,000; the coverage limit on the per
accident basis is $100,000. The parties dispute which coverage
limit is available to the Watts plaintiffs in accordance with
the terms of the uninsured-motorist statute and the insurance
policy.
21
1180852
Section
32-7-6(c),
incorporated
by
§
32–7–23(a),
provides,
in pertinent part:
"The policy ... shall not be effective under this
section unless ... every policy ... is subject, if
the accident has resulted in bodily injury or death,
to a limit, exclusive of interest and costs, of not
less than twenty-five thousand dollars ($25,000)
because of bodily injury to or death to one person in
any one accident and subject to the limit for one
person, to a limit of not less than fifty thousand
dollars ($50,000) because of bodily injury to or
death of two or more persons in any one accident
...."
"When a court construes a statute, '[w]ords used in [the]
statute must be given their natural, plain, 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)).
Reading the phrases "subject to the limit for one person"
and "bodily injury to or death of two or more persons in any
one accident" in § 32-7-6(c) so as to give those words their
"natural, plain, ordinary, and commonly understood meaning,"
we conclude that, in those cases where two or more persons are
injured or killed in a single accident, the per accident limit
22
1180852
of liability contained in the policy is the proper coverage
limit to be applied. The policy here contains a per accident
limit of coverage as required by § 32-7-6(c). Because the
accident made the basis of this UIM claim involved "two or
more persons," the per accident coverage limit of $100,000
found in the policy is applicable. Section 32-7-23(c) of the
uninsured-motorist statute and § 2a.(2) of the insurance
policy allow the Watts plaintiffs to "stack" the primary
coverage of $100,000 for up to two additional coverages, or a
total amount of $300,000 in UIM benefits.
The Watts plaintiffs do not necessarily dispute the above
interpretation of the uninsured-motorist statute and the
policy provision. Rather, they challenge the interpretation
and application of the uninsured-motorist statute and
insurance policy in other ways. Initially, they argue that a
per accident limit is an exclusion not authorized by the
uninsured-motorist statute and that, "in the absence of an
exclusion in the Act, none is authorized to be read into it."
Gatson, 451 So. 2d at 362-63. This argument, however, is
without merit. Initially, we note § 32-7-6(c) requires that
UIM coverage contained in automobile-insurance policies be
23
1180852
provided on both a per person and per accident basis. Weaver,
supra; Jones, supra. Further, the required per accident limit
of coverage for UIM benefits appears on the declaration page
of the insurance policy. The "Uninsured Motorist Coverage,"
which governs how and on what basis the UIM benefits are
paid, appears in Part II of the policy provisions. Part II of
the UIM provisions contains the following exclusions:
"This coverage shall not apply to the benefit of any
insurer
or
self-insurer
under
any
workers'
compensation law, or directly to the benefit of the
United States, or any state or any political
subdivision.
"This coverage does not apply to bodily injury
sustained by a person:
"1.
While occupying any vehicle owned by
you or a family member for which
insurance is not afforded under this
policy or through being struck by that
vehicle.
"2.
If
that
person
or
the
legal
representative of that person makes a
settlement without written consent.
"3.
While occupying your insured car when
used to carry persons or property for
a charge. This exclusion does not
apply to shared-expense carpools.
"4.
During active participation in any
organized or agreed-upon racing or
speed contest or demonstration or in
24
1180852
practice or preparation for any such
contest."
The per accident limit is set forth in the declarations page
of the policy -- not in the UIM exclusions found in Part II of
the insurance policy. Thus, it is clear from § 32-7-6(c) and
the policy provisions that the per accident limit is not an
exclusion under the policy.
The Watts plaintiffs next argue that the phrase "subject
to the limit for each person" contained in § 2a.(2) of the
insurance policy is ambiguous and should be construed against
the insurance company, Mid-Century. See Twin City Fire Ins.
Co., supra. The Watts plaintiffs argue that the ambiguity in
the language triggers the "reasonable-expectations rule,"
under which an insured is entitled to the protection that he
or she may reasonably expect from the insurance policy
containing the ambiguity. See Lambert v. Liberty Mut. Ins.
Co., 331 So. 2d 260 (Ala. 1976). The Watts plaintiffs contend
that the "subject to the limit for each person" phrase in §
2a.(2) of the insurance policy should be construed so as to
make the per accident limit of liability subordinate or
inferior to the per person limit of liability, because, they
say, that interpretation is consistent with the commonly
25
1180852
understood meaning of "subject to" and best reflects the
reasonable expectations of Rodney, as the contracting party,
that UIM coverage would be available on all five vehicles for
which it was purchased and not limited to the primary coverage
plus two additional coverage.
When determining how to construe the provisions of an
insurance policy, this Court is guided by the following
principles:
"'When analyzing an insurance policy,
a court gives words used in the policy
their
common,
everyday
meaning
and
interprets them as a reasonable person in
the
insured's
position
would
have
understood them. Western World Ins. Co. v.
City of Tuscumbia, 612 So. 2d 1159 (Ala.
1992); St. Paul Fire & Marine Ins. Co. v.
Edge Mem'l Hosp., 584 So. 2d 1316 (Ala.
1991). If, under this standard, they are
reasonably certain in their meaning, they
are not ambiguous as a matter of law and
the rule of construction in favor of the
insured does not apply. Bituminous Cas.
Corp. v. Harris, 372 So. 2d 342 (Ala. Civ.
App. 1979). Only in cases of genuine
ambiguity or inconsistency is it proper to
resort to rules of construction. Canal Ins.
Co. v. Old Republic Ins. Co., 718 So. 2d 8
(Ala. 1998). A policy is not made ambiguous
by the fact that the parties interpret the
policy differently or disagree as to the
meaning of a written provision in a
contract. Watkins v. United States Fid. &
Guar. Co., 656 So. 2d 337 (Ala. 1994). A
court must not rewrite a policy so as to
26
1180852
include or exclude coverage that was not
intended. Upton v. Mississippi Valley Title
Ins. Co., 469 So. 2d 548 (Ala. 1985).'
"B.D.B. v. State Farm Mut. Auto. Ins. Co., 814 So. 2d
877, 879–80 (Ala. Civ. App. 2001). However, if a
provision in an insurance policy is found to be
genuinely ambiguous, 'policies
of
insurance should
be
construed liberally in respect to persons insured and
strictly with respect to the insurer.' Crossett v.
St. Louis Fire & Marine Ins. Co., 289 Ala. 598, 603,
269 So. 2d 869, 873 (1972)."
State Farm Mut. Auto. Ins. Co. v. Brown, 26 So. 3d 1167, 1169-
70 (Ala. 2009).
We first note that the Watts plaintiffs do not challenge
the "subject to" language in § 32-7-6(c), the actual statutory
provision setting forth the circumstances in which either the
per person or per accident limit is applicable. Rather, the
"subject to" language challenged by the Watts plaintiffs is
found in the "stacking" provision § 2a.(2) of Part II of the
UIM section of the policy. Further, the Watts plaintiffs'
argument that the "subject to" language creates an ambiguity
is conclusory only, with no real explanation as to how the
phrase creates an ambiguity and with no citation to any
authority supporting the contention that the phrase is
ambiguous. In fact, the same "subject to" language contained
in the UIM provision here has been held to be unambiguous in
27
1180852
the context of the availability of the per person limit or per
accident limit in such coverage. See Livingston v. Farmers
Ins. Co., 79 Wash. App. 72, 900 P.2d 575 (1995). Accordingly,
we conclude that the Watts plaintiffs have failed to
demonstrate an ambiguity in the UIM provisions of the
insurance policy. Therefore, the reasonable-expectations
doctrine, a "rule of construction that applies to interpret
ambiguous insurance policies," has no application here.
Nationwide Mut. Ins. Co. v. J-Mar Mach. & Pump, Inc., 73 So.
3d 1248, 1253 (Ala. 2011).
The Watts plaintiffs next alternatively argue that, if
this Court does not find an ambiguity in the policy language
that requires the application of the per person limit and a
finding that they are entitled to a total UIM benefit of
$1,350,000, then they are entitled to a total UIM benefit of
at least $500,000. As set forth in detail above, the Watts
plaintiffs argue that § 32-7-23(c) permits each injured person
to recover from the primary coverage plus two additional
coverages, but places no limitation as to which policy an
injured person may choose the additional coverages from which
to draw his or her benefit. The Watts plaintiffs next argue
28
1180852
that all nine of the persons injured or the representatives of
those killed in the accident would recover UIM benefits from
the primary coverage and that four of the nine could recover
from the second and third available coverages. They continue
that the remaining five injured persons, in addition to
recovering from the primary coverage, could then recover from
the fourth and fifth available coverages. The Watts plaintiffs
further state that because the uninsured-motorist statute
provides for a total of three coverages being available for
recovery of uninsured-motorist benefits (the primary and two
additional) for "an injured person," and there are a total of
five coverages available, the total limit of coverage
available is at least $500,000 if the per accident limit of
coverage is applied. The Watts plaintiffs contend that if Mid-
Century's interpretation of the uninsured-motorist statute and
the policy is adopted, two coverages sold and issued by Mid-
Century would never be available to any claimant and that such
a result would violate the illusory-promises doctrine.
Section 32–7–23(c) provides: "The recovery by an injured
person under the uninsured provisions of any one contract of
automobile insurance shall be limited to the primary coverage
29
1180852
plus such additional coverage as may be provided for
additional vehicles, but not to exceed two additional
coverages within such contract." Nothing can be read in § 32-
7-23(c) as limiting the number of vehicles an insurer can
insure under a policy of insurance. Section 32-7-23(c)
expressly
contemplates
multiple
coverages
for multiple
vehicles through the phrase "additional coverage as may be
provided for additional vehicles." Although § 32-7-23(c) does
not limit the number of vehicles an insurer may insure, the
phrase limiting recovery by an injured person "to the primary
coverage plus such additional coverage as may be provided for
additional vehicles, but to not exceed two additional
coverages within such contract," expressly limits the stacking
of uninsured-motorist coverage by an insured to a total of
three coverages under a single policy. Hall, supra. This
statutory language must be given its plain and ordinary
meaning, and this Court must construe the language to mean
exactly what it says. Ex parte Berryhill, supra. The insurance
policy before us covered five vehicles; however, § 32-7-23(c)
expressly limits the stacking of uninsured-motorist benefits
to a total of three coverages for a single policy.
30
1180852
The Watts plaintiffs' contention that Mid-Century's
interpretation of the uninsured-motorist statute and the UIM
provisions of the policy would result in two coverages under
the policy he was sold that would never be available to any
claimant is without basis and, therefore, without merit.
"'When
limitations
or
exclusions
completely
contradict
the
insuring provisions, insurance coverage becomes illusory.'
Alabama
law
does
not
'"countenance
such
illusory
'coverage.'"'" Shrader v. Employers Mut. Cas. Co., 907 So. 2d
1026, 1033 (Ala. 2005) (citations omitted). All five vehicles
here carried UIM coverage of $50,000 per person and $100,000
per accident. Pursuant to the terms of the uninsured-motorist
statute and the insurance policy, the Watts plaintiffs were,
however, able to stack only three of those five coverages, but
that does not necessarily mean that the Watts plaintiffs were
deprived of coverages on two of the vehicles. Nothing in the
record, or in allegations made by counsel, indicates that Mid-
Century had denied UIM coverage on any of the vehicles.
Rather, the Watts plaintiffs were, simply put, prohibited by
the uninsured-motorist statute and the insurance policy only
from stacking more than three coverages. Such exclusion or
31
1180852
limitation does not completely contradict the stacking
provision of the policy so as to make coverage "illusory";
rather, to so interpret the stacking provision would make the
provision itself illusory. Accord Hall, supra.
Based on the foregoing, we conclude that the Watts
plaintiffs are unable to stack more than three coverages under
the uninsured-motorist statute and insurance policy, and the
fact that they cannot do so does not render the coverage under
the policy illusory.
Conclusion
We reverse the trial court's order denying Mid-Century's
motion for a partial summary judgment as to the UIM claim and
remand the case for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
Shaw, Wise, Bryan, Sellers, Mendheim, and Mitchell, JJ.,
concur.
Parker, C.J., and Stewart, J., dissent.
32 | September 18, 2020 |
06d9550e-7a58-46fc-a0ed-ee868e19e330 | Ex parte Baby Trend, Inc. | N/A | 1190479 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 18, 2020
1190479
Ex parte Baby Trend, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
Cheryl Browder Reed and Jeremy Reed, parents and next friend of Landon Jackson
Reed, a minor, and Cheryl Browder Reed, individually v. Estate of Ray Bramblett,
Alfa Mutual Insurance Company, Baby Trend, Inc.; et al.) (DeKalb Circuit Court:
CV-17-900318).
ORDER
The petition for writ of mandamus in this cause is denied.
BOLIN, J. - Parker, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 18th day of September, 2020.
/tw | September 18, 2020 |
61a41bec-6ead-4313-bf92-436f92476315 | Nationwide Property and Casualty Insurance Company v. Steward | N/A | 1190011 | Alabama | Alabama Supreme Court | REL: September 18, 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
SPECIAL TERM, 2020
____________________
1190011
____________________
Nationwide Property and Casualty Insurance Company
v.
Aaron Kyle Steward
Appeal from Etowah Circuit Court
(CV-17-900227)
PARKER, Chief Justice.
Aaron Kyle Steward sued Nationwide Property and Casualty
Insurance Company ("Nationwide"), seeking uninsured-motorist
("UM") benefits after he was injured in an accident at a
publicly owned and operated all-terrain-vehicle ("ATV") park.
1190011
The Etowah Circuit Court entered a summary judgment in
Steward's favor, ruling that the ATV that collided with the
one on which he was riding was an "uninsured motor vehicle"
for purposes of Steward's automobile-insurance policies with
Nationwide, and Nationwide appeals. Because we conclude that
the roads on which the accident occurred were "public roads"
under the policies, we affirm.
I. Facts
Top Trails Off-Highway Vehicle Park ("Top Trails") was an
ATV park in Talladega. Top Trails was owned and maintained by
the Public Park Authority of the Cities of Lincoln and
Talladega ("the Authority"). Previously used by the federal
government for ammunition bunkers during World War II, the
land was conveyed to the Authority on the condition that it be
used as a public recreational park. Although Top Trails was
open to the public, visitors were required to pay an admission
fee and sign a liability waiver.
During a ride at Top Trails, Steward was a passenger on
a Polaris RZR ATV when it collided with another ATV driven by
Wesley Bowen. The collision occurred at the intersection of
two paved roads within Top Trails -- Road 6 and Road 19.
2
1190011
Steward was injured, and he sued his automobile insurer,
Nationwide, seeking UM benefits under two insurance policies,
alleging that Bowen's ATV was an uninsured motor vehicle.
Nationwide moved for a summary judgment, arguing that
Bowen's ATV was not an uninsured motor vehicle because both of
Steward's policies provided that "[t]he term uninsured motor
vehicle shall not include ... any equipment or vehicle
designed for use mainly off public roads except while on
public roads." (Emphasis added.) Steward filed a
cross-motion
for a summary judgment. The circuit court denied Nationwide's
motion and granted Steward's, concluding that the ATV was an
uninsured motor vehicle because the collision occurred on a
public road. Nationwide filed a motion for permission to
appeal under Rule 5, Ala. R. App. P., which the circuit court
granted. The court certified the controlling question of law
as "[w]hether the road (on which the ATV collision which was
the subject of this litigation occurred) ... is a 'public
road[,'] as contrasted to a private road." Nationwide filed
a petition for permission to appeal, which this Court granted.
II. Standard of Review
3
1190011
We review controlling questions of law presented on a
permissive appeal de novo. See Regions Bank v. Kramer, 98 So.
3d 510, 513 (Ala. 2012).
III. Analysis
Nationwide argues that Bowen's ATV involved in the
accident was "designed for use mainly off public roads" and
that the roads on which the accident occurred were not "public
roads," so the ATV was not an uninsured motor vehicle.
Steward, on the other hand, contends that the roads were
"public roads."
There is no dispute between the parties that Roads 6 and
19 were "roads"; the dispute is only whether the roads were
"public." Nationwide contends that the roads were not public
because they were not accessible to the public without paying
a fee and signing a waiver. Steward contends that the roads
were public because they were publicly owned, were maintained
using public funds, and were open to the public for
recreational
purposes.
Steward
further
contends
that,
because
the parties interpret the
term "public roads" differently, the
term is ambiguous and must be interpreted in his favor. See
Altiere v. Blue Cross & Blue Shield of Alabama, 551 So. 2d 290
4
1190011
(Ala. 1989) (holding that an ambiguity in an insurance
contract must be resolved in favor of the insured).
This Court has previously explained the nature of
ambiguity in the context of insurance policies:
"'"The mere fact that adverse parties contend
for different constructions [of a particular policy
provision] does not of itself force the conclusion
that the disputed language is ambiguous."' Upton v.
Mississippi Valley Title Ins. Co., 469 So. 2d 548,
554 (Ala. 1985), quoting Antram v. Stuyvesant Life
Ins. Co., 291 Ala. 716, 720, 287 So. 2d 837, 840
(1973). An ambiguity exists where a term is
reasonably subject to more than one interpretation.
See, generally, Black's Law Dictionary 73 (rev. 5th
ed. 1979)."
Cannon v. State Farm Mut. Auto. Ins. Co., 590 So. 2d 191, 194
(Ala. 1991).
Regarding the potential ambiguity here -- whether
particular roads were "public roads" under the policies -- two
commentators on UM insurance law have observed:
"The provision that the uninsured motorist
coverage only applies when vehicles designed mainly
for use 'off public roads while not on public roads'
raises the question of what is a public road. The
term 'public road' is not defined in the coverage
terms, and does not appear to have any generally
accepted meaning. The term could be intended to
classify roads based on ownership or on use. ... The
term should be interpreted to allow indemnification
under uninsured motorist insurance when an accident
occurs on a road which is either publicly owned or
publicly used.
5
1190011
"....
"The
term
'public
roads'
seems
at
best
ambiguous."
1 Alan I. Widiss & Jeffrey E. Thomas, Uninsured and
Underinsured Motorist Insurance §
8.10 (3d ed. 2005) (footnote
omitted). The reasonableness of Steward's interpretation of
"public roads" finds further support in Random House Webster's
Unabridged Dictionary 1562 (2d ed. 2001), which includes a
definition of "public" as "maintained at the public expense
and under public control." Here, it is undisputed that the
roads were publicly owned, publicly maintained, and publicly
accessible on certain conditions. Moreover, although
Nationwide argues that roads are not public if public access
is somehow restricted, such as
by
an entrance-fee requirement,
we take judicial notice that such a fee is required to enter
many unquestionably public spaces, such as state parks.
Therefore, Steward's interpretation of "public roads" as
including Roads 6 and 19 is reasonable.
Nationwide relies on Cannon, in which this Court held
that the term "public roads" was not ambiguous as applied to
the facts of that case. 590 So. 2d at 194. However, in
Cannon the potential ambiguity was different from the one
6
1190011
here. There, the plaintiff was injured when she fell off an
ATV that was being driven on an unpaved portion of a public
right-of-way. The plaintiff argued that "public roads"
included the entire right-of-way. This Court rejected that
argument, concluding that "road" plainly includes only the
traveled portion of a right-of-way. Id. at 194–95. In
Cannon, we did not address the potential ambiguity here --
whether a particular road is public or private. Moreover, the
two cases deal with potential ambiguity of different words: in
Cannon, "roads"; here, "public." Therefore, Nationwide's
reliance on Cannon for the proposition that the term "public
roads" is not ambiguous, as applied to the facts of this case,
is misplaced.
Because Steward's interpretation of "public roads" is
reasonable, we conclude that the term is ambiguous in this
case, and the ambiguity must be resolved in Steward's favor,
see Altiere, supra. Therefore, Roads 6 and 19 were "public
roads" for purposes of the policies, and because Bowen's ATV
was being operated on them at the time of Steward's injury,
the ATV was an uninsured motor vehicle.
IV. Conclusion
7
1190011
Under the facts of this case, Bowen's ATV involved in the
accident that resulted in Steward's injury was an uninsured
motor vehicle under Steward's automobile-insurance policies.
Accordingly, we affirm the summary judgment in favor of
Steward.
AFFIRMED.
Wise, Mendheim, and Stewart, JJ., concur.
Bryan, J., concurs in the result.
Bolin, Shaw, Sellers, and Mitchell, JJ., dissent.
8 | September 18, 2020 |
e6385544-9bba-4bdf-81ea-0a595fc514b7 | Hannah v. Naughton, M.D., et al. | N/A | 1190216 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2020
____________________
1190216
____________________
Regina D. Hannah
v.
Michael J. Naughton, M.D., Michael J. Naughton, M.D., Ph.D.,
LLC, Terisa A. Thomas, M.D., and Terisa A. Thomas, M.D.,
P.C.
Appeal from Etowah Circuit Court
(CV-07-900185)
BOLIN, Justice.
Regina D. Hannah appeals from a summary judgment entered
by the Etowah Circuit Court in favor of Michael J. Naughton,
M.D.; Michael J. Naughton, M.D., Ph.D., LLC; Terisa A. Thomas,
1190216
M.D.; and Terisa A. Thomas, M.D., P.C. (hereinafter
collectively referred to as "the defendants"), on Hannah's
claims alleging medical malpractice.
Facts and Procedural History
On August 1, 2005, Hannah was seen by Dr. Terisa A.
Thomas, a board-certified general surgeon, for a female
health-care examination. Hannah was 32 years old at the time
she was first seen by Dr. Thomas and was complaining of
fatigue, weight gain, heavy menstrual cycles, cramping, and
painful sexual relations. Hannah also reported a significant
family medical history of cervical cancer and stated that she
was fearful of getting cancer. Hannah stated that her mother,
grandmother, and sister had suffered from cervical cancer.
Dr. Thomas ordered a number of tests, including a pelvic
ultrasound and a Pap smear. Hannah returned to Dr. Thomas on
August 10, 2005. Dr. Thomas informed Hannah at that time that
the pelvic ultrasound was normal and that the results of the
Pap smear were still pending.
Dr. Thomas received the results of Hannah's Pap smear on
August 12, 2005. The Pap-smear report indicated that it was
"abnormal" with a diagnosis of "Epithelial Cell Abnormality.
2
1190216
Atypical Squamous Cells Cannot Exclude High Grade Squamous
Intraepithelial Lesion (HSIL)." Dr. Thomas stated that this
was not a diagnosis of cancer but, rather, that she considered
it an abnormal finding indicative of an "increased risk" of
cancer. After receiving the Pap-smear report, Dr. Thomas's
office contacted Hannah to schedule a follow-up appointment
for August 15. Dr. Thomas's office also faxed a copy of the
Pap-smear
report
to
Dr.
John
Morgan,
an
obstetrician/gynecologist, and scheduled an appointment for
Hannah with Dr. Morgan for August 16. Dr. Thomas explained
that she went ahead and scheduled the appointment for Hannah
with Dr. Morgan before actually seeing Hannah because she
anticipated the need for follow-up care and testing and
because she did not want Hannah to have to wait for follow-up
care in light of her extreme fear of cancer and her family
history of cancer.
Hannah testified that a nurse from Dr. Thomas's office
contacted her while she was at work to schedule the follow-up
appointment for August 15. Hannah testified that the nurse
told her that the results of the Pap smear indicated the
presence of atypical squamous cells. Hannah stated that she
3
1190216
asked the nurse what atypical squamous cells were and that the
nurse responded that they were cervical cancer. Hannah
testified that when the nurse told her on the telephone that
she had cervical cancer she became very upset and started
crying. Hannah stated that at that point Dr. Thomas got on
the telephone to ask her to come into the office and that they
would discuss the results of the Pap smear further. Hannah
testified that her coworkers were present and witnessed her
conversation with Dr. Thomas's office. Dr. Thomas stated that
her staff would not discuss the results of the Pap smear with
Hannah over the telephone and that she "would just be told
that she needed to come back in to discuss her results." Dr.
Thomas further stated that she did not remember talking to
Hannah on the telephone.
Hannah was seen by Dr. Thomas on August 15 for the
follow-up appointment regarding the results of the Pap smear.
Dr. Thomas testified that she discussed the results of the Pap
smear with Hannah, telling her that the Pap smear showed the
presence of "abnormal squamous cells" and that "it could not
exclude high grade squamous intraepithelial lesion." Dr.
Thomas stated that she told Hannah the Pap smear was abnormal
4
1190216
but that it "certainly was not cancer." Dr. Thomas said she
further informed Hannah that the presence of abnormal cells
put her at an increased risk for cervical cancer and that she
would need to be closely monitored.
Dr. Thomas explained to Hannah that her normal practice
with patients who have an abnormal Pap smear is to refer them
to an obstetrician/gynecologist for a second opinion and that
they had already scheduled an appointment for her with Dr.
Morgan. Dr. Thomas testified that Hannah continued to be
extremely anxious and repeatedly stated that she had a
significant family history of cervical cancer and that she
was fearful of getting cancer. Dr. Thomas testified that
Hannah told her that "she wanted to have it all [taken] out"
and wanted to discuss surgical options. Dr. Thomas stated
that she proceeded to discuss a total abdominal hysterectomy
with Hannah, which may or may not involve the removal of her
ovaries. Dr. Thomas stated that she told Hannah that if she
had her ovaries removed she would require hormone-replacement
therapy. Dr. Thomas documented her conversation with Hannah
in her records, noting that the "[patient] wishes to proceed
5
1190216
[with] hysterectomy due to abnormal Pap and strong [family
history of cancer]."
Hannah testified that, when she arrived at Dr. Thomas's
office on August 15, she signed in and was taken to Dr.
Thomas's private office. Hannah testified that Dr. Thomas
told her that she had cervical cancer and that she recommended
Hannah have a hysterectomy, including the removal of her
ovaries. Hannah stated that no options were given other than
a hysterectomy. Hannah denied making the statement to Dr.
Thomas that she "wanted it all out." Hannah testified that
she was upset and that Dr. Thomas was "very consoling."
Hannah's appointment with Dr. Morgan was canceled.
Because Dr. Thomas does not perform hysterectomies, Hannah was
given the names of several surgeons to whom Dr. Thomas
referred patients for hysterectomies. Hannah selected Dr.
Naughton, a board-certified general surgeon. Dr. Thomas
contacted Dr. Naughton while Hannah was still in her office.
Dr. Thomas related to Dr. Naughton that she had a patient she
wanted to refer to him for a second opinion following an
abnormal Pap smear. Dr. Thomas told Dr. Naughton that Hannah
was 32 years old and was extremely fearful of contracting
6
1190216
cervical cancer because of her significant family history of
cervical cancer. Dr. Thomas informed Dr. Naughton that Hannah
insisted on having a complete hysterectomy. Dr. Naughton
asked Dr. Thomas if Hannah had children because she was young
to have a hysterectomy. Dr. Thomas responded that Hannah had
had a previous tubal ligation and did not want to have more
children. Dr. Naughton agreed to see Hannah that day.
Hannah was first seen by Dr. Naughton on August 15, for
an evaluation for a hysterectomy. Hannah related a history
to Dr. Naughton of two vaginal births, heavy bleeding during
menstrual cycles, painful sexual intercourse, a tubal
ligation, and a significant family history of breast cancer
and cervical cancer. Dr. Naughton stated that Hannah told
him that she was "very fearful of having cancer." Dr. Naughton
performed a pelvic exam on Hannah and noted that she
experienced pain upon any movement of her cervix or uterus.
Dr. Naughton also noted that he did not observe any lesions or
abnormal tissue during the examination. Dr. Naughton
testified that he told Hannah "at least three times" that she
did not have cancer and that the majority of abnormal Pap
smears revert to normal.
7
1190216
Dr. Naughton testified that he told Hannah there were
"multiple options" available to her and that his initial
recommendation to her was to repeat the Pap smear in six
months. Dr. Naughton informed her that if the second Pap
smear came back abnormal they could discuss the option of
having a directed biopsy performed. Dr. Naughton also
discussed more aggressive treatment options, including the
removal of the uterus and cervix with the preservation of the
ovaries or the removal of the uterus, cervix, and the ovaries.
Dr. Naughton testified that Hannah chose the most aggressive
option, specifically stating that she wanted "it all out,"
including her ovaries. Dr. Naughton agreed that Hannah's
choice to remove her ovaries was indicated, given her fear of
developing ovarian cancer as well as the fact that an
abnormality on the ovaries could be the cause of her painful
intercourse. Dr. Naughton informed Hannah that if her ovaries
were removed she would require hormone-replacement therapy.
Dr. Naughton had Hannah execute a "surgical-awareness"
form indicating that she accepted full responsibility for her
decision to have the surgery. Dr. Naughton stated that he
made the following notes on the form in Hannah's presence:
8
1190216
"told Pap smear not cancer and high chance would change back
to normal -– discussed conversion. Options for treatment of
cervix given. Ovarian preservation discussed." Both Dr.
Naughton and Hannah signed the "surgical-awareness" form. The
form
containing Dr.
Naughton's
handwritten
notations
was
faxed
by Dr. Naughton's office to the Riverview Medical Center
before surgery and was received by that facility at 6:34 A.M.
on August 18, 2005.1
Hannah testified that when she first saw Dr. Naughton he
reviewed her test results, took a medical history, and
performed a pelvic exam. Hannah stated that Dr. Naughton then
told her that he "agreed with Dr. Thomas ... that I had
cervical cancer, and he told me [that] his staff could set the
surgery." Hannah stated that she asked Dr. Naughton about
preserving her ovaries and that he stated that there was a
chance the cancer would come back in the ovaries so he
recommended removing the ovaries. Hannah stated that Dr.
Naughton never informed her that cancer could not be diagnosed
from an abnormal Pap smear. Hannah further testified that Dr.
1Hannah has asserted that Dr. Naughton's handwritten
notations were added after her surgery.
9
1190216
Naughton did not mention any treatment options other than a
full hysterectomy. Hannah testified that she did sign the
"surgical-awareness" form but denies that the form contained
any handwritten notes by Dr. Naughton stating that she did not
have cancer or that he discussed with her preserving her
ovaries.
Hannah's surgery was performed on August 18, 2005. Dr.
Naughton noted in the records an admitting diagnosis of
dyspareunia (painful intercourse), pelvic pain, and an
abnormal Pap smear. There was no indication of any diagnosis
of cervical cancer mentioned in the surgical record. Dr.
Naughton noted in the surgical record Hannah's family history
of cervical cancer and her own "great fear" of cancer. Dr.
Naughton further noted that it was explained to Hannah that
the abnormal Pap smear was not an indication for the
hysterectomy and that she was given conservative treatment
options. Dr. Naughton noted that Hannah elected to have a
full hysterectomy, including the removal of her ovaries.
Hannah's surgery was completed without complication.
Dr. Naughton testified that he saw Hannah in the hospital
on the day after surgery and that she complained of continued
10
1190216
pain and problems "voiding." Dr. Naughton examined Hannah at
this time and decided to keep her in the hospital one more
night because he did not want to send her home when she was
feeling uncomfortable. Hannah's mother, Darlene Templeton,
states that she spoke with Dr. Naughton during this visit and
asked him if he got all the cancer and that he responded
"yes."
Hannah returned to see Dr. Naughton on August 24 for a
follow-up appointment. Dr. Naughton noted at that time that
the wound was healthy and that he removed her surgical
staples. Dr. Naughton also had received at this time a copy
of the pathology report, which indicated that Hannah did not
have cancer. Dr. Naughton testified that he reviewed this
report with Hannah and told her there was no cancer present.
Dr. Naughton testified that he did not discuss chemotherapy
treatments with Hannah because she did not have cancer. Dr.
Naughton stated that Hannah asked him if he "got everything."
Dr. Naughton testified that, because he had already told
Hannah she did not have cancer, he assumed she meant
anatomically, and he responded "yes." Dr. Naughton testified
that Hannah was to follow up with Dr. Thomas. Following the
11
1190216
surgery, Hannah sent Dr. Naughton a note thanking him for his
care and informing him that she was "recovering well and
feeling great."
Hannah testified that Dr. Naughton told her at the August
24 visit that he did not have the pathology report back but
that he "felt comfortable that ... he had gotten all the
cancer." Hannah also stated that she asked Dr. Naughton about
chemotherapy treatments and that he stated that he "felt that
all the cancer had been taken, gotten out, and he felt good
about the surgery." Hannah was not seen by Dr. Naughton after
August 24.
Although Hannah denies any further visits with Dr.
Thomas, the medical records indicate that she was also seen by
Dr. Thomas on August 24. Dr. Thomas stated that Hannah was
happy that everything had gone well with her surgery and was
relieved that she did not have cancer. Dr. Thomas noted that
Hannah had had her surgical staples removed earlier that day
and that she was doing well following the surgery. Dr. Thomas
testified that she had a copy of the pathology report, which
indicated that Hannah did not have cancer, and that she
discussed the results of the report with Hannah. Dr. Thomas
12
1190216
stated that she did not discuss chemotherapy options with
Hannah because she did not have cancer. Dr. Thomas did not
see Hannah again after this visit.
Hannah testified that she attempted to follow up with Dr.
Naughton regarding her pathology report on several occasions
but states that her telephone calls were not returned. Hannah
testified that she became aggravated with the lack of response
from Dr. Naughton's office so she saw a physician in Gadsden
who referred her to Dr. Max Austin, a gynecologic oncologist.
Dr. Austin obtained a copy of Hannah's pathology report and,
according to Hannah, told her that she "never had nor did
[she] have cervical cancer."
On July 31, 2007, Hannah sued the defendants under § 6-5-
480 et seq. and § 6-5-541 et seq., Ala. Code 1975, the Alabama
Medical Liability Act ("the AMLA"), alleging that the
defendants had "negligently or wantonly provided health care
services and/or medical care to [Hannah], including surgical
services, post surgical follow up care, [and] diagnostic
care." Specifically, Hannah alleged, among other things,
that the defendants breached their standard of care by falsely
informing her that she had cervical cancer based on an
13
1190216
abnormal Pap-smear result; by advising her that she should
undergo an immediate hysterectomy, including the removal of
her ovaries; by performing a complete hysterectomy on Hannah
without first performing necessary tests/procedures to
properly diagnose the cause of Hannah's symptoms; by failing
to fully and properly advise Hannah of options other than
surgery; by failing to inform Hannah that she never had cancer
and/or
falsely
representing
to
her
that
cancerous
organs/tissue had been removed during surgery; and by failing
to inform her of the results of the pathology report.
On March 8, 2012, the defendants moved the trial court
for a summary judgment. The summary-judgment motion was
supported by affidavits from Dr. Thomas and Dr. Naughton
stating that they both met the applicable standard of care for
board-certified general surgeons in their care and treatment
of Hannah. The defendants further argued that Hannah had
failed to support her claims with the required testimony from
a similarly situated medical expert.
On March 13, 2012, the trial court ordered Hannah to
respond to the defendants' summary-judgment motion within 30
days. On April 9, 2012, Hannah moved the trial court for
14
1190216
additional
time
to
respond
to
the
defendants'
summary-judgment
motion, stating, among other things, that she was required to
support her claims with expert medical testimony and that she
needed additional time to obtain a medical expert. On April
11, 2012, the trial court entered an order granting Hannah
additional time to respond.
On October 22, 2012, Hannah filed her response in
opposition to the defendants' summary-judgment motion.
Hannah's opposition was supported by the testimony of Dr. Fred
Duboe,
a board-certified
physician
of
obstetrics
and
gynecology, who testified that Dr. Thomas and Dr. Naughton
breached the applicable standard of care in several regards.
On March 6, 2013, the defendants moved the trial court to
preclude his testimony and strike Dr. Duboe's affidavit,
arguing that Dr. Duboe was not a "similarly situated" health-
care provider because Dr. Duboe was board certified in
obstetrics and gynecology and was not board certified in
general surgery as were Dr. Thomas and Dr. Naughton.
Accordingly, the defendants argued that Dr. Duboe was not
qualified to testify as to the standard of care applicable to
15
1190216
Dr. Thomas and Dr. Naughton as board-certified general
surgeons in their treatment of Hannah.
On June 14, 2013, Hannah responded to the defendants'
motion to preclude Dr. Duboe's testimony and strike his
affidavit, arguing that, although the "standard of care
allegedly
breached
virtually
requires
no
expert
testimony,
the
plaintiff's expert witness Dr. Fred Duboe, who is board
certified in Obstetrics and Gynecology but not General
Surgery, is nevertheless similarly situated to the defendant
board certified general surgeons." Hannah also argued that the
deposition testimony of Dr. Thomas supports the position that
the standard of care to which Dr. Thomas and Dr. Naughton are
to be held and allegedly breached is undisputed and requires
no expert testimony because Dr. Thomas "readily agreed in her
deposition that if she [or Dr. Naughton] did tell Ms. Hannah
that she had cancer based on her Pap smear results that would
be below the standard of care." Hannah also notes that Dr.
Thomas testified that it would be below the standard of care
for either her or Dr. Naughton to fail to tell Hannah that the
pathology report in her case showed no cancer. Hannah further
argued that Dr. Duboe's testimony was not precluded because
16
1190216
Dr. Thomas's and Dr. Naughton's alleged misrepresentations
regarding the Pap-smear results and alleged cancer were not
within their specialty of general surgery. Finally, Hannah
requested additional time to support her response in
opposition to the summary-judgment motion with a new expert
should the trial court grant the defendants' motion to
preclude Dr. Duboe's testimony and strike his affidavit.
On September 20, 2013, the trial court entered an order
precluding any standard-of-care testimony from Dr. Duboe and
striking his affidavit. The trial court granted Hannah
additional time to find and depose a substitute standard-of-
care medical expert.
On December 10, 2013, Hannah filed a notice identifying
Dr. Lawrence Brickman, a general surgeon, as her standard-of-
care medical expert. Dr. Brickman was deposed on June 5,
2014. Dr. Brickman testified during his deposition that,
although he was board certified in general surgery at the time
of Hannah's surgery in 2005, he was no longer board certified
in general surgery at the time of his testimony.
Subsequently, the trial court entered an order setting
the case for trial on May 6, 2019, and ordered Hannah to
17
1190216
disclose any additional experts 90 days before trial, i.e., by
February 6, 2019. The trial court also specified in its order
that
no
continuances
would
be
granted
except
for
"extraordinary reasons."2
On March 6, 2019, the defendants moved the trial court to
preclude the testimony of Dr. Brickman, arguing that, because
Dr. Brickman was not currently board certified in general
surgery as were Dr. Thomas and Dr. Naughton, he was not a
"similarly situated health care provider" as defined by § 6-5-
548(c)(3), Ala. Code 1975, which provides that a similarly
situated health-care provider is one that "[i]s certified by
an appropriate American board in the same specialty." The
defendants renewed their motion for a summary judgment,
arguing that Hannah had failed to support her claims with
expert testimony from a similarly situated health-care
provider as required by the AMLA and that, with or without Dr.
Brickman's testimony, Hannah had failed to establish by
substantial evidence that Dr. Thomas and Dr. Naughton had
breached the standard of care and that that breach probably
caused Hannah's injury.
2The trial of this case did not take place on May 6, 2019.
18
1190216
On August 16, 2019, Hannah filed another response in
opposition to the motion for a summary judgment, arguing that
she had presented substantial evidence creating a genuine
issue of material fact as to whether she was falsely told by
Dr. Thomas and Dr. Naughton that she had cervical cancer and
whether those false statements convinced her that she had no
option but to undergo a complete hysterectomy.
Hannah further noted that Dr. Brickman had become a
board-certified general surgeon in 1978 and that he was board
certified in general surgery at the time Dr. Thomas and Dr.
Naughton treated Hannah. Relying upon Chapman v. Smith, 893
So. 2d 293 (Ala. 2004), Hannah argued that § 6-5-548(c)(3)
did not contain any requirements as to the period that a
proffered medical expert must be board certified before that
medical expert can testify as
a similarly situated health-care
provider. Thus, Hannah argued that Dr. Brickman's testimony
could not be precluded. Further, Hannah contended that her
claims alleging that she was falsely told by Dr. Thomas and
Dr. Naughton that she had cervical cancer, which false
statements, she said, convinced her to have a hysterectomy,
are the type of claims that do not require the presentation of
19
1190216
expert medical testimony because, she says, they are not
"beyond the ken of the average layman." Lively v. Kilgore, 51
So. 3d 1045, 1050 (Ala. Civ. App. 2010). In addition to the
response in opposition to the motion for a summary judgment,
Hannah also sought, pursuant to Rule 56(f), Ala. R. Civ. P.,
an opportunity and a reasonable period within which to find a
substitute expert to respond to the defendants' summary-
judgment motion should Dr. Brickman's testimony be precluded.
On September 17, 2019, the trial court entered a summary
judgment finding that the defendants had made "a prima facie
showing of non-liability and
[Hannah] ha[d] failed to overcome
this prima facie showing by failing to present substantial
evidence through a similarly situated health care provider
that the alleged negligence on the part of the defendants
probably caused the alleged injury to [Hannah]." The trial
court also determined that Hannah's request for additional
time to obtain a medical expert was moot. Hannah's
postjudgment motion to alter, amend, or vacate the summary
judgment was denied, and she appealed.
Standard of Review
20
1190216
This Court's standard of review relative to a summary
judgment is as follows:
"'"'This Court's review of a
summary judgment is de novo.
Williams v. State Farm Mut. Auto.
Ins. Co., 886 So. 2d 72, 74 (Ala.
2003). We apply the same standard
of review as the trial court
applied. Specifically, we must
determine whether the movant has
made a prima facie showing that
no genuine issue of material fact
exists and that the movant is
entitled to a judgment as a
matter of law. Rule 56(c), Ala.
R. Civ. P.; Blue Cross & Blue
Shield of Alabama v. Hodurski,
899 So. 2d 949, 952–53 (Ala.
2004).
In
making
such
a
determination, we must review the
evidence
in
the
light
most
favorable
to
the
nonmovant.
Wilson v. Brown, 496 So. 2d 756,
758 (Ala. 1986). Once the movant
makes a prima facie showing that
there is no genuine issue of
material fact, the burden then
shifts
to
the
nonmovant
to
produce "substantial evidence" as
to the existence of a genuine
issue of material fact. Bass v.
SouthTrust
Bank
of
Baldwin
County, 538 So. 2d 794, 797–98
(Ala. 1989); Ala. Code 1975, §
12–21–12.
"[S]ubstantial
evidence
is evidence of such weight and
quality that fair-minded persons
in the exercise of impartial
judgment can reasonably infer the
existence of the fact sought to
21
1190216
be proved." West v. Founders Life
Assur. Co. of Fla., 547 So. 2d
870, 871 (Ala. 1989).'"
"'Prince v. Poole, 935 So. 2d 431, 442
(Ala. 2006) (quoting
Dow v. Alabama
Democratic Party, 897 So. 2d 1035, 1038–39
(Ala. 2004)).'
"Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169
(Ala. 2009).
"'"In order to overcome a defendant's
properly
supported
summary-judgment
motion,
the
plaintiff
bears
the
burden
of
presenting substantial evidence as to each
disputed element of [its] claim." Ex parte
Harold L. Martin Distrib. Co., 769 So. 2d
313, 314 (Ala. 2000).'
"White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d
5, 11 (Ala. 2009)."
Laurel v. Prince, 154 So. 3d 95, 97-98 (Ala. 2014).
This Court has further stated, in the context of a
medical-malpractice claim:
"'Substantial evidence is defined in
the medical-malpractice context as "that
character of admissible evidence which
would convince an unprejudiced thinking
mind of the truth of the fact to which the
evidence is directed." § 6–5–542(5)[, Ala.
Code 1975]. Rule 56, Ala. R. Civ. P.,
governing motions for summary judgment,
must be read in conjunction with that
definition of substantial evidence. Golden
v. Stein, 670 So. 2d 904, 907 (Ala. 1995).
22
1190216
"'This Court's review of a summary
judgment in a medical-malpractice case, as
in
other
cases,
is
guided
by
the
proposition that "this Court must review
the record in a light most favorable to the
nonmovant and must resolve all reasonable
doubts against the movant." Hobson v.
American Cast Iron Pipe Co., 690 So. 2d
341, 344 (Ala. 1997), quoted in Hauseman
v. University of Alabama Health Servs.
Found., 793 So. 2d 730, 734 (Ala. 2000).
"'If
the
movant
in
a
medical-malpractice case makes a prima
facie showing that there is no genuine
issue of material fact, then, as in other
civil cases, the burden shifts to the
nonmovant to present substantial evidence
creating such an issue. Ex parte Elba Gen.
Hosp. & Nursing Home, Inc., 828 So. 2d 308,
311 (Ala. 2001).
"'"...."
"'....
"'"[A]
medical
malpractice
plaintiff
must
produce
substantial evidence that 'the
alleged
negligence
"probably
caused
the
[complained
of]
injury,"' in order to survive a
summary judgment motion, if the
defendant has made a prima facie
showing that no genuine issue of
material fact exists as to the
issue of causation."
"'Golden, 670 So. 2d at 907.
"'"'To present a jury question,
t h e
pl a i n tiff
[in
a
23
1190216
medical-malpractice action] must
adduce some evidence indicating
that the alleged negligence (the
breach
of
the
appropriate
standard of care) probably caused
the injury. A mere possibility is
insufficient.
The
evidence
produced by the plaintiff must
have "selective application" to
one theory of causation.'"
"'Rivard v. University of Alabama Health
Servs. Found., P.C., 835 So. 2d 987, 988
(Ala. 2002).'
"Cain v. Howorth, 877 So. 2d 566, 575–76 (Ala.
2003)."
Boyles v. Dougherty, 143 So. 3d 682, 685 (Ala. 2013).
Discussion
Hannah argues that the trial court erred in determining
that Dr. Brickman was not a similarly situated health-care
provider under § 6-5-548(c)(3) because he was not board
certified in general surgery at the time he gave his testimony
regarding the applicable standard of care in this case.
Section 6-5-548, Ala. Code 1975, provides, in part:
"(a) In any action for injury or damages or
wrongful death, whether in contract or in tort,
against a health care provider for breach of the
standard of care, the plaintiff shall have the
burden of proving by substantial evidence that the
health care provider failed to exercise such
reasonable care, skill and diligence as other
similarly situated health care providers in the same
24
1190216
general line of practice ordinarily have and
exercise in a like case.
"....
"(c) Notwithstanding any provision of the
Alabama Rules of Evidence to the contrary, if the
health care provider whose breach of the standard of
care is claimed to have created the cause of action
is certified by an appropriate American board as a
specialist, is trained and experienced in a medical
specialty, and holds himself or herself out as a
specialist, a 'similarly situated health care
provider' is one who meets all of the following
requirements:
"(1) Is licensed by the appropriate
regulatory board or agency of this or some
other state.
"(2) Is trained and experienced in the
same specialty.
"(3) Is certified by an appropriate
American board in the same specialty.
"(4) Has practiced in this specialty
during the year preceding the date that the
alleged breach of the standard of care
occurred.
"....
"(e) ... It is the intent of the Legislature
that in the event that the defendant health care
provider is certified by an appropriate American
board or in a particular specialty and is practicing
that specialty at the time of the alleged breach of
the standard of care, a health care provider may
testify as an expert witness with respect to an
alleged breach of the standard of care ... against
another health care provider only if he or she is
25
1190216
certified by the same American board in the same
specialty."
Section 6-5-542(2), Ala. Code 1975, defines the
term "standard
of care" as
"that level of such reasonable care, skill, and
diligence as other similarly situated health care
providers in the same general line of practice,
ordinarily have and exercise in like cases. A breach
of the standard of care is the failure by a health
care provider to comply with the standard of care,
which failure proximately causes personal injury or
wrongful death whether in contract or tort and
whether based on intentional or unintentional
conduct."
A plaintiff in a medical-malpractice action
"ordinarily must present expert testimony from a
'similarly situated health-care provider' as to (1)
'the appropriate standard of care,' (2) a
'deviation from that standard [of care],' and (3) 'a
proximate
causal
connection
between
the
[defendant's] act or omission constituting the
breach and the injury sustained by the plaintiff.'
Pruitt v. Zeiger, 590 So. 2d 236, 238 (Ala. 1991)
(quoting Bradford v. McGee, 534 so. 2d 1076, 1079
(Ala. 1988)). The reason for the rule that
proximate causation must be established through
expert testimony is that the issue of causation in
a medical-malpractice case is ordinarily 'beyond
"the ken of the average layman."' Golden v. Stein,
670 So. 2d 904, 907 (Ala. 1995), quoting Charles W.
Gamble, McElroy's Alabama Evidence § 127.01(5)(c),
p. 333 (4th ed. 1991). The plaintiff must prove
through
expert
testimony
'that
the
alleged
negligence "probably caused the injury."' McAfee v.
Baptist Med. Ctr., 641 So. 2d 265, 267 (Ala. 1994)."
26
1190216
Lyons v. Walker Reg'l Med. Ctr., 791 So. 2d 937, 942 (Ala.
2000). See also Youngblood v. Martin, [Ms. 1171037, January
10, 2020] __ So. 3d __ (Ala. 2020).
Dr. Brickman is a graduate of the medical school at the
University of Brussels in Belgium. He completed his surgical
residency in 1976 and became a board-certified surgeon in
1978. Dr. Brickman was recertified in 1988 and again in 1996.
Dr. Brickman has worked as a clinical associate professor at
New York Medical College and State University of New York at
Stonybrook. Dr. Brickman served as the chief of general
surgery at Huntington Hospital. At the time Dr. Brickman gave
his deposition testimony in this case, he was the clinical
associate
professor
of
surgery
at
Florida
Atlantic
University,
Charles E. Schmidt College of Medicine. Dr. Brickman also
served as the director of the clinical-surgical clerkship and
director of clinical education and surgery at the medical
school. Dr. Brickman was performing general surgery in 2005,
the year the defendants treated Hannah. Although Dr. Brickman
continued to maintain his fellowship in the American College
of Surgeons, he was no longer performing any primary surgery
at the time he gave his deposition. Dr. Brickman testified
27
1190216
that he last performed a hysterectomy in 1974. It is
undisputed that he was not board certified in general surgery
at the time of the deposition.
Hannah argues that the decision in Chapman v. Smith, 893
So. 2d 293 (Ala. 2004), does not require disqualifying Dr.
Brickman as an expert in this case on the basis that he was
not board certified in general surgery at the time he
testified in his deposition. In Chapman, the plaintiffs sued
Dr. Chapman alleging medical malpractice based on Dr.
Chapman's alleged negligent administration of a cervical
epidural injection. The plaintiffs sought to present the
testimony of their two experts, Dr. Pawan Grover and Dr.
William Kendall. Dr. Chapman objected to their testimony on
the basis that neither Dr. Grover nor Dr. Kendall was
qualified to testify at trial. The trial court granted the
objection as to Dr. Grover, stating that he was not "qualified
to testify as an expert in this case because he was not
board-certified in anesthesiology in the year preceding the
event which gives rise to the cause of action in this case."
893 So. 2d at 294. The trial court granted the objection as
to Dr. Kendall because Dr. Kendall had "not established the
28
1190216
standard of care as to the use of fluoroscopy in cervical
epidural injections." 893 So. 2d at 295. Subsequently, the
trial court entered a judgment as a matter of law in favor of
Dr. Chapman.
The plaintiffs moved the trial court to alter, amend, or
vacate the trial court's judgment. The trial court entered
an order granting the postjudgment motion, stating that Dr.
Grover met the criteria of § 6–5–548(c) and that, therefore,
he was a similarly situated health-care provider competent to
give expert testimony. The trial court ordered that its
prior order striking the testimony of Dr. Grover and Dr.
Kendall be vacated.
Dr. Chapman argued on appeal that Dr. Grover was not a
board-certified specialist during the year preceding Dr.
Chapman's alleged breach of the standard of care, that he was
not similarly situated to Dr. Chapman, who was board certified
in anesthesiology and in pain management, and thus that he
could not testify concerning the appropriate standard of care
Dr. Chapman should have exercised in administering the
cervical epidural injection. The plaintiffs argued that Dr.
Chapman misconstrued the meaning of § 6–5–548(c), because
29
1190216
that section did not require that Dr. Grover be board
certified during the
year preceding the alleged malpractice to
testify as an expert in a medical-malpractice action.
Dr. Chapman argued that Dr. Grover was not similarly
situated to Dr. Chapman because Dr. Grover was not board
certified in anesthesiology or in pain management during the
year preceding Dr. Chapman's alleged breach of the standard of
care in this case. According to Dr. Chapman, although §
6–5–548(c)(3) does not explicitly require that a proffered
expert witness be board certified in a specialty during the
year preceding the alleged breach in a case, a doctor cannot
practice in a specialty as required by § 6-5-548(c)(4), Ala.
Code 1975, unless he or she is certified by an appropriate
American board as a specialist as required in subsection (3).
Thus, Dr. Chapman contended that this Court should construe §
6–5–548(c)(3) to require that a proffered expert witness be
certified by an appropriate American board in the same
specialty as the defendant during the year preceding the date
on which the alleged breach of the standard of care occurred.
The plaintiffs asserted that the plain language of §
6–5–548(c) did not require that, before he could qualify as a
30
1190216
similarly situated health-care provider, Dr. Grover be board
certified in anesthesiology and in pain management during the
year preceding Dr. Chapman's alleged breach of the standard of
care. Thus, the plaintiffs argued that this Court should not
construe § 6-5-548(c)(3) to require that a proffered expert be
board certified during the year preceding the alleged breach.
Construing § 6–5–548(c) according to its plain language
to ascertain and give effect to the legislature's intent in
enacting the statute, this Court stated, with regard to Dr.
Grover's status as a similarly situated health-care provider:
"The controlling statute in this case, §
6–5–548(c), states in subsection (3) that a
proffered expert witness must be 'certified by an
appropriate American board in the same specialty' as
the specialist charged with medical malpractice in
order to testify against a specialist concerning the
applicable
standard
of
care.
There
are
no
qualifications in subsection (3) as to the period of
time the proffered expert must be board-certified
before he or she can testify against a specialist.
Section 6–5–548(c) further mandates in subsection
(4) that the proffered expert must only have
practiced in the specialty 'during the year
preceding the date that the alleged breach of the
standard of care occurred.' According to the plain
language of § 6–5–548(c), the only qualifications as
to length of time the Legislature has placed on a
proffered expert witness is that the witness have
practiced the necessary specialty during the year
preceding the alleged breach. Construing the plain
language of § 6–5–548(c), we must conclude that the
Legislature chose not to require that a proffered
31
1190216
expert witness testifying against a specialist be
board-certified in the same specialty during the
year preceding the alleged breach of the standard of
care. Thus, the appellants' argument that Dr.
Grover is not qualified to testify concerning the
applicable standard of care in this case because he
was not board-certified in anesthesiology or in pain
management during the year preceding the alleged
breach in this case must fail."
Chapman, 893 So. 2d at 297-98. Accordingly, this Court
concluded that Dr. Grover was qualified to testify against Dr.
Chapman.
As for Dr. Kendall, Dr. Chapman argued on appeal that Dr.
Kendall was not a similarly situated health-care provider
because Dr. Kendall had never been board certified as a pain-
management specialist. This Court noted that § 6–5–548(c)(3)
and (e) required that any proffered expert witness testifying
against Dr. Chapman must be certified by an appropriate
American board in the same speciality and that Dr. Kendall had
never been board certified in pain management as indicated by
his deposition testimony. Accordingly, this Court concluded
that Dr. Kendall was not qualified to testify against Dr.
Chapman.
Hannah points to this Court's language in Chapman that
"there are no qualifications in subsection (3) as to the
32
1190216
period of time the proffered expert must be board-certified
before he or she can testify against a specialist," 893 So. 2d
at 298, to argue that there is no requirement that a proffered
expert be board certified at the time he or she gives
testimony against a specialist. This argument completely
misconstrues this Court's holding in Chapman. In Chapman, Dr.
Chapman raised the specific argument that § 6–5–548(c)(3)
should be construed as requiring a proffered expert witness be
board certified during the year preceding the date on which
the alleged breach of the standard of care occurred.
Considering the plain and unambiguous nature of the language
in § 6–5–548(c)(3), this Court simply held that there were no
qualifications in that section as to the period a proffered
expert must be board certified before he or she can testify
against a specialist. Nothing in this Court's holding in
Chapman can reasonably be construed as holding that a
proffered expert need not be board certified at the time the
proffered expert gives his or her testimony.
Hannah also points to this Court's language in Chapman in
which it held that Dr. Kendall was not qualified to testify as
a similarly situated health-care provider against Dr. Chapman
33
1190216
under § 6-5-548(c) because he has "never been
board-certified"
in pain management. Chapman, 893 So. 2d at 298. Hannah
contends that this language supports the finding that, if a
proffered expert has ever been board certified in a specialty,
the proffered expert would qualify as a similarly situated
health-care provider in that specialty under § 6-5-548(c).
Thus, Hannah contends that, because Dr. Brickman had
previously been board certified in general surgery, he
qualifies as a similarly situated health-care provider under
§ 6-5-548(c).
Again, Hannah's argument misconstrues the clear
holding in Chapman on this point. This Court stated simply
that, because Dr. Kendall had never been board certified in
pain management, he was not qualified as a similarly situated
health-care provider under § 6-5-548(c)(3), which expressly
states that a similarly situated health-care provider is one
that "[i]s certified by an appropriate American board in the
same specialty." This Court's holding in Chapman that Dr.
Kendall was not a qualified expert because he had "never been
board-certified" in pain management is completely consistent
with the requirement in § 6-5-548(c)(3) that a similarly
situated
health-care
provider
"[i]s
certified
by
an
34
1190216
appropriate American board in the same specialty." Again,
nothing can be reasonably extrapolated from this Court's
holding in Chapman, based on this contention of Hannah's, that
does not require that a proffered expert be currently board
certified at the time he or she gives his or her testimony.
This Court has stated:
"'"'The fundamental rule of statutory
construction is to ascertain and give
effect to the intent of the legislature in
enacting the statute. Words used in a
statute must be given their natural, plain,
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. If the language of
the statute is unambiguous, then there is
no room for judicial construction and the
clearly
expressed
intent
of
the
legislature
must be given effect.'"'
"Ex parte Alabama Dep't of Mental Health & Mental
Retardation, 840 So. 2d 863, 867 (Ala. 2002)
(quoting Ex parte Master Boat Builders, Inc., 779
So. 2d 192, 196 (Ala. 2000), quoting in turn IMED
Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d
344, 346 (Ala. 1992))."
Douglas v. King, 889 So. 2d 534, 538 (Ala. 2004).
Section 6-5-548(c)(3) expressly states that a similarly
situated health-care provider is one who "[i]s certified by an
appropriate American board in the same specialty." Section 6-
5-548(e) expressly states that a proffered expert may testify
35
1190216
against a defendant health-care provider "only if he or she
is certified by the same American board in the same
specialty." Subsections 6-5-548(c)(3) and (e) are plain and
unambiguous, and under no reasonable reading could those
subsections be interpreted to allow testimony from a
proffered expert who "was" once board certified in the same
specialty as the defendant health-care provider but who was no
longer so certified at the time the proffered expert provided
his or her testimony. Subsections 6-5-548(c)(3) and (e)
clearly require a similarly situated health-care provider who
is proffered as an expert to be board certified in the same
specialty as the defendant heath-care provider at the time the
proffered expert testifies. Had the legislature intended to
require the proffered expert to simply be board certified at
any time in the past it could have easily so provided in the
statute. Section 6-5-548(c)(4) requires that a similarly
situated health-care provider proffered as an expert be one
who "[h]as practiced in this specialty during the year
preceding the date that the alleged breach of the standard of
care occurred." The fact that the legislature chose to tie,
in subsection (c)(4), the action to a specific point in time
36
1190216
and chose to so qualify § 6-5-548(c)(3) and (e) evidences its
intention that a proffered expert may not testify as a
similarly situated health-care provider against a defendant
health-care provider unless the proffered expert is board
certified in the same specialty as the defendant health-care
provider at the time the proffered expert gives his or her
testimony.
Accordingly, because Dr. Brickman was not board certified
in general surgery at the time he offered his testimony in
this case, he was not a similarly situated health-care
provider under § 6-5-548(c)(3) and (e), and the trial court
properly refused to consider his testimony.
Hannah next argues that expert medical testimony is not
required in this case because, she says, her claims that Dr.
Thomas and Dr. Naughton falsely told her that she had cervical
cancer and that she had no option but to have a full
hysterectomy are not beyond the understanding of the average
layperson.
As mentioned above, the plaintiff in a medical-
malpractice case generally must present expert medical
testimony to establish (1) the applicable standard of care,
37
1190216
(2) a breach of that standard of care, and (3) a proximate
causal connection between the defendant's breach of the
standard of care and the injury sustained by the plaintiff.
Lyons, supra. However, it is well settled that there is an
exception to the rule requiring expert testimony "'in a case
where want of skill or lack of care is so apparent ... as to
be understood by a layman, and requires only common knowledge
and experience to understand it.'" Tuscaloosa Orthopedic
Appliance Co. v. Wyatt, 460 So. 2d 156, 161 (Ala.
1984)(quoting Dimoff v. Maitre, 432 So. 2d 1225, 1226–27 (Ala.
1983)); see also Anderson v. Alabama Reference Labs., 778 So.
2d 806 (Ala. 2000). The following situations have been
recognized as exceptions to the general rule that the
plaintiff in a medical-malpractice action must proffer
independent expert medical testimony:
"'(1) where a foreign instrumentality is found in
the plaintiff's body following surgery; 2) where the
injury complained of is in no way connected to the
condition for which the plaintiff sought treatment;
3) where the plaintiff employs a recognized standard
or authoritative medical text or treatise to prove
what is or is not proper practice; and 4) where the
plaintiff is himself or herself a medical expert
qualified
to
evaluate
the
doctor's
allegedly
negligent conduct.'"
38
1190216
Allred v. Shirley, 598 So. 2d 1347, 1350 (Ala. 1992)(quoting
Holt v. Godsil, 447 So. 2d 191, 192–93 (Ala. 1984)(citations
omitted in Allred)); see also Anderson v. Alabama Reference
Labs., supra.
In Ex parte HealthSouth Corp., 851 So. 2d 33 (Ala.
2002), this Court explained that the list of exceptions in
Allred to the general rule requiring expert testimony was
illustrative only and not exclusive. In HealthSouth, this
Court went on to reformulate the exceptions to the general
rule
requiring
expert
medical
testimony
in
medical-malpractice
actions
"[t]o recognize first, a class of cases '"where want
of skill or lack of care is so apparent ... as to be
understood by a layman, and requires only common
knowledge
and
experience
to
understand
it,"'
[Tuscaloosa Orthopedic Appliance Co. v.] Wyatt, 460
So. 2d [156] at 161 [(Ala. 1984)](quoting Dimoff v.
Maitre, 432 So. 2d 1225, 1226–27 (Ala. 1983)), such
as when a sponge is left in, where, for example, the
wrong leg is operated on, or, as here, where a call
for assistance is completely ignored for an
unreasonable period of time. A second exception to
the rule requiring expert testimony applies when a
plaintiff relies on '"'a recognized standard or
authoritative medical text or treatise,'"' Anderson
[v. Alabama Reference Labs., 778 So. 2d [806] at 811
[(Ala. 2000)], or is himself or herself a qualified
medical expert."
851 So. 2d at 39.
39
1190216
In Collins v. Herring Chiropractic Center, LLC, 237 So.
3d 867, 871 (Ala. 2017), this Court explained the
reformulation of the exceptions as follows:
"The
Court's
reformulation
of
categories
in
HealthSouth essentially clarifies the exceptions to
the general rule requiring expert testimony in
medical-malpractice actions by emphasizing in the
first exception as reformulated that there are
situations where the lack of skill is so apparent as
to be understood by a layperson, thereby requiring
only common knowledge and experience to understand
it, and that further the list of examples of such
situations was not exhaustive but merely set out
examples of possible situations. In the second
exception as reformulated, the Court simply combines
the use of an authoritative treatise and the
plaintiff's own testimony as a medical expert as the
second exception to the general rule."
As for the issue of causation in a medical-malpractice
action, this Court explained in Sorrell v. King, 946 So. 2d
854, 862-63 (Ala. 2006):
"A plaintiff in a medical-malpractice action
must also present expert testimony establishing a
causal connection between the defendant's act or
omission constituting the alleged breach and the
injury suffered by the plaintiff. Pruitt v. Zeiger,
590 So. 2d 236, 238 (Ala. 1991). See also Bradley v.
Miller, 878 So. 2d 262, 266 (Ala. 2003); University
of Alabama Health Servs. Found., P.C. v. Bush, 638
So. 2d 794, 802 (Ala. 1994); and Bradford v. McGee,
534 So. 2d 1076, 1079 (Ala. 1988). To prove
causation
in
a
medical-malpractice
case,
the
plaintiff must demonstrate '"that the alleged
negligence
probably
caused,
rather
than
only
possibly caused the plaintiff's injury."' Bradley,
40
1190216
878 So. 2d at 266 (quoting University of Alabama
Health Servs., 638 So. 2d at 802). ... In Cain v.
Howorth, 877 So. 2d 566 (Ala. 2003), this Court
stated:
"'"'To present a jury question,
the
plaintiff
[in
a
medical-malpractice
action]
must adduce some evidence indicating that
the alleged negligence (the breach of the
appropriate standard of care) probably
caused the injury. A mere possibility is
insufficient. The evidence produced by the
plaintiff
must
have
"selective
application"
to one theory of causation.'"'
"877 So. 2d at 576 (quoting Rivard v. University of
Alabama Health Servs. Found., P.C., 835 So. 2d 987,
988 (Ala. 2002)). However, the plaintiff in a
medical-malpractice case is not required to present
expert testimony to establish the element of
proximate causation in cases where 'the issue of
proximate cause is not ... "beyond the ken of the
average layman."' Golden v. Stein, 670 So. 2d 904,
908 (Ala. 1995). Therefore, '[u]nless "the cause
and effect relationship between the breach of the
standard of care and the subsequent complication or
injury is so readily understood that a layperson can
reliably
determine
the
issue
of
causation,"
causation in a medical-malpractice case must be
established
through
expert
testimony.'
DCH
Healthcare Auth., 883 So. 2d at 1217–18 (quoting
Cain, 877 So.2d at 576)."
Hannah claims that Dr. Thomas and Dr. Naughton falsely
told her that she had cervical cancer based on the results of
an abnormal Pap smear, claims that she had no other treatment
options but to have a complete hysterectomy based on that
diagnosis, and claims that the hysterectomy was performed
41
1190216
because Dr. Thomas and Dr. Naughton falsely represented to her
the presence of cancer as determined from the abnormal Pap
smear.
Hannah relies upon Ex parte Sonnier, 707 So. 2d 635 (Ala.
1997), in support of her argument that the nature of her
claims does not
require expert medical testimony to establish.
In Ex parte Sonnier, the plaintiff claimed that she was
informed by the defendant physician in March 1991 that she had
cervical cancer and that a hysterectomy was necessary. On
April 1, 1991, the defendant doctor performed the recommended
hysterectomy. Subsequently, a postoperative pathology report
indicated that the plaintiff did not have cancer. The
plaintiff returned to the defendant doctor on at least three
occasions between April 1991 and October 1991, and on each
visit the defendant doctor represented to the plaintiff that
she had had cervical cancer. The plaintiff sued the defendant
doctor, alleging, among other things, that the doctor had
committed medical malpractice by continuing to falsely
misrepresent to her that she had had cervical cancer after the
pathology report confirmed that she did not.
42
1190216
The plaintiff offered the affidavit testimony of a board-
certified physician in support of her claims. The defendant
doctor objected to the affidavit testimony, arguing that the
proffered expert was not board certified in obstetrics and
gynecology as was the defendant doctor and that, therefore,
the proffered expert was not a similarly situated health-care
expert. In determining that the affidavit testimony was
admissible, the Court stated:
"The alleged malpractice here was the doctors'
continuing to tell [one of the plaintiffs] that she
had
cancer,
even
after
the
results
of
the
hysterectomy showed that she did not have cancer.
From all that appears in the record, we conclude
that Dr. Bruck was qualified to testify as a
similarly situated health care provider as to this
alleged breach of the standard of care. In
opposition to the defendants' summary judgment
motion, the [plaintiffs] submitted substantial
evidence indicating that the alleged breach is not
relevant
to
the
specialty
of
obstetrics
or
gynecology. Instead, the [plaintiffs] allege a
breach that virtually requires no expert testimony:
after the issuance of a tissue report showing no
evidence of cancer, the defendant doctors continued
to tell [one of the plaintiffs] that she had had
cancer of the uterus. This is substantial evidence
that the defendant doctors made material false
representations to [one of the plaintiffs] as their
patient. The circuit court's judgment should not be
affirmed based on any conclusion that, to give the
pertinent opinions in his affidavit, Dr. Bruck would
have to be certified in obstetrics and gynecology.
At least absent any countervailing evidence by the
43
1190216
defendants, Dr. Bruck's testimony is substantial
evidence of a breach of the standard of care."
Ex parte Sonnier, 707 So. 2d at 640.
Ex parte Sonnier is distinguishable from the case
currently before the Court. In Ex parte Sonnier one of the
plaintiffs was told that she had cervical cancer before the
results of the pathology report was known and continued to be
told by the defendant doctor that she had cervical cancer
after the pathology report indicated that she did not have
cancer. The basis of the plaintiffs' misrepresentation claim
was
the
defendant
doctor's
knowing
and
continued
misrepresentation to one of the plaintiffs that she had
cervical cancer even though the pathology report indicated
that she did not. The understanding that the defendant doctor
breached the standard of care by continuing to represent to
that plaintiff that she had had cervical cancer when the
pathology report indicated that she had not is within the
common knowledge and general understanding of a layperson
without regard to a particular medical specialty. In other
words, a layperson is capable of understanding the inherent
wrong in a doctor's continuing to misrepresent a patient's
diagnosis without the testimony of a medical expert.
44
1190216
However, in this case the basis of Hannah's claim is the
alleged false representation that she had cervical cancer made
to her by Dr. Thomas and Dr. Naughton based on their
interpretation of the abnormal Pap smear. The allegation here
is not as simple as an ongoing misrepresentation made to a
patient by a doctor in the face of medical evidence contrary
to the ongoing misrepresentation. To the extent Dr. Thomas
and Dr. Naughton made an alleged false representation to
Hannah that she had cervical cancer, that representation was
made based on their interpretation of the abnormal Pap smear
and the treatment protocol dictated by that interpretation.
Dr. Thomas and Dr. Naughton's interpretation of the abnormal
Pap smear and resulting treatment recommendations based on
that
interpretation require
a
knowledge
and
understanding that
is beyond the common knowledge, understanding, and experience
of a layperson, and this case is thus distinguishable from the
facts of Ex parte Sonnier.
Accordingly, we conclude that Hannah's claims do not fall
within the layperson exception to the rule that a plaintiff
must support his or her medical-malpractice claim with expert
45
1190216
testimony from a "similarly situated health-care provider" in
relation to the defendant medical professional.
Hannah next argues that the trial court erred in ruling
that she failed to present substantial evidence through a
similarly situated health-care provider that the defendants'
alleged negligence probably caused her alleged injury.
As discussed above, the plaintiff in a medical-
malpractice case must generally prove by expert medical
testimony that the defendant's alleged negligence "probably
caused, rather than only possibly caused," the plaintiff's
injury in order to establish proximate causation in a medical-
malpractice case. Sorrell, 946 So. 2d at 862-63. With this
Court having determined that Dr. Brickman's testimony was
properly excluded because he was not a "similarly situated
health-care provider" in relation to Dr. Thomas and Dr.
Naughton in this case and that Hannah's claim does not fall
within the recognized exception to the general rule that
requires a
medical-malpractice claim to be supported by expert
medical testimony from a similarly situated health-care
provider, Hannah cannot prove any of the elements necessary to
establish a medical-malpractice claim.
46
1190216
Accordingly, we conclude that the trial court did not err
in determining that Hannah failed to present substantial
evidence to establish the element of proximate causation in
this case.
Finally, Hannah argues that the trial court erred in
failing to grant her Rule 56(f), Ala. R. Civ. P., motion
requesting the opportunity to procure an additional medical
expert to oppose the defendants' summary-judgment motion in
the event the trial court precluded Dr. Brickman's testimony,
which it did.
Rule 56(f) provides:
"Should it appear from the affidavits of a party
opposing the motion that the party cannot, for
reasons stated, present by affidavit facts essential
to justify the party's opposition, the court may
deny the motion for summary judgment or may order a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or
may make such other order as is just."
This Court has stated:
"As we noted in Scrushy v. Tucker, 955 So. 2d 988,
1007 (Ala. 2006), '"[s]uch an affidavit should state
with specificity why the opposing evidence is not
presently
available
and
should
state,
as
specifically as possible, what future actions are
contemplated to discover and present the opposing
evidence."' (Citing Committee Comments to August 1,
1992, Amendment to Rule 56(c) and Rule 56(f).) As
the rule indicates, whether to deny a motion for
47
1190216
summary judgment or to grant a continuance to allow
discovery to proceed is discretionary with the trial
court."
Fogarty v. Southworth, 953 So. 2d 1225, 1129 (Ala. 2006).
From the time the complaint in this case was filed in
July 2007 until the trial court entered an order granting the
defendants' summary-judgment motion in September 2019,
approximately 12 years had elapsed. During that time Hannah
proffered the expert testimony of Dr. Duboe, which the trial
court precluded. However, the trial court granted Hannah a
continuance to procure and depose an additional expert.
Hannah then filed a notice identifying Dr. Brickman as her
medical expert. Thereafter, the trial court set the case for
trial on May 6, 2019, and ordered Hannah to disclose any
additional experts 90 days before trial. The trial court
stated in that order that no continuances would be granted
except for "extraordinary reasons."
On March 6, 2019, the defendants moved the trial court to
preclude the testimony of Dr. Brickman and renewed their
motion for a summary judgment. On August 16, 2019, Hannah
filed her response in opposition to the motion for a summary
judgment. In addition to the response in opposition to the
48
1190216
motion for a summary judgment, Hannah also sought, pursuant to
Rule 56(f), an opportunity and reasonable period within which
to find a substitute expert to respond to the defendants'
summary-judgment motion should Dr. Brickman's testimony be
precluded. On September 17, 2019, the trial court entered an
order granting the defendants' motion for a summary judgment,
finding that Hannah had
failed to present substantial evidence
through a similarly situated health-care provider that the
alleged negligence on the part of the defendants probably
caused her alleged injury. Because the trial court entered a
summary judgment in favor of the defendants, it determined
that Hannah's request for additional time to obtain a medical
expert was moot.
We note that the trial court initially did not preclude
and strike Dr. Brickman's affidavit testimony. The trial
court simply found that Hannah failed to support her claims
with substantial evidence from a similarly situated health-
care provider, which thereby rendered her request pursuant to
Rule 56(f) moot. Further, we note that Hannah failed to file
the necessary affidavits required by Rule 56(f). Although she
did not file the necessary affidavits, she did file a written
49
1190216
request in which she asked for the opportunity to obtain an
additional medical expert because the motion filed by the
defendants
to
preclude
Dr.
Brickman's
testimony
was
"unexpected," was filed more than four years after his
deposition, and, if his testimony was precluded, would leave
her without an expert to oppose the defendants' motion for a
summary judgment. The trial court had entered an order when
it set the trial date stating that there would be no
continuances except for "extraordinary reasons." We cannot
say that the reasons given by Hannah were extraordinary.
Accordingly, we cannot say that the trial court exceeded its
discretion in failing to grant Hannah's Rule 56(f) motion.
Conclusion
We affirm the summary judgment entered in favor of the
defendants.
AFFIRMED.
Parker, C.J., and Wise, Sellers, and Stewart, JJ.,
concur.
50 | September 25, 2020 |
92ae8b28-1315-4834-9742-22f72e1a648d | Ex parte State of Alabama. | N/A | 1191034 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1191034
Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Jeremy Bernard Robertson v. State of Alabama) (Jefferson
Circuit Court, Bessemer Division: CC-17-162; Criminal Appeals : CR-18-0476).
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 |
b3221710-d245-4568-af87-fac73c03e3f0 | Ex parte Peter Capote. | N/A | 1190678 | 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
September 18, 2020
1190678
Ex parte Peter Capote. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPeAl S (In re: Peter Capote v. State of Alabama) (Colbert Circuit Court:
CC-16-340; Criminal Appeals :
CR-17-0963).
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 September 18, 2020:
Writ Denied. No Opinion. Wise, J. - Bolin, Shaw, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur. Parker, C.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 18th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 18, 2020 |
6cffa31a-b798-4e60-949a-da80539b359e | Ex parte Johnny Wagner. | N/A | 1191002 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1191002
Ex parte Johnny Wagner. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Johnny Wagner v. State of Alabama) (Dallas Circuit Court:
CC-19-114; Criminal Appeals : CR-19-0436).
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 |
b90d48e5-7aec-4fd8-a921-dedc638041c7 | Ex parte Antonio Devoe Jones. | N/A | 1190647 | 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
September 11, 2020
1190647
Ex parte Antonio Devoe Jones. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Antonio Devoe Jones v. State of Alabama) (Houston Circuit
Court: CC-00-353.60; Criminal Appeals :
CR-13-1552).
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 September 11, 2020:
Writ Denied. No Opinion. Bolin, J. - Bryan, Sellers, Stewart, and Mitchell, JJ., concur.
Parker, C.J., dissents. Shaw, Wise, and Mendheim, JJ., recuse themselves.
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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
31c16c65-a446-41c0-830f-c94db2818dc9 | Pamela D. Henley v. Michelin North America, Inc., and Hunt Refining Company | N/A | 1190294 | Alabama | Alabama Supreme Court | Rel: October 16, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190294
Pamela D. Henley v. Michelin North America, Inc., and Hunt
Refining Company (Appeal from Tuscaloosa Circuit Court:
CV-19-900251).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Bolin, W ise, and Sellers, JJ., concur. | October 16, 2020 |
48066f3d-1441-44b9-a604-b83884bb4244 | Ex parte Jennifer Kelley Morgan. | N/A | 1190750 | 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
September 11, 2020
1190750
Ex parte Jennifer Kelley Morgan. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: Jennifer Kelley Morgan v. John Jason Morgan) (Colbert Circuit
Court: DR-16-900226; Civil Appeals :
2180486).
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 September 11, 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 11th day of September, 2020.
Clerk, Supreme Court of Alabama | September 11, 2020 |
06950ee5-818f-43b6-a453-0843b462e074 | Alexis McCollum v. Paula Massey | N/A | 1190357 | Alabama | Alabama Supreme Court | REL: September 11, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190357
Alexis McCollum v. Paula Massey (Appeal from Blount Circuit
Court: CV-14-900168).
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. | September 11, 2020 |
e95bb599-8175-455d-86b2-12911b91851d | Varden Capital Properties, LLC v. Reese | N/A | 1190692 | Alabama | Alabama Supreme Court | Rel: December 18, 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
____________________
1190692
____________________
Varden Capital Properties, LLC
v.
Alexis Reese
Appeal from Montgomery Circuit Court
(CV-18-901986)
SELLERS, Justice.
Pursuant to Rule 5, Ala. R. App. P., Varden Capital Properties, LLC
("Varden"), appeals from an interlocutory order of the Montgomery Circuit
1190692
Court denying Varden's motion for a summary judgment based on the
statute of limitations. We reverse and remand.
Introduction
Alexis Reese alleges that, on October 29, 2016, she suffered a fall on
real property owned or maintained by Varden. On October 29, 2018,
exactly two years later, on the last day before the statute of limitations
expired, Reese sued Varden, alleging negligence and wantonness. See
Booker v. United American Ins. Co., 700 So. 2d 1333, 1339 (Ala. 1997)
(noting that negligence claims are governed by a two-year limitations
period); Ex parte Capstone Bldg. Corp., 96 So. 3d 77 (Ala. 2012) (noting
that wantonness claims are governed by a two-year limitations period).
Reese did not request the circuit clerk to serve the complaint and
summons by certified mail. Instead, she submitted a summons along with
her complaint indicating that a private process server would be used to
accomplish service. A process server served the complaint and summons
at an address in Montgomery on February 6, 2019, 100 days after the
complaint was filed. Apparently, however, the address where the
materials were served was not Varden's. Notwithstanding, Varden was
2
1190692
somehow made aware of the action and appeared for the sole purpose of
filing a motion to quash service. Thereafter, the trial court entered orders
giving Reese more time to serve Varden's agent at the appropriate
address. See Rule 4(b), Ala. R. Civ. P. (requiring service to be
accomplished within 120 days of the filing of a complaint but giving trial
courts discretion to extend that deadline). On June 14, 2019, Reese served
Varden by certified mail by the deadline set by the trial court.
Varden filed a motion for a summary judgment, asserting that
Reese's claims are barred by the statute of limitations. In support,
Varden pointed to, among other authority, Precise v. Edwards, 60 So. 3d
228 (Ala. 2010), in which this Court acknowledged the principle that "[t]he
filing of a complaint commences an action for purposes of the Alabama
Rules of Civil Procedure but does not 'commence' an action for purposes
of satisfying the statute of limitations." 60 So. 3d at 230-31. Rather, "[f]or
statute-of-limitations purposes, the complaint must be filed and there
must also exist 'a bona fide intent to have it immediately served.' " Id. at
231 (quoting Dunnam v. Ovbiagele, 814 So. 2d 232, 237-38 (Ala. 2001)).
"The question whether such a bona fide intent exist[s] at the time [a]
3
1190692
complaint [is] filed must be determined by an objective standard." ENT
Assocs. of Alabama, P.A. v. Hoke, 223 So. 3d 209, 214 (Ala. 2016). Varden
argued in its summary-judgment motion that Reese waited 100 days to
take any steps to serve the complaint and that she therefore did not
possess a bona fide intent to have the complaint immediately served when
she filed it. In response, Reese's attorney submitted an affidavit stating
that Reese had "a bona fide intent to effectuate immediate service on
[Varden] with a copy of the summons and complaint." The affidavit,
however, omits any explanation of the specific steps taken to accomplish
service.
The trial court denied Varden's summary-judgment motion but
certified the following question under Rule 5, Ala. R. App. P.:
"Under ENT Associates of Alabama, P.A. v. Hoke and Precise
v. Edwards, is this action barred by the two-year statute of
limitations in Alabama Code 1975, 6-2-38(l), on the grounds
that [Reese] did not possess a bona fide intent to serve
[Varden] at the time the Complaint was filed, as evidenced by
[Reese's] unexplained delay of over three months before
attempting to serve [Varden]?"
This Court granted Varden's petition for permission to appeal. Our
standard of review is de novo. ENT, 223 So. 3d at 213. See also Precise,
4
1190692
60 So. 3d at 230 (applying the standard of review applicable to rulings on
summary-judgment motions, which requires appellate courts to view the
evidence in a light most favorable to the nonmovant and to determine
whether there is substantial evidence demonstrating a genuine issue of
material fact).1
Discussion
In Ward v. Saben Appliance Co., 391 So. 2d 1030 (Ala. 1980), the
plaintiff filed a complaint just before the applicable limitations period was
to expire and instructed the circuit clerk to withhold service so that the
plaintiff's attorney could investigate the case further before deciding
whether to proceed. This Court held that the filing of the complaint did
not "commence" an action for purposes of the statute of limitations
1Reese asserts that the trial court "made a finding of fact" that she
possessed the necessary intent to effectuate service at the time she filed
the complaint and that this Court must afford deference to that alleged
finding. Trial courts, however, do not make findings of fact when
considering summary-judgment motions. Owens v. Rado, 659 So. 2d 87,
92 (Ala. 1995). As discussed herein, there is no evidence indicating that
Reese took any steps to accomplish service for 100 days after filing the
complaint, which establishes as a matter of law the lack of the requisite
intent.
5
1190692
"because [the complaint] was not filed with the bona fide intention of
having it immediately served." Id. at 1035. Since Ward was decided, the
bona fide-intention principle has been extended to various other
circumstances. See, e.g., De-Gas, Inc. v. Midland Res., 470 So. 2d 1218
(Ala. 1985) (filing a complaint without paying the filing fee indicated that
the plaintiff did not have a bona fide intention to proceed with the action);
Pettibone Crane Co. v. Foster, 485 So. 2d 712 (Ala. 1986) (filing a
complaint without providing the circuit clerk with any instructions for
service of process or explanation why it was impossible to do so indicated
a lack of bona fide intent to proceed); Dunnam, 814 So. 2d at 238 (holding
that delay in providing the circuit clerk with a defendant's address for
service by mail indicated a lack of bona fide intent to proceed).
In Precise, which is cited in the trial court's order certifying the
question for interlocutory review, a wrongful-death complaint was filed a
little more than 1 year and 11 months after the decedent's death. At the
time the complaint was filed, the plaintiffs indicated that it would be
served by a process server. The defendants were not served until four
months later, and they moved for a summary judgment based on the
6
1190692
expiration of the two-year statute of limitations. According to this Court's
opinion: "[T]he plaintiffs offered no evidence in support of their opposition
[to the summary-judgment motion], nor did they actually explain the 131-
day delay in service." 60 So. 3d at 230. The trial court granted the
defendants' summary-judgment motion.2
On appeal, this Court stated that, "when the plaintiff, at the time of
filing [a complaint], does not perform all the tasks required to effectuate
service and delays a part of the process, a lack of the required bona fide
intent to serve the defendant is evidenced." 60 So. 3d at 233. Conversely,
" 'a bona fide intent to have [a complaint] immediately served' can be
found when the plaintiff, at the time of filing, performs all the tasks
required to serve process." Id. (quoting Dunnam, 814 So.2d at 237–38).
The Court concluded:
"The instant case involves service by process server, not
by certified mail. The plaintiffs elected this procedure and
undertook the duty to obtain a process server. At the time of
filing, and for over four months thereafter, the plaintiffs failed
2After entry of the summary judgment, the plaintiffs in Precise
submitted affidavits attempting to demonstrate good cause for the delay,
but the trial court struck those affidavits as untimely. 60 So. 3d at 230.
7
1190692
to do so. Like the plaintiff in [Dunnam v. Ovbiagele, 814 So. 2d
232 (Ala. 2001)], the plaintiffs here were tardy in performing
the steps required of them to effectuate service. This
unexplained failure to perform tasks required to effectuate
service at the time of filing, 'viewed objectively, evidences a
lack of the required bona fide intent to have [the defendants]
immediately served.' 814 So.2d at 239. This lack of intent was
unrebutted in the trial court."
60 So. 3d at 233 (footnote omitted). Accordingly, this Court affirmed the
summary judgment in favor of the defendants.
In ENT Associates of Alabama, also cited in the trial court's
certification order, this Court reversed the order denying the defendants'
summary-judgment motion based on the statute of limitations. The
complaint in ENT was filed one day before the applicable two-year
limitations period expired. At the time the complaint was filed, the
plaintiff's attorney informed the circuit clerk that the complaint would be
served by a process server. The complaint was served approximately 69
days later. On appeal, this Court noted that "delay in conjunction with
the absence of evidence of any steps taken by the plaintiff to effectuate
service at the time of filing the complaint is evidence of a lack of a bona
fide intent to immediately serve the complaint." 223 So. 3d at 215
8
1190692
(emphasis omitted). In reversing the trial court's order denying the
defendants' summary-judgment motion, the Court concluded:
"[B]ecause [the plaintiff] elected to use a process server, she
'undertook the duty to obtain a process server.' [Precise, 60 So.
3d] at 233. There is no evidence in the record indicating that
[the plaintiff] made any effort to obtain a process server at the
time she filed her complaint, or that she 'performed all the
tasks required to serve process' at the time of filing. Precise, 60
So. 3d at 233. Both [the plaintiffs' attorneys'] affidavits are
silent as to what efforts they made to have the defendants
served at the time the complaint was filed."
223 So. 3d at 214. The Court rejected the plaintiff's argument that simply
informing the circuit clerk that the complaint would be served by a
process server was sufficient to establish that she had a bona fide
intention to immediately serve the complaint. Id. at 215.
Like the plaintiffs in Precise and ENT, Reese elected to serve her
complaint via a process server. Also like the plaintiffs in Precise and
ENT, Reese delayed before taking any steps to effectuate service.
Although her attorney submitted an affidavit to the trial court stating in
conclusory fashion that Reese had a bona fide intent to effectuate
immediate service, there is no explanation of what steps were actually
taken to serve the complaint. The evidence indicates that Reese simply
9
1190692
did not hire a process server and that she made no attempts at service for
100 days after the complaint was filed. Accordingly, based on Precise and
ENT, the trial court should have granted Varden's motion for a summary
judgment.
Reese attempts to distinguish ENT on the ground that one of the
plaintiff's attorneys in ENT was not licensed to practice law in Alabama
when the complaint was filed and indicated that he planned to serve the
complaint after filing a motion for admission to practice pro hac vice.
Reese suggests that the plaintiff's attorney in ENT therefore conceded
that he did not have a bona fide intention to serve the complaint at the
time it was filed. In contrast, Reese points out that her attorney is
licensed to practice law in Alabama and that he was "capable of
effectuating service immediately," thus suggesting that he did not concede
a lack of intent to serve the complaint at the time it was filed. Although
the opinion in ENT does indicate that the plaintiff's attorney's excuse for
delaying service suggested that he did so "intentionally," 223 So. 3d at
216, ENT turned primarily on the lack of effort to accomplish service, not
on a concession by the plaintiff's attorney. Indeed, the plaintiff in ENT
10
1190692
asserted that she had retained Alabama counsel before the complaint was
filed, and this Court relied on the fact that "there [was] no explanation
provided in the record as to why ... local counsel ... did not attempt to
effectuate service on the defendants." 223 So. 3d at 218. That Reese's
attorney was "capable of effectuating service immediately" does not
change the fact that there is no indication that any steps were actually
taken to accomplish service for 100 days after the complaint was filed. If
anything, the fact that counsel was capable of effectuating service
highlights that fact.
Reese also points out that the complaint in ENT did not provide
addresses for the defendants and that, in contrast, the summons Reese
submitted with her complaint "provided Varden's name and address based
on [a lease]." That an address was submitted with the summons is
irrelevant. Reese did not request the circuit clerk to serve Varden by
certified mail. Instead, she elected to use a process server and thereafter
did nothing to accomplish service for 100 days. See Precise, 60 So. 3d at
233 n.3 ("Because this case involves service by process server, the fact that
the plaintiffs knew and disclosed the defendants' addresses to the circuit
11
1190692
clerk is irrelevant -- the circuit clerk was not charged with a responsibility
to act on those addresses.").
Reese's attempts to distinguish Precise are also unconvincing. She
first points out that the plaintiff in Precise delayed 131 days before
attempting service and that Reese delayed "only" 100 days. But any
appreciable delay in attempting service indicates a lack of bona fide intent
to serve a complaint. In ENT, service was attempted and accomplished
69 days after the complaint was filed, and this Court held that the
plaintiff's claims were barred.
Reese also relies on her attorney's affidavit testimony averring that
Reese had a bona fide intent to serve the complaint, while there was no
such evidence considered in Precise. As noted, however, Reese's attorney's
affidavit simply makes a conclusory assertion that she intended to have
the complaint served but fails to provide particular details of any specific
efforts taken. Whether the necessary intent existed is an objective inquiry
to be answered based on the plaintiff's actions, not conclusory statements
of subjective intent. See ENT, 223 So. 3d at 214 (noting that an objective
standard applies and that affidavits submitted by the plaintiffs' attorneys
12
1190692
were "silent as to what efforts they made to have the defendants served
at the time the complaint was filed").
Reese's primary response to Varden's statute-of-limitations
argument is that the trial court granted her request for an extension of
the deadline for service set out in Rule 4(b), Ala. R. Civ. P., which
generally requires service within 120 days of the filing of a complaint.
Reese asserts that service was accomplished within the deadline in Rule
4(b), as extended by the trial court, and was therefore timely. As the
Court stated in ENT, however: "[T]he fact that the defendants ... were
served within the time limit for service set forth in Rule 4(b) has no
bearing on the question whether the action was timely commenced for
purposes of the statute of limitations." 223 So. 3d at 217 (emphasis
omitted). As Varden states in its petition for permission to appeal: "The
time afforded [Reese] by Rule 4(b), even as extended by the grace of the
trial court, has nothing to do with her obligation to demonstrate bona fide
intent to serve process on Varden at the time she filed suit."
To the extent Reese suggests that the fact that she requested an
extension, by itself, demonstrates the requisite intent to serve the
13
1190692
complaint, we find that argument unpersuasive. An unexplained delay in
attempting service after filing a complaint demonstrates a lack of bona
fide intent to serve a complaint at the time it was filed, and the fact that
a complaint is served within the 120-day deadline of Rule 4(b) does not
change that conclusion. We fail to see how a plaintiffs' request for an
extension of that deadline, made after a delay in attempting service, could
possibly call for a different result. Indeed, in Precise, the fact that the
plaintiffs had sought, and were denied, more time to serve under Rule 4(b)
was "immaterial" to the statute-of-limitations issue. 60 So. 3d at 234.3
Reese also argues that confusion regarding the identity of the proper
defendant saves her from the statute of limitations. According to Reese,
Varden has asserted that it is not the proper defendant, and she claims
that "uncertainty over the true Defendant is a material factor to be
3Reese appears to suggest in her brief to this Court that Varden
waited too long to attempt a challenge to the trial court's orders providing
Reese with more time to accomplish service under Rule 4(b). But Varden
does not challenge those orders; it appeals from the order denying its
motion for a summary judgment, which was based on a ground that is not
affected by the extension of the deadline to accomplish service under Rule
4(b).
14
1190692
considered in determining whether or not [Reese] delayed in serving or
attempting to serve the Defendant." But she does not persuasively
explain why her alleged uncertainty justified delaying service of process
on Varden. Whether Varden turns out to be the proper defendant, Varden
is the entity that Reese sued, and she did indeed delay attempts to serve
that entity. As to any claims against Varden, viable or not, there is no
question Reese did not "commence" her action within the limitations
period.4
That Reese had the wrong address for Varden when she filed the
complaint also is not relevant in this case. What matters is the lack of
effort to accomplish service for 100 days after filing the complaint, which
demonstrates a clear lack of bona fide intent to serve the complaint when
it was filed. Dunnam does not call for a different result. In that case, this
Court held that it could not, as a matter of law, conclude that the plaintiff
did not have a bona fide intent to immediately serve a medical-
4Reese should have taken her uncertainty into consideration in
choosing to file suit so close to the expiration of the statute of limitations.
15
1190692
malpractice complaint on two of the three defendant medical providers,
even though she did not provide the circuit clerk with those defendants'
addresses for service by mail until more than three months after she filed
the complaint. The plaintiff's attorney in Dunnam submitted evidence
indicating that, at the time the complaint was filed, he did not know the
whereabouts of the two defendants, that he informed the circuit clerk of
that circumstance, and that, in the interim between filing the complaint
and accomplishing service, "he diligently searched for the addresses of
those two doctors." 814 So. 2d at 238. In contrast, there is no evidence in
the present case indicating that Reese knew that she did not have the
correct address for Varden and that, after filing the complaint, diligently
sought that address. Although Reese asserts in her brief to this Court
that she decided to use a process server in an attempt to ensure that
service was made at the correct address, she points to no evidence of such
intent, no evidence establishing when she hired a process server, and no
evidence demonstrating that any steps at all were taken to discover the
proper address for service. Indeed, even 100 days after filing the
complaint, she simply served it at the incorrect address she had when the
16
1190692
complaint was filed, indicating that any effort to identify the correct
address was minimal at best.5
Conclusion
There are no meaningful differences between the present case and
Precise and ENT. Accordingly, we reverse the trial court's order denying
Varden's summary-judgment motion and remand the cause for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Parker, C.J., and Bolin, Shaw, and Mitchell, JJ., concur.
Bryan, Mendheim, and Stewart, JJ., concur in the result.
5Thompson v. E.A. Industries, Inc., 540 So. 2d 1362 (Ala. 1989), also
is inapposite. In that case, the Court held that a plaintiff who initially
attempted service at an incorrect address was not barred by the statute
of limitations even though he failed to perfect service until more than
three years after he filed the complaint and approximately two and one-
half years after learning of the defendant's correct address. In contrast to
the present case, the plaintiff's initial failed attempt at service in
Thompson occurred contemporaneously with the filing of the complaint.
Because he attempted service at that time, "the requisite intent
appear[ed] to have been there at the time of filing." Id. at 1363. Reese,
however, took no steps to accomplish service for 100 days after filing her
complaint.
17
1190692
MENDHEIM, Justice (concurring in the result).
I concur in the result reached by the main opinion.
A petition for permission to appeal may be granted under Rule 5(a),
Ala. R. App. P., only if the trial court certifies, among other things, that
"the interlocutory order involves a controlling question of law as to which
there is substantial ground for difference of opinion." (Emphasis added.)
In Mid-Century Insurance Co. v. Watts, [Ms. 1180852, Sept. 18, 2020] ___
So. 3d ___, ___ (Ala. 2020), this Court recently adopted the following
reasoning concerning the Rule 5(a) requirement that the controlling
question of law identified by the trial court be an issue as to which there
is substantial ground for difference of opinion:
" '[T]he limitation in Rule 5[, Ala. R. App. P.,] to
issues "as to which there is substantial ground for
difference of opinion" is a limitation to questions of
law that either have never been decided or are the
subject of a split of authority or a conflict in our
precedents. Otherwise, this Court is merely
performing the trial court's function of researching
and deciding legal issues, a task for which the trial
court is well equipped and to which it equally is
assigned. See, e.g., Couch v. Telescope Inc., 611
F.3d 629, 633 (9th Cir. 2010) (noting that "[c]ourts
traditionally will find that a substantial ground for
difference of opinion exists where '... novel and
18
1190692
difficult
questions
of
first
impression
are
presented' " (quoting 3 Federal Procedure § 3:212
(Lawyers ed. 2010))).'
"Once Upon a Time[, LLC v. Chappelle Props., LLC], 209
So. 3d [1094,] 1107 [(Ala. 2016)] (Murdock, J., dissenting)."
In the present case, the issue is whether the plaintiff filed the
complaint with the bona fide intention of having it immediately served.
As ably detailed by the main opinion, this is not an issue "as to which
there is substantial ground for difference of opinion." That is to say that
the issue presented in this case is not an issue that has " 'never been
decided or [is] the subject of a split of authority.' " Mid-Century, ___
So. 3d at ___ (quoting Once Upon a Time, LLC v. Chappelle Props., LLC,
209 So. 3d 1094, 1107 (Ala. 2016) (Murdock, J., dissenting)). Quite the
contrary, the law concerning whether a plaintiff filed a complaint with the
bona fide intention of having it immediately served is well settled.
Accordingly, I do not believe that the petition for permission to appeal
should have been granted in this case. However, the parties do not raise
this argument; thus, I concur in the result.
Stewart, J., concurs.
19 | December 18, 2020 |
588e4f3e-1f99-4ea2-8bfc-62fb8c540c8a | Ex parte Kenneth E. Morris. | N/A | 1190885 | 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
September 11, 2020
1190885
Ex parte Kenneth E. Morris. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Kenneth E. Morris v. State of Alabama) (Houston Circuit Court:
CC-11-1384.61; CC-11-1385.61; CC-11-1386.61; Criminal Appeals :
CR-19-0606).
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 September 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. 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 11th day of September, 2020.
Clerk, Supreme Court of Alabama | September 11, 2020 |
d7fe1339-f4c6-4953-8904-fdadcd8f3cc6 | QHG of Enterprise, Inc., d/b/a Medical Center Enterprise v. Pertuit | N/A | 1181072 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2020
____________________
1181072
____________________
QHG of Enterprise, Inc., d/b/a Medical Center Enterprise
v.
Amy Pertuit
Appeal from Coffee Circuit Court
(CV-15-900156)
BRYAN, Justice.
QHG of Enterprise, Inc., d/b/a Medical Center Enterprise
("QHG"), appeals from a judgment of the Coffee Circuit Court
("the trial court") awarding Amy Pertuit ("Amy") $5,000 in
1181072
compensatory damages and $295,000 in punitive damages.1 We
reverse the judgment and render a judgment for QHG.
Background
Leif Pertuit ("Leif") was married to Deanna Mortensen;
one child, Logan, was born of their marriage. Leif and
Mortensen were divorced in 2007. At some point, Mortensen was
awarded sole physical custody of Logan, and Leif was awarded
visitation.
Leif later married Amy, a nurse. At the time of their
marriage, Leif and Amy resided in Mobile, and Mortensen
resided in Enterprise. Eventually, tensions arose between
Leif and Mortensen regarding the issue of visitation. In
March 2014, Mortensen began sending text messages to Leif
accusing Amy of being addicted to drugs.
Around that time, Mortensen visited the attorney who had
represented her in matters relating to her divorce from Leif
("Mortensen's attorney"). Mortensen expressed concern that
Logan was in danger as a result of the visitation arrangement
1QHG also named Leif Pertuit as an appellee in its notice
of appeal. However, as explained in more detail infra, QHG
prevailed on Leif's claims in the trial court, and Leif did
not appeal from the trial court's judgment. Therefore, Leif
is not a party to this appeal.
2
1181072
and asked her attorney to assist with obtaining a modification
of Leif's visitation. Mortensen's attorney explained: "We
can't just go on your belief. ... You can file a petition,
but it will not be granted ...."
In April 2014, Mortensen telephoned or sent a text
message to Dr. Kathlyn Diefenderfer, a physician whom QHG
employed as a hospitalist at Medical Center Enterprise, a
hospital operated by QHG (hereinafter referred to at times as
"the hospital"). Mortensen had been Dr. Diefenderfer's
patient when Dr. Diefenderfer worked in her own clinic, and
Dr. Diefenderfer's son played sports with Logan. Mortensen
went to see Dr. Diefenderfer at the hospital. Hysterical and
crying, Mortensen informed Dr. Diefenderfer that Logan was
scheduled to ride in an automobile with Amy from Enterprise to
Mobile for Leif's visitation and expressed concern regarding
Amy's ability to drive, given her belief that Amy was using
drugs and had lost her nursing license.
Dr. Diefenderfer then used a hospital computer to access
the Alabama Prescription Drug Monitoring Program ("PDMP"), a
database
that
contains
information
regarding
drug
prescriptions. See § 20-2-212, Ala. Code 1975 ("The [Alabama
3
1181072
Department of Public Health] may establish, create, and
maintain a controlled substances prescription database
program.").2 After reviewing information pertaining to Amy's
drug prescriptions, Dr. Diefenderfer told Mortensen: "All I
can tell you is I would not put my son in the car."
Later in April 2014, Mortensen visited her attorney,
again distraught. Mortensen informed her attorney that her
suspicions about Amy's drug use had been confirmed.
Mortensen's attorney said: "You cannot allege that unless you
have proof. ... Where's the proof?" Mortensen indicated that
Dr. Diefenderfer had acquired the necessary proof.
2Section 20-2-210, Ala. Code 1975, provides:
"The Alabama Legislature hereby finds that the
diversion,
abuse,
and
misuse
of
prescription
medications classified as controlled substances
under the Alabama Uniform Controlled Substances Act
constitutes a serious threat to the health and
welfare of the citizens of the State of Alabama.
The Legislature further finds that establishment of
a controlled substances prescription database to
monitor the prescribing and dispensing of controlled
substances will materially assist state regulators
and practitioners authorized to prescribe and
dispense controlled substances in the prevention of
diversion,
abuse,
and
misuse
of
controlled
substances prescription medication through the
provision of education and information, early
intervention, and prevention of diversion, and
investigation and enforcement of existing laws
governing the use of controlled substances."
4
1181072
At the time, Mortensen's attorney was also representing
Dr. Diefenderfer in a different legal matter, and the two were
neighbors. Mortensen's attorney telephoned Dr. Diefenderfer,
who was at home. Dr. Diefenderfer told Mortensen's attorney
that no child should be around Amy because of her methadone
and opiate use. At some point, Mortensen's attorney asked Dr.
Diefenderfer whether she had written documentation supporting
her statements, and Dr. Diefenderfer said: "Yes, I have a
printout." Mortensen's attorney asked whether a subpoena
would be required to obtain the documentation, and Dr.
Diefenderfer again responded in the affirmative.
Based
on
his
telephone
conversation
with
Dr.
Diefenderfer, Mortensen's attorney
drafted
and
filed
that
same
day a petition seeking a modification of Leif's visitation
with Logan, so as to prevent Logan from being left in Amy's
care. Among other things, the petition alleged:
"[Amy] has lost her nursing license after reprimand,
counseling[,] and[,] finally[,] a revocation of her
license due to what is believed as prescription drug
and substance abuse. Records and other evidence
show that [Leif and Amy] ha[ve] purchased up to 138
pills a month of [m]ethadone, Lortabs and other
narcotics for over a year. These numbers are far in
excess of medically recommended dosages. [Amy] is
also
making
purchases
at
four
different
pharmaceutical establishments in the Mobile area and
5
1181072
with three different doctors."
Amy later received a copy of the modification petition on
Leif's behalf. According to Amy, the material allegations set
out in the petition included multiple inaccuracies, and she
was convinced that her private health information had been
obtained in violation of the Health Insurance Portability and
Accountability Act of 1996 ("HIPAA").
Amy testified that her nursing license had never been
suspended or revoked, that she had never been reprimanded or
terminated by an employer for drug use, that she had never
failed a drug test requested by an employer, that she had
never been arrested for drug possession, that she had never
taken methadone and Lortab together, that she had never taken
138 pills in one month, that she had never "shopped around"
for doctors or pharmacies, and that her doctor had never
raised a concern that Amy was addicted to opioids. Amy noted
that she had been prescribed medication to help manage pain
resulting from fusion surgery to repair multiple spinal
fractures in her neck that had been caused by a significant
motor-vehicle
collision.
Amy
attributed
one
large
prescription for 138 doses of methadone in November 2013 to
6
1181072
the fact that her doctor was leaving town for Christmas at
that time.
At some point after the modification petition was filed,
Mortensen's attorney met Dr. Diefenderfer at her home and
delivered what he purported to be a subpoena directing Dr.
Diefenderfer to produce: "Records which indicate that Logan
... may by in imminent danger if in the physical custody of
Amy ...." In reality, the purported subpoena had never been
filed in the court in which the modification petition was
pending; neither the court presiding over that action nor
opposing counsel was aware of the purported subpoena. See
Rule 45, Ala. R. Civ. P. (providing the procedure for seeking
the issuance of a subpoena). At some point after Mortensen's
attorney
presented the
purported
subpoena
to
Dr.
Diefenderfer,
Dr. Diefenderfer gave him a report generated by Dr.
Diefenderfer from the PDMP and printed at her home that
reflected Amy's name and listed prescriptions for methadone
and Lortab.
The total number of times Dr. Diefenderfer accessed the
PDMP to obtain medical information concerning Amy is unclear.
It is undisputed that she did so more than once. However, Dr.
7
1181072
Diefenderfer testified that such access occurred only once at
the hospital -- on the day that Mortensen sought her
assistance regarding Logan's scheduled visitation with Leif.
At the hearing on Mortensen's modification petition, Amy
testified, in the presence of Leif and Leif's mother,
regarding the allegations raised by Mortensen in
her
petition.
The court presiding over that action denied the modification
petition, ordering Leif's visitation to resume as previously
ordered.
As a result of the events described above, Amy submitted
a report to the Enterprise Police Department, a complaint to
the United States Department of Health and Human Services, a
complaint to the Alabama Bar Association, and a complaint to
the Alabama Board of Medical Examiners. Indictments were
presented by the grand jury of Coffee County against Mortensen
and Dr. Diefenderfer, charging each with violating §
20-2-216,
Ala. Code 1975.3 The indictments were later recalled upon
3Section 20-2-216 provides:
"Any
person
who
intentionally
makes
an
unauthorized disclosure of information contained in
the controlled substances prescription database
shall be guilty of a Class A misdemeanor. Any
person
or
entity
who
intentionally
obtains
unauthorized access to or who alters or destroys
8
1181072
Mortensen's and Dr. Diefenderfer's entering into pretrial-
diversion agreements with the district attorney's office.
The
Alabama Board of Medical Examiners sent Dr. Diefenderfer a
letter of concern.
On October 24, 2014, the United States Department of
Health and Human Services, Office for Civil Rights ("OCR"),
sent a letter to "[t]he [o]ffice" of Dr. Diefenderfer,
explaining that OCR had received a complaint regarding Dr.
Diefenderfer's access of the PDMP in April 2014. The letter
was sent to the address of Dr. Diefenderfer's previous
employer, Enterprise Medical Clinic. The letter stated that
Dr. Diefenderfer's actions "could reflect a violation" of
specified federal regulations. Among other things, the
letter
stated:
"OCR has determined to resolve this matter through
the provision of technical assistance to the Office.
To that end, OCR has enclosed [certain] material[s]
.... It is our expectation that you will review
these materials closely and share them with your
staff as part of the [HIPAA] training you provide to
your workforce. It is also our expectation that you
will assess and determine whether there may have
been an incident of noncompliance as alleged by the
complainant in this matter, and, if so, to take the
information contained in the controlled substances
prescription database shall be guilty of a Class C
felony."
9
1181072
steps necessary to ensure such noncompliance does
not occur in the future."
Four days later, QHG received, via a courier from Dr.
Diefenderfer's previous employer, a copy of the letter sent by
OCR.
Richard Ellis was QHG's chief executive officer ("CEO")
at the time, and Kathy McCurdy was the compliance and privacy
officer for Medical Center Enterprise. As the compliance and
privacy
officer,
McCurdy
was
responsible
for
investigating the
complaint against Dr. Diefenderfer. McCurdy was also
Mortensen's aunt. Ellis and McCurdy met with Dr. Diefenderfer
and discussed the
importance of patient privacy and compliance
with the requirements of HIPAA and explained QHG's commitment
to safeguarding patient privacy. Dr. Diefenderfer agreed
regarding the importance of HIPAA and patient privacy. Dr.
Diefenderfer was not reprimanded, suspended, or fired by QHG.
Evidence was also presented indicating that Dr. Diefenderfer
believed that the hospital "backed her up a hundred percent."
In September 2015, Leif and Amy (hereinafter referred to
collectively as "the Pertuits") commenced this action. As
amended, the Pertuits' complaint named as defendants Dr.
Diefenderfer, Mortensen, Mortensen's attorney, and QHG. The
10
1181072
Pertuits
asserted
counts
alleging
"negligence
and
wantonness";
"violation of the right of privacy"; "tort of outrage
(intentional
infliction
of
emotional
distress)";
and
"conspiracy" against Dr. Diefenderfer, Mortensen, Mortensen's
attorney, and QHG. Leif also asserted a claim for "loss of
consortium."
The Pertuits alleged that Dr. Diefenderfer was acting
within the line and scope of her employment with QHG during
all times relevant to the actions made the basis of the
foregoing claims. The Pertuits asserted separate counts
against QHG for "respondeat superior/ratification" and
"negligent
and
wanton
training,
supervision[,]
and
retention."
The Pertuits sought compensatory and punitive damages for
each
of their claims.
At some point after the Pertuits filed their complaint,
QHG terminated its employment relationships with hospitalists
working at Medical Center Enterprise. Specifically, QHG
entered into a contract with a management company called
Schumacher Group, which, in turn, employed the hospitalists
working at Medical Center Enterprise. According to Amy, from
that point, hospitalists working at Medical Center Enterprise
11
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became independent contractors with regard to QHG. Amy's
brief, at 14.
During the course of this litigation, in 2016, Dr.
Diefenderfer prepared a report ("the 2016 report"), in which
Dr. Diefenderfer referenced Amy's use of medications and
other
factors leading to Dr. Diefenderfer's conclusion that "Amy
exhibits the behaviors of a patient with antisocial
personality disorder, defined as a person who[se] ways of
thinking, perceiving situations[,] and relation to others are
dysfunctional and destructive." Among other things, Dr.
Diefenderfer's report
suggested
that
Amy's
"long[-]term use
of
Methadone ha[d] ... contributed to her psychological and
emotional disorder resulting in a frivolous law suit." Dr.
Diefenderfer gave a copy of the report to Mortensen because,
at the time, Dr. Diefenderfer felt that she and Mortensen
"were partners in this." According to Dr. Diefenderfer's
testimony, when she created the 2016 report, she was employed
by Schumacher Group -- not by QHG. QHG did not learn of the
report until later.
In September 2016, QHG filed a summary-judgment motion.
The trial court entered an order granting QHG's motion,
12
1181072
concluding, in pertinent part: "Because [QHG] cannot be held
liable for the alleged intentional acts of [Dr.] Diefenderfer
committed outside the scope of her employment, [QHG] is
entitled to a judgment as a matter of law." The Pertuits
filed a motion asking the trial court to reconsider its order,
asserting that discovery had not yet been completed. The
trial court granted the Pertuits' motion and set aside its
previous order granting QHG's summary-judgment motion.
The Pertuits reached settlements with Dr. Diefenderfer,
Mortensen, and Mortensen's attorney. The terms of Dr.
Diefenderfer's
settlement
agreement
with
the
Pertuits
specified that the agreement did not constitute an admission
of liability on Dr. Diefenderfer's part. Dr. Diefenderfer,
Mortensen, and Mortensen's attorney were eventually dismissed
from the action.
A jury trial was conducted over the course of several
days on the Pertuits' claims against QHG. QHG filed a written
motion for a judgment as a matter of law at the close of the
Pertuits' case. The trial court denied QHG's motion. At the
close of all the evidence, QHG's attorney orally moved for a
judgment as a matter of law, and the trial court heard
13
1181072
arguments from counsel regarding the motion. The trial court
denied QHG's motion.
The jury returned a verdict in favor of QHG on all claims
asserted against it by Leif. The jury returned a verdict in
favor of Amy on her claims against QHG, awarding her $5,000 in
compensatory damages and $295,000 in punitive damages. QHG
filed a renewed motion for a judgment as a matter of law,
pursuant to Rule 50(b), Ala. R. Civ. P., and a separate motion
requesting a new trial or, in the alternative, a remittitur.4
The trial court entered orders denying QHG's motions. The
trial court entered a judgment on the jury's verdict in favor
of Amy and on the jury's verdict in favor of QHG regarding
Leif's claims. QHG appealed.5
4In New Addition Club, Inc. v. Vaughn, 903 So. 2d 68, 72
(Ala. 2004), this Court held "that if a party moves for a
judgment as a matter of law or, in the alternative, for a new
trial before the court has entered a judgment, the motion
shall be treated as having been filed after the entry of the
judgment and on the day thereof."
5During the pendency of this appeal, this Court remanded
this cause to the trial court for the disposition of certain
matters. On September 10, 2020, QHG filed a supplemental
brief pursuant to Rule 28A, Ala. R. App. P., asserting
additional argument in support of its position that the trial
court erred by failing to enter a judgment as a matter of law
in QHG's favor. Amy filed a motion to strike QHG's
supplemental brief. As explained infra, we have concluded
that QHG was entitled to a judgment as matter of law based on
14
1181072
Analysis
QHG raises 10 arguments on appeal. One of QHG's
arguments is that this action represents an attempt by Amy to
assert a private right of action to enforce the provisions of
HIPAA, which, QHG contends, she lacks authority to do. See
Acara v. Banks, 470 F.3d 569, 572 (5th Cir. 2006). In
response, Amy argues that her claims were not brought to
enforce the provisions of HIPAA; she says they are "common law
tort claims that incorporate QHG's privacy policies, employee
contract, and HIPAA into each element where appropriate."
Amy's brief, at 29. Amy asserts, however, that "this is a
case of first impression for Alabama." Amy's brief, at 30.
In support of her argument that we should recognize her
claims, Amy points to Walgreen Co. v. Hinchy, 21 N.E.3d 99
(Ind. Ct. App. 2014), a decision of the Indiana Court of
Appeals that, Amy says, recognized claims similar to those she
brought against QHG. Amy's brief, at 30-31.6
the arguments asserted in QHG's initial briefs. Therefore, we
do not consider the additional arguments asserted in QHG's
supplemental brief, and Amy's motion to strike QHG's
supplemental brief is denied as moot.
6Neither party has raised any issue concerning federal
preemption and HIPAA on appeal. Therefore, we express no
opinion regarding preemption in this case.
15
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QHG also argues that it was entitled to a judgment as a
matter of law under well settled principles of law. For the
reasons explained below, we agree. Therefore, we decline
Amy's invitation to tread new ground in the field of Alabama
tort law based on the facts of this case, and we expressly
reach no holding in this case concerning the general viability
of tort claims that, as a matter of Alabama law, seek to
incorporate the privacy provisions of HIPAA. We need not
decide that question at this time because, even assuming that
such claims are generally cognizable under Alabama law,
insufficient evidence was presented to satisfy the essential
components of the theories of liability relied upon by Amy
against QHG.7
"In American National Fire Insurance Co. v.
Hughes, 624 So. 2d 1362 (Ala. 1993), this Court set
out the standard that applies to the appellate
review of a trial court's ruling on a motion for a
[judgment as a matter of law]:
"'The standard of review applicable to
7At trial, Amy presented the testimony of an expert
witness, Donna Grindle, who, among other things, opined that
QHG had violated the provisions of HIPAA in various ways. We
express no opinion regarding Grindle's conclusions in that
regard. As noted, our decision in this appeal is based only
on Amy's failure to present sufficient evidence to support
essential components of the state-law theories of liability
she asserted against QHG and does not address federal law.
16
1181072
a ruling on a motion for JNOV [now referred
to as a renewed motion for a judgment as a
matter of law] is identical to the standard
used by the trial court in granting or
denying a motion for directed verdict [now
referred to as a motion for a judgment as
a matter of law]. Thus, in reviewing the
trial court's ruling on the motion, we
review the evidence in a light most
favorable
to
the
nonmovant,
and
we
determine whether the party with the burden
of proof has produced sufficient evidence
to require a jury determination.'
"624 So. 2d at 1366 (citations omitted). Further,
in Cessna Aircraft Co. v. Trzcinski, 682 So. 2d 17
(Ala. 1996), this Court held:
"'The motion for a J.N.O.V. [now
referred to as a renewed motion for a
judgment as a matter of law] is a
procedural device used to challenge the
sufficiency of the evidence to support the
jury's verdict. See, Rule 50(b), [Ala.] R.
Civ. P.; Luker v. City of Brantley, 520 So.
2d 517 (Ala. 1987). Ordinarily, the denial
of a directed verdict [now referred to as
a judgment as a matter of law] or a
J.N.O.V. is proper where the nonmoving
party has produced substantial evidence to
support
each
element
of
his
claim.
However, if punitive damages are at issue
in a motion for a directed verdict or a
J.N.O.V., then the "clear and convincing"
standard applies. Senn v. Alabama Gas
Corp., 619 So. 2d 1320 (Ala. 1993).'
"682
So.
2d
at
19
(footnote
omitted).
'[S]ubstantial evidence is evidence of such weight
and quality that fair-minded persons in the exercise
of impartial judgment can reasonably infer the
existence of the fact sought to be proved.' West v.
17
1181072
Founders Life Assurance Co., 547 So. 2d 870, 871
(Ala. 1989). See § 12–21–12(d), Ala. Code 1975."
Cheshire v. Putman, 54 So. 3d 336, 340 (Ala. 2010).
As noted, the bases for QHG's liability asserted in the
Pertuits'
complaint,
as
amended,
were
"respondeat
superior/ratification" and "negligent and wanton training,
supervision[,] and retention." Each theory of liability is
predicated on the notion that Dr. Diefenderfer's actions in
this case were wrongful and that QHG is consequently
responsible for Dr. Diefenderfer's wrongful conduct.8 As also
noted, Amy entered into a settlement agreement with Dr.
Diefenderfer that included no admission of liability on the
part of Dr. Diefenderfer.
As with our assumption stated above regarding the general
availability of state-law tort claims that incorporate the
privacy provisions of HIPAA, for the purposes of this opinion
we assume, without deciding, that Alabama law provides a
remedy in tort against a defendant who commits the actions Dr.
8On appeal, Amy states: "Claims against [QHG] are for
Invasion of Privacy, Outrage, Respondeat Superior, and
Negligent
and
[W]anton[]
Training,
Supervision
and
[R]etention
...." Amy's brief, at 29. It is clear from her brief,
however, that Amy's first two "claims" are still predicated on
QHG's
conduct
concerning,
and
relationship
to,
Dr.
Diefenderfer. Amy's brief, at 35-39.
18
1181072
Diefenderfer committed in this case. We make this assumption
because, by virtue of the settlement between Amy and Dr.
Diefenderfer, the primary issue presented by this appeal is
not whether Dr. Diefenderfer is liable to Amy for her actions
but, rather, whether QHG is liable to Amy as a consequence of
Dr. Diefenderfer's actions.
QHG argues that Amy failed to present substantial
evidence indicating that QHG was liable for
Dr.
Diefenderfer's
actions
under
either
a
theory
of
"respondeat
superior/ratification" or "negligent and wanton training,
supervision[,] and retention." We address each in turn.
I. Respondeat Superior
QHG argues that Amy failed to present substantial
evidence indicating that Dr. Diefenderfer was acting within
the scope of her employment with QHG when she committed the
conduct forming the basis of Amy's claims or that Dr.
Diefenderfer's conduct furthered QHG's business interests.
QHG cites, among other authority, Solmica of Gulf Coast, Inc.
v. Braggs, 285 Ala. 396, 232 So. 2d 642 (1970), for the
standard used to determine whether an employee's conduct fell
within the line and scope of his or her employment. In
19
1181072
Braggs, we stated:
"'The test is the service in which the employee is
engaged. City of Bessemer v. Barnett[, 212 Ala.
202, 102 So. 23 (1924)]. The rule which has been
approved for determining whether certain conduct of
an employee is within the line and scope of his
employment is substantially that if an employee is
engaged to perform a certain service, whatever he
does to that end, or in furtherance of the
employment, is deemed by law to be an act done
within the scope of the employment. Railway Express
Agency v. Burns, 225 Ala. 557, 52 So. 2d 177
[(1950)]; Rochester-Hall Drug Co. v. Bowden, 218
Ala. 242, 118 So. 674 [(1928)].'"
285 Ala. at 401, 232 So. 2d at 642 (quoting Nelson v. Johnson,
264 Ala. 422, 427, 88 So. 2d 358, 361 (1956)); see also
Synergies3 Tec Servs., LLC v. Corvo, [Ms. 1170765, August 21,
2020] ____ So. 3d ____ (Ala. 2020).
QHG employed Dr. Diefenderfer as a hospitalist. Ellis,
QHG's CEO during the relevant times, testified as follows
during his deposition:9
"In general terms, a hospitalist is a physician
who manages the inpatient care for a variety of
patients while they're -- while they have inpatient
status in the hospital. So typically they do not
have an outside clinic and all they do is see
patients in the hospital. A clinic physician so to
speak or an outpatient physician might refer a
patient for admission and the hospitalist would
provide their care, coordinate consultants such as
a cardiologist or a pulmonologist or a neurologist
9A video of Ellis's deposition was played at trial.
20
1181072
and sort of be the captain of the ship so to speak
for that care of the patient."
Ellis testified that Dr. Diefenderfer's access of Amy's
private medical information via the PDMP did not relate in any
way to Dr. Diefenderfer's employment as a hospitalist.
Dr. Diefenderfer testified as follows during examination
by QHG's attorney at trial:
"Q. Was this something that you did in your duties
as a hospitalist?
"A. Absolutely not.
"Q. This is a mistake that didn't involve the
hospital?
"A. No, sir.
"Q. No, sir --
"A. No, sir.
"Q. It didn't involve the hospital?
"A. Not at all in my opinion."
Dr. Diefenderfer testified that she was not acting within
the line and scope of her employment with QHG when she
accessed Amy's personal medical information while at her house
because her actions in that regard did not relate to caring
for a patient. Dr. Diefenderfer also testified that the PDMP
is maintained by the Alabama Department of Public Health, that
21
1181072
only "[p]hysicians and people that can prescribe narcotics"
can access the PDMP, and that she had to use her physician-
license number to log into the PDMP.
McCurdy, the compliance and privacy officer for Medical
Center Enterprise, testified that the hospital itself had no
access to the PDMP and that only physicians were able to
access it.10 McCurdy further testified that, according to
hospital policy, whenever a hospital employee accesses the
private health information of friends or family, or even the
employee's own information, the employee is not acting as an
employee of the hospital and that the hospital is required to
have
written
authorization
for
the
release
of
such
information.11 It is undisputed that Amy was not a patient of
10See § 20-2-214, Ala. Code 1975 (defining the persons and
entities that are authorized to access the PDMP, which does
not include health-care facilities).
11McCurdy's testimony concerning the hospital's policies
is relevant to
the
question whether Dr. Diefenderfer's actions
fell within the scope of her employment as a matter of law.
However, the fact that an employee violated his or her
employer's company policies is not, taken alone, dispositive
of such an inquiry. See Lawler Mobile Homes, Inc. v. Tarver,
492 So. 2d 297, 305 (Ala. 1986)("A corporation or employer
will be liable for the torts of its employee committed while
acting in the line and scope of his employment even though the
corporation or employer did not authorize or ratify such acts
and even if it expressly forbade them."), and Williams v.
Hughes Moving & Storage Co., 578 So. 2d 1281, 1283 (Ala.
22
1181072
the
hospital
and
that
she
did
not
consent
to
Dr.
Diefenderfer's access of her personal medical information via
the PDMP and subsequent disclosure of that information to
Mortensen and Mortensen's attorney.
The foregoing evidence indicates that Dr. Diefenderfer's
actions in accessing and disclosing Amy's personal medical
information stored on the PDMP were not within the scope of
Dr.
Diefenderfer's
employment
with
QHG
because
Dr.
Diefenderfer's conduct in that regard was unrelated to the
purpose for which QHG employed her, namely, to treat the
hospital's patients. See Braggs, 285 Ala. at 401, 232 So. 2d
at 642.
On appeal, Amy points to several items that she contends
amounted
to substantial
evidence
indicating
that
Dr.
Diefenderfer was acting within the scope of her employment
when she accessed and disclosed Amy's personal medical
information. First, she implies that Mortensen was "a long-
time patient" of the hospital. Amy's brief, at 25. However,
the testimony Amy cites in support of that assertion included
1991)("The mere fact that [the employee] was acting against
company policy is not ... conclusive as to the question of
[the employee]'s status at the time of the accident.").
23
1181072
no such evidence and was primarily Dr. Diefenderfer's account
of what transpired when Mortensen came to her with concerns
about Amy's alleged drug use. At another point during the
trial, Dr. Diefenderfer testified: "[Mortensen] was a patient
of mine in my clinic for probably about seven years."
(Emphasis added.)12 Thus, no evidence was presented at trial
indicating that Mortensen was a patient of the hospital.
Regardless, even assuming that Mortensen had been a
patient of the hospital at some point, it is undisputed that
the reason for Mortensen's April 2014 visit to the hospital
was not to obtain medical treatment from the hospital's
employees but,
rather,
to
obtain
Dr.
Diefenderfer's assistance
or advice regarding Logan's scheduled visitation with Leif.
12During the charge conference at the close of trial, the
parties' attorneys argued about whether any evidence had been
presented at trial indicating that Mortensen had ever been a
patient of the hospital. Eventually, Amy's attorneys pointed
to a portion of Dr. Diefenderfer's deposition, in which she
testified that the hospital had a file regarding certain "lab
work" pertaining to Mortensen. However, Dr. Diefenderfer's
deposition was not admitted as evidence at trial, because the
Pertuits called Dr. Diefenderfer as a witness to offer live
testimony during the presentation of the their case. See
Mobile Infirmary v. Eberlein, 270 Ala. 360, 370, 119 So. 2d 8,
17-18 (1960)(noting that oral testimony is preferred over
deposition testimony); Committee Comments on 1973 Adoption of
Rule 32, Ala. R. Civ. P. (noting that Eberlein was still
applicable).
24
1181072
On appeal, Amy contends that a jury question was presented
regarding whether Dr. Diefenderfer's actions –- both at the
hospital and elsewhere -- were within the scope of her
employment with QHG because, she says: "Doctors are
professionals. They do not stop being doctors when they leave
their place of work." Amy's brief, at 26. Amy also points to
Dr. Diefenderfer's testimony indicating that she believed she
had an ethical obligation to help Mortensen.
One case QHG cites in response is Hendley v. Springhill
Memorial Hospital, 575 So. 2d 547 (Ala. 1990). In Hendley,
this Court held that, as a matter of law, an employee13 of a
hospital was acting outside the scope of his employment when
he allegedly performed an unauthorized vaginal examination on
one of the hospital's patients. 575 So. 3d at 551. Citing
Avco Corp. v. Richardson, 285 Ala. 538, 234 So. 2d 556 (1970),
the Hendley Court articulated the applicable rule as follows:
"[I]n cases where a servant's deviation from the
master's business is slight and not unusual, a court
may determine, as a matter of law, that the servant
was still executing the master's business. On the
other hand, with a very 'marked and unusual'
deviation, the court may determine that the servant
is not on his master's business at all. Cases
13The Hendley Court assumed for the purposes of that case
that an employment relationship existed. 575 So. 2d at 550.
25
1181072
falling between these two extremes must be regarded
as involving a question of fact to be left to the
jury."
575 So. 2d at 550 (emphasis added); see also Corvo, ____ So.
3d at ____ (holding that a circuit court erred by failing to
enter a judgment as a matter of law in favor of employers
after reasoning: "Theft and conversion are a 'marked and
unusual deviation' from the business of Synergies3 and
DIRECTV
for which Castro and McLaughlin were in Corvo's house --
installing equipment for DIRECTV's satellite television
service. Furthermore, there was no evidence indicating that
the theft or conversion was done for Synergies3's or DIRECTV's
benefit or in furtherance of their interests."); Conner v.
Magic City Trucking Serv., Inc., 592 So. 2d 1048, 1050 (Ala.
1992)(affirming a "directed verdict" in favor of an employer
after determining that an employee's decision to chase the
plaintiff while holding a snake was a "marked and unusual"
deviation
from
the
employer's business
and,
therefore,
outside
the scope of employment); Sakas v. Capital Concepts Corp., 565
So. 2d 237, 238 (Ala. 1990)(affirming a summary judgment in
favor of the owner of an apartment complex after determining
that an apartment manager's decision to break into the
26
1181072
plaintiff's apartment, remove some of her clothes, and beat
her with a hammer constituted a "marked and unusual deviation"
from the employer's business); and Prosser v. Glass, 481 So.
2d 365, 368 (Ala. 1985)("[The alleged employee] was employed
as a mechanic to assist in the experimentation and development
of [a] swirlplate. ... [H]is repair of Glass's truck, which
did not have a swirlplate, would not reasonably further the
purpose of developing the [swirlplate], which was
the
business
at hand. Therefore, [the alleged employee's] deviation from
the scope of his master's business was marked and unusual, and
thus outside the scope of employment. The summary judgment
for [the alleged employer] is affirmed.").
In this case, no evidence was presented indicating that
QHG employed Dr. Diefenderfer to assist or advise third
parties in making a determination regarding whether they
should
permit
their
children
to
attend
court-ordered
visitation with a former spouse or to seek a modification of
a former spouse's court-ordered visitation. Therefore, Dr.
Diefenderfer's decision
to
collect
and
disclose
Amy's
personal
medical
information
in
furtherance
of
those
pursuits
constituted a "marked an unusual deviation" from QHG's
27
1181072
business, undertaken by Dr. Diefenderfer for personal reasons
that were outside the scope of her employment by QHG. See
AVCO Corp., 285 Ala. at 542, 234 So. 2d at 560. Thus, the
evidence presented did not amount to "'evidence of such weight
and quality that fair-minded persons in the exercise of
impartial judgment [could] reasonably infer the existence of
the fact sought to be proved,'" Cheshire, 54 So. 3d at 340
(quoting West v. Founders Life Assurance Co., 547 So. 2d 870,
871 (Ala. 1989)), i.e., that Dr. Diefenderfer was engaged in
her employment by QHG or furthering the hospital's business
interests when she accessed and disclosed Amy's personal
medical information in 2014. See Braggs, 285 Ala. at 401, 232
So. 2d at 642. Accordingly, the trial court erred by denying
QHG's motion for a judgment as a matter of law on Amy's claims
asserting liability on a theory of respondeat superior.
II. Ratification
Both QHG and Amy cite East Alabama Behavioral Medicine,
P.C. v. Chancey, 883 So. 2d 162 (Ala. 2003), in their
respective appellate briefs. In Chancey, we stated the
following concerning ratification:
"In addition to vicarious liability under the
doctrine of respondeat superior, an employer can
28
1181072
also be held liable for the unlawful acts of its
employee if the employer ratifies those acts. Potts
v. BE & K Constr. Co., 604 So. 2d 398, 400 (Ala.
1992). An employer ratifies an act when 1) it
expressly adopts the employee's behavior or 2) it
implicitly approves the behavior. Potts, 604 So. 2d
at 400. Furthermore, '[a]n employer's failure to
stop the tortious conduct after it learns of the
conduct will support an inference that the employer
tolerated the conduct.' Id. Acquiescence or
ratification requires full knowledge or means of
knowledge of all material facts. American Nat'l
Bank & Trust Co. v. Powell, 235 Ala. 236, 245, 178
So. 21, 29 (1937); Van Heuvel v. Roberts, 221 Ala.
83, 87, 127 So. 506, 509 (1930). An employer cannot
be said to have ratified an employee's conduct when
the employer, upon learning of an employee's
conduct, which was not in the scope of the
employee's
employment,
gives
instructions
calculated
to prevent a recurrence. Joyner [v. AAA Cooper
Transp.,] 477 So. 2d [364] at 365 [(Ala. 1985)]
(after an employee's homosexual advances to another
employee were reported to the employer, the employer
conducted
an
investigation
and
informed
the
offending employee that if another complaint of this
nature came to the employer's attention the
offending employee would be laid off and a
full-scale investigation conducted)."
883 So. 2d at 169-70 (emphasis added).
In
Chancey,
a
patient
sought
treatment
from
a
psychologist for depression, anxiety, and panic attacks.
After a therapy session, the patient and the psychologist
expressed romantic feelings for one another over drinks at a
restaurant. A few days later, they terminated the
psychologist-patient relationship.
29
1181072
A few days after the psychologist-patient relationship
was terminated, the psychologist's employer, East Alabama
Behavioral Medicine, P.C. ("East Alabama"), learned of the
patient's infatuation with the psychologist. East Alabama's
administrators confronted the psychologist, and, among other
things, instructed her to end all contact with the patient.
Evidence was also presented indicating that East Alabama's
administrators had instructed the psychologist to alter the
patient's medical records, so as to make it appear as if the
patient had expressed his feelings for the
psychologist during
a therapy session and that the psychologist had instructed the
patient
regarding
the
limits
of
their
therapeutic
relationship.
About three weeks later, the psychologist and the patient
became sexually involved. The patient's wife asked him to
leave the marital home. The psychologist thereafter resigned
her position at East Alabama. After the affair ended, East
Alabama rehired the psychologist, on the condition that she
undergo a psychiatric evaluation and any necessary treatment.
The psychologist was also restricted to treating only female
patients.
30
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The patient and his wife sued the psychologist and East
Alabama, alleging, in pertinent part, "negligent or wanton
counseling; negligent or wanton 'abandonment'; and negligence
or wantonness per se." Chancey, 883 So. 2d at 166. The
patient and his wife settled their claims against the
psychologist, and a jury trial was conducted on their claims
against East Alabama. The jury returned a verdict in favor of
the patient and his wife, awarding them each $1 in
compensatory damages and $495,000 in punitive damages. East
Alabama appealed.
On appeal, the patient and his wife argued, in pertinent
part, that East Alabama had ratified the psychologist's
conduct by ordering that the patient's medical records be
altered and by failing to terminate the psychologist's
employment. This Court held that the trial court had erred by
failing to enter a judgment as a matter of law in favor of
East Alabama, and we reversed the trial court's judgment and
rendered a judgment in favor of East Alabama. In so doing, we
reasoned:
"While the falsification of medical records is
inexcusable, it cannot serve as evidence that East
Alabama ratified [the psychologist]'s subsequent
conduct,
which
was
taken
contrary
to
the
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instructions given [the psychologist] by East
Alabama. When East Alabama allegedly instructed
[the
psychologist]
to
change
[the
patient's]
records, all [East Alabama's administrators] knew
was that [the patient] and [the psychologist] had
met for drinks and that [the psychologist] had
terminated or was in the process of terminating the
psychologist-patient relationship between her and
[the patient]. It is undisputed that when [East
Alabama] learned of [the psychologist]'s social
relationship with [the patient], they instructed her
to end both the professional relationship and the
social relationship. East Alabama had no knowledge
at the time the records were falsified that [the
psychologist] and [the patient] would thereafter
have sexual relations, that [the patient]'s wife
would thereafter ask him to leave their home, and
that [the psychologist] would leave her husband as
a result of her affair with [the patient].
Ratification requires full knowledge of the facts.
American Nat'l [Bank & Trust Co. v. Powell], 235
Ala. [236] at 245, 178 So. [21] at 29 [(1937)]; Van
Heuvel [v. Roberts], 221 Ala. [83] at 87, 127 So.
[506] at 509 [(1930)]. The [patient and his wife]
offered no evidence indicating that East Alabama
failed to stop the subsequent tortious conduct of
[the
psychologist]
after
it
learned
of
the
infatuation. To the contrary, [East Alabama's
administrators] instructed [the psychologist] to end
the relationship. Likewise, no ratification was
shown in Joyner [v. AAA Cooper Transportation, 477
So. 2d 364 (Ala. 1985),] when the employer warned
the employee against repeating the conduct made the
basis of the action. 477 So. 2d at 365. In Joyner,
the record reflected that no subsequent misdeed
occurred, while here, the subsequent misdeeds were
contrary to East Alabama's express instructions."
Chancey, 883 So. 2d at 170 (some emphasis added).
On appeal, Amy argues that Dr. Diefenderfer's creation of
32
1181072
the 2016 report that relied, at least in part, on information
regarding Amy's personal medical information that Dr.
Diefenderfer had learned during her 2014 access of the PDMP is
evidence that QHG's response to Dr. Diefenderfer's actions in
2014 amounted to ratification. As we explained in Chancey,
"[r]atification requires full knowledge of the facts."
Chancey, 883 So. 2d at 170.
Of course, QHG could not have known in 2014 that Dr.
Diefenderfer would create the 2016 report. Indeed, no
evidence was presented indicating that QHG was even aware of
Dr. Diefenderfer's conduct in 2014 until it received notice of
a complaint from OCR in October 2014, because QHG lacked the
ability to restrict Dr. Diefenderfer's access to the PDMP in
that Dr. Diefenderfer's access was derived from her licensure
as a physician; QHG itself possessed no authority to access
the PDMP. Therefore, it is clear that knowledge of the 2016
report cannot be imputed to QHG with regard to its response to
Dr. Diefenderfer's conduct in 2014. See Chancey, 883 So. 2d
at 170.
Regarding QHG's response to Dr. Diefenderfer's 2014
conduct,
the
evidence
presented
indicated
that
QHG
33
1181072
representatives, specifically Ellis and McCurdy, met with Dr.
Diefenderfer after learning of her access and disclosure in
2014 of Amy's personal medical information and discussed the
importance of patient privacy and compliance with the
requirements of HIPAA and explained QHG's commitment to
safeguarding patient privacy. Dr. Diefenderfer agreed with
QHG regarding the importance of HIPAA and patient privacy.
We note the evidence presented demonstrating that McCurdy
was Mortensen's aunt and the evidence presented indicating
that Dr. Diefenderfer believed the hospital "backed her up a
hundred percent." However, we cannot ignore the fact that,
notwithstanding McCurdy's relationship to Mortensen and
whatever personal beliefs Dr. Diefenderfer harbored regarding
the propriety of her conduct after meeting with Ellis and
McCurdy, no evidence was presented indicating that Dr.
Diefenderfer thereafter used the hospital's resources to
access
and
disclose
personal
medical
information pertaining
to
third parties who were not patients of the hospital after her
meeting with Ellis and McCurdy. An employer cannot be said to
have ratified an employee's conduct when, after instruction by
the employer, the employee's conduct stops. See Chancey, 883
34
1181072
So. 2d at 170.
With regard to the 2016 report, Dr. Diefenderfer
testified that she did not again access the PDMP when creating
the 2016 report. As noted above, Dr. Diefenderfer testified
that, when she printed Amy's personal medical information from
the PDMP in 2014, she did so at home. Thus, there is no
indication that Dr. Diefenderfer used the hospital's computer
or other resources in creating the 2016 report at all, much
less with QHG's "implicit[] approv[al]." See Chancey, 883 So.
2d at 170.
Moreover, there is no indication that QHG participated
in, consented to, or condoned Dr. Diefenderfer's creation of
the 2016 report or that the 2016 report had any relation to
her employment with QHG. Dr. Diefenderfer's testimony
indicated that she created the 2016 report because she felt
that it would assist her and Mortensen with the Pertuits'
litigation against them. Indeed, Dr. Diefenderfer testified
that, when she created the 2016 report, she was no longer
employed by QHG but was instead employed by Schumacher Group.14
14We note that, on appeal, Amy appears to concede that QHG
"reliev[ed] itself of any future liabilities with respect to
hospitalists" working at Medical Center Enterprise once the
change involving Schumacher Group was implemented. Amy's
35
1181072
Furthermore, even assuming that Dr. Diefenderfer created
the 2016 report while she was still employed by QHG, it is
undisputed that QHG became aware of the 2016 report only after
the fact. As already stated, "[r]atification requires full
knowledge of the facts." Chancey, 883 So. 2d at 170.
Therefore, there is no basis upon which one could reasonably
infer that QHG "implicitly approve[d]" Dr. Diefenderfer's
creation of the 2016 report when it had no knowledge of its
existence until well after its creation. Chancey, 883 So. 2d
at 170.
In light of the foregoing, we conclude that the evidence
presented did not amount to "evidence of such weight and
quality that fair-minded persons in the exercise of impartial
judgment [could] reasonably infer," West, 547 So. 2d at 871,
that QHG ratified Dr. Diefenderfer's conduct. See Chancey,
883 So. 2d at 170-71. Therefore, the trial court erred by
denying QHG's motion for a judgment as a matter of law on the
issue of ratification. See Chancey, 883 So. 2d at 173.
III.
Negligent
and
Wanton
Training,
Supervision, and
Retention
On appeal, Amy cites no authority discussing her
brief, at 14.
36
1181072
"negligent and wanton training, supervision[,] and retention"
claim as a theory of liability under Alabama law. Among other
authority, QHG cites Armstrong Business Services, Inc. v.
AmSouth Bank, 817 So. 2d 665 (Ala. 2001), for the standard
used in evaluating claims of negligent supervision.15 In
Armstrong, we explained:
"A claim of negligent supervision is stated as
follows:
"'"In the master and servant relationship,
the master is held responsible for his
servant's incompetency when notice or
knowledge, either actual or presumed, of
such unfitness has been brought to him.
Liability
depends
upon
its
being
established by affirmative proof that such
incompetency was actually known by the
master or that, had he exercised due and
proper diligence, he would have learned
that which would charge him in the law with
such knowledge. It is incumbent on the
party charging negligence to show it by
proper evidence. This may be done by
showing specific acts of incompetency and
bringing them home to the knowledge of the
master, or by showing them to be of such
nature, character, and frequency that the
15A plurality of this Court has indicated that there is no
distinction under Alabama law between claims of negligent
supervision and claims of negligent training. See Corvo, ____
So. 3d at ___; and Pritchett v. ICN Med. Alliance, Inc., 938
So. 2d 933, 940 (Ala. 2006). As noted, Amy cites no authority
concerning her claim of "negligent and wanton training,
supervision[,] and retention." Therefore, we need not
consider whether such a distinction exists in this case.
37
1181072
master, in the exercise of due care, must
have had them brought to his notice. While
such specific acts of alleged incompetency
cannot be shown to prove that the servant
was negligent in doing or omitting to do
the act complained of, it is proper, when
repeated
acts
of
carelessness
and
incompetency of a certain character are
shown on the part of the servant to leave
it to the jury whether they would have come
to his knowledge, had he exercised ordinary
care."'
"Big B, Inc. v. Cottingham, 634 So. 2d 999, 1003
(Ala. 1993)(quoting Lane v. Central Bank of Alabama,
N.A., 425 So. 2d 1098, 1100 (Ala. 1983)(quoting
Thompson v. Havard, 285 Ala. 718, 725, 235 So. 2d
853 (1970))). 'Wanton supervision' requires that
the
employer
wantonly
disregard
its
agent's
incompetence ...."
817 So. 2d at 682 (emphasis added). "Like a claim of
respondeat superior, liability under a theory of negligent
supervision is based on
the employment relationship." Hammock
v. Wal-Mart Stores, Inc., 8 So. 3d 939, 942 (Ala.
2008)(holding that a "respondeat superior claim" and a
"negligent-supervision-and-training claim"
were
"intertwined"
for the purposes of a Rule 54(b), Ala. R. Civ. P.,
certification analysis).
In this case, no evidence was presented indicating that
QHG had reason to believe that Dr. Diefenderfer would access
the PDMP to obtain the personal medical information of someone
38
1181072
who was not one of the hospital's patients before she did so
with regard to Amy in 2014. Moreover, although Dr.
Diefenderfer's conduct in 2014 was outside the scope of her
employment with QHG, upon QHG's discovery of her conduct, it
provided instruction regarding the importance of patient
privacy and compliance with the requirements of HIPAA and
explained to
Dr.
Diefenderfer
QHG's
commitment
to
safeguarding
patient privacy. The evidence presented indicated that QHG
had
no
knowledge
of
any
further
instances
of
Dr.
Diefenderfer's access to or disclosure of a third party's
personal medical information until after she created the 2016
report. At that time, however, Dr. Diefenderfer was no longer
an employee of QHG. Moreover, as already explained above,
there was no indication that Dr. Diefenderfer's creation of
the 2016 report was related to her previous employment with
QHG.16
In light of the foregoing, we conclude that the evidence
presented did not amount to "evidence of such weight and
quality that fair-minded persons in the exercise of impartial
16At trial, Dr. Diefenderfer testified that she left her
position at Medical Center Enterprise in September 2018 to
work in a different hospital.
39
1181072
judgment [could] reasonably infer," West, 547 So. 2d at 871,
that QHG negligently supervised Dr. Diefenderfer. See
Armstrong, 817 So. 2d at 682. Therefore, the trial court
erred by denying QHG's motion for a judgment as a matter of
law regarding Amy's claim of "negligent and wanton training,
supervision[,] and retention."
Conclusion
We express no opinion regarding the general viability, as
a matter of Alabama law, of tort claims that seek to
incorporate the privacy provisions of HIPAA. Even assuming
that such tort claims are generally cognizable under Alabama
law, however, the trial court nevertheless erred by denying
QHG's motion for a judgment as a matter of law with respect to
Amy's asserted theories of respondeat superior; ratification;
and negligent and wanton training, supervision, and retention
because there was not substantial evidence indicating that QHG
was liable to Amy as a consequence of Dr. Diefenderfer's
conduct under any of those theories. Because we resolve this
appeal on the foregoing grounds, we pretermit consideration of
the remaining arguments raised by QHG on appeal. Therefore,
we reverse the trial court's judgment awarding Amy $5,000 in
40
1181072
compensatory damages and $295,000 in punitive damages and
render a judgment in favor of QHG.
MOTION TO STRIKE DENIED; REVERSED AND JUDGMENT RENDERED.
Parker, C.J., and Bolin, Shaw, Wise, Sellers, Mendheim,
and Stewart, JJ., concur.
Mitchell, J., recuses himself.
41 | September 25, 2020 |
9b1fe3cb-14ce-45d2-8c86-bd74ebb4d2ec | Ex parte Rodney Alverson. | N/A | 1190804 | 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
September 11, 2020
1190804
Ex parte Rodney Alverson. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Rodney Alverson v. State of Alabama) (Jefferson Circuit Court:
CC-19-2180.60; Criminal Appeals :
CR-19-0234).
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 September 11, 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
17c856f2-5f97-480e-b47b-f2be3c2d8ec6 | Ex parte Paul W. Ball. | N/A | 1190842 | 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
September 25, 2020
1190842
Ex parte Paul W. Ball. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Paul W. Ball v. State of Alabama) (Calhoun Circuit Court:
CC-82-810; Criminal Appeals :
CR-18-0861).
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 September 25, 2020:
Writ Denied. No Opinion. (Special Writing) Mendheim, J. - Shaw, Bryan, and
Mitchell, JJ., concur. Parker, C.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 25th day of September, 2020.
t
i
i
g
Clerk, Supreme Court of Alabama | September 25, 2020 |
0cae7e9b-c121-4dfa-92db-6ee8ff72da98 | Hendrix v. United Healthcare Insurance Company of the River Valley | N/A | 1190107 | Alabama | Alabama Supreme Court | Rel: September 18, 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
SPECIAL TERM, 2020
_________________________
1190107
_________________________
Kathleen Hendrix, as administratrix of the Estate of Kenneth
Morris Hendrix, deceased
v.
United Healthcare Insurance Company of the River Valley
Appeal from Etowah Circuit Court
(CV-17-900732)
SELLERS, Justice.
Kathleen Hendrix ("Hendrix"), as administratrix of the
estate of Kenneth Morris Hendrix, deceased, appeals from a
judgment of the Etowah Circuit Court, dismissing Hendrix's
medical-malpractice wrongful-death claim against United
1190107
Healthcare Insurance Company of the River Valley ("United").
Kenneth, who was covered by a health-insurance policy issued
by United, died after United refused to pay for a course of
medical
treatment
recommended
by
Kenneth's
treating
physician.
The trial court determined that Hendrix's claim is preempted
by the Employee Retirement Income Security Act of 1974, 29
U.S.C. § 1001 et seq. ("ERISA"), because the claim "relate[s]
to"
the
ERISA-governed employee-benefit plan
pursuant
to
which
United had issued Kenneth's health-insurance policy. See 29
U.S.C. § 1144(a) ("Except as provided in subsection (b) of
this section, the provisions of this subchapter and
subchapter
III shall supersede any and all State laws insofar as they may
now or hereafter relate to any employee benefit plan ....").
We affirm the trial court's judgment.
Introduction
ERISA governs "voluntarily established health
and
pension
plans in private industry." Kennedy v. Lilly Extended
Disability Plan, 856 F.3d 1136, 1138 (7th Cir. 2017). It
"comprehensively regulates, among other things, employee
welfare benefit plans that, 'through the purchase of
insurance
or otherwise,' provide medical, surgical, or hospital care, or
2
1190107
benefits in the event of sickness, accident, disability, or
death. § 3(1), 29 U.S.C. § 1002(1)." Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 44 (1987).
ERISA's express preemption provision, § 514(a), 29 U.S.C.
§ 1144(a), provides that ERISA "shall supersede any and all
State laws insofar as they may now or hereafter relate to any
employee benefit plan." State law that may be preempted
because it relates to an ERISA employee-benefit plan "includes
all laws, decisions, rules, regulations, or other State action
having the effect of law." 29 U.S.C. § 1144(c)(1). This
includes civil causes of action brought pursuant to state law.
Aldridge v. DaimlerChrysler Corp., 809 So. 2d 785, 792 (Ala.
2001) ("ERISA's express preemption provision ... 'defeats
claims that seek relief under state-law causes of action that
"relate to" an ERISA plan.'" (quoting Butero v. Royal
Maccabees Life Ins. Co., 174 F.3d 1207, 1215 (11th Cir.
1999))); Seafarers' Welfare Plan v. Dixon, 512 So. 2d 23 (Ala.
1987) (holding that causes of action alleging breach of
contract and bad-faith failure to pay insurance benefits were
preempted by ERISA). Thus, if Hendrix's cause of action
3
1190107
against United "relate[s] to" an ERISA-governed plan, it is
preempted under § 514(a).1
In October 2015, Kenneth was injured in an automobile
accident. He was admitted to Gadsden Regional Medical Center
for treatment. Approximately one week later, a physician
treating Kenneth at the hospital ordered that he be admitted
to an inpatient-rehabilitation facility. The complaint
indicates that Kenneth accepted his treating physician's
recommendation and that Kenneth "desired that [he] be
admitted
to such an inpatient facility." The complaint also indicates,
and Hendrix concedes, that the United health-insurance policy
covering Kenneth was issued as part of an ERISA-governed
employee-benefit plan administered by United ("the health-
benefit plan").
According to the complaint, after Kenneth's treating
physician
ordered
inpatient
rehabilitation,
representatives
of
the hospital and a rehabilitation facility "all contacted
[United] numerous times in an attempt to get [Kenneth]
admitted to an inpatient facility." Hendrix asserts that
1Preemption under § 514(a) is referred to herein as
"defensive" preemption. There is a distinction between the
concept of defensive preemption and "complete" preemption,
which is discussed later in this opinion.
4
1190107
United then "imposed itself as [Kenneth's] health care
provider, took control of [Kenneth's] medical care, and made
a medical treatment decision that [Kenneth] should not
receive
further treatment, rehabilitation, and care at an inpatient
facility." Hendrix asserted in the complaint that, instead,
United "made the medical treatment decision that [Kenneth]
should be discharged to his home ... and receive a lower
quality of care (i.e., home health care) than had been ordered
by [his] physicians, therapists, and nurses." Because United
rejected Kenneth's request for inpatient rehabilitation,
Kenneth was sent home. Kenneth died on October 25, 2015, due
to a pulmonary thromboembolism, which, the complaint asserts,
would not have occurred had United approved inpatient
rehabilitation.
Alleging wrongful death under § 6-5-410, Ala. Code 1975,
Hendrix sued the estate of the other driver involved in the
automobile accident, that driver's employer, the owner of the
other vehicle involved in the accident, and United.2 In
support of her claim against United, Hendrix alleged medical
2Hendrix also sued Kenneth's own automobile insurer
seeking uninsured/underinsured-motorist benefits.
5
1190107
malpractice under § 6-5-480 et seq., Ala. Code 1975, and § 6-
5-540 et seq., Ala. Code 1975. Hendrix alleged that United
"voluntarily assumed one or more of the following
duties, jointly or in the alternative; (1) a duty to
act with reasonable care in determining the quality
of health care that [Kenneth] would receive; (2) a
duty to not provide to [Kenneth] a quality of health
care so low that it knew that [Kenneth] was likely
to be injured or killed; and/or (3) a duty to
exercise such reasonable care, skill, and diligence
as other similarly situated health care providers in
the same general line of practice ordinarily have
and exercise in a like case."
Hendrix alleged further that United
"negligently and wantonly breached the standard of
care
that
applied
to
[United's]
voluntarily
undertaken duties in one or more of the following
respects: (a) by providing healthcare for [Kenneth]
that fell beneath the standard of care; (b) by
making the medical treatment decision and mandating
that [Kenneth] not receive further treatment,
rehabilitation, and care at an inpatient facility
following his discharge from [the hospital]; (c) by
violating a physician's orders which required that
[Kenneth]
receive
further
treatment,
rehabilitation,
and care at an inpatient facility following his
discharge from [the hospital]; (d) by interfering
with [Kenneth's] medical care and preventing him
from receiving further treatment, rehabilitation,
and care at an inpatient facility following his
discharge from [the hospital]."
Although somewhat vague, the complaint demonstrates that,
based on the recommendation of his treating physician at
Gadsden Regional Medical Center, Kenneth wanted to
be
admitted
6
1190107
to an inpatient-rehabilitation facility, that his medical
providers requested United pay for that course of treatment
pursuant to an insurance policy that is part of an ERISA-
governed plan, that United denied that request, and that
Kenneth was unable to participate in inpatient rehabilitation
because United refused to pay for it.3
United removed Hendrix's action to the United States
District Court for the Northern District of Alabama. In its
notice of removal, United asserted that federal-question
jurisdiction existed under 28 U.S.C. § 1331 because, United
contended, Hendrix's claim against United should be
treated as
3We note that Kenneth's health-insurance policy, which is
referenced in Hendrix's complaint and was submitted to the
trial court along with United's motion to dismiss, provides
that United will pay for "a service, treatment, supply,
device, or item, Hospital, medical or otherwise, which is
medically necessary" as
determined by United. A determination
whether a recommended course of treatment is medically
necessary includes an analysis of whether the treatment "is
consistent with generally accepted principles of medical
practice" and is "cost-effective." Hendrix's complaint
alleges that United made "the medical treatment decision" that
Kenneth should not be treated in an inpatient-rehabilitation
facility. The complaint, however, does not allege that United
determined that inpatient rehabilitation was not medically
necessary and therefore not covered by the insurance policy.
What is clear from the complaint, however, is that United
denied the request made by Kenneth's treating physician for
benefits under the United insurance policy and that Kenneth
did not go to inpatient rehabilitation because United refused
to pay for it.
7
1190107
one seeking relief under the civil-enforcement provisions of
ERISA and was therefore completely preempted by ERISA.
See ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B)
(authorizing an ERISA plan participant or beneficiary to
bring
a civil action "to recover benefits due to him under the terms
of his plan, to enforce his rights under the terms of the
plan, or to clarify his rights to future benefits under the
terms of the plan"); Garrison v. Northeast Georgia Med. Ctr.,
Inc., 66 F. Supp. 2d 1336, 1340 (N.D. Ga. 1999) ("[C]laims
seeking relief available from section 502(a), ERISA's civil
enforcement provision, 29 U.S.C. § 1132, are completely
preempted, and removal jurisdiction exists.").
In Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), the
United States Supreme Court reiterated that the civil-
enforcement provisions set out in § 502(a) of ERISA have
complete preemptive effect and that state-law causes of
action
that fit within the scope of those enforcement provisions are
to be treated as federal claims that can removed to federal
court. According to the Court in Davila:
"[I]f an individual brings suit complaining of a
denial of coverage for medical care, where the
individual is entitled to such coverage only because
of the terms of an ERISA-regulated employee benefit
8
1190107
plan, and where no legal duty (state or federal)
independent of ERISA or the plan terms is violated,
then the suit falls 'within the scope of' ERISA §
502(a)(1)(B). Metropolitan Life [Ins. Co. v. Taylor,
481 U.S. 58, 66 (1987)]. In other words, if an
individual, at some point in time, could have
brought his claim under ERISA § 502(a)(1)(B), and
where there is no other independent legal duty that
is implicated by a defendant's actions, then the
individual's
cause
of
action
is
completely
pre-empted by ERISA § 502(a)(1)(B)."
542 U.S. at 210. The federal district court in the present
case noted that Alabama's wrongful-death statute creates a
"new right" that arises after the decedent's death and allows
for the recovery of only punitive damages. According to the
district court, "[b]ecause the wrongful-death claim vests in
the decedent's personal representative as a new right and does
not compensate for an injury to the ERISA beneficiary, but
instead provides punitive damages for next of kin," Hendrix
could not have brought her wrongful-death claim under ERISA §
502(a), her claim should not be treated as one seeking ERISA
benefits, complete preemption does not exist, and the cause
had to be remanded to state court.
After remand, United moved the trial court to dismiss
Hendrix's claim based on defensive preemption under ERISA's
express preemption provision, § 514(a). As noted, § 514(a)
9
1190107
provides that ERISA "shall supersede any and all State laws
insofar as they may now or hereafter relate to any employee
benefit plan." 29 U.S.C. § 1144(a) (emphasis added).
According to United, Hendrix's medical-malpractice wrongful-
death claim "relate[s] to" the ERISA-governed health-benefit
plan and is therefore defensively preempted. The trial court
agreed, granted United's motion to dismiss, and certified its
judgment as final under Rule 54(b), Ala. R. Civ. P. Hendrix
appealed.4
Standard of Review
The parties agree that the appropriate standard of review
in this case is the standard applicable to the granting of a
motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P. We
review such dismissals de novo. Little v. Robinson, 72 So. 3d
1168, 1171 (Ala. 2011). In reviewing the dismissal of a cause
of action based on an affirmative defense, we must decide
whether the existence of that defense is clear from the face
of the plaintiff's complaint. Limon v. Sandlin, 200 So. 3d
21, 24 (Ala. 2015). We must accept as true all the factual
4United's motion to dismiss was based solely on defensive
preemption under ERISA § 514(a).
10
1190107
allegations set out in the complaint. Ex parte Liberty Nat'l
Life Ins. Co., 209 So. 3d 486, 494 (Ala. 2016).
Hendrix points out that both she and United submitted
evidentiary materials in support of, and in opposition to,
United's motion to dismiss. She also points out that Rule
12(b) provides that, if, on a motion asserting Rule 12(b)(6)
as a defense, "matters outside the pleading [sought to be
dismissed] 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[, Ala. R. Civ. P.]." She
asserts that the trial court "should have converted" United's
motion into a summary-judgment motion and allowed her to
conduct discovery pursuant to Rule 56(f), Ala. R. Civ. P.,
which provides:
"Should it appear from the affidavits of a party
opposing the motion [for a summary judgment] that
the party cannot, for reasons stated, present by
affidavit facts essential to justify the party's
opposition, the court may deny the motion for
summary judgment or may order a continuance to
permit affidavits to be obtained or depositions to
be taken or discovery to be had or may make such
other order as is just."
In her opening brief to this Court, Hendrix ignores the
fact that the trial court expressly refused to consider many
11
1190107
of the materials that had been submitted. Rather, the trial
court stated that it had considered only documents evidencing
Kenneth's insurance coverage submitted by United, which
included an insurance application, a certificate of coverage,
and a "Large Employer Group Health Contract." The trial
court expressly stated in its dismissal order that any
consideration it gave the insurance documents did not convert
United's motion to dismiss into a summary-judgment motion
because Hendrix's complaint referenced "United's management
and administration of [Kenneth's] claims for coverage under
the [health-benefit plan]." The trial court pointed to
Donoghue v. American National Insurance Co., 838 So. 2d 1032,
1035 (Ala. 2002), in which this Court embraced "the
well-founded rule ... precluding conversion [of a motion to
dismiss to a summary-judgment motion] when the exhibits in
question are referred to in, and are central to, the
plaintiff's complaint."
Before the trial court ruled on United's motion to
dismiss, Hendrix and United took opposing positions as to
whether the motion should be treated as a summary-judgment
motion, and Hendrix specifically argued that the rule adopted
12
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in Donoghue did not apply. In her opening brief on appeal,
however, Hendrix ignores the trial court's reliance on
Donoghue and its reasoning regarding the reference in the
complaint to Kenneth's request for benefits under the health-
benefit plan. She addresses those matters in her reply brief,
arguing that the insurance documents are not "central" to her
claim, but this Court typically will not consider arguments
made for the first time in a reply brief. Melton v. Harbor
Pointe, LLC, 57 So. 3d 695, 696 n.1 (Ala. 2010). In any
event, Hendrix's complaint demonstrates that the relationship
between Kenneth and United created by the insurance documents
is what prompted United's actions that, Hendrix claims,
ultimately resulted in a voluntarily assumed duty to provide
medical care. Without the existence of those documents and
that relationship, United would have played no role at all in
Kenneth's care and could not have been remotely subject to a
claim of medical malpractice. Based on the arguments before
us, we cannot say that Hendrix has demonstrated that the trial
court erred in concluding that the insurance documents are
central to her claim.5
5Moreover, this Court can determine from Hendrix's
complaint
alone,
without
reference to
the
insurance
documents,
13
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Discussion
As noted, the federal district court rejected United's
assertion that Hendrix's claim against United is completely
preempted by ERISA. In a 2009 opinion, the United States
Court of Appeals for the Eleventh Circuit discussed the
distinction
between
complete
preemption
and
defensive
preemption and noted that a federal court's decision that a
plaintiff's
state-law claims
are
not
completely
preempted
does
not settle the question whether those claims are defensively
preempted:
"[Defensive preemption under ERISA] is a
substantive defense to preempted state law claims.
Jones v. LMR Int'l, Inc., 457 F.3d 1174, 1179 (11th
Cir. 2006). This type of preemption arises from
ERISA's express preemption provision, § 514(a),
which preempts any state law claim that 'relates to'
an ERISA plan. 29 U.S.C. § 1144(a). ...
"Complete preemption, also known as super
preemption, is a judicially-recognized exception to
the well-pleaded complaint rule. It differs from
defensive preemption because it is jurisdictional in
nature rather than an affirmative defense. Jones,
457 F.3d at 1179 (citing Ervast [v. Flexible Prods.
Co., 346 F.3d 1007, 1014 (11th Cir. 2003)]).
Complete preemption under ERISA derives from ERISA's
civil enforcement provision, § 502(a), which has
such 'extraordinary' preemptive power that it
'converts an ordinary state common law complaint
that her claim against United "relate[s] to" the health-
benefit plan.
14
1190107
into one stating a federal claim for purposes of the
well-pleaded complaint rule.' [Metropolitan Life
Ins. Co. v. Taylor, 481 U.S. 58, 65-66 (1987)].
Consequently, any 'cause[] of action within the
scope of the civil enforcement provisions of §
502(a) [is] removable to federal court.' Id. at 66.
"Although related, complete and defensive
preemption are not coextensive:
"'Complete preemption is [] narrower than
"defensive"
ERISA
preemption,
which
broadly
"supersede[s] any and all State laws
insofar as they ... relate to any [ERISA]
plan." ERISA § 514(a), 29 U.S.C. § 1144(a)
(emphasis added). Therefore, a state-law
claim may be defensively preempted under §
514(a) but not completely preempted under
§ 502(a). In such a case, the defendant may
assert preemption
as a defense,
but
preemption will not provide a basis for
removal to federal court.'
"Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267,
1281 (11th Cir. 2005); accord Ervast, 346 F.3d at
1012 n. 6 ('Super preemption is distinguished from
defensive
preemption,
which
provides
only
an
affirmative defense to state law claims and is not
a basis for removal.')."
Connecticut State Dental Ass'n v. Anthem Health Plans, Inc.,
591 F.3d 1337, 1344 (11th Cir. 2009). See also Evans v.
Infirmary Health Servs., Inc., 634 F. Supp. 2d 1276, 1292
(S.D. Ala. 2009) ("This Court's holding that plaintiff's
claims are not completely preempted by ERISA resolves the
jurisdictional question, but is not and cannot be dispositive
15
1190107
of [the defendant's] affirmative defense of defensive
preemption.").
Thus, the federal district court's decision in
this case that United was unable to establish complete
preemption in no way forecloses United from relying on
defensive preemption under § 514(a).6
The preemption language used in § 514(a) is "deliberately
expansive." Pilot Life Ins. Co., 481 U.S. at 46. It is aimed
at "'eliminating the threat of conflicting or inconsistent
State and local regulation of employee benefit plans.'" Id.
at 46 (quoting 120 Cong. Rec. 29197 (1974)). See also
Egelhoff v. Egelhoff, 532 U.S. 141, 148 (2001) (stating that
a "principal goal[] of ERISA" was "to enable employers 'to
establish a uniform administrative scheme, which provides a
set of standard procedures to guide processing of claims and
disbursement
of
benefits'"
and that
"[u]niformity
is
impossible ... if plans are subject to different legal
obligations
in
different
States"
(quoting
Fort
Halifax
Packing
Co. v. Coyne, 482 U.S. 1, 9 (1987))); Kuhl v. Lincoln Nat'l
6The parties have framed the primary issue before this
Court as whether Hendrix's claim "relates to" an ERISA benefit
plan and is therefore defensively preempted. We have not been
asked to express an opinion as to the federal district court's
conclusion that Hendrix's claim is not completely preempted.
16
1190107
Health Plan of Kansas City, Inc., 999 F.2d 298, 301 (8th Cir.
1993)
("Consistent
with
the
decision
to
create
a
comprehensive, uniform federal scheme for regulation of
employee benefit plans, Congress drafted ERISA's preemption
clause in broad terms.").
A state law relates to a benefit plan "if it has a
connection with or reference to such a plan." Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 97 (1983). A state law has an
impermissible connection to an ERISA plan if it "'governs ...
a central matter of plan administration' or 'interferes with
nationally
uniform
plan
administration.'"
Gobeille
v.
Liberty
Mut. Ins. Co., ___ U.S. ___, ___, 136 S. Ct. 936, 943 (2016)
(quoting Egelhoff, 532 U.S. at 148). "'[A] state law may
"relate to" a benefit plan, and thereby be preempted, even if
the law is not specifically designed to affect such plans, or
the effect is only indirect.'" Weems v. Jefferson-Pilot Life
Ins. Co., 663 So. 2d 905, 908 (Ala. 1995) (quoting
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139 (1990),
quoting in turn Pilot Life Ins. Co., 481 U.S. at 47).
In Pilot Life Insurance Co., the plaintiff, who had
suffered a back injury at work and had received disability-
17
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insurance benefits for two years under an ERISA benefit plan,
sued the disability insurer after it terminated his benefits.
The plaintiff asserted causes of action alleging tortious
breach of contract, breach of fiduciary duty, and fraud in the
inducement. 481 U.S. at 43. He sought an unspecified amount
of damages "'for failure to provide benefits under the
insurance policy,'" damages for emotional distress, "'other
incidental damages,'" and punitive damages. Id. Emphasizing
the expansive sweep of § 514(a), the United States Supreme
Court held that the plaintiff's claims related to an ERISA
plan and were therefore preempted. In so holding, the Court
stated that "[t]he common law causes of action raised in [the
plaintiff's] complaint, each based on alleged improper
processing of a claim for benefits under an employee benefit
plan, undoubtedly meet the criteria for pre-emption under §
514(a)." Id. at 48. See also HealthAmerica v. Menton, 551
So. 2d 235, 239 (Ala. 1989) (describing Pilot Life Insurance
Co. and stating that "claims seeking damages for improperly
processing ... claims for benefits under an ERISA-regulated
plan" are preempted).
18
1190107
In Davila, the plaintiffs alleged facially state-law
causes of action against the administrators of ERISA-governed
benefit plans after those administrators refused to pay for
treatments that had been recommended by the plaintiffs'
treating physicians. The plaintiffs' claims were brought
under a Texas statute that imposed a duty on health-insurance
carriers,
health-maintenance
organizations,
and
other
managed-
care entities to exercise ordinary care when making health-
care-treatment decisions. According to the plaintiffs, the
administrators' "refusal to cover the requested services
violated their 'duty to exercise ordinary care when making
health care treatment decisions.'" 542 U.S. at 205. The
plaintiffs claimed
they
had
suffered
physical
injuries
because
they were unable to obtain the treatments that had been
recommended by their treating physicians. Similar to
Hendrix's claim in the present case, the plaintiffs in Davila
asserted that the administrators "'controlled, influenced,
participated in and made decisions which affected the quality
of the diagnosis, care, and treatment provided'" the
plaintiffs. 542 U.S. at 212. The United States Supreme Court
held that the plaintiffs' claims were completely preempted
19
1190107
because they were aimed at remedying the denial of benefits
under ERISA plans and fell within the scope of ERISA's civil-
enforcement provisions. Although Davila was a complete
preemption case, it is still helpful in considering whether
Hendrix's claim in the present case "relate[s] to" the health-
benefit plan. Indeed, the Supreme Court considered an
argument made by the plaintiffs in Davila that their claims
did not "relate to" the ERISA plan involved in that case
because, they argued, the ERISA plan administrators had
exercised judgment regarding proper medical care. In
addressing that argument, the Court noted that benefit
determinations under ERISA-regulated plans are "part and
parcel
of
the
ordinary
fiduciary
responsibilities connected
to
the administration of a plan," even if those determinations
are "infused with medical judgments." 542 U.S. at 219. Thus,
the fact that an ERISA plan administrator makes medical
judgments in considering a claim for benefits does not mean
that the administrator has stepped outside its role as an
administrator for purposes of preemption under ERISA.
In Kuhl, supra, Buddy Kuhl, a beneficiary of an ERISA-
governed health plan established by his employer, suffered a
20
1190107
heart attack. His treating physician concluded that he needed
heart surgery and that the surgery should be performed at a
hospital in St. Louis, Missouri. After the surgery was
scheduled,
the
health-maintenance
organization
("HMO")
responsible for considering and paying claims under the
health
plan refused to pre-certify payment for the surgery because
the hospital where the surgery was to be performed was outside
the HMO's coverage area. Later, the HMO determined that it
would indeed pay for the surgery, but, by that time, Kuhl's
condition had deteriorated to the point that the surgery was
not a viable option. Kuhl died while waiting for a heart
transplant. His family members sued the HMO, alleging medical
malpractice, tortious interference with Kuhl's right to
contract for medical care, and breach of the contract between
Kuhl's employer and the HMO. The trial court entered a
summary judgment for the HMO, concluding that the state-law
claims were preempted under § 514(a) of ERISA. On appeal, the
United States Court of Appeals for the Eighth Circuit affirmed
the summary judgment, stating:
"We have no difficulty in concluding that the
Kuhls' three state law claims that rely on Buddy
Kuhl's status as a beneficiary of the [ERISA plan]
are preempted by ERISA. The Kuhls' claims are all
21
1190107
based on [the HMO's] alleged misconduct in delaying
Buddy Kuhl's heart surgery in St. Louis. The Kuhls
contend that [the HMO] tortiously interfered with
the contractual relationship between Buddy Kuhl and
his doctors, that [the HMO] committed medical
malpractice because it assumed the role of Buddy
Kuhl's physician by making decisions about proper
medical treatment and made decisions that constitute
medical malpractice, and that [the HMO] breached its
contract with [Kuhl's employer], to which Buddy Kuhl
was a third-party beneficiary, by delaying the
surgery in St. Louis. The district court found that
all of these state law claims arise from the
administration of benefits under the [ERISA plan]
and are therefore preempted by ERISA. We agree."
999 F.2d at 302. The court continued:
"[The HMO] became involved in the cancellation of
the St. Louis surgery only after the [St. Louis
hospital] staff requested a precertification review.
[The HMO's] admission that it 'cancelled' the
surgery cannot be stretched to imply that [the HMO]
went beyond the administration of benefits and
undertook to provide Buddy Kuhl with medical advice.
Although the surgery in St. Louis was unquestionably
cancelled as a result of [the HMO's] decision not to
precertify payment, the decision not to precertify
payment
relates
directly
to
[the
HMO's]
administration of benefits."
999 F.2d at 303.
Hendrix's complaint avers that Kenneth's treating
physician at Gadsden Regional Medical Center determined that
Kenneth needed inpatient rehabilitation and that Kenneth
accepted his doctor's advice. The complaint also avers that,
at all relevant times, "[Kenneth] had health insurance
22
1190107
coverage that was provided and administered by [United]." The
complaint then asserts that "Gadsden Regional Medical Center
personnel [and representatives of an inpatient-rehabilitation
facility] all contacted [United] numerous times in an attempt
to get [Kenneth] admitted to an inpatient facility." The
complaint avers that United refused to authorize inpatient
rehabilitation based on a "medical treatment decision."
It is clear from Hendrix's allegations that the health-
care providers who were actually treating Kenneth contacted
United because United was the administrator of the ERISA-
regulated
health-benefit
plan,
that
those
health-care
providers asked United to approve a request for benefits under
that plan, and that Kenneth allegedly died because United
denied all requests for benefits. Under the wrongful-death
statute, Hendrix seeks to punish United for a death that
allegedly resulted because of a denial of benefits. Thus, as
United puts it in its brief to this Court, Hendrix's claim
"is, at bottom, '[b]ased on the alleged improper processing of
a claim for benefits'" and, if allowed to proceed, would
"'interfere[] with nationally uniform plan administration.'"
(Quoting Pilot Life, 481 U.S. at 47-48, and Egelhoff, 532
23
1190107
U.S. at 150.) Any "medical treatment decision" made by United
was made in its role as the administrator of the health-
benefit plan, not as a health-care provider. The fact that a
medical judgment is made in the course of denying a request
for benefits does not mean that a cause of action seeking
recovery for an injury or death resulting from that denial
does not "relate to" the relevant ERISA benefit plan. 7
Additional opinions from other jurisdictions, which we
find persuasive, are consistent with our conclusion in this
case. See Garrison v. Northeast Georgia Med. Ctr., Inc., 66
F. Supp. 2d at 1345 (holding that state-law medical-
7Hendrix suggests throughout her brief that her claim
against United is not defensively preempted because it seeks
to recover punitive damages for wrongful death, not for the
value of benefits under an ERISA plan. But she misses the
point, since preemption merely requires that her
claim "relate
to" such a plan. Hendrix seeks damages based on a death that
allegedly resulted because United denied a request for
benefits under an ERISA-governed plan. Her claim relates to
that plan regardless of the fact that she seeks only punitive
damages for wrongful death. Moreover, the Court simply cannot
accept Hendrix's suggestion that her claim is not preempted
because, she says, ERISA would not provide a remedy for
Kenneth's death. As other courts have recognized, the lack of
a remedy sometimes is an unfortunate consequence of ERISA and
its preemption of state law. See, e.g., Tolton v. American
Biodyne, Inc., 48 F.3d 937, 943 (6th Cir. 1995) ("One
consequence of ERISA preemption, therefore, is that plan
beneficiaries or participants bringing certain types of state
actions –- such as wrongful death –- may be left without a
meaningful remedy.").
24
1190107
malpractice action alleging that administrator of an ERISA
plan made a "medical decision" to deny a beneficiary's request
for a particular medical procedure related to an ERISA plan
under § 514(a)); Bast v. Prudential Ins. Co., 150 F.3d 1003
(9th Cir. 1998) (holding that state-law cause of action
alleging that ERISA plan beneficiary died because the plan
administrator delayed approval of a recommended course of
treatment
based
on
the
administrator's initial
conclusion
that
the treatment was "investigational and/or experimental" was
preempted under § 514(a)); Spain v. Aetna Life Ins. Co., 11
F.3d 129 (9th Cir. 1993) (holding that state-law cause of
action against the administrator of an ERISA-regulated plan
that improperly withdrew authorization for a particular
medical procedure, causing plan beneficiary's death, related
to the ERISA plan).
Hendrix points to a pre-Davila case, Pegram v. Herdrich,
530 U.S. 211 (2000), in support of her medical-treatment-
decision argument. In Pegram, the plaintiff sued her
physician-owned-and-operated HMO, which provided medical
coverage pursuant to an ERISA-regulated benefit plan, after
the plaintiff's doctor, Dr. Lori Pegram, decided not to order
25
1190107
an immediate ultrasound at a local medical facility when she
discovered an inflamed mass in the plaintiff's abdomen.
Instead, Dr. Pegram ordered that the ultrasound take place
several days later at a different facility staffed by the
HMO's physicians. The plaintiff claimed that Dr. Pegram's
delay caused her to suffer a ruptured appendix. The defendant
HMO was owned and operated by a group of doctors that included
Dr. Pegram. In other words, one of the HMO's physicians was
the plaintiff's treating physician.
Against the HMO, the plaintiff asserted an ERISA breach-
of-fiduciary-duty claim under 29 U.S.C. § 1109, which allows
for such a claim against "[a]ny person who is a fiduciary with
respect to a plan." The United States Supreme Court, however,
held that the HMO was not an ERISA fiduciary because it had,
through Dr. Pegram, made a "mixed" decision involving both
eligibility under the ERISA plan and the proper course of
medical treatment for the plaintiff. According to the Court,
"Congress did not intend [an] HMO to be treated as a fiduciary
to the extent that it makes mixed eligibility decisions acting
through its physicians." 530 U.S. at 231.
26
1190107
Pegram focused on whether a plaintiff could maintain an
ERISA fiduciary claim under 29 U.S.C. § 1109. It did not
involve preemption. Some courts, however, relied on its
reasoning in concluding that state-law claims arising from
mixed eligibility and treatment decisions are not preempted.
For example, in Land v. CIGNA Healthcare of Florida, 339 F.3d
1286 (11th Cir. 2003), the plaintiff commenced a medical-
malpractice claim under state law against the
administrator of
his ERISA-governed benefit plan after a nurse working for that
administrator refused to approve an extended hospital stay
that had been recommended by the plaintiff's treating
physicians, which the plaintiff claimed resulted in the
eventual amputation of one of his fingers. Pointing to
Pegram, the United States Court of Appeals for the Eleventh
Circuit held that the malpractice claim was not completely
preempted by ERISA because the nurse had made a "mixed
eligibility and treatment decision." 339 F.3d at 1292.
However, in Davila, which was decided after Pegram and Land,
the United States Supreme Court stated the
following regarding
the holding in Pegram:
"Since [ERISA plan] administrators making
benefits determinations, even determinations based
27
1190107
extensively on medical judgments, are ordinarily
acting as plan fiduciaries, it was essential to
Pegram's conclusion that the decisions challenged
there were truly 'mixed eligibility and treatment
decisions,' 530 U.S., at 229, i.e., medical
necessity decisions made by the plaintiff's treating
physician qua treating physician and qua benefits
administrator. Put another way, the reasoning of
Pegram 'only make[s] sense where the underlying
negligence
also
plausibly
constitutes
medical
maltreatment by a party who can be deemed to be a
treating physician or such a physician's employer.'
Cicio [v. Does, 339 F.3d 83, 109 (2d Cir. 2003)]
(Calabresi, J., dissenting in part). Here, however,
petitioners
are
neither
respondents'
treating
physicians
nor
the
employers
of
respondents'
treating
physicians.
Petitioners'
coverage
decisions, then, are pure eligibility decisions, and
Pegram is not implicated."
542 U.S. at 220–21. The Eleventh Circuit Court of Appeals'
opinion in Land was vacated by the United States Supreme Court
based on Davila, and the Eleventh Circuit eventually held that
the plaintiff's claims in Land indeed were preempted. See
Land v. CIGNA Healthcare of Florida, 381 F.3d 1274 (11th Cir.
2004).
There are no facts alleged in the complaint in the
present
case
supporting
Hendrix's
conclusory assertion that
an
agent of United voluntarily undertook a duty to act as
Kenneth's treating physician by taking "control" of Kenneth's
treatment or that United made the sort of "mixed eligibility
28
1190107
and treatment" decision the HMO made in Pegram. The complaint
makes clear that Kenneth's treating physician at the hospital
recommended inpatient rehabilitation and that he applied for
benefits from United to pay for that treatment, but United
denied that request.8
Conclusion
Hendrix's claim relates to an ERISA-governed benefit
plan. Thus, it is preempted under § 514(a) of ERISA.
Accordingly, we affirm the trial court's judgment. 9
8Other authority from this Court and the United States
Supreme Court, upon which Hendrix relies, did not involve
preemption of state-law causes of action seeking judgments for
injury or death that resulted because of the denial of ERISA
benefits. For example, HealthAmerica v. Menton, 551 So. 2d
235 (Ala. 1989), and Ingram v. American Chambers Life
Insurance Co., 643 So. 2d 575 (Ala. 1994), involved claims
alleging that the plaintiffs were fraudulently induced to
purchase ERISA-governed insurance policies. New York State
Conference of Blue Cross & Blue Shield Plans v. Travelers
Insurance Co., 514 U.S. 645 (1995), involved whether ERISA
preempted a state statute imposing a surcharge on hospital
patients who had insurance coverage provided by an insurer
other than Blue Cross/Blue Shield.
9Hendrix relies on opinions that, she says, demonstrate
the existence of a presumption against ERISA preemption of
state-law causes of action. For its part, United points to
the 2016 opinion of the United States Supreme Court in Puerto
Rico v. Franklin California Tax-Free Trust, ___ U.S. ___, 136
S.Ct. 1938 (2016), for the proposition that the Court rejected
any presumption against preemption when dealing with express
preemption provisions. Hendrix responds that Puerto Rico
involved an express preemption provision in a bankruptcy
29
1190107
AFFIRMED.
Bolin and Mendheim, JJ., concur.
Shaw and Bryan, JJ., concur in the result.
Parker, C.J., and Wise and Stewart, JJ., dissent.
Mitchell, J., recuses himself.
statute, not ERISA. We note that other courts have refused to
limit the Puerto Rico holding on that issue to cases involving
bankruptcy law. See Dialysis Newco, Inc. v. Community Health
Sys. Grp. Health Plan, 938 F.3d 246, 258 (5th Cir. 2019)
(applying Puerto Rico's rejection of a presumption against
preemption to ERISA and noting that other courts have not
limited Puerto Rico to bankruptcy cases). In any event,
assuming there is a presumption against preemption under §
514(a) of ERISA, the trial court did not err in concluding
that United has overcome it. We have no doubt that Hendrix's
claim against United "relate[s] to" an ERISA plan within the
meaning of § 514(a).
30
1190107
SHAW, Justice (concurring in the result).
I concur in the result. I am not convinced that the
preemption provided by 29 U.S.C. § 1144(a) bars a wrongful-
death action in circumstances where an insurance company,
allegedly acting to administer a health-benefit plan, in fact
assumes medical care of its insured and by that action causes
the death of the insured. However, after reviewing the
particular complaint at issue in this case, I am not persuaded
that, for the purpose of reviewing the trial court's entry of
a dismissal under the applicable Rule 12(b)(6), Ala. R. Civ.
P., standard of review, such preemption can be avoided.
Bryan, J., concurs.
31
1190107
PARKER, Chief Justice (dissenting).
I believe the plurality opinion strays from the language
of ERISA.10 The crux of that opinion is that "Hendrix's claim
relates to an ERISA-governed benefit plan" and therefore "is
preempted under [§ 1144(a)] of ERISA." But a closer
examination of the text of 29 U.S.C. § 1144 makes that
conclusion far from obvious. That text provides that specific
ERISA enforcement provisions supersede certain state laws.
Thus, any conclusion that ERISA preempts a state-law claim,
without reference to those provisions, is problematic. And it
is not at all apparent to me that the enforcement scheme
embodied in those provisions supplants an Alabama wrongful-
death claim against an ERISA administrator.
Defensive preemption is a product of 29 U.S.C. § 1144(a):
"[T]he provisions of ... subchapter [I] and subchapter III [of
ERISA] shall supersede any and all State laws insofar as they
... relate to any [ERISA-governed] employee benefit plan ...."
Section 1132, ERISA's civil-enforcement provision located in
subchapter I, creates rights of action in plan beneficiaries
and participants, the Secretary of Labor, plan fiduciaries,
10The Employee Retirement Income Security Act of 1974, 29
U.S.C. § 1001 et seq.
32
1190107
and employers. 29 U.S.C. § 1132(a). Notably, the civil-
enforcement provision does not mention claims by third
parties; it does not create or expressly abrogate any third-
party right of action.
Consistent with this focus of subchapter I, cases in
which this Court has found § 1144(a) defensive preemption
involved claims by a beneficiary to enforce rights under a
policy or to compensate for harm resulting from an insurer's
improper administration of a policy. See Seafarers' Welfare
Plan v. Dixon, 512 So. 2d 53, 54–55 (Ala. 1987) (explaining
that a life-insurance beneficiary's "state common law causes
of action claiming benefits under an employee benefit plan
regulated by ERISA [were] preempted by ERISA, and that the
proper recourse [was] to utilize the civil enforcement
provisions of ERISA"); Weems v. Jefferson-Pilot Life Ins. Co.,
663 So. 2d 905, 909 (Ala. 1995) (beneficiaries' claims for
breach of contract, bad faith, fraud, negligence, wantonness,
and willfulness); Landy v. Travelers Ins. Co., 530 So. 2d 214,
215 (Ala. 1988) (beneficiary's breach-of-contract claim);
Hood v. Prudential Ins. Co. of Am., 522 So. 2d 265 (Ala. 1988)
33
1190107
(beneficiary's claim alleging bad-faith refusal to pay
insurance benefits).
In contrast, this Court has recognized that § 1144(a)
does not preempt certain claims that merely tangentially
implicate a
beneficiary's
rights.
See
HealthAmerica v.
Menton,
551 So. 2d 235, 238 (Ala. 1989) ("We hold that a
[beneficiary's] claim for fraud in the inducement [based on an
insurer's misrepresentation about policy benefits] does not
'relate to' an employee benefit plan and is therefore not
preempted by ERISA."); see also Ingram v. American Chambers
Life Ins. Co., 643 So. 2d 575, 577 (Ala. 1994) (disagreeing
with
defendant's
argument
that
Weems
repudiated
HealthAmerica). In particular, § 1144(a) does not preempt a
third-party claim against an insurer where the claim does not
seek benefits under the policy. See Brookwood Med. Ctr. v.
Celtic Life Ins. Co., 637 So. 2d 1385 (Ala. Civ. App. 1994)
(holding that ERISA did not preempt state-law claims of
third-party health-care provider against employee-benefit
provider based on negligent misrepresentation of coverage).
As the Court of Civil Appeals explained in Brookwood: "ERISA
preempts a state law cause of action brought by an ERISA plan
34
1190107
participant or beneficiary alleging improper processing of a
claim for plan benefits," id. at 1387, but
"'[c]ourts are more likely to find that a state law
relates to a benefit plan if it affects relations
among the principal ERISA entities -- the employer,
the
plan,
the
plan
fiduciaries,
and
the
beneficiaries –- than if it affects relations
between one of these entities and an outside party,
or between two outside parties with only an
incidental effect on the plan.'"
Id. (quoting Sommers Drug Stores Co. Emp. Profit Sharing Trust
v. Corrigan Enters., Inc., 793 F.2d 1456, 1467 (5th Cir.
1986)).
In a similar vein, the United States Supreme Court has
contrasted "civil enforcement actions ... to secure specified
relief, including the recovery of plan benefits," with
"lawsuits against ERISA plans for run-of-the-mill state-law
claims such as ... torts committed by an ERISA plan." Mackey
v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 833
(1988). ERISA preempts the former but not the latter. Id.
An Alabama wrongful-death claim of the kind alleged here
does not seek to enforce a beneficiary's rights under a policy
or seek compensation for a beneficiary for harm from improper
plan
administration.
The
wrongful-death statute
provides
that
35
1190107
"[a] personal representative may commence an action
and recover ... damages ... for the wrongful act,
omission, or negligence of any ... corporation ...
or [its] servants or agents, whereby the death of
the testator or intestate was caused, provided the
testator or intestate could have commenced an action
for the wrongful act, omission, or negligence if it
had not caused death."
§ 6-5-410, Ala. Code 1975. The claim is brought by a third
party, a personal representative, who essentially acts as the
State's agent and not as the agent of a beneficiary. Moreover,
the statute does not compensate the decedent's estate for the
decedent's death; rather, the statute is punitive and
deterrent, creating a new right of action in the personal
representative. In
effect,
the
personal
representative acts
as
the State's agent to punish the wrongful killing of the
decedent and to deter conduct that tends to lead to wrongful
deaths. See Deaton, Inc. v. Burroughs, 456 So. 2d 771, 776
(Ala. 1984) ("In a wrongful death action ..., the only damages
recoverable are punitive in nature, and the amount thereof is
determined by the gravity of the wrong done, the propriety of
punishing the wrongdoer, and the need for deterring others
from committing the same or similar wrongful conduct."); 1
Alabama Personal Injury and Torts § 9:6 (2020) ("The Wrongful
Death Act creates the right in the personal representative of
36
1190107
the decedent to act as agent by legislative appointment for
the effectuation of a legislative policy of the prevention of
homicides through the deterrent value of the infliction of
punitive
damages.").11
Notably,
Alabama
is
the
only
state
whose
11This
Court
recently
reiterated
its
historically
consistent position that Alabama's wrongful-death statute is
noncompensatory:
"'This statute authorizes suit to be brought by
the
personal
representative
for
a
definite
legislative purpose -- to prevent homicide. In
prosecuting
such
actions,
the
personal
representative does not act strictly in his capacity
as administrator of the estate of his decedent,
because he is not proceeding to reduce to possession
the estate of his decedent, but rather he is
asserting a right arising after his death, and
because the damages recovered are not subject to the
payment of the debts or liabilities of the decedent.
He
acts
rather
as
an
agent
of
legislative
appointment for the effectuation of the legislative
policy.... And the right is vested in the personal
representative alone.'"
Pollard v. H.C. P'ship, [Ms. 1180795, March 13, 2020] ___ So.
3d ___, ___ (Ala. 2020) (quoting Hatas v. Partin, 278 Ala. 65,
67–68, 175 So. 2d 759, 761 (1965)). Elaborating in his special
concurrence, Justice Bolin explained further:
"The legislature created a remedy for the wrongful
death of a human being, the stated purpose being to
deter homicide by the imposition of punitive
damages; no benefits of this remedy would inure to
the benefit of the decedent's estate but, rather,
would be prosecuted by a trustee, whom the
legislature
determined
to
be
the
personal
representative, for the benefit of the decedent's
heirs at law ...."
37
1190107
wrongful-death statute is noncompensatory. 2 Trial Handbook
for
Alabama
Lawyers
§
38:23
(3d
ed.
2020).
This
noncompensatory nature distinguishes the statute from other
states' wrongful-death statutes that courts have held are
defensively preempted by § 1144(a). See Garrison v. Northeast
Georgia Med. Ctr. Inc., 66 F. Supp. 2d 1336 (N.D. Ga. 1999);
Bast v. Prudential Ins. Co., 150 F.3d 1003 (9th Cir. 1998);
Spain v. Aetna Life Ins. Co., 11 F.3d 129 (9th Cir. 1993).
In this case, it is clear that United Healthcare
Insurance Company of the River Valley ("United") seeks to
extend defensive preemption to a different kind of claim from
those that ERISA plainly preempts. In my view, United and the
plurality opinion have not established a clear statutory
indication that defensive preemption applies to this claim.
Wise, J., concurs.
Id. at ___.
38 | September 18, 2020 |
9ed6c9a5-7aa3-4df2-8af3-493a3e5cafc7 | Parris v. Ballantine et al. | N/A | 1180908 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2020
____________________
1180908
____________________
James L. Parris, G.D. Varn III, James V. Searse, Jr., and
Samuel S. Parris
v.
Phyllis H. Ballantine, Scott Preston Harrison, and Renee
DuPont Harrison
Appeal from Jefferson Probate Court
(No. 196712)
STEWART, Justice.
This appeal involves the question whether, under the
terms of a particular trust instrument, a person adopted as an
adult is considered a lineal descendant of a beneficiary of
the trust and, thus, a beneficiary. James L. Parris, G.D. Varn
III, James V. Searse, Jr., and Samuel S. Parris appeal from a
1180908
partial summary judgment in favor of Phyllis H. Ballantine,
Scott Preston Harrison, and Renee DuPont Harrison. We affirm
the judgment.
Facts and Procedural History
In 1971, C. Porter Schutt and Phyllis DuPont Schutt ("the
trustors") created a trust ("the 1971 trust") for the benefit
of their three children and their children's "lineal
descendants." The 1971 trust provides, in pertinent part:
"Upon the date of the execution of this Trust,
trustee shall divide the Trust into three equal
shares so that one share shall be set aside for the
issue, per stirpes, of [Charles Porter Schutt, Jr.,
Sarah Schutt Harrison, and Caroline Schutt Brown],
respectively. Each child of Trustor for whose issue
a share is set aside shall be referred to as the
'primary descendant' of the Trust in which such
share is held. Trustee shall hold each such share as
a separate trust, and each such separate trust shall
be subject to [specific delineated provisions] ...."
Pursuant to the terms of the 1971 trust, the trustee is
to make distributions of income and principal "to or among the
issue of the primary descendant[s] and such issue's lineal
descendants." The 1971 trust defines "lineal descendants" as
"those hereafter born, either before or after
trustor's death,
2
1180908
as well as those now in existence. A child en ventre sa mere
shall be deemed to be living."1
In 2002, in response to a dispute between the trustees of
the 1971 trust and the income beneficiaries, the Mobile
Circuit Court entered a judgment incorporating a settlement
agreement between the parties that divided the 1971 trust into
three separate trusts -- one trust for each of the trustors'
three children (Charles Porter Schutt, Jr., Sarah Schutt
Harrison, and Caroline Schutt Brown) and the children's
descendants. One of the three trusts was for Sarah Schutt
Harrison and her four children: Phyllis Harrison Ballantine,
Renee DuPont Harrison, Scott Preston Harrison, and Aimee
Harrison Parris ("the Harrison trust").
In 2010, a dispute arose between the beneficiaries of the
Harrison trust. The Jefferson Probate Court ("the probate
court") entered an order approving a settlement agreement
between the parties ("the 2010 order") that created four
separate trusts for each of Sarah Schutt Harrison's children
and her children's lineal descendants ("the sibling trusts"):
1Black's Law Dictionary defines "en ventre sa mere" as a
fetus "in the mother's womb." Black's Law Dictionary 675 (11th
ed. 2019).
3
1180908
one for Phyllis and her lineal descendants; one for Renee and
her lineal descendants; one for Scott and his lineal
descendants; and one for Aimee and her lineal descendants
("Aimee's trust"). The 2010 order provided that the sibling
trusts would "be the same in form and terms as" the 1971
trust. In addition, it provided that, if a sibling trust had
no remaining issue or lineal-descendant beneficiaries, the
assets and liabilities of that trust would be divided equally
among the remaining sibling trusts.
Aimee appointed James L. Parris (her husband), G.D. Varn
III, and James V. Searse, Jr., as individual trustees of her
trust ("the individual trustees"), and they in turn appointed
BancorpSouth Bank to serve as the corporate trustee. In
November 2016, after learning that she had a terminal illness,
Aimee adopted Samuel S. Parris, her adult stepchild and her
husband's biological son. The adoption decree was entered in
the Family Court of Charleston County, South Carolina. In
February 2017, Aimee died.
In March 2017, BancorpSouth filed in the probate court a
petition for final settlement of Aimee's trust.2 In response,
2The petition and its amendment are not in the record.
4
1180908
Phyllis, Renee, and Scott ("the siblings") filed an answer and
counterclaim
against
BancorpSouth
and
cross-claims
against
the
individual trustees and Samuel. The siblings argued, among
other things, that, because Samuel was adopted as an adult, he
is not a "lineal descendant" of Aimee's and, thus, was not a
beneficiary of Aimee's trust. Therefore, they argued, there
being no remaining issue or lineal descendants of Aimee's, the
assets from Aimee's trust should be divided among the three
other sibling trusts.
In January 2018, the siblings filed a motion for a
partial summary judgment. In their motion, the
siblings argued
that language in the 1971 trust included only biological
descendants of the trustors' children as beneficiaries. The
siblings asserted that the 1971 trust language was
unambiguous
but that, if the probate court did not find so, it could
consider affidavit testimony from Thomas P. Sweeney, a co-
drafter of the 1971 trust.
Samuel filed a response in opposition to the siblings'
partial-summary-judgment motion. In his response, Samuel
argued that the language of the 2010 order confirmed that
adopted children were meant to be included as beneficiaries
under the 1971 trust because, by the time that order was
5
1180908
entered, this Court had made clear that terms such as "issue"
and "lineal descendant" included an adopted child. Samuel also
argued that, before entering the 2010 order, the probate court
had appointed a guardian ad litem to represent "all unborn,
unconceived,
and
unascertainable
income
and
remainder
beneficiaries." Samuel argued that the use of the word
"unascertainable"
demonstrated
that
it
was
in
the
contemplation of the parties and the probate court that there
were other potential beneficiaries who did not fall into the
categories
of
unborn
or
unconceived and
that
"unascertainable"
could only be a reference to children adopted in the future.
Samuel attached to his response an affidavit of Aimee that had
been filed in the adoption proceeding, an affidavit of James
Parris that included letters from Thomas Sweeney discussing
the terms of the 1971 trust, a transcript from the 2002
proceedings in the Mobile Circuit Court, and a mineral trust
between C. Porter Schutt and First Alabama Bank created in
1993. BancorpSouth also filed a response in which it stated
that it neither joined nor opposed the partial-summary-
judgment motion.
Samuel filed a motion to strike the affidavit of Thomas
Sweeney in which Samuel asserted that previous letters from
6
1180908
Sweeney, the contents of which Sweeney had testified about in
the Mobile Circuit Court proceedings, conflicted with his
testimony in the affidavit. Samuel also objected because, he
said, the affidavit was based on Sweeney's subjective belief,
rather than personal knowledge. The siblings filed a reply to
Samuel's response to their motion for a partial summary
judgment and a motion to strike the affidavit of James Parris
that Samuel had submitted. The probate court did not rule on
the motions to strike.
On July 1, 2019, the probate court entered a partial
summary judgment. The probate court found, among other things,
that the language of the 1971 trust was not ambiguous, that
Samuel was not a "lineal descendant" as defined by the 1971
trust, and that, therefore, Samuel was not a beneficiary of
Aimee's trust. The probate court certified the order as final
pursuant to Rule 54(b), Ala. R. Civ. P. On August 7, 2019,
Samuel and the individual trustees filed a notice of appeal.
(The individual trustees assert that taking a position on the
issues in this appeal with regard to Samuel is inconsistent
with their duties of loyalty and impartiality. Accordingly,
the arguments on appeal are referred to as only Samuel's even
7
1180908
though the individual trustees joined in the notice of
appeal.)
Discussion
I. Procedural Issues
On December 19, 2019, after Samuel filed his reply brief,
the siblings filed a "corrected" brief along with a
"declaration of technology difficulties and a motion to
accept
corrected brief as timely filed" in which they asserted that
they fixed typographical errors, pagination errors, and
citation errors present in their original brief. The Supreme
Court Clerk's office, after determining that there were also
changes to the language in the "corrected" brief, issued a
show-cause order to the siblings to explain why this Court
should accept the corrected brief, noting that there is no
provision in the Alabama Rules of Appellate Procedure to
accept an appellee's brief after the briefing period has
closed. The siblings responded that there had been no
substantive changes and that the revisions were to correct
typographical oversights, and they submitted a version
evidencing their corrections. After reviewing the two
versions, we note that there are multiple changes in the
"corrected"
brief,
including the
addition
of
legal
authorities
8
1180908
not cited in the original brief. Based on the large number of
changes, and because the Alabama Rules of Appellate Procedure
do not contemplate accepting an appellee's brief after the
appellant has submitted a reply brief, we have considered only
the siblings' originally filed brief.
We must next address a motion to dismiss filed in this
Court by the siblings. In their motion, the siblings asserted
that Act No. 1144, Ala. Acts 1971 ("Act No. 1144"), a local
act that requires notices of appeal from certain probate-court
judgments to be filed within 30 days of the entry of the
judgment, controls and that, because Samuel and
the
individual
trustees did not file their notice of appeal within 30 days,
this Court lacks jurisdiction to consider their appeal. Samuel
argues that Act No. 1144 governs only appeals from matters
concerning the administration of estates and that, because
this matter involves a dispute over an inter vivos trust, Act
No. 1144 is inapplicable.
Act No. 1144 was enacted to provide probate courts in
counties with a population of 500,000 or more general and
concurrent jurisdiction with circuit courts in equity and in
matters relating to the administration of estates. See Title
9
1180908
to Act No. 1144. The relevant portion of Act No. 1144
provides:
"Section 4. Appeals may be taken from the
orders, judgments, and decrees of such a Probate
Court, relating to the administration of such
aforesaid estates, including decrees on partial
settlements and rulings on demurrer, or otherwise
relating to action taken pursuant to jurisdiction
conferred by this act, to the Supreme Court within
thirty days from the rendition thereof, or within
thirty days from the decision of such a Probate
Court on a motion for new trial, in the manner and
form as is provided for appeals from the Probate
Courts to the Supreme Court."
(Emphasis added.)
The underlying matter does not involve the administration
of an estate. Instead, it involves the interpretation of the
terms of a trust and was brought pursuant to the Alabama
Uniform Trust Code, § 19-3B-101 et seq., Ala. Code 1975 ("the
AUTC").3
Act No. 1144 does not concern proceedings involving
the administration of
trusts. Therefore, the AUTC, rather than
3Under § 19-3B-203(b) of the AUTC, "[a] probate court
granted statutory equitable jurisdiction has concurrent
jurisdiction with the circuit court in any proceeding
involving a testamentary or inter vivos trust." The Jefferson
Probate
Court
has
been
granted
statutory
equitable
jurisdiction and has concurrent jurisdiction with the
Jefferson Circuit Court "to hear any proceeding brought by a
trustee or beneficiary concerning the administration of a
trust." Regions Bank v. Reed, 60 So. 3d 868, 880 (Ala. 2010).
10
1180908
Act No. 1144, controls, and there is no specific provision in
the AUTC regarding appeals.
Section 12-22-2, Ala. Code 1975, provides: "From any
final judgment of the circuit court or probate court, an
appeal lies to the appropriate appellate court as a matter of
right by either party, or their personal representatives,
within the time and in the manner prescribed by the Alabama
Rules of Appellate Procedure." Rule 4(a)(1), Ala. R. App. P.,
provides that a notice of appeal must be filed within 42 days
of the entry of the judgment from which the appellant appeals.
Therefore, Samuel's notice of appeal, filed 37 days after the
entry of the order appealed from, was timely and this Court
has jurisdiction to consider the appeal. Accordingly, the
siblings' motion to dismiss is denied.
II. Analysis
On appellate review of a summary judgment, the reviewing
court will apply the same standard applied by the trial court.
Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74
(Ala. 2003). "Where, as here, the facts of a case are
essentially undisputed, this Court must determine whether the
trial court misapplied the law to the undisputed facts,
applying a de novo standard of review." Continental Nat'l
11
1180908
Indem. Co. v. Fields, 926 So. 2d 1033, 1035 (Ala. 2005). The
issues raised on appeal in this case present a question of
law; they do not concern a disputed issue of fact.
Accordingly, we review the probate court's summary judgment de
novo without any presumption of correctness. Ex parte Byrom,
47 So. 3d 791, 794 (Ala. 2010).
The resolution of the issues in this appeal requires the
construction and interpretation of the terms of the 1971
trust. In construing a legal document, this Court has
explained that, "[w]hen a document is unambiguous, its
construction and legal effect are questions of law for the
court to decide." Baldwin v. Branch, 888 So. 2d 482, 484 (Ala.
2004) (citing Wheeler v. First Alabama Bank of Birmingham, 364
So. 2d 1190 (Ala. 1978)).4
"'An "instrument is unambiguous if only one
reasonable
meaning
clearly
emerges."'
Reeves
Cedarhurst Dev. Corp. v. First Amfed Corp., 607 So.
2d 184, 186 (Ala. 1992)(quoting Vainrib v. Downey,
565 So. 2d 647, 648 (Ala. Civ. App. 1990)). 'When
the language of a [trust] is clear and unambiguous,
the rules of construction cannot be employed to
4Section 19-3B-112 of the AUTC provides: "Except as
otherwise provided in this chapter, the rules of construction
... that apply in this state to the interpretation of and
disposition of property by will also apply as appropriate to
the interpretation of the terms of a trust and the disposition
of the trust property."
12
1180908
rewrite that [trust] and put it at variance with the
meaning of the language used by the testator.'
Windham v. Henderson, 658 So. 2d 431, 434 (Ala.
1995). '[W]ords employed in a [trust] are to be
taken in their primary or ordinary sense and use,
unless a different meaning is indicated by the
context and circumstances of the case ....' Wiley v.
Murphree, 228 Ala. 64, 68, 151 So. 869, 872 (1933)."
Harrison v. Morrow, 977 So. 2d 457, 459–60 (Ala. 2007).
Both sides contend, and the probate court found, that the
language of the 1971 trust is unambiguous. Samuel argues that
the term "lineal descendants" as defined in the 1971 trust
presumptively includes adopted children. In support, Samuel
argues that the law in Alabama since 1931 has been clear that
adopted children are included in terms such as "issue,"
"lineal descendants," "child," and other similar terms and
that adopted children are treated the same as biological
children unless an intent to exclude them is clearly indicated
in the instrument. The siblings argue that the use of the
phrase "hereafter born" in defining "lineal descendants" in
the 1971 trust implies that "adopted" descendants are excluded
and demonstrates the trustors' intent that the 1971 trust
benefit their biological descendants only. The siblings also
assert that the trustors defined "lineal descendants" in a
manner different than the
generic legal definition, while they
13
1180908
defined "heirs" as all persons entitled to take by intestacy
-– the primary, generic legal meaning. Therefore, the
siblings
argue, the trustors intended "lineal descendants," with its
"radically different language," i.e., "hereafter born," to be
limited to biological descendants.5 Relying, in part, on this
Court's decision in Whitfield v. Matthews, 334 So. 2d 875
(Ala. 1976), the probate court concluded that "[u]sing 'born'
to define 'lineal descendants' without including 'or adopted'
is a clear indication of Trustors' intent to exclude persons
adopted as beneficiaries."6
5The
siblings
also
devote
much
argument
to
challenging the
adoption
decree,
alleging
that
the
proper
statutory
formalities were not followed before the entry of the decree.
To the extent the siblings challenge the validity of the
adoption under South Carolina laws, however, Alabama courts
are not the proper forum through which to lodge a collateral
attack, and the siblings did not raise that argument in the
probate court. It will not be considered for the first time on
appeal. See Landers v. O'Neal Steel, Inc., 564 So. 2d 925, 926
(Ala. 1990)("This Court will not review an issue raised for
the first time on appeal.").
6The provision of the trust instrument at issue in
Whitfield provided that the trust was "'for the benefit of the
children now or later born to my son, L.B. Whitfield, III.'"
Whitfield, 334 So. 2d at 877. This Court concluded that the
adopted daughter of the testator's son was excluded from being
considered a beneficiary of the trust, stating: "Had the
trustor intended to favor those his sons legally adopted as
well as his blood descendants, it would seem he could easily
have accomplished this by saying so." 334 So. 2d at 878.
14
1180908
In challenging the probate court's judgment, Samuel
relies primarily on Gotlieb v. Klotzman, 369 So. 2d 798 (Ala.
1979), McCaleb v. Brown, 344 So. 2d 485, 488 (Ala. 1977), and
a 1931 adoption statute. Samuel argues that the trustors had
"constructive knowledge of the effect of the enactment of the
1931 Act pertaining to the inheritance rights of adoptees."
Samuel's brief, at 23. In Gotlieb, this Court considered
whether the term "descendant" in a testamentary trust included
adopted children. This Court explained:
"In 1931, a statute was passed which allowed
adopted children to inherit property by and through
their adoptive parents. Act No. 405, Acts of
Alabama, 1931, p. 504. In McCaleb v. Brown, [344 So.
2d 485 (Ala. 1977),] this Court stated that adopted
children are 'presumptively within the designation
of the adopter's descendants unless the context or
circumstances
clearly
establish
a
contrary
intention.' 344 So. 2d at 489. In view of the fact
that scriveners were put on notice after 1931 that
adopted children would be treated the same as
natural children, and in view of the public policy
extant at the time the wills were drawn and in the
present case, by looking only at the wording of the
wills, we determine that the testators, by using the
term 'descendants,' intended to include the two
adopted children."
369 So. 2d at 800. This Court also rejected the argument that,
"in 1964, the term 'descendants' did not include adopted
children," and it held that "the public policy of this state
[is] that adopted children are treated the same as natural
15
1180908
children, unless a desire to exclude them is clearly indicated
by the testator." 369 So. 2d at 801. Likewise, in McCaleb,
this Court, in concluding that the language used in a deed
included adopted children, considered that the law at the time
the deeds were executed would have allowed an adopted child to
be an heir. 344 So. 2d at 488. This Court also considered that
holding otherwise would "frustrate the overall policy of the
adoption statute to treat adopted children in all respects as
natural children unless a contrary meaning is clearly
expressed." Id. at 489.
Gotlieb and McCaleb, however, are distinguishable from
the present case. For one, the instruments at issue in Gotlieb
and McCaleb did not include the specific term "born" as did
the 1971 trust.7 Moreover, Gotlieb, McCaleb, and the 1931
statute specifically addressed adopted children. See Doby v.
7Samuel also cites Tierce v. Gilliam, 652 So. 2d 254 (Ala.
1994), Sellers v. Blackwell, 378 So. 2d 1106 (Ala. 1979),
Southside Baptist Church v. Drennen, 362 So. 2d 854 (Ala.
1978), and Zimmerman v. First National Bank of Birmingham, 348
So. 2d 1359 (Ala. 1977), in support of his argument that
"issue" and "descendants" include adopted children. Tierce
involved a child born after divorce who was presumed to be a
beneficiary's legal child. Sellers, Southside Baptist Church,
and Zimmerman all involved an adopted child, and the
instruments in those cases did not include the specific use of
the word "born" or a similar variation.
16
1180908
Carroll,
274
Ala.
273,
275,
147
So.
2d
803,
805
(1962)(explaining that the 1931 statute applied only to minor
children and that there was no provision for an adoption of an
adult in Alabama). Samuel was adopted as an adult. At the time
the 1971 trust was executed, there was no provision in the law
authorizing the adoption of adults. Although the Alabama
Legislature enacted the Adult Adoption Act, codified at §§
43–4–1 through –4, Ala. Code 1975, in 1973 authorizing the
adoption of an adult for inheritance purposes, that act came
into being two years after the 1971 trust was executed.
Moreover, those Code sections were repealed effective January
1, 1991, and replaced by the Alabama Adoption Code, § 26-10A-1
et seq., Ala. Code 1975. See Act No. 554, Ala. Acts 1990.
Accordingly, the probate court's judgment is due to be
affirmed on the basis that the law at the time the 1971 trust
was executed did not allow adult adoption, that Samuel's
adoption as an adult in 2016 did not make him a "lineal
descendant" as that term is defined in the 1971 trust, and
that, therefore, Samuel was not a beneficiary of Aimee's
trust.
Because we are affirming the probate court's judgment on
the above grounds, we need not address the parties' arguments
17
1180908
concerning the probate court's reliance on Whitfield v.
Matthews, 334 So. 2d 875 (Ala. 1976). In addition, we
pretermit discussion of the siblings' argument regarding
whether Alabama public policy favors the inclusion of adopted
adults within the term "lineal descendants." Furthermore, the
analysis in this opinion is limited to the unique facts of
this case, which involves the adoption of an adult, and should
not be read to have any application to adoptions involving
children.
Conclusion
Based on the foregoing, we affirm the judgment of the
probate court.
MOTION TO DISMISS DENIED; AFFIRMED.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ.,
concur.
Bolin and Shaw, JJ., concur in the result.
Wise and Sellers, JJ., dissent.
18
1180908
SELLERS, Justice (dissenting).
I respectfully dissent. This case is controlled by well
settled
full-faith-and-credit
principles
rendering
the
majority's extended analysis unnecessary. Our Constitution
provides that "Full Faith and Credit shall be given in each
State to the public Acts, Records, and judicial Proceedings of
every other State." U.S. Const., Art. IV, § 1. Adoption
decrees are among those judgments to which full faith and
credit is due. See V.L. v. E.L., ___ U.S. ___, 136 S.Ct. 1017,
194 L.Ed.2d 92 (2016) (holding that Georgia superior court had
subject-matter jurisdiction to grant adoption, triggering
Alabama's full-faith-and-credit obligation). And, despite the
various public-policy arguments regarding adult adoptions in
Alabama, the United States Supreme Court has made clear that,
although "[a] court may be guided by the forum State's 'public
policy' in determining the law applicable to a controversy,"
there is "no roving 'public policy exception' to the full
faith and credit due judgments." Baker v. General Motors
Corp., 522 U.S. 222, 233 (1998). In other words, regarding
judgments, "the full faith and credit obligation is
exacting."
Id.
19
1180908
In this case, the Charleston County Family Court received
into evidence the affidavit of Aimee Harrison Parris in which
Aimee testified that her purposes in seeking to adopt her
stepson, Samuel S. Parris, were to affirm the loving familial
relationship between them and to ensure that Samuel inherit
from her as her descendant, thus effectuating her estate plan.
Based on that evidence, the South Carolina court entered an
adoption decree, adjudicating a parent-child relationship
between Aimee and Samuel. See § 43-8-230, Ala. Code 1975
(stating that "adopted persons ... are included in class gift
terminology ... for determining relationships for purposes of
intestate succession"). Therefore, unless the 1971 trust
specifically evidences a clear intent to exclude adopted
children -- and I submit that it does not -- Samuel is
presumed to be a lineal descendant under the 1971 trust. The
1971 trust defines "lineal descendants" as "those hereafter
born, either before or after trustor's death, as well as those
now in existence." The phrase "hereafter born" references the
time frame in which lineal descendants are born in relation to
the trustors' deaths and makes that time frame as expansively
20
1180908
inclusive as possible.8 To this extent, Samuel was born in
1993 and became a lineal descendant in 2016, when Aimee
adopted him.
Because the South Carolina adoption decree appears on its
face to have been rendered by a court of competent
jurisdiction, the Alabama probate court was required to
afford
full faith and credit to that decree. Accordingly, I would
reverse the judgment of the probate court and render a
judgment holding that Samuel is a lineal descendant of Aimee
and thus a beneficiary under the terms of the 1971 trust.
Wise, J., concurs.
8Relying, in part, on Whitfield v. Matthews, 334 So. 2d
876 (Ala. 1976), the probate court found that the phrase
"hereafter
born"
in
defining
"lineal
descendants"
demonstrated
the trustors' intent for the 1971 trust to benefit only their
biological descendants. In
Whitfield, this Court held that the
phrase "'for the benefit of the children now or later born to
my son, L.B. Whitfield, III,'" did not include an adopted
child of the son. Whitfield is clearly distinguishable. In
Whitfield, the trustor concisely expressed his intent that the
trust assets benefit only those children born to his son; this
excluded adopted children. Here, the 1971 trust does not
define "lineal descendants" as those "hereafter born" to any
specific person or class of persons, nor does the trust
include any express language excluding adopted children.
Rather, the phrase "hereafter born" taken in its proper
context merely references the time frame in which lineal
descendants are born in relation to the trustors' deaths to
make clear that all children, regardless of the time or
circumstances of their birth, are included in the definition
of "lineal descendants" and can thus benefit under the terms
of the 1971 trust.
21 | September 25, 2020 |
d4c3a87c-aaeb-4a9e-823f-72d471859eff | Gayla Choyce v. Brenda Lynette Jarvis and Government Employees Insurance Company | N/A | 1190540 | Alabama | Alabama Supreme Court | REL: September 11, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190540
Gayla Choyce v. Brenda Lynette Jarvis and Government Employees
Insurance Company (Appeal from Butler Circuit Court:
CV-18-900006).
MENDHEIM, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur. | September 11, 2020 |
f73c65ad-1956-4b99-9b7d-8febe2292319 | Ex parte G.W.D. | N/A | 1190592 | 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
September 11, 2020
1190592
Ex parte G.WD. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: G.W.D. v. A.N.D.) (Winston Circuit Court: DR-19-900040; Civil Appeals :
2180919).
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 September 11, 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
4fe018b5-4c5b-4190-9159-fa154b7e09f4 | Wells Fargo Bank, N.A. v. Katherine M. Rudd and Tiffany Rudd Atkinson | N/A | 1180436 | Alabama | Alabama Supreme Court | Rel: September 11, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1180367
Katherine M. Rudd and Tiffany Rudd Atkinson v. Wells Fargo,
N.A. (Appeal from Jefferson Circuit Court: CV-12-900915).
1180436
Wells Fargo Bank, N.A. v. Katherine M. Rudd and Tiffany Rudd
Atkinson
(Appeal
from
Jefferson
Circuit
Court:
CV-12-900915).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E)(No. 1180367) and
(a)(2)(F) (No. 1180436), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | September 11, 2020 |
c8f46d9f-75b2-410c-9bff-b39a078af4f7 | Ex parte Beverlee Gardner. | N/A | 1190172 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2020
____________________
1190172
____________________
Ex parte Beverlee Gardner
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Beverlee Gardner
v.
State of Alabama)
(Montgomery Circuit Court, CC-18-932;
Court of Criminal Appeals, CR-18-0368)
STEWART, Justice.
Beverlee Gardner petitioned this Court for a writ of
certiorari, challenging the Court of Criminal Appeals'
decision in Gardner v. State, [Ms. CR-18-0368, Sept. 20, 2019]
1190172
___ So. 3d ___ (Ala. Crim. App. 2019), in which that court
affirmed the denial by the Montgomery Circuit Court ("the
trial court") of Gardner's motion to suppress certain evidence
that Gardner contends was seized during an illegal search. We
granted certiorari review to determine whether the Court of
Criminal Appeals' decision in Gardner conflicts with Terry v.
Ohio, 392 U.S. 1 (1968), Minnesota v. Dickerson, 508 U.S. 366
(1993), and Ex parte Warren, 783 So. 2d 86, 90 (Ala. 2000).
For the reasons expressed below, we reverse the judgment of
the Court of Criminal Appeals.
Facts and Procedural History
Gardner was charged with unlawful possession of a
controlled substance, in violation of § 13A-12-212, Ala. Code
1975. Gardner filed in the trial court a motion to suppress
evidence of the 0.2 grams of methamphetamine that formed the
basis of the charge against her. The Court of Criminal Appeals
provided the following summary of the evidence adduced at the
suppression hearing:
"At
the
suppression
hearing,
the
State
presented
testimony from a single witness, T.C. Curley, a
detective with the narcotics division of the
Montgomery Police Department. Det. Curley testified
that he and other officers had been investigating a
residence on Eaton Road in Montgomery where Amanda
2
1190172
Millwood, Constance Millwood, and Gardner lived.
Using a confidential informant ('CI'), officers had
completed '[c]ontrolled drug buys for heroin' at the
residence and, during each, three people were
present. (R. 7.) On May 9, 2017, Det. Curley said,
he and several other officers executed a search
warrant at the residence. When they first arrived,
only Constance was present at the residence; Gardner
arrived later, while officers were searching the
premises. Det. Curley said that, '[f]rom [his]
knowledge,' Gardner tried to approach the residence,
telling officers that she lived there and asking
what was happening. (R. 6.) The State questioned
Det. Curley about what happened next:
"'[Prosecutor]: And at that point was
she patted down for officer safety?
"'[Det. Curley]: That's correct, due
to her coming from inside of her vehicle.
"'[Prosecutor]: All right. And when
she was patted down, was anything found?
"'[Det.
Curley]:
Yes.
A
bag
of
methamphetamine in her left jeans pocket.
"'[Prosecutor]: Okay. And when that
was found, was she arrested?
"'[Det. Curley]: Yes.'
"(R. 6.) Later during direct examination, Det.
Curley testified:
"'Once she got out of the car, you could
tell that she had some kind of a nervous
look on her face as to why we were there.
Once she approached us asking why we were
there, we asked her to put her hands, I
believe it was, on the car and at which
time she kind of got nervous and didn't
3
1190172
want to put her hands on the car for the
pat-down search. And then once we did pat
her down, like I said, we felt a bulge in
her left pocket that was consistent -- once
we grabbed hold of it, was crunchy, which
is consistent with methamphetamine. It's
kind of like salt. You know when you grab
hold of it. And that's when we went into
the pockets.'
"(R. 7-8.)
"On cross-examination, Det. Curley stated that,
before the search warrant was executed, officers
knew only that a third person was living with Amanda
and Constance and did not know that the person was
Gardner. He testified that the CI did not know
Gardner personally and did not know her name.
Rather, the CI had indicated that, during one of the
controlled buys of heroin from Amanda and Constance,
there was a third person at the back of the
residence, although the CI did not know who it was.
The CI had also indicated that, during another of
the controlled buys, a third woman was present with
Amanda and Constance. Because Gardner's name was
unknown to police before the search, she was not
named in the search warrant. However, during the
search, Det. Curley said, officers found mail and
other items indicating that Gardner lived in the
residence. Det. Curley admitted on cross-examination
that, although he observed it, he did not conduct
the patdown of Gardner's person -- Det. Dailey, a
female officer, conducted the patdown. According to
Det. Curley, the patdown was conducted for officer
safety because Gardner had gotten out of her vehicle
and approached the officers at the scene. Det.
Curley stated that he was inside the residence when
Gardner arrived and that he did not see what she had
done at that time; he came out of the residence
right before the patdown was conducted. The
following
exchange
then
occurred
on
cross-
examination:
4
1190172
"'[Gardner's counsel]: Do you know if
there was a bulge in her jeans indicating
that there might have been the presence of
a weapon?
"'[Det.
Curley]:
According
to
Detective Dailey, when she patted her down,
she felt a bulge in her left pocket.
"'[Gardner's counsel]: Not a bulge --
not that kind of bulge, but a bulge that
indicates that a weapon is present?
"'[Det.
Curley]:
No,
not
to
my
knowledge.
"'[Gardner's
counsel]:
And
you
mentioned that the drugs were found in her
front-left pocket; correct?
"'[Det. Curley]: Correct.
"'[Gardner's counsel]: And Detective
Dailey -- you said that you observed the
search, and you also mentioned, I believe,
that she had to, I guess, feel or feel the
bag to know that it was a bag of
methamphetamine?
"'[Det. Curley]: Correct,
from
outside
the pocket, yes.
"'[Gardner's counsel]: So she had to
alter the bags to kind of know what it was?
"'[Det. Curley]: I mean, I don't --
like I said, she just grabbed the pocket,
and she said she felt it smush.'
"(R. 22-23.) When asked if he 'believe[d] that
altering clothing in any way would exceed the
cursory patdown for weapons,' Det. Curley responded:
5
1190172
'I meant if you want to say grabbing your pants is
altering your clothing to see what it is, then
sure.' (R. 25-26.) When asked if Det. Dailey 'knew
what the bulge was in [Gardner's] pocket,' Det.
Curley said that he 'can't testify to what she
thought it was or knew what it was.' (R. 28.) Det.
Curley also testified that, based on his training
and experience, he would not 'confuse[]' 0.2 grams
of methamphetamine with a weapon. (R. 30.)"
Gardner, ___ So. 3d at ___.
The trial court denied Gardner's motion to suppress.
Before entering a guilty plea, Gardner expressly reserved the
right to appeal the trial court's denial of her motion to
suppress. After adjudicating her guilty, the trial court
sentenced Gardner to 13 months in prison, which it suspended,
and 18 months on probation. Gardner appealed the trial court's
denial of her motion to suppress to the Court of Criminal
Appeals.
Before the Court of Criminal Appeals, Gardner argued that
Detective E.L. Dailey's search exceeded the scope authorized
for officer safety under Terry because, she argued, Detective
Dailey "grabbed" the item in Gardner's pocket. On September
20, 2019, the Court of Criminal Appeals affirmed the trial
court's denial of Gardner's motion to suppress in an opinion,
6
1190172
from which Judge Cole and Judge Minor dissented. Gardner, ___
So. 3d at ___.
Discussion
Gardner argues that the Court of Criminal Appeals'
opinion conflicts with Terry, Dickerson, and Ex parte Warren.
In Terry, the United States Supreme Court held constitutional
a warrantless search and seizure now commonly referred to as
a "Terry stop." A Terry stop "permit[s] a reasonable search
for weapons for the protection of the police officer, where he
has reason to believe that he is dealing with an armed and
dangerous individual, regardless of whether he has probable
cause to arrest the individual for a crime." Terry, 392 U.S.
at 27. This Court has explained that "Terry permits a police
officer to conduct a patdown search of a suspect's outer
clothing to 'discover guns, knives, clubs or other hidden
instruments [which may be used] for the assault of the police
officer.'" Ex parte James, 797 So. 2d 413, 418 (Ala. 2000)
(quoting Terry, 392 U.S. at 29) (emphasis added in Ex parte
James).
In Dickerson, the United States Supreme Court examined to
what extent a law-enforcement officer may legally seize
7
1190172
nonweapon contraband found during a Terry stop. The Court
developed
a
"plain-feel" or
"plain-touch" doctrine.
Under
that
doctrine,
"[i]f a police officer lawfully pats down a
suspect's outer clothing and feels an object whose
contour or mass makes its identity immediately
apparent, there has been no invasion of the
suspect's privacy beyond that already authorized by
the officer's search for weapons; if the object is
contraband,
its
warrantless
seizure
would
be
justified by the same practical considerations that
inhere in the plain-view context."
Dickerson, 508 U.S. at 375-76. In Ex parte Warren, this Court
interpreted Dickerson as requiring three prerequisites for an
officer to seize contraband under the plain-feel doctrine:
"1. The officer must have a valid reason for the
search, i.e., the patdown search must be permissible
under Terry.
"2.
The
officer must
detect the
contraband while
the Terry search for weapons legitimately and
reasonably is in progress.
"3. The incriminating nature of the object
detected by the officer's touch must be immediately
apparent to the officer so that before seizing it
the officer has probable cause to believe the object
is contraband."
783 So. 2d at 90.
In considering Ex parte Warren, the Court of Criminal
Appeals in Gardner held:
8
1190172
"The first two prerequisites are clearly met
here. Gardner concedes that the Terry patdown of her
person was justified and Det. Curley's testimony
established that the bulge in Gardner's pocket was
detected during that patdown. The question in this
case is whether the nature of the bulge was
immediately apparent to Det. Dailey so as to give
Det. Dailey probable cause to believe the bulge was
contraband. As noted above, Det. Curley testified on
direct examination that '[o]nce we did pat her down,
like I said, we felt a bulge in her left pocket that
was consistent -- once we grabbed hold of it, was
crunchy, which is consistent with methamphetamine.'
(R. 8.) On cross-examination, Det. Curley further
testified that Det. Dailey 'just grabbed the pocket,
and she said she felt it smush.' (R. 23.) Gardner
appears to interpret these statements to mean that
Det. Dailey first felt the bulge in her pants pocket
during the patdown and that, after that, she
'grabbed' the bulge and manipulated it, at which
point
it
was
apparent
that
the
bulge
was
methamphetamine. We disagree. After reviewing the
entirety of Det. Curley's testimony, it is apparent
that Det. Dailey grabbed Gardner's pants pocket as
part of the patdown for weapons and felt the crunchy
texture of the bulge making it immediately apparent
the bulge was methamphetamine because '[y]ou know
when you grab hold of it.' (R. 8.) Because the
seizure of the methamphetamine was justified under
the plain-feel doctrine, the trial court properly
denied Gardner's motion to suppress."
Gardner, ___ So. 3d at ___ (footnote omitted).
Judge Cole, joined by Judge Minor, dissented in Gardner,
stating:
"Det. Curley's testimony at the suppression
hearing shows that the patdown of Gardner exceeded
the scope of Terry and Dickerson. Indeed, here, as
in Dickerson, the officer admitted that, to his
9
1190172
knowledge, the bulge in Gardner's pocket would not
have been one that indicated the presence of a
weapon. (R. 22.) Additionally, Det. Curley testified
that it was not immediately apparent that the bulge
in Gardner's pocket was contraband; rather, Det.
Curley explained that Det. Dailey had to manipulate
the bulge by 'smushing' to make a determination as
to whether it was contraband.
"Because Det. Dailey had to 'smush' the bulge in
Gardner's pocket –- which Det. Curley conceded
contained no weapons –- to determine what it was,
the patdown search of Gardner exceeded the scope of
Terry and Dickerson. Compare Dickerson, 508 U.S. at
378 (holding a search to be unlawful when the
'officer determined that the lump was contraband
only
after
"squeezing,
sliding
and
otherwise
manipulating
the
contents
of
the
defendant's
pocket"'), with Huffman v. State, 651 So. 2d 78, 81
(Ala. Crim. App. 1994) (holding a search permissible
when the officer testified that 'based on his
training and experience he recognized the lump as
having the configuration of a crack cocaine rock'
and that he 'did not have to wiggle the crack rock
around during the pat down in order to recognize it
as being what it is').
"Moreover, it is well settled that '[w]here a
search is executed without a warrant, the burden
falls upon the State to show that the search falls
within an exception,' Ex parte Tucker, 667 So. 2d
1339, 1343 (Ala. 1995), and the State did not meet
that burden here. Indeed, as set out above, the
State called only one witness to testify about the
patdown search of Gardner –- Det. Curley. Det.
Curley, however, did not conduct the patdown.
Additionally, Det. Curley admitted that he did not
see Gardner arrive at the house, that he could not
testify as to the size of the bulge, that he did not
know whether Gardner made any attempt to reach into
her pocket during the search, and that he observed
the patdown search from a distance. Although Det.
10
1190172
Curley attempted to relay to the trial court what
Det. Dailey had told him, Det. Curley's testimony
fell short of establishing that the patdown search
was constitutional."
Before
this
Court,
Gardner
argues
that
the
methamphetamine found in her pocket was not detected during a
reasonable Terry search because, she says, the incriminating
nature of the methamphetamine was not immediately apparent to
Detective Dailey. This is so, according to Gardner, because
Detective Dailey had to "grab a hold of" the "bulge" in
Gardner's pocket before she realized that the bulge was
consistent with
the
feeling
of
methamphetamine. Gardner
argues
that a "grab" is an "impermissible manipulation" and not a
permissible patdown search.
The State argues that Detective Dailey discovered the
methamphetamine while conducting an authorized Terry search
and that the nature of the methamphetamine was immediately
apparent to Detective Dailey.1 The State cites Huffman v.
1The State argues that Gardner failed to preserve her
argument that, under Dickerson, Detective Dailey lacked a
reasonable basis for concluding that it was "immediately
apparent" that Gardner's pocket contained contraband before
Detective Dailey removed the methamphetamine. See Andrews v.
Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992)(holding that
"our review is restricted to the evidence and arguments
considered by the trial court"). The State thus contends that
this Court should limit its review solely to Gardner's
11
1190172
State, 651 So. 2d 78 (Ala. Crim. App. 1994), and Allen v.
State, 689 So. 2d 212 (Ala. Crim. App. 1995), cases in which,
it contends, the officers, while conducting permissible
patdown searches like the one conducted by Detective Dailey,
felt objects whose identity as contraband was immediately
apparent.
There is no evidence in this case indicating that the
nature of the bulge in Gardner's pocket as methamphetamine was
immediately apparent to Detective Dailey through a patdown
search. Instead, the evidence indicated that Detective Dailey
"grab[bed] hold of" an item in Gardner's pocket before feeling
a "crunch" or "smush" and forming an opinion that the bulge
argument that the search was illegal because Detective Dailey
was allowed to continue the Terry search only if she
discovered weapons. A review of the record, however, reveals
that Gardner adequately raised the issue in her motion to
reconsider the trial court's order denying her motion to
suppress. In addition, as a part of her arguments before the
trial court and the Court of Criminal Appeals, Gardner argued
that the search exceeded the scope of a search conducted
pursuant to Terry. The Court of Criminal Appeals addressed the
"immediately apparent" issue in its decision, and, as Judge
Cole noted in his dissent, "[b]efore she pleaded guilty,
Gardner preserved and reserved the right to appeal the trial
court's decision to deny her motion to suppress drug evidence
found in her possession, in which she claimed that the search
violated Terry ... and Dickerson ...." Gardner, ___ So. 3d at
___. Accordingly, we conclude that Gardner's argument is
preserved for our review.
12
1190172
was contraband. As Judge Cole notes in his dissent, the facts
of Dickerson are particularly relevant to this case. In
Dickerson, officers witnessed Dickerson leaving a building
that they believed was a "crack house." The officers observed
Dickerson acting evasively, so they stopped him and performed
a patdown search. The search did not reveal any weapons, but
one of the officers felt a lump in Dickerson's jacket. The
officer testified: "'[A]s I pat-searched the front of his
body, I felt a lump, a small lump, in the front pocket. I
examined it with my fingers and it slid and it felt to be a
lump of crack cocaine in cellophane.'" Dickerson, 508 U.S. at
369. The United States Supreme Court affirmed the Minnesota
Supreme Court's holding that the seizure of the cocaine from
Dickerson was unconstitutional, because the officers exceeded
the limits of Terry by "'squeezing, sliding, and otherwise
manipulating the contents of the defendant's pocket' –- a
pocket which the officer already knew contained no weapon."
Dickerson, 508 U.S. at 378 (quoting State v. Dickerson, 481
N.W.2d 840, 844 (Minn. 1992)). The Supreme Court further
cautioned that,
"[w]here, as here, 'an officer who is executing a
valid search for one item seizes a different item,'
13
1190172
this Court rightly 'has been sensitive to the danger
...
that
officers
will
enlarge
a
specific
authorization, furnished by a warrant or an
exigency, into the equivalent of a general warrant
to rummage and seize at will.'"
Dickerson, 508 U.S. at 378 (quoting Texas v. Brown, 460 U.S.
730, 748 (1983) (Stevens, J., concurring in the judgment)).
This case fits within the rationale of Dickerson. There
was no evidence presented at the suppression hearing
indicating that Detective Dailey ever believed that she felt
a weapon during a patdown search of Gardner. There was also no
evidence
indicating
that
Detective
Dailey
immediately
believed
the bulge in Gardner's pocket to be methamphetamine during the
patdown search. Detective Curley testified at the suppression
hearing that "'we felt a bulge in her left pocket that was
consistent -- once we grabbed hold of it, was crunchy, which
is consistent with methamphetamine. It's kind of like salt.
You know when you grab hold of it.'" Gardner, ___ So. 3d at
___ (emphasis added). Detective Curley's testimony is similar
to that of the officer in Dickerson.
Terry and Dickerson allow law-enforcement officers to pat
down a suspect's outer clothing for weapons or possible
contraband. As explained in Dickerson, officers are not
14
1190172
permitted to squeeze or otherwise to manipulate a suspect's
clothing to find contraband that the officer knows is not a
weapon. Based on Detective Curley's testimony, that appears to
be exactly what Detective Dailey did, and Detective Dailey did
not testify at the suppression hearing to explain or to
provide additional context. Accordingly, based on the
facts in
the record, the methamphetamine was illegally seized and
evidence of it should have been suppressed. The Court of
Criminal
Appeals'
opinion
conflicts with
Terry,
Dickerson,
and
Ex parte Warren, and its judgment is, therefore, reversed. The
cause is remanded for the Court of Criminal Appeals to enter
a judgment consistent with this opinion.
REVERSED AND REMANDED.
Parker, C.J., and Bryan, Sellers, and Mitchell, JJ.,
concur.
Bolin, Shaw, Wise, and Mendheim, JJ., dissent.
15 | September 25, 2020 |
63815215-583e-4d6a-a619-1b3d3dfcf8d4 | Bryant v. Carpenter | N/A | 1180843 | Alabama | Alabama Supreme Court | REL: September 18, 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
SPECIAL TERM, 2020
____________________
1180843
____________________
Frankie Bryant, administrator of the Estate of Deitrick
Bryant, deceased
v.
Elston Carpenter and Athelyn Jordan, individually and in
their official capacities as officers of the Greene County
Sheriff's Office
Appeal from Greene Circuit Court
(CV-14-900060)
MITCHELL, Justice.
Deitrick Bryant ("Deitrick") committed suicide in his
cell while he was an inmate at the Greene County jail.
1180843
Deitrick's mother, as the administrator of his estate, sued
two jail employees, alleging that their negligence allowed
Deitrick's suicide to happen. The trial court entered a
summary judgment in favor of the jail employees, and
Deitrick's mother appeals. We affirm the judgment.
Facts and Procedural History
On April 3, 2012, an investigator from the Greene County
Sheriff's Office attempted to arrest Deitrick on an
outstanding warrant. While he was being handcuffed, Deitrick
knocked the investigator down and fled the premises. Later
that evening, Greene County Sheriff Joe Benison and several
deputies went to Deitrick's last known address and found him
hiding in a freezer. After he was handcuffed, Deitrick
knocked down a deputy, again broke away, and began to run.
Deputy Jeremy Rancher pursued him and ultimately used a stun
gun to subdue him and take him into custody. Deitrick was
then transported to the Greene County jail.
It is undisputed that Deitrick was compliant while being
booked into the jail. As part of the intake process, Deitrick
was asked about his health and medical history and he gave no
indication that he was in pain or had any injuries, nor did he
2
1180843
express any suicidal ideations. Jail employee Elston
Carpenter assisted in the intake process by
searching Deitrick
and supervising him while he changed into jail clothes.
According to Carpenter, Deitrick never complained that he was
in pain, expressed suicidal ideations, or indicated that "he
was even depressed."
Based on the aggressive behavior Deitrick exhibited both
times the sheriff's office attempted to take him into custody,
he was placed in an isolation cell in the booking area. That
cell was visible to staff in the booking area and monitored
remotely by staff in the security-control room, where 36
monitors showed live feeds of various areas throughout the
jail. No camera was dedicated exclusively to Deitrick's cell,
but his cell door and window were within the area monitored by
a camera located in the booking area.
The next day, April 4, Deitrick's mother, Frankie Bryant,
visited the Greene County courthouse to inquire about having
Deitrick released on bond. She states that she spoke with a
district court judge and Sheriff Benison and that she told
Sheriff Benison that Deitrick did not need to be in jail
because "he [was] not well." Nevertheless, Deitrick was not
3
1180843
released on bond, and he remained in jail. Carpenter states
that his interactions with Deitrick in jail that day were
normal, that they talked while Deitrick was eating his food,
and that Deitrick said he wanted to talk to his grandmother.
On April 5, at 4:00 P.M., Carpenter reported to work. He
states that, as he came in, he asked Deitrick how he was doing
and that Deitrick replied that he was fine.
About an hour later, jail employee Athelyn Jordan, who
also began her shift at 4:00 P.M., had her first and only
interaction with Deitrick when they spoke while she was
passing through the booking area.1 Jordan states that
Deitrick told her that he had been sexually assaulted sometime
before he was jailed and that he needed to see a doctor.
Jordan testified that Deitrick "did not seem alarmed,
distressed, or emotional" when he told her about the sexual
assault and that she told him she would pass that information
along.
1At various places in the record, Jordan is referred to
as "Jones." During a deposition, however, Jordan stated that
she has never used the name Jones and did not know why she had
repeatedly been referred to as Jones during the course of this
litigation.
4
1180843
A video recorded by the camera in the booking area shows
that approximately an hour later, at 6:11 P.M., Deitrick
committed suicide by hanging himself with his bed sheet. At
6:39 P.M., another inmate who was passing through the booking
area saw Deitrick's body and used a call box to contact
Carpenter in the security-control room. Carpenter and the
inmate got Deitrick down and telephoned emergency medical
personnel, but Deitrick was pronounced dead on the scene.
Bryant sued various entities and individuals associated
with Greene County and the Greene County Sheriff's Office,
including Carpenter and Jordan, in the United States District
Court for the Northern District of Alabama, alleging that
excessive force had been used during Deitrick's arrest, that
he had not been provided with proper medical care, and that
the defendants' negligence had proximately caused Deitrick's
death. The federal district court dismissed Bryant's lawsuit
after concluding that none of her federal claims were viable.
But the court noted in its order of dismissal that Bryant
could refile some of her claims in state court if she
concluded that those claims were "appropriate and
supported by
5
1180843
law." Bryant v. Greene Cnty., No. 7:14-CV-519-LSC, July 23,
2014 (N.D. Ala. 2014) (not reported in F.Supp.).
One week later, Bryant did precisely that, filing a
wrongful-death action
against
Greene
County;
the
Greene
County
commissioners, in their official capacities; and Carpenter,
Jordan, and Barbara Collins, the administrator of the Greene
County jail, in their individual and official capacities, in
the Greene Circuit Court. Bryant eventually withdrew her
claims against all defendants except Carpenter and Jordan.
Bryant's complaint alleged that Carpenter and Jordan
failed to follow proper procedures for monitoring Deitrick and
that they failed to provide him with necessary medical care.
Carpenter and Jordan denied Bryant's allegations and
moved for
summary judgment, arguing (1) that Bryant's claims against
them were barred by § 14-6-1, Ala. Code 1975, which extends
the State immunity held by sheriffs to individuals employed by
a sheriff "to carry out [the sheriff's] duty to operate the
jail and supervise the inmates housed therein" provided that
those employees "are acting within the line and scope of their
duties and are acting in compliance with the law," and (2)
that Deitrick's death was unforeseeable. The trial court
6
1180843
granted Carpenter and Jordan's motion and entered a summary
judgment in their favor. Bryant appealed.
Standard of Review
When a party "appeals from a summary judgment, our review
is de novo." Nationwide Prop. & Cas. Ins. Co. v. DPF
Architects, P.C., 792 So. 2d 369, 372 (Ala. 2000). We
therefore apply the same standard of review the trial court
used to determine whether the trial court had before it
substantial evidence establishing the existence of a genuine
issue of material fact that must be resolved by the
factfinder. Id. "Substantial evidence" is "evidence of such
weight and quality that fair-minded persons in the exercise of
impartial judgment can reasonably infer the existence of the
fact sought to be proved." West v. Founders Life Assurance
Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). We further
note that, in reviewing a summary judgment, we view the
evidence in the light most favorable to the nonmovant and
entertain such reasonable inferences as the jury would have
been free to draw. Jefferson Cnty. Comm'n v. ECO Pres.
Servs., L.L.C., 788 So. 2d 121, 127 (Ala. 2000).
7
1180843
Analysis
Bryant's brief is largely devoted to arguing that
Carpenter and Jordan are not entitled to immunity. Bryant
references § 14-6-1 –– the statute that is the basis of
Carpenter and Jordan's claim of immunity –– but the vast
majority of her argument focuses on the doctrine of State-
agent immunity. This Court has yet to definitively articulate
how § 14-6-1 should be interpreted. And while we might
interpret § 14-6-1 in a manner that would dispose of this
case, it would not be prudent for us to make an interpretation
of that statute here, when one party's arguments are largely
directed to other issues, unless the posture of the case
requires us to do so.2 See Cook Transps., Inc. v. Beavers,
528 So. 2d 875, 878 (Ala. Civ. App. 1988) (explaining that an
issue of first impression regarding the proper application of
a statute "must await a better vehicle for interpretation").
Ultimately, however, we do not have to interpret § 14-6-1 or
decide whether it applies because the trial court's judgment
2We note that one federal court to consider § 14-6-1 has
concluded that it should be interpreted "in a manner that
would render it more effective than a discretionary-driven
defense already available under state-agent immunity." Young
v. Myhrer, 243 F. Supp. 3d 1243, 1261 (N.D. Ala. 2017).
8
1180843
is due to be affirmed on the other basis of Carpenter and
Jordan's summary-judgment motion –– that Deitrick's suicide
was not foreseeable.
This Court has previously decided appeals involving
wrongful-death
claims
stemming
from
the
suicides
of
individuals being kept in law-enforcement or mental-health
facilities. In Popham v. City of Talladega, 582 So. 2d 541,
543 (Ala. 1991), the Court explained the circumstances under
which a party might bear liability for such a suicide:
"The controlling factor in determining whether there
may be a recovery for a failure to prevent a suicide
is whether the defendants reasonably should have
anticipated that the deceased would attempt to harm
himself. Annot., 11 A.L.R.2d 751, 782–92 (1950).
In Keebler v. Winfield Carraway Hospital, 531 So. 2d
841
(Ala.
1988),
this
Court
held
'that
foreseeability of a decedent's suicide is legally
sufficient only if the deceased had a history of
suicidal
proclivities,
or
manifested
suicidal
proclivities in the presence of the defendant, or
was admitted to the facility of the defendant
because of a suicide attempt.' Keeton v. Fayette
County, 558 So. 2d 884, 887 (Ala. 1989)."
See also City of Crossville v. Haynes, 925 So. 2d 944, 951
(Ala. 2005) ("Th[e] test of foreseeability [set forth in
Popham] remains the law applicable today in determining
whether a duty to prevent a suicide exists."). Applying this
test to the facts of Bryant's case, a factfinder could not
9
1180843
conclude that Carpenter and Jordan reasonably should have
anticipated that Deitrick would attempt to harm himself while
he was incarcerated in the Greene County jail.
A. Deitrick had no history of suicidal proclivities
First, there is no allegation, much less evidence, that
Deitrick had a history of suicidal proclivities. Bryant has
acknowledged that,
although
she
was
concerned
about
Deitrick's
mental health, he never expressly indicated to her that he was
suicidal and she was unaware of any previous suicide attempts.
Bryant nonetheless emphasizes that she had concerns about
Deitrick's mental health and says that she shared those
concerns with Sheriff Benison. But Bryant's own description
of her conversation with Sheriff Benison reveals that her
stated concerns were vague and that suicide was never
mentioned:
"Q.
[By the attorney for Carpenter and Jordan:]
Tell me about that conversation [with Sheriff
Benison].
"A.
He was passing through [the courthouse], and I
asked him, you know, what was going on, why
didn't my son have a bond, and he said, well,
it's not up to him for him to have a bond. I
said, 'Well, he don't need to be in jail
because, you know, he's not well.' And he told
me that, you know, like he say, he got other
charges pending. And I'm like, 'What?' And he
10
1180843
was like, 'Well, like I say, you need to speak
to the judge.' I said, 'Okay, I plan on doing
that.'
"Q.
That was the conversation?
"A.
That was the conversation.
"Q.
And you said that he was not well?
"A.
Yes.
"Q. And what did you mean that he was not well?
"A.
I mean that he was depressed and just the vibe.
Like I said, the vibe I got from him he wasn't
well.
"Q.
And the words that you used to the sheriff was
that he was not well?
"A.
Pretty much I think so that's the word I used."
This conversation was insufficient to put Sheriff Benison on
notice that Deitrick might harm himself. Moreover, there is
no evidence indicating that Carpenter and Jordan were ever
told of this conversation or that anybody expressed concerns
to them about Deitrick's mental health. To the contrary, both
Carpenter and Jordan have testified that they were never given
any information indicating that Deitrick might be suicidal or
that he had expressed suicidal ideations.
11
1180843
B. Deitrick did not manifest suicidal proclivities in the
presence of Carpenter or Jordan
Second, there is no evidence indicating that Deitrick
manifested suicidal proclivities in the presence of Carpenter
or Jordan. The employee who initially booked Deitrick into
jail stated that Deitrick did not express suicidal ideations
when he was asked whether he had such ideations while being
booked on April 3. Carpenter confirmed that point in his own
testimony. Carpenter further stated that there was nothing
remarkable about his interactions with Deitrick on April 4 and
that, when he spoke with Deitrick on April 5, approximately
two hours before his death, Deitrick told him he was doing
fine.
The only time Jordan interacted with Deitrick was on
April 5, about an hour before he committed suicide, when they
spoke while she was passing through the booking area. Jordan
states that Deitrick told her at that time that he had been
sexually assaulted sometime before coming to jail and that he
needed to see a doctor. She further explained that "he did
not seem alarmed, distressed, or emotional" and that she told
him she would pass along that information, but she never got
12
1180843
the chance to do so because he committed suicide shortly
thereafter.
Bryant argues that Jordan should have foreseen that
Deitrick might harm himself based on that conversation. We
disagree. Deitrick's disclosure of a past sexual assault and
his request for medical attention –– unaccompanied by any
indication that he was suicidal –– cannot be considered a
"manifest[ation of] suicidal proclivities." Popham, 582 So.
2d at 544. Bryant has cited no caselaw to support her
argument, and as the federal district court succinctly
explained in its order dismissing Bryant's federal lawsuit:
"The fact that [Deitrick] hanged himself shortly thereafter
does not retrospectively give [Jordan] knowledge that suicide
was likely." Bryant, supra.
Bryant makes additional arguments, all of which are
unpersuasive. She argues that Carpenter and Jordan should
have anticipated that Deitrick might harm himself because, she
says, Deitrick had recently experienced "excessive" pain when
a stun gun was used on him, he was not eating, he had been
exhibiting irrational, impulsive, and aggressive behavior
before he was arrested, and he was facing multiple felony
13
1180843
charges. But Bryant has failed to support the stun-gun
allegation with citations to evidence in the record. Bryant
cites her complaint and other filings in which she previously
made that allegation, but allegations are not evidence. This
Court has no duty to search the record to determine whether it
contains evidence to support a party's allegation. Chestang
v. IPSCO Steel (Alabama), Inc., 50 So. 3d 418, 430 (Ala.
2010).
Moreover, the record contains evidence to the contrary.
See Maxwell v. Dawkins, 974 So. 2d 282, 287 (Ala. 2006)
(affirming a summary judgment when the appellant "identified
no evidence in the record" to support his allegations and
"there [was] evidence to the contrary").
Specifically, Deputy
Rancher, who used the stun gun on Deitrick, testified that the
prongs did not break Deitrick's skin and that Deitrick never
complained that he was in pain as a result of being stunned.
And Carpenter and Jordan reinforced in their testimony that
Deitrick never told either of them that he was in pain.
Bryant has similarly failed to support, with record
evidence, her allegation that Bryant was not eating. In fact,
the record refutes this allegation, because Carpenter
14
1180843
testified that Deitrick was eating when he talked to him on
April 4.
Bryant next emphasizes that Carpenter and Jordan, in
their summary-judgment motion, acknowledged that Deitrick was
exhibiting "escalated and aggressive behavior" before he was
taken into custody. Thus, she argues, they should have been
aware that he might harm himself. But as Popham and other
cases make clear, it is manifested suicidal proclivities, not
just erratic behavior, that potentially gives rise to a duty
to prevent a suicide. The evidence in the record indicates
that the sheriff's office was concerned about Deitrick's
resistance before he was taken into custody and that his
behavior was the reason he was placed in the cell in the
booking area, instead of another cell where he would be in
close proximity to other prisoners with whom he might get into
an altercation. But Sheriff Benison and Deputy Rancher also
testified that Deitrick had not voiced any suicidal thoughts
or exhibited suicidal signs. In sum, Deitrick's pre-arrest
behavior, while concerning, was not the type of behavior that
would impose a duty upon a party to prevent his suicide. See
also Smith v. King, 615 So. 2d 69, 73 (Ala. 1993) (concluding
15
1180843
that staff at a mental-health facility could not have
reasonably foreseen an admitted patient's suicide); Williams
v. Lee Cnty., Alabama, 78 F.3d 491, 493-94 (11th Cir. 1996)
(holding that there was insufficient evidence to permit a jury
to find that a prisoner's suicide was foreseeable even though
the prisoner was being held on an order of the probate court
pending his transfer to a mental-health facility).
The final argument made by Bryant fails as well.
Carpenter and Jordan could not have reasonably foreseen that
Deitrick might harm himself simply because he was facing
multiple felony charges. It is not uncommon for county jails
to house prisoners facing multiple felony charges, and the
vast majority of those prisoners do not attempt suicide.
C. Deitrick was not being held in the Greene County jail
because of a suicide attempt
Finally, the undisputed evidence indicates that Deitrick
was not taken into custody and held in the Greene County jail
because of a suicide attempt. Thus, none of the circumstances
described in Popham would permit a finding that Deitrick's
suicide could have been foreseen –– Deitrick did not have a
history of suicidal proclivities, Deitrick did not manifest
suicidal proclivities in the presence of Carpenter or Jordan,
16
1180843
and Deitrick was not being held in the Greene County jail
because of a suicide attempt. 582 So. 2d at 544.
Conclusion
Bryant sued Carpenter and Jordan alleging that they had
negligently performed their duties as employees at the Greene
County jail and that their negligence allowed her son Deitrick
to commit suicide while he was being held in the jail. But
"[t]he controlling factor in determining whether there may be
a recovery for a failure to prevent a suicide is whether the
defendants reasonably should have anticipated that the
deceased would attempt to harm himself," Popham, 582 So. 2d at
543. Bryant has failed to put forth evidence that would allow
a factfinder to conclude that Carpenter or Jordan could have
anticipated Deitrick's suicide. Accordingly, the summary
judgment entered by the trial court is affirmed.
AFFIRMED.
Parker, C.J., and Bryan, J., concur.
Shaw and Mendheim, JJ., concur in the result.
17 | September 18, 2020 |
1b0a9c90-ea5b-4095-980e-affc7086e3f3 | Alabama v. Epic Tech, LLC, et al. | N/A | 1180675 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2020
_________________________
1180675
_________________________
State of Alabama
v.
Epic Tech, LLC, et al.
Appeal from Lowndes Circuit Court
(CV-17-900069)
_________________________
1180794
_________________________
State of Alabama
v.
Epic Tech, LLC, et al.
Appeal from Macon Circuit Court
(CV-17-900150)
1180675; 1180794
WISE, Justice.
These appeals have been consolidated for the purpose of
writing one opinion. In case no. 1180675 (hereinafter
referred to as "the Lowndes County case"), the State of
Alabama, the plaintiff below, appeals from the
Lowndes Circuit
Court's order granting the motions to dismiss filed by Epic
Tech, LLC; White Hall Enrichment Advancement Team d/b/a
Southern
Star
Entertainment; White
Hall
Entertainment; and
the
White Hall Town Council (hereinafter collectively referred to
as "the Lowndes County defendants"). In case no. 1180794
(hereinafter referred to as "the Macon County case"), the
State appeals from the Macon Circuit Court's order granting
the motions to dismiss filed by Epic Tech, LLC, and K.C.
Economic
Development,
LLC,
d/b/a
VictoryLand
Casino
("KCED")(hereinafter collectively referred to as "the Macon
County defendants"). We reverse and remand.
Facts and Procedural History
The Lowndes County Case
On October 26, 2017, the State sued the Lowndes County
defendants in the Lowndes Circuit Court, asserting a public-
nuisance claim. On that same day, the State also filed a
2
1180675; 1180794
motion for a preliminary injunction pursuant to Rule 65(a),
Ala. R. Civ. P. The State subsequently filed two amendments
to its complaint. In its second amended complaint, the State
asserted that it was "seeking declaratory and injunctive
relief to abate a public nuisance of unlawful gambling,
pursuant to § 6-5-120[, Ala. Code 1975]." It also alleged
that the Lowndes County defendants' "continued operation of
illegal
slot
machines
and
unlawful
gambling
devices"
constituted a public nuisance. The State requested that the
Lowndes Circuit Court enter an order declaring the gambling
activities conducted by or through the Lowndes County
defendants to be a public nuisance and "permanently enjoining
the [Lowndes County defendants] from providing such unlawful
gambling activities."
The Lowndes County defendants filed motions to dismiss
the State's complaint in which they alleged that the Lowndes
Circuit Court did not have subject-matter jurisdiction over
the State's request for a declaratory judgment and injunctive
relief; that the complaint failed to state a claim upon which
relief could be granted; and that the State had failed to join
the operators of Wind Creek Casino Montgomery and Wind Creek
3
1180675; 1180794
Casino Wetumpka (hereinafter collectively referred to as "the
Wind Creek casinos") as indispensable parties pursuant to
Rule
19, Ala. R. Civ. P.
The Lowndes Circuit Court subsequently conducted a
hearing. During the hearing, the court decided that it would
hear arguments and rule on the motions to dismiss before it
proceeded further on the State's motion for a preliminary
injunction. On April 26, 2019, the Lowndes Circuit Court
entered a judgment granting the motions to dismiss. In its
judgment, the court found that it did not have subject-matter
jurisdiction "to adjudicate the legal issues for injunctive
and declaratory relief." It also found that, even if it did
have subject-matter jurisdiction, "the Complaint, as amended,
would be dismissed for failure to state a claim upon which
relief could be granted and for failure to include
indispensable parties."
The Macon County Case
On October 4, 2017, the State sued the Macon County
defendants in the Macon Circuit Court; it
subsequently amended
its complaint. In its amended complaint, the State asserted
that it was "seeking declaratory and injunctive relief to
4
1180675; 1180794
abate a public nuisance of unlawful gambling, pursuant to § 6-
5-120[, Ala. Code 1975]." It also alleged that the Macon
County defendants' "continued operation of illegal slot
machines and unlawful gambling devices" constituted a public
nuisance. The State requested that the Macon Circuit Court
enter an order declaring the gambling activities conducted by
or through the Macon County defendants to be a public nuisance
and "permanently enjoining the [Macon County defendants] from
providing such unlawful gambling activities."
The Macon County defendants filed motions to dismiss the
complaints against them. Like the Lowndes County defendants,
the Macon County defendants asserted that the Macon Circuit
Court did not have subject-matter jurisdiction over the
State's request for a declaratory judgment and injunctive
relief; that the complaint failed to state a claim upon which
relief could be granted; and that the State failed to join the
operators of the Wind Creek casinos as indispensable parties.
The Macon Circuit Court subsequently conducted a hearing.
During the hearing, the court decided to hear arguments and
rule on the motions to dismiss before it proceeded further on
the State's motion for a preliminary injunction. On June 14,
5
1180675; 1180794
2019, the Macon Circuit Court entered a judgment granting the
Macon County defendants' motions to dismiss on the grounds
that it lacked subject-matter jurisdiction; that the
State had
failed to state a claim upon which relief could be granted;
and that the State had failed to join the operators of the
Wind Creek casinos as indispensable parties.
These appeals followed.
Discussion
I.
The State argues that the Lowndes Circuit Court and the
Macon Circuit Court (hereinafter collectively referred to as
"the circuit courts") erroneously determined that they did not
have
subject-matter
jurisdiction
over
its claims
for
declaratory and injunctive relief and that it had failed to
state claims upon which relief could be granted.
In its complaints in both cases,1 the State alleged that
the Lowndes County defendants and the Macon County defendants
(hereinafter collectively referred to as "the defendants")
"operate,
administer,
license
and/or
provide
gambling
devices"
1The factual allegations, the public-nuisance claims, and
the claims for relief in the second amended complaint in the
Lowndes County case and the amended complaint in the Macon
County case are virtually identical.
6
1180675; 1180794
for casinos located in their respective counties. It further
alleged that, at those casinos, the defendants "provide
hundreds of slot machines and gambling devices in open,
continuous, and notorious use." The complaints also included
the following factual allegations:
"Gambling is generally illegal in Alabama, and slot
machines are particularly so. The State's general
prohibition on gambling is so fundamental that the
People enshrined it in the Constitution. See Ala.
Const, art. IV, § 65. The Legislature has
specifically
criminalized
possession
of
slot
machines and other gambling devices. Ala. Code
[1975,] § 13A-12-27. Nevertheless, because of the
immense profits associated with organized gambling,
the industry frequently has tried to 'evade[]' these
prohibitions, as the Alabama Supreme Court put it in
Barber v. Jefferson Cnty. Racing Ass'n, 960 So. 2d
599 (Ala. 2006), by asserting that 'loophole[s]' in
Alabama law were much larger than they in fact were.
Id. at 614. For example, in 2006, the Alabama
Supreme Court rejected the industry's attempt to
pass off what were slot machines as machines that
were playing a 'legal sweepstakes.' Id. at 603-15.
The Alabama Supreme Court held that substance is
more important than legal technicality; accordingly,
gambling devices are illegal if they 'look like,
sound like, and attract the same class of customers
as conventional slot machines.' Id. at 616. See
also Ex parte State, 121 So. 3d 337 (Ala. Mar. 1,
2013); Barber v. Cornerstone Comm. Outreach, 42 So.
3d 65 (Ala. 2009); State ex rel Tyson v. Ted's Game
Enterprises, 893 So. 2d 376, 380 (Ala. 2004).
"... The Alabama Supreme Court has repeatedly
held that the game of bingo cannot be played on
electronic machines in the State of Alabama. See
HEDA v. State, 168 So. 3d 4 (Ala. 2014); State v.
7
1180675; 1180794
$223,405.86 et al., 203 So. 3d 816 (Ala. 2016);
State v. 825 Electronic Gambling Devices, [226] So.
3d [660] (Ala. 2016).
"... Defendants' gambling devices are slot
machines completely reliant on games of chance.
Someone who wants to play one of Defendants'
gambling devices can insert money directly into the
face of the machine and/or load money onto a swipe
card that the player inserts into the machine. The
player then presses a button to bet a certain amount
of money. Once the bet is placed, the player
presses a button to start the spinning of slot reels
that appear on the gambling devices. On the
machines, the slot reels are digital; simulating the
mechanical reels found on traditional slot machines.
Seconds later, the machine displays the game's
result. If the customer wins, then his or her
credits go up; if not, the credits go down. The
player can then either play again or cash out to
receive money for any credits he or she has
remaining.
"... All it takes to operate the gambling
devices at Defendants' casinos is a touch of a
button. With a touch of a button, the machines
initiate
a
game
and/or
bring
that
game
to
conclusion.
"... Defendants' devices may display a small
'bingo card' to the side, below, or above the slot
reels. However, the predominant display on all
Defendants' gambling devices is a large, digital or
mechanical representation of 'reels' commonly seen
on acknowledged slot machines.
"... Defendants' gambling devices replicate a
game of chance in an electronic format. There is no
interaction
between
players.
There
is
no
competition to be the first person who covers a
bingo card. No player must call out 'bingo.' There
is no holder of a bingo card who covers randomly
8
1180675; 1180794
drawn numbers on the card. No player can 'sleep a
bingo' or forfeit a prize based on his or her
failure
to
recognize
a
predetermined
winning
pattern. The player does not need to pay attention,
listen
to
alphanumeric
designations
drawn
one-by-one, or match them up to a bingo card.
Instead the player presses a single button, watches
slot-machine reels spin, and is told whether he or
she has won by the gambling device. As such, as the
Supreme Court of Alabama has held, the machines are
illegal and not permitted to play the game commonly
known as bingo in Alabama.
"... Defendants' gambling devices play like,
look like, sound like, and attract the same class of
customers as acknowledged slot machines."
The State further alleged:
"The Defendants' devices used at the casinos do not
play the game 'commonly known as bingo' as defined
by Alabama law. See Barber v. Cornerstone Comm.
Outreach, 42 So. 3d 65 (Ala. 2009); HEDA v. State,
168 So. 3d 4 (Ala. 2014); State v. $223,405.86 et
al., 203 So. 3d 816 (Ala. 2016); State v. 825
Electronic Gambling Devices, [226] So. 3d [660]
(Ala. 2016).
"... The Defendants' devices used at the ...
[casinos] are prohibited gambling devices, as
defined in Alabama Code [1975,] § 13A-12-20(5).
They are machines or equipment used in the playing
phases of gambling activity between persons or
machines. Id.
"... The Defendants' devices used at the
[casinos] are slot machines or readily convertible
to slot machines, as defined in Alabama Code [1975,]
§ 13A-l2-20(10). As a result of the insertion of an
object, Defendants' devices operate with the aid of
a physical act by the player to eject something of
value based on the element of chance.
9
1180675; 1180794
"... Defendants do not have legal authority to
operate, advance, or profit from unlawful gambling
activity in violation of Article IV, Section 65 of
the Alabama Constitution (1901) and Ala. Code
[1975,] § 13A-12-20 et seq.
"... Defendants because of their engaging in
interstate commerce in the State of Alabama, have an
obligation to comply with Alabama's laws. This
includes
the
prohibition
of
the
possession,
promotion or transportation of gambling devices and
records. See Ala. Code [1975,] § 13A- 12-20 et seq.
The Defendants have engaged in all these illegal
behaviors by contracting and offering the games in
[their respective counties].
"... This continued operation of illegal slot
machines and unlawful gambling devices by Defendants
is a public nuisance. See Ala. Code [1975,] §
6-5-120 et seq.; Restatement (Second) of Torts §
821B; Try-Me Bottling Company et al v. State of
Alabama, 178 So. 231 (Ala. 1938).
"... The continued operation of slot machines
and unlawful gambling devices by Defendants works
hurt, inconvenience, or damage to the public
interest.
"...
The
public
policy
of
Alabama
is
emphatically against lotteries or any scheme in the
nature of a lottery.
"... The State has an interest in the welfare of
the people within her domain and, of consequence, in
enforcement of the State's declared public policy
against lotteries or gift schemes. Try-Me Bottling
Co. at 235.
"... Defendants' operation of lotteries and
their use of slot machines and unlawful gambling
devices are enjoinable in suit by the State by
virtue of this Court's equity jurisdiction to abate
10
1180675; 1180794
a public nuisance. See Try-Me Bottling Company et
al v. State of Alabama, 178 So. 2d 231 (Ala. 1938).
"... The State of Alabama, through its Attorney
General, is a proper party to file an action to
enjoin the public nuisance of unlawful gambling in
the State of Alabama."
A. Jurisdiction as to the State's Requests for a
Declaratory Judgment
In State ex rel. Tyson v. Ted's Game Enterprises, 893 So.
2d 355, 361–62 (Ala. Civ. App. 2002), aff'd, 893 So. 2d 376
(Ala. 2004), the State filed a complaint seeking the
forfeiture of video-gaming machines, currency, and documents
that law-enforcement officers had seized from various
businesses in Mobile County. Ted's Game Enterprises
("Ted's"), the owner and distributor of the machines, was
served with the complaint. The State alleged that the
machines were "'slot machines and video gambling devices,
paraphernalia, currency and records,' which pursuant to the
criminal gambling statutes, were contraband and were used and
intended for use in unlawful gambling activity." 893 So. 2d
at 358. The State subsequently filed an amended complaint.
In the amended complaint the State requested, in part, a
"judgment declaring that the
machines owned and distributed by
Ted's are illegal 'slot
machines' and 'gambling devices' under
11
1180675; 1180794
Alabama's criminal gambling statutes and that they are not
'bona fide coin-operated amusement machines' protected by §
13A-12-76[, Ala. Code 1975,] from the prohibitions of those
gambling statutes." Id. The State subsequently voluntarily
dismissed its forfeiture claims as to 12 of those machines
that had been returned to Ted's but did not dismiss its
declaratory-judgment action. The State also filed a second
amended complaint that "added a new claim seeking declaratory
judgment as to the constitutionality of § 13A-12-76 in
relation to Alabama Constitution 1901, Art. IV, § 65." 893
So. 2d at 359. Ted's and one of the businesses from which the
machines had been seized filed a joint answer to the complaint
asserting the defenses of res judicata and collateral
estoppel. They also filed joint motions for a summary
judgment and for a judgment as a matter of law. The trial
court denied those motions. After a hearing on the merits,
the trial court concluded that the eight machines that were
still in the State's possession were illegal gambling devices
that were not protected by § 13A-12-76 and were subject to
forfeiture. Ultimately, the trial court entered an amended
judgment in which it held that § 13A-12-76 "did not authorize
12
1180675; 1180794
the operation of a lottery and was 'not unconstitutional for
that reason.'" 893 So. 2d at 360. The State appealed the
trial court's decision to this Court. Ted's argued that the
State did not have standing to pursue the appeal. In
addressing one of Ted's standing arguments, this Court stated:
"First, Ted's states in a footnote in its brief to
this Court that 'it does not affirmatively appear
that the State is a "person" under the Declaratory
Judgment Act entitled to assert this action. Ala.
Code [1975,] §§ 6–6–220, 6–6–223.'
"Ted's cites no authority, however, to indicate
that the Legislature did not intend that the State,
like other persons, could avail itself, in an
appropriate case, of the remedies afforded by the
Declaratory Judgment Act. We note that other
jurisdictions
that
have
adopted
the
Uniform
Declaratory Judgment Act have construed the term
'person' to include the State. See, e.g., State v.
General American Life Ins. Co., 132 Neb. 520, 272
N.W. 555 (1937); see also, 26 C.J.S., Declaratory
Judgments, §§ 133–34, pp. 225–28 (2001) (noting that
a state, a political subdivision of a state, the
attorney general of the state, and other state
officers and county officers may generally file an
action for declaratory relief).
"'To enforce its rights or redress its wrongs,
as a political corporation, a state may ordinarily
avail itself of any remedy or form of action which
would be open to a private suitor under similar
circumstances.' Ex parte State ex rel. Attorney
General, 245 Ala. 193, 195, 16 So. 2d 187, 188
(1943); see also Ala. Code 1975, § 6–5–1(a) ('The
state may commence an action in its own name and is
entitled
to
all
remedies
provided
for
the
enforcement of rights between individuals without
13
1180675; 1180794
giving bond or security or causing an affidavit to
be made, though the same may be required as if the
action
were
between
private
citizens.');
Consolidated Indem. & Ins. Co. v. Texas Co., 224
Ala. 349, 140 So. 566 (1932).
"The
purpose of
the
Declaratory Judgment Act
'is
to settle and to afford relief from uncertainty and
insecurity with respect[] to rights, status, and
other legal relations and is to be liberally
construed and administered.' Ala. Code 1975, §
6–6–221; see also Thompson v. Chilton County, 236
Ala. 142, 144, 181 So. 701, 703 (1938) ('the
Declaratory Judgment Act was designed to supply the
needs
of
a
form
of
action
that
will
set
controversies
at
rest
before
they
lead
to
repudiation of obligations, the invasion of rights,
and the commissions of wrongs' (emphasis added)).
In light of the invasive power the State wields when
it seeks to enforce statutory provisions against its
citizens, the State's right to seek a declaratory
judgment with respect to matters such as those at
issue here appears to be particularly appropriate."
893 So. 2d at 361–62. Similarly, in these cases, in which the
State is seeking to enjoin an alleged public nuisance, the
State's right to seek a judgment declaring whether the
defendants'
electronic-bingo
machines
are
illegal
and
constitute a public nuisance "appears to be particularly
appropriate." Id. at 362.
In its order, the Lowndes Circuit Court concluded, in
pertinent part:
"Because the State's requested relief would require
the Court to make factual determinations as to
14
1180675; 1180794
whether the Defendants' activity and conduct in
Lowndes County is criminal, the Court lacks
jurisdiction
over
the
State's
Complaint
for
declaratory judgment."
The Lowndes Circuit Court based this conclusion on this
Court's decisions in Tyson v. Macon County Greyhound Park,
Inc., 43 So. 3d 587 (Ala. 2010), and State v. Greenetrack,
Inc., 154 So. 3d 940 (Ala. 2014).
However, Macon County Greyhound Park and Greenetrack are
factually distinguishable from the case presently before us.
Neither Macon County Greyhound Park nor Greenetrack involved
an action in which the State sought to have conduct declared
a public nuisance. Rather, in those cases, private parties
instituted collateral proceedings seeking to have gaming
devices declared legal after the State had seized those
devices and other items from their premises. Our decisions in
Macon County Greyhound Park and Greenetrack were based on the
separation-of-powers doctrine and
the
fact that a court should
not interfere with the
executive branch's authority to enforce
the laws of this State. However, in this case, the executive
branch instituted judicial proceedings to aid in its efforts
to enforce the laws of the State. Thus, this case does not
implicate the same separation-of-powers concerns that were at
15
1180675; 1180794
issue in Macon County Greyhound Park and Greenetrack.
Additionally, neither Macon County Greyhound Park nor
Greenetrack speaks to the issue whether the State, in an
action seeking to enjoin an alleged public nuisance, can seek
a judgment declaring that conduct is, in fact, illegal and
constitutes a public nuisance. Therefore, the
Lowndes Circuit
Court's reliance on Macon County Greyhound Park and
Greenetrack was misplaced.
B. Jurisdiction as to the State's Requests for
Injunctive Relief
In both cases, the circuit courts concluded that they did
not have jurisdiction to enjoin the commission of criminal
offenses and that, therefore, the State had failed to state
a claim upon which relief could be granted.
Section 6-5-121, Ala. Code 1975, provides, in pertinent
part:
"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. ...
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."
(Emphasis added.) "The state, under its police power, has the
authority to abate nuisances offensive to the public health,
16
1180675; 1180794
welfare, and morals." College Art Theatres, Inc. v. State ex
rel. DeCarlo, 476 So. 2d 40, 44 (Ala. 1985).
"Traditionally, continuing activity contrary to
public morals or decency have constituted public
nuisances. Price v. State, 96 Ala. 1, 11 So. 128
(1891); Ridge v. State, 206 Ala. 349, 89 So. 742
(1921); Hayden v. Tucker, 37 Mo. 214 (1866); Federal
Amusement Co. v. State, ex rel. Tuppen, 159 Fla.
495, 32 So. 2d 1 (1947); Abbott v. State, 163 Tenn.
384, 43 S.W.2d 211 (1931); Perkins on Criminal Law,
p. 395 (Foundation Press, 1969); Wood, Law of
Nuisances, § 68, p. 87, vol. 1 (3d ed., 1893); 66
C.J.S. Nuisance § 18 d, p. 766. Under the police
power, a court of equity with proper legislative
authorization can assume jurisdiction to abate a
nuisance
notwithstanding
the
fact
that
the
maintenance of that nuisance may also be a violation
of the criminal law. Ridge v. State, supra; Evans
Theatre Corporation v. Slaton, 227 Ga. 377, 180 S.E.
2d 712 (1971), cert. denied[,] 404 U.S. 950, 92 S.
Ct. 281, 30 L. Ed. 2d 267 (1971)."
General Corp. v. State ex rel. Sweeton, 294 Ala. 657, 663, 320
So. 2d 668, 672–73 (1975)(emphasis added).
In Try-Me Bottling Co. v. State, 235 Ala. 207, 178 So.
231 (1938), the State sought and received injunctive relief
against Try-Me Bottling Co. based on an allegation that Try-Me
was conducting "a lottery or gift enterprise in the nature of
a lottery in disregard of the laws of this State." 235 Ala.
at 209, 178 So. at 232. In that case, Try-Me conducted a
promotion whereby it printed amounts ranging from five cents
17
1180675; 1180794
to one dollar on a bottle cap for bottled drinks. The amount
was located under the cork on the bottle cap. Purchasers of
the bottled drink would lift the cork and look for a number.
If the cap had a "'lucky' number," it was redeemable in cash
by the dealer. The dealer would then be reimbursed by Try-Me.
235 Ala. at 210, 178 So. at 233. The corporation president
and manager of Try-Me noted that a lot of the bottle caps were
thrown out in the trash and then picked up by children. This
Court noted that "[n]o skill is required, the 'lucky' number
determines the value." Id.
In addressing the merits of the case in Try-Me, this
Court stated:
"The question of what constitutes a lottery or
gift enterprise in the nature of a lottery has been
here recently considered in Grimes v. State, Ala.
Sup., [235 Ala. 192,] 178 So. 73 [(1937)], and needs
no reiteration.
"Under that authority, there can be no doubt
that defendants' advertising scheme comes within the
definition of a lottery as therein set forth, and
therefore runs counter to our constitutional and
statutory provision for the suppression of lotteries
and
gambling
devices
generally.
Section
65,
Constitution 1901; Section 4247, Code of 1923; Gen.
Acts 1931, p. 806.
"Our decisions recognize the general rule that
courts of equity have no jurisdiction to enjoin the
commission of offenses against the criminal laws of
18
1180675; 1180794
the State. Pike County Dispensary v. Mayor, etc.,
Brundidge, 130 Ala. 193, 30 So. 451 [(1901)].
"On the other hand, if the facts presented
disclose the need of equity intervention for the
protection of rights cognizable by equity, then
injunctive relief may be granted, though as an
incident thereto the writ may also restrain the
commission of a crime. Or, as otherwise stated,
equity will not withhold the remedy of injunctive
relief merely because the acts constituting a
nuisance are also of a criminal nature. Numerous
illustrative cases are noted in the annotations
found in 40 A.L.R. p. 1145 et seq.; 91 A.L.R. p. 316
et seq. Some authorities have persistently held to
the view that equity will grant injunctive relief
only when property rights are involved, but this
court long since repudiated any such theory as
wholly unsound. State v. Ellis, 201 Ala. 295, 78
So. 71, L.R.A. 1918D, 816 [(1918)], and authorities
therein cited, including that of Stead v. Fortner,
255 Ill. 468, 99 N.E. 680, 684 [(1912)], wherein was
the following language here pertinent: 'The
maintenance of the public health, morals, safety,
and welfare is on a plane above mere pecuniary
damage, although not susceptible of measurement in
money, and to say that a court of equity may not
enjoin a public nuisance because property rights are
not involved would be to say that the state is
unable to enforce the law or protect its citizens
from public wrongs.'
"The bill, therefore, rests for its equity upon
the well-recognized and ancient jurisdiction of
equity courts to restrain by injunction public
nuisances. Ridge v. State, 206 Ala. 349, 89 So. 742
[(1921)]; State v. Ellis, 201 Ala. 295, 78 So. 71,
72, L.R.A. 1918D, 816 [(1918)].
"But defendants insist there is no public
nuisance shown, and that at most only a violation of
the criminal statute is involved. We cannot agree.
19
1180675; 1180794
The device under the cap of the bottle is for
convenience referred to in the argument as the
'flicker device,' and, as previously observed, they
are so distributed as to average 15 cents a case.
It is an advertising scheme, as more fully indicated
by the following handbills distributed to the public
by defendants:
"'....'
"According to the marking of the 'flicker,' any
one finding these bottle caps or crowns may be
entitled to receive from 5 cents to $1. Of course,
the larger number have no such marking. And, as we
have observed, children often find these crowns in
trash piles, and it is quite evident they are widely
distributed over the State. These 'flicker devices'
are manufactured at defendant's plant. Perhaps the
language of section 4281, Code of 1923, may not be
interpreted so as to include the 'flicker device'
here involved, though it may tend in some degree to
demonstrate the legislative mind as to those places
where gambling devices are kept, and denominate them
common nuisances. But such a device is clearly
embraced in the broad and comprehensive language of
the Act 'To Suppress The Evils of Gambling Devices'
of July 1931, General Acts 1931, p. 806, with,
perhaps, particular reference to subdivision (h) of
section 1, page 807: 'Any machine, mechanical
device,
contrivance,
appliance
or
invention,
whatever its name or character, intended for the
purpose of winning money or any other thing by
chance or hazard.'
"And
being thus embraced within the
influence of
this act, these 'flicker devices,' manufactured at
defendant's plant, are unlawfully in defendants'
possession and subject to seizure (section 5 of the
act, p. 808) and condemnation, forfeiture, and
destruction (sections 6 and 9 of the act, pp. 808,
809) under decree of a court of equity. Their
20
1180675; 1180794
possession is under section 4, p. 807, also made a
misdemeanor.
"And under section 4247, Code of 1923, any
person who conducts a lottery or any gift enterprise
or scheme in the nature of a lottery is likewise
guilty of a misdemeanor.
"Statutes of this character were passed in
obedience to the mandate of section 65 of our
Constitution,
which
expressly
denies
to
the
Legislature any power to authorize lotteries, and
directs the passage of laws 'to prohibit the sale in
this state of lottery or gift enterprise tickets, or
tickets in any scheme in the nature of a lottery.'
In this State, therefore, the public policy is
emphatically declared against lotteries or any
scheme in the nature of a lottery, both by
Constitution and by statutes.
"The attitude of this State in reference to such
practices was well expressed by this court in
Johnson v. State, 83 Ala. 65, 3 So. 790, 791
[(1888)], in the following language: 'This
construction is in full harmony with the policy of
the constitution and laws of Alabama prohibitory of
the vicious system of lottery schemes and the evil
practice of gaming, in all their protean shapes,
tending, as centuries of human experience now fully
attest, to mendicancy and idleness on the one hand,
and moral profligacy and debauchery on the other.
No state has more steadfastly emphasized its
disapprobation of all these gambling devices of
money-making by resort to schemes of chance than
Alabama. For more than 40 years past -- we may say,
from the organization of the state, with some few
years of experimental leniency -- the voice of the
legislature has been loud and earnest in its
condemnation of these immoral practices, now deemed
so enervating to the public morals.'
21
1180675; 1180794
"True, the lawmaking body has not in so many
words declared the use of such devices a nuisance,
but it is our view that in substance and effect this
has been done.
"We have said these 'flicker devices' come
within the condemnation of the 1931 act and their
possession unlawful. They can be used for no lawful
purpose, and are scattered unlawfully throughout
defendants' trade territory.
"In Lee v. City of Birmingham, 223 Ala. 196, 135
So. 314, 315 [(1931)], speaking to a like question,
this court observed that 'it is held by respectable
authority that, if a gambling device is prohibited
by statute, its operation may be considered a
nuisance, and abated upon proper proceedings.'
"And in Mullen & Co. v. Moseley, 13 Idaho 457,
90 P. 986, 990, 12 L.R.A., N.S., 394, 121 Am. St.
Rep. 277, 13 Ann. Cas. 450 [(1907)], (cited in the
Lee Case, supra), the court said: 'It has been
urged by counsel for appellants that, in order to
authorize the destruction of these machines, it was
necessary for the Legislature to declare them a
nuisance. The Legislature has in effect done so. It
has prohibited their use in any manner or form, and
has also directed that, when any such instruments
are found within this state, they shall be seized
and destroyed. Making their use a crime and
rendering them incapable of any legitimate use
reduces them to the condition and state of a public
nuisance which they clearly are. This amounts as
effectually to declaring them a nuisance as if the
word "nuisance" itself had been used in the
Statute.'
"The mere prosecution for a misdemeanor here
involved will not give complete relief. The State
is interested in the welfare of the people within
her domain, and, of consequence, in the enforcement
of the declared public policy against lotteries or
22
1180675; 1180794
gift schemes in the nature thereof. And, as said by
the Illinois court, Stead v. Fortner, 255 N.E. 468,
99 N.E. 680 [(1912)], here approvingly quoted in
State v. Ellis, supra: 'As we have noted above,
this
court
has
never
regarded
a
criminal
prosecution, which can only dispose of an existing
nuisance and cannot prevent a renewal of the
nuisance, for which a new prosecution must be
brought, as a complete and adequate remedy for a
wrong inflicted upon the public. The public
authorities have a right to institute the suit where
the general public welfare demands it and damages to
the public are not susceptible of computation. The
maintenance of the public health, morals, safety,
and welfare is on a plane above mere pecuniary
damage, although not susceptible of measurement in
money; and to say that a court of equity may not
enjoin a public nuisance because property rights are
not involved would be to say that the state is
unable to enforce the law or protect its citizens
from public wrongs.'
"And, as observed by this court in the Ellis
Case, supra, 'whether the maintenance of a public
nuisance is or is not punishable in the law courts
as a crime is an immaterial incident so far as the
preventive jurisdiction of equity is concerned; for
equity ignores its criminality, and visits upon the
offender no punishment as for a crime.'
"The Pike County Dispensary Case [Pike County
Dispensary v. Mayor, etc., of Town of Brundidge, 130
Ala. 193, 30 So. 451 (1901)], upon which defendants
lay some stress, involved no question of public
nuisance. At that time there had been no such
declared policy as presented in the instant case
concerning lotteries. The education and interest of
the public in the evils there involved were gradual,
and became later crystallized into definite statutes
on the subject. As we stated in the beginning, that
case is authority only against equity jurisdiction
for prevention of crime, and nothing more."
23
1180675; 1180794
235 Ala. at 210-13, 178 So. at 233-35 (emphasis added).
In their motions to dismiss, the defendants based their
arguments that the circuit courts did not have jurisdiction to
enjoin criminal behavior on this Court's prior decision in
Wilkinson v. State ex. rel. Morgan, 396 So. 2d 86 (Ala. 1981).
Additionally, the
Lowndes
Circuit
Court
specifically
based
its
conclusion that it did not have jurisdiction to enjoin the
commission of criminal offenses, and that, therefore, the
State had failed to state a claim upon which relief could be
granted, on Wilkinson.
In Wilkinson,
"[t]he State of Alabama sought and received a
permanent injunction to abate an alleged gaming
nuisance under the provisions of [Ala.] Code 1975,
§ 13-7-90, viz:
"'All places maintained or resorted to
for the purpose of gaming and all places
where gaming tables or other gaming devices
are kept for the purpose of permitting
persons to game thereon or therewith are
declared to be common nuisances and may be
abated by writ of injunction issued out of
a court upon a complaint filed in the name
of the state by the attorney general or any
district attorney whose duty requires him
to prosecute criminal cases in behalf of
the state in the county wherein the
nuisance is maintained, ....'
24
1180675; 1180794
"The State alleged that the conducting of bingo
games by defendants constituted 'gaming' within the
purview of the statute. Defendant Gateway Malls,
Inc., is the owner of the property on which the
bingo games were played. The other defendants are
the alleged operators of the games.
"Defendants raised a defense of discriminatory
enforcement, claiming other bingo operations and
additional gambling activities were taking place
with impunity in Jefferson County and throughout the
state. They also filed counterclaims to enjoin the
state from an alleged discriminatory enforcement of
[Ala.] Code 1975, § 13-7-90. These were denied in
the trial court's decree granting the state a
permanent injunction."
396 So. 2d at 87–88. The defendants appealed to this Court
the trial court's order entering the permanent injunction.
On appeal, this Court held that the permanent injunction
was due to be dissolved. This Court noted that § 13-7-90,
Ala. Code 1975, had been repealed by the enactment of new
criminal code in Title 13A; that the complaint in that case
had relied solely on the provisions of § 13-7-90; that the
trial court had relied solely on § 13-7-90 to find a nuisance;
that there were not any independent claims or findings of a
nuisance; and that the repeal of § 13-7-90 destroyed the
premise on which the injunction had been issued. Relying on
Try-Me Bottling, supra, the State argued that, even if § 13-7-
90 had been repealed, the trial court still had the authority
25
1180675; 1180794
to issue the injunction. This Court addressed that assertion
as follows:
"We agree that a court of equity may have the
authority to enjoin a nuisance, even if it also
constitutes a crime, in some circumstances.
"'Our decisions recognize the general
rule that courts of equity have no
jurisdiction to enjoin the commission of
offenses against the criminal laws of the
State. Pike County Dispensary v. Mayor,
etc., Brundidge, 130 Ala. 193, 30 So. 451
[(1901)].
"'On the other hand, if the facts
presented disclose the need of equity
intervention for the protection of rights
cognizable by equity, then injunctive
relief may be granted, though as an
incident thereto the writ may also restrain
the commission of a crime.'
"Try-Me Bottling Co., 235 Ala. at 210, 178 So. 231
(Emphasis added).
"However,
that
authority
has
not
been
established in the instant case. For instance,
there are no findings here, as made in Try-Me, that
the mere prosecution for a misdemeanor would not
give complete relief. The Try-Me court was also
concerned with the detrimental effect of the lottery
scheme on children. Children were found to be
rooting about in trash piles to find bottle caps
with lucky numbers. Any such findings in the
instant case were pretermitted by complete reliance
on [Ala.] Code 1975, § 13-7-90, to establish an
enjoinable nuisance."
26
1180675; 1180794
Wilkinson, 396 So. 2d at 90. Thus, Wilkinson did not overrule
Try-Me. In fact, it recognized that, even though § 13-7-90
had been repealed, the principles set forth in Try-Me were
still applicable. Therefore, this Court's decision in
Wilkinson does not support a conclusion that a circuit court
does not, under any circumstances, have jurisdiction to grant
injunctive relief merely because the conduct complained of
constitutes a criminal offense.
Based on the foregoing, the circuit courts erred when
they determined that they did not have subject-matter
jurisdiction over the State's requests for injunctive relief
and that the State had failed to state claims upon which
relief could be granted.
C. The Macon Circuit Court's Additional Findings
In its judgment, the Macon Circuit Court stated, in
pertinent part:
"The Complaint fails to state a claim for which
relief can be granted; jurisdiction in equity is not
available for the State's claims; the State has
other available remedies for the alleged violation
of the State's criminal laws and ... the Defendants'
alleged conduct alone, without other demonstrable
harm, is not a public nuisance; and even assuming
the conduct is a public nuisance, the Wind Creek
Casinos are not parties here and without them
injunctive relief will not provide full and complete
27
1180675; 1180794
relief or protect the public health, safety, or
welfare -- the almost 5,000 electronic bingo
machines operated by them nearby will continue to
operate unhampered, unrestricted, and unmolested.
The Court is also troubled by the precedent that
would be set by a judgment in favor of the State
where there is no statute declaring Defendants'
alleged conduct to be a public nuisance. Other laws
are broken daily in Macon County such as the laws
imposing a speed limit which are readily ignored by
members of the public, specifically on I-85, and the
State is fully knowledgeable of the ongoing
violations. The breaking of these laws sometimes
has catastrophic consequences and results in damage
to property, persons and death. However, there is
no effort to enjoin the committing of other crimes.
As such, the Court would exercise its discretion by
refusing to enjoin Defendants' conduct merely for
the sake of its alleged criminality, especially
where Defendants' alleged conduct would, if a crime,
be a misdemeanor and no tangible and specific harm
to the public is alleged to arise from it."
The Macon Circuit Court's findings in this regard appear
to go to the merits of the State's claim for injunctive
relief. However, the Macon Circuit Court did not conduct a
hearing on the State's motions for a preliminary or permanent
injunction. Rather, it specifically stated that it was
considering only the motions to dismiss filed by the Macon
County defendants. Therefore, it appears that any such
finding is premature.
To the extent the Macon Circuit Court's statements in
this regard apply to its conclusion that the State has failed
28
1180675; 1180794
to State a claim upon which relief can be granted, such a
holding is not supported by this Court's prior caselaw.
"'The appropriate standard of review under
Rule 12(b)(6)[, Ala. R. Civ. P.,] 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 [it] to
relief. In making this determination, this
Court does not consider whether
the
plaintiff
will
ultimately
prevail,
but
only
whether [it] may possibly prevail. We note
that a Rule 12(b)(6) 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 v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)
(citations omitted)."
Ex parte Drury Hotels Co., [Ms. 1181010, February 28, 2020)
___ So. 3d ___, ___ (Ala. 2020).
"'"To be entitled to a permanent
injunction, a plaintiff must demonstrate
success on the merits, a substantial threat
of irreparable injury if the injunction is
not granted, that the threatened injury to
the plaintiff outweighs the harm the
injunction may cause the defendant, and
that granting the injunction will not
disserve the public interest."'
"[Grove Hill Homeowners' Ass'n v. Rice,] 43 So. 3d
[609,] 613 [(Ala. Civ. App. 2010)] (quoting TFT,
Inc. v. Warning Sys., Inc., 751 So. 2d 1238, 1242
29
1180675; 1180794
(Ala. 1999), overruled on other grounds, Holiday
Isle, LLC v. Adkins, 12 So. 3d 1173 (Ala. 2008))."
Grove Hill Homeowners' Ass'n, Inc. v. Rice, 90 So. 3d 731, 734
(Ala. Civ. App. 2011).
The Macon Circuit Court found that the Macon County
defendants' conduct "alone, without other demonstrable harm,
is not a public nuisance." It further stated that it
"would exercise its discretion by refusing to enjoin
Defendants' conduct merely for the sake of its
alleged criminality, especially where Defendants'
alleged conduct would, if a crime, be a misdemeanor
and no tangible and specific harm to the public ...
is alleged to arise from it."
This Court has stated:
"A nuisance is thus defined by both the statutes
and the decisions in this state:
"A nuisance is anything that works hurt,
inconvenience, or damage to another; and the fact
that the act may otherwise be lawful does not keep
it from being a nuisance. The inconvenience
complained of must not be fanciful, nor such as
would affect only one of fastidious taste, but it
should be such as would affect an ordinarily
reasonable man.
"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. ...
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
30
1180675; 1180794
person injured. Code, §§ 5193–5196. 'Nuisance'
signifies 'anything that worketh inconvenience,' and
a common or public nuisance is defined to be an
offense against the public, either by doing a thing
which tends to the annoyance of all persons, or by
neglecting to do a thing which the common good
requires. State v. Mayor and Aldermen of Mobile, 5
Port. 279, 30 Am. Dec. 564 [(1837)]; Ferguson v.
City of Selma, 43 Ala. 398 [(1869)]."
City of Selma v. Jones, 202 Ala. 82, 83–84, 79 So. 476, 477–78
(1918).
In the Macon County case, the State alleged that the
Macon County defendants' gaming devices were illegal slot
machines and that the operation of those machines constituted
unlawful gambling activity. It further alleged that the Macon
County defendants "do not have the authority to operate,
advance, or profit from unlawful gambling activity in
violation of Article IV, Section 65 of the Alabama
Constitution (1901) and Ala. Code [1975,] § 13A-12-20 et seq."
This Court has stated:
"Section 65 of the Constitution of Alabama of
1901, in prohibiting a lottery or 'any scheme in the
nature of a lottery,' was intended to provide a
broad proscription of the evils suffered by earlier
generations who, after experiencing the effects
firsthand, found lotteries to be 'among the most
dangerous and prolific sources of human misery.' 34
B.C.L. Rev. at 12–13, citing A.R. Spoffard,
Lotteries in American History, S. Misc. Doc. No. 57,
31
1180675; 1180794
52d Cong., 2d Sess. 194–95 (1893) (Annual Report of
the American Historical Society)."
Opinion of the Justices No. 373, 795 So. 2d 630, 643 (Ala.
2001) (emphasis added).
Section 13A-12-27, Ala. Code 1975, provides:
"(a) A person commits the crime of possession of
a gambling device if with knowledge of the character
thereof he manufactures, sells, transports, places
or possesses, or conducts or negotiates any
transaction
affecting
or
designed
to
affect
ownership, custody or use of:
"(1) A slot machine; or
"(2) Any other gambling device, with
the intention that it be used in the
advancement of unlawful gambling activity.
"(b) Possession of a gambling device is a Class
A misdemeanor."
Section 13A-12-22, Ala. Code 1975, provides:
"(a) A person commits the crime of promoting
gambling if he knowingly advances or profits from
unlawful gambling activity otherwise than as a
player.
"(b)
Promoting
gambling
is
a
Class
A
misdemeanor."
In Try-Me, this Court stated:
"In this State, therefore, the public policy is
emphatically declared against lotteries or any
scheme in the nature of a lottery, both by
Constitution and by statutes.
32
1180675; 1180794
"The attitude of this State in reference to such
practices was well expressed by this court in
Johnson v. State, 83 Ala. 65, 3 So. 790, 791
[(1888)], in the following language: 'This
construction is in full harmony with the policy of
the constitution and laws of Alabama prohibitory of
the vicious system of lottery schemes and the evil
practice of gaming, in all their protean shapes,
tending, as centuries of human experience now fully
attest, to mendicancy and idleness on the one hand,
and moral profligacy and debauchery on the other.
No state has more steadfastly emphasized its
disapprobation of all these gambling devices of
money-making by resort to schemes of chance than
Alabama. For more than 40 years past -- we may say,
from the organization of the state, with some few
years of experimental leniency -- the voice of the
legislature has been loud and earnest in its
condemnation of these immoral practices, now deemed
so enervating to the public morals.'
"True, the lawmaking body has not in so many
words declared the use of such devices a nuisance,
but it is our view that in substance and effect this
has been done.
"We have said these 'flicker devices' come
within the condemnation of the 1931 act and their
possession unlawful. They can be used for no lawful
purpose, and are scattered unlawfully throughout
defendants' trade territory.
"In Lee v. City of Birmingham, 223 Ala. 196, 135
So. 314, 315 [(1931)], speaking to a like question,
this court observed that 'it is held by respectable
authority that, if a gambling device is prohibited
by statute, its operation may be considered a
nuisance, and abated upon proper proceedings.'
"And in Mullen & Co. v. Moseley, 13 Idaho 457,
90 P. 986, 990, 12 L.R.A., N.S., 394, 121 Am. St.
Rep. 277, 13 Ann. Cas. 450 [(1907)], (cited in the
33
1180675; 1180794
Lee Case, supra), the court said: 'It has been
urged by counsel for appellants that, in order to
authorize the destruction of these machines, it was
necessary for the Legislature to declare them a
nuisance. The Legislature has in effect done so.
It has prohibited their use in any manner or form,
and
has
also
directed
that,
when
any
such
instruments are found within this state, they shall
be seized and destroyed. Making their use a crime
and rendering them incapable of any legitimate use
reduces them to the condition and state of a public
nuisance which they clearly are. This amounts as
effectually to declaring them a nuisance as if the
word "nuisance" itself had been used in the
Statute.'"
235 Ala. at 212, 178 So. at 234-35 (emphasis added).
Similarly, if the gaming devices at issue in the Macon County
case constitute illegal gambling devices, they can be used for
no lawful purpose and their "'operation may be considered a
nuisance, and abated upon proper proceedings.'" Try-Me, 235
Ala. at 235, 178 So. at 212 (quoting Lee v. City of
Birmingham, 223 Ala. 196, 197, 135 So. 314, 315 (1931)).
The Macon Circuit Court also held that the State had
other adequate remedies. However, as this Court noted in Try-
Me:
"The mere prosecution for a misdemeanor here
involved will not give complete relief. The State
is interested in the welfare of the people within
her domain, and, of consequence, in the enforcement
of the declared public policy against lotteries or
gift schemes in the nature thereof. And, as said by
34
1180675; 1180794
the Illinois court, Stead v. Fortner, 255 N.E. 468,
99 N.E. 680 [(1912)], here approvingly quoted in
State v. Ellis, [201 Ala. 295, 78 So. 71 (1918)]:
'As we have noted above, this court has never
regarded a criminal prosecution, which can only
dispose of an existing nuisance and cannot prevent
a renewal of the nuisance, for which a new
prosecution must be brought, as a complete and
adequate remedy for a wrong inflicted upon the
public. The public authorities have a right to
institute the suit where the general public welfare
demands it and damages to the public are not
susceptible of computation. The maintenance of the
public health, morals, safety, and welfare is on a
plane above mere pecuniary damage, although not
susceptible of measurement in money; and to say that
a court of equity may not enjoin a public nuisance
because property rights are not involved would be to
say that the state is unable to enforce the law or
protect its citizens from public wrongs.'"
235 Ala. at 212, 178 So. at 235.
Additionally, this Court's myriad decisions dealing with
the legality of
electronic bingo machines supports the State's
assertion that it does not have any other adequate remedy to
abate the public nuisances alleged here. In State v.
$223,405.86, 203 So. 3d 816 (Ala. 2016), this Court addressed
the State's appeal from an order dismissing a forfeiture
action against KCED on equal-protection grounds and the trial
court's conclusion "that 'the Macon County voter when voting
on [Local Amendment, Macon County, § 1, Ala. Const. 1901 (Off.
Recomp.) ('Amendment No. 744'),] understood it to be all forms
35
1180675; 1180794
of bingo."2 203 So. 3d at 822. In addressing the equal-
protection issue, this Court stated:
"This Court, however, may take notice of our own
prior decisions.
"The efforts of the State to enforce Alabama's
gambling laws and to prevent misuse of local
constitutional amendments legalizing bingo have
resulted in at least a dozen decisions by this Court
during the last six years.5 We began our analysis in
one of those cases, State v. Greenetrack, Inc., 154
So. 3d 940 (Ala. 2014), by noting the widespread
efforts
undertaken
by
State
law-enforcement
officials and by county and State courts to shut
down so-called 'electronic-bingo machines' in locale
after locale throughout Alabama:
"'[T]he State takes note of our holding in
[Barber
v.]
Cornerstone
[Community
Outreach, Inc., 42 So. 3d 65 (Ala. 2009),]
and our reliance upon Cornerstone last year
in Ex parte State, 121 So. 3d 337, 359
(Ala. 2013). The State also notes that,
consistent
with
these
holdings,
judges
have
in recent months issued warrants to the
State to seize so-called "electronic bingo
machines" in Greene, Houston, Jefferson,
and
Lowndes
Counties
and
judges
in
Jefferson and Houston Counties have issued
various final rulings finding this sort of
gambling illegal.'
2In State v. $223,405.86, this Court issued a writ of
mandamus disqualifying one of the Macon County circuit court
judges from presiding over the forfeiture case. After "[a]ll
the other eligible judges in the Fifth Judicial Circuit, which
includes Macon County, voluntarily recused themselves,"
Montgomery Circuit Judge William Shashy was appointed to
preside over that case. 203 So. 3d at 821.
36
1180675; 1180794
"154 So. 3d at 948. Indeed, Greenetrack itself and
other cases evidence continuing activity on the part
of the State since the February 19, 2013, raid at
VictoryLand [casino] to enforce Alabama's gambling
laws against other casinos operating in the State.
See, e.g., Houston Cty. Econ. Dev. Auth. v. State,
168 So. 3d 4 (Ala. 2014) (Houston County); Alabama
v. PCI Gaming Auth., 801 F.3d 1278 (11th Cir. 2015)
(relating to a challenge by the State to the
operation of tribal casinos in Alabama).
"_____________________
"5See Houston Cty. Econ. Dev. Auth. v. State,
168 So. 3d 4 (Ala. 2014); State v. Greenetrack,
Inc., 154 So. 3d 940 (Ala. 2014); Ex parte State,
121 So. 3d 337 (Ala. 2013); Chorba–Lee Scholarship
Fund, Inc. v. Hale, 60 So. 3d 279 (Ala. 2010);
Riley v. Cornerstone Cmty. Outreach, Inc., 57 So. 3d
704 (Ala. 2010); Barber v. Cornerstone Cmty.
Outreach, Inc., 42 So. 3d 65 (Ala. 2009); Ex parte
Rich, 80 So. 3d 219 (Ala. 2011); Surles v. City of
Ashville, 68 So. 3d 89 (Ala. 2011); Tyson v. Jones,
60 So. 3d 831 (Ala. 2010); Etowah Baptist Ass'n v.
Entrekin, 45 So. 3d 1266 (Ala. 2010); Tyson v. Macon
Cty. Greyhound Park, Inc., 43 So. 3d 587 (Ala.
2010); and Macon Cty. Greyhound Park, Inc. v.
Knowles, 39 So. 3d 100 (Ala. 2009)."
203 So. 3d at 826. Subsequently, in addressing the meaning of
the term "bingo" in Amendment No. 744, this Court stated:
"Section 65 of the Alabama Constitution of 1901
prohibits 'lotteries,' 'gift enterprises,' and 'any
scheme in the nature of a lottery.' The elements of
a lottery that violate § 65 of the Constitution of
Alabama are '(1) a prize, (2) awarded by chance, and
(3) for a consideration.' Pepsi Cola Bottling Co.
of Luverne, Inc. v. Coca–Cola Bottling Co.,
Andalusia, 534 So. 2d 295, 296 (Ala. 1988). It is
this so-called 'anti-lottery provision' that stands
37
1180675; 1180794
as the constitutional bar not just to what is known
in contemporary parlance as a 'lottery,' but to slot
machines and all other forms of gambling in Alabama.
In 1981, the Justices of this Court, quoting
Yellow–Stone Kit v. State, 88 Ala. 196, 7 So. 338
(1889), explained that '"[t]he courts have shown a
general disposition to bring within the term
'lottery' every species of gaming, involving a
disposition of prizes by lot or chance...."'
Opinion of the Justices No. 277, 397 So. 2d 546, 547
(Ala. 1981).9
"The efforts to circumvent § 65 have taken on a
seemingly endless variety of imaginative forms over
a long period. For over 100 years, the appellate
courts of this State have addressed cases involving
efforts by gambling interests to evade this
prohibition in an endless variety of new and
inventive ways. See, e.g., Grimes v. State, 235
Ala. 192, 193, 178 So. 73, 73 (1937) (noting that
the language of § 65 was adopted from the Alabama
Constitution of 1875 and that '[t]he lust for profit
by catering to and commercializing the gambling
spirit has given rise to many ingenious devices').
As this Court explained in 2006 in responding to yet
another of those attempts:
"'The
owners
[of
the
gambling
establishment] propose that they have
found, and exploited, a "loophole" in the
law....
Alabama's
gambling
law,
however,
is
not so easily evaded. It is "'the policy
of the constitution and laws of Alabama [to
prohibit] the vicious system of lottery
schemes and the evil practice of gaming, in
all their protean shapes.'"'
"Barber v. Jefferson Cty. Racing Ass'n, Inc., 960
So. 2d 599, 614 (Ala. 2006) (quoting Opinion of the
Justices No. 83, 249 Ala. 516, 517, 31 So. 2d 753,
754 (1947), quoting in turn Johnson v. State, 83
38
1180675; 1180794
Ala. 65, 67, 3 So. 790, 791 (1887) ([final] emphasis
added in Barber)).
"The latest 'protean shape' conceived by those
who would own or operate casinos in Alabama has been
electronic machines claimed to constitute the game
of 'bingo' within the meaning of various local
constitutional amendments that allow bingo in
certain counties for charitable or similar purposes.
Before directly examining this recent conception, it
is helpful to consider our courts' response to
earlier 'protean shapes' conceived in an effort to
circumvent § 65.
"One of the earliest rejections by our courts of
attempts to misuse local bingo amendments occurred
a little over 20 years ago. In City of Piedmont v.
Evans, 642 So. 2d 435 (Ala. 1994), this Court held
that 'instant bingo' was a form of lottery
prohibited by § 65. The Court narrowly construed
the term 'bingo' as found in Amendment No. 508, Ala.
Const. 1901 (now Local Amendments, Calhoun County,
§ 1, Ala. Const. 1901 (Off. Recomp.)), while citing
with approval the definition of that term employed
by a related municipal ordinance:
"'"'That
specific
kind
of
game,
or
enterprise, commonly known as "bingo," in
which prizes are awarded on the basis of
designated numbers, or symbols, which are
drawn, at random, by the operator of said
game and which are placed by the persons
playing, or participating in said game, on
cards, or sheets of paper, which contain,
or set out, numbered spaces, upon which
said designated numbers or symbols, may be
placed
by
the
persons
playing
or
participating in said game.'"'
"City of Piedmont, 642 So. 2d at 437 (emphasis
added).
39
1180675; 1180794
"Three years later, in Foster v. State, 705 So.
2d 534 (Ala. Crim. App. 1997), a unanimous Court of
Criminal Appeals held in an opinion authored by then
Judge Cobb that, where 'bingo' is authorized but not
otherwise defined by local constitutional amendment,
that term means nothing '"other than the ordinary
game of bingo."' 705 So. 2d at 538 (quoting Barrett
v. State, 705 So. 2d 529, 532 (Ala. Crim. App.
1996)). The Foster court upheld the appellant's
conviction
and
12–month
prison
sentence
for
promoting gambling and possession of a gambling
device where the appellant had contended that the
gambling activity he operated was 'bingo' within the
meaning of the local bingo amendment and of a city
ordinance adopted pursuant to that amendment. The
court acknowledged '"this state's strong public
policy against lotteries as expressed in § 65 of the
Alabama Constitution,"' declared that bingo is a
'narrow exception to the prohibition of lotteries in
the Alabama Constitution,' and, accordingly, held
that 'no expression in [an] ordinance [governing the
operation of bingo] can be construed to include
anything other than the ordinary game of bingo,'
lest the ordinance be 'inconsistent with the
Constitution of Alabama.' 705 So. 2d at 537–38
(emphasis added); see also Barrett v. State, 705 So.
2d 529 (Ala. Crim. App. 1996) (to similar effect).
"In more recent years, the strategy of misusing
local bingo amendments has been renewed with
additional vigor and creativity. Indeed, ... in
just the past six years, the appellate courts of
this State have rendered at least a dozen decisions
engendered by the advent of so-called 'electronic
bingo.'10 No less than six of those cases addressed
the meaning of the simple term 'bingo' found in
those amendments,11 including Amendment No. 744,
which we addressed in one of those cases.12 The
local bingo amendments at issue in those cases were
proposed and adopted following, and thus with an
actual or imputed knowledge of, the holdings in
Evans, Foster, and Barrett. See, e.g., Ex parte
40
1180675; 1180794
Fontaine Trailer Co., 854 So. 2d 71, 83 (Ala.
2003)('It is an ingrained principle of statutory
construction that "[t]he Legislature is presumed to
be aware of existing law and judicial interpretation
when it adopts [an act]. Ex parte Louisville &
N.R.R., 398 So. 2d 291, 296 (Ala. 1981)."' (quoting
Carson v. City of Prichard, 709 So. 2d 1199, 1206
(Ala.1998))). Consistent with the holdings in those
earlier cases, we repeatedly have made clear in our
more recent cases that references to 'bingo' in
local bingo amendments are references to the
ordinary game of bingo, and not to the electronic
machines at issue in those cases.
"The first in the most recent line of cases
addressing the meaning of the term 'bingo' was
Barber v. Cornerstone Community Outreach, Inc., 42
So. 3d 65 (Ala. 2009). In Cornerstone, this Court
addressed the meaning of the term 'bingo' in the
context of Amendment No. 674, Ala. Const. 1901
(Local Amendments, Lowndes County, § 3, Ala. Const.
1901 (Off. Recomp.)), applicable to the Town of
White Hall in Lowndes County. The operative
language of that amendment states simply that '[t]he
operation of bingo games for prizes or money by
nonprofit organizations for charitable, educational
or other lawful purposes shall be legal in The Town
of White Hall that is located in Lowndes County....'
(Emphasis added.) In addition to our reliance upon
Evans and Barrett, cited above, we noted in
Cornerstone that the operative language of Amendment
No. 674, including the unadorned reference to
'bingo,' was the same as in other local amendments
that had been adopted. See Cornerstone, 42 So. 3d
at 78–80 (comparing in particular the language of
Amendment No. 674 to that of Amendment No. 508
(Local Amendments, Calhoun County, § 1, Ala. Const.
1901 (Off. Recomp.)), which was at issue in Evans
and which states that '[t]he operation of bingo
games for prizes or money by certain nonprofit
organizations for charitable, educational, or other
lawful purposes shall be legal in Calhoun county'
41
1180675; 1180794
(emphasis added)). The language at issue in the
present case, in Amendment No. 744 applicable to
Macon County, is identical to the language found in
the White Hall and Calhoun County amendments (as it
is to the other local bingo amendments governing
various localities...): 'The operation of bingo
games for prizes or money by nonprofit organizations
for
charitable,
educational,
or
other
lawful
purposes shall be legal in Macon County.' (Emphasis
added.)
"In fact, we noted in Cornerstone that the only
local bingo amendment we could find in Alabama that
had any noteworthy variation in terminology was the
amendment applicable to Greene County, Amendment No.
743 (Local Amendments, Greene County, § 1, Ala.
Const. 1901 (Off. Recomp.)), which specifically
allows 'electronic marking machines.' Even this
language, we explained, does nothing more than allow
a player to physically mark an electronic screen
rather than a paper card. We specifically noted
that this variance in language did not change the
other
essential
characteristics
of
the
game
described in Cornerstone, 42 So. 3d at 79–80. See
also discussion of State v. Greenetrack, Inc., 154
So. 3d 940 (Ala. 2014), infra.
"Having thus noted the similarity in wording of
the various local bingo amendments, this Court in
Cornerstone went on to emphasize two rules of
construction applicable to that wording. We first
observed that,
"'"[s]ince
1980,
Alabama
has
adopted
various constitutional amendments creating
exceptions to § 65, specifically allowing
the
game
of
bingo
under
certain
circumstances. See Ala. Const. [1901],
Amendments 386, 387, 413, 440, 506, 508,
542, 549, 550, 565, 569, 599, and 612."
(Emphasis
added.)
Thus,
the
bingo
amendments are exceptions to the lottery
42
1180675; 1180794
prohibition, and the exception should be
narrowly construed.'
"Cornerstone, 42 So. 3d at 78 (quoting Opinion of
the Justices No. 373, 795 So. 2d 630, 634 (Ala.
2001) (second emphasis added)). In addition, we
recognized in Cornerstone that,
"'except
where
the
language
of
a
constitutional
provision
requires
otherwise, we look to the plain and
commonly understood meaning of the terms
used in [the constitutional] provision to
discern its meaning.'
"42 So. 3d at 79 (emphasis added). (Furthermore, we
noted that, '"[a]lthough a legislative act cannot
change the meaning of a constitutional provision,
such act may throw light on its construction."' Id.
at 79 (quoting Jansen v. State ex rel. Downing, 273
Ala. 166, 169, 137 So. 2d 47, 49 (1962)).)
"Based on these principles, as well as an
examination of the cases cited above and persuasive
authority from other jurisdictions, we held in
Cornerstone that the term 'bingo' 'was intended to
reference the game commonly or traditionally known
as bingo.' 42 So. 3d at 86. Furthermore, we
identified six elements that characterize that game,
the list being nonexhaustive:
"'Based on the foregoing, we must
conclude that the term "bingo" as used in
Amendment No. 674 was intended to reference
the game commonly or traditionally known as
bingo. The characteristics of that game
include the following:
"'1. Each player uses one or
more cards with spaces arranged
in five columns and five rows,
with an alphanumeric or similar
43
1180675; 1180794
designation
assigned
to
each
space.
"'2. Alphanumeric or similar
designations are randomly drawn
and announced one by one.
"'3. In order to play, each
player must pay attention to the
values announced; if one of the
values matches a value on one or
more of the player's cards, the
player must physically act by
marking
his
or
her
card
accordingly.
"'4. A player can fail to
pay
proper
attention
or
to
properly mark his or her card,
and thereby miss an opportunity
to be declared a winner.
"'5. A player must recognize
that his or her card has a
"bingo," i.e., a predetermined
pattern of matching values, and
in turn announce to the other
players and the announcer that
this is the case before any other
player does so.
"'6.
The
game
of
bingo
contemplates a group activity in
which multiple players compete
against each other to be the
first to properly mark a card
with the predetermined winning
pattern and announce that fact.'
"42 So. 3d at 86.
44
1180675; 1180794
"Several months after
the
release
of
our
opinion
in Cornerstone, we decided Riley v. Cornerstone
Community Outreach, Inc., 57 So. 3d 704 (Ala. 2010),
in which we explained that we had recognized in
Cornerstone 'that the game of bingo authorized by
the local amendment was that game commonly and
traditionally known as bingo, and we [had] provided
a non-exhaustive list of characteristics of that
game.' Riley, 57 So. 3d at 710. We also noted that
'the game traditionally known as bingo' is a game
that
"'is not played by or within the electronic
or computerized circuitry of a machine, but
one that is played on physical cards
(typically made of cardboard or paper) and
that
requires
meaningful
interaction
between those who are playing and someone
responsible for calling out the randomly
drawn
designations
corresponding
to
designations on the players' cards.'
"57 So. 3d at 734.
"On March 1, 2013, this Court again affirmed
that the Cornerstone test was applicable to the term
'bingo' as used in Alabama's various local bingo
amendments, including specifically the Macon County
amendment at issue in the case now before us. See Ex
parte State, 121 So. 3d 337 (Ala. 2013). This Court
left no doubt that the language of Amendment No. 744
authorizes only the game 'traditionally known as
bingo,' and we again affirmed the Cornerstone test.
We explained that the Cornerstone test 'refers to
the game commonly and traditionally known as
"bingo,"' which includes the six elements of that
traditional game as described in Cornerstone, and
that the test was 'more than clear enough to serve
as guide in measuring the facts of th[at] case'
against the language of Amendment No. 744. Ex parte
State, 121 So. 3d at 356.
45
1180675; 1180794
"On April 1, 2014, this Court decided State v.
Greenetrack, Inc., 154 So. 3d 940 (Ala. 2014), a
case in which we yet again affirmed that the
references to 'bingo' in the local bingo amendments,
including,
in
that
case,
Amendment
No.
743
applicable to Greene County, are references to the
'traditional game of bingo' and the nonexhaustive
list of six elements of that game as set out in
Cornerstone. As already noted, ... we began our
analysis by noting the widespread efforts undertaken
by State law-enforcement officials and by county and
State courts to shut down so-called electronic-bingo
machines in locale after locale throughout Alabama.
"As to the meaning of the term 'bingo' in
Amendment No. 743, we held that the denial of a
search warrant by a trial court judge had been made
based upon 'an incorrect legal standard,' namely, an
incorrect understanding of what constituted 'bingo'
for purposes of Amendment No. 743. Greenetrack,
Inc., 154 So. 3d at 958. We reaffirmed the
ubiquitous meaning of the term 'bingo' in Alabama's
various local bingo amendments:
"'Amendment No. 743, just like the
amendment at issue in Cornerstone and bingo
amendments applicable to other counties,
speaks of and permits the playing of "bingo
games" (provided that a number of other
restrictions,
including
charitable
purposes, are met).[14] We identified in
Cornerstone and we reaffirm today that the
game of "bingo" as that term is used in
local constitutional amendments throughout
the State is that game "commonly or
traditionally known as bingo," 42 So. 3d at
86, and that this game is characterized by
at least the six elements we identified in
Cornerstone. Id.'
"Greenetrack, Inc., 154 So. 3d at 959 (emphasis
added).
46
1180675; 1180794
"As already noted, we further explained in
Greenetrack that there was only one noteworthy
difference between the language of Amendment No. 743
and the other local bingo amendments throughout the
State. In this regard, we noted that Amendment No.
743 allows for the use of 'electronic marking
machines' rather than 'a "card" in the sense of a
flat rectangular or square object made of paper,
cardboard, or some similar material on which the
required designations are printed.' Greenetrack,
Inc., 154 So. 3d at 959. We emphasized that, in all
other respects, the characteristics of bingo as that
term is used in other local bingo amendments are
applicable under Amendment No. 743 and reiterated
and affirmed our discussion of Amendment No. 743 in
Cornerstone:
"'"Amendment No. 743 ... legalizes in
Greene County a form of bingo that would
include an 'electronic marking machine' in
lieu of a paper card. Even [Amendment No.
743], which is the only amendment in
Alabama we have located that makes any
reference
to
the
use
of
electronic
equipment of any form, contemplates a game
in all material respects similar to the
game of bingo described in § 45–8–150(1),
[Ala. Code 1975,] [15] and something that
is materially different from the types of
electronic gaming machines at issue here.
Amendment No. 743 begins by saying that
'bingo' is '[t]hat specific kind of game
commonly known as bingo.' The definition
then explains that bingo is a game 'in
which prizes are awarded on the basis of
designated numbers or symbols on a card or
electronic marking machine conforming to
numbers or symbols selected at random.'
Moreover, the equipment contemplated by
Amendment No. 743 for use in a bingo game
is entirely different than the equipment at
issue here. Specifically, Amendment No.
47
1180675; 1180794
743 defines 'equipment' for the game of
bingo as follows:
"'"'The receptacle and numbered
objects drawn from it, the master
board upon which such objects are
placed as drawn, the cards or
sheets bearing numbers or other
designations to be covered and
the objects used to cover them or
electronic card marking machines,
and the board or signs, however
operated, used to announce or
display
the
numbers
or
designations
as
they
are
drawn.'"'
"154 So. 3d at 960 (quoting Cornerstone, 42 So. 3d
at 79–80).
"Finally, on November 21, 2014, this Court
decided
Houston
County
Economic
Development
Authority v. State, 168 So. 3d 4 (Ala. 2014). As we
have done yet again in this opinion, we reviewed in
Houston County much of the history of this Court's
decisions addressing bingo over the past six years.
In so doing, we once again affirmed that the
unadorned term 'bingo' in Alabama's local amendments
is a reference to the game 'traditionally known as
bingo,' including the six elements for that game
discussed in Cornerstone:
"'This Court repeatedly has held that
"bingo" is a form of lottery prohibited by
Ala. Const. 1901, Art. IV, § 65. See,
e.g.,
Barber
v.
Cornerstone
Cmty.
Outreach,
Inc., 42 So. 3d 65, 78 (Ala. 2009); City of
Piedmont v. Evans, 642 So. 2d 435, 436
(Ala. 1994). We therefore begin our
analysis by emphasizing once again that the
various
constitutional
amendments
permitting "bingo" are exceptions to the
48
1180675; 1180794
general prohibition of § 65 and that, as
such, they must be "narrowly construed."
As we held in Cornerstone:
"'"'Since
1980,
Alabama
has
adopted various constitutional
amendments creating exceptions to
§ 65, specifically allowing the
game
of
bingo
under
certain
circumstances. See Ala. Const.
[1901], Amendments 386, 387, 413,
440, 506, 508, 542, 549, 550,
565,
569,
599,
and
612.'
(Emphasis added.) Thus, the
bingo amendments are exceptions
to the lottery prohibition, and
the exception should be narrowly
construed."
"'42 So. 3d at 78 (quoting Opinion of the
Justices No. 373, 795 So. 2d 630, 634 (Ala.
2001)).
"'In addition to this fundamental
principle
of
"narrow
construction," we
also
recognized
in
Cornerstone
the
need,
"except
where the language of a constitutional
provision requires otherwise," to "look to
the plain and commonly understood meaning
of the terms used in [the constitutional]
provision to discern its meaning." 42 So.
3d at 79. Furthermore, we noted that,
"'[a]lthough a legislative act cannot
change the meaning of a constitutional
provision, such act may throw light on its
construction."' Id. at 79 (quoting Jansen
v. State ex rel. Downing, 273 Ala. 166,
169, 137 So. 2d 47, 49 (1962)). Based on
the above-described rules of construction,
together with an examination of persuasive
authority
from
other
jurisdictions, we
held
in Cornerstone that the term "bingo" "was
49
1180675; 1180794
intended to reference the game commonly or
traditionally known as bingo." 42 So. 3d at
86. Furthermore,
we identified
six
elements that characterize the game of
bingo, the list being nonexhaustive:
"'"...."
"'We have since stated that our
analysis in Cornerstone is applicable to
the
other
local
bingo
constitutional
amendments in this State. State v.
Greenetrack, Inc., 154 So. 3d 940, 959
(Ala. 2014) ("[T]he game of 'bingo' as that
term is used in local constitutional
amendments throughout the State is that
game 'commonly or traditionally known as
bingo,' 42 So. 3d at 86, and ... this game
is characterized by at least the six
elements we identified in Cornerstone.").'
"168 So. 3d at 9–11 (first emphasis original; other
emphasis added).
"Moreover, it
was
necessary in
Houston County to
elaborate upon each of the Cornerstone elements to
respond to the construction given each of them by
the trial court in that case. Although it is not
necessary to reproduce here our elaboration upon
each of the six elements, by this reference we
reaffirm that analysis. Further, we reiterate our
conclusion in Houston County, which summarized much
of that analysis:
"'[T]he game traditionally known as bingo
is not one played by or within an
electronic
or
computerized
machine,
terminal, or server, but is one played
outside
of
machines
and
electronic
circuitry. It is a group activity, and one
that requires a meaningful measure of human
interaction and skill. This includes
50
1180675; 1180794
attentiveness
and
discernment
and
physical,
visual,
auditory,
and
verbal
interaction
by
and between those persons who are playing
and between the players and a person
commonly known as the "announcer" or
"caller," who is responsible for calling
out the randomly drawn designations and
allowing time between each call for the
players to check their cards and to
physically
mark
them
accordingly.
In
accordance with the previously stated list
of characteristics, each player purchases
and plays the game on one or more cards
that, in a county such as Houston County
(in which the amendment does not expressly
permit "electronic marking machines"), are
not
electronic
devices
or
electronic
depictions of playing surfaces but are
actual physical cards made of cardboard,
paper,
or
some
functionally
similar
material that is flat and is preprinted
with
the
grid
and
the
designations
[required].'
"168 So. 3d at 18 (emphasis added).
"KCED concedes that the machines at issue here
are not the game commonly and traditionally known as
bingo and that they do not meet the six elements
identified in Cornerstone and further explained in
Houston County. Nonetheless, KCED takes the
position that the term 'bingo' in Amendment No. 744
means something different than that term in
Alabama's
other
'bingo
amendments.'
KCED's
position,
however,
is
contrary
to
all
the
above-discussed
precedents,
as
well
as
the
well-settled principles of plain meaning and narrow
construction upon which they are based. The
language of Amendment No. 744 is clear, and the
'plain and commonly understood meaning' of the
simple term 'bingo,' especially when coupled with
the principle of narrow construction, necessarily
51
1180675; 1180794
yields the same meaning as a matter of law for that
term in Macon County's Amendment No. 744 as it does
for the same term in Alabama's numerous other bingo
amendments.
"As
Justice Harwood noted
in
his
special writing
in City of Bessemer v. McClain, 957 So. 2d 1061,
1082 (Ala. 2006) (Harwood, J., concurring in part
and dissenting in part): '[D]eference to the
ordinary and plain meaning of the language of a
statute is not merely a matter of an accommodating
judicial philosophy; it is a response to the
constitutional mandate of the doctrine of the
separation of powers set out in Art. III, § 43,
Alabama Constitution of 1901.' This principle, of
course, is equally applicable to constitutional
provisions.
"This Court is not at liberty to deviate from
the plain meaning of the term 'bingo' nor from the
principle of narrow construction heretofore noted.
It simply cannot feasibly be maintained that
Alabama's
local
bingo
amendments
permitting
charitable 'bingo,' by their repeated use of this
same unadorned term in amendment after amendment,
communicate an array of different meanings. Nor can
it be maintained that the meaning of each local
amendment was to be decided by the judicial branch
based upon what might later be proved in a courtroom
regarding who said what to whom following the
drafting and proposal of the amendment, or what
peculiar meaning some voter or group of voters did
or did not assume as to the words employed in the
amendment. ... See also [Jane S.] Schacter, [The
Pursuit of 'Popular Intent': Interpretive Dilemmas
in Direct Democracy,] 105 Yale L.J. [107,] 124–25
[(1995)] ('[T]he problem of aggregating multiple
individual intentions, substantial as it is in the
context of the legislative process, is compounded by
the daunting scale of direct lawmaking. Even if we
granted that individual voter intent existed -- a
dubious premise, I will argue -- courts simply could
52
1180675; 1180794
not cumulate what may be millions of voter
intentions.'). At best, it would be unseemly, and
at worst illogical and impracticable, not to mention
contrary to a proper understanding of the role of
the judiciary, for this and other courts of this
State to undertake to attribute some potentially
different meaning to each of the 17 local bingo
amendments, despite the fact that each of them uses
the same language.
"'"The intention of the Legislature,
to which effect must be given, is that
expressed in the [act], and the courts will
not
inquire
into
the
motives
which
influenced the Legislature or individual
members in voting for its passage, nor
indeed as to the intention of the draftsman
or of the Legislature so far as it has not
been expressed in the act. So in
ascertaining the meaning of a[n act] the
court will not be governed or influenced by
the views or opinions of any or all of the
members
of
the
Legislature,
or
its
legislative
committees
or
any
other
person."'
"James v. Todd, 267 Ala. [495,] 506, 103 So. 2d
[19,] 28–29 [(1957)] (quoting Wiseman v. Madison
Cadillac Co., 191 Ark. 1021, 88 S.W.2d 1007, 1009
(1935)); see also Fraternal Order of Police, Lodge
No. 64 v. Personnel Bd. of Jefferson Cty., 103 So.
3d 17, 27 (Ala. 2012) ('Words used in [an act] must
be given their natural, plain, 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. If the
language of the [act] is unambiguous, then there is
no room for judicial construction and the clearly
expressed intent of the legislature must be given
effect.' (internal quotation marks omitted)); Hill
v. Galliher, 65 So. 3d 362, 370 (Ala. 2010) ('"'If,
giving the ... language [of the act] its plain and
53
1180675; 1180794
ordinary meaning, we conclude that the language is
unambiguous,
there
is
no
room
for
judicial
construction.'"' (quoting Bright v. Calhoun, 988 So.
2d 492, 498 (Ala. 2008), quoting in turn City of
Bessemer v. McClain, 957 So. 2d 1061, 1074–75 (Ala.
2006))).
"Based on the foregoing, there is no room for
any conclusion other than that which we reached in
Ex parte State: The term 'bingo' as used in
Amendment No. 744 means the traditional game of
bingo as has been described by this Court. The
Cornerstone elements, as since expounded upon in
Houston County, are yet again reaffirmed. They are
applicable to the term 'bingo' in Amendment No. 744,
just as they are applicable to the use of that term
in Alabama's other local bingo amendments.
"In our opinion in Cornerstone, published over
six years ago, we noted certain arguments made by
the State at that time. It is surprising, given our
opinion
in
Cornerstone
and
our
opinions
in
subsequent cases during the ensuing six years, that
the following arguments remain germane today:
"'"First, there is no question
that this case 'involve[s] a
matter of public importance.'
Chapman[ v. Gooden], 974 So. 2d
[972,] 989 [(Ala. 2007)]....
"'"The issue is before the
Court because [the State has]
shown that there is no reasonable
chance that the machines at issue
could be found to be anything
other than slot machines, and no
reasonable
chance
that
the
computer program used to run them
qualifies as the game commonly
known as bingo within the meaning
of Amendment 674. A ruling by
54
1180675; 1180794
this Court to that effect would
surely put a practical end to
this latest effort by gambling
interests around the State to
make a mockery of this State's
gambling laws .... They prefer to
delay,
continue
to
rake
in
millions during the delay with
procedural
maneuvers
such
as
those they have engaged in here
and in other appeals before this
Court, and ultimately pin their
hopes
on
the
possibility
of
political
changes
which
they
believe may come with delay."
"'....
"'"... Despite this Court's
clear, emphatic, and repeated
disapproval
of
every
artful
attempt to circumvent Alabama's
anti-gambling law, see, e.g.,
Barber v. Jefferson County Racing
Assoc., 960 So. 2d 599, 614 (Ala.
2006), gambling interests, as
demonstrated
by
this
case,
continue to flout those laws."'
"Cornerstone, 42 So. 3d at 76 (quoting arguments
made on behalf of the State of Alabama).
"Today's decision is the latest, and hopefully
the last, chapter in the more than six years' worth
of attempts to defy the Alabama Constitution's ban
on 'lotteries.' It is the latest, and hopefully the
last, chapter in the ongoing saga of attempts to
defy the clear and repeated holdings of this Court
beginning in 2009 that electronic machines like
those at issue here are not the 'bingo' referenced
in local bingo amendments. It is the latest, and
hopefully the last, chapter in the failure of some
55
1180675; 1180794
local law-enforcement officials in this State to
enforce the anti-gambling laws of this State they
are sworn to uphold,18 thereby necessitating the
exercise and performance by the attorney general of
the authority and duty vested in him by law, as the
chief law-enforcement officer of this State, to
enforce the criminal laws of this State. And
finally, it is the latest, and hopefully last,
instance in which it is necessary to expend public
funds to seek appellate review of the meaning of the
simple term 'bingo,' which, as reviewed above, has
been declared over and over and over again by this
Court. There is no longer any room for uncertainty,
nor justification for continuing dispute, as to the
meaning of that term. And certainly the need for
any further expenditure of judicial resources,
including the resources of this Court, to examine
this issue is at an end. All that is left is for
the law of this State to be enforced.
"_______________________
"9The nature and the extent of the limitations
imposed by § 65 have been the subject of many
opinions by this Court. See, e.g., Opinion of the
Justices No. 373, 795 So. 2d 630, 634–35 (Ala. 2001)
(citing William Blackstone and numerous cases to the
effect that the prohibition of lotteries encompasses
a
wide
variety
of
gambling,
including
slot
machines); Minges v. City of Birmingham, 251 Ala.
65, 69, 36 So. 2d 93, 96 (1948)(quoting 34 Am.Jur.
Lotteries § 6 (1941), to explain that, under the
so-called 'American Rule' definition of a lottery,
'"chance must be the dominant factor,"' but that
this criterion '"is to be taken in the qualitative
or causative sense, rather than the quantitative
sense"'). See also McKittrick v. Globe–Democrat
Publ'g Co., 341 Mo. 862, 881, 110 S.W.2d 705, 717
(1937) (explaining the 'qualitative sense' to mean
that 'the fact that skill alone [would] bring
contestants to a correct solution of a greater part
of the problems does not make the contest any the
56
1180675; 1180794
less a lottery if chance enters into the solution of
another lesser part of the problems and thereby
proximately influences the final result'); Horner v.
United States, 147 U.S. 449, 459, 13 S. Ct. 409, 37
L. Ed. 237 (1893) (finding it dispositive that the
scheme in the case before it was one in which '[t]he
element of certainty [went] hand in hand with the
element of lot or chance,' but that 'the former
[did] not destroy the existence or effect of the
latter'); and State ex rel. Tyson v. Ted's Game
Enters., 893 So. 2d 355, 374 (Ala. Civ. App. 2002)
(reviewing substantial authority that, under the
'American Rule,' 'whether a game or activity
constitutes a "lottery" depends on whether ... skill
override[s] the effect of the chance'), aff'd, 893
So. 2d 376, 377 (Ala. 2004)) (holding that § 65
prohibits any game 'in which skill does not
predominate
over
chance
in
determining
the
outcome').
"10See cases cited in note 11, infra, as well as
the following cases: Ex parte Rich, 80 So. 3d 219
(Ala. 2011); Surles v. City of Ashville, 68 So. 3d
89 (Ala. 2011); Tyson v. Jones, 60 So. 3d 831 (Ala.
2010); Etowah Baptist Ass'n v. Entrekin, 45 So. 3d
1266 (Ala. 2010); Tyson v. Macon Cty. Greyhound
Park, Inc., 43 So. 3d 587 (Ala. 2010); and Macon
Cty. Greyhound Park, Inc. v. Knowles, 39 So. 3d 100
(Ala. 2009).
"11See Houston Cty. Econ. Dev. Auth. v. State,
168 So. 3d 4 (Ala. 2014); State v. Greenetrack,
Inc., 154 So. 3d 940 (Ala. 2014); Ex parte State,
121 So. 3d 337 (Ala. 2013); Chorba–Lee Scholarship
Fund, Inc. v. Hale, 60 So. 3d 279 (Ala. 2010); Riley
v. Cornerstone Cmty. Outreach, Inc., 57 So. 3d 704
(Ala. 2010); and Barber v. Cornerstone Cmty.
Outreach, Inc., 42 So. 3d 65 (Ala. 2009).
"12Ex parte State, 121 So. 3d 337 (Ala. 2013).
57
1180675; 1180794
"14In most, if not all, of the cases involving
electronic gaming decided by this Court over the
past six years, substantial questions would exist as
to whether, even if the machines at issue had
constituted 'bingo,' they were being operated for
the charitable purposes required by the local bingo
amendments at issue in those cases. This Court has
not reached this latter issue because the machines
have not met the threshold requirement of being
'bingo' within the meaning of the local bingo
amendment at issue in each case.
"15As we explained in Cornerstone, § 45–8–150(1)
(applicable to Calhoun County), describes bingo as
'[t]he game commonly known as bingo,' which, it
states,
"'"is a game of chance played with cards
printed with five rows of five squares
each. Participants place markers over
randomly called numbers on the cards in an
attempt to form a preselected pattern such
as a horizontal, vertical, or diagonal
line, or all four corners. The first
participant
to
form
the
preselected
pattern
wins the game. The term 'bingo' means any
game of bingo of the type described above
in which wagers are placed, winners are
determined, and prizes or other property is
distributed in the presence of all persons
placing wagers in that game. The term
'bingo' does not refer to any game of
chance other than the type of game
described in this subdivision."'
"42 So. 3d at 79.
"18As noted, even the trial court in this case
candidly stated to the deputy attorney general
prosecuting this case: 'You know as well as I do
[local law enforcement,] they're not going to do it,
so it comes to [your office].' ..."
58
1180675; 1180794
203 So. 3d at 834-45 (some emphasis added; footnotes 13, 16,
17, and 19 omitted).
Nevertheless, in State v. 825 Electronic Gambling
Devices, 226 So. 3d 660 (Ala. 2016), this Court was again
called upon to address whether another local amendment in
Houston County authorized electronic-bingo games in that
county. After determining that the games being played on the
machines
seized
in
that
case
did
not
satisfy
the
characteristics of the game of bingo set forth in Cornerstone,
this Court stated:
"In
State
v.
$223,405.86,
this
Court
emphasized,
and we now reaffirm:
"'There
is
no
longer
any
room
for
uncertainty,
nor
justification
for
continuing dispute, as to the meaning of
[the term "bingo"]. And certainly the need
for any further expenditure of judicial
resources, including the resources of this
Court, to examine this issue is at an end.
All that is left is for the law of this
State to be enforced.'
"203 So. 3d at 845."
226 So. 3d at 672.
However, yet again, this Court is presented with new
cases in which the State alleges that the defendants are
operating illegal slot machines and gambling devices in their
59
1180675; 1180794
respective counties. In its complaint in the Macon County
case, the State asserted that gambling is generally illegal in
Alabama; that "[t]he State's prohibition on gambling is so
fundamental that the People enshrined it in the Constitution.
See Ala. Cons. art. IV, § 65"; that the legislature has
criminalized the possession of slot machines and other
gambling devices; that, "because of the immense profits
associated with organized gambling, the industry frequently
has tried to 'evade[]' these prohibitions, as the Alabama
Supreme Court put it in Barber v. Jefferson Cnty. Racing
Ass'n, 960 So. 2d 599 (Ala. 2006), by asserting that
'loophole[s]' in Alabama law were much larger than they in
fact were. Id. at 614"; and that this Court has repeatedly
held that the game of bingo cannot be played on electronic
machines in Alabama. It then went on to allege that the
gambling devices at the Macon County defendants' casino were
slot machines.
In its complaint, the State alleged that the continued
operation of the illegal slot machines and gambling devices by
the Macon County defendants constituted a public nuisance. It
also alleged:
60
1180675; 1180794
"The continued operation of slot machines and
unlawful gambling devices by Defendants works hurt,
inconvenience, or damage to the public interest.
"...
The
public
policy
of
Alabama
is
emphatically against lotteries or any scheme in the
nature of a lottery.
"... The State has an interest in the welfare
of the people within her domain and, of consequence,
in enforcement of the State's declared public policy
against lotteries or gift schemes. Try-Me Bottling
Co. at 235."
Based on this Court's decision in Try-Me and this Court's
subsequent
decisions
addressing
the
enforcement of
the
State's
gambling laws in regard to electronic bingo games, it is clear
that the State adequately alleged facts that would support a
finding that the Macon County defendants' conduct caused harm
to the public and that the State lacked another adequate
remedy. Accordingly, this is not a situation where it appears
beyond doubt that the State can prove no set of facts that
would entitle the State to relief. Therefore, the Macon
Circuit Court erred when it dismissed the State's amended
complaint on this ground.
II.
The State also argues that the circuit courts erred in
holding that it had failed to join indispensable parties. In
61
1180675; 1180794
their motions to dismiss, the defendants asserted that the
operators of the Wind Creek casinos were indispensable
parties. In their motions to dismiss, the Lowndes County
defendants asserted that:
"The Wind Creek casinos operate openly and
notoriously, and are many times larger than Macon
County Greyhound Park, and entertain significantly
great volumes of patrons than the establishments
identified in the Complaint. Furthermore, whether
'Indian gaming' is legal or illegal is irrelevant to
the State's claims because legal conduct can also
constitute a public nuisance. See Ala. Code §
6-5-120 (1975) ('A "nuisance" is anything that works
hurt, inconvenience, or damage to another. The fact
that the act done may otherwise be lawful does not
keep it from being a nuisance.').
"In order to establish a public nuisance, the
State of Alabama must establish proximate causation,
Tennessee Coal, Iron Rail Co. v. Hartline, 244 Ala.
116, 122, 11 So. 2d 833, 837 (1943) ('"The injurious
consequences or nuisance complained of should be the
natural, direct and proximate cause of defendant's
acts to render him liable for maintaining a public
nuisance."') (Quoting Joyce's Law of Nuisances, §
476, p. 690). Whether a public nuisance is the
proximate cause of the public injury requires a
finding of cause in fact and legal cause. City of
Chicago v. American Cyanamid Co., 823 N.E.2d 126,
133 (Ill. App. Ct. 2003). A cause in fact cannot
exist where the harm continues to occur absent the
defendant's conduct. See City of Chicago v. Beretta
U.S.A. Corp., 821 N.E.2d 1099, 1132 (Ill. 2005)
('The relevant inquiry is whether the harm would
have occurred absent the defendants' conduct. ...').
"The
State
of
Alabama
cannot
establish
proximate
causation for its alleged injury unless the State
62
1180675; 1180794
also seeks to enjoin all persons whose acts create
or contribute to the alleged harm to the public.
Thus, to obtain complete relief, the State of
Alabama must join the Wind Creek Casino operators in
this lawsuit. Without the Wind Creek Casino
operators, complete relief cannot be accorded among
the parties; and the Wind Creek Casino operators
claim an interest relating to the subject of the
action that to proceed in their absence would leave
the present Defendants subject to a substantial risk
of incurring inconsistent obligations. Rule 19(a),
Ala. R. Civ. P."
The Macon County defendants included virtually identical
assertions in their motions to dismiss. In response, the
State asserted that the indispensable-party argument dealt
with casinos operated by the Poarch Band of Creek Indians
("the Poarch Band"). During the hearing in the Lowndes County
case, the State asserted that it had previously attempted to
sue the Poarch Band in federal court and that the federal
court had dismissed the case because, "as a state, we don't
have jurisdiction on federal land so we could not pursue
anything there." The State further asserted that the Poarch
Band was not an essential party in either case because it was
not involved in any activity in Lowndes County or Macon
County.
The Lowndes Circuit Court found that the operators of the
Wind Creek casinos and "their bingo software providers" were
63
1180675; 1180794
indispensable parties and that the State had failed to join
them as parties in that case. The Macon Circuit Court found
that
the
operators
of
the
Wind
Creek
casinos
were
indispensable parties and that the State had failed to join
them as parties in that case.
Rule 19(a), Ala. R. Civ. P., provides, in pertinent part:
"A person who is subject to jurisdiction of the
court shall be joined as a party in the action if
(1) in the person's absence complete relief cannot
be accorded among those already parties, or (2) the
person claims an interest relating to the subject of
the action and is so situated that the disposition
of the action in the person's absence may (i) as a
practical matter impair or impede the person's
ability to protect that interest or (ii) leave any
of the persons already parties subject to a
substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of the
claimed interest. If the person has not been so
joined, the court shall order that the person be
made a party. If the person should join as a
plaintiff but refuses to do so, the person may be
made a defendant, or, in a proper case, an
involuntary plaintiff. If the joined party objects
to venue and joinder of that party would render the
venue of the action improper, that party shall be
dismissed from the action."
(Emphasis added.)
In Alabama v. PCI Gaming Authority, 801 F.3d 1278 (11th
Cir. 2015), the State "sued under state and federal law to
enjoin gaming at casinos owned by the Poarch Band of Creek
64
1180675; 1180794
Indians ... and located on Indian lands within the state's
borders." 801 F.3d at 1282. Because the Poarch Band was
immune from suit, the State "instead named as defendants PCI
Gaming Authority ('PCI'), an entity wholly owned by the
[Poarch Band] that operates the casinos, and tribal officials
in their official capacity." Id. In that case, the State
alleged that the gaming at the casinos constituted a nuisance
and should be enjoined. It went on to assert why Alabama
state law should apply to the casinos. In addressing the
issue of tribal sovereign immunity, the Eleventh Circuit Court
of Appeals stated:
"'Indian
tribes
are
"domestic
dependent
nations"
that exercise inherent sovereign authority over
their members and territories.' Okla. Tax Comm'n v.
Citizen Band Potawatomi Indian Tribe of Okla., 498
U.S. 505, 509, 111 S. Ct. 905, 112 L. Ed. 2d 1112
(1991) (quoting Cherokee Nation v. Georgia, 30 U.S.
(5 Pet.) 1, 17, 8 L. Ed. 25 (1831)). Indian tribes
therefore possess '"the common-law immunity from
suit traditionally enjoyed by sovereign powers."'
[Florida v. Seminole Tribe of Florida], 181 F.3d
[1237,] 1241 [(11th Cir. 1999)] (quoting Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670,
56 L. Ed. 2d 106 (1978)). A suit against a tribe is
'barred unless the tribe clearly waived its immunity
or Congress expressly abrogated that immunity by
authorizing the suit.' Id. Although the Supreme
Court has expressed doubts about 'the wisdom of'
tribal
immunity,
the
Court
nonetheless
has
recognized that 'the doctrine of tribal immunity is
settled law and controls' unless and until Congress
65
1180675; 1180794
decides to limit tribal immunity. Kiowa Tribe of
Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 756–58,
118 S. Ct. 1700, 140 L. Ed. 2d 981 (1998); see also
[Michigan v.] Bay Mills [Indian Cmty.], [572 U.S.
782, 800,] 134 S. Ct. [2024,] 2037 [(2014)] ('[I]t
is fundamentally Congress's job, not ours, to
determine
whether
or
how
to
limit
tribal
immunity.'). Here, the [Poarch Band] has not waived
its immunity and Congress has not expressly
abrogated it. The question we face is whether PCI
and the Individual Defendants also enjoy tribal
immunity.
"A. PCI
"Alabama argues that PCI does not share in the
[Poarch Band's] immunity because PCI is a business
entity separate from the [Poarch Band] that engages
in
commercial,
not
governing,
activities.
We
conclude that PCI shares in the [Poarch Band's]
immunity because it operates as an arm of the
[Poarch Band].
"First, the Supreme Court has not 'drawn a
distinction between governmental and commercial
activities of a tribe' when deciding whether there
is tribal immunity from suit. Kiowa Tribe, 523 U.S.
at 754–55, 118 S. Ct. 1700. Second, we agree with
our sister circuits that have concluded that an
entity that functions as an arm of a tribe shares in
the tribe's immunity. See Allen v. Gold Country
Casino, 464 F.3d 1044, 1046 (9th Cir. 2006) ('When
the tribe establishes an entity to conduct certain
activities, the entity is immune if it functions as
an arm of the tribe.'); Ninigret Dev. Corp. v.
Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d
21, 29 (1st Cir. 2000) ('The Authority, as an arm of
the Tribe, enjoys the full extent of the Tribe's
sovereign immunity.'); Hagen v. Sisseton–Wahpeton
Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000)
(holding that entity that 'serves as an arm of the
tribe ... is thus entitled to tribal sovereign
66
1180675; 1180794
immunity'). Because Alabama does not dispute that
PCI operates as an arm of the [the Poarch Band], PCI
shares the [Poarch Band's] immunity."
801 F.3d at 1287-88 (footnote omitted). In addressing the
immunity of the individual defendants in that case, the court
stated:
"The immunity tribal officials enjoy from state
law claims brought in federal court is narrower than
the immunity of state officials from such claims,
however. Specifically, tribal officials may be
subject to suit in federal court for violations of
state law under the fiction of Ex parte Young[, 209
U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908),] when
their conduct occurs outside of Indian lands. See
Bay Mills, 134 S. Ct. at 2034–35. In Bay Mills, the
Supreme Court held that a tribe enjoyed immunity
from suit by a state to enjoin alleged illegal
gaming occurring at a casino that was not on Indian
lands. However, the state had other remedies and
could sue 'tribal officials ... (rather than the
Tribe itself) seeking an injunction for, say,
gambling without a license [under state law].' Id.
at 2035 (emphasis added). This is because 'a State,
on its own lands, has many other powers over tribal
gaming that it does not possess (absent consent) in
Indian territory'; when not on Indian lands, members
of a tribe, including tribal officials, 'are subject
to any generally applicable state law.' Id. at
2034–35. And tribal officials are not immune from
a state law claim seeking to enjoin gaming because
'analogizing to Ex parte Young, tribal immunity does
not bar such a suit for injunctive relief against
individuals, including tribal officers, responsible
for unlawful conduct' under state law that occurs
off Indian lands. Id. at 2035 (internal citation
omitted).
67
1180675; 1180794
"Alabama acknowledges that the Individual
Defendants enjoy immunity from its state law claim
if the casinos are located on Indian lands."
801 F.3d at 1290. In that case, the State argued that the
Wind Creek casinos were not located on Indian lands because,
it asserted, the Secretary of the Interior lacked the
authority to take land into trust on behalf of the Poarch
Band. The court rejected that argument, holding that the
State could not "raise a collateral challenge to the
Secretary's authority to take lands into trust (and
consequently, the status of the [Poarch Band's] lands)" in
that lawsuit. 801 F.3d at 1291. Thus, it concluded that the
individual defendants were entitled to immunity as to the
state-law claim. The court went on to address the State's
alternative claim that the individual defendants had waived
their immunity:
"Alabama argues in the alternative that the
Individual Defendants waived their immunity from the
state law claim by removing the case to federal
court. Alabama's argument rests on the assumption
that the Individual Defendants enjoy immunity from
the state law claim in federal court but not in
state court. The sole case on which Alabama relies
addresses state officials' immunity from state law
claims in state court, not tribal officials'
immunity from state law claims in state court. See
Ala. Dep't of Transp. v. Harbert Int'l, Inc., 990
So. 2d 831, 840 (Ala. 2008), abrogated in part by Ex
68
1180675; 1180794
parte Moulton, 116 So. 3d 1119 (Ala. 2013). State
law cannot limit the Individual Defendants' immunity
because 'tribal immunity is a matter of federal law
and is not subject to diminution by the States.'
Bay Mills, 134 S. Ct. at 2031 (internal quotation
marks omitted); see also Contour Spa at the Hard
Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200,
1206 (11th Cir. 2012) (explaining that a tribe's
sovereign immunity 'is not the same thing as a
state's Eleventh Amendment immunity' because tribes
are more akin to foreign sovereigns). Because the
premise of Alabama's argument -- that the Individual
Defendants were not immune from the state law claim
in state court -- does not hold up, Alabama's waiver
argument fails."
801 F.3d at 1293.
Based on the foregoing, the operators of the Wind Creek
casinos are not subject to the jurisdiction of the either the
Macon
Circuit
Court
or
the
Lowndes
Circuit
Court.
Accordingly, pursuant to Rule 19(a), the operators of the Wind
Creek casinos were not necessary parties.
"'Rule 19 ... provides a two-step process for the
trial court to follow in determining whether a party
is necessary or indispensable.' Holland [v. City of
Alabaster], 566 So. 2d [224,] 226 [(Ala. 1990)].
The question whether a nonparty is a necessary party
is governed by Rule 19(a); the question whether a
party is an indispensable party is governed by Rule
19(b). ...
"Under the two-step process, the trial court
must first determine, under the criteria set forth
in Rule 19(a), whether the nonparty in question is
one who should be joined if feasible. ...
69
1180675; 1180794
"'....'
"If a nonparty satisfies either prong set forth in
Rule 19(a)(1) or (2), then the party is a necessary
party that should be joined, if feasible. Ross[ v.
Luton, 456 So. 2d 249 (Ala. 1984)]."
Ex parte Advanced Disposal Servs. S., LLC, 280 So. 3d 356,
360-61 (Ala. 2018).
Because the operators of the Wind Creek casinos are not
necessary parties pursuant to Rule 19(a), they are not
indispensable parties pursuant to Rule 19(b). See Hall v.
Reynolds, 60 So. 3d 927, 929 (Ala. Civ. App. 2010).
Accordingly, the circuit courts exceeded their discretion in
holding that the State had failed to join indispensable
parties in each of these cases.
III.
On appeal, the State further argues that "this Court
should enjoin the defendants from further engaging in illegal
gambling." State's brief at p. 46. Specifically, it asserts:
"This Court has authority '[t]o issue writs of
injunction,' Ala. Code [1975,] § 12-2-7(3), or,
alternatively, to order circuit courts to enter such
an order. See Ex parte State of Alabama, 121 So. 3d
337, 340 (Ala. 2013) (ordering circuit court to
issue search warrant); see also Ala. Code [1975,] §
6-5-500 ('Injunction may be granted, returnable into
any of the circuit courts in this state, by the
judges of the supreme court, court of civil appeals,
70
1180675; 1180794
court of criminal appeals, and circuit courts.'); Ex
parte State ex rel. Ala. Policy Inst., 200 So. 3d
495, 511 (Ala. 2015) (recognizing Court's authority
to 'take jurisdiction where ... for special reasons
complete justice cannot otherwise be done.')."
State's brief at pp. 46-47.
Article VI, § 140, Ala. Const. 1901 (Off. Recomp.),
provides, in pertinent part:
"(b) The supreme court shall have original
jurisdiction (1) of cases and controversies as
provided by this Constitution, (2) to issue such
remedial writs or orders as may be necessary to give
it general supervision and control of courts of
inferior jurisdiction, and (3) to answer questions
of state law certified by a court of the United
States.
"(c) The
supreme court shall
have such appellate
jurisdiction as may be provided by law."
Section 12-2-7, Ala. Code 1975, provides, in pertinent
part:
"The Supreme Court shall have authority:
"....
"(3) To issue writs of injunction,
habeas corpus, and such other remedial and
original writs as are necessary to give to
it a general superintendence and control of
courts of inferior jurisdiction."
(Emphasis added.)
Section 6-6-500, Ala. Code 1975, provides:
"Injunctions
may
be
granted,
returnable
into
any
of the circuit courts in this state, by the judges
71
1180675; 1180794
of the supreme court, court of civil appeals, court
of criminal appeals, and circuit courts."
In addressing the precursors to §§ 12-2-7 and 6-5-500, this
Court has stated:
"The petitioner also cites §§ 17 and 18, Title
13, Code of 1940. Section 17 provides inter alia:
'The supreme court has authority: ... to issue writs
of injunction, habeas corpus, and such other
remedial and original writs as are necessary to give
to it a general superintendence and control of
inferior jurisdiction.' Section 18 provides that
the justices of the supreme court 'have each of them
authority to issue writs of certiorari, injunction
and
supersedeas,
subject
to
the
limitations
prescribed by this Code, as judges of the circuit
courts are authorized to grant the same.' It is
clear from section 17 that the justices of the
supreme court are limited in the issuance of these
extraordinary writs as necessary to give general
superintendence
and
control
of
inferior
jurisdictions. That is, to supervise persons and
bodies clothed with judicial power in the exercise
thereof. Section 18 also grants limited power to
the justices of the supreme court to grant
injunctions, such as judges of the circuit court are
authorized to grant."
State v. Albritton, 251 Ala. 422, 424, 37 So. 2d 640, 642
(1948).
Neither circuit court conducted a hearing on the merits
of the State's motions for a preliminary injunction. Rather,
the circuit courts specifically stated that they would hear
and decide the defendants' motions to dismiss before
72
1180675; 1180794
proceeding to the merits of the State's motions for a
preliminary injunction.
In Blount Recycling, LLC v. City of Cullman, 884 So. 2d
850, 855 (Ala. 2003), this Court stated:
"As the Court of Civil Appeals recognized in
Bamberg v. Bamberg, 441 So. 2d 970, 971 (Ala. Civ.
App. 1983), while Rule 65, Ala. R. Civ. P., 'does
not explicitly require that oral testimony be
presented at a preliminary injunction hearing, some
type of evidence which substantiates the pleadings
is implicitly required by subsection (a)(2) of the
rule.' The Court of Civil Appeals in Bamberg
continued, stating: 'In order to comply with
procedural due process, notice and an opportunity to
be heard are necessary under Rule 65(a).' Id.
"In this case it appears that the circuit court
did not conduct a hearing on the Commission's
petition for a preliminary injunction; therefore,
the Commission did not present any evidence and
Blount Recycling was not given an opportunity to be
heard. The injunction must be dissolved for failure
to comply with Rule 65(a), Ala. R. Civ. P., and the
cause remanded."
Although the State did attach some documents and affidavits in
support of its motions for a preliminary injunction, the
defendants have not had an opportunity to be heard as to the
merits of those motions. Therefore, we will not address the
merits of the State's motions for a preliminary injunction at
this time.
Conclusion
73
1180675; 1180794
Based on the foregoing, the Lowndes Circuit Court
erroneously granted the motions to dismiss filed by the
Lowndes County defendants and the Macon Circuit Court
erroneously granted the motions to dismiss filed by the Macon
County defendants. Accordingly, we reverse the judgments
entered by those courts and remand these cases for proceedings
consistent with this opinion.
1180675 -- REVERSED AND REMANDED.
1180794 -- REVERSED AND REMANDED.
Bolin, Mendheim, Stewart, and Mitchell, JJ., concur
specially.
Parker, C.J., concurs in part and concurs in the result.
Shaw and Sellers, JJ., concur in the result.
74
1180675; 1180794
MENDHEIM, Justice (concurring specially).
I fully concur with the main opinion. I write separately
to elaborate on my view of Part II, which concerns whether the
operators of the Wind Creek casinos in Montgomery and Wetumpka
(collectively "the Wind Creek casinos") are indispensable
parties under Rule 19, Ala. R. Civ. P., to the underlying
actions against the Lowndes County defendants and the Macon
County defendants.
The circuit courts ruled in part that the State's
nuisance actions must be dismissed because the operators of
the Wind Creek casinos are indispensable parties. The Lowndes
Circuit Court reasoned that because gaming activities at the
Wind Creek casinos are virtually identical to the gaming
activities that occur in Lowndes County and Macon County,
"[t]he State of Alabama cannot establish proximate causation
for its alleged injury unless the State also seeks to enjoin
all persons whose acts create or contribute to the alleged
harm to the public." The Macon Circuit Court expressly noted
that the gaming activities at the Wind Creek casinos occur
approximately 20 miles and 35 miles away from the gaming
establishment in Macon County, and so it concluded that
75
1180675; 1180794
"without [the operators of the Wind Creek casinos] injunctive
relief will not provide full and complete relief or protect
the public health, safety, or welfare."
The main opinion correctly observes that the operators of
the Wind Creek casinos must first meet the criteria for being
necessary parties under Rule 19(a) before any determination
can be made as to whether they are also indispensable parties
under Rule 19(b). Rule 19(a) begins by stating: "A person
who is subject to jurisdiction of the court shall be joined as
a party in the action if ...." Thus, Rule 19(a) assumes that
in order for a party to be deemed necessary to an action, the
party must be "subject to the jurisdiction of the court." As
the State observes in its reply brief, the State previously
brought a public-nuisance action against the operators of the
Wind Creek casinos, but the United States Court of Appeals for
the Eleventh Circuit concluded that the State lacked
jurisdiction over those parties because the conduct at the
Wind Creek casinos is governed by federal authorities under
federal law. See Alabama v. PCI Gaming Auth., 801 F.3d 1278
(11th Cir. 2015). Thus, the operators of the Wind Creek
casinos cannot meet the threshold requirement to
be
considered
76
1180675; 1180794
necessary or indispensable parties to the underlying actions
because the circuit courts of this State lack jurisdiction
over those parties.
Simply stated, the Eleventh Circuit Court of Appeals,
applying federal law, has specifically held that the State
cannot bring a public-nuisance action against the
operators of
the Wind Creek casinos. "We conclude that PCI is entitled to
tribal sovereign immunity on all claims against it, and the
Individual Defendants are entitled to tribal sovereign
immunity
on
Alabama's
state
law
claim
[of
public
nuisance]...." PCI Gaming Authority, 801 F.3d at 1287. This
Court, as well as the Lowndes Circuit Court and the Macon
Circuit Court, is bound by this ruling pursuant to the
Supremacy
Clause
of
the
United
States
Constitution.3
Accordingly, the operators of the Wind Creek casinos cannot be
necessary or indispensable parties to the State's public-
nuisance claims against the Lowndes County defendants and the
3"This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the authority of the
United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the
Constitution
or
Laws
of
any
State
to
the
Contrary
notwithstanding." U.S. Const., Art. VI, clause 2 (emphasis
added).
77
1180675; 1180794
Macon County defendants. The lack of jurisdiction is simple,
direct, and unavoidable. Clearly, the circuit courts erred in
ruling otherwise.
Bolin, Stewart, and Mitchell, JJ., concur.
78
1180675; 1180794
PARKER, Chief Justice (concurring in part and concurring in
the result).
I concur in the result as to Part II of the main opinion;
I concur fully in the remainder of the opinion.
79 | September 25, 2020 |
fcf5765d-9dba-43a8-937f-dad69da6369f | Ex parte City of Andalusia. | N/A | 1190827 | 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
1190827
Ex parte City of Andalusia. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL Ap p e a l s (In re: City of Andalusia v. Christopher Terry Clinton) (Covington
Circuit Court: CC-19-339; CC-19-340; CC-19-341; CC-19-342; CC-19-343; CC-19-344;
CC-19-345; CC-19-346; CC-19-347; CC-19-348; CC-19-349; CC-19-350; Criminal Appeals :
CR-19-0238).
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 |
c332a990-2c57-41b9-af68-4371b42de6c9 | Katherine M. Rudd and Tiffany Rudd Atkinson v. Wells Fargo, N.A. | N/A | 1180367 | Alabama | Alabama Supreme Court | Rel: September 11, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1180367
Katherine M. Rudd and Tiffany Rudd Atkinson v. Wells Fargo,
N.A. (Appeal from Jefferson Circuit Court: CV-12-900915).
1180436
Wells Fargo Bank, N.A. v. Katherine M. Rudd and Tiffany Rudd
Atkinson
(Appeal
from
Jefferson
Circuit
Court:
CV-12-900915).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E)(No. 1180367) and
(a)(2)(F) (No. 1180436), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | September 11, 2020 |
48b122f1-7c60-449d-bfc8-81d9b7bd6750 | Ex parte Robert Crum. | N/A | 1190875 | 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
September 11, 2020
1190875
Ex parte Robert Crum. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: Robert Crum v. Tracy R. Davis, Roderick Davis, and Mattie Davis)
(Autauga Circuit Court: CV-19-900133; Civil Appeals :
2180989).
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 September 11, 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
693a27df-afd7-492b-afdd-9bb9337ab345 | Ex parte Matthew D. Trapp. | N/A | 1190883 | 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
September 11, 2020
1190883
Ex parte Matthew D. Trapp. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Matthew D. Trapp v. State of Alabama) (Franklin Circuit Court:
CC-15-223.60; Criminal Appeals :
CR-19-0022).
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 September 11, 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
ec187a50-93ec-4df4-8222-5075bcd080cd | Cecelia N. King v. In the matter of the Will & Estate of Anna Bella L. Newman/Duane Graham, Executor | N/A | 1180828 | 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
September 11, 2020
1180828
Cecelia N. King v. In the matter of the Will & Estate of Anna Bella L.
Newman/Duane Graham, Executor (Appeal from Mobile Probate Court: 18-0396).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on September 11,2020:
Application Overruled. No Opinion. Wise, J. - Parker, C.J., and Bolin, Sellers, and Stewart,
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 10, 2020:
Dismissed. 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 11th day of September, 2020.
Clerk, Supreme Court of Alabama | September 11, 2020 |
8552192f-1628-4db6-8bb5-7241619da408 | Ex parte Mark J. Young. | N/A | 1190428 | 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
September 11, 2020
1190428
Ex parte Mark J. Young. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: Mark J. Young v. Tracy H. Young) (Lee Circuit Court: DR-14-900270.02;
Civil Appeals :
2180190).
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 September 11, 2020:
Writ Denied. No Opinion. (Special Writing) Stewart, J. - Parker, C.J., and Shaw,
Wise, and Mendheim, JJ., concur. Bolin, Bryan, Sellers, 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. 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
324683df-b901-47da-8723-4e83a03e4588 | McDorman v. Moseley, Jr. | N/A | 1190820, 1190819 | Alabama | Alabama Supreme Court | Rel: September 18, 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
SPECIAL TERM, 2020
____________________
1190819
____________________
Virginia McDorman, as conservator for Sim T. Moseley, a
protected person
v.
Ralph Carmichael Moseley, Jr.
____________________
1190820
____________________
Sim T. Moseley, a protected person, by and through Virginia
McDorman, as conservator for Sim T. Moseley
v.
Ralph Carmichael Moseley, Jr.
Appeals from Jefferson Probate Court
(PR-11-3393)
1190819, 1190820
SELLERS, Justice.
Virginia McDorman, conservator for Sim T. Moseley, and
Sim T. Moseley, a protected person, by and through his
conservator, appeal, in two separate appeals, from a judgment
of the Jefferson Probate Court awarding Ralph Carmichael
Moseley, Jr., attorney fees pursuant to the Alabama Litigation
Accountability Act, § 12-19-270 et seq., Ala. Code 1975 ("the
ALAA"). We affirm in part, reverse in part, and remand.
I. Jurisdiction
The timely filing of a notice of appeal is a
jurisdictional act, which cannot be waived. Harden v. Laney,
118 So. 3d 186 (Ala. 2013). In this case, the parties do not
raise the issue of subject-matter jurisdiction; we therefore
address the issue ex mero motu. Thomas v. Merritt, 167 So. 3d
283 (Ala. 2013). Specifically, we consider whether these
appeals are governed by Act No. 1144, Ala. Acts 1971 ("the
local act"), in which case they are untimely, or by Rule
4(a)(1), Ala. R. App. P., in which case they are timely.
Section 1 of the local act grants the Jefferson Probate
Court "general jurisdiction concurrent with that of the
Circuit Courts of this State, in equity, in the administration
2
1190819, 1190820
of the estates of ... minors and insane or non compos mentis
persons," which would include conservatorship proceedings
under
the
Uniform
Guardianship and
Protective Proceedings
Act,
§ 26-2A-1 et seq., Ala. Code 1975.
Section 4 of the local act requires that appeals to this
Court be filed within 30 days from a judgment or order of the
Jefferson Probate Court:
"Appeals may be taken from the orders, judgments and
decrees of such a Probate Court, relating to the
administration of such aforesaid estates, including
decrees on partial settlements and rulings on
demurrer, or otherwise, relating to action taken
pursuant to jurisdiction conferred by this act, to
the Supreme Court within thirty days from the
rendition thereof, or within thirty days from the
decision of such a Probate Court on a motion for new
trial, in the manner and form as is provided for
appeals from the Probate Courts to the Supreme
Court."
(Emphasis added.)
Section 6 of the local act states that the primary intent
of the local act is to "expedite and facilitate the
administration of estates and such other matters as are
mentioned herein in counties of over 500,000 population."
The general law governing appeals from the probate courts
is set forth in Ala. Code 1975, §§ 12-22-20 through 12-22-27.
Section 12-22-21, Ala. Code 1975, considers the same
3
1190819, 1190820
procedural matter set forth in § 4 of the local act but
provides that appeals from the probate court to this Court
"shall be governed by the Alabama Rules of Appellate
Procedure, including the time for taking an appeal." Rule
4(a)(1), Ala. R. App. P., states that a party must file a
notice of appeal "within 42 days (6 weeks) of the date of the
entry of the judgment or order appealed from." In this case,
the Jefferson Probate Court entered a judgment on July 1,
2019. The notices of appeals were filed in the probate court
on August 12, 2019 –- more than the 30 days provided by the
local act, but on the 42d day as provided by Rule 4(a)(1).
Thus, we are presented with a conflict between, on the one
hand, a statute and a rule prescribing the time for taking an
appeal to this Court and, on the other, a local act providing
a more limited time. In resolving this conflict, we look to
the intent of the legislature.
"A general act may amend or repeal a local act by express
words or by necessary implication." Pittsburg & Midway Coal
Mining Co. v. Tuscaloosa Cnty., 994 So. 2d 250, 261 (Ala.
2008). In Connor v. State, 275 Ala. 230, 234, 153 So. 2d 787,
4
1190819, 1190820
791 (1963)(quoting 50 Am. Jur. Statutes § 564), this Court
observed, in relevant part:
"'There is no rule which prohibits the repeal by
implication of a special or specific act by a
general or broad one. The question is always one of
legislative intention, and the special or specific
act must yield to the later general or broad act,
where there is a manifest legislative intent that
the general act shall be of universal application
notwithstanding the prior special or specific act.'"
There being no express repeal of § 4 of the local act,
the question is whether § 12-22-21, being the latest
expression of the legislature, repeals by implication § 4 of
the local act, thus providing that appeals from the Jefferson
Probate Court to this Court must be filed within the 42-day
period prescribed by Rule 4(a). We conclude that it does.
In 1971, the legislature authorized this Court to
promulgate a new system of rules to govern procedure in
appeals to this Court, the Court of Civil Appeals, and the
Court of Criminal Appeals –- the purpose being to simplify
existing appellate procedure and to assure the speedy
determination of every proceeding on its merits. Act No. 964,
Ala. Acts 1971.1 Pursuant to its rule-making authority, this
1We note that § 150, Ala. Const. 1901 (Off. Recomp.),
provides: "The supreme court shall make and promulgate rules
governing the administration of
all courts and rules governing
5
1190819, 1190820
Court adopted the Alabama Rules of Appellate Procedure, which
became effective December 1, 1975.2 The legislature has
expressly indicated that the Alabama Rules of Appellate
Procedure govern procedure in this Court and the courts of
appeals unless stated otherwise. Specifically, in 1977, as
part of its adoption of the "Code of Alabama 1975," the
legislature included § 12-1-1, Ala. Code 1975, which provides
that
"[a]ny provisions of this title regulating
procedure shall apply only if the procedure is not
governed by the Alabama Rules of Civil Procedure,
the Alabama Rules of Appellate Procedure or any
other rule of practice and procedure as may be
Adopted by the Supreme Court of Alabama."
practice and procedure in all courts ...." See also § 12-2-
19(a), Ala. Code 1975, recognizing that "the Supreme Court now
has the initial primary duty to make and promulgate rules
governing practice and procedure in all courts ...."
2When the local act was enacted in 1971, the Alabama Rules
of Appellate Procedure were not in existence, and appeals to
this Court or to a court of appeals, unless otherwise
prescribed, were governed by statute and generally were
required to be filed within six months of the order or
judgment appealed from. Title 7, § 788, Code of Alabama 1940
(1958 Recomp.). Given the stated intent of the local act,
i.e., to expedite and facilitate the administration of
estates, the 30-day time frame provided in the local act was
apparently intended to shorten the 6-month time frame then in
existence for filing a notice of appeal in some appeals and to
standardize the time for taking an appeal.
6
1190819, 1190820
See also, e.g., Appendix III, Ala. R. App. P. (providing a
list of statutes modified by the adoption of the Alabama Rules
of Appellate Procedure, including some statutes providing 30
days in which to appeal from probate court).
Based on the foregoing, we conclude that § 12-22-21,
providing that "[a]ppeals to the Supreme Court shall be
governed by the Alabama Rules of Appellate Procedure,
including the time for taking an appeal," prevails as the
latest expression of legislative will and thus repeals by
implication § 4 of the local act providing that appeals to
this Court be filed within 30 days of the entry of the order
or judgment appealed from. To hold otherwise would create an
exception only for appeals to this Court from the Jefferson
Probate Court that would become a trap for the unwary.3
Having a uniform time standard for taking an appeal not only
supports judicial economy and aids lawyers with a single rule,
3By similar local act, the legislature granted the Mobile
Probate Court jurisdiction concurrent with the Mobile Circuit
Court in the administration of estates. Act No. 974, Ala.
Acts 1961. As originally enacted, Act No. 974 provided for
appeals to this Court within 30 days of the entry of the order
or judgment of the probate court. In 1991, the legislature
amended § 5 of Mobile's local act to provide that appeals from
the Mobile Probate Court lie to this Court within the 42-day
period prescribed in the Alabama Rules of
Appellate Procedure.
See Act No. 91-131, Ala. Acts 1991.
7
1190819, 1190820
but it also eliminates, as presented here, a dual and
conflicting system for which there is no rational basis.
Because we confirm that the notices of appeal were timely and
that jurisdiction is therefore proper, we now address the
merits of the appeals before us.
II. Facts and Procedural History
Virginia is the guardian of her son Sim. She is also the
conservator of Sim's estate. Sim has a brother, Ralph
Carmichael Moseley III ("Mike"), who was born during the
marriage of Virginia and Ralph. Sim also has a half brother,
Slate McDorman, who was born during the marriage of Virginia
and her current husband, Clarence L. McDorman, Jr.
In February 2013, Mike, as brother and next friend of
Sim, petitioned the Jefferson Probate Court to, among other
things, remove Virginia as Sim's conservator because of an
alleged conflict of interest, appoint Ralph as successor
conservator, and order an accounting of the conservatorship.4
Ralph filed a response consenting to the relief sought in the
petition and specifically to being appointed as successor
4Mike asserted in the petition that the alleged conflict
stemmed from a trust action pending in the Barbour Circuit
Court in which Virginia had been named a respondent both
individually and in her capacity as Sim's conservator.
8
1190819, 1190820
conservator for Sim. The probate court thereafter ordered
Virginia to file a full accounting for the entirety of the
conservatorship.
During the pendency of the proceeding, a dispute arose
about an IRA Ralph had created and funded for Sim's benefit.
During discovery, Virginia requested that Ralph produce a
copy
of "any and all receipts, checks, or other documents
reflecting contributions made by you to the IRA" belonging to
Sim. Ralph answered that "[t]here has not been an IRA for a
number of years."
On February 28, 2014, Slate, acting as counsel for
Virginia, sent Ralph a letter confirming everyone's desire
that the IRA matter be concluded without further effort and
expense. That letter states, in pertinent part:
"We need to reschedule a time for your deposition
and I ask that you provide available dates. It is
important that your testimony be taken in time for
us to include anything relevant in [Virginia's]
accounting. Please contact me with dates you are
available so that I may schedule your deposition.
"However, I believe everyone is in agreement
that this matter should be concluded without further
effort and expense. Although we still have questions
regarding Sim's IRA account and these questions must
be answered for [Virginia's] accounting, the largest
remaining issue of contention appears to be who will
be responsible to pay the court costs and fees
9
1190819, 1190820
requested in [the] petition filed last February. It
was requested in this petition that Sim be taxed all
costs and fees in our matter. Judge King granted
this request. Even though Sim has no means to pay
these costs as SSI payments are non-attachable, Sim
is upset knowing that he is responsible for these
costs. If we can resolve the issue of who is
responsible for these fees, I believe we can quickly
conclude the remaining issues.
"....
"In an effort to move toward reconciliation and
to avoid additional fees, I ask if you and/or Mike
will
consider
paying
the
current
outstanding
expenses on Sim's behalf so that we can begin
placing this behind us. My mom[, Virginia,] has
spent a considerable sum recently on accountants and
others
regarding
her
accounting
for
Sim's
conservatorship. She is not in a position to pay
anything toward the outstanding fees. However, if
this matter is not resolved, the fees will only
increase to the detriment of Sim."
(Emphasis added.)
On April 23, 2014, Virginia submitted to the probate
court an accounting for the conservatorship, along with a
"Settlement Agreement" executed by Sim and by Virginia as
Sim's conservator releasing Ralph from any and all claims
related directly or indirectly to Ralph's funding or removing
funds from an IRA Ralph had attempted to establish on behalf
of Sim. The agreement states:
"In accordance with Alabama Code section
26-2A-l52(19), Sim T. Moseley, by and through his
10
1190819, 1190820
Mother and Curator/Conservator Virginia Thomas
McDorman, does hereby agree that in exchange for the
total compromise payment of Five Thousand and
no/lO0ths Dollars ($5000) from Sim's father Ralph
Moseley,
any
and
all
claims
disputes
or
controversies of any kind against Ralph Moseley,
including but not limited to anything, arising from
or in any way related directly or indirectly to
Ralph Moseley funding or removing funds from an IRA
account attempted to be established on behalf of Sim
T.
Moseley,
are
hereby
fully
released
and
discharged, with no admission of liability. Each
party shall bear their own attorney fees, and Sim T.
Moseley shall bear all court costs in this matter."
(Emphasis added.)
Virginia also filed with the accounting an affidavit
signed by Ralph stating that he agreed to withdraw any request
that Virginia be removed as conservator for Sim's estate and
affirming that his payment of $5,000 pursuant to the agreement
was in exchange for a full release of all claims against him.
In December 2015, more than a year and a half after the
agreement and Ralph's affidavit were executed, Virginia and
Sim filed a motion to set aside the agreement, as well as a
motion to show cause why Ralph should not be held in contempt
of court. Virginia and Sim alleged that Ralph had fraudulently
induced them to execute the agreement by failing to truthfully
answer discovery and, more specifically, by withholding
information about an IRA with Charles Schwab & Company, which,
11
1190819, 1190820
they claimed, Ralph had established, funded, and maintained
using Sim's name and Social Security number. They further
stated that in 2013 Ralph closed the IRA and that in 2014 he
filed a fraudulent tax return on behalf of Sim, listing the
IRA distribution as income –- causing Sim to owe federal taxes
and impacting his qualification for various governmental
disability benefits. They further explained that the Internal
Revenue Service ultimately determined that Sim had been the
victim of identity theft and removed the tax deficiency from
Sim's records. Virginia and Sim finally noted that Virginia,
as Sim's conservator, had filed an action against Ralph in the
Jefferson Circuit Court alleging fraud and intentional
infliction of emotional distress.
Ralph responded to the motion to set aside the
agreement, asserting that the allegations in the motion were
without merit because, he said, during the discovery process,
his counsel had informed Virginia's counsel that the Charles
Schwab IRA existed and that Ralph had named Sim as the owner
of the IRA. Ralph stated that, with this knowledge,
Virginia's counsel wrote him a letter confirming everyone's
desire that the IRA matter should be concluded without further
12
1190819, 1190820
effort and expense. Thus, Ralph argued that Virginia and Sim
were aware of the Charles Schwab IRA when they signed the
agreement. Ralph requested that the probate court award him
attorney fees he incurred as a result of responding to and
opposing the motion to set aside the agreement and the motion
to show cause why he should not be held in contempt of court.
On June 29, 2016, the probate court held a hearing on the
motions to set aside the agreement and to show cause why Ralph
should not be held in contempt of court. Virginia and Sim did
not testify at that hearing. On September 2, 2016, the
probate court entered an order denying the motions,
concluding, in relevant part, that the very words of the
agreement demonstrated that Virginia and Sim knew or
reasonably should have known about the existence of any IRA
and any distribution therefrom and that Virginia and Sim had
released all claims against Ralph relating to any IRA. The
probate court further determined that the attempts by
Virginia
and Sim to set aside the agreement were without merit, and it
ordered them to pay Ralph's attorney fees. Ralph thereafter
filed a fee petition with an affidavit from his counsel
seeking $19,920 in attorney fees and $188.77 in expenses.
13
1190819, 1190820
Virginia and Sim, through his counsel of record, each
filed a motion to reconsider the September 2016 order, arguing
for the first time that, when they executed the agreement, the
only IRA they were aware of was an IRA established during
Sim's employment at Children's Hospital of Alabama in
Birmingham. They contended that, had they known about the
Charles Schwab IRA, they would not have executed the
agreement. Virginia and Sim attached to the motions their
affidavits explaining their lack of knowledge of the Charles
Schwab IRA.
On October 11, 2017, the probate court entered an order
denying the motions to reconsider; the court ordered Virginia
and Sim to pay Ralph's attorney fees within 30 days. The
probate court declined to consider the affidavits that
Virginia and Sim attached to their postjudgment motions,
noting:
"[Virginia's]
and
Sim's
suggestions
that
the
Settlement and Release should be set aside because
it was induced by fraud was presented in the
December 2015 Motion to Show Cause and Motion to Set
Aside Settlement, and argued to the Court [on June
29, 2016]. Because no circumstances prevented Sim
or [Virginia] from offering testimony at or before
the June 29 hearing, the newly presented affidavits
of Sim and [Virginia] ... may not be considered by
this Court. Regardless, [Virginia] and Sim
14
1190819, 1190820
explicitly released [Ralph] from and against all
claims directly or indirectly related to any IRA.
The Release was not limited to a particular time
frame, and therefore [Virginia] and Sim released
present and future claims relating to any IRA."
Virginia and Sim thereafter filed a motion for relief from the
October 2017 order or, alternatively, to certify the order as
a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.
On July 1, 2019, the probate court entered a judgment
disposing of all claims against Ralph, and certified its
judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. In
that judgment, the probate court reiterated its findings
regarding the validity of the agreement, discussed its
September 2016 and October 2017 orders, and addressed each of
the factors for an award of attorney fees as required by the
ALAA. These appeals followed.
III. Standard of Review
The standard of review for an award of attorney fees
under the ALAA depends upon the basis for the trial court's
determination for the award. Morrow v. Gibson, 827 So. 2d
756, 762 (Ala. 2002). If a trial court finds that a claim or
defense is without substantial justification because it is
groundless in law, that determination will be reviewed de
15
1190819, 1190820
novo, without a presumption of correctness. Pacific Enters.
Oil Co. (USA) v. Howell Petroleum Corp., 614 So. 2d 409 (Ala.
1993). If, however, a trial court finds that a claim or
defense is without substantial justification using terms or
phrases
such
as
"frivolous,"
"groundless
in
fact,"
"vexatious," or "interposed for any improper purpose," that
determination will not be disturbed on appeal unless it is
clearly erroneous, without supporting evidence, manifestly
unjust, or against the great weight of the evidence. Id. The
latter standard is applicable here. The probate court
determined that the filings by Virginia and Sim were not
pleaded in good faith or that they otherwise failed to rise to
the level of initiating a legal and/or equitable action, thus
implying that the filings were interposed for an improper
purpose.
IV. Analysis
The ALAA provides in § 12-19-272(a), Ala. Code 1975, in
relevant part, that, in any civil action, "the court shall
award, as part of its judgment ..., reasonable attorneys'
fees" against any party who has brought a civil action "that
a court determines to be without substantial justification,
16
1190819, 1190820
either in whole or part." The ALAA defines "without
substantial justification" in § 12-19-271, Ala. Code 1975, as
an action that is "frivolous, groundless in fact or in law, or
vexatious, or interposed for any improper purpose, including
without limitation, to cause unnecessary delay or needless
increase in the cost of litigation, as determined by the
court." Finally, the ALAA provides in § 12-19-273, Ala. Code
1975, that, when a court awards attorney fees under the ALAA,
it must "specifically set forth the reasons for such award."
Virginia and Sim first argue that the probate court
lacked jurisdiction to award attorney fees in a related case
filed against Ralph in the circuit court. We agree. While the
conservatorship proceeding was pending in the probate court,
Virginia, as Sim's conservator, filed an action against Ralph
in the circuit court, alleging fraud and the intentional
infliction of emotional distress. Ralph moved the circuit
court to dismiss the action but never included a motion in
that court for attorney fees under the ALAA. The probate
court awarded Ralph attorney fees and expenses in the amount
of $20,108.77. Virginia and Sim assert that approximately
$10,915 of that amount represents fees incurred by Ralph in
17
1190819, 1190820
defending the circuit court action. Ralph, on the other hand,
contends that the attorney-fee award properly included the
fees he incurred in the circuit court action, because, he
says, Virginia and Sim filed the circuit court action in an
attempt to circumvent the agreement they had filed in the
probate court action. However, he cites no authority in
support of that contention. See Rule 28, Ala. R. App. P.
Under the plain language of § 12-19-272, the probate court had
jurisdiction to award attorney fees regarding only fees
incurred in the probate court proceeding, not the circuit
court proceeding, "as part of its judgment." Accordingly, the
probate court erred in awarding attorney fees relating to the
circuit court proceeding, and we remand the cause with
instructions for the probate court to determine the amount of
fees Ralph incurred in defending the validity of the agreement
in the probate court.
Virginia and Sim also contend that the probate court's
award of attorney fees attributable to setting aside the
agreement in the probate court was erroneous, without
supporting evidence, manifestly unjust, or against the great
weight of the evidence. As they argued below, Virginia and
18
1190819, 1190820
Sim assert that they were justified in their attempts to set
aside the agreement because, they say, the agreement was
induced by fraud insofar as Ralph had allegedly failed to
disclose the Charles Schwab IRA during discovery and because
the Internal Revenue Service had determined that Sim had been
the victim of identity theft. Ralph, on the other hand,
maintains that Virginia and Sim had knowledge of the existence
of the Charles Schwab IRA before executing the agreement. The
record indicates that the probate court held a hearing on the
matter, at which time Virginia and Sim did not testify,
although there were no circumstances preventing them from
doing so. The transcript of that hearing, if one exists, is
not in the record. Therefore, this Court will presume that
the probate court, exercising its equitable powers, correctly
resolved
any issue
concerning
the
alleged
fraudulent
inducement in favor of Ralph. See Davis v. Davis, 278 Ala.
328, 330, 178 So. 2d 154, 155 (1965)(noting the rule that,
"where no testimony is contained in the record on appeal, a
decree which recites that it was granted on pleadings, proofs
and testimony will not be disturbed on appeal").
19
1190819, 1190820
In Cleghorn v. Scribner, 597 So. 2d 693, 696 (Ala. 1992),
this Court stated that,
"in the absence of fraud, a release supported by a
valuable consideration, unambiguous in meaning, will
be given effect according to the intention of the
parties from what appears within the four corners of
the instrument itself, and parol evidence may not be
introduced to establish the existence of a mutual
mistake of fact when the release was signed as a
basis for a rescission of that release."
The agreement the parties negotiated is broad and it
unambiguously releases Ralph from "any and all claims ... of
any kind ... including but not limited to anything, arising
from or in any way related directly or indirectly to [Ralph]
funding or removing funds from an IRA account attempted to be
established on behalf" of Sim. (Emphasis added.) "An" is an
indefinite article, which refers to a person, place, or thing
in a general or nonspecific manner. Whereas, "the" is a
definite article, which refers to a specific person, place, or
thing. Bryan A. Garner, The Redbook: A Manual on Legal Style
§ 10.38 (2d ed. 2006). Use of the indefinite article "an" in
the agreement released Ralph from any and all claims relating
directly or indirectly to any IRA in general, including future
claims.
See
Jehle-Slauson
Constr.
Co.
v.
Hood-Rich,
Architects
& Consulting Eng'rs, 435 So. 2d 716, 720 (Ala. 1983)(noting
20
1190819, 1190820
that, regarding future damages, "[i]f the parties had
intended
to limit the release to prior contract litigation, they could
have specifically stated their intention in the release").
In its judgment, the probate court concluded that
Virginia and Sim's attempts to set aside the agreement and
their continued filings –- for more than three years after the
initial motion to set it aside –- were without substantial
justification. The judgment provides the factual background
concerning
the
filings
and
reflects
an
appropriate
application
of the ALAA. The judgment also sets forth substantial reasons
for the attorney-fee award as required by § 12-19-273. As
part of its reasoning for the attorney-fee award, the probate
court noted that Virginia and Sim had made little to no effort
to determine the validity of their motions to set aside the
agreement, "because they negotiated the agreement and
terms of
the [agreement] which explicitly released [Ralph] for all
claims relating to any IRA." Finally, the probate court noted
that Virginia and Sim received what they requested in 2014,
i.e., that Ralph withdraw his objections to
Virginia's serving
as Sim's conservator and that Ralph pay their court costs and
fee obligations. Accordingly, we conclude that the award of
21
1190819, 1190820
attorney fees related to defending the validity of the
agreement in the probate court action was not erroneous,
without
supporting
evidence,
manifestly unjust,
or
against
the
great weight of the evidence. Pacific Enters. Oil Co. (USA),
supra.
V. Conclusion
We reverse the probate court's judgment awarding attorney
fees and remand the cause with instructions for the court to
determine the amount of fees attributable to defending the
validity of the agreement in the probate court action. In all
other respects, we affirm the judgment in favor of Ralph.
1190819--AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
WITH INSTRUCTIONS.
1190820--AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
WITH INSTRUCTIONS.
Parker, C.J., and Bolin, Wise, and Stewart, JJ., concur.
22 | September 18, 2020 |
792aee76-62be-4aa2-abcf-53015982861c | Ex parte Robert Charles Blackmon, IV. | N/A | 1190761 | 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
September 11, 2020
1190761
Ex parte Robert Charles Blackmon, IV. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Robert Charles Blackmon, IV v. Angelia Deniese
Blackmon) (Mobile Circuit Court: DR-05-501684.05; Civil Appeals :
2181006).
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 September 11, 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 11th day of September, 2020.
Clerk, Supreme Court of Alabama | September 11, 2020 |
d0a12f50-85e1-4777-8f0f-cff4e0032a55 | Kenneth Wallis III and Capital Real Estate Services, LLC v. Susan Kennedy, William G. Kennedy, and Scoop Kennedy Properties, LLC. | N/A | 1190419 | Alabama | Alabama Supreme Court | REL: September 11, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190419
Kenneth Wallis III and Capital Real Estate Services, LLC v.
Susan Kennedy, William G. Kennedy, and Scoop Kennedy
Properties, LLC. (Appeal from Montgomery Circuit Court:
CV-17-901261).
MENDHEIM, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur. | September 11, 2020 |
b4c4e478-b5d2-489f-8beb-e7eaf0857884 | Ex parte Robert Charles Blackmon, IV. | N/A | 1190760 | 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
September 11, 2020
1190760
Ex parte Robert Charles Blackmon, IV. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Robert Charles Blackmon, IV v. Angelia Deniese
Blackmon) (Mobile Circuit Court: DR-05-501684.05; Civil Appeals :
2180907).
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 September 11, 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 11th day of September, 2020.
Clerk, Supreme Court of Alabama | September 11, 2020 |
2ceeb0c3-8a2a-4966-9fa9-806995fbdb27 | Ex parte Marshall, as Attorney General of the State of Alabama, et al. | N/A | 1190644 | Alabama | Alabama Supreme Court | REL: September 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
SPECIAL TERM, 2020
____________________
1190644
____________________
Ex parte Steven Marshall, in his official capacity as
Attorney General of the State of Alabama, et al.
PETITION FOR WRIT OF MANDAMUS
(In re: Michael Belcher et al.
v.
Steven Marshall, in his official capacity as
Attorney General of the State of Alabama, et al.)
(Montgomery Circuit Court, CV-20-900154)
PER CURIAM.
1190644
Attorney General Steven Marshall and circuit judges
Michael Bradley Almond, Ruth Ann Hall, Brandy Hambright,
Jacqueline Hatcher, and Bert Rice (hereinafter referred to
collectively as "the petitioners" and the circuit judges are
hereinafter referred to collectively as "the petitioner
circuit judges") -- all in their official capacities --
petition this Court for a writ of mandamus directing the
Montgomery Circuit Court ("the trial court") to grant their
motion to dismiss a complaint for a declaratory judgment filed
by Michael Belcher, Peter Capote, Derrick Dearman, Lionel
Francis, Brett Yeiter, and Benjamin Young, all prisoners on
death row (hereinafter referred to collectively as "the
respondents"). For the reasons set forth herein, we grant the
petition and issue the writ.
I. Facts
The respondents were all convicted of capital offenses
and were sentenced to death after August 1, 2017, the
effective date of the Fair Justice Act ("FJA"), Act No.
2017-417, Ala. Acts 2017 (codified at Ala. Code 1975,
§ 13A-5-53.1). The FJA governs petitions for postconviction
2
1190644
relief under Rule 32, Ala. R. Crim. P., in death-penalty
cases. Specifically, the FJA provides:
"(a) Rule 32.2(c) of the Alabama Rules of
Criminal Procedure shall not apply to cases in which
a criminal defendant is convicted of capital murder
and sentenced to death, and files a petition for
post-conviction relief under the grounds specified
in Rule 32.1(a), (e), or (f) of the Alabama Rules of
Criminal Procedure.
"(b)
Post-conviction
remedies
sought
pursuant
to
Rule 32 of the Alabama Rules of Criminal Procedure
in death penalty cases shall be pursued concurrently
and simultaneously with the direct appeal of a case
in which the death penalty was imposed. In all cases
where the defendant is deemed indigent or as the
trial judge deems appropriate, the trial court,
within 30 days of the entry of the order pronouncing
the defendant's death sentence, shall appoint the
defendant a separate counsel for the purposes of
post-conviction relief under this section. Appointed
counsel shall be compensated pursuant to Chapter 12
of Title 15; provided, however, that notwithstanding
any provision of that chapter to the contrary, the
total fee awarded shall not exceed seventy-five
hundred dollars ($7,500), which may be waived by the
Director of the Office of Indigent Defense Services
for good cause shown.
"(c) A circuit court shall not entertain a
petition for post-conviction relief from a case in
which the death penalty was imposed on the grounds
specified in Rule 32.1(a) of the Alabama Rules of
Criminal Procedure unless the petition, including
any amendments to the petition, is filed within 365
days of the filing of the appellant defendant's
first brief on direct appeal of a case in which the
death penalty was imposed pursuant to the Alabama
Rules of Appellate Procedure.
3
1190644
"(d) A circuit court, before the filing date
applicable to the defendant under subsection (c),
for good cause shown and after notice and an
opportunity to be heard from the Attorney General,
or other attorney representing the State of Alabama,
may grant one 90-day extension that begins on the
filing date applicable to the defendant under
subsection (c).
"(e) Within 90 days of the filing of the state's
answer
to
a
properly
filed
petition
for
post-conviction relief, the circuit court shall
issue an order setting forth those claims in the
petition that should be summarily dismissed and
those claims, if any, that should be set for an
evidentiary hearing. If the properly filed petition
for post-conviction relief is still pending at the
time of the issuance of the certificate of judgment
on direct appeal, the court in which the petition is
pending shall issue a final order on the petition or
appeal within 180 days.
"(f) If post-conviction counsel files an
untimely petition or fails to file a petition before
the filing date applicable under this section, the
circuit court shall direct post-conviction counsel
to show good cause demonstrating extraordinary
circumstances as to why the petition was not
properly filed. After post-conviction counsel's
response, the circuit court may do any of the
following:
"(1) Find that good cause has been
shown and permit counsel to continue
representing the defendant and set a new
filing deadline for the petition, which may
not be more than 30 days from the date the
court
permits
counsel
to
continue
representation.
4
1190644
"(2) Find that good cause has not been
shown and dismiss any untimely filed
petition.
"(3) Appoint new and different counsel
to represent the defendant and establish a
new filing deadline for the petition, which
may not be more than 270 days after the
date the circuit
court appoints
new
counsel.
In
the
instance
that
this
subdivision is applicable and new counsel
is appointed, the circuit court in which
the petition is pending shall issue a final
order on the petition or appeal within 180
days of the filing of the petition.
"(g) The time for filing a petition for
post-conviction relief under Rule 32.1(f) in a case
in which the death penalty was imposed shall be six
months from the date the petitioner discovers the
dismissal or denial, irrespective of the deadlines
specified in this section. This provision shall not
extend the deadline of a previously filed petition
under Rule 32.1 of the Alabama Rules of Criminal
Procedure.
"(h) Any petition for post-conviction relief
filed pursuant to this section after the filing date
that is applicable to the defendant under this
section is untimely. Rule 32.7(b) of the Alabama
Rules of Criminal Procedure shall not apply to any
amendments to a petition for post-conviction relief
filed pursuant to this section after the filing date
that is applicable to the defendant under this
section.
Any
amendments
to
a
petition
for
post-conviction relief filed pursuant to this
section filed after the filing date that is
applicable to the defendant under this section shall
be treated as a successive petition under Rule
32.2(b) of the Alabama Rules of Criminal Procedure.
5
1190644
"(i) The circuit court shall not entertain a
petition in a case in which the death penalty has
been imposed based on the grounds specified in Rule
32.1(e) of the Alabama Rules of Criminal Procedure
unless the petition for post-conviction relief is
filed within the time period specified in subsection
(c) or (d), or within six months after the discovery
of the newly discovered material facts, whichever is
later.
"(j) This section shall apply to any defendant
who is sentenced to death after August 1, 2017."
§ 13A-5-53.1, Ala. Code 1975.
Belcher was sentenced to death by petitioner Judge Almond
in Tuscaloosa County, Alabama, on April 3, 2019. Belcher
filed his appellant's brief in his direct appeal on
February 14, 2020. Under the FJA, Belcher must file his
Rule 32 petition within 365 days of his first brief on appeal,
i.e., February 13, 2021, unless he is granted a 90-day
extension. See § 13A-5-53.1(c) and (d). No other Rule 32
deadlines under the FJA will begin to run for Belcher unless
and until the Court of Criminal Appeals affirms Belcher's
conviction and death sentence, overrules his application for
rehearing, any certiorari review is fully exhausted, and a
certificate of judgment is issued. See § 13A-5-53.1(e).
Capote was sentenced to death in Colbert County, Alabama,
on May 24, 2018, and petitioner Judge Hatcher is currently
6
1190644
presiding over his case. Capote filed his appellant's brief
in his direct appeal on April 5, 2019. Thus, under the FJA,
Capote's Rule 32 petition was originally due on April 4, 2020.
Capote filed a motion for a 90-day extension to file his
Rule 32 petition under the FJA, and Judge Hatcher granted his
request while the underlying action was pending against her.
Consequently, Capote's Rule 32 petition was due on or before
July 3, 2020. The Alabama Court of Criminal Appeals issued an
opinion affirming Capote's conviction and death sentence on
January 10, 2020. See Capote v. State, [Ms. CR-17-0963,
Jan. 10, 2020] ___ So. 3d ___ (Ala. Crim. App. 2020). The
Court of Criminal Appeals overruled Capote's application for
rehearing on May 22, 2020. Thus, the 180-day deadline for a
final order concerning Capote's Rule 32 petition will be
November 18, 2020. See § 13A-5-53.1(e).
Dearman was sentenced to death in Mobile County, Alabama,
on October 12, 2018, and petitioner Judge Hambright is
currently presiding over his case. Dearman filed his
appellant's brief in his direct appeal on August 27, 2019.
Thus, under the FJA, Dearman must have filed his Rule 32
petition by August 26, 2020, unless he was granted a 90-day
7
1190644
extension. No other Rule 32 deadlines under the FJA will
begin to run for Dearman unless and until the Court of
Criminal Appeals affirms Dearman's conviction and death
sentence, overrules his application for rehearing, any
certiorari review is fully exhausted, and a certificate of
judgment is issued.
Francis was sentenced to death by petitioner Judge Hall
in Madison County, Alabama, on July 25, 2019. Francis filed
his appellant's brief in his direct appeal on April 29, 2020.
Thus, under the FJA, Francis must file his Rule 32 petition by
April 29, 2021, unless he is granted a 90-day extension. No
other Rule 32 deadlines under the FJA will begin to run for
Francis unless and until the Court of Criminal Appeals affirms
Francis's conviction and death sentence, overrules his
application for rehearing, any certiorari review is fully
exhausted, and a certificate of judgment is issued.
Yeiter was sentenced to death by petitioner Judge Rice in
Escambia County, Alabama, on March 20, 2019. Yeiter filed his
appellant's brief in his direct appeal on March 24, 2020.
Thus, under the FJA, Yeiter has until March 24, 2021, to file
his Rule 32 petition unless he receives a 90-day extension.
8
1190644
No other Rule 32 deadlines under the FJA will begin to run for
Yeiter unless and until the Court of Criminal Appeals affirms
Yeiter's conviction and death sentence, overrules his
application for rehearing, any certiorari review is fully
exhausted, and a certificate of judgment is issued.
Young was sentenced to death in Colbert County, Alabama,
on March 13, 2018, and petitioner Judge Hatcher is currently
presiding over his case. Young filed his appellant's brief in
his direct appeal on April 10, 2019. Thus, under the FJA,
Young had until April 9, 2020, to file his Rule 32 petition,
unless he received a 90-day extension. Young filed a motion
for a 90-day extension to file his Rule 32 petition under the
FJA, and Judge Hatcher granted his request while the
underlying action was pending against her. Young's Rule 32
petition was due on or before July 8, 2020. Young's death-
penalty conviction and sentence are pending on direct appeal.
No other Rule 32 deadlines under the FJA will begin to run for
Young unless and until the Court of Criminal Appeals affirms
Young's
conviction
and
death
sentence,
overrules
his
application for rehearing, any certiorari review is fully
exhausted, and a certificate of judgment is issued.
9
1190644
On January 29, 2020, the respondents filed in the trial
court a complaint for a declaratory judgment under the
Declaratory Judgment Act, §§ 6–6–220 through –232, Ala. Code
1975, and for injunctive relief1 against the petitioners in
their official capacities as the officials the respondents
believe are responsible for enforcing the provisions of the
FJA against the respondents. In their complaint the
respondents alleged that the FJA is unconstitutional because
it:
"(1) denies [respondents] of the opportunity to
fairly present their constitutional claims thereby
depriving them of 'access to courts' in violation of
the Fifth and Fourteenth Amendments to the United
States Constitution and Alabama law; (2) denies
[respondents] their rights to due process of law in
violation of the Fifth and Fourteenth Amendments to
the United States Constitution and Alabama law;
(3) denies [respondents] their rights to ensure that
their convictions and sentences are not imposed in
an arbitrary and capricious manner in violation of
the Eighth and Fourteenth Amendments to the United
States Constitution and Alabama law; (4) denies
[respondents] their rights to effective assistance
of counsel under the Sixth and Fourteenth Amendments
to the United States Constitution and Alabama law;
and
(5)
violates
established
constitutional
1The respondents filed a motion for a preliminary
injunction on the same date they filed their complaint seeking
a declaratory judgment. The trial court had not ruled on that
motion before this petition for a writ of mandamus was filed
and this Court ordered answers and briefs and entered a stay
of all proceedings in the trial court.
10
1190644
principles of separation of powers by mandating
Alabama courts to act on filed petitions within a
fixed timeline ...."
More specifically, the respondents alleged:
"69.
The
FJA
specifically
mandates
that
Rule 32.7(b), [Ala. R. Crim. P.,] which had
previously allowed for amendment to petitions prior
to judgment to modify or add claims based on
information obtained during the Rule 32 process,
does not apply under the FJA and that any amendments
filed after the filing date will be treated as
successive
petitions.
Ala.
Code
[1975,]
§ 13A-5-53.1(h).
"70. However, existing Alabama precedent prohibits
discovery from being obtained in Rule 32 proceedings
prior to the filing of a petition.
"....
"73. As a consequence, under this precedent
[respondents] are not able to seek discovery until
after filing their petitions for relief, but, due to
the FJA's prohibition on amendment, Alabama Code
[1975, §] 13A-5-53.1(c), (h), [respondents] are
unable to use any discovery that they obtain, as
they would be unable to amend their petitions to
incorporate that discovery.
"74. In effect, the FJA eliminates the ability to
seek discovery in post-conviction proceedings if an
individual has been sentenced to death."
The complaint went on to allege that, because of the FJA's
alleged prohibition on seeking discovery in postconviction
proceedings for death-penalty petitioners, the respondents
will be unable to assert in their Rule 32 petitions any Brady
11
1190644
v. Maryland, 373 U.S. 83 (1963), claims for the alleged
withholding of potentially exculpatory evidence or to raise
any claims of ineffective assistance of counsel that require
access to the prosecution's file to establish or to allege
many juror claims that require rigorous investigation.
Additionally, the complaint alleged that the FJA's deadline on
a circuit court for issuing a final order in a Rule 32
proceeding "violate[s] state constitutional separation of
powers principles" and prevents proper deliberation of a
Rule 32 petitioner's claims.
On February 21, 2020, the petitioners filed a motion to
dismiss the complaint under Rule 12(b)(1), Ala. R. Civ. P.,
asserting
that
the
trial
court
lacked
subject-matter
jurisdiction
over
the
complaint.
Specifically,
the
petitioners contended that the trial court could not enjoin
the enforcement of criminal laws through this civil action and
that the respondents failed to present a justiciable
controversy
because
their
claims
were
not
ripe
for
adjudication. The petitioner circuit judges additionally
moved to dismiss the complaint under Rule 12(b)(6), Ala. R.
12
1190644
Civ. P., on the ground that they are absolutely judicially
immune from suit.
On April 15, 2020, the trial court held a hearing on the
motion to dismiss, and it requested proposed orders from each
side concerning the motion. On April 27, 2020, the trial
court entered an order denying the petitioners' motion to
dismiss that addressed each of the petitioners' arguments. On
May 15, 2020, the petitioners filed this petition for a writ
of mandamus. This Court ordered answers and briefs.
II. Standard of Review
"Mandamus is a drastic and extraordinary writ,
to 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 Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). The
question of subject-matter jurisdiction is reviewable by a
petition for a writ of mandamus. See Ex parte Flint Constr.
Co., 775 So. 2d 805, 808 (Ala. 2000). The denial of a claim
of judicial immunity is also reviewable by mandamus. See
Ex parte City of Greensboro, 948 So. 2d 540 (Ala. 2006).
13
1190644
III. Analysis
A. Interference with Criminal Law Through Civil Action
The petitioners first contend that the trial court lacks
jurisdiction to entertain the respondents' claims because,
they say, the requested relief -- a judgment declaring that
the FJA is unconstitutional and an injunction precluding its
enforcement against the respondents -- "would interfere with
future criminal proceedings, i.e., the Rule 32 petitions."
The petitioners rely upon the principle this Court enunciated
in Tyson v. Macon County Greyhound Park, Inc., 43 So. 3d 587,
589 (Ala. 2010):
"The general rule is that a court may not
interfere with the enforcement of criminal laws
through a civil action; instead, the party aggrieved
by such enforcement shall make his case in the
prosecution of the criminal action:
"'It is a plain proposition of law that
equity will not exert its powers merely to
enjoin
criminal
or
quasi
criminal
prosecutions, "though the consequences to
the
complainant
of
allowing
the
prosecutions to proceed may be ever so
grievous and irreparable." Brown v.
Birmingham, 140 Ala. [590,] 600, 37 South.
[173,] 174 [(1904)]. "His remedy at law is
plain, adequate, and complete by way of
establishing and having his innocence
adjudged in the criminal court." Id.'
14
1190644
"Board of Comm'rs of Mobile v. Orr, 181 Ala. 308,
318, 61 So. 920, 923 (1913). See also 22A Am. Jur.
2d Declaratory Judgments § 57 (2003) ('A declaratory
judgment will generally not be granted where its
only effect would be to decide matters which
properly should be decided in a criminal action.')."
The petitioners argue that this principle is reinforced by
Rule 32.4, Ala. R. Crim. P., which states that a Rule 32
petition "displaces all post-trial remedies except post-trial
motions under Rule 24 and appeal. Any other post-conviction
petition seeking relief from a conviction or sentence shall be
treated as a proceeding under this rule." The petitioners
interpret this language to prohibit the use of a declaratory-
judgment action if the action in any way concerns a Rule 32
petition.
However,
there
are
multiple
problems
with
the
petitioners' argument. To begin with, Rule 32.4 expressly
notes that it "displaces ... [a]ny other post-conviction
petition seeking relief from a conviction or sentence."
(Emphasis added.) As the respondents rightly observe, they
"do not challenge their convictions or death sentences, but
rather seek a straightforward declaratory judgment that the
procedures established by the FJA are unconstitutional and an
injunction to prevent the Attorney General and the Circuit
15
1190644
Court judges in their official capacities from enforcing the
FJA's provisions." Respondents' brief, p. 2. Indeed, the
petitioners conceded this fact in their motion to dismiss,
stating that "[i]t is true that [the respondents] ... do not
ask this Court to overturn their convictions or change their
sentences." In other words, this declaratory-judgment action
is not a "post-trial remed[y]" but, rather, a constitutional
challenge to the procedures the respondents must follow when
seeking a postconviction remedy. Thus, by the plain language
of Rule 32.4, the respondents' declaratory-judgment action is
not precluded.
Second, Tyson itself recognized an exception to the
principle that "a court may not interfere with the enforcement
16
1190644
of criminal laws through a civil action."2 Tyson, 43 So. 3d
2A Rule 32 proceeding is not, strictly speaking, a
criminal proceeding.
"Rule 32 postconviction proceedings in Alabama are
considered civil in nature .... As Justice Stuart
explained in her dissent in Ex parte Hutcherson, 847
So.
2d
386,
389
(Ala.
2002)
(Stuart,
J.,
dissenting):
"'[W]hile
a
Rule
32
proceeding
for
postconviction relief is considered to be
civil in nature, such a proceeding is
distinct from a typical civil case. Rule
32, Ala. R. Crim. P., provides a defendant
a method by which to seek postconviction
relief;
therefore,
the rights to be
accorded a defendant during a Rule 32
proceeding and the procedures pursuant to
which such a proceeding is conducted are
based upon the rule and caselaw.'
"847 So. 2d at 389–90 (citation omitted)."
Ex parte Jenkins, 972 So. 2d 159, 162–63 (Ala. 2005).
However, the fact that a Rule 32 proceeding is civil in nature
does not by itself prevent the application of the principle
enunciated in Tyson. As the petitioners note, in both
Ex parte Rich, 80 So. 3d 219 (Ala. 2011), and State v.
Greenetrack, Inc., 154 So. 3d 940 (Ala. 2014), this Court
concluded that the plaintiffs in those cases could not use a
civil
action
to
interfere
with
civil-forfeiture
type
proceedings sought by the State because, "[l]ike a criminal
prosecution, a civil forfeiture action is a mechanism
available to the executive branch for the enforcement of
criminal laws making the possession of certain property
illegal." Greenetrack, 154 So. 3d at 956 n.5. Thus, the
principle enunciated in Tyson is concerned with protecting
executive enforcement of criminal laws, regardless of whether
that enforcement is carried out in a civil or criminal
proceeding.
17
1190644
at 589. Specifically, the Court noted:
"This Court has recognized an exception to the
general rule whereby the equitable powers of the
court can be invoked to avoid irreparable injury
when the plaintiff contends that the statute at
issue is void. ... The exercise of equitable
jurisdiction in such cases is consistent with this
Court's recognition of the propriety of actions
against State officials in their official capacity
to enjoin enforcement of a void law because such
conduct -- enforcing a void law -- exceeds the
discretion of the executive in administering the
laws of this State. ...
"The complaint in this action does not present
a situation in which the plaintiff acknowledges that
his conduct is prohibited by a statute and then
challenges the enforceability of the statute."
Id. at 589-90. As the respondents observe, their declaratory-
judgment action falls squarely within the stated exception
because they contend that the FJA is void under the United
States Constitution and the Alabama Constitution. Moreover,
unlike the plaintiffs in Tyson, the respondents here posit
that what they wish to do -- engage in discovery and then
amend their Rule 32 petitions to include the fruits of that
discovery in support of their Rule 32 allegations -- is
prohibited by the FJA. Further, the respondents correctly
observe that the Declaratory Judgment Act specifically
recognizes
that
it
may
be
used
to
challenge
the
18
1190644
constitutionality of state laws. See Ala. Code 1975,
§§ 6-6-223 and 6-6-227 (stating that "[a]ny person ... whose
rights, status, or other legal relations are affected by a
statute ... may have determined any question of construction
or validity arising under the ... statute" and that, "if the
statute ... is alleged to be unconstitutional, the Attorney
General of the state shall also be served with a copy of the
proceeding and be entitled to be heard").
The petitioners argue that the exception noted in Tyson
is not available to the respondents based on Citizenship Trust
v. Keddie-Hill, 68 So. 3d 99 (Ala. 2011), and Arthur v. State,
238 So. 3d 1276 (Ala. Crim. App. 2017). But Keddie-Hill and
Arthur are inapposite because in each of those cases the
plaintiffs
actually
sought
to address
their
criminal
punishments through civil actions.
"In Keddie–Hill, this Court addressed claims by Mary
Kathleen Keddie–Hill, Cheryl Tillman, and Justin
Hammond, alleging, among other things, that the
provision in Act No. 2009–768, Ala. Acts 2009,
allowing a portion of the DNA-database fee to be
distributed
to
the
Citizenship
Trust
was
unconstitutional. Keddie–Hill and Tillman had
pleaded guilty to traffic violations and paid the
fines and court costs assessed against them in their
respective cases, including the DNA-database fee.
However, they paid the DNA-database fee under
protest, arguing that the provision for distribution
19
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of
the
fee
to
the
Citizenship
Trust
was
unconstitutional but that they could not afford a
lawyer to challenge the allegedly unconstitutional
portion of the fee. Hammond had also received a
traffic citation, but, at the time he filed his
claims in Keddie–Hill, he had not yet pleaded guilty
or been ordered to pay any fines or court costs.
Instead, he argued that '"[s]hould I plea[d] or be
found guilty I anticipate being ordered to pay fines
and court costs assessed against me,"' including the
allegedly
unconstitutional
portion
of
the
DNA-database fee. Keddie–Hill, 68 So. 3d at 103."
Poiroux v. Rich, 150 So. 3d 1027, 1033 (Ala. 2014). The
Keddie-Hill Court
expressly
noted
that
Keddie–Hill and
Tillman
"seek an injunction remedying the payment of the
allegedly unconstitutional fine by ordering the
defendants to refund the fees or, alternatively, an
order making distribution of those fees pursuant to
the cy pres doctrine. Thus, the present proceeding
is a collateral proceeding to secure relief from
criminal sentences on constitutional grounds."
168 So. 3d at 104. As for Hammond, his criminal proceeding
had not yet occurred, but he sought an injunction against the
penalty he would be subjected to in his pending criminal
proceeding. See id. at 106.
In Arthur, a death-row inmate sought a judgment declaring
that Alabama's statutes relating to the execution of convicts
violated the Alabama Constitution and an injunction barring
the State from executing him pursuant to a method of execution
determined by the executive branch. In an appeal-transfer
20
1190644
order, this Court determined that Arthur's action "'in
substance seeks relief from a sentence on constitutional
grounds'" and that, therefore, "Arthur's declaratory-judgment
action is in substance a Rule 32, Ala. R. Crim. P., petition
for postconviction relief." Arthur, 238 So. 3d at 1278. In
other words, Arthur plainly sought relief from his death
sentence through his declaratory-judgment action.
In contrast to the situations presented in both Keddie-
Hill and Arthur, the respondents in this case do not seek to
attack their murder convictions or their death sentences in
this declaratory-judgment action; they seek a judgment
declaring that the FJA is unconstitutional and an injunction
to prohibit the enforcement of the FJA, relief that will not
affect the respondents' convictions or sentences in any way.
Because the respondents do not seek "relief from [a] criminal
sentence[] on constitutional grounds," or "collaterally
attack[] the judgments in criminal cases," their declaratory-
judgment action falls within the exception noted in Tyson
concerning an action that contends that the subject statute is
void. Keddie–Hill, 68 So. 3d at 104, 105. Accordingly, the
21
1190644
principle enunciated in Tyson does not deprive the trial court
of subject-matter jurisdiction over the respondents' claims.
B. The Ripeness of the Respondents' Claims
The petitioners argue that the respondents' claims
"present
only
a
nonjusticiable
anticipated
controversy and invite an advisory opinion --
something the circuit court lacks jurisdiction to
provide. They allege that in their future Rule 32
proceedings, they might not be able to meet the
FJA's standard for amending their Rule 32 petitions,
that the FJA's filing deadlines might interfere with
their ability to prepare a Rule 32 petition, and
that the FJA's deadlines for the Petitioner Circuit
Judges to enter a final order on their petitions
might prevent meaningful consideration of their
petitions. But these claims are inherently
fact-specific
and
must
be
raised
in
the
circumstances of their six individual Rule 32
proceedings rather than collectively in a collateral
civil suit. The circuit court erred in finding
Respondents' claims were ripe and that they alleged
an imminent and tangible injury caused by the FJA as
required for standing."
Petition, pp. 18-19.
The respondents counter that "[t]here is nothing
'abstract' or 'anticipated' ... about the imminent threat of
injury or the inevitability of litigation" because they are
subject to the provisions of the FJA right now if any of them
seeks to file a Rule 32 petition. Respondents' brief, p. 14.
The
respondents allege
that
their
"post-conviction counsel
are
22
1190644
already being forced to make impossible choices about which
claims to investigate and raise, and which to forfeit
forever," because of the procedural deadlines in the FJA. Id.
In support of the contention that their complaint presents a
justiciable controversy, the respondents point to the fact
that the purpose of the Declaratory Judgment Act "is to settle
and to afford relief from uncertainty and insecurity with
respects to rights, status, and other legal relations and is
to be liberally construed and administered." § 6-6-221, Ala.
Code 1975. They argue that their constitutional rights are in
present jeopardy because the FJA has the force of law.
"In a legal context,
"'"[r]ipeness
is
defined
as
'[t]he
circumstance existing when a case has
reached, but has not passed, the point when
the facts have developed sufficiently to
permit an intelligent and useful decision
to be made.'" Ex parte Safeway Ins. Co. of
Alabama, Inc., 990 So. 2d 344, 352 n.5
(Ala.
2008)
(quoting
Black's
Law
Dictionary
1353 (8th ed. 2004)).'
"Martin v. Battistella, 9 So. 3d 1235, 1240–41 (Ala.
2008). Courts generally restrain themselves from
addressing cases that have not reached the point of
ripeness. The United States Supreme Court has stated
that the basic rationale of the ripeness doctrine is
'to prevent the courts, through avoidance of
premature adjudication, from entangling themselves
in abstract disagreements ....' Abbott Labs. v.
23
1190644
Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18
L.Ed.2d 681 (1967). See also National Park
Hospitality Ass'n v. Department of the Interior, 538
U.S. 803, 807, 123 S.Ct. 2026, 155 L.Ed.2d 1017
(2003). Alabama cases often address ripeness in the
context of whether a case is justiciable, or
appropriate for judicial review. That is, the case
must concern a dispute that is '"'a real and
substantial controversy admitting of specific relief
through a [judgment].'"' Ex parte Bridges, 925 So.
2d 189, 193 (Ala. 2005) (holding that declaratory
relief is not available for an 'anticipated
controversy' (quoting Baldwin County v. Bay Minette,
854 So. 2d 42, 45 (Ala. 2003), quoting in turn
Copeland v. Jefferson County, 284 Ala. 558, 561, 226
So. 2d 385, 387 (1969)))."
Ex parte Riley, 11 So. 3d 801, 806–07 (Ala. 2008).
"'[A]pplying
the
ripeness
doctrine
in
the
declaratory judgment context presents a unique
challenge.' Orix Credit Alliance, Inc. v. Wolfe,
212 F.3d 891, 896 (5th Cir. 2000). This is because
declaratory
relief
is
more
likely
to
be
discretionary, and declaratory actions contemplate
an 'ex ante determination of rights' that 'exists in
some tension with traditional notions of ripeness.'
Id. (citing Rhode Island v. Narragansett Indian
Tribe, 19 F.3d 685, 692 (1st Cir. 1994))."
Certain Underwriters at Lloyd's London v. A & D Interests,
Inc., 197 F. Supp. 2d 741, 749 (S.D. Tex. 2002). See also
Ex parte Town of Summerdale, 252 So. 3d 111, 121 (Ala. 2016)
("A declaratory-judgment action is a unique form of action in
that it is often filed before an actual breach of a right has
occurred, and so an 'actual injury' has not yet been sustained
24
1190644
by the plaintiff. A declaratory judgment often seeks to avoid
harm before it happens.").
Nonetheless, ripeness is still required for a court to
entertain a request for a declaratory judgment.
"Although
the
Declaratory
Judgment
Act,
codified
at Ala. Code 1975, §§ 6–6–220 through –232 ('the
Act'), provides for actions to declare the legal
rights, status, and relations of parties, the Act
does not '"'empower courts to decide moot questions,
abstract propositions, or to give advisory opinions,
however convenient it might be to have these
questions decided for the government of future
cases.'"' Bruner v. Geneva County Forestry Dep't,
865 So. 2d 1167, 1175 (Ala. 2003) (quoting Stamps v.
Jefferson County Bd. of Educ., 642 So. 2d 941, 944
(Ala. 1994), quoting in turn Town of Warrior v.
Blaylock, 275 Ala. 113, 114, 152 So. 2d 661, 662
(1963) (emphasis added in Stamps)).
"'This
Court
has
emphasized
that
declaratory-judgment actions must "settle
a 'bona fide justiciable controversy.'"
Baldwin County v. Bay Minette, 854 So. 2d
42, 45 (Ala. 2003) (quoting Gulf South
Conference v. Boyd, 369 So. 2d 553, 557
(Ala. 1979)). The controversy must be
"'definite and concrete,'" must be "'real
and substantial,'" and must seek relief by
asserting a claim opposed to the interest
of another party "'upon a state of facts
which must have accrued.'" Baldwin County,
854 So. 2d at 45 (quoting Copeland v.
Jefferson County, 284 Ala. 558, 561, 226
So. 2d 385, 387 (1969)). "'Declaratory
judgment proceedings will not lie for an
"anticipated controversy."'" Creola Land
Dev., Inc. v. Bentbrooke Housing, L.L.C.,
828 So. 2d 285, 288 (Ala. 2002) (quoting
25
1190644
City of Dothan v. Eighty–Four West, Inc.,
738 So. 2d 903, 908 (Ala. Civ. App.
1999)).'
"Bedsole[ v. Goodloe,] 912 So. 2d [508,] 518 [(Ala.
2005)]."
Surles v. City of Ashville, 68 So. 3d 89, 93 (Ala. 2011).
In light of the foregoing principles, the difficulty with
the respondents' claims is a lack of a factual context
necessary to make a proper determination concerning the
constitutionality of the FJA. We do not doubt the likelihood
of future litigation between the respondents and the Attorney
General's office: inmates on death row nearly always file at
least one Rule 32 petition. But the respondents' claims make
largely hypothetical assumptions about the effect the FJA will
have upon their respective Rule 32 petitions and how the FJA
will be applied in their respective cases. The respondents
simply state, without specific explication concerning each of
their cases, that the procedural requirements of the FJA will
force them to file Rule 32 petitions without sufficient time
to research and formulate arguments, that it will prevent them
from engaging in discovery that supports the claims in their
petitions or sheds light on new claims, that the petitioner
circuit judges will be forced to disallow amendments to their
26
1190644
Rule 32 petitions based upon such discovery, and that the
petitioner circuit judges will not have sufficient time to
thoroughly examine the claims in the respondents' Rule 32
petitions before the FJA requires them to issue final orders
on the respondents' Rule 32 petitions. Indeed, although the
subject
declaratory-judgment action
is
brought
by
six
specific
death-row inmates, their claims are couched in general terms
because the respondents assume that the FJA will be applied
the same way and have the same effects for every death-penalty
Rule 32 petitioner. As the respondents assert in their brief:
"Given the FJA's dramatically reduced statute of limitations,
any Plaintiff who takes the time required to file a petition
that incorporates discovery will default their constitutional
claims, and never be able to raise them due to procedural
bars, no matter the strength of these claims." Respondents'
brief, pp. 13-14 (emphasis added). But there is no way a
court can actually know that such results will occur under the
FJA for each of the respondents -- or, for that matter, for
any other death-row inmate who has yet to file a Rule 32
petition governed by the FJA -- until the Rule 32 petitions
are filed and the claims are examined.
27
1190644
This declaratory-judgment action forces the trial court
to make assumptions or predictions absent the factual context
that would exist in an actual Rule 32 proceeding.3
"'Predominantly legal questions are generally amenable to a
conclusive determination in a preenforcement context';
however, judgements that would be 'based upon a hypothetical
set of facts' stray towards the realm of advisory opinions and
thus favor a finding of unripeness." AXIS Ins. Co. v. PNC
Fin. Servs. Grp., Inc., 135 F. Supp. 3d 321, 327 (W.D. Pa.
2015) (quoting Pittsburgh Mack Sales & Serv., Inc. v.
International Union of Operating Engineers, Local Union
3The
respondents argue
that
all
of
their
allegations "must
be accepted as true at the motion to dismiss stage."
Respondents' brief, p. 13. But this confuses the respondents'
factual allegations with their legal allegations; the court is
required to accept only the former as true in evaluating a
motion to dismiss. Specifically, we must accept as true that
the respondents are all subject to the FJA and that they will
file Rule 32 petitions before the petitioner circuit judges
because those are factual allegations. However, the effects
that the respondents allege the FJA will have on the substance
of their Rule 32 claims and upon the rulings of the petitioner
circuit judges are legal allegations that carry no such
presumption. See, e.g., Ex parte Gilland, 274 So. 3d 976, 985
n.3 (Ala. 2018) ("Although we are required to accept McCain's
factual allegations as true at this stage of the proceedings,
we are not required to accept her conclusory allegations that
Gilland acted willfully, maliciously, fraudulently, or in bad
faith. Rather, to survive Gilland's motion to dismiss, McCain
was required to plead facts that would support those
conclusory allegations.").
28
1190644
No. 66, 580 F.3d 185, 190-91 (3d Cir. 2009)). As we noted in
the rendition of the facts, the FJA's initial deadline for
filing a Rule 32 petition has not passed for respondents
Belcher, Francis, and Yeiter, and it has passed for
respondents Capote, Dearman, and Young, though we have no
information as to whether the latter three respondents have,
in fact, filed Rule 32 petitions. Regardless, before a Rule
32 proceeding has been initiated, there is an "absence of an
extant factual scenario from which to frame a controversy."
Baldwin Cnty. v. Bay Minette, 854 So. 2d 42, 46 (Ala. 2003).
Determination of the effects of the FJA on the respondents'
constitutional rights outside the Rule 32 context "would
require
the
trial
court
to
speculate
on
presently
undeterminable circumstances," including how the FJA would
affect the claims filed by each respondent in his Rule 32
petition and how the petitioner circuit judges would apply the
FJA in each Rule 32 proceeding. Bruner v. Geneva Cnty.
Forestry Dep't, 865 So. 2d 1167, 1176 (Ala. 2003). As to the
latter point, "[w]e presume that trial court judges know and
follow the law." Ex parte Atchley, 936 So. 2d 513, 516 (Ala.
2006). And yet, the subject declaratory-judgment action
29
1190644
presumes that the petitioner circuit judges in the yet-to-
occur Rule 32 proceedings will apply the law in such a way as
to violate the respondents' constitutional rights. This
discrepancy further highlights why the asserted claims are
speculative, absent the context of a Rule 32 proceeding. For
all that appears, the deadlines mandated by the FJA might be
navigated in such a way that there are no detrimental effects
upon the respondents' constitutional rights -- or at least
upon those of some of the respondents. Until such time as the
respondents file their respective Rule 32 petitions, "any
attempt to obtain a declaratory judgment as to a hypothetical
future controversy is beyond the subject-matter jurisdiction
of the circuit courts." Ex parte Johnson, 993 So. 2d 875, 884
(Ala. 2008).
In short, "whether there is an actual case or controversy
to support a declaratory judgment may be affected by a
preference for resolution in a different and better-developed
proceeding." 13 Charles Alan Wright et al., Federal Practice
and Procedure § 3529 n.17 (3d ed. 2008). In this instance,
the respondents' claims are inherently fact-specific and
necessitate resolution within the context of a Rule 32
30
1190644
proceeding. In the present context, their claims amount to an
anticipated controversy, which the Declaratory Judgment Act
does not address. See Surles, 68 So. 3d at 93. Accordingly,
the trial court lacks jurisdiction to entertain the
respondents' complaint, and the trial court erred in denying
the petitioners' motion to dismiss.4
IV. Conclusion
Based on the foregoing, we conclude that the general
principle that a court may not interfere with the enforcement
of criminal laws through a civil action does not deprive the
trial court of jurisdiction in this case. However, we also
conclude that the respondents' claims are not ripe for
adjudication
in
this
declaratory-judgment
action
because
their
claims are inherently fact-specific and must be raised within
the context of their six individual Rule 32 proceedings.
Therefore, the trial court lacked jurisdiction to entertain
the respondents' complaint. Accordingly, we grant the
4Because we have concluded that the respondents' claims
are not ripe for adjudication in the context of a declaratory-
judgment action, we pretermit discussion as to whether the
petitioner circuit judges are judicially immune from the
respondents' claims.
31
1190644
petition for a writ of mandamus and direct the trial court to
enter an order granting the petitioners' motion to dismiss.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Sellers and Mitchell, JJ., concur.
Bolin, Wise, Bryan, Mendheim, and Stewart, JJ., concur
specially.
Shaw, J., concurs in the result.
32
1190644
MENDHEIM, Justice (concurring specially).
I fully concur with the main opinion. I write separately
to address the fact that the respondents named as defendants
in this action the circuit judges who will preside in the
respondents' Rule 32, Ala. R. Crim. P., proceedings when the
respondents file their Rule 32 petitions.5
The Attorney General has argued on behalf of the
petitioner circuit judges that judicial immunity bars the
respondents from asserting their claims for declaratory and
injunctive relief against the petitioner circuit judges. In
support of this argument, the Attorney General cites Ex parte
City of Greensboro, 948 So. 2d 540, 542 (Ala. 2006), in which
this Court stated: "Judges acting in an official judicial
capacity are entitled to absolute judicial immunity under
Alabama law ...."
The respondents counter that Greensboro involved a
situation in which the plaintiff sought damages against a
municipal-court clerk and magistrate, whereas they seek
equitable relief: a judgment declaring the Fair Justice Act
("FJA") unconstitutional and an injunction preventing its
5This issue was pretermitted by the conclusion in the main
opinion that this case is not ripe for adjudication.
33
1190644
enforcement against them. The respondents cite for support
Pulliam v. Allen, 466 U.S. 522 (1984), a case in which the
United States Supreme Court examined the common-law roots of
judicial immunity and concluded that "judicial immunity is
not
a bar to prospective injunctive relief against a judicial
officer acting in her judicial capacity."6 Id. at 541-42.
Cf. Yeager v. Hurt, 433 So. 2d 1176, 1179 (Ala. 1983) (noting
that the "doctrine of judicial immunity ... absolutely bars
actions for damages against judges"). The Attorney General
retorts that "'Congress responded to Pulliam in 1996 by
amending § 1983 to abrogate its holding.' Justice Network,
Inc. v. Craighead Cnty., 931 F.3d 753, 763 (8th Cir. 2019)."
Petition, p. 28.
In my view, neither the petitioners nor the respondents
have approached this issue correctly. It is true that
Congress, in the Federal Courts Improvement Act of 1996,
amended 42 U.S.C. § 1983 such that "injunctive relief against
a judicial officer for an act or omission in his judicial
capacity shall not be granted unless a declaratory decree was
6Federal law concerning judicial immunity is implicated
here because most of the respondents' allegations assert that
the FJA violates their federal constitutional rights.
34
1190644
violated or declaratory relief was unavailable." Bauer v.
Texas, 341 F.3d 352, 357 (5th Cir. 2003). See also Pub.L. No.
104–317, § 309(c), 110 Stat. 3847 (codified at 42 U.S.C.
§ 1983); Kuhn v. Thompson, 304 F. Supp. 2d 1313, 1322–23 (M.D.
Ala. 2004) (noting that, "[w]here a plaintiff does not allege
and the record does not suggest that the judicial defendant
violated a declaratory decree or that declaratory relief was
unavailable, judicial immunity requires dismissal of claims
against judicial officers for actions taken in their judicial
capacity even when the claims seek prospective injunctive
relief");
Ray
v.
Judicial
Corr.
Servs.,
Inc.,
No. 2:12-CV-02819-RDP, Oct. 9, 2014 (N.D. Ala. 2014) (not
selected for publication in F.Supp.) (stating that "[i]t
cannot be seriously disputed that, after the [Federal Courts
Improvement Act], judicial immunity typically bars claims for
prospective injunctive relief against judicial officials
acting in their judicial capacity. Only when a declaratory
decree is violated or declaratory relief is unavailable would
plaintiffs have an end-run around judicial immunity"). Thus,
even under the authority relied upon by the respondents, their
claim for injunctive relief against the petitioner circuit
35
1190644
judges is barred by judicial immunity. This leaves, at most,
the respondents' claim for declaratory relief as potentially
viable against the petitioner circuit judges.
However, although the doctrine of judicial immunity may
not bar a suit for declaratory relief against the petitioner
circuit judges, the respondents' action fails for another
reason that implicates jurisdiction: There is a lack of a
justiciable controversy between the respondents and the
petitioner circuit judges.
"The seminal case on the subject is In re Justices
of The Supreme Court of Puerto Rico, 695 F.2d 17
(1st Cir. 1982).
"In
that
case,
five
attorney-plaintiffs sued
the
Puerto Rico Supreme Court and the Puerto Rico Bar
association, attacking the constitutionality of
statutes requiring members of the bar to support the
bar association through dues payments. See id. at
19. Prior to the suit, the bar association had
filed disciplinary complaints against some, but not
all, of the attorney plaintiffs for non-payment of
their dues. The Commonwealth's Supreme Court had
determined that the bar requirements were valid.
See id. When the attorney-plaintiffs filed suit
against the justices, the justices immediately
sought a writ of mandamus from the court of appeals
ordering
the
district
court
to
dismiss
the
complaint. See id. at 21.
"In support of their request for mandamus, the
justices argued that the district court lacked
jurisdiction over the matter under Article III
because no 'case or controversy' existed between the
36
1190644
justices and the attorneys. In this connection, the
justices argued that 'they and the plaintiffs
possess[ed] no ... "adverse legal interest[s]," for
the Justices' only function concerning the statutes
being
challenged
[was]
to
act
as
neutral
adjudicators
rather
than
as
administrators,
enforcers, or advocates.' Id. (emphasis added)."
Brandon E. v. Reynolds, 201 F.3d 194, 197–98 (3d Cir. 2000).
Rather than deciding the case based on Article III of the
United States Constitution, "the Court of Appeals for the
First Circuit simply held that the justices were not proper
parties under § 1983." Brandon E., 201 F.3d at 198.
"We ... agree that, at least ordinarily, no
'case or controversy' exists between a judge who
adjudicates claims under a statute and a litigant
who attacks the constitutionality of the statute.
Judges sit as arbiters without a personal or
institutional
stake
on
either
side
of
the
constitutional controversy. ... Almost invariably,
they have played no role in the statute's enactment,
they have not initiated its enforcement, and they do
not even have an institutional interest in following
their prior decisions (if any) concerning its
constitutionality if an authoritative contrary legal
determination has subsequently been made (for
example, by the United States Supreme Court). In
part for these reasons, one seeking to enjoin the
enforcement of a statute on constitutional grounds
ordinarily sues the enforcement official authorized
to bring suit under the statute; that individual's
institutional obligations require him to defend the
statute. One typically does not sue the court or
judges who are supposed to adjudicate the merits of
the suit that the enforcement official may bring."
37
1190644
In re Justices of Supreme Court of Puerto Rico, 695 F.2d 17,
21-22 (1st Cir. 1982). In short, "[t]he requirement of a
justiciable controversy is not satisfied where a judge acts in
his adjudicatory capacity." Bauer v. Texas, 341 F.3d at 359.
Under this understanding, the petitioner circuit judges
in their role of presiding over the respondents' Rule 32
proceedings
are
not
inherently
antagonistic
to
the
respondents' constitutional claims concerning the FJA. The
only way the required adverseness7 could exist is if the
petitioner
circuit
judges
were
viewed
strictly
as
administrators or enforcers of Rule 32, but that would be a
misunderstanding of a circuit judge's role in a Rule 32
proceeding. An illustrative case is Mendez v. Heller, 530
F.2d 457 (2d Cir. 1976). In Mendez, the appellant Louisa
Roman married Thomas Roman in Puerto Rico on March 31, 1973.
Roman left her husband in California in June 1974, and she
moved to New York the following month. Roman wanted a
7Under Alabama law, "'[t]here must be a bona fide
justiciable controversy in order to grant declaratory relief.
If no justiciable controversy exists when the suit is
commenced, then the court lacks jurisdiction.'" Gulf Beach
Hotel, Inc. v. State ex rel. Whetstone, 935 So. 2d 1177, 1182
(Ala. 2006) (quoting Durham v. Community Bank of Marshall
Cnty., 584 So. 2d 834, 835 (Ala. 1991)).
38
1190644
divorce, but she did not satisfy the applicable two-year
residency requirement under New York law to obtain a divorce.
See N.Y. Dom. Rel. Law § 230(5) (McKinney Supp. 1975). Roman
sought relief in federal court, contending that § 230(5)
violated her federal constitutional rights to due process and
travel. Roman named New York state judge Louis B. Heller as
one of the defendants in her action under the theory that
Justice Heller would be responsible for granting or rejecting
her complaint for divorce under New York law. See Mendez, 530
F.2d at 458. The United States Court of Appeals for the
Second Circuit agreed with the federal district court's
conclusion that Justice Heller lacked
"a legal interest sufficiently adverse to Roman to
create
a
justiciable
controversy.
[Mendez
v.
Heller,] 380 F. Supp. [985,] 989-93 [(E.D.N.Y.
1974)]. This conclusion rested in substance upon
its finding that, if a divorce action were
commenced, defendant Heller, a Justice of the New
York Supreme Court, would be called upon to
determine the constitutional validity of § 230(5)
and, in so doing, would be acting in a judicial
capacity. In this adjudicatory role, Justice Heller
could not take any position on the merits of Roman's
claim prior to his ruling thereon; hence, 'his
posture would be that of an entirely disinterested
judicial officer and not in any sense the posture of
an adversary to the contentions made on either side
of the case.' Id. at 990.
39
1190644
"Roman does not seriously contend that Justice
Heller could be considered her adversary in making
this ruling. Rather, she seeks to avoid the affect
of the decision below by claiming that Justice
Heller is sued, not in his judicial capacity, but
rather as the administrative superior of the
defendant Clerk. Appellant reasons as follows: The
Clerk, who initially screens divorce complaints for
compliance
with
§
230(5),
would
reject
her
complaint. Unlike a ruling on the statute's
constitutionality, the Clerk's action would be a
purely administrative act, similar to the rejection
of divorce complaints for failure to tender filing
fees in Boddie v. Connecticut, 286 F. Supp. 968,
971—72 (D. Conn. 1968) (three-judge court), aff'd on
other grnds., 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d
113 (1971). As presiding Justice, defendant Heller
controls and is responsible for the administrative
acts of the Clerk. Because Justice Heller is sued
only in this administrative capacity, he is a proper
party defendant. Boddie, supra.
"This argument is untenable and factually
unwarranted. Unlike the situation in Boddie, 286 F.
Supp. at 970, Roman cannot base her federal suit on
the rejection of her divorce complaint for failure
to meet statutory requirements, for she has made no
attempt to secure a divorce. Compare Sosna v. Iowa,
419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975);
Larsen v. Gallogly, 361 F. Supp. 305 (D.R.I.1973)
(three-judge court), vacated as moot, 420 U.S. 904,
95 S.Ct. 819, 42 L.Ed.2d 831 (1975); Wymelenberg v.
Syman,
328
F.
Supp.
1353
(E.D.
Wis.
1971)
(three-judge court). Appellant's position rests on
the hypothetical assumption that, if she sued for
divorce, her complaint would be rejected pro forma,
without consideration of the constitutional issues
she presents here. We are unwilling, nor are we
constitutionally able, to speculate that this would
be
the
response
of
the
State
courts.
See
Longshoremen's Local 37 v. Boyd, 347 U.S. 222, 74
S.Ct. 447, 98 L.Ed. 650 (1954).
40
1190644
"Moreover, we do not believe that Justice
Heller's
official
responsibilities
can
be
compartmentalized
in
the
manner
suggested
by
appellant. Clearly, if Roman had filed a divorce
complaint which questioned the validity of § 230(5),
Justice Heller's consideration thereof would not
have been restricted to determining whether she had
been a New York resident for two years. Appellant's
bifurcated conception of Justice Heller's duties
simply does not comport with adjudicatory reality.
Neither
does
her
emphasis
on
the
allegedly
administrative role performed by Justice Heller
comport with the gravamen of her complaint. Roman
does not allege that she meets the requirements of
§ 230(5) but has not been permitted to file for a
divorce; rather, she claims that a two-year
durational
residency
requirement
is
an
unconstitutional means by which to determine divorce
jurisdiction. In contrast to the traditionally
administrative task of fee collection, Boddie,
supra, a court's investigation of its jurisdiction
is eminently a judicial function. Thus, as between
appellant and Justice Heller, this case does not
present
the
'honest
and
actual
antagonistic
assertion of rights,' Chicago & Grand Trunk R. Co.
v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 402, 36
L.Ed. 176 (1892), 'indispensable to adjudication of
constitutional questions ....' United States v.
Johnson, 319 U.S. 302, 305, 63 S.Ct. 1075, 1076, 87
L.Ed. 1413 (1943) (per curiam)."
Mendez, 530 F.2d at
459-60 (footnote omitted; emphasis added).
Just as in Mendez the plaintiff inappropriately assumed
that Justice Heller would not consider a constitutional
challenge to New York's residency requirement for seeking a
divorce, in this case the respondents assume that the
petitioner circuit judges either would not be able or willing
41
1190644
to
entertain
the
respondents'
challenges
to
the
constitutionality of FJA, even though no such assumption is
warranted.
Likewise,
just
as
Justice
Heller's
responsibilities with respect to divorce complaints could not
be compartmentalized as solely administrative, the petitioner
circuit judges' roles in Rule 32 proceedings cannot be cabined
as simply "enforcers" of Rule 32's procedural requirements;
their primary task is to be "neutral adjudicators" between the
Rule 32 petitioners and the State as represented by the
Attorney General. The petitioner circuit judges are not
presumed to take positions on the merits of the respondents'
Rule 32 claims before the petitions have been filed.
Consequently, there is no adverseness between the respondents
and the petitioner circuit judges that would present a
justiciable controversy. Without a justiciable controversy,
the declaratory-judgment action against the circuit judges
must be dismissed.
I must also note that additional problems are created by
the respondents naming the petitioner circuit judges as
defendants. As the Attorney General has observed in the
petition, one of those problems already has
manifested itself:
42
1190644
"Petitioner Judge Hatcher has already been required
to make a ruling in Respondents Young and Capote's
Rule 32 proceedings while simultaneously being
subject to suit in this proceeding. If Respondents'
civil suit proceeds on the merits, the Petitioner
Judges will find themselves in the untenable
position of impartially presiding over Respondents'
Rule 32 proceedings while simultaneously responding
to
the
merits
of
Respondents'
constitutional
challenges to the FJA in this proceeding."
Petition, p. 30. In short, this action against the petitioner
circuit judges renders it difficult for those circuit judges
to neutrally apply the FJA's procedures in Rule 32 proceedings
filed by the respondents. Thus, allowing such an action would
create the specter of circuit judges needing to recuse
themselves from participating in Rule 32 proceedings because
Rule 32 petitioners have named them as party defendants in
declaratory-judgment actions asserting constitutional claims.
This action creates an unnecessary conflict for
the
petitioner
circuit
judges,
given
that
these
same
constitutional arguments
can be raised in the respondents' Rule 32 proceedings.
A final problem that arises from permitting the
petitioner circuit judges to be party defendants in this
action is that it purports to give the Montgomery Circuit
Court some supervisory power over the petitioner circuit
43
1190644
judges'
subsequent
Rule
32
proceedings
involving
the
respondents. The circuit courts of this state are courts of
general jurisdiction, but that jurisdiction for each circuit
court is limited by the geographic territory of the circuit.
"All the Circuit Courts have concurrent jurisdiction
of the subject-matter. But the constitution does
not grant jurisdiction of the case, or of the
person. The cases, arising under the constitutional
grant, are distributed by the General Assembly among
the different Circuit Courts according to locality,
and jurisdiction of the person is acquired by proper
service of legal process, or by consent; and such
jurisdiction, when acquired, is exclusive. The
distinction
between
jurisdiction
of
the
subject-matter,
and
the
exercise
of
the
jurisdiction,
must
be
observed.
While
the
jurisdiction of the subject-matter is co-extensive
with the State, the territorial limits in which it
may be exercised is left for legislative creation
and regulation."
Dunbar v. Frazer, 78 Ala. 529, 530 (1885). See also Art. IV,
§ 142, Ala. Const. 1901 (providing that "[t]he state shall be
divided into judicial circuits," that "[f]or each circuit,
there shall be one circuit court," and that "[t]he circuit
court shall exercise general jurisdiction in all cases except
as may otherwise be provided by law"). Within their
territorial
jurisdictions,
the
circuit
courts
have
supervisory
authority over inferior tribunals, but the limitations on
their jurisdiction necessarily mean
that the circuit courts do
44
1190644
not have supervisory jurisdiction over one another. See,
e.g., Brogden v. Employees' Ret. Sys., 336 So. 2d 1376, 1379
(Ala. Civ. App. 1976) (observing that "there are two aspects
of jurisdiction in a circuit court: that general subject
matter jurisdiction granted by the constitution and the
supervisory jurisdiction over inferior judicial bodies or
officers located and acting within its territorial boundaries
granted by statute" (emphasis added)); Ex parte Alabama
Textile Prods. Corp., 242 Ala. 609, 613, 7 So. 2d 303, 306
(1942) (explaining that "[i]t is said in Dunbar v. Frazer, 78
Ala. 529 [(1885)], that if the legislature confers appellate
and supervisory power on the circuit court, it is reasonable
to infer that the intention is that the exercise of such
authority shall be confined within the limits which restrict
the exercise of its original jurisdiction"). In short, the
Montgomery Circuit Court has no constitutional or statutory
authority to exercise jurisdiction over other circuit courts
of this state, including the Colbert, Escambia, Madison,
Mobile, and Tuscaloosa Circuit Courts -- the circuit courts in
which the respondents have possibly filed or will file their
45
1190644
Rule 32 petitions.8 If this action against the petitioner
circuit judges was permitted to proceed, the Montgomery
Circuit Court could enter rulings on the respondents'
constitutional claims that potentially may conflict with the
rulings of the circuit courts that have exclusive jurisdiction
over the respondents' Rule 32 proceedings, but the Montgomery
Circuit Court's rulings would have no binding effect on the
petitioner circuit judges because of the limits on a circuit
court's jurisdiction. Thus, it appears that the Montgomery
Circuit Court cannot provide effective relief to the
respondents. This is yet another reason that the subject
action is due to be dismissed. See, e.g., Harper v. Brown,
Stagner, Richardson, Inc., 873 So. 2d 220, 224 (Ala. 2003)
(noting that "'[w]e have recognized that a justiciable
controversy is one that is "definite and concrete, touching
the legal relations of the parties in adverse legal interest,
and it must be a real and substantial controversy admitting of
specific relief through a [judgment]"'" (quoting MacKenzie v.
First Alabama Bank, 598 So. 2d 1367, 1370 (Ala. 1992), quoting
8Rule 32.5, Ala. R. Crim. P., provides that a Rule 32
petition "shall be filed in and decided by the court in which
the petitioner was convicted."
46
1190644
in turn Copeland v. Jefferson Cnty., 284 Ala. 558, 561, 226
So. 2d 385, 387 (1969)) (emphasis added)).
In sum, I believe that the strategy of naming the
petitioner circuit judges as defendants in this action is
ill-conceived
and
ultimately
impermissible
because
of
multiple
jurisdictional defects. Thus, even if the action as a whole
was ripe for adjudication (which it is not), the petitioner
circuit judges would have to be dismissed from the suit.
Bolin, Wise, Bryan, and Stewart, JJ., concur.
47 | September 25, 2020 |
6ecc0642-d70f-411a-91ec-147254ce22d9 | Ex parte Robert Charles Blackmon, IV. | N/A | 1190762 | 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
September 11, 2020
1190762
Ex parte Robert Charles Blackmon, IV. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Robert Charles Blackmon, IV v. Angelia Deniese
Blackmon) (Mobile Circuit Court: DR-05-501684.04; Civil Appeals :
2181005).
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 September 11, 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 11th day of September, 2020.
Clerk, Supreme Court of Alabama | September 11, 2020 |
54867a38-d913-4556-a38b-99899e638617 | Ex parte Christopher Paul Corson. | N/A | 1190892 | 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
September 11, 2020
1190892
Ex parte Christopher Paul Corson. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Christopher Paul Corson v. State of Alabama) (Baldwin
Circuit Court: CC-17-1554; Criminal Appeals :
CR-18-0188).
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 September 11, 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
f26b1e2c-b1a8-414b-8d5e-ce7059e12bba | Ex parte Michael Gregory Hubbard. | N/A | 1180047 | 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
August 28, 2020
1180047
Ex parte Michael Gregory Hubbard. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Michael Gregory Hubbard v. State of Alabama)
(Lee Circuit Court: CC-14-565; Criminal Appeals :
CR-16-0012).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on August 28, 2020:
Application Overruled. No Opinion. Parker, C.J. - Bolin, Wise, Bryan, Mendheim, and
Stewart, JJ., concur. Sellers, J., dissents. Shaw and Mitchell, JJ., recuse themselves.
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 April 10, 2020:
Affirmed In Part; Reversed In Part; Remanded. Parker, C.J. - Mendheim and Stewart, JJ.,
concur. Parker, C.J., concurs specially. Bolin, Wise, and Bryan, JJ., concur in part and concur
in the result in part. Sellers, J., concurs in part and dissents in part. Shaw and Mitchell, JJ.,
recuse themselves.
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 28th day of August, 2020.
i i
/
a
Clerk, Supreme Court of Alabama | August 28, 2020 |
2b33ffc3-7b81-4b0d-8885-813e886250b7 | Ex parte Robert Charles Blackmon, IV. | N/A | 1190757 | 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
September 11, 2020
1190757
Ex parte Robert Charles Blackmon, IV. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Robert Charles Blackmon, IV v. Angelia Deniese
Blackmon) (Mobile Circuit Court: DR-05-501684.04; Civil Appeals :
2180906).
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 September 11, 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 11th day of September, 2020.
Clerk, Supreme Court of Alabama | September 11, 2020 |
aed7a843-1e7e-4634-ace7-a1edd66222c9 | Ex parte Demarius Stefone Jones. | N/A | 1190891 | 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
September 11, 2020
1190891
Ex parte Demarius Stefone Jones. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Demarius Stefone Jones v. State of Alabama) (Madison
Circuit Court: CC-15-339.70; Criminal Appeals :
CR-19-0052).
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 September 11, 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
27eda050-b37a-44d0-893d-c8bb6bdfca74 | Ex parte Bernardino Ramos Hernandez. | N/A | 1190210 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 4, 2020
1190210
Ex parte Bernardino Ramos Hernandez. PETITION FOR WRIT OF MANDAMUS:
CIVIL (In re: Bernardino Ramos Hernandez v. Peter M. Wolter, et al.) (Jefferson
Circuit Court: CV-18-904569).
ORDER
The petition for writ of mandamus in this cause is denied.
WISE, J. - Bolin, Shaw, Bryan, Sellers, Mendheim, and Mitchell, JJ., concur.
Parker, C.J., and Stewart, J., dissent.
Witness my hand this 4th day of September, 2020.
/ra | September 4, 2020 |
1ab51a34-350f-4efb-b961-ad3edc8d7214 | Ruth Howell Walters v. Riversouth Properties, L.L.C., and Laura Dumas Wood | N/A | 1190451 | Alabama | Alabama Supreme Court | Rel: September 11, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190451
Ruth Howell Walters v. Riversouth Properties, L.L.C., and
Laura Dumas Wood (Appeal from Montgomery Circuit Court:
CV-15-900209).
WISE, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(A), Ala. R. App. P.
Parker, C.J., and Bolin, Mendheim, and Stewart, JJ.,
concur.
Sellers, J., recuses himself. | September 11, 2020 |
7aec786d-3759-44aa-85c8-67c3f7b90313 | Ex parte Brittney Lashell McCaulley. | N/A | 1190755 | 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
September 11, 2020
1190755
Ex parte Brittney Lashell McCaulley. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Brittney Lashell McCaulley v. State of Alabama)
(Madison Circuit Court: CC19-264; Civil Appeals :
CR-18-1149).
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 September 11, 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
812eaa6e-f543-4ed0-9109-e92f128566a8 | Ex parte C.N. | N/A | 1190914 | 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
September 11, 2020
1190914
Ex parte C.N. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: C.N. v. Talladega County Department of Human Resources) (Talladega Juvenile
Court: JU-17-100186.02; Civil Appeals :
2190056).
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 September 11, 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. 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
4586ac8b-4c7b-46b9-ae6b-06635fdffd92 | Carrie Merriweather v. Travis Bedsole, et al. | N/A | 1180655 | 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
September 11, 2020
1180655
Carrie Merriweather v. Travis Bedsole, et al. (Appeal from Greene Circuit Court:
CV-18-900013).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on September 11,2020:
Application Overruled. No Opinion. Wise, J. - Parker, C.J., and Bolin, Sellers, and Stewart,
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 10, 2020:
Affirmed. 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 11th day of September, 2020.
Clerk, Supreme Court of Alabama | September 11, 2020 |
964930a8-be61-42a7-b8a4-ede2c6bb233d | Ex parte Liberty Mutual Group, Inc. | N/A | 1190691 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 18, 2020
1190691
Ex parte Liberty Mutual Group, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL
(In re: Lina Barnard v. Jason C. Richardson and Liberty Mutual Group, Inc.) (Mobile
Circuit Court: CV-18-901275).
ORDER
The petition for writ of mandamus in this cause is denied.
WISE, J. - Parker, C.J., and Shaw, Bryan, Mendheim, and Stewart, JJ., concur.
Bolin, Sellers, and Mitchell, JJ., dissent.
Witness my hand this 18th day of September, 2020.
/tw | September 18, 2020 |
33082f14-3dbd-4bc9-a550-47eadcfd19bb | Ex parte Rodarius Grimes. | N/A | 1190897 | 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
September 11, 2020
1190897
Ex parte Rodarius Grimes. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Rodarius Grimes v. State of Alabama) (Jefferson Circuit Court:
CC-17-462.00; Criminal Appeals :
CR-18-1079).
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 September 11, 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. 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
00e07d8f-6c64-4b93-9cb5-5a21ef883384 | Ex parte Eric Leonard Little. | N/A | 1190887 | 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
September 11, 2020
1190887
Ex parte Eric Leonard Little. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Ex parte State of Alabama v. Eric Leonard Little) (Montgomery
Circuit Court: CC-04-136; Criminal Appeals :
CR-19-0645).
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 September 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. 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
83cc4e0d-461d-43e5-a319-14ea2975f410 | Ex parte Larry Hunter, Jr. | N/A | 1190928 | 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
September 11, 2020
1190928
Ex parte Larry Hunter, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL a Pp EALS (In re: Larry Hunter, Jr. v. State of Alabama) (Dallas Circuit Court:
CC-14-186; Criminal Appeals :
c R-18-1028).
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 September 11, 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
8be100e6-425d-45a7-a02e-d53c603b0b19 | Protective Life Insurance Company v. Apex Parks Group, LLC | N/A | 1180508 | Alabama | Alabama Supreme Court | REL: September 18, 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
SPECIAL TERM, 2020
____________________
1180508
____________________
Protective Life Insurance Company
v.
Apex Parks Group, LLC
Appeal from Jefferson Circuit Court
(CV-17-165)
MENDHEIM, Justice.
Protective Life Insurance Company ("Protective") appeals
from a judgment entered on a jury verdict rendered in the
Jefferson Circuit Court against Protective and in favor of
Apex
Parks
Group,
LLC
("Apex"),
in
the
amount
of
1180508
$11,495,890.41. We reverse the judgment and render a judgment
for Protective.
I. Facts
Apex, a California-based corporation, owns and operates
16 moderately sized amusement parks, water parks, and family-
entertainment centers nationwide. Apex's founder and chief
executive officer was Alexander Weber, who had possessed
43 years' experience in the industry and who was critical to
Apex's success. Because of Weber's importance, in early 2016
Apex
sought
a
"key-man"
insurance
policy
on
Weber.1
Protective is a Birmingham-based insurance company owned by
the Dai-ichi Corporation.
1
"'Key man' life insurance policies are life
insurance policies purchased by businesses to pay
the expenses triggered by loss of a person essential
to the business's operation -- the irreplaceable
CEO, inventor, marketing vice president, or any
other 'key' man or woman. These are often (but not
always) intended to pay for a buy-out of the
deceased key person's share in the firm's equity
(especially
if
the
firm
is
a
closely
held
corporation or a partnership)."
Malla Pollack, Proof of
Facts Evidencing Insurable Interest in
Key Man Life Insurance Policy, 152 Am. Jur. Proof of Facts 3d
§ 5, 518 (2016) (footnotes omitted).
2
1180508
Apex applied for key-man insurance for Weber with
Protective in March 2016; Apex used an insurance broker to aid
in the application process. At that time, Weber was 64 years
old. The initial premium quote provided to Apex on the
insurance
application
was
$40,054.33,
contingent
upon
approval
by Protective's underwriters.
On March 2, 2016, Protective had Weber interviewed by a
paramedical
professional to
gain
information
about
his
medical
history. Weber answered several detailed questions, and in
the process he revealed that he had high blood pressure, high
cholesterol, and that he had had a "left bundle branch block"
("LBBB") since childhood. In detailing what an LBBB is,
Protective's medical expert, Dr. Vance Plumb, explained:
"[T]he normal heartbeat is created by the passage of
electricity through the heart. ... [T]here are
special fibers in the heart that carry this
electricity ... directly to the left bottom chamber
of the heart into the right bottom chamber of the
heart. The fibers that carry the electricity to the
left, we call it a left bundle branch block. The
ones that go to the right, the right bundle branch.
... Electricity is delivered late to the left
ventricle when there is left bundle branch block."
Dr. Plumb further explained that if you have an LBBB, "you are
more likely to have heart disease. If you have heart disease,
you are somewhat more likely to have atrial fibrillation."
3
1180508
Both Dr. Plumb and Apex's medical expert, Dr. Hugh McElderry,
testified that an LBBB is a serious heart condition. Weber
also disclosed that both his father and his mother had died of
heart attacks at ages 47 and 56, respectively.
The answers from Weber's interview with the paramedical
professional were incorporated into the Apex application for
insurance. On March 10, 2016, the application was finalized
and signed by Weber and Apex's chief financial officer, Doug
Honey ("the application"). Apex sought $10 million in
coverage in the application.
Protective received the application on March 14, 2016. At
that point, Protective underwriter Paula Nicols began the
process of determining whether Protective would issue the
policy and what premium it would charge. Nicols testified at
trial that the standard approach for this task included
consulting two underwriting manuals issued by Protective's
reinsurers. Those manuals -- the "Gen Re" and "Swiss Re"
manuals -- prescribe premiums in light of an applicant's
medical history. Protective generally compares the "rate
classifications" in the two manuals and offers an applicant
the lower of the two. Protective has several ratings, which
4
1180508
correspond
to
successively higher
premiums.
Protective's
best
rating, for which Protective charges its lowest premium, is
called "select-preferred." That rating is followed by
"preferred," and then "standard," which each carry higher
premiums than the "select-preferred" rating. After the
"standard" rating, Protective has seven "table" ratings,
ranging from "Table 2" to "Table 8." As the table number goes
up, so does the charged premium.
Nicols testified that she considered four pieces of
medical information in determining Weber's insurance rating:
his LBBB, his high blood pressure, his high cholesterol, and
his parents' deaths from heart attacks. Weber's LBBB meant
that he could not receive Protective's select-preferred or
preferred ratings. Nicols informed the insurance broker that
Apex could not receive the preferred rating Apex had requested
and that Protective would need Weber's medical records. Those
records did not include tests associated with assessing the
current status of Weber's heart issues. In fact, Weber had
not seen a cardiologist in 10 years. The medical records did
reveal that Weber previously had undergone stress tests, but
the records did not show the results of those tests. On
5
1180508
April 19, 2016, Protective requested "complete records" from
any cardiologist Weber may have visited for his LBBB. Weber
responded that he had not yet seen a cardiologist for his
LBBB. Nicols testified that she was not troubled by the fact
that Weber had not seen a cardiologist, despite the fact that
he had been given a referral to see one, because Weber "was
not told he had to be seen by a cardiologist so that was up to
Mr. Weber whether or not he chose to do that."
On April 30, 2016, Nicols e-mailed the broker with a
"tentative offer" to Apex, stating, in part:
"At this point and AS IS MEDICALLY, Table 2 Non-
Tobacco due to left bundle branch block per exam,
records from Dr. Jenkins and Dr. Dyksterhouse. ...
"....
"If [Apex] will accept Table 2, no additional
records are needed. However, if [Apex] wants
reconsideration, we will need copy of past testing
noted per Dr. Dyksterhouse's records, or [Weber]
will
need
to
get
established
with
his
new
cardiologist
for
follow-up
to
include
either
treadmill stress test or nuclear/imaging stress
test, at no cost to Protective Life."
A Table 2 rating meant a substantial premium increase from the
initial premium quoted to Apex in the application, with a
first-year
premium
of
$89,771.75.
Nonetheless,
Apex
subsequently orally agreed to the Table 2 rating offer, and on
6
1180508
May 3, 2016, another Protective underwriter approved the
policy based on that rating.
On May 5, 2016, Weber had an appointment for an annual
physical with a physician he had not previously seen,
Dr. Samuel Fink. Based on Weber's family and personal medical
history, particularly the deaths of his father and mother as
a result of heart attacks and his diagnosis of an LBBB,
Dr. Fink recommended that Weber return the following day for
a "stress echo" test. On May 6, 2016, Weber visited Dr. Fink
and underwent a stress test that involved Weber being
connected to an EKG machine while he walked and then ran on a
treadmill as the treadmill increased speed and incline level.
The test lasted for 13 minutes. All the medical experts at
trial agreed that Weber performed extremely well in the test
in terms of demonstrating physical fitness. However, Dr. Fink
had a cardiologist, Dr. Michael Burnam, read the results from
the EKG machine remotely. Dr. Burnam testified that during
the stress test Weber experienced an episode of paroxysmal
atrial fibrillation ("AFib"). Dr. Burnam explained that
paroxysmal AFib is a separate condition from -- and is not
caused by -- LBBB and that it occurs when there is a temporary
7
1180508
or intermittent irregular rhythm of the upper chamber of the
heart. Dr. McElderry confirmed that Weber's AFib "came and
went on its own." Dr. Plumb testified that, because of its
intermittent nature, it was possible that Weber had been
"living with this for a while." Indeed, Weber did not feel
any physical difference during the stress test. Because
Dr. Burnam was not able to tell from the stress test whether
there was a restriction in the blood flow of Weber's coronary
arteries, he recommended that Weber be taken to the emergency
room ("ER").
Because of Dr. Burnam's recommendation, Dr. Fink escorted
Weber to the ER during his May 6, 2016, appointment. Weber's
wife testified that when Weber arrived at the ER he telephoned
her to tell her about the AFib diagnosis, and she stated that
they laughed about it because they recalled a television
commercial with famous golfers talking about having AFib.
Dr. Fink presented Weber to the ER doctor on call, Dr. Scott
Brewster. Weber also met Dr. Burnam in the ER. Dr. Burnam
examined Weber, and he confirmed that Weber had paroxysmal
AFib, rather than persistent AFib, which meant that it was not
necessary to perform a cardioversion, "an electrical shock to
8
1180508
the heart to return its normal rhythm." Dr. Burnam concluded
that Weber had a low risk of having a stroke and so, for the
time being, his condition could be treated with a mild blood-
thinning medication, such as aspirin. Dr. Burnam prescribed
that Weber take one aspirin tablet per day, and they discussed
two additional treatment options: either taking medication or
using an "an electrophysiologic approach," meaning having a
procedure on the heart to correct the AFib, called an
ablation. Altogether, Weber spent two hours at the ER. A
follow-up appointment with Dr. Burnam was scheduled for May 9,
2016, which Dr. Burnam testified was "for additional testing"
and for Weber "to decide which approach he wanted."
On May 9, 2016, Weber had the follow-up appointment with
Dr. Burnam. An EKG revealed that Weber's heart was in normal
rhythm during that visit. Dr. Burnam testified that his notes
of that visit reflected that he and Weber discussed Weber's
options for treating his AFib and that Weber "was going to
strongly
consider
the
electrophysiologic
approach."
Accordingly, Dr. Burnam gave Weber a referral to Dr. Eli Gang,
a cardiologist in the subspecialty that treats AFib,
electrophysiology. On the same date, after speaking with
9
1180508
Dr. Burnam, Dr. Fink entered a note in Weber's patient record
that stated: "Discussed [condition] with Dr. Burnam. A repeat
EKG shows [Weber] is in normal sinus rhythm. He is still on
the Aspirin. He will be seeing Dr. Eli Gang." On May 10,
2016, Weber wrote an e-mail, apparently as a note to himself,
in which he listed several dates, one line of which stated:
"June 8-9th have a Dr. appointment on Fri 10th." On May 19,
2016, Weber spoke with Dr. Fink, and Dr. Fink entered a note
in Weber's medical record that stated in part that Weber "is
referred to Dr. Gang."
On May 18, 2016, Protective issued the insurance policy
to Apex for $10 million in coverage at a Table 2 premium ("the
policy"); the policy included a cover letter, the policy
schedule, policy provisions, endorsements or riders to the
policy, and other information. When Protective e-mailed the
policy to Apex, it explained that three "delivery" documents
were included with the policy that needed to be signed in
order "[t]o bind the Key-Man Life Insurance Policy for
Al Weber." The first document was an "Amendment to
Application with Health Statement" ("the amendment") that the
e-mail explained would "acknowledg[e] that the premium was
10
1180508
increased for underwriting risk factors to be signed by
Al Weber and Doug Honey on behalf of Apex." The second
document was a notice regarding "save-age" dating in the
policy that had to be signed by both Weber and Honey. This
document specifically noted that "coverage begins only when
the policy is delivered and the first premium is paid." The
third document was a policy-delivery receipt to be signed by
Honey. Weber and Honey signed the amendment and the notice
regarding "save-age" on May 31, 2016.
The central document in this case is the amendment; its
contents, therefore, must be provided in detail. In addition,
a copy of the amendment is attached to this opinion as an
appendix. The amendment is a single-page document, and, as
already noted, it is titled: "AMENDMENT TO APPLICATION WITH
HEALTH STATEMENT." (Capitalization in original.) It lists
the "Name of Insured" as "Al Weber, Jr." and provides the
policy number. The amendment then states: "The application
to [Protective] for the policy named above is hereby amended
by the undersigned to conform in every respect to any and all
changes indicated below ...." Below this statement is a table
that lists the "Amount of Insurance" as $10 million, the type
11
1180508
of policy plan, and the "Premium Payable," which is stated to
be "$89,771.75 ANNUALLY."
(Capitalization in original.)
Following the table, the amendment states:
"Other Changes:
"Planned Periodic Premium shall be as
stated above.
"I understand that the premium rate payable
for each $1,000 of coverage has been
increased due to underwriting risk."
After a gap of blank space on the page, the amendment
continues with a paragraph in bold typeface stating:
"HEALTH STATEMENT: I represent that I have not
consulted any physician or other practitioner since
the date of my medical examination (or date I signed
the last application with [Protective], if no
medical examination was required). It is further
agreed that, except as stated above, all insured
persons are in the same health as that stated in the
last application, or medical examination with
[Protective]."
(This statement is hereinafter referred to as "the health
statement.") Another paragraph follows the health statement
but is not in bold typeface:
"It is agreed by the undersigned that the changes
shown above shall be an amendment to and form a part
of the application and the policy, and that the
changes shall be binding on any person who shall
have or claim any interest in the policy. A copy of
this form shall be as valid as the original."
12
1180508
Signature and date lines are contained below this paragraph.
The bottom of the page contains a paragraph in bold typeface
titled "IMPORTANT NOTICE":
"If any change is incorrect or incomplete, correct
information should be written on this form. If any
change is made, the policy and this form must be
returned to [Protective]. No insurance will take
effect until such changes have been reviewed and
accepted by [Protective]."
As already noted, Weber and Honey signed the amendment
and the other delivery-requirement documents on May 31, 2016.
There were no written notations on the amendment of any
changes. Protective received the signed amendment on June 23,
2016.2 On June 6, 2016, Weber e-mailed Honey with a question:
"Did we pay for my work life insurance?" Honey replied: "Not
yet." Weber responded: "Could you get completed by []Weds
[June 8]?" However, Apex did not mail the check for the
amount of the first premium until June 15, 2016. It is
undisputed that Protective cashed the check on June 21, 2016.
On June 8, 2016, Weber had an appointment with Dr. Gang.
Dr. Gang first reviewed with Weber how he felt given his AFib
diagnosis. Dr. Gang testified that Weber "was remarkably
2No explanation for the length of the delay in receiving
the
delivery-requirement documents
is
apparent
from
the
record
on appeal or the parties' briefs.
13
1180508
absent of symptoms" and "[h]e felt well ... was very active."
Dr. Gang then performed a physical examination. He testified
as follows with regard to that exam: "So again, [Weber was]
in good shape, and I found no particular murmurs or any other
physical exam findings. The only noteworthy -- noteworthy
thing was that his blood pressure was somewhat elevated on
that one visit." Dr. Gang also ran another EKG on Weber, the
result
of
which
showed
that
Weber
was
"in
atrial
fibrillation," although his heartbeat was "within the normal
range, even though it was irregular." Dr. Gang further
testified that he discussed the "implications" of
Weber's AFib
with Weber in light of the fact that "it had no effect on his
life as far as his quality of life is concerned. He was sure
of that." Dr. Gang elaborated: "[W]e talked about ... what
could he do about it, if anything, and the possibility of
taking medications to suppress it, doing nothing about it, or
doing an ablation about it. Those were the three general
paths that he could choose that we discussed." Dr. Gang
stated that he gathered from that conversation that Weber "was
a very determined person to take care of what needs to be
taken care of and to be on the fewest possible medications,"
14
1180508
and so Weber "was going to give [an ablation] serious
consideration." Dr. Gang gave Weber three recommendations.
First, he provided Weber with a "ZIO" patch, which Dr. Gang
described as a patch that is attached to a patient's chest for
an extended period and that provides "a realtime 24/7 EKG,"
allowing a physician "to see how often [a patient] actual
ha[s] atrial fibrillation." Second, Dr. Gang recommended that
Weber undergo a "CT angiogram" that would help Dr. Gang
determine what kind of ablation to perform. Third, Dr. Gang
prescribed the blood thinner Xarelto to Weber to lessen the
risk of blood clots and stroke from AFib; Weber began taking
the Xarelto that day.
Weber wore the ZIO patch from June 8 through June 11,
2016. The results from the patch showed that Weber was in
AFib 61 percent of the time that he wore the patch and that
his longest stretch of being in AFib was 22 hours and
36 minutes. Dr. Gang concluded that the results from the ZIO
patch confirmed that Weber should undergo an ablation. On
June 10, 2016, Weber drafted an e-mail titled "Medicine" in
which he indicated that he was going to ask Dr. Fink's opinion
15
1180508
about getting an ablation and in which he listed "Ablation
dates (July 14-15 or 21-22)."
On June 10, 2016, Weber had an appointment with Dr. Fink.
On this visit, Weber's heart had a regular rate and rhythm.
Dr. Fink told Weber that undergoing an ablation made sense
under the circumstances. On June 15, 2016, Weber wrote an
e-mail, apparently as a note to himself, titled "Gang" in
which he noted: "Ablation Aug 18th."
As we have already noted, on June 21, 2016, Protective
received and cashed the first premium check for the policy.
There is no dispute that the insurance coverage went into
effect when Protective received that first payment. On
June 23, 2016, Protective received the signed amendment from
Apex.
On July 15, 2016, Weber had a follow-up appointment with
Dr. Fink. Dr. Fink noted in Weber's patient record that an
EKG on that date indicated that Weber was in AFib. He also
recorded that Weber was scheduled to have an ablation on
August 23, 2016.
On August 23, 2016, Weber underwent an
ablation performed by Dr. Gang. The medical experts agreed
that the surgery was a success. Dr. Gang saw Weber on
16
1180508
August 29, 2016, and reported that Weber felt "well" and that
he wanted "to exercise vigorously." On September 2, 2016,
Weber had an appointment with Dr. Fink, who noted that Weber's
heart had a regular rhythm on that visit. Dr. Gang saw Weber
on October 31, 2016, and he determined that Weber was doing
well.
On November 8, 2016, while on vacation with his wife,
Weber died. The death certificate listed the cause of death
as "sudden cardiac death" due to "ischemic heart disease."
All the medical experts agreed at trial that Weber's AFib did
not cause his death.
Shortly after Weber's death, Apex submitted its claim
under the policy for the $10-million benefit. Protective then
began a contestable-claim investigation.3 The investigation
was initiated by Protective compliance analyst Janice Wisner,
3As we more fully explain in Part II of this opinion,
which addresses the standards of review, California law
governs the substantive issues in this case. The California
Insurance Code affords insurers a two-year contestability
window after a policy takes effect. See Cal. Ins. Code
§ 10113.5(a) (stating in part that "[a]n individual life
insurance policy delivered or issued for delivery in this
state shall contain a provision that it is incontestable after
it has been in force, during the lifetime of the insured, for
a period of not more than two years after its date of issue
....").
17
1180508
who had a third-party administrator obtain Weber's medical
records. Those records included files from Dr. Fink,
Dr. Burnam, and Dr. Gang, which revealed Weber's AFib
diagnosis and the treatment he received for it. The review of
Apex's claim was then submitted to Protective underwriter
Edmund Peña, one of two Protective underwriters who were
specifically assigned to review contestable claims. Wisner
testified that Protective has underwriters who are separate
from the underwriters who issue policies to
review contestable
claims because Protective "want[s] an objective review of the
claim from the start to finish." Peña testified that he
reviewed each document Protective received, from both before
it issued the policy and after Apex submitted its claim, with
the goal being "to make sure that all of the statements by the
applicant and the policy owners [were] true and accurate."
Peña stated that his job was, if there was a discrepancy, to
evaluate the policy based on the new information, taking into
account the ratings in the Gen Re and Swiss Re manuals, to
determine whether Protective would have issued the policy if
initially it had known all the information about the
18
1180508
applicant. Peña testified as follows with respect to his
conclusion upon completion of the investigation:
"A. I determined that the Table 2 rating that the
original underwriter Paula Nicols approved the file
at was correct based on Mr. Weber's history of left
bundle branch block. And then I noticed that
Mr. Weber saw a new doctor -- one that he had never
seen before -- on May 5th of 2016. ...
"....
"The visits with ... Dr. Burnam and Dr. Fink --
yeah. Dr. Burnam were not admitted on the good
health statement on our amendment to the policy
where it asks have you seen or consulted any other
physician since the time that the part 2 paramed
exam was completed.
"Based on that information, I determined that
there was a material misrepresentation since he did
not provide that information to us and I made a
recommendation to the claim committee -- or I
advised the claim committee of my findings.
"[Protective's
counsel:]
When
you
say
you
determined there was a material misrepresentation
based on Mr. Weber's failure to disclose those
doctors' visits and the AFib diagnosis, what do you
mean by material misrepresentation?
"A. I mean that his present medical history at the
time that the delivery requirements were received
[was] not the same as what was admitted on the
application and that based on our underwriting
manual, that he would have been rated at a different
rate; so the Table 2 rating was no longer
applicable.
"....
19
1180508
"Q. ... Under both manuals, did you conclude that
under no circumstances if Protective had known that
information would it have issued this $10 million
policy?
"A. No, we would not."
Although she was
not
involved in the contestable-claim review,
underwriter Nicols similarly testified that, given the
information provided regarding Weber's May doctors' visits,
the underwriting manuals would have required postponing
coverage until Weber's AFib condition had been fully
evaluated, and, based on the results of that evaluation, "the
policy would not have ever been issued as originally issued,
if it was issued at all."
Peña further testified that, after he reached his
conclusion that Apex's claim should be denied, he asked his
supervisor for a second opinion, and the supervisor concurred
with Peña's assessment. He also consulted with Protective's
head underwriter and its chief medical director, both of whom
also agreed with Peña's conclusion. Peña then e-mailed his
findings
to
Wisner.
Wisner
then
e-mailed
Peña's
recommendation to Protective's reinsurers, one of which was
Gen Re. An employee at Gen Re wrote Wisner an e-mail stating
that he agreed with Peña's conclusion that the policy would
20
1180508
have been postponed based on the AFib diagnosis and that Weber
"died during the postpone period." Wisner then submitted the
claim to a Protective claim committee, which consisted of
herself and two other Protective employees. The committee
concluded that the claim should be denied.
On March 27, 2017, Wisner, on behalf of Protective, wrote
a letter to Apex that explained that the claim was being
denied. The letter quoted from the amendment, and it related
the
information
discovered
in
the
contestable-claim
investigation about Weber's May doctors' visits. Wisner then
stated:
"This medical history was not disclosed on the
[amendment]. Our Underwriters have opined that had
they known of this material change of health that
occurred after the application dates of March 2,
2016, and before signing the [amendment] on May 31,
2016, the policy would not have been placed in force
at that time and they would not have issued this
Table 2 Non-tobacco policy.
"In view of the unadmitted medical history,
[Protective] deems that no insurance ever became
effective and we must void the policy as of the date
it was issued. Under separate cover, we are issuing
a full refund of the premium paid under this policy,
plus applicable interest."
As the letter stated, Protective refunded the premium Apex had
paid in June 2016.
21
1180508
On May 16, 2017, Apex sued Protective in the Jefferson
Circuit Court asserting claims of breach of contract and bad
faith in failing to investigate all bases supporting coverage
and in making false promises that the claim would be paid.
Protective answered the complaint and asserted a counterclaim
seeking rescission of the policy based upon material
misrepresentations
during
the
application
process.
Protective
filed several summary-judgment motions, all of which the
trial
court denied. A two-week trial ensued. At the close of
Apex's case, Protective moved for a judgment as a matter of
law, contending that it had conclusively demonstrated all the
elements of rescission under California law. The trial court
denied the motion. Protective moved again for a judgment as
a matter of law at the close of all the evidence, and the
trial court again denied the motion.
After closing arguments, Protective stated that it had an
objection to a portion of the trial court's jury instruction
on materiality. The trial court determined that it would give
the jury instructions and then it would hear any exceptions
the parties had to those instructions. The jury instruction
at issue stated:
22
1180508
"If
you
determine
that
information
was
misrepresented in or omitted from the application or
amendment and that the information misrepresented or
omitted was material, you must next consider whether
Protective has proved that Mr. Weber knew both that
the information sought had been represented or
omitted and that the information was material to
Protective.
"If Protective fails to prove that Mr. Weber
knew and appreciated the significance of the medical
information at issue, then incorrect or incomplete
responses to the application or the amendment did
not excuse Protective's failure to pay.
"Ladies and gentlemen, an insured has a duty to
disclose only those changes in health that he,
acting in good faith, actually believes were
material.
In
addition,
someone
applying
for
insurance will not be held to the level of knowledge
or understanding that a doctor or other expert might
have.
"In considering whether Protective has met its
burden of proving that Mr. Weber knew that
information had been omitted from the application or
amendment and that the information was material, you
must consider the evidence of Mr. Weber's actual
knowledge and belief about the state of his health,
not merely what a reasonable person should have or
could have concluded based on the information
presented to him."
After the trial court completed giving its instructions to the
jury, Protective registered its objection:
"[Protective's counsel:] Okay. Your Honor, yes,
[Protective] objects to giving the jury instruction,
special instruction on page -- it was on page 27 of
my notes, the insured's subjective knowledge as a
misstatement of the law in that the law in
23
1180508
California and the instruction that should have been
given on this point is that materiality is
determined by the probable and reasonable affect
that truthful disclosure would have had on the
insurer in determining the advantages of the
proposed contract. That's the instruction that
should have been given with respect to whether a
misrepresentation was material.
"THE COURT: Okay. I understand. Noted. I stand
on what was given."
On September 21, 2018, the jury rendered its verdict.
The jury found Protective liable for breach of contract but
not liable for bad faith. The verdict form specified that if
the jury found Protective liable for breach of contract, Apex
would be "entitled to the policy benefit of $10,000,000." The
trial court entered a judgment for $10 million plus applicable
prejudgment interest of $1,495,890.41, for a total amount of
$11,495,890.41. Protective renewed its motion for a judgment
as a matter of law based on rescission. Protective also moved,
in the alternative, for a new trial based on its objection to
the jury instruction. The trial court denied those motions
without comment. Protective appealed.
24
1180508
II. Standards of Review
The contract at issue -- the policy -- is governed by
California law because the policy was issued and was delivered
to Apex in California. See, e.g., Lifestar Response of
Alabama, Inc. v. Admiral Ins. Co., 17 So. 3d 200, 213 (Ala.
2009) (explaining that, "[u]nder the principles of lex loci
contractus, a contract is governed by the law of the
jurisdiction within which the contract is made"). However,
because the lawsuit was filed in Alabama, procedural questions
are governed by Alabama law. See, e.g., Middleton v.
Caterpillar Indus., Inc., 979 So. 2d 53, 57 (Ala. 2007)
(noting that "lex fori -- the law of the forum -- governs
procedural matters").
In reviewing the trial court's denial of Protective's
motions for a judgment as a matter of law, this Court employs
the same standard applicable to the trial court:
"'This Court reviews de novo the grant
or denial of a motion for a [judgment as a
matter of law], determining whether there
was substantial evidence, when viewed in
the light most favorable to the nonmoving
party, to produce a factual conflict
warranting jury consideration. Alfa Life
Ins. Corp. v. Jackson, 906 So. 2d 143, 149
(Ala. 2005) (citing Ex parte Helms, 873 So.
2d
1139,
1143–44
(Ala.
2003)).
25
1180508
"'"[S]ubstantial evidence is evidence of
such weight and quality that fair-minded
persons in the exercise of impartial
judgment
can
reasonably
infer
the
existence
of the fact sought to be proved."'"
Dolgencorp, Inc. v. Hall, 890 So. 2d 98,
100 (Ala. 2003) (quoting Wal–Mart Stores,
Inc. v. Smitherman, 872 So. 2d 833, 837
(Ala. 2003), quoting in turn West v.
Founders Life Assurance Co. of Florida, 547
So. 2d 870, 871 (Ala. 1989)).'"
Alabama River Grp., Inc. v. Conecuh Timber, Inc., 261 So. 3d
226, 240–41 (Ala. 2017) (quoting Jones Food Co. v. Shipman,
981 So. 2d 355, 360–61 (Ala. 2006)).
Concerning the trial court's ruling on Protective's
motion for a new trial based on its objection to a jury
instruction, this Court considers whether the trial court
exceeded its discretion in giving the instruction. "[A] trial
court has broad discretion in formulating jury instructions,
provided the instructions accurately reflect the law.
Additionally, reversal is warranted only if the error in the
instructions is prejudicial." Certain Underwriters at
Lloyd's, London v. Southern Nat. Gas Co., 142 So. 3d 436, 462
(Ala. 2013).
26
1180508
III.
Analysis
A. Issue of Bankruptcy
On June 25, 2020, Protective filed with this Court a
"Suggestion of Bankruptcy" asserting that on April 8, 2020,
Apex filed a Chapter 11 bankruptcy petition "in the United
States Bankruptcy Court for the District of Delaware, Case
No. 20-10911-JTD." Apex states that "neither this case nor
Protective was referenced in the bankruptcy proceeding."
Protective's
filing
also
asserts
that
"[c]ounsel
for
Protective has now conferred with counsel for Apex and
confirmed that the bankruptcy petition was filed."
We hesitate to comment on this issue given that the Court
has not received specific confirmation from Apex concerning a
petition for bankruptcy. At the same time, we note that,
under 11 U.S.C. § 362(a)(1), the filing of a bankruptcy
petition "operates as a stay, applicable to all entities, of
... the commencement or continuation, including the issuance
or employment of process, of a judicial ... proceeding against
the debtor that was or could have been commenced before" the
filing of the bankruptcy petition.
"'The automatic stay is of broad
scope, directing that "[a]ll judicial
27
1180508
actions against a debtor seeking recovery
on a claim that [was] or could have been
brought
before
commencement
of
a
bankruptcy
case, are automatically stayed." Maritime
[Elec. Co. v. United Jersey Bank], 959 F.2d
[1194,] at 1203, 1206 [(3d Cir. 1991)].
Thus, "[o]nce triggered by a debtor's
bankruptcy petition, the automatic stay
suspends
any
non-bankruptcy
court's
authority to continue judicial proceedings
then pending against the debtor." Id. at
1206. Unless relief from the stay is
granted, the stay continues until the
bankruptcy case is dismissed or closed, or
discharge is granted or denied. 11 U.S.C.
§ 362(c). ...'"
Bradberry v. Carrier Corp., 86 So. 3d 973, 983-84 (Ala. 2011)
(quoting Constitution Bank v. Tubbs, 68 F.3d 685, 691-92 (3d
Cir. 1995)). Thus, because there could be a question about
our adjudicating this appeal, we will explain why we do not
believe the § 362(a)(1) stay is applicable in this instance.
As we have noted, the stay under § 362(a)(1) operates to
stay actions "against the debtor."
"[C]ourts of appeals that have considered this issue
have held that whether a proceeding is against the
debtor within the meaning of Section 362(a)(1) is
determined from an examination of the posture of the
case at the initial proceeding. ... If the initial
proceeding is not against the debtor, subsequent
appellate proceedings are also not against the
debtor within the meaning of the automatic stay
provisions of the Bankruptcy Code."
Freeman v. Comm'r, 799 F.2d 1091, 1092–93 (5th Cir. 1986).
28
1180508
Apex filed this action against Protective asserting that
Protective breached its insurance contract with Apex when
Protective refused to pay benefits under the policy following
Weber's death. Thus, at its commencement, the suit was not an
action "against the debtor" -- Apex. For purposes of whether
the automatic-stay provision of § 362(a)(1) applies, it is
immaterial that Protective appealed the judgment against it.
Protective did style its response to Apex's suit as a
"counterclaim" seeking rescission, but under California law
rescission is an affirmative defense to an insurance-policy
claim. See, e.g., Duarte v. Pacific Specialty Ins. Co., 13
Cal. App. 5th 45, 56, 220 Cal. Rptr. 3d 170, 179 (2017)
(observing that "[i]t is well established that although an
insurer may not file a separate action for rescission once the
insured has filed suit, the insurer may assert rescission as
an affirmative defense or in a cross complaint").
"[T]he automatic stay provision of section 362 '"by
it terms only stays proceedings against the debtor,"
and "does not address actions brought by the debtor
which would inure to the benefit of the bankruptcy
estate."' Carley Capital Group v. Fireman's Fund
Ins. Co., 889 F.2d 1126, 1127 (D.C. Cir. 1989)
(per curiam) (quoting Association of St. Croix
Condominium Owners v. St. Croix Hotel Corp., 682
F.2d
446,
448
(3d
Cir.
1982)
(emphasis
in
original)); see Maritime Elec. [Co. & United Jersey
29
1180508
Bank], 959 F.2d [1194] at 1205 [(3d Cir. 1991)]
('within one case, actions against a debtor will be
suspended
even
though
closely
related
claims
asserted by the debtor may continue'); Brown v.
Armstrong, 949 F.2d 1007, 1009–10 (8th Cir. 1991).
"Since section 362 mandates a stay only of
litigation 'against the debtor' designed to seize or
exercise control over the property of the debtor, 11
U.S.C. § 362(a), it does not prevent entities
against whom the debtor proceeds in an offensive
posture -- for example, by initiating a judicial or
adversarial proceeding -- from 'protecting their
legal rights.' Martin–Trigona v. Champion Federal
Savings and Loan Ass'n, 892 F.2d 575, 577 (7th Cir.
1989); see In re Berry Estates, Inc., 812 F.2d 67,
71 (2d Cir.) (automatic stay provision applicable
only to actions against the bankrupt or to seizures
of property of the bankrupt), cert. denied, 484 U.S.
819, 108 S.Ct. 77, 98 L.Ed.2d 40 (1987); Price &
Pierce Int'l Inc. v. Spicer's Int'l Paper Sales,
Inc., 50 B.R. 25 (S.D. N.Y. 1985)."
Justice v. Financial News Network, Inc. (In re Financial News
Network, Inc.), 158 B.R. 570, 572–73 (S.D. N.Y. 1993)
(emphasis added). In asserting the defense of rescission,
Protective sought only to defend its legal rights, not to
obtain control over any property belonging to Apex.
Therefore, Protective's affirmative defense of rescission was
not a claim "against the debtor" within the meaning of
§ 362(a)(1).
In short, because the original action was initiated by
the bankruptcy debtor Apex and Protective's affirmative
30
1180508
defense does not seek damages or property from Apex, the
automatic stay imposed by § 362(a)(1) does not apply to this
appeal. Accordingly, we examine the issues presented in this
appeal.
B. Pertinent Background in California Insurance Law
To understand the parties' arguments in this case some
explication of California insurance law must be provided.
There is no dispute that Apex had paid its first premium on a
"key-man" life-insurance policy for its chief executive
officer Al Weber to Protective when the event triggering
coverage under that policy -- Weber's death –- occurred. It
is also undisputed that, when Apex submitted its claim for
benefits under the policy, Protective declined to pay.
Consequently, unless
Protective could
prove
a
complete
defense
to its breach of the contract, Protective would be liable for
breach of the insurance contract. As we shall explain, under
California law, rescission is such a complete defense.
"If a representation is false in a material point,
whether affirmative or promissory, the injured party is
entitled to rescind the contract from the time the
representation becomes false." Cal. Ins. Code § 359. Thus,
31
1180508
for an insurer to establish a right to rescind, the insurer
must demonstrate that the insured made a materially false
representation in the procurement of insurance. See, e.g.,
Thompson v. Occidental Life Ins. Co., 9 Cal. 3d 904, 919, 513
P.2d 353, 362 (1973) (explaining that, "under the
authorities,
the burden of proving misrepresentation rests upon the
insurer"). "It is not necessary that the misrepresentation
have any causal connection with the death of the insured."
Torbensen v. Family Life Ins. Co., 163 Cal. App. 2d 401, 405,
329 P.2d 596, 598 (1958). Accordingly, California law
requires Protective to prove that, by signing the amendment,
Weber made a (1) false and (2) material statement to
Protective.
"A representation is false when the facts fail to
correspond with its assertions or stipulations." Cal. Ins.
Code § 358.
"Materiality is to be determined not by the
event, but solely by the probable and reasonable
influence of the facts upon the party to whom the
communication is due, in forming his estimate of the
disadvantages of the proposed contract, or in making
his inquiries."
Cal. Ins. Code § 334. In other words,
32
1180508
"[t]he
test
for
materiality
is
whether
the
information would have caused the underwriter to
reject the application, charge a higher premium, or
amend the policy terms, had the underwriter known
the true facts. ... 'This is a subjective test;
the critical question is the effect truthful answers
would have had on [the insurer], not on some
"average reasonable" insurer.'"
Mitchell v. United Nat'l Ins. Co., 127 Cal. App. 4th 457, 474,
25 Cal. Rptr. 3d 627, 638 (2005) (quoting Imperial Cas. &
Indem. Co. v. Sogomonian, 198 Cal. App. 3d 169, 181, 243 Cal.
Rptr. 639, 644 (1988)).
"On the other hand, if the applicant for
insurance had no present knowledge of the facts
sought, or failed to appreciate the significance of
information related to him, his incorrect or
incomplete responses would not constitute grounds
for rescission. ... [A]s the misrepresentation must
be a material one, '[a]n incorrect answer on an
insurance application does not give rise to the
defense of fraud where the true facts, if known,
would not have made the contract less desirable to
the insurer.' ... And the trier of fact is not
required to believe the 'post mortem' testimony of
an insurer's agents that insurance would have been
refused had the true facts been disclosed. ..."
Thompson, 9 Cal. 3d at 916, 513 P.2d at 360.
C. The Parties' Arguments
In the trial court, Protective contended that Weber made
two material misrepresentations by signing the amendment on
May 31, 2016, without adding any additional information:
33
1180508
(1) He misrepresented that he had "not consulted any physician
or other practitioner since" he had signed the initial policy
application on March 10, 2016, and (2) he misrepresented that
he was "in the same health as that stated in the last
application." In challenging the trial court's denial of its
renewed motion for a judgment as a matter of law before this
Court, Protective focuses solely on the first
alleged material
misrepresentation,
contending
that
Weber's
representation
that
he did not consult any physicians was sufficient to allow
Protective to rescind the policy. Protective notes that in
between March 10, 2016, and May 31, 2016, Weber consulted with
three physicians about a new heart condition: (1) He saw
Dr. Fink and underwent a stress test that revealed that he had
an occurrence of AFib during the test; (2) he went to the ER
and consulted with Dr. Brewster and cardiologist Dr. Burnam
about the AFib diagnosis; and (3) he had a follow-up
appointment with Dr. Burnam in which Dr. Burnam and Weber
discussed Weber's options for treating AFib, Weber expressed
that he "was going to strongly consider" having an ablation
procedure, and Weber was given a referral to Dr. Gang.
Evidence indicated that he was going to see Dr. Gang soon. As
34
1180508
to materiality, Protective contends that testimony from
underwriters Peña and Nicols demonstrated that if Protective
had known about those doctors' visits, Protective would have
requested the medical records from the visits, which would
have revealed Weber's AFib diagnosis. Peña and Nicols further
testified that, according to the underwriting manuals
Protective consulted, the AFib diagnosis would have caused
Protective to delay the application to see how the AFib
condition was resolved and that Weber's subsequent doctors'
visits and the ablation procedure would have
caused Protective
to issue the policy at a higher rate or not issue it at all.
Consequently, Protective maintains that Weber's failure to
reveal his May 2016 doctors' visits in the amendment
unquestionably constituted a material misrepresentation
because, it argues, the information ultimately would have
caused Protective to charge a higher premium or to reject the
application altogether.
Apex counters that substantial evidence supports the
conclusion that a jury could have inferred that Weber did not
make, or at least did not knowingly make, a material
misrepresentation in the amendment. Apex offers three
35
1180508
arguments in support of this contention. First, Apex argues
that the amendment was an ambiguous document subject to more
than one reasonable interpretation because it asked Apex and
Weber to make multiple attestations without providing clarity
as to what should be done if there was agreement on one
attestation but not another. Second, Apex argues that the
representation in the health statement concerning physician
consultations cannot be viewed in isolation but rather was
relevant only in combination with the representation about the
applicant's being in the same health. Apex insists that Weber
could have reasonably believed on May 31, 2016, that he was in
the same health as he was on March 10, 2016, because he had
only been diagnosed with a single episode of AFib that had not
affected his daily life at all. Third, Apex argues that its
underwriting expert provided substantial evidence that, even
if Protective had been given the medical records of Weber's
May 2016 doctors' visits, Protective would have proceeded with
approving the policy at a Table 2 rating rather than
suspending the application to wait for further developments
concerning Weber's AFib diagnosis.
36
1180508
Our review of the record indicates that Protective has
accurately characterized the evidence that supported its
motions for a judgment as a matter of law. That is, it is
clear that Weber consulted physicians between the time he
signed the initial application on March 10, 2016, and the time
he signed the amendment on May 31, 2016, that those visits
revealed an AFib diagnosis, and that such a diagnosis
potentially could have altered Protective's policy offer.
Therefore, we must closely examine Apex's responses to that
evidence.
As we have noted, Apex vigorously argues -- as it did in
the trial court -- that the amendment was ambiguous and that,
therefore, it should be left to a jury to determine what Weber
was actually attesting to by signing the amendment. See,
e.g., Jefferson Standard Life Ins. Co. v. Anderson, 236 Cal.
App. 2d 905, 912, 46 Cal. Rptr. 480, 485 (1965) (explaining
that "[w]here, as related to the circumstances in a particular
case, the form of a question soliciting information respecting
a proposed insured's physical condition is ambiguous, that
interpretation thereof against avoidance of the policy will be
accepted"). Specifically, Apex contends that the
amendment is
37
1180508
ambiguous because it does not define key terms, it does not
explain how an applicant is supposed to include additional
information, and it serves at least two purposes --
acknowledging an increase in the premium and attesting that
the applicant is in "the same health" as when he or she signed
the initial application.
"The interpretation of an insurance policy is a
question of law. (Waller v. Truck Insurance
Exchange, Inc. (1995) 11 Cal. 4th 1, 18, 44 Cal.
Rptr. 2d 370, 900 P.2d 619). We 'look first to the
language of the contract in order to ascertain its
plain meaning or the meaning a layperson would
ordinarily attach to it.' (Ibid.) A provision in
a policy is considered ambiguous when it is capable
of two or more constructions, each of which is
reasonable. (Ibid.) We construe ambiguities
against the insurer, as drafter of the policy.
(State of California v. Continental Insurance
Company (2012) 55 Cal. 4th 186, 195, 145 Cal. Rptr.
3d 1, 281 P.3d 1000.) These principles apply
likewise to the questions in an application prepared
by an insurer. Therefore, although an insurer
generally 'has the right to rely on the applicant's
answers without verifying their accuracy[,] ... [¶]
... [t]he insurer cannot rely on answers given where
the applicant-insured was misled by vague or
ambiguous questions.' (Croskey et al., Cal.
Practice Guide: Insurance Litigation (The Rutter
Group 2016) ¶¶ 5:217 to 5:218, p. 5-64 (Croskey).)
Croskey provides several '[e]xamples of "inartful"
questions in insurance applications,' including
questions with 'ambiguous' or 'unfamiliar' terms,
and questions 'lumping together many different
conditions.' (Id. ¶ 5:218, p. 5-64, italics
omitted.)"
38
1180508
Duarte, 13 Cal. App. 5th at 54, 220 Cal. Rptr. 3d at 178.
The amendment itself refutes Apex's assertion of
ambiguity. Although it is true that the amendment serves more
than one purpose, the title of the document plainly states its
dual purpose: "AMENDMENT TO APPLICATION WITH HEALTH
STATEMENT." (Capitalization in original; emphasis added.)
There is a large blank-space gap between the premium-
adjustment information and the health statement. The health
statement itself is prefaced with the words "HEALTH STATEMENT"
in bold typeface and capital letters. Additionally, the
entire health statement is in bold typeface. In short, there
was no plausible way for Weber to miss the health statement in
the amendment or for Weber to believe that by signing the
amendment he was attesting only to an increase in the policy
premium.
Furthermore, the representation in the health statement
concerning physician consultations is clear: "I represent
that I have not consulted any physician or other practitioner
since the date of my medical examination (or date I signed the
last application with Protective Life Insurance Company, if
no
medical examination was required)." Contrary to Apex's
39
1180508
assertion, the word "consulted" is not in any way ambiguous
just because it was not defined. "The fact that a term is not
defined in the [insurance] policies does not make it
ambiguous." County of San Diego v. Ace Prop. & Cas. Ins. Co.,
37 Cal. 4th 406, 415, 118 P.3d 607, 612 (2005).
"Insurance policies are contracts construed in
accordance with the parties' mutual intent at the
time of contract formation, as inferred from the
written provisions. (Civ. Code, §§ 1636, 1639;
Montrose Chemical Corp. v. Admiral Ins. Co. (1995)
10 Cal. 4th 645, 666, 42 Cal. Rptr. 2d 324, 913 P.2d
878.) The 'clear and explicit' meaning of the
provisions, interpreted in their 'ordinary and
popular sense,' controls judicial interpretation
unless 'used by the parties in a technical sense or
a special meaning is given to them by usage.' (Civ.
Code, §§ 1638, 1644.) If the meaning a layperson
would ascribe to insurance contract language is not
ambiguous, courts will apply that meaning.
(AIU
Ins. Co. v. Superior Court (1990) 51 Cal. 3d 807,
822, 274 Cal. Rptr. 820, 799 P.2d 1253 (AIU).)"
Vandenberg v. Superior Court of Sacramento Cnty., 21 Cal. 4th
815, 839–40, 982 P.2d 229, 244–45 (1999). Weber was the chief
executive officer of a successful company with over 40 years'
experience in his industry.
There is simply no way to
conclude that Weber could have thought that such a statement
would not cover three scheduled doctors' visits with two
separate doctors, one of whom was a cardiologist, plus a visit
to an ER during which he was seen by two doctors, all of which
40
1180508
concerned a diagnosis of AFib. See, e.g., Feurzeig v.
Insurance Co. of the West, 59 Cal. App. 4th 1276, 1283, 69
Cal. Rptr. 2d 629, 632 (1997) (observing that, "[i]n
construing a policy, the courts may consider whether the
insured was a sophisticated buyer of insurance represented by
a professional broker").
Moreover, the fact that the amendment did not provide
instructions on what to do if the health statement itself
could not be signed even if there was agreement as to the
premium increase also does not render the document ambiguous.
Apex points out that it introduced health-statement documents
from other insurers that were clearer because they dealt
solely with health matters, they asked specific health
questions, and they gave lined spaces for the applicant to
provide answers. Apex also notes that its underwriting
expert, Joseph Schlesser, testified that he found the
amendment confusing and not like other health-statement
documents used in the insurance industry. But "[t]he fact
that an agreement could have been made even clearer does not
render
the
existing
terms
ambiguous."
Banning
Ranch
Conservancy v. Superior Court of Orange Cnty., 193 Cal. App.
41
1180508
4th 903, 914, 123 Cal. Rptr. 3d 348, 356 (2011). Again, all
indications are that Weber was a smart individual, and Apex
worked with a broker in procuring the policy. Nothing
prevented Weber from seeking clarification as to how to
proceed before he signed the amendment. Nothing required
Weber to sign the amendment absent any further disclosures
just because Apex had agreed to the premium increase.
Accordingly, as a matter of law, because the health statement
was clear and unambiguous, the trial court erred in submitting
this issue to the jury.
Apex's second argument is that the representation in the
health
statement
pertaining
to
physician
consultations must
be
viewed in combination with the representation that the
applicant was in "the same health" as when he or she signed
the initial application and that, therefore, the physician-
consultation representation, standing alone, could not
constitute a misrepresentation. In support of
this assertion,
Apex cites the letter Protective sent Apex explaining the
reason it was denying the claim, which focused on a "material
change of health" rather than the physician consultations.
Apex also notes that Peña admitted that, if an insured
42
1180508
consulted a doctor for a minor ailment and failed to disclose
that visit, it would not be a material misrepresentation and
that he also stated that the "same health" representation was
the "linchpin" of the health statement.
"[Apex's counsel:] ... But you would agree,
wouldn't you, that if someone saw the doctor for
poison ivy, the only diagnosis was poison ivy, the
treatment was itch cream, that would not be a
material misrepresentation for failing to disclose
that, right?
"A. Correct.
"Q. In fact, you will agree with me that really the
linchpin of that form over there is whether or not
you are in the same health as you were when you
disclosed your health up front, right?
"A. Correct."
Apex argues that this testimony demonstrates that Weber's
representation about physician consultations alone could not
constitute a material misrepresentation and that, therefore,
Weber's beliefs about his health at the time he signed the
amendment become relevant to the inquiry of materiality. In
that regard, Apex repeatedly argues that it was plausible for
Weber to believe his health had not changed because he
experienced no symptoms from his AFib and his doctors
consistently commented on his excellent physical fitness.
43
1180508
However, there are at least two problems with Apex's
argument.
First, under the plain language of the health
statement,
the
representation
concerning
physician
consultations
and
the
representation about
the
applicant being
in the same health are separate sentences. Again, the health
statement provides:
"HEALTH STATEMENT: I represent that I have not
consulted any physician or other practitioner since
the date of my medical examination (or date I signed
the last application with Protective Life Insurance
Company, if no medical examination was required).
It is further agreed that, except as stated above,
all insured persons are in the same health as that
stated
in
the
last
application,
or
medical
examination with Protective Life Insurance Company."
Thus, the representation about physician consultations does
not depend upon the good-health representation.
Compare
McAuliffe v. John Hancock Mut. Life Ins. Co., 245 Cal. App. 2d
855, 857, 54 Cal. Rptr. 288, 289 (1966) (noting that "[h]ere
the inquiry about medical consultation was part of the same
sentence asserting 'good health' of the insured, and denying
any 'injury, ailment, illness, or disease or
symptom thereof.'
Such an inquiry does not relate to minor indispositions but is
construed as 'referring to serious ailments which undermine
the general health.'" (quoting Jefferson Standard Life Ins.
44
1180508
Co. v. Anderson, 236 Cal. App. 2d 905, 910, 46 Cal. Rptr. 480,
484 (1965))).
Second, Apex ignores testimony from Peña that immediately
preceded the portion it highlights:
"[Apex's counsel:] And you will agree with me that
in filling out that form, if someone had seen a
doctor for something minor like poison ivy or went
to an orthopedic because they got tennis elbow and
they failed to disclose that, that would not be a
material change?
"A. It would be a material -- it would be a
misrepresentation if they didn't include it on the
form. We would make that determination whether or
not
it
would
be
considered
a
material
misrepresentation on the form.
"Q. Fair enough. It might be a misrepresentation.
..."
In the foregoing portion of his testimony, Peña raises the
salient point -- which Apex's counsel conceded -- that the
insurer
determines
whether
an
applicant's
particular
consultation with a physician is material. "It is generally
held that an insurer has a right to know all that the
applicant for insurance knows regarding the state of his
health and medical history." Thompson, 9 Cal. 3d at 915, 513
P.2d at 360. Throughout its brief Apex cites several
California cases stating that, when an applicant is ignorant
45
1180508
of a fact or fails to appreciate its significance, the failure
to reveal the fact to the insurer cannot be deemed a
misrepresentation. Indeed, Thompson is one such case. See 9
Cal. 3d at 916, 513 P.2d at 36 ("[I]f the applicant for
insurance had no present knowledge of the facts sought, or
failed to appreciate the significance of information related
to him, his incorrect or incomplete responses would not
constitute grounds for rescission."); see, e.g., MacDonald v.
California-Western States Life Ins. Co., 203 Cal. App. 2d 440,
451–52, 21 Cal. Rptr. 659, 666 (1962) (concluding that,
because the plaintiff did not know the seriousness of his
heart ailment, his failure to disclose it did not constitute
concealment); Miller v. Republic Nat'l Life Ins. Co., 789 F.2d
1336, 1339–40 (9th Cir. 1986) ("First, there is no breach of
the duty to disclose if the applicant is ignorant of the
relevant information. ... Second, there is no breach of the
duty to disclose if the applicant, acting in good faith, does
not understand the significance of the information he fails to
disclose. ... A lay person will not be held to the level of
knowledge or understanding that a doctor or other expert might
have."). But the legal observation Apex highlights from
46
1180508
Thompson, MacDonald, Miller, and other cases is irrelevant to
the physician-consultation representation in the health
statement. Weber unquestionably knew that in May 2016 he had
recently consulted multiple physicians concerning the AFib
diagnosis. Because the health statement clearly and directly
prompted Weber about physician consultations, Weber had
a
duty
to honestly attest to whether he had visited any doctors since
the date he signed the application. It was left to Protective
to determine whether those physician consultations were for a
minor indisposition or were material to the application. See,
e.g., Cohen v. Penn Mut. Life Ins. Co., 48 Cal. 2d 720, 727-
28, 312 P.2d 241, 245 (1957) ("Defendant did not ask on the
application for merely his evaluation of his physical
condition, but also for a truthful statement of his medical
history. ... Defendant was entitled to determine for itself
the matter of the deceased's insurability, and to rely on him
for such information as it desired 'as a basis for its
determination to the end that a wise discrimination may be
exercised in selecting its risks.'" (quoting Robinson v.
Occidental Life Ins. Co., 131 Cal. App. 2d 581, 586, 281 P.2d
39, 42 (1955) (emphasis added))); Freeman v. Allstate Life
47
1180508
Ins. Co., 253 F.3d 533, 537 (9th Cir. 2001) (applying
California law and holding that "[w]here an insured is aware
of her condition, symptoms, or treatment, she is obliged to
disclose them upon request" (emphasis added)). In short, the
fact that a particular physician consultation could be
immaterial does not mean that all such consultations are
immaterial; it was Weber's duty to disclose the consultations
and
Protective's duty
to
determine
whether
those
consultations
would materially affect its offer of insurance. Weber's
belief about the seriousness of his condition had no role in
this assessment because, in the health statement, the
physician-consultation representation is independent of the
same-health representation.
Protective's assessment as to the materiality of Weber's
May 2016 physician consultations would, of course, depend upon
the information it obtained after learning of those
consultations, i.e., the reason for Weber's consultations as
detailed in his medical records. That is the subject of
Apex's
final
argument
in
defense
of
Weber's
misrepresentation.
Apex argues that, even if Protective had been aware of Weber's
physician consultations in May 2016, Protective still would
48
1180508
have issued the policy at the Table 2 rating and thus that
Weber's misrepresentation about doctors' visits was not
material to Protective. As we noted at the outset of this
analysis, "'[t]he test [for materiality] is the effect which
truthful answers would have had upon the insurer.'" Old Line
Life Ins. Co. of America v. Superior Court of Alameda Cnty.,
229 Cal. App. 3d 1600, 1604, 281 Cal. Rptr. 15, 17–18 (1991)
(quoting Taylor v. Sentry Life Ins. Co. 729 F.2d 652, 655 (9th
Cir. 1984)). Apex's underwriting expert, Joseph Schlesser,
testified that the Protective underwriter who initially
approved Apex's application, Paula Nicols, was --
like himself
-- an "aggressive" underwriter. Schlesser explained that an
aggressive underwriter often approves applications without
seeking every single bit of medical information on the
applicant that he or she could possibly obtain. Additionally,
he opined, an aggressive underwriter heavily relies on his or
her experience in arriving at the correct rating for an
application rather than strictly following the underwriting-
manual guidelines.
Schlesser supported his labeling Nicols an
"aggressive" underwriter by noting that Nicols could have
requested more information or asked Weber to provide a more
49
1180508
current evaluation of his LBBB before approving the Apex
application but that she chose not to do so because she was
comfortable with the information she had. Schlesser also
observed that Nicols did not strictly follow the Swiss Re
guidelines in a couple of areas with respect to the
information Weber provided in the application, with Nicols
being more lenient toward Weber's health than a strict
application of the guidelines would have dictated. Schlesser
then opined that an aggressive underwriter like Nicols or
himself most likely would have approved Apex's application at
the Table 2 rating even if he or she had been given the
medical records for Weber's May 2016 doctors' visits.
"[Apex's counsel:] Would you, as a self-described
aggressive underwriter, then -- would you have been
comfortable then issuing a policy to Mr. Weber, even
though he had atrial fibrillation, in light of the
other medical conditions that you knew about?
"A. Yeah. And mainly because it wasn't chronic
atrial fibrillation. There wasn't a recommendation
at that time for any further intervention. That is
not a major finding. You look at other factors,
too. The gentlemen was in very good cardiovascular
health.
"....
"Q. ... What other factors would have contributed
to you as an underwriter in determining that even
50
1180508
though Mr. Weber had AFib, that you could still
insure him at the Table 2 rates?
"A. Just his cardiac fitness. He also had a
resting echocardiogram. He had no symptoms that
would suggest further or, you know, significant
obstructive heart disease."
Schlesser then explained why he believed that Protective
underwriter Peña had misapplied the underwriting-manual
guidelines in concluding that Weber's AFib diagnosis would
have required a postponement of Apex's application to await
further evaluation of his newly diagnosed AFib condition.
"[Apex's counsel:] ... So why did you disagree
then with how Mr. Peña decided to rate Mr. Weber as
not being insurable anymore because of the AFib?
"A. I believe he ran the guidelines incorrectly.
He used --
"Q. In what way? In what way?
"A. Both manuals say that atrial fibrillation newly
found
on
exam
should
be
postponed
until
investigation. That -- the -- both manuals cover
this, and that is, as I understand it, the many
years that I've been in underwriting and I've seen
many occasions of atrial fibrillation. It's put in
there when we don't have a real good picture. We
have one EKG, and we have nothing else to go by.
"If we're looking at May 31st, we have more than
just a single EKG. We have a stress test. We have
an echocardiogram. We have notes that say he was
sent home after the heart rate -- the rapid heart
rate resolved spontaneously. He had a follow-up
51
1180508
where he was back into a normal heart rate. So I
think he interpreted those guidelines incorrectly."
Apex argues that Schlesser's testimony presented an issue of
fact as to whether Weber made a material misrepresentation on
the health statement because he stated that the medical
records from Weber's May 2016 doctors' visits reflected that
Weber's AFib was not serious and that, therefore, at that
time, Nicols would have approved Apex's application at the
Table 2 rating. Because "the true facts, if known, would not
have made the contract less desirable to [Protective]," Apex
contends,
Weber's
misrepresentation
about
physician
consultations was not "material" to its approval of the
policy. Thompson, 9 Cal. 3d at 916, 513 P.2d at 360.
Schlesser's testimony is
Apex's most
compelling evidence,
but Protective contends that his testimony is both legally and
factually flawed. Protective argues that Schlesser's
testimony is legally flawed because he testified as to how he
would interpret the underwriting manuals rather than how
Protective would have done so. Because materiality "is a
subjective test viewed from the insurer's perspective,"
Superior Dispatch, Inc. v. Insurance Corp. of New York, 181
Cal. App. 4th 175, 191, 104 Cal. Rptr. 3d 508, 520 (2010),
52
1180508
Protective contends that Schlesser's opinion about the proper
way to read the underwriting manuals is irrelevant. However,
as Apex observes, if expert testimony was irrelevant to a
determination of materiality, "then there would be no need for
a trial in any insurance [rescission] case because the insurer
would just announce 'what it would have done' and that would
be the end of every dispute." Apex's brief, p. 58. Indeed,
the California Supreme Court has stated that "the trier of
fact is not required to believe the 'post mortem' testimony of
an insurer's agents that insurance would have been refused had
the true facts been disclosed." Thompson, 9 Cal. 3d at 916,
513 P.2d at 360. In any event, as the foregoing summary of
Schlesser's testimony relates, Schlesser did address his
evaluation from Protective's perspective by specifically
positing what he believed Nicols would have done if she had
been made aware of Weber's May 2016 doctors' visits at that
time. Protective's first objection to Schlesser's testimony
is therefore without merit.
Protective also argues that Schlesser's testimony is
based on two inaccurate factual premises and therefore must be
rejected.
First,
Protective
contends
that
Schlesser
53
1180508
mistakenly asserted that Protective's evaluation of the
application must be viewed as of May 31, 2016.
Schlesser testified:
"A. When presented all the information as of
May 31st, we have to take -- remember when we are
looking at a point in time, people have episodes of
rapid heart rate that are spontaneously resolved and
never come back again.
"[Protective's counsel:] Was his resolved?
"A. As of May 9th, yes.
"Q. Was it resolved in June?
"A. In June, they did a Holter monitor or a ZIO
patch, and it showed that he was -- he had a rapid
heart rate 22 hours out of 61.
"Q. That doesn't [seem] very resolved, does it?
"A. Well, as of May 31st, that's the information
you have to go by."
Protective contends that Schlesser's assumption of
May 31, 2016, as the correct date for evaluating the
materiality
of
Weber's
misrepresentation
is
erroneous
because,
even though Weber signed the amendment on May 31, 2016,
Protective did not receive the amendment until June 23, 2016.
Consequently, Protective maintains, if Weber had indicated in
the amendment that he had consulted physicians, Protective
would have requested all of Weber's medical records up to
54
1180508
June 23, 2016. This would have meant that Protective would
have seen the medical records from Weber's visit to Dr. Gang
on June 8, 2016, which showed that Weber was in AFib during
that visit, that Dr. Gang prescribed the blood thinner Xarelto
to Weber, that Weber was given a ZIO patch to further evaluate
his AFib, and that Weber "was going to give [an ablation]
serious consideration." Protective also would have seen the
results from Weber wearing the ZIO patch in June 2016, which
showed that, over a three-day period, Weber was in AFib 61
percent of the time, and that his longest stretch of being in
AFib was 22 hours and 36 minutes. Protective further would
have seen that, based on the ZIO patch results, Dr. Gang
recommended that Weber undergo an ablation.
Protective argues
that it is undisputed that, if Weber's June 2016 medical
records are considered, Protective would have reissued the
policy at a higher premium rate. Indeed, Schlesser admitted
that Weber's medical records from June 2016 showed that his
AFib had not, in fact, resolved and that this would have
entirely changed Protective's materiality evaluation. 4
4In his testimony, Schlesser acknowledged that "if we're
looking on June 21st and saying there's been no change in
health insurability from what's described in the application,
what was described in the application is now completely
55
1180508
However, just because Protective would have had access to
the June 2016 medical records because it happened not to
receive the amendment until June 23, 2016, does not mean that
it could use that information in evaluating whether Weber had
made a material misrepresentation in the amendment. Apex
argues -- correctly, we believe -- that Weber cannot be held
responsible for information he could not have known as of the
date he signed the amendment. "It would be 'patently unfair'
to allow the insurer to avoid its obligations under the policy
on the basis of information that the applicant did not know
...." Miller, 789 F.2d at 1340. Obviously, Weber could not
have known on May 31, 2016, the information discovered during
his June 2016 doctors' visits because they had not yet
occurred. "A representation is false when the facts fail to
correspond with its assertions or stipulations." Cal. Ins.
Code § 358. The facts corresponding to a representation are
those that exist at the time the representation is made.5
different."
5Section 356, Cal. Ins. Code, provides: "The completion
of the contract of insurance is the time to which a
representation must be presumed to refer." However, § 356 was
not discussed or argued by the parties at trial or on appeal.
Therefore, its potential implications have no bearing on this
case.
56
1180508
Therefore, the information discovered about Weber's AFib
condition in June 2016 is irrelevant to whether Protective was
permitted to rescind the policy based on the representations
Weber made in the amendment he signed on May 31, 2016.
Accordingly, the fact that Schlesser based his
assessment from
the vantage point of May 31, 2016, did not invalidate his
testimony.
A more valid objection to Schlesser's testimony concerns
what the record reflects about Weber's AFib condition in
May 2016. Schlesser's testimony was based on the premise
that, as of May 31, 2016, Weber's AFib had resolved. As we
have already recounted, Schlesser testified that "[t]here
wasn't a recommendation at that time for any further
intervention." More specifically, Schlesser also testified:
"As of May 31st, he had one episode of rapid
heartbeat. It resolved on its own, and he was sent
home by a doctor with an Aspirin. And he followed
up the following week by another doctor -- I'm sorry
-- with a cardiologist. At that time his heart was
back into what's called normal sinus rhythm."
Protective contends -- and we agree -- that Schlesser's
premise is flatly contradicted by Weber's May 2016 medical
records. Instead, those medical records show that Weber's
doctors were encouraging, and that Weber was seeking, further
57
1180508
treatment for his AFib. It is true that during Dr. Burnam's
physical evaluation of Weber in the ER on May 6, 2016,
Dr. Burnam confirmed that Weber's AFib was not persistent and
concluded that it was sufficient for the time being to
prescribe aspirin as a blood thinner to Weber. But, on that
visit Dr. Burnam and Weber also discussed further treatment
options, including the possibility of Weber undergoing an
ablation procedure. It is true that during Weber's May 9,
2016, follow-up appointment with Dr. Burnam, an EKG showed
that Weber's heart was in normal sinus rhythm. But,
Dr. Burnam's notes specifically reflected that he and Weber
again discussed further treatment options and that Weber "was
going to strongly consider" undergoing an ablation. To that
end, during that appointment Dr. Burnam gave Weber a referral
to Dr. Gang, an AFib subspecialist. Additionally, after
talking to Dr. Burnam that day, Dr. Fink entered a note in
Weber's medical file confirming that Weber "will be seeing
Dr. Eli Gang." After speaking with Weber on May 19, 2019,
Dr. Fink entered a note in Weber's medical file that
reiterated that Weber "is referred to Dr. Gang." Those facts
show that Apex is simply incorrect in arguing that the only
58
1180508
evidence from that time supporting that Weber was going to see
Dr. Gang was Weber's "cryptic handwritten notes" about his
AFib condition and a May 10, 2016, note referencing an
appointment with an "unnamed doctor" in June 2016. Apex's
brief, pp. 48, 21. Weber's notes are certainly corroborative
evidence, but the medical records alone -- which Protective
would have requested had it been aware of Weber's May 2016
physician consultations -- plainly indicated that Weber's
doctors had encouraged, and that Weber was going to seek,
further treatment from an AFib subspecialist. In other words,
the actions of both Weber and his doctors in May 2016 belied
any notion that Weber's AFib had "spontaneously resolved."
Based on this information, the only reasonable conclusion is
that Protective would have postponed the application to await
further developments regarding Weber's AFib condition.
Waiting would have revealed the subsequent developments in
June 2016 we previously discussed, and Schlesser conceded that
information from June and beyond would have required: (1) a
postponement of the application and (2) the ultimate
reissuance of the policy at a higher rating. Thus, because
Schlesser's assessment was based on the erroneous assumption
59
1180508
that Weber's May 2016 medical records reflected that his AFib
condition had spontaneously resolved, his testimony did not
provide
substantial
evidence
that
Protective
nonetheless
would
have issued the policy at a Table 2 rating if it had been made
aware of Weber's May 2016 physician consultations at that
time.
Accordingly,
Weber's
misrepresentation
concerning
those
physician consultations unquestionably was material to
Protective.
In sum, the amendment was not ambiguous and the
representation in the health statement about physician
consultations was separate from the representation that the
applicant was in the same health. Therefore, because Weber
indisputably knew he had consulted multiple physicians in May
2016 and yet signed the amendment on May 31, 2016, without
disclosing those consultations, Weber misrepresented his
medical history to Protective. Furthermore, because the May
2016 medical records revealed that both Weber and his doctors
believed he needed further treatment for his AFib condition,
Weber's
misrepresentation
clearly
was
material
to
Protective's
policy offer to Apex. Accordingly, we conclude that the
record unequivocally demonstrated that Weber made a material
60
1180508
misrepresentation to Protective by signing the amendment on
May 31, 2016, without revealing the fact of his multiple
physician
consultations
during
that
month.
Because
Protective
demonstrated that Weber made a material misrepresentation and
Apex failed to introduce substantial evidence to
the
contrary,
Protective was entitled to rescind the policy, which was a
complete defense to Apex's claims of breach of contract.
Thus, the trial court erred in denying Protective's motions
for a judgment as a matter of law.
IV.
Conclusion
For the reasons discussed above, Protective was entitled
to a judgment as a matter of law on Apex's claim of breach of
contract, and the trial court erred by submitting this claim
to the jury for consideration. Accordingly, we reverse the
judgment in favor of Apex on the breach-of-contract claim and
render a judgment as a matter of law in favor of Protective.
Because of this Court's resolution of the issues, we pretermit
discussion of the parties' arguments pertaining to the jury
instructions.
61
1180508
REVERSED AND JUDGMENT RENDERED.
Bolin, Wise, Bryan, Sellers, and Stewart, JJ., concur.
Parker, C.J., dissents.
Mitchell, J., recuses himself.
62 | September 18, 2020 |
07e6a17a-ab39-4621-ae87-5688b80d31c2 | Ex parte Derrick Conelious Thomas. | N/A | 1190781 | 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
September 11, 2020
1190781
Ex parte Derrick Conelious Thomas. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Derrick Conelious Thomas v. State of Alabama)
(Jefferson Circuit Court: CC-14-2427.60; Criminal Appeals :
CR-18-0990).
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 September 11, 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
2b155c98-1e78-46bb-9b56-4208fde11e79 | Ex parte A.T. | N/A | 1190929 | 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
September 11, 2020
1190929
Ex parte AT. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: A.T. v. Colbert County Department of Human Resources) (Colbert Juvenile Court:
JU-18-201.02; Civil Appeals :
2190290).
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 September 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. 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
599cc8bb-7f4d-4acf-9a8c-c3cbf5e09d88 | Bill McGriff, as executor of the Estate of Birdie Mae McGriff v. David McGriff | N/A | 1180781 | Alabama | Alabama Supreme Court | Rel: August 21, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1180781
Bill McGriff, as executor of the Estate of Birdie Mae McGriff
v. David McGriff (Appeal from Jackson Circuit Court:
CV-09-245).
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. | August 21, 2020 |
6c0f5356-2d2f-42bb-bb13-843ee467415e | Ex parte Sam Smith | N/A | 1180834 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 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
(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)
SHAW, Justice.
1180834
The defendants below, Sam Smith, director of the Calhoun
County Department of Human Resources ("CCDHR"); Pamela
McClellan,
an
adult-protective-services
caseworker
with
CCDHR;
and
Teresa
Ellis,
McClellan's
supervisor
(hereinafter
referred
to collectively as "the petitioners"), petition this Court for
a writ of mandamus directing the Jefferson Circuit Court to
vacate its order denying their motion for a summary judgment
in a wrongful-death action filed by William David Streip
("David"), as the personal representative of the estate of his
sister, Jerrie Leeann Streip ("Leeann"), deceased,1 and to
enter a summary judgment in their favor on the basis of
immunity. We grant the petition and issue the writ.
Facts and Procedural History
Leeann suffered from numerous serious physical, mental,
and emotional conditions beginning with her birth in 1971.
Those conditions were exacerbated by brain surgery in 2013.
Following that surgery, Leeann was released to a nursing-home
facility before being discharged into the care of her father.
1In the materials before this Court, Leeann is referred
to as both "Leeann" and "Jerrie" interchangeably. When she is
referred to as "Leeann," her name is spelled various ways. In
this opinion, we refer to her as "Leeann" and use the spelling
used in the majority of the materials before us.
2
1180834
Leeann subsequently reported to a CCDHR social worker
that her father had raped her. As a result, an adult-
protective-services case was opened under Alabama's Adult
Protective Services Act ("the APSA"),2 and McClellan was
assigned as Leeann's caseworker. Upon the conclusion of the
ensuing investigation, CCDHR removed Leeann from her father's
care. Following a brief hospitalization and initial,
temporary placements, Leeann was placed by her then guardian
at Magnolia Place, an unlicensed "boarding home." Leeann
remained at Magnolia Place from May 2014 until March 2016. At
that time, in relation to concerns regarding Magnolia Place's
unlicensed status and the fact that it might be providing more
assistance than was permissible in a "boarding-home" setting,
CCDHR removed Leeann from Magnolia Place and, on or around
March 25, 2016, placed her at Leviticus Place, a licensed
boarding home.
On April 14, 2016, McClellan spoke with Leeann and
reportedly had no resulting concerns about Leeann's well
being. On April 20, 2016, however, McClellan was notified
that Leeann had left Leviticus Place on April 15 and had not
2See § 38-9-1 et seq., Ala. Code 1975.
3
1180834
returned. A body located in Birmingham was later identified
as Leeann's; her cause of death remains "undetermined."
Following Leeann's death, David sued, among others,
Smith, McClellan, and Ellis,3 alleging that they had committed
willful, malicious, or fraudulent acts or had acted in bad
faith or had failed to act and that those acts or omissions
violated specific laws, rules, or regulations of the Alabama
Department of Human Resources ("DHR") and had thereby caused
Leeann's death. More specifically, David's complaint alleged
that, because of Leeann's mental and physical disabilities,
she was not capable of living in a "communal" living facility
like Leviticus Place and, instead, "required the level of care
of a 'nursing home,'" as purportedly recommended by her
physician. David further alleged that the petitioners
negligently or wantonly placed Leeann in a boarding home
where, he alleges, she failed to receive appropriate
monitoring and supervision and that that decision, according
to David, both violated DHR policy and "put [Leeann's] health
and safety at risk."
3David's complaint indicated that he was suing Smith in
both "his individual and official capacities" and was suing
McClellan and Ellis "in [their] individual capacit[ies]."
4
1180834
The petitioners filed a joint motion seeking a summary
judgment in their favor on David's claims against them. In
their motion, the petitioners argued that they were entitled
to a summary judgment because, they said, David could not
prove that they had proximately caused Leeann's unexplained
death; they were entitled to statutory immunity under § 38-9-
11, Ala. Code 1975, a provision of the APSA, because, they
said, they had exercised their duties in "good faith" and in
compliance with the DHR Adult Policy Services Manual ("DHR's
APS manual"); and they were entitled to State-agent immunity
because, they said, all decisions concerning Leeann's
placement were based on an exercise of discretion performed
within the scope of their duties.
In opposition to the petitioners' motion, David argued
that substantial evidence showed that the petitioners'
placement of Leeann in a boarding-home facility was the
proximate cause of Leeann's death because, he asserted, they
placed Leeann in a boarding home despite ample evidence
indicating that she "could not perform normal activities of
daily living" and that she "needed help with simple tasks such
as
self-administering
medication,
bathing,
toileting,
cooking,
5
1180834
and handling her finances" –- requirements that, according to
David, rendered Leeann ineligible for boarding-home placement
under the clear requirements of DHR's APS manual. David
contended that Leeann's allegedly improper placement deprived
the petitioners of State-agent immunity available under Ex
parte Cranman, 792 So. 2d 392 (Ala. 2000) (plurality opinion
setting out a restatement of law pertaining to State-agent
immunity, which restatement was adopted by a majority of the
Court in Ex parte Butts, 775 So. 2d 173 (Ala. 2000)). David
also disputed that the petitioners were entitled to statutory
immunity under § 38-9-11 because, he says, the petitioners did
not satisfy the "good-faith" requirement of that Code section
in placing Leeann in a boarding-home setting, which, he
maintains,
was
in
violation
of
DHR's
APS
manual.
Alternatively, he argued that the immunity provided in § 38-9-
11
"refers
to
immunity
from
claims
stemming
from
investigations and recommendations about the status of
neglect, incapacity and/or abuse claims, not to claims that
stem from DHR's work with individuals already determined to be
incapacitated." (Emphasis omitted.)
6
1180834
Following further filings and a hearing, the trial court
entered an order denying the petitioners' motion for a summary
judgment. In response, they filed the instant petition; this
Court subsequently ordered answers and briefs.
Standard of Review
"A writ of mandamus is a
"'drastic and extraordinary writ that will
be issued only when there is: 1) a clear
legal right in the petitioner to the order
sought; 2) an imperative duty upon the
respondent to perform, accompanied by a
refusal to do so; 3) the lack of another
adequate remedy; and 4) properly invoked
jurisdiction of the court.'
"Ex parte United Serv. Stations, Inc., 628 So. 2d
501, 503 (Ala. 1993)."
Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002). Although this
Court generally will not review a trial court's denial of a
summary-judgment motion, we will consider a challenge to a
denial of a summary-judgment motion that is "grounded on a
claim of immunity." Id. Our review in such as case is limited
to the trial court's determination of immunity issues; we will
not consider secondary arguments that a summary judgment was
appropriate on other grounds or review the trial court's
conclusions on other issues. See Ex parte Hudson, 866 So. 2d
7
1180834
1115, 1120 (Ala. 2003) (explaining that, in reviewing the
denial of a summary-judgment motion that asserts immunity,
"[w]e confine our interlocutory review to matters germane to
the issue of immunity. Matters relevant to the merits of the
underlying tort claim, such as issues of duty or causation,
are best left to the trial court").
In reviewing the denial of a summary-judgment motion
asserting immunity, whether by petition for a writ of mandamus
or by permissive appeal, this Court applies the following
standard of review:
"If there is a genuine issue as to any material fact
on the question whether the movant is entitled to
immunity, then the moving party is not entitled to
a summary judgment. Rule 56, Ala. R. Civ. P. In
determining whether there is [an issue of] material
fact on the question whether the movant is entitled
to immunity, courts, both trial and appellate, must
view the record in the light most favorable to the
nonmoving party, accord the nonmoving party all
reasonable favorable inferences from the evidence,
and resolve all reasonable doubts against the moving
party, considering only the evidence before the
trial court at the time it denied the motion for a
summary judgment. Ex parte Rizk, 791 So. 2d 911,
912 (Ala. 2000)."
Wood, 852 So. 2d at 708.
Discussion
8
1180834
In their petition, the petitioners renew their claim that
they were entitled to a summary judgment and that the trial
court erred in denying their summary-judgment motion because,
they contend, they are entitled to statutory immunity under §
38-9-11 of the APSA. Section 38-9-11 provides:
"Any officer, agent, or employee of the
department,[4] in the good faith exercise of his
duties under this chapter, shall not be liable for
any civil damages as a result of his acts or
omissions in rendering assistance or care to any
person."
(Emphasis added.) According to the petitioners, in handling
Leeann's case, they acted at all times within the line and
scope of their duties as agents of DHR and CCDHR. They
maintain that David has failed to demonstrate that their
placement decisions in Leeann's case were not made in good
faith so as to deprive them of statutory immunity.
As noted above, David contends that § 38-9-11, when read
in pari materia with the remainder of the APSA, clearly
demonstrates that its sole purpose is to provide DHR employees
with immunity for liability arising from their actions in
4For purposes of the APSA, the "department" is the Alabama
Department of Human Resources. See § 38-9-2(5), Ala. Code
1975.
9
1180834
investigating reports of abuse or making related findings. We
are unpersuaded by David's reading of § 38-9-11.
Section 38-9-11 states that it applies to the exercise of
duties under "this chapter"; "this chapter" refers to Chapter
9, Title 38, Ala. Code 1975, where the APSA is codified.
Although certain portions of Chapter 9 govern investigating
reports of abuse, that chapter also governs arranging
protective services for a client, see § 38-9-4, Ala. Code
1975, and the placement of a client in an appropriate
facility, see § 38-9-6, Ala. Code 1975. Those are "duties
under" Chapter 9 relating to "rendering assistance or care"
for which the plain language of § 38-9-11 provides immunity.
"When the language of a statute is plain and unambiguous, as
in this case, courts must enforce the statute as written by
giving the words of the statute their ordinary plain meaning
...." Ex parte T.B., 698 So. 2d 127, 130 (Ala. 1997). Because
the language of § 38-9-11 is "plain and unambiguous," there is
no need either to interpret the Code section or to resort to
the in pari materia rule of statutory construction. See
Deutsche Bank Nat'l Tr. Co. v. Walker Cty., [Ms. 1160926, June
28, 2019] ___ So. 3d ___, ___ (Ala. 2019) ("If the language of
10
1180834
a statute is not 'plain' or is ambiguous, then -- and only
then -- may a court construe or interpret it to determine the
legislature's intent."). Because that plain and unambiguous
language fails to limit the immunity provided by § 38-9-11 to
investigations of
abuse,
David's
interpretation is
contrary
to
the language of the Code section and thus meritless.
We are also unpersuaded by David's alternate claim that
the petitioners failed to establish that they exercised their
duties "in good faith" in placing Leeann, so as to entitle
them to the immunity afforded by § 38-9-11. As explained,
David alleges that the petitioners' placement of Leeann in a
boarding-home setting
was
violative
of
Leeann's
best
interests
and DHR policy and was clearly in bad faith when, he says,
Leeann could not perform basic tasks of daily living. The
petitioners, however, counter that Leeann's placement was the
result of actions taken by them within the line and scope of
their job responsibilities, which specifically include
responsibility for
the
placement
of
incapacitated
adults
under
the APSA. They further argue that David has failed to
demonstrate that Leeann's boarding-home placement was made in
bad faith. We agree.
11
1180834
DHR's APS manual provides that protective services for
its adult clients, like Leeann, include:
"[I]dentifying those in need of such services,
investigating their situations, assessing their
situations
and
service
needs,
providing
case
management services to them and to others on their
behalf, ... arranging appropriate alternate living
arrangements,
...
arranging
for
protective
placement, ... filing adult protective service
reports, making required reports to the court and
[i]nformation and [r]eferral."
(Emphasis added.) Although, as testimony below indicated,
making those decisions might not be an "exact science," DHR's
APS manual provides certain guidelines, including that DHR may
"refer clients or participate in planning for their
placement only in facilities approved, licensed, or
certified to provide the appropriate level of care
required by the client. No referral or planning for
placement may be made to a facility that is subject
to the licensing or approving authority of a local
or State agency and is unlicensed or not-approved.
No referral or planning for placement may be made to
a facility, though licensed or approved, if not
licensed or approved to provide the level of care
the client requires."
(Emphasis added.) DHR's APS manual also provides that the
type of placement sought on behalf of an adult client depends
on "the client's particular needs and preferences, physician
recommendations, and resources available." Under DHR's APS
manual, placement options include, among others, boarding or
12
1180834
rooming homes –- the majority of which apparently do not
restrict a client's ability to come and go at will.
The materials reveal that in an assessment conducted at
or around the time of Leeann's postsurgery rehabilitation in
2013, Leeann's treating physician, Dr. Carla Thomas, opined
that LeeAnn required adult-protective services because, aside
from the alleged sexual abuse by Leeann's father, she believed
that Leeann did "not understand normal daily decisions" and
their consequences, that Leeann forgot to take prescribed
medications, that Leeann was physically unable to care for
herself, and that Leeann was mentally unable to handle her
financial affairs.
Similarly, an affidavit submitted by CCDHR
to the trial court in determining guardianship issues at that
time indicated that Leeann "need[ed] daily assistance and care
and [could] no longer live independently."
According to McClellan, however, Leeann's condition
improved after her 2013 surgery. Specifically, McClellan
indicated that, while housed at Magnolia Place,
"[Leeann] could ambulate independently. She no
longer needed the assistance of a walker. She could
groom herself. She could wash and bathe without any
help. She could dress herself. She could feed
herself. She could communicate well. She was even
compliant with treatment and medication through the
13
1180834
local mental health center. She could read and
write."
When it became necessary to move Leeann from Magnolia Place,
McClellan, in determining what placement best fit Leeann's
needs at that time, explained in her affidavit that she
"[g]athered information from [Leeann's] doctor, from
[Leeann], from her case record, from her prior
service records and from her prior placements ....
[She] considered [Leeann's] financial resources, the
resources that were available to her and how policy
applied in her particular case. [McClellan] also
consulted with her supervisor[, Ellis,] and [they]
in turn, conferenced with [the] state office
consultant and other state office staff."
The affidavit testimony of Dr. Thomas, which the petitioners
offered in support of their summary-judgment motion, confirms
that, in April 2015, Dr. Thomas "made a recommendation [to
CCDHR] of boarding home placement for [Leeann]" with a
guardian to assist with financial matters –- a recommendation
that, also according to Dr. Thomas's testimony, did not change
from that time until the time of Leeann's death in April 2016.
Because
Leeann's
primary
deficiencies,
according
to
McClellan,
were with managing money and cooking, the most appropriate
placement for Leeann under DHR's APS manual, as demonstrated
by Leeann's own needs and the recommendation of her treating
physician, was a boarding home –- a placement that, according
14
1180834
to McClellan, met Leeann's needs while also providing the
maximum freedom required by the APSA.5 Thus, the petitioners
concluded that Leeann should be moved to Leviticus Place, a
boarding home offering daily staff supervision until 4:30 p.m.
DHR's APS manual concerning boarding or rooming homes
states:
"Placements or referrals to boarding or rooming
homes may be made for those individuals who need a
facility
to
provide
only
rooms
and
meals.
Individuals whose physical or mental disabilities
require any care or supervision from another
individual shall not be placed in or indirectly
referred to [a] boarding home.
"....
"The following requirements apply to admission to
Jefferson County boarding or rooming homes:
"a.
Residents must be able to perform
their personal care, such as bathing,
dressing, feeding, and taking their
own medicines.
"b.
All residents must be able to ambulate
independently
without
bodily
assistance...."
(Emphasis added.) It further restricts from boarding-home
placement any client with chronic or communicable medical
conditions requiring medical care, treatment, or supervision.
5See, generally, § 38-9-3, Ala. Code 1975.
15
1180834
In support of his claim that the petitioners' decision to
place Leeann at Leviticus Place was made in bad faith, David
points to purported "substantial evidence" indicating that
Leeann's boarding-home placement violated the above-quoted
policy. Specifically, according to David, the petitioners
were aware that Leeann allegedly required assistance with
personal care, bathing, dressing, feeding, and taking her own
medicine –- all conditions that, according to
David, indicated
that Leeann required more care and supervision than offered by
the boarding-home setting. Thus, he contends, Leeann's
placement amounted to a clear violation of established DHR
policy, which, he says, deprives the petitioners of statutory
immunity in the present case.
David fails to acknowledge, however, that, as of her move
to Leviticus Place -– and even at the time of her earlier
residence at Magnolia Place -- Leeann's needs had decreased
and
her
ability
to
care
for
herself
had
improved.
Specifically, each resource examined by McClellan before
Leeann's placement at Leviticus Place revealed that, at the
time of her boarding-home placement, Leeann could ambulate
independently and could groom, bathe, dress, eat, and
16
1180834
communicate without any help. Importantly, Dr. Thomas agreed
that "Leeann [was] safe to stay in a boarding environment."
Despite David's claim to the contrary, it is apparent
that, in selecting boarding-home placement for Leeann, the
petitioners complied with both DHR's APS manual and the
provisions of the APSA. David failed to counter the
petitioners' showing with substantial evidence to the
contrary. Notably, David presented nothing demonstrating
either that, at the time of her placement, Leeann required a
facility
providing 24-hour
supervision
or
that
the
petitioners
exhibited bad
faith in placing Leeann in the least-restrictive
environment and in a facility providing anything less than 24-
hour supervision. This Court would be hard-pressed to
conclude that a placement made in accordance with and in
reliance on the recommendations of a client's treating
physician was in bad faith. Because the petitioners provided
unrefuted evidence that they acted in "good faith" in
following DHR's APS manual and Dr. Thomas's recommendation in
choosing Leeann's placement, there is no remaining question of
17
1180834
material fact as to the petitioners' entitlement to statutory
immunity under § 38-9-11.6
Conclusion
Based on the foregoing, the petitioners have established
that they are entitled to statutory immunity; they thus had a
clear legal right to a summary judgment in their favor on that
ground. The trial court is accordingly directed to vacate its
order denying the petitioners' motion for a summary judgment
and to enter a summary judgment in the petitioners' favor.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Wise, Bryan, Sellers, Mendheim,
and Stewart, JJ., concur.
Mitchell, J., concurs specially.
6Because we hold that the petitioners are entitled to
statutory
immunity,
we
pretermit
discussion
of
the
petitioners' remaining claims. See Favorite Market Store v.
Waldrop, 924 So. 2d 719, 723 (Ala. Civ. App. 2005).
18
1180834
MITCHELL, Justice (concurring specially).
I concur with the majority opinion and write specially to
explain my view of the following statement in the opinion:
"Because the language of § 38-9-11 is 'plain and
unambiguous,' there is no need either to interpret
the Code section or to resort to the in pari materia
rule of statutory construction. See Deutsche Bank
Nat'l Tr. Co. v. Walker Cty., [Ms. 1160926, June 28,
2019] ___ So. 3d ___, ___ (Ala. 2019) ('If the
language of a statute is not "plain" or is ambiguous,
then –– and only then –– may a court construe or
interpret
it
to
determine
the
legislature's
intent.')."
___ So. 3d at ___. I understand this statement to mean that
when a statute is ambiguous –– i.e., its plain meaning in its
appropriate context is not clear –– it may be necessary to
apply appropriate canons of statutory interpretation. See
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation
of Legal
Texts
at
53, "Interpretation
Principle" (Thomson/West 2012).
19 | September 4, 2020 |
9f2bc2cd-1a14-48ba-8c53-a65e249cc688 | Alabama State Bar v. Steven John Giardini | N/A | 1180248 | 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
September 4, 2020
1180248
Alabama State Bar v. Steven John Giardini (Appeal from the Disciplinary Board of
the Alabama State Bar (ASB: 2018-821)).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on September 4, 2020:
Application Overruled. No Opinion. Shaw, J. - Parker, C.J., and Bolin, Wise, and Bryan, JJ.,
concur. Sellers, Mendheim, and Mitchell, JJ., dissent. Stewart, J., recuses herself.
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 May 8, 2020:
Reversed And Remanded. Shaw, J. - Parker, C.J., and Wise, and Bryan, JJ., concur. Bolin
and Shaw, JJ., concur specially. Mitchell, J., concurs in the result. Sellers and Mendheim, JJ.,
dissent. 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 4th day of September, 2020.
Clerk, Supreme Court of Alabama | September 4, 2020 |
2aa0e5e3-c20c-45e3-8913-1104e9b91b1d | Ex parte Advanced Disposal Services South, LLC | N/A | 1190148 | Alabama | Alabama Supreme Court | Rel: September 18, 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
SPECIAL TERM, 2020
____________________
1190148
____________________
Ex parte Advanced Disposal Services South, LLC; Advanced
Disposal Services Alabama Holdings, LLC; Advanced Disposal
Services, Inc.; Tallassee Waste Disposal Center, Inc.; and
Stone's Throw Landfill, LLC
PETITION FOR WRIT OF MANDAMUS
(In re: Jerry Tarver, Sr.
v.
Advanced Disposal Services South, LLC, et al.)
(Macon Circuit Court, CV-17-900076)
BRYAN, Justice.
1190148
Advanced Disposal Services South, LLC, Advanced Disposal
Services Alabama Holdings, LLC, Advanced Disposal Services,
Inc., Tallassee Waste Disposal Center, Inc., and
Stone's Throw
Landfill, LLC (hereinafter referred to collectively as
"Advanced Disposal"),1 petition this Court for a writ of
mandamus ordering the Macon Circuit Court ("the trial court")
to dismiss, pursuant to Rule 19(b), Ala. R. Civ. P., the
action filed by Jerry Tarver, Sr., because, they say, the
action cannot proceed in the absence of the City of Tallassee
("the City") as a party. We deny the petition.
Factual and Procedural Background
This is the second time these parties have appeared
before this Court. In Ex parte Advanced Disposal Services
South, LLC, 280 So. 3d 356 (Ala. 2018), Advanced Disposal
sought a writ of mandamus based on the trial court's refusal
to dismiss Tarver's action against Advanced Disposal on the
ground that Tarver failed to join the City as a necessary and
indispensable party pursuant to Rule 19, Ala. R. Civ. P. We
1The materials before us on this petition for a writ of
mandamus do not differentiate among these various entities or
describe their respective roles, grouping them all together as
"Advanced Disposal." We have done the same.
2
1190148
summarized the allegations of fact in Tarver's original
complaint and the pertinent procedural history as follows:
"The City owns and operates a sewer and
stabilization pond ('the stabilization pond'),
which, as of July 1, 2016, accepted and treated
waste from 1,782 residential customers and 18
commercial customers. Advanced Disposal entered into
an 'Agreement for Acceptance and Treatment of
Leachate' with the City ('the agreement') in which
the City agreed to accept and treat, for a fee,
leachate from Advanced Disposal's landfill. The
agreement defines leachate as 'any liquid, including
any soluble, suspended or miscible components in the
liquid, that has percolated through or emerged at
the
Landfill
from
solid
waste
other
than
construction/demolition waste and/or rubbish.' The
agreement also states that '[t]itle to and risk of
loss with respect to the leachate shall pass from
[Advanced Disposal] to [the] City at such time as
the leachate is delivered to the City's facility and
accepted by the City.' Finally, the agreement
includes
indemnity
clauses
indemnifying
both
Advanced Disposal and the City. Specifically, the
agreement provides that Advanced Disposal must
'defend, indemnify and hold the City harmless from
any and all liens, claims, judgments, liability,
causes of action of any type or nature, whether in
contract or in tort and whether legal or equitable
... arising from, related to and/or concerning the
execution of this Agreement.' The City agreed to
indemnify Advanced Disposal only where the damage
alleged is 'caused by the negligent acts of the City
during
the
term
of
this
Agreement
or
any
misrepresentation by the City or breach of this
Agreement.'
"After the City accepts title to the leachate,
it treats the leachate with chlorine at its
stabilization pond. The City then discharges the
effluent into the Tallapoosa River ('the river')
pursuant
to
a
National
Pollutant
Discharge
3
1190148
Elimination System Permit ('the NPDES permit'). The
effluent mixes with the river water, which flows
several miles downstream to the intake point for the
Utilities Board of Tuskegee ('the utilities board'),
which treats the river water with chlorine and uses
other methods to prepare the water for consumption
by its consumers, including the plaintiff, Jerry
Tarver, Sr.
"In
May
2017, Tarver sued Advanced
Disposal, the
utilities board, and fictitiously named defendants
in the Macon Circuit Court, seeking monetary damages
as well as injunctive relief for exposure to
allegedly contaminated water that had been illegally
'discharged' into the river and ultimately sold by
the
utilities
board
for
consumption
by
its
customers. The gist of the action can be gathered
from the 'overview' portion of the complaint, which
states, in relevant part:
"'2. As a result of the negligent,
unauthorized, unpermitted, and illegal
discharging
of
waste
products
and
hazardous
chemicals
and
compounds
into
the
Tallapoosa
River, the water treatment facilities in
Tuskegee
and Macon County have been
providing polluted water to [Tarver] for
drinking,
cooking,
bathing,
and
...
everyday use. Instead of properly treating
the water from the Tallapoosa River, the
water
treatment
facilities
made
the
condition of the water worse.'
"(Emphasis added.) According to the complaint, both
the City and the utilities board use chlorine to
treat
the
leachate
and
the
river
water,
respectively, and, when the chlorine interacts with
leachate or polluted river water, it produces a
number
of
harmful
chemicals
referred
to
as
by-products with known short-term and long-term
health effects –- the most prevalent of those
by-products being haloacetic acids ('HAAs') and
total trihalomethanes ('TTHMs'). As for Advanced
4
1190148
Disposal, the complaint alleges that Advanced
Disposal unlawfully discharges its leachate into the
City's stabilization pond, knowing that the leachate
cannot be properly treated before the resulting
effluent is discharged into the river. Tarver also
alleges
that
Advanced
Disposal
discharges
'pollutants' into various creeks and tributaries
flowing into the river in violation of its
storm-water discharge permit."
280 So. 3d at 358-59.
Advanced Disposal moved the trial court to dismiss the
action pursuant to Rule 12(b)(7), Ala. R. Civ. P., arguing
that the City was a necessary and indispensable party pursuant
to Rule 19. The trial court denied the motion, and Advanced
Disposal sought mandamus review of that decision. After
recognizing that "'Rule 19 ... provides a two-step process for
the trial court to follow in determining whether a party is
necessary or indispensable,'" Advanced Disposal, 280 So.
3d
at
360 (quoting Holland v. City of Alabaster, 566 So. 2d 224, 226
(Ala. 1990)), we first considered whether the City was a
necessary party under Rule 19(a), Ala. R. Civ. P. –- the first
step in the two-step process, which requires consideration of
whether the absent party is a party "who should be joined if
feasible." 280 So. 3d at 361. A majority of this Court agreed
that the City was a necessary party under Rule 19(a). First,
based on Tarver's request for an "injunction 'precluding the
5
1190148
Defendants from further destruction of the [river] and
[Tarver's] water supply,'" the Court held that "the City is a
necessary party under Rule 19(a)(1) because, in its absence,
Tarver cannot be accorded complete relief." 280 So. 3d at 362.
The Court reasoned that, because the leachate constituted only
a small portion of the total amount of waste treated in the
stabilization pond, "enjoining the delivery of leachate to
the
pond will have little, if any, impact upon the nature or
volume of the effluent the City ultimately discharges into the
river." Id. Additionally, the Court
"further conclude[d] that the City is a necessary
party under Rule 19(a)(2)[, Ala. R. Civ. P.,]
because, the City, by entering into the agreement
pursuant to which it takes title to the leachate and
treats the leachate, has a legally protected
interest relating to the subject matter of this case
that will be affected by the outcome of Tarver's
claims. See Liberty National Life Ins. Co. v.
University of Alabama Health Servs. Found., P.C.,
881 So. 2d 1013, 1023 (Ala. 2003) (noting that this
Court has recognized that 'an interest created by a
contract
is
a
legally
protected
interest').
Accordingly, the City is included within those
'persons to be joined if feasible' under Rule
19(a)."
280 So. 3d at 363.
However, we did not determine whether joinder of the
City, which is located in Elmore County, was feasible, nor did
we apply the second step of the two-step process provided for
6
1190148
by Rule 19. Specifically, we did not consider whether, if
joinder of the City was not feasible, "in equity and good
conscience the action should proceed among the parties before
it, or should be dismissed, the [City] being thus regarded as
indispensable." Rule 19(b), Ala. R. Civ. P. We stated:
"[W]e cannot determine at this juncture whether [the
City's] joinder is feasible, insofar as the City,
once joined, might object to venue in Macon County.
Accordingly, we issue the writ of mandamus and
direct the trial court to join the City as a
necessary party under Rule 19(a). If the City, once
joined, objects to venue, Rule 19(a) requires the
trial court to dismiss it from the action and then
proceed under Rule 19(b) to determine, in accordance
with the stated factors, 'whether in equity and good
conscience the action should proceed among the
parties before it, or should be dismissed, the
[City] being thus regarded as indispensable."
280 So. 3d at 363 (footnote omitted).
We issued an opinion denying Tarver's application for
rehearing on December 14, 2018; while addressing several of
Tarver's objections to the decision on original submission,
the Court also reiterated that it "made no determination
whether joinder would be feasible or whether the City was an
indispensable party." 280 So. 3d at 366 (opinion on
application for rehearing).
Proceedings in the Trial Court Following Advanced Disposal
7
1190148
Following our decision in Advanced Disposal, the trial
court entered an order joining the City as a necessary party
to Tarver's action against Advanced Disposal. The City filed
an objection to venue in Macon County and asked the trial
court to dismiss the City from the action or, in the
alternative, to transfer the action to Elmore County. In
light of the City's objection to venue in Macon County, which
objection all parties agreed was valid, Advanced Disposal
filed a motion to declare the City an indispensable party and
to dismiss the action pursuant to Rule 19(b) or, in the
alternative, to transfer the action to Elmore County. The
Utilities Board of Tuskegee ("the utilities board") joined
Advanced Disposal's motion to dismiss or, alternatively, for
a change of venue.
After the motions to dismiss were filed, Tarver filed a
second amended complaint and a response to the pending
motions.2 Tarver's second amended complaint did not name the
City as a party, despite this Court's decision in Advanced
Disposal and the trial court's order joining the City as a
2Tarver's first amended complaint was filed on July 27,
2018, while Advanced Disposal's first petition for a writ of
mandamus was pending in this Court.
8
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necessary party. In the second amended complaint, Tarver
modified his allegations of fact, the claims he asserted, and
the injunctive relief he sought against the defendants –-
Advanced Disposal, the utilities board, and Macon County Water
Authority ("MCWA")3 (hereinafter referred to collectively as
"the defendants"). In relevant part, Tarver alleged that he
had "consumed, or otherwise has been exposed to, water
contaminated with carcinogens that have ... been released or
discharged into the Tallapoosa River, which is the source of
the water ultimately consumed by and affecting" him; that "the
contamination of the Tallapoosa River complained of in this
complaint is a result of the wrongful release and discharging
by [Advanced Disposal] of industrial waste leachate generated
by Stone's Throw landfill"; that the "[i]ndustrial leachate
generated by [Advanced Disposal] is very different from the
other waste and wastewater received by the Tallassee Sewer and
Stabilization Pond [(referred to hereinafter as 'the City's
stabilization pond']; that [Advanced Disposal]'s industrial
3It appears that MCWA was first added as a defendant in
this action in Tarver's first amended complaint, filed on July
27, 2018. Like the utilities board, MCWA treats water from the
Tallapoosa River, after the water is first treated and
discharged by the City, and then sells that water to consumers
in Macon County.
9
1190148
leachate contains "hazardous substances not present in the
'municipal waste deposited into the City's [stabilization]
pond by its other customers"; that Advanced Disposal "has
discharged into the City's [stabilization] pond leachate in
such quantities and of such quality, including both
concentration and constituents, incompatible with the known
technology of the [City's stabilization] pond"; that Advanced
Disposal knew that the City's stabilization pond was
"incapable of treating or filtering [Advanced Disposal]'s
leachate"; that Advanced Disposal "is the only source of
leachate discharged into the City's [stabilization] pond";
that Advanced Disposal's "leachate, even as a
small percentage
of the total inflow into the City's [stabilization] pond,
results in a pass through of known carcinogens into the
Tallapoosa River"; that, "[d]ue to the concentration of
[Advanced Disposal]'s leachate and the constituents contained
therein, the only practical and viable way to prevent future
contamination of the Tallapoosa River is to require [Advanced
Disposal] to modify by pretreatment or otherwise the leachate
it draws from its landfill." Petition, Exhibit D, at 2-4.
Tarver sought an injunction "requiring defendants to
cease and desist any further pollution of [Tarver's] water
10
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supply, and to remove their chemicals and toxins from the
water supply of [Tarver]." Specifically, Tarver sought,
"[a]mong
other
things,
...
an
injunction requir[ing]
[Advanced
Disposal], by pretreatment or otherwise, to remedy the
excessive quantities and hazardous quality of the leachate
generated by its Stone's Throw landfill." Tarver included in
his second amended complaint what appears to be a statement of
his "reasons for nonjoinder" of the City pursuant to Rule
19(c), Ala. R. Civ. P.,4 stating:
"[Tarver] believes and alleges that the ...
defendants named herein are responsible for the
wrongs alleged, and that the City ... has done what
it can to cope with the problems caused by [Advanced
Disposal]'s dumping of its leachate into the City's
[stabilization] pond. ... Tarver believes that
[Advanced Disposal] and the other named defendants
are the only parties who can remedy the wrongs
alleged. ... Tarver therefore makes no claims
against the City."
In his response to the motions to dismiss for failure to
join an indispensable party, Tarver argued that the
allegations in his second amended complaint should be
considered for purposes of determining whether the City was an
4Rule 19(c) provides: "Pleading Reasons for Nonjoinder.
A pleading asserting a claim for relief shall state the names,
if known to the pleader, of any persons as described in
subdivision (a)(1)-(2) hereof who are not joined, and the
reasons why they are not joined."
11
1190148
indispensable party under Rule 19(b) and that, since filing
his original complaint, he had had the opportunity to conduct
additional discovery and investigation, which allegedly
confirmed that, "although [Advanced Disposal]'s leachate is
indeed only a small percentage of the total volume of the
[City's stabilization] pond's influent, it is responsible for
100% of the outgoing carcinogenic contaminants that pollute
the Tallapoosa River." Thus, Tarver said, he amended his
complaint to "clarify"
"(1) that the evidence is now clear that it is the
quantity,
composition
and
concentration
of
industrial leachate being dumped into the City's
[stabilization] pond, and not any other waste from
any other source, that is responsible for the
contamination of the Tallapoosa River and ...
Tarver's injuries; (2) that the evidence is now
clear that the only source of leachate is [Advanced
Disposal]; (3) that the only viable remedy for the
contamination of the Tallapoosa River is for
[Advanced
Disposal]
...
(by
pretreatment
or
otherwise) to limit the quantity, composition and
concentration of the leachate it generates for
hauling to the City's [stabilization] pond, and (4)
that ... Tarver seeks no relief as to any other
portion
of
the
City's
[stabilization]
pond's
influent or effluent ... and therefore makes no
claims against the City."
The trial court conducted a hearing on the pending
motions on September 17, 2019. On October 8, 2019, the trial
court entered an order (1) dismissing the City from the action
12
1190148
based on improper venue as to the City; (2) denying Advanced
Disposal's motion to dismiss Tarver's action, finding that the
City was not an indispensable party under Rule 19(b); and (3)
denying Advanced Disposal's request for alternative relief,
holding that Tarver's action would proceed in the trial court.
Advanced Disposal timely petitioned this Court for a writ of
mandamus.
Standard of Review
It is well settled that a writ of mandamus is an
extraordinary remedy and that it is due to be issued only when
the party petitioning for the writ has demonstrated
"a clear legal right to the order sought, an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so, a lack of another
adequate remedy, and a proper invocation of the
jurisdiction of the court. Martin v. Loeb & Company,
Inc., 349 So. 2d 9, 10 (Ala. 1977). Mandamus is not
a substitute for appeal. State v. Cannon, 369 So. 2d
32, 33 (Ala. 1979)."
Ross v. Luton, 456 So. 2d 249, 254 (Ala. 1984).
In
determining whether
Advanced
Disposal
has
demonstrated
a clear legal right to the relief it seeks –- an order
determining that the City is an indispensable party to
Tarver's action --
Advanced Disposal must demonstrate that the
trial court exceeded its discretion in concluding that the
13
1190148
City was not an indispensable party and that the action could
proceed "in equity and good conscience" without the City. See
Melton v. Harbor Pointe, LLC, 57 So. 3d 695, 700 (Ala. 2010).
"There is no prescribed formula to be mechanically applied in
every case to determine whether a party is an indispensable
party or merely a proper or necessary one. This is a question
to be decided in the context of the particular case." J.R.
McClenney & Son, Inc. v. Reimer, 435 So. 2d 50, 52 (Ala. 1983)
(citing Provident Tradesmens Bank & Trust Co. v. Patterson,
390 U.S. 102 (1968)).
Analysis
In Advanced Disposal, supra, a majority of this Court
held that the City was a necessary party under Rule 19(a);
although that determination was made based primarily on the
allegations in Tarver's original complaint, and although
Tarver's original complaint has been superseded and replaced
by Tarver's second amended complaint,5 we will assume, as the
5"An amended complaint supersedes the previously filed
complaint and becomes the operative pleading, unless it
subsequently is modified." Ex parte Puccio, 923 So. 2d 1069,
1072 (Ala. 2005) (citing Grayson v. Hanson, 843 So. 2d 146
(Ala. 2002)). Advanced Disposal does not argue, and does not
cite any authority indicating, that the trial court could not
consider the allegations in Tarver's second amended complaint
in determining whether the City is an indispensable party
14
1190148
trial court appears to have done below, that the City is still
a necessary party to this action under Rule 19(a).
"If the court determines that the absentee is a person
who should be joined under Rule 19(a), '[r]ule 19(b) sets
forth four factors to consider in determining whether an
action should proceed in the absence of such a person.'" Ross,
456 So. 2d at 256 (quoting Mead Corp. v. City of Birmingham,
350 So. 2d 419, 421 (Ala. 1977)). Rule 19(b) provides:
"(b)
Determination
by
Court
Whenever
Joinder
Not
Feasible. If a person as described in subdivision
(a)(1)-(2) hereof cannot be made a party, the court
shall
determine
whether
in
equity
and
good
conscience the action should proceed among the
parties before it, or should be dismissed, the
absent person being thus regarded as indispensable.
The factors to be considered by the court include:
first, to what extent a judgment rendered in the
person's absence might be prejudicial to the person
or those already parties; second, the extent to
which, by protective provisions in the judgment, by
the shaping of relief, or other measures, the
prejudice can be lessened or avoided; third, whether
a judgment rendered in the person's absence will be
adequate; fourth, whether the plaintiff will have an
adequate remedy if the action is dismissed for
nonjoinder."
Advanced Disposal argues that, despite Tarver's best
effort to diminish the City's role in the underlying dispute,
pursuant to Rule 19(b).
15
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it is still undisputed that Advanced Disposal delivers its
leachate to the City's stabilization pond where the leachate
is treated and "chemically altered" before it is discharged
into the Tallapoosa River ("the river") where it is then
collected and treated again by the utilities board and MCWA
and sold to individuals in Macon County, such as Tarver.
Advanced Disposal further argues that, because the City's
National Pollutant Discharge Elimination System Permit ("the
NPDES permit") dictates the quality and quantity of effluent
it can discharge into the river, the City is "directly in the
center of the case [and is] the proximate cause of any alleged
pollutant discharged into the river." Petition at 15.
Advanced Disposal contends that each of the Rule 19(b) factors
demonstrates that the City is an indispensable party to
Tarver's action against Advanced Disposal and that the action
cannot, in equity and good conscience, proceed without the
City. We consider each Rule 19(b) factor in turn.
1. Prejudice
As to the first Rule 19(b) factor, which considers the
extent to which a judgment rendered in the City's absence
would be prejudicial to the City or to those already parties,
Advanced Disposal contends that "both [it] and the City face
16
1190148
significant risk of prejudice by allowing this case to proceed
without the City." Petition at 21-22. Advanced Disposal
contends that it will be prejudiced in the City's absence
because, given that the City takes "title, risk of loss, and
dominion" of the leachate once Advanced Disposal delivers the
leachate to the City's stabilization pond, it "exposes
Advanced Disposal to the risk of being found responsible for
the ownership, treatment, and discharge of a waste stream that
it does not own, treat, or discharge." Petition at 18.
Advanced Disposal cites Whyham v. Piper Aircraft Corp., 96
F.R.D. 557 (M.D. Pa. 1982), in support of its position.
In
Whyham,
the
plaintiff
sued
the
defendant,
a
Pennsylvania company that designed and manufactured an
aircraft, asserting strict-liability claims after an aircraft
manufactured by the defendant crashed off the coast of
Scotland. The defendant moved to dismiss the action based on
the plaintiff's failure to join as indispensable parties a
Scottish company that owned the aircraft at the time of the
crash and another Scottish company that had maintained and
inspected the aircraft. The United States District Court for
the Middle District of Pennsylvania found that the Scottish
companies were necessary parties, that the absent Scottish
17
1190148
companies could not be joined to the action, and that the
Scottish companies were indispensable parties under Rule 19,
Fed. R. Civ. P., which is nearly identical to Alabama's Rule
19.6
Regarding the application of Rule 19(b), the Whyham court
found that both the defendant and the Scottish companies would
be prejudiced by the Scottish companies' absence from the
litigation. Specifically with regard to the defendant, the
court found that "a judgment entered absent [the Scottish
companies']
presence
subjects
Defendant to
being
judged
solely
responsible for a liability it possibly shares"; that the
defendant could not adequately present its defense in the
absence of the Scottish companies; and that the defendant
would be required to file a second action for indemnity or
contribution against the Scottish companies if the defendant
6See Committee Comments to Rule 19, Ala. R. Civ. P.
(noting that Alabama's Rule 19 "is identical to Federal Rule
19 except for elimination of language dealing with problems
related to service of process and subject matter jurisdiction
with which we are not concerned in state practice"). "We note
that federal decisions construing the Federal Rules of Civil
Procedure are persuasive authority in construing the Alabama
Rules of Civil Procedure because the Alabama Rules were
patterned after the Federal Rules." Ex parte Novus Utils.,
Inc., 85 So. 3d 988, 996 (Ala. 2011) (citing Borders v. City
of Huntsville, 875 So. 2d 1168 (Ala. 2003)).
18
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was found liable, which would subject the defendant to
"unnecessary waste of time, efforts, and costs of a second
proceeding." Whyham, 96 F.R.D. at 562.
Although parts of Whyham have been discredited, see,
e.g., Angst v. Royal Maccabees Life Ins. Co., 77 F.3d 701, 705
(3d Cir. 1996), and Incubadora Mexicana, SA de CV v. Zoetis,
Inc., 310 F.R.D. 166, 171 (E.D. Pa. 2015), Whyham does raise
important considerations for evaluating Rule 19(b) criteria.
In Provident Tradesmens, supra, the United States Supreme
Court held that "Rule 19(b) suggests four 'interests' that
must be examined in each case to determine whether, in equity
and good conscience, the court should proceed without a party
whose absence from the litigation is compelled." 390 U.S. at
109. One of the "interests" is that "the defendant may
properly wish to avoid multiple litigation, or inconsistent
relief, or sole responsibility for a liability he shares with
another." 390 U.S. at 110. Although Advanced Disposal's
interest
in
avoiding
multiple
litigation,
inconsistent
relief,
and sole responsibility for liability it potentially shares
with the City must be properly considered, we find Whyham's
application limited in light of decisions by the United States
Supreme Court and the United States Courts of Appeals.
19
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In Temple v. Synthes Corp., 498 U.S. 5, 7 (1990), the
United States Supreme Court unequivocally held that it was
error for a lower court to label a joint tortfeasor an
indispensable party under Rule 19(b) based solely on
considerations of judicial economy and protecting the
defendant from the prejudice of multiple litigation. The
Court
acknowledged
the interest
in
limiting
multiple
litigation, but it also noted that "[i]t has long been the
rule that it is not necessary for all joint tortfeasors to be
named as defendants in a single lawsuit." 498 U.S. at 7.
Additionally, to the extent that Advanced Disposal argues that
"[t]he risk in this case is not that Advanced Disposal will
shoulder a liability it 'possibly shares' with the City, but
that it will face a liability it simply doesn't have at all,"
Petition at 20, we are unpersuaded by this claim of
"prejudice." Although we agree that, from a tactical
standpoint, Advanced Disposal's interests might be better
served if the City, as a potential joint tortfeasor, were
present in the action, if Advanced Disposal finds itself
facing a liability it purportedly does not have at all, it
would be because of a failure of its defense, not the absence
of the City from the litigation. Advanced Disposal has not
20
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demonstrated how the City's absence will hinder its ability to
present its defense, which appears to be that the City itself
is responsible for Tarver's injuries; Advanced Disposal has
posited no argument as to why it will be unable to cast the
blame entirely on the City if the City is not present in the
action.
Additionally,
although
Advanced
Disposal
generally
contends that the absence of the City "virtually guarantees
multiple litigation and potentially inconsistent relief," it
makes no effort to expound on that proposition. To the extent
Advanced Disposal is referring to a potential action for
indemnity against the City should it be found liable to
Tarver, it is widely accepted that "potential indemnitors have
never been considered indispensable parties, or even parties
whose joinder is required if feasible." Pasco Int'l (London)
Ltd. v. Stenograph Corp., 637 F.2d 496, 503 (7th Cir. 1980)
(citing 3A Moore's Federal Practice § 19.07-1(2.-2), at n.32
(2d ed. 1979)).
Further, to the extent Advanced Disposal argues that it
will be prejudiced by the City's absence because it could be
found
"responsible for
the
ownership,
treatment,
and
discharge
of a waste stream that it does not own, treat, or discharge,"
21
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Petition at 18, Tarver seeks damages from Advanced Disposal
based on its knowing delivery of leachate to the City in
quantities and quality that Advanced Disposal allegedly knew
the City's stabilization pond could not properly treat and an
injunction requiring Advanced Disposal to pretreat its
leachate or to otherwise deliver the leachate to the City in
a form that the City's stabilization pond could properly
treat; these requests for relief look to remedy Advanced
Disposal's actions before "title" of the leachate passes to
the City.
Advanced Disposal also contends that the City will be
prejudiced by the City's absence in the underlying action
because, it says, the City's property –- i.e., the leachate –-
and its contractual rights will be "implicated." Petition at
20. It argues that "Alabama courts have time and again held
that parties claiming an interest in an action must be
joined." Petition at 21. Our consideration of prejudice to
the City under the first factor of Rule 19(b) is closely
related to our conclusion in Advanced Disposal, supra, that
the City was a necessary party under Rule 19(a)(2) because the
City "has a legally protected interest relating to the subject
matter of this case that will be affected by the outcome of
22
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Tarver's claims." 280 So. 3d at 363. Although the interests
at stake are similar, and we see no need to revisit our
conclusion in Advanced Disposal, our conclusion that the City
has a legally protected interest in the subject matter of this
case is not conclusive as to the question presented at this
stage of the proceeding: Would the absence of the City from
this action so prejudice its legally protected interest that,
in equity and good conscience, this action simply cannot
proceed without the City? Because a dismissal of Tarver's
action is at stake, Rule 19(b) requires a closer examination
of exactly what "interest" of the City is at stake and whether
the interest is so jeopardized by the City's absence that this
action cannot proceed in the City's absence. See 7 Charles
Alan Wright et al., Federal Practice and Procedure § 1604 (4th
ed. 2019) ("Although there is significant coincidence between
the two provisions, it is important to note that the
protection against prejudice accorded by Rule 19(a) is not the
same as that provided by Rule 19(b). The two provisions have
different purposes. Rule 19(a) reflects an affirmative policy
of bringing all interested persons before the court, whereas
the object of Rule 19(b) is to determine whether it is
23
1190148
possible to go forward with an action despite the nonjoinder
of someone whose presence is desirable but not feasible.").
However, in its petition, Advanced Disposal does not
attempt to define the precise interest at stake or the
ramifications for the City if it remains absent from this
action in light of the particular allegations in Tarver's
second amended complaint and the particular relief he seeks.
The cases Advanced Disposal cites to support its argument that
any party with an "interest" in litigation is indispensable to
the action are distinguishable from the present case. For
example, Albritton v. Dawkins, 19 So. 3d 241 (Ala. Civ. App.
2009), concerned a dispute over the plaintiffs' rights to a
piece of real property, but the plaintiffs did not join in the
action each individual who owned an interest in the real
property; thus, because a determination of the
issue presented
to the trial court would impact the ownership interest of
several absent parties, the Court of Civil Appeals held that
those parties were "necessary and indispensable" to the
action. Clearly, the present case is distinguishable because
Tarver is not attempting to "jeopardize" or otherwise impact
the City's "ownership interest" in the leachate.
24
1190148
Regarding the City's contract rights that will be
"implicated," Advanced Disposal relies on the mere existence
of a contract between Advanced Disposal and the City in which
the City agreed to accept and treat the leachate for a fee.
Although Advanced Disposal satisfied this Court that the
existence of that contract was sufficient to require the
City's joinder if feasible, it has not met its burden of
demonstrating that the rights of the City will be so unfairly
prejudiced in its absence that, in equity and good conscience,
this action cannot proceed without the City as a participant.
Again, we find the cases Advanced Disposal cites to support
its argument distinguishable. For example, Advanced Disposal
cites Lomayaktewa v. Hathaway, 520 F.2d 1324, 1325 (9th Cir.
1975), for the proposition that "[n]o procedural principle is
more deeply imbedded in the common law than that, in an action
to set aside a lease or a contract, all parties who may be
affected
by
the
determination
of
the
action
are
indispensable." (Emphasis added.) We agree with that
statement of law, but it is clearly inapplicable in this case
because, unlike the circumstances in Lomayaktewa, Tarver, the
plaintiff, is not attempting to set aside a contract between
Advanced Disposal, the defendant, and an absent party, the
25
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City. See also National Union Fire Ins. Co. of Pittsburgh v.
Rite Aid of South Carolina, Inc., 210 F.3d 246, 252 (4th Cir.
2000) (holding, in an action to determine an insurer's
obligation to its insured, a subsidiary, under the terms of an
insurance policy that was negotiated and entered into by the
subsidiary's parent company and in which the parent company's
conduct was at issue, that the parent company was an
indispensable party to the action and stating that a
"'contracting party is the paradigm of an indispensable
party'" (quoting Travelers Indem. Co. v. Household Int'l,
Inc., 775 F. Supp. 518, 527 (D. Conn. 1991))); and County
Sanitation Dist. No. 2 of Los Angeles Cnty. v. Inland
Container Corp., 803 F.2d 1074, 1075-76, 1078 (9th Cir. 1986)
(holding, in an action to enjoin the defendant from acting in
a manner inconsistent with the terms of a contract between the
plaintiff and an absent party, which the absent party
allegedly breached for the benefit of the defendant, that the
absent party was indispensable). In both Rite Aid and Inland
Container, the terms of the contract and the absent parties'
obligations under the contract were at the center of the
disputes.
26
1190148
Advanced Disposal's bare assertion that the City would be
prejudiced because its contract rights were implicated is
insufficient to demonstrate that prejudice exists to the
extent that it should weigh in favor of the dismissal of
Tarver's action in the absence of the City. Even if we assume
that the leachate had value and that the City's obtainment of
title over the leachate was an interest the City wanted to
protect, Tarver's request for relief from Advanced Disposal
would not have an affect on the City's "interest" in the
leachate. Tarver is not seeking to "deprive" the City of its
interest in the leachate or to stop Advanced Disposal's
delivery of leachate to the City; he is simply asking the
trial court to order Advanced Disposal to pretreat the
leachate before it is delivered to the City –- and, thus,
before the City gains title to the leachate or any "rights" to
it under the contract -- so that the City's stabilization pond
can adequately treat the leachate before it is released into
the river. At this juncture, there is nothing indicating that
Tarver's requested injunction would affect the City's right to
receive, or be paid for, the leachate.
Finally, we must give some weight to the City's failure
to participate in the action when given the opportunity to do
27
1190148
so. The City's decision not to participate weighs in favor of
a conclusion that the City itself does not believe its absence
from the proceeding would result in any prejudice to it. Cf.
Dainippon Screen Mfg. Co. v. CFMT, Inc., 142 F.3d 1266, 1272
(Fed. Cir. 1998) ("Moreover, to the extent it would be
prejudiced if the suit were to proceed in its absence, [the
absent party] may intervene in the suit, and this 'opportunity
to intervene may be considered in calculating [any]
prejudicial effect.' Takeda v. Northwestern Nat'l Life Ins.
Co., 765 F.2d 815, 820 n.5 (9th Cir. 1985).").
Accordingly, considering the possibility of prejudice to
both Advanced Disposal and the City, we cannot conclude that
the potential for prejudice is so great or so certain that it
weighs in favor of a finding that the action cannot proceed,
in equity and good conscience, without the City.
2. Potential to Lessen Prejudice
The second Rule 19(b) factor requires consideration of
"the extent to which, by protective provisions in the
judgment, by the shaping of relief, or other measures, the
prejudice can be lessened or avoided." Advanced Disposal
argues that it is "unaware of any protective measures by which
'prejudice can be lessened or avoided' in the City's absence"
28
1190148
and that, therefore, the second Rule 19(b) factor weighs in
favor of finding that the City is indispensable. See Republic
of Philippines v. Pimentel, 553 U.S. 851, 865, 869, 870 (2008)
(after finding the existence of "substantial prejudice" to
the
absent parties "if the action were to proceed in their
absence," the Court stated that "[n]o alternative remedies or
forms of relief have been proposed to us or appear to be
available" and concluded that this factor weighed in favor of
finding the absent parties indispensable under Rule 19(b)).
Tarver, on the other hand, argues that, because there is no
risk of prejudice to either Advanced Disposal or the City,
there is no need for the Court to consider methods to lessen
or avoid prejudice if the action were allowed to proceed in
the City's absence.
However, because of the polarity of the parties'
positions, they have overlooked some middle ground. As noted
above,
avoiding
multiple
litigation
and
being
held
responsible
for a liability it potentially shares with the City are valid
concerns on Advanced Disposal's part. However, the United
States Courts of Appeals have held that impleader under Rule
14, Fed. R. Civ. P., provides an option to a defendant to
lessen or avoid any potential for prejudice by a party's
29
1190148
absence from a proceeding. For example, in Pasco, supra, the
United States Court of Appeals for the Seventh Circuit
considered whether an absent party, Croxford, who was the
agent of the defendant, Stenograph, and a potential
coconspirator of Stenograph's, was an indispensable party to
the plaintiff's action against Stenograph alleging breach of
contract and tort claims. In discussing the potential
prejudice to Stenograph, the defendant, in the absence of
Croxford, its agent, as a party to the action, the court
stated:
"Quite apart from any prejudice to Croxford,
Stenograph argues that it will be prejudiced in two
ways by Croxford's absence from this suit. The first
alleged source of prejudice concerns the possibility
of an inconsistent result in any later litigation
between Stenograph and Croxford. If Stenograph is
found liable here, it may wish to assert a claim for
contribution or indemnity against Croxford. But,
potential indemnitors have never been considered
indispensable parties, or even parties whose joinder
is required if feasible. 3A Moore's Federal Practice
P 19.07-1(2.-2), at n.32 (2d ed. 1979). The same
situation as to indispensability and joinder applies
to joint tort-feasors subject to a possible right of
contribution. Id., at n.45. Since the liability of
potential indemnitors or joint tort-feasors is
'several,' one of a number of joint tort-feasors or
a tort-feasor with a potential indemnitor may be
sued alone.
"'The defendant, while he may be
entitled to contribution or indemnity,
cannot be subjected to double or multiple
30
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obligations since his liability is several
for the entire amount, and though a verdict
against
him
in
a
later
suit
for
contribution after a verdict against him in
the
tort
suit
may
be
logically
inconsistent, it does not subject him to
inconsistent
obligations....
To
dismiss
the
action on the ground that the absent person
is indispensable ... would be to deny a
principle
(sic)
aspect
of
several
liability.'
"Id. Stenograph can always protect itself from the
possibility of inconsistent verdicts by impleading
Croxford under Rule 14 as a person 'who is or may be
liable to (Stenograph) for all or a part of the
plaintiff's claim.' Fed. R. Civ. P. 14(a). Contrary
to defendant's assertion, this does not use Rule 14
to thwart Rule 19. Rather, the existence of the Rule
14 provisions demonstrates that parties such as
Croxford who may be impleaded under Rule 14 are not
indispensable parties within Rule 19(b). If persons
subject to rights of indemnity or contribution were
always indispensable parties, there would not be a
need for the impleader provisions of Rule 14. See
Willis v. Semmes, Bowen & Semmes, 441 F. Supp. 1235,
1246 (E.D. Va. 1972); 3A Moore's Federal Practice P
19.07-1(2.-2), at 19-145 (2d ed. 1979).
"The second factor under Rule 19(b) provides
independent support for this conclusion. This factor
requires that the district court evaluate
"'the extent to which, by protective
provisions in the judgment, by the shaping
of relief, or other measures, the prejudice
can be lessened or avoided ....'
"Fed. R. Civ. P. 19(b). The Advisory Committee's
Note which was appended when Rule 19 was amended in
1966 indicates that the phrase 'other measures'
includes measures open to the defendant to avoid any
prejudice. 39 F.R.D. 88, 92 (1966). The opportunity
31
1190148
of defendants to implead Croxford under Rule 14
avoids any potential for prejudice to Stenograph
from the possibility of inconsistent judgments."
Pasco Int'l, 637 F.2d at 503–04 (footnotes omitted; emphasis
added).
The Court of Appeals in Pasco also applied the
defendant's ability to implead the absent party as a third-
party defendant under Rule 14 to conclude that the defendant
would not be prejudiced by the potential unavailability of the
absent party's testimony if he was not made a party. The
Court of Appeals stated:
"This repeated application of Rule 14 to this
case means that all persons subject to impleader by
the defendant are not indispensable parties. This
is, however, merely an extension of the settled
doctrine that Rule 19(b) was not intended to require
the joinder of persons subject to impleader under
Rule 14 such as potential indemnitors. Advisory
Committee's Note to Rule 19, 39 F.R.D. 88, 91
(1966)."
Pasco, 637 F.2d at 505 n.20.
Like Rule 14(a), Fed. R. Civ. P., Rule 14(a), Ala. R.
Civ. P., provides a procedure for a defending party, referred
to as the "third-party plaintiff," to bring an action against
"a person not a party to the action who is or may be liable to
the third-party plaintiff for all or part of the plaintiff's
claim against the third-party plaintiff." Further, as to
32
1190148
whether venue in Macon County would be proper if Advanced
Disposal filed an impleader action against the City, Rule
82(c), Ala. R. Civ. P., provides: "Whenever an action has been
commenced in a proper county, additional claims and parties
may be joined, pursuant to Rule[] 14 ..., as ancillary
thereto, without regard to whether that county would be a
proper venue for an independent action on such claims or
against such parties." Thus, it appears that Advanced
Disposal could use third-party practice under the Alabama
Rules of Civil Procedure as a method of reducing any prejudice
it might be subject to by the possibility of multiple
litigation or inconsistent relief.
Although a majority of this Court held in Advanced
Disposal
that
the
possibility
of
Advanced
Disposal's
impleader
of the City under Rule 14 had no bearing on its analysis of
whether the City was a party to be joined if feasible under
Rule 19(a), see Advanced Disposal, 280 So. 3d at 359 n.2, we
conclude that proper analysis of the Rule 19(b) factors
requires consideration of whether Rule 14 can be used to
lessen any potential prejudice to absent or present parties.
See 7 Charles Alan Wright et al., Federal Practice and
Procedure § 1608 (4th ed. 2019) (stating that "absent persons
33
1190148
or those who already are parties should be encouraged to take
steps to avoid the possibility of prejudice," that the use of
impleader is one method for doing so, and concluding: "In
short, the Rule 19(b) notion of equity and good conscience
contemplates that the parties actually before the court are
obliged to pursue any avenues for eliminating the threat of
prejudice.").
Accordingly, we conclude that the
second factor
weighs in favor of concluding that the City is not an
indispensable party.
3. Adequate Judgment
The third Rule 19(b) factor requires consideration of
whether "a judgment rendered in [the City's] absence will be
adequate." Regarding this factor, the United States Supreme
Court, in Provident Tradesmens, stated:
"[T]here remains the interest of the courts and the
public in complete, consistent, and efficient
settlement of controversies. We read [Rule 19(b)'s]
third criterion, whether the judgment issued in the
absence of the nonjoined person will be 'adequate,'
to refer to this public stake in settling disputes
by wholes, whenever possible, for clearly the
plaintiff, who himself chose both the forum and the
parties defendant, will not be heard to complain
about the sufficiency of the relief obtainable
against them."
390 U.S. at 111. See also Republic of Philippines v. Pimentel,
553 U.S. 851, 870-71 (2008) (noting, where two absent foreign
34
1190148
sovereigns asserted a right to certain assets that were the
subject of an interpleader action, that the absent sovereigns
would not be bound by a judgment in favor of the individuals
who were awarded the assets and that, therefore, proceeding in
the absence of the foreign sovereigns "would not further the
public interest in settling the dispute as a whole"); and
Northern Arapaho Tribe v. Harnsberger, 697 F.3d 1272, 1283
(10th Cir. 2012) (holding, in an action by a tribe to
determine whether part of its reservation was
"Indian country"
and, thus, not subject to taxation by the state, that the
action could not proceed in the absence of another tribe that
was a "cotenant" on the same reservation because relief would
not be adequate; a judgment without the "cotenant tribe" would
not completely settle the underlying dispute regarding the
state's power to tax the land at issue because the absent
tribe could force the state to relitigate the issue in a
separate action, which could lead to inconsistent results).
Advanced Disposal argues that "Tarver's entire action
seeks redress for alleged pollution in his water supply, and
he cannot obtain that relief without the City." Petition at
23. It contends that our conclusion regarding the application
of Rule 19(a)(1) in Advanced Disposal –- that, in the absence
35
1190148
of the City, "complete relief [could not] be accorded among
those already parties" -- essentially answers this question.
We disagree. Although Rule 19(a)(1) and the third factor of
Rule 19(b) overlap to some degree, they are not identical. A
majority of this Court in Advanced Disposal held that complete
relief could not be accorded among those already parties
because it appeared, from the facts available at that time,
that Advanced Disposal's contribution of leachate to the
City's stabilization pond was so minimal that Tarver's
requested
injunction
would
not
have
prevented
the
contamination of his water supply. However, at this stage of
the proceeding, and considering the second amended complaint,
we must consider whether the judgment will be adequate --
i.e., whether it will settle the underlying dispute.
Our review of the second amended complaint convinces us
that Tarver can obtain adequate relief in the City's absence.
The controversy involved in this action is the alleged
pollution of Tarver's water supply. The allegations in
Tarver's second amended complaint indicate that Advanced
Disposal is the sole source of leachate in the City's
stabilization pond and that Advanced Disposal's leachate is
the only reason the City's stabilization pond releases harmful
36
1190148
by-products into the river. Thus, if Tarver is awarded his
requested injunction against Advanced Disposal so that
Advanced Disposal is required to pretreat the leachate before
it is delivered to the City, which, according to Tarver, would
allow the City to effectively treat the leachate before it is
released into the river, we fail to see how the injunction
would not settle the controversy at issue –- i.e., prevent
Tarver from being further supplied allegedly polluted water
from the river. Advanced Disposal does not set forth any
argument specifically addressing Tarver's amended request for
injunctive relief –- which would require Advanced Disposal to
pretreat the leachate so that the City's stabilization pond
could adequately treat the leachate –- explaining why such
relief, in light of the above allegations of fact, would not
serve as adequate relief for Tarver, even in the City's
absence.
Advanced Disposal also contends that any judgment in this
action without the City would be inadequate because, whether
Tarver or Advanced Disposal prevails, "it will inevitably lead
to further litigation over the City's liability, if any, for
Tarver's alleged injury." Petition at 24. This subsequent
litigation could involve Advanced Disposal if the City asks
37
1190148
Advanced Disposal to indemnify the City on any claim brought
by Tarver against the City. As noted above, however, the
third factor considers the extent to which a judgment in the
present action settles the controversy at issue, which, in
this case, is Tarver's being provided allegedly polluted water
from the river. Any conclusion that a judgment in this case
would not be adequate based on the possibility that Tarver
could sue the City would be based on speculation, especially
considering that Tarver explicitly stated in his second
amended complaint that he does not believe that any action on
the part of the City can remedy the wrongs alleged in that
complaint. To the extent Tarver could seek monetary damages
from the City in a separate action to compensate him for past
harms, Advanced Disposal has not demonstrated that such an
action would prevent adequate relief in the present case. If
the possibility of later litigation against an absent party
was always an indication that "adequate relief" could not be
provided in any particular case, then joint tortfeasors would
almost always be indispensable parties under Rule 19(b).
However, as discussed supra, that is not the case. See Pasco,
637 F.2d at 505 (holding that the possibility of subsequent
litigation between either the plaintiff or the defendant and
38
1190148
the absent party, the absent party being either a joint
tortfeasor or a potential indemnitor, was not "an eventuality
that Rule 19 was designed to avoid" and concluding that the
possibility of further litigation was insufficient to
make the
absent party indispensable under Rule 19(b)). Accordingly,
this factor weighs in favor of the City not being
indispensable to the present action.
4. Adequate Remedy if Case Dismissed
The final factor we must consider under Rule 19(b) is
whether Tarver "will have an adequate remedy if the action is
dismissed
for
nonjoinder."
Again
citing
Provident Tradesmens,
supra, Advanced Disposal argues that Tarver's interest under
the fourth Rule 19(b) factor is in having a forum in which to
litigate his claims –- not necessarily the forum of his choice
–- and it is undisputed that Tarver could have brought this
action against the defendants and the City in Elmore County.
See Provident Tradesmens, 390 U.S. at 109 ("[T]he plaintiff
has an interest in having a forum. Before the trial, the
strength of this interest obviously depends upon whether a
satisfactory alternative forum exists.").
As he did before the trial court, Tarver argues that the
fact that there exists an alternate forum where the defendants
39
1190148
and the City could be sued should be given little weight in
light of the fact that the other Rule 19(b) factors did not
weigh in favor of finding the City to be an indispensable
party to this action. He also argues, as he did below, that
if this action is dismissed and he attempts to refile this
action against the defendants and the City, he will surely be
met with a statute-of-limitations defense asserted by those
parties.7 However, we see no need to determine whether
Tarver's claims would or would not be barred by the statute of
limitations if this action was dismissed and he was forced to
refile his claims in another forum.
Even assuming that Tarver had an alternate forum in which
to file all of his claims, this fact, standing alone, does not
require a conclusion that the City is indispensable. "Because
Rule 19(b) does not state the weight to be given each factor,
the district court in its discretion must determine the
importance of each in the context of the particular case."
Thunder Basin Coal Co. v. Southwestern Pub. Serv. Co., 104
F.3d 1205, 1211 (10th Cir. 1997) (citing Glenny v. American
7There is no indication in the materials before this Court
that the defendants agreed to waive any applicable statute-of-
limitations defenses that might be available if Tarver was
required to refile this action in Elmore County.
40
1190148
Metal Climax, Inc., 494 F.2d 651, 653 (10th Cir. 1974)). In
Pasco, supra, the Seventh Circuit Court of Appeals held that
"[t]he availability of an alternative forum is primarily of
negative significance under Rule 19. The absence of an
alternative forum would weigh heavily, if not conclusively[,]
against dismissal while the existence of another forum would
not have as significant an impact in favor of dismissal." 637
F.2d at 501 n.9. In that case, although an alternative forum
was available, the court held that, "[w]hile the availability
of the alternative ... forum renders a Rule 19(b) dismissal
less onerous, 'we do not view the availability of an
alternative remedy, standing alone, as a sufficient reason for
deciding that the action should not proceed among the parties
before the court.'" Pasco, 637 F.2d at 501 (quoting
Bio-Analytical Servs., Inc. v. Edgewater Hosp., Inc., 565
F.2d
450, 453 (7th Cir. 1977) (citing Bonnet v. Trustees of Schools
of Township 41 North, 563 F.2d 831, 833 (7th Cir. 1977))). The
court stated that the plaintiff had an interest in the forum
provided by federal law and chosen by him and that, "[t]o
outweigh the plaintiff's choice some additional interest of
the absent person, the other parties or the judicial system
must be found." Pasco, 637 F.2d at 501. Despite the fact that
41
1190148
the court in Pasco acknowledged that the absent party's
"activities are the central focus of this litigation," 637
F.2d at 504, and that there was a possibility of later
litigation between the parties present in the action and the
absent party, it concluded that these were not sufficient
reasons to "relegate this suit" to the alternate forum. 637
F.2d at 506.
We reach the same conclusion here. Tarver has an interest
in proceeding in his chosen forum, and Advanced Disposal has
not demonstrated that any of the other interests subject to
consideration under Rule 19(b) weigh so heavily in favor of
dismissal that the existence of an alternate forum should be
controlling.
5. Final Considerations and Request for Alternate Relief
In its reply brief, Advanced Disposal argues that the
City plays such a central role in this action that its
presence is crucial. See B. Fernández & HNOS, Inc. v. Kellogg
USA, Inc., 516 F.3d 18, 27 (1st Cir. 1989) (holding, where the
complaint included 20 references to an absent affiliate that
was alleged to have committed the violations of law at issue
in the complaint, that, because the absent affiliate was "a
central player –- perhaps even the primary actor -- in the
42
1190148
alleged breach, the practical course" was to proceed in a
forum where the absent affiliate could be joined). For the
reasons stated herein, we disagree that this action cannot
proceed in equity and good conscience without the City. The
City's role in the underlying dispute potentially makes the
City a joint tortfeasor with Advanced Disposal, the utilities
board, and MCWA; it does not, however, make the City an
indispensable party under the particular facts of this case.
Additionally, although the Court might prefer any
potential claims related to this action to be addressed at one
time in one forum, "judicial economy and convenience do not in
themselves provide grounds for dismissal" under Rule 19.
Boone
v. General Motors Acceptance Corp., 682 F.2d 552, 554 (5th
Cir. 1982). Advanced Disposal did not demonstrate that the
trial court exceeded its discretion by concluding that
Tarver's action could in equity and good conscience proceed
without the City. Accordingly, Advanced Disposal has not
demonstrated that it has a clear legal right to an order
dismissing
Tarver's
action
for
failure
to
join
an
indispensable party pursuant to Rule 19(b).
Finally, we briefly address Advanced Disposal's request
for alternate relief –- an order requiring the trial court to
43
1190148
transfer this action to Elmore County where the City could be
joined. Advanced Disposal has not cited any authority
indicating that a change of venue to Elmore County would be
appropriate in this case, especially in light of the fact that
we have concluded that the City is not an indispensable party
pursuant to Rule 19(b).8 Accordingly, Advanced Disposal's
request for alternate relief is denied.
Conclusion
For the reasons stated above, Advanced Disposal's
petition for a writ of mandamus is denied.
PETITION DENIED.
Parker, C.J., and Mendheim, Stewart, and Mitchell, JJ.,
concur.
Sellers, J., concurs in the result.
Bolin, J., dissents.
Wise, J., recuses herself.
8This Court has generally held that "'[t]he absence of a
necessary and indispensable party necessitates the dismissal
of the cause without prejudice or a reversal with directions
to allow the cause to stand over for amendment.'" Liberty
Nat'l Life Ins. Co. v. University of Alabama Health Servs.
Found., P.C., 881 So. 2d 1013, 1022 (Ala. 2003) (quoting J.C.
Jacobs Banking Co. v. Campbell, 406 So. 2d 834, 850–51 (Ala.
1981)).
44 | September 18, 2020 |
cf1e498b-437c-49ac-9b33-d61041d164b5 | Eddie Toeran v. City of Tuscaloosa et al. | N/A | 1180669 | Alabama | Alabama Supreme Court | Rel: August 21, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1180669
Eddie Toeran v. City of Tuscaloosa et al. (Appeal from
Tuscaloosa Circuit Court: CV-16-900106).
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. | August 21, 2020 |
a6e41ab3-7a05-4ad1-9a63-437840ce2bb9 | Ex parte Carol Parham and Bruce Parham. | N/A | 1190659 | 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
September 11, 2020
1190659
Ex parte Carol Parham and Bruce Parham. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Carol Parham and Bruce Parham v. Timothy Broadenax)
(Jefferson Circuit Court: CV-18-900151; Civil Appeals :
2180765).
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 September 11, 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
f1a99e15-c6af-4337-b82f-168cea4afd33 | James P. Key, Jr. v. James W. Cunningham et al. | N/A | 1190223 | Alabama | Alabama Supreme Court | Rel: August 28, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190223
James P. Key, Jr. v. James W. Cunningham et al. (Appeal from
Jefferson Circuit Court: CV-19-212).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Shaw, Wise, Sellers, and
Mendheim, JJ., concur.
Stewart and Mitchell, JJ., recuse themselves. | August 28, 2020 |
fd3fb760-f4c4-43c3-b760-451b38d80860 | Michael Moore, Wesley Farmer, and Briana DeBose v. City of Center Point and Redflex Traffic Systems, Inc. | N/A | 1171151 | 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
August 28, 2020
1171151
Michael Moore, Wesley Farmer, and Briana DeBose v. City of Center Point and
Redflex Traffic Systems, Inc. (Appeal from Jefferson Circuit Court, Birmingham Division:
CV-18-900527).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on August 28, 2020:
Application Overruled. No Opinion. Bolin, J. - Parker, C.J., and Bryan, Sellers, Mendheim,
and Stewart, JJ., concur. Shaw, Wise, and Mitchell, JJ., recuse themselves.
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 May 1, 2020:
Affirmed. Bolin, J. - Bryan, Sellers, and Stewart, JJ., concur. Parker, C.J., and Mendheim, J.,
concur in the result. Shaw, Wise, and Mitchell, JJ., recuse themselves.
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 28th day of August, 2020.
Clerk, Supreme Court of Alabama | August 28, 2020 |
722bbe9f-52a4-491c-a0bc-772065758076 | Ex parte Demetrius Nettles. | N/A | 1191038 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 16, 2020
1191038
Ex parte Demetrius Nettles. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Demetrius Nettles v. State of Alabama) (Wilcox Circuit Court:
CC-11-99; Criminal Appeals : CR-19-0411).
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 |
45306d99-4327-45e7-8375-96b5ea713eb4 | Anthony et al. v. Datcher, et al. | N/A | 1190164 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2020
____________________
1190164
____________________
Cynthia Anthony; William Ashley, in his official capacity as
president of Shelton State Community College; and Jimmy
Baker, in his official capacity as chancellor of the Alabama
Community College System
v.
Scheree Datcher, Khristy Large, and Robert Pressley
Appeal from Tuscaloosa Circuit Court
(CV-17-900805)
BRYAN, Justice.
Cynthia Anthony, former interim president of Shelton
State Community College ("Shelton State"); William Ashley,
1190164
then president of Shelton State;1 and Jimmy Baker, chancellor
of the Alabama Community College System ("the ACCS")
(hereinafter collectively referred to as "the college
defendants"), appeal from a judgment entered by
the
Tuscaloosa
Circuit Court in favor of Khristy Large and Robert Pressley,
current instructors at Shelton State, and Scheree Datcher, a
former instructor at Shelton State (hereinafter collectively
referred to as "the instructor plaintiffs"). We affirm in
part, reverse in part, and remand.
Facts and Procedural History
Shelton State is a two-year college that is part of the
ACCS. Large and Pressley are instructors in the Office
Administration Department ("OAD") at Shelton State. Datcher
was an OAD instructor at Shelton State but is now retired.
The ACCS has a policy, Board Policy 605.02 ("the policy"),
that establishes how community-college instructors are
credentialed for salary purposes. Under the policy, an
instructor is placed into one of three groups based on the
1William Ashley is no longer president of Shelton State.
See Rule 43(b), Ala. R. App. P., providing that, when a public
officer is a party to an appellate proceeding and ceases to
hold office, "the public officer's successor is automatically
substituted as a party."
2
1190164
instructor's "teaching area": Group A, Group B, or Group C.
After an instructor is placed into a group, the instructor is
then ranked within the group for salary purposes according to
criteria listed in the policy. The primary issue in this case
is whether the instructor plaintiffs should be placed in Group
A or Group B (the parties agree that Group C is inapplicable).
In relevant part, the policy provides that instructors are to
be classified as Group A if they teach credit courses in
"professional, occupational, and technical areas that are
components of associate degree programs designed for college
transfer." Conversely, the policy provides that instructors
are to be classified as Group B if they teach in
"professional, occupational, and technical areas that are
components of associate degree programs not usually resulting
in college transfer to senior institutions."
In 1999, Fred Gainous, then chancellor of the Alabama
Department of Postsecondary Education, the predecessor to the
ACCS, issued a document to the presidents of Alabama's two-
year colleges regarding placement of instructors in the
appropriate group under the policy ("the credentialing
3
1190164
document").2 The credentialing document lists each department
of study in Group A, Group B, or Group C. The credentialing
document lists OAD, the department at issue here, as being in
Group A. The credentialing document was accompanied by a
memorandum from Chancellor Gainous stating, in substantive
part, that the groupings in the credentialing document "are
utilized by the Alabama College System to reference
appropriate credential placement, to complement rank or level
placements as noted in the [policy], and to recommend
placement and/or advancement on designated salary schedules."
The credentialing document has been updated over time, but OAD
has remained in Group A throughout the updates. Thus, under
the credentialing document, OAD instructors, like the
instructor plaintiffs in this case, are classified as Group A.
In 2013, Joan Davis, then interim president of Shelton
State, concluded that Datcher and Pressley, the
two
instructor
plaintiffs then working at Shelton State as OAD instructors,
should be reclassified from Group A to Group B, contrary to
2At that time, the Department of Postsecondary Education
controlled the two-year college system in Alabama. However,
in 2015, the ACCS was created as a body corporate, replacing
and succeeding the Department of Postsecondary Education. See
§ 16-60-110.1, Ala. Code 1975.
4
1190164
the credentialing document. Davis asked Mark Heinrich, then
chancellor of the Department of Postsecondary Education, to
approve the reclassification, and he did so. Datcher and
Pressley received higher salaries by being reclassified to
Group B. When the other instructor plaintiff in this case,
Large, was hired by Shelton State to be an OAD instructor in
2013, she was also placed in Group B. However, in 2016,
Chancellor Heinrich directed Anthony, then interim president
of Shelton State, to review instructors' classifications to
make sure they were properly classified. Anthony determined
that the instructor plaintiffs should be classified as Group
A, in accordance with the credentialing document. Thus, she
reclassified the instructor plaintiffs to Group A, which
resulted in decreased salaries for the instructor plaintiffs.
The instructor plaintiffs subsequently sued Anthony, in
her individual capacity and in her official capacity as
interim president of Shelton State. When Anthony was later
replaced by Jason Hurst as interim president, Hurst was
automatically substituted for Anthony with respect to the
official-capacity claims, Rule 25(d)(1), Ala. R. Civ. P., but
the individual-capacity claims against Anthony remained
5
1190164
pending. William Ashley later became president of Shelton
State and was substituted for Hurst with respect to the
official-capacity claims originally alleged against Anthony.
The instructor plaintiffs also sued Jimmy Baker, in his
official capacity as chancellor of the ACCS. The instructor
plaintiffs sought a declaratory judgment, a writ of mandamus,
and
injunctive
relief.
Specifically,
the
instructor
plaintiffs asked the trial court for a judgment declaring that
they are entitled to be in Group B, ordering them to be placed
in Group B, and awarding them backpay for the period following
Anthony's reclassification of them to Group A.
The trial court held a three-day bench trial. At trial,
the college defendants argued, among other things, that the
policy requires that the instructor plaintiffs be in Group A,
and the instructor plaintiffs argued, among other things, that
the policy requires that they be in Group B. The trial court
entered a judgment in favor of the instructor plaintiffs,
concluding that they are properly classified in Group B under
the policy and ordering that the instructor plaintiffs be
placed in Group B. The trial court also awarded the
instructor plaintiffs backpay for the period following
6
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Anthony's reclassification, during which they were classified
as Group A instead of Group B. The judgment awarded backpay
to Pressley in the amount of $11,271.75, to Datcher in the
amount of $8,568, and to Large in the amount of $35,402.12.
Discussion
I.
On appeal, the college defendants first argue that the
trial court erred by concluding that the policy requires that
the instructor plaintiffs be classified as Group B instead of
Group A. The college defendants argue that the chancellor of
the ACCS has the authority to interpret the policy, that then
Chancellor Gainous interpreted the policy in 1999 by issuing
the credentialing document placing OAD instructors in
Group A,
that then interim president Anthony correctly relied on that
credentialing
document
in
placing
the
instructor
plaintiffs
in
Group A, and that the trial court usurped Chancellor Gainous's
authority by concluding that the instructor plaintiffs should
be placed in Group B. As the college defendants note, § 16-
60-111.5, Ala. Code 1975, provides that the chancellor of the
ACCS "shall ... [i]nterpret the rules and regulations of the
[B]oard [of Trustees of the ACCS] concerning the community and
7
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technical colleges" such as Shelton State. As the college
defendants
further
observe:
"'"[A]n
agency's
interpretation
of
its own regulation must stand if it is reasonable, even though
it
may
not
appear
as
reasonable
as
some
other
interpretation."'" Ex parte Board of Sch. Comm'rs of Mobile
Cty., 824 So. 2d 759, 761 (Ala. 2001) (quoting State Pers. Bd.
v. Wallace, 682 So. 2d 1357, 1359 (Ala. Civ. App. 1996),
quoting in turn Ferlisi v. Alabama Medicaid Agency, 481 So. 2d
400, 403 (Ala. Civ. App. 1985)). "An agency's interpretation
of its own policy is controlling unless it is plainly
erroneous." Ex parte Board of Sch. Comm'rs, 824 So. 2d at
761. The ACCS is indisputably a State agency, and the
chancellor of the ACCS has the power to interpret ACCS
policies. The college defendants argue that Chancellor
Gainous "interpreted" the policy in this case by issuing the
credentialing document that placed OAD instructors in
Group A.
The college defendants do not explain why
Chancellor Gainous's
merely placing the OAD instructors in Group A should be
considered an agency interpretation that is due deference on
appellate review; the record contains no rationale for
Chancellor Gainous's decision. Assuming, without deciding,
8
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that Chancellor Gainous "interpreted" the policy, we
conclude, based on the information before us, that the
placement of OAD instructors in Group A was plainly incorrect.
The policy provides, in pertinent part:
"The credentials are organized according to teaching
areas. The following groups are presented:
"...
Group
A.
This
group
of
requirements shall be used for instructors
teaching credit courses in the following
a r e a s :
h u m a n i t i e s / f i n e
a r t s ;
social/behavioral
sciences;
natural
sciences/mathematics; and in professional,
occupational, and technical areas that are
components of associate degree programs
designed for college transfer. ...
"...
Group
B.
This
group
of
requirements shall be used for instructors
teaching credit courses in professional,
occupational, and technical areas that are
components
of
associate
degree
programs
not
usually resulting in college transfer to
senior institutions."
Thus, instructors belong in Group A if they teach in
"professional, occupational, and technical areas" that "are
components of associate degree programs designed for college
transfer." Conversely, instructors belong in Group B if they
teach in "professional, occupational, and technical areas"
that "are components of associate degree programs not usually
resulting in college transfer to senior institutions." It is
9
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undisputed that the only relevant "area" is OAD, the
department in which the instructor plaintiffs teach or
taught.
Thus, we must determine of what type of associate-degree
program OAD is a component. Considering the information
before us, the answer is plain. Shelton State offers three
types of associate degrees: an associate in arts degree ("AA
degree"), an associate in science degree ("AS degree"), and an
associate in applied science degree ("AAS degree").
According
to Shelton State's college catalogue, the AA degree and the AS
degree "are designed for students who plan to transfer to a
college or university to complete a baccalaureate degree."
Conversely, the AAS degree is "designed for students who plan
to seek employment immediately upon earning the credential."
The OAD course of study is one in which a student earns an AAS
degree.
When the policy is viewed in light of the different
degrees offered by Shelton State, it is evident that OAD
instructors, like the instructor plaintiffs, should be
classified as Group B instead of Group A. OAD is a part of
the AAS-degree program, which is designed for students who
plan to use the degree to "seek employment immediately after
10
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earning" that degree. That corresponds with the description
in Group B of an associate-degree program "not usually
resulting in college transfer to senior institutions." An
AAS degree in the OAD course of study does not fit the
description in Group A of an associate-degree program
"designed for college transfer." That description describes
the AA and AS degrees instead, which "are designed for
students who plan to transfer to a college or university to
complete a baccalaureate degree."
The college defendants argue that OAD instructors, like
the instructor plaintiffs, belong in Group A because, they
say, the OAD teaching area itself has "components" that are
"designed for college transfer." Those "components" are
general classes that OAD students –– along with many other
Shelton State students –– take that are designed to transfer
to a college or a university, such as English Composition I
and Microcomputer Applications. However, the question is not
whether the OAD area itself has components, i.e., classes,
designed for college transfer. Rather (keeping in mind that
the parties agree that OAD is the relevant "area" in the
policy), the relevant question is: Of what type of associate-
11
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degree program is OAD itself a component? That is, OAD, not
the particular classes in the program, is the "component"
under the policy. The language of the policy readily
demonstrates that. Group A consists of "[i]nstructors
teaching credit courses in ... areas that are components of
associate degree programs designed for college transfer."
(Emphasis
added.)
Similarly,
Group
B
consists
of
"[i]nstructors teaching credit course in ... areas that are
components of associate degree programs not usually resulting
in college transfer to senior institutions." (Emphasis
added.) The trial court correctly concluded that the
instructor plaintiffs belong in Group B.
II.
Next, the college defendants argue that, even if the
instructor plaintiffs are properly included in Group B, the
trial court erred in awarding the instructor plaintiffs
retrospective relief, i.e., backpay, for the period following
Anthony's reclassification of the them, during which they were
classified as Group A. The college defendants argue that
State immunity bars the award of retrospective relief, i.e.,
backpay, in this case. The college defendants do not argue
12
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that State immunity bars the prospective relief of ordering
that the instructor plaintiffs be placed in Group B, resulting
in increased salaries.
A recent decision of this Court, Barnhart v. Ingalls, 275
So. 3d 1112 (Ala. 2018), is particularly helpful regarding the
State-immunity issue in this case. In Barnhart, the named
plaintiffs in a purported class action were former employees
of a State agency, the Alabama Space Science Exhibit
Commission ("the Commission"). The Department of
Examiners of
Public
Accounts
("DEPA")
conducted
an
audit
of
the
Commission's records and found that the Commission had not
complied with State statutes regarding the payment of
longevity bonuses to State employees (§ 36-6-11(a), Ala. Code
1975) and the compensation of State employees for working
certain State holidays (§ 1-3-8, Ala. Code 1975) (hereinafter
collectively referred to as "the benefits statutes"). The
Commission, however, disagreed with DEPA's determination that
the Commission had not complied with the benefits statutes;
the Commission contended that it was not subject to the
benefits statutes pursuant to another statute. The former
employees then sued the Commission and officers of the
13
1190164
Commission seeking, among other things, backpay for moneys
previously earned but not paid because of noncompliance with
the
benefits
statutes
("the
retrospective-relief claim").
The
trial court certified the former employees' claims for class-
action treatment, and the Commission officers filed a
petition
for a writ of mandamus in this Court, which this Court treated
as a notice of appeal. On appeal, the Commission officers
argued that State immunity barred the former employees'
retrospective-relief claim, i.e., the claim for backpay. In
rejecting that argument, the Court in Barnhart thoroughly
discussed the law of State immunity as it relates to
retrospective relief:
"The doctrine of State immunity derives from Ala.
Const. 1901, Art. I, § 14, which provides that 'the
State of Alabama shall never be made a defendant in
any court of law or equity.' This Court has
explained that, under § 14, not only do the State
and its agencies have absolute immunity from suit in
any court, but State officers and employees, in
their official capacities and individually, also are
immune from suit when the action against them is, in
effect, one against the State. Phillips v. Thomas,
555 So. 2d 81, 83 (Ala. 1989). In Alabama
Department
of
Transportation
v.
Harbert
International, Inc., 990 So. 2d 831, 839 (Ala.
2008), this Court explained that whether a claim
asserted against a State officer is effectively a
claim against the State hinges on
14
1190164
"'"whether 'a result favorable to
the
plaintiff
would
directly
affect a contract or property
right of the State,' Mitchell [v.
Davis, 598 So. 2d 801, 806 (Ala.
1992)], whether the defendant is
simply a 'conduit' through which
the plaintiff seeks recovery of
damages from the State, Barnes v.
Dale, 530 So. 2d 770, 784 (Ala.
1988), and whether 'a judgment
against
the
officer
would
directly affect the financial
status of the State treasury,'
Lyons [v. River Road Constr.,
Inc.], 858 So. 2d [257] at 261
[(Ala. 2003)]."
"'Haley [v. Barbour County], 885 So. 2d
[783] at 788 [(Ala. 2004)]. Additionally,
"[i]n
determining
whether
an
action
against
a state officer is barred by § 14, the
Court considers the nature of the suit or
the relief demanded, not the character of
the office of the person against whom the
suit is brought." Ex parte Carter, 395 So.
2d 65, 67–68 (Ala. 1980).'
"The Commission officers argue that this Court has
previously applied these principles to hold that
claims asserted against State officials seeking
backpay allegedly owed are claims against the State
and are therefore barred by the doctrine of State
immunity. See, e.g., Alabama A & M Univ. v. Jones,
895 So. 2d 867, 876 (Ala. 2004) (holding that State
immunity barred a university professor's claim
seeking backpay associated with promised raises that
did not materialize). The Commission officers
accordingly argue that the trial court erred by
certifying
the
retrospective-relief
claim
for
class-action treatment; instead, they argue, the
15
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trial court should have recognized the immunity
afforded them by § 14 and dismissed this claim.
"The
named
plaintiffs,
however,
argue
that
State
immunity does not apply to the retrospective-relief
claim because, although that claim seeks the payment
of money damages, the claim is, they say, at its
core, simply an attempt to compel State officials to
perform their legal duty or a ministerial act ––
that duty or act being the payment of money class
members are entitled to by the clear terms of the
benefits statutes –– and such actions are not barred
by § 14. See, e.g., Ex parte Alabama Dep't of Fin.,
991 So. 2d 1254, 1256-57 (Ala. 2008) (stating that
'certain actions are not barred by § 14' including
'actions brought to compel State officials to
perform their legal duties' and 'actions to compel
State officials to perform ministerial acts')."
Barnhart, 275 So. 3d at 1121-22.
The Court in Barnhart then discussed two other decisions
relevant to the issue whether State immunity bars backpay ––
Ex parte Bessemer Board of Education, 68 So. 3d 782 (Ala.
2011), and Woodfin v. Bender, 238 So. 3d 24 (Ala. 2017) (Main,
J., with two Justices concurring and five Justices concurring
in the result). The parties here also discuss those two
decisions at some length. The Court in Barnhart explained:
"[W]e begin our analysis by reviewing the holding of
Ex parte Bessemer Board of Education, which was
summarized in Alabama State University v. Danley,
212 So. 3d 112, 125-26 (Ala. 2016):
"'At issue in Ex parte Bessemer Board
was § 16–22–13.1, Ala. Code 1975, which
16
1190164
provides
the
method
of
calculating
percentage
pay
increases
for
public-education employees based on their
years of experience. 68 So. 3d at 786.
Jean Minor, a teacher in the Bessemer
School System, sued, among others, the
members of the Bessemer Board of Education
in
their
official
capacities,
alleging
that
her statutory
pay increase
had been
miscalculated. 68 So. 3d at 785. Minor
sought backpay for the 2000–2001 fiscal
year and sought to have her pay calculated
correctly for the ensuing years pursuant to
the guidelines in § 16–22–13.1. 68 So. 3d
at 786. The board members, claiming
immunity, moved for either a dismissal of
the complaint or a summary judgment. The
trial court entered a judgment dismissing
all claims against the board members on the
basis of sovereign immunity[, i.e., State
immunity], but after Minor filed a motion
to alter or amend the judgment, the trial
court vacated its earlier judgment and
entered a new judgment in favor of Minor.
In doing so, the trial court found that the
board members were not entitled to immunity
because they had no discretion in paying
Minor the correct salary increase provided
in § 16–22–13.1. The board members sought
a writ of mandamus from this Court
directing the trial court to dismiss
Minor's claims against them on the basis of
immunity. 68 So. 3d at 788.
"'In denying the petition, this Court
noted that Minor was entitled to bring an
action to compel the board members to
perform a legal duty or ministerial act and
that Minor's salary increase involved
"obedience to the statute; it does not
involve any discretion." 68 So. 3d at 790.
The issue in Ex parte Bessemer Board was
17
1190164
not whether Minor was entitled to a salary
increase; rather, the issue was simply
whether the salary increase had been
calculated
correctly.
Thus,
Minor's
action
seeking the pay increase to which she was
statutorily entitled was not an action
seeking damages from the State but, rather,
was an action to compel the performance of
a ministerial act.
"'Those facts distinguish Ex parte
Bessemer Board from this case. Minor
sought payment of salary that she had
already earned, but had not received
because of an error in calculation, and
sought to have her future salary calculated
correctly; her action essentially was
nothing more than a plea to the trial court
to order the board to perform correct
mathematical computations.'
"(Footnote omitted.) Thus, Ex parte Bessemer Board
stands for the proposition that a claim for backpay
will be allowed where it is undisputed that
sum-certain statutorily required payments should
have been made. In such instances, the defendant
State officials had a legal duty to make those
payments all along and, in finally doing so, they
are not exercising discretion; rather, they are
merely performing a ministerial act. 68 So. 3d at
790. Accordingly, such a claim is not truly a claim
asserted against the State and is not barred by §
14. See [Alabama Dep't of Transp. v. Harbert
[Int'l, Inc.], 990 So. 2d [831] at 845-46 [(Ala.
2008)] (explaining that a court order requiring
State officials to pay funds undisputedly owed by
the State does not actually affect the financial
status of the State because the funds at issue do
not belong to the State and the State treasury is in
no worse a position than if the State officials had
originally performed their duties and paid the
funds).
18
1190164
"The
Commission
officers
argue,
however,
that
Ex
parte Bessemer Board is distinguishable because it
was undisputed in that case that the plaintiff
should have been given the appropriate statutory pay
increase, but, they argue ... whether the Commission
is subject to the benefit statutes is disputed in
this case. ... In support of this distinction, the
Commission officers cite Woodfin v. Bender, 238 So.
3d 24 (Ala. 2017) (per Main, J., with two Justices
concurring and five Justices concurring in the
result), in which this Court reviewed a trial
court's judgment awarding the plaintiff school
employees monetary damages in connection with their
claim that their employing board of education had
failed to assign them to the proper 'step' when it
adopted a new salary schedule in 2004, thus
resulting in reduced wages over the following years.
The plaintiff school employees argued that the award
entered in their favor by the trial court was proper
under Ex parte Bessemer Board; however, this Court
distinguished that case by noting that in Ex parte
Bessemer Board there was no dispute that the
plaintiff should have been paid the funds she
claimed were owed her, but in Woodfin there was 'a
legitimate dispute' as to whether the defendant
board-of-education officials had an actual duty to
assign the plaintiff school employees to steps in
accordance with the plaintiff school employees'
interpretation of the salary schedule. 238 So. 3d
at 32. Therefore, the payment of the funds to which
the plaintiff school employees claimed they were
entitled was not merely a ministerial act. Id.
Accordingly,
§
14
applied,
the
defendant
board-of-education officials were entitled to State
immunity, and the trial court's judgment was void
for want of subject-matter jurisdiction. Id."
Barnhart, 275 So. 3d at 1122-24 (footnote omitted).
The Court in Barnhart then concluded that the Commission
officers were not entitled to State immunity. In doing so,
19
1190164
this Court determined that, if the benefits statutes required
the former employees to be paid the compensation that they had
not been paid, the Commission officers simply had to follow
that requirement and lacked the discretion to not follow it:
"Upon analysis, it is evident that the facts in
the instant case are more akin to Ex parte Bessemer
Board than to Woodfin. At its core, Woodfin was a
dispute regarding a school-board policy and how and
whether that policy applied to the plaintiff school
employees; this Court ultimately held that the
defendant
board-of-education
officials
had
discretion in how 'they interpreted and implemented
the policy' and that they could not 'be compelled to
accept the plaintiffs' interpretation.' 238 So. 3d
at 33. See also McDowell-Purcell, Inc. v. Bass, 370
So. 2d 942, 944 (Ala. 1979) ('The writ of mandamus
will not lie to compel [a State official] to
exercise his discretion and apply the ascertained
facts or existing conditions under [a] contract so
as to approve payment to [a plaintiff] according to
[the plaintiff's] interpretation of the contract
rather than [the State official's].'). In contrast,
the issue in this case, as in Ex parte Bessemer
Board, is one of statutory interpretation –– does a
statute entitle the plaintiffs to compensation they
did not receive. As this Court explained in Ex
parte Bessemer Board:
"'[I]t is undisputed that the Bessemer
Board members have a statutory duty to pay
[the plaintiff] the appropriate salary
increase under § 16–22–13.1, Ala. Code
1975. That statute specifically provides
that a public school teacher with [the
plaintiff's]
years
of
experience
being
paid
under the State minimum-salary schedule
shall receive a 5.5% increase in salary
beginning with the fiscal year 2000–2001.
20
1190164
The basis for this calculation is at issue
in this lawsuit. The amount of the salary
increase the Bessemer Board members must
pay [the plaintiff] involves obedience to
the statute; it does not involve any
discretion. The Bessemer Board members
have a legal duty to pay [the plaintiff]
the correctly calculated salary increase
under the statute and in doing so they are
performing a ministerial act. Therefore,
[the
plaintiff's]
action
against
the
Bessemer Board members in their official
capacities is not an action "against the
State" for § 14 purposes; thus, the
Bessemer Board members are not entitled to
§ 14 immunity from [the plaintiff's] action
to compel them to fulfill their statutory
duty to pay her the appropriate salary
increase.'
"68 So. 3d at 790-91 (emphasis added). Thus, if the
benefit statutes obligated the Commission officers
to pay the [former employees] compensation they were
not paid, the Commission officers had no discretion
to avoid that requirement; obedience to the statute
is mandatory. Any confusion the Commission officers
might have had regarding the interpretation of the
benefit statutes, however reasonable, is ultimately
immaterial because that confusion cannot serve as
the basis for avoiding a statutory requirement. In
sum, if it is ultimately determined that the [former
employees]
should
have
received
additional
compensation pursuant to the benefit statutes, the
Commission officers had a legal duty to make those
payments all along, and in finally doing so they are
merely performing a ministerial act. Accordingly,
the [former employees'] retrospective-relief claim
is not barred by § 14."
Barnhart, 275 So. 3d at 1124-25.
21
1190164
In light of Barnhart and the cases discussed therein, the
key issue here is whether the college defendants had the
discretion to place the instructor plaintiffs in Group A.
Because in essence the college defendants ultimately rely on
then Chancellor Gainous's 1999 decision classifying OAD
instructors as Group A in the credentialing document, the more
precise issue is whether Chancellor Gainous was acting within
his discretion in interpreting the policy to place the OAD
instructors in Group A. If he was acting within his
discretion in doing so, the college defendants would be
entitled to State immunity regarding the claims for backpay.
As the college defendants note, under § 16-60-111.5, the
chancellor of the ACCS "shall ... [i]nterpret the rules and
regulations of the [B]oard [of Trustees of the ACCS]
concerning community and technical colleges." Thus, the
chancellor
has
discretion
to
interpret
ACCS
policies
generally. However, as discussed in Part I of this opinion,
that discretion has limits. "A board of education must comply
with
the
policies
it
adopts,"
and
"[a]n
agency's
interpretation of its own policy is controlling unless it is
plainly erroneous." Ex parte Board of Sch. Comm'rs, 824 So.
22
1190164
2d at 761. In this case, applying the policy to the
undisputed relevant facts, we conclude that the
policy plainly
indicates that the instructor plaintiffs belong in Group B.
Thus, neither Chancellor Gainous nor any of the college
defendants
who
followed
him
and
who
relied
on
his
credentialing document issued in 1999 had discretion to place
OAD instructors in Group A. Because the college defendants
lacked discretion to classify the instructor plaintiffs as
Group A, the claims for backpay against them in their official
capacities are not barred by the doctrine of State immunity.
Barnhart. Accordingly, the trial court did not err in
awarding backpay to the instructor plaintiffs.
III.
Next, Anthony, the former interim president of Shelton
State, argues that the trial court erred in entering a
judgment against her in her individual capacity. As noted,
Anthony was sued in both her individual capacity and her
official capacity. When Anthony left her position as interim
president, under Rule 25(d)(1), Ala. R. Civ. P., her successor
was automatically substituted as a defendant with respect to
the official-capacity claims alleged against her. However,
23
1190164
the purported individual-capacity claims against her remained
pending. The key issue is whether those remaining claims
against Anthony were actually individual-capacity claims or
were
in
fact
official-capacity
claims
mislabeled
as
individual-capacity claims. Anthony again cites Barnhart, in
which we explained that the nature of a claim is crucial in
determining whether it is actually an official-capacity claim
or an individual-capacity claim. The former employees in
Barnhart
alleged
claims
of
negligence/wantonness and
breach
of
fiduciary duty against Commission officers purportedly in
their
individual
capacities
("the
individual-capacity
claims"), in addition to the retrospective-relief claims
discussed above in Part II. The Court in Barnhart discussed
the nominal individual-capacity claims:
"In Haley v. Barbour County, 885 So. 2d 783, 788
(Ala. 2004), this Court explained:
"'"In
determining
whether
an
action
against
a state officer or employee is, in fact,
one against the State, [a] [c]ourt will
consider such factors as the nature of the
action and the relief sought." Phillips v.
Thomas, 555 So. 2d 81, 83 (Ala. 1989).
Such factors include whether "a result
favorable to the plaintiff would directly
affect a contract or property right of the
State," Mitchell [v. Davis], 598 So. 2d
[801,] 806 [(Ala. 1992)], whether the
24
1190164
defendant is simply a "conduit" through
which the plaintiff seeks recovery of
damages from the State, Barnes v. Dale, 530
So. 2d 770, 784 (Ala. 1988), and whether "a
judgment
against
the
officer
would
directly
affect the financial status of the State
treasury," Lyons [v. River Road Constr.,
Inc.], 858 So. 2d [257] at 261 [(Ala.
2003)].'
"Thus, this Court noted in Haley that it would
determine whether an action nominally asserted
against a State official was truly one against the
State based on general factors such as the nature of
the action and the relief sought; however, the Court
thereafter listed several specific factors for
consideration, all of which related to the issue of
damages and whether any damages that might be
awarded would flow from the State. Subsequent cases
involving actions against State officials and
questions regarding the applicability of State
immunity have also focused on the damages being
sought, on occasion to the exclusion of other
factors. See, e.g., Ex parte Bronner, 171 So. 3d
614, 622 n. 7 (Ala. 2014) ('[A]ny action against a
State official that seeks only to recover monetary
damages against the official "in [his or her]
individual capacity" is, of course, not an action
against that person in his or her official capacity
and would of necessity fail to qualify as "an action
against the State" for purposes of § 14.').
Inasmuch as the named plaintiffs in the present case
have made it clear that they are seeking personal
payment from the Commission officers for the
tortious misconduct alleged in the individual-
capacities claims –– and such a judgment would
therefore have no effect on the State treasury –- it
might seem, based on Ex parte Bronner, that the
individual-capacities claims are not claims against
the State and, accordingly, are not barred by § 14.
However, regardless of the damages being sought, the
25
1190164
nature of those claims requires us to hold
otherwise.
"The individual-capacities claims asserted by
the named plaintiffs include a negligence claim and
a breach-of-fiduciary-duty claim. A necessary
element of each of those claims is whether, in their
individual capacities, the Commission officers owed
a duty to the putative class members. See Aliant
Bank v. Four Star Invs., Inc., 244 So. 3d 896, 907
(Ala. 2017) (noting that one of the elements of both
a negligence claim and a breach-of-fiduciary-duty
claim is the existence of a duty to the plaintiffs).
In fact, the named plaintiffs' complaint alleges,
with regard to the negligence claim, that the
Commission officers 'owe[d] a duty to [Commission]
employees to compensate them in accordance with
Alabama law, including the mandates of [the benefit
statutes]' and, with regard to the breach-of-
fiduciary-duty claim, that the Commission officers
'owe[d] a fiduciary duty to [Commission] employees
to act at all times with the utmost care, honesty,
loyalty, and fidelity in all of [the Commission's]
actions.' It is clear, however, from the named
plaintiffs' statement of those claims that the
duties allegedly breached by the Commission officers
were owed to the putative class members only because
of the positions the Commission officers held and
that the Commission officers were, accordingly,
acting only in their official capacities when they
allegedly breached those duties by failing to give
effect to the benefit statutes. Stated another way,
the Commission officers had no duties in their
individual capacities to give effect to the benefit
statutes; rather, any duties they had in that regard
existed solely because of their official positions
in which they acted for the State. See also Aliant
Bank, 244 So. 3d at 908 ('The determination whether
a duty exists is generally a question of law for the
court to decide.'). Accordingly, the individual-
capacities claims are, in effect, claims against the
State that are barred by § 14. The nature of the
26
1190164
individual-capacities claims requires this holding,
and any previous decisions of this Court containing
language indicating that the State immunity afforded
by § 14 cannot apply when monetary damages are being
sought from State officers in their individual
capacities –– such as the dicta quoted above from Ex
parte Bronner –- are overruled to the extent they
support that proposition."
Barnhart, 275 So. 3d at 1125-27 (footnote omitted).
As was the case in Barnhart, the nature of the nominal
individual-capacity claims against Anthony indicates that
those claims were not actually individual-capacity claims.
The instructor plaintiffs allege that Anthony, as the then
interim president of Shelton State, had a duty to classify
them as Group B under the policy and that she breached that
duty by reclassifying them as Group A. However, Anthony owed
such a duty to the instructor plaintiffs only because of her
position as interim president of Shelton State; thus, she was
acting only in her official capacity when she moved the
instructor plaintiffs from Group B to Group A. That is,
Anthony had no duty in her individual capacity to apply the
policy; rather, her duty existed only because of her official
position in which she acted for the State. Thus, there were
in fact no individual-capacity claims pending against Anthony
on which the trial court could have entered a judgment against
27
1190164
her. Of course, there were no official-capacity claims
pending against her either, because, under Rule 25(d)(1), when
Anthony left her position as interim president, her successor
was automatically substituted for her with respect to the
official-capacity claims alleged against her. Thus, it is
evident that there are in fact no remaining claims against
Anthony, and, thus, a judgment should not have been entered
against her.
Conclusion
We reverse the judgment insofar as it was entered against
Anthony. 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.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ.,
concur.
28 | September 4, 2020 |
f62f554f-b22a-4ffb-9194-0ea5fc17390e | 30053 Heron Court, LLC v. Property Owners Association of Ono Island, Inc., and Ono Island Architectural Control Committee | N/A | 1190006 | Alabama | Alabama Supreme Court | Rel: August 21, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190006
30053 Heron Court, LLC v. Property Owners Association of Ono
Island, Inc., and Ono Island Architectural Control Committee
(Appeal from Baldwin Circuit Court: CV-16-901076).
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. | August 21, 2020 |
2aa97d69-0794-4370-bdfd-4ab88f91f129 | Ex parte State of Alabama. | N/A | 1190907 | 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
September 11, 2020
1190907
Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: State of Alabama v. Trenteon J. King) (Mobile Circuit Court:
CC-17-5256; Criminal Appeals :
CR-18-1288).
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 September 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. 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
a73f1772-cf5f-43bd-98d6-4871a00d4910 | Christopher M. Blankenship, as Commissioner of the Alabama Department of Conservation and Natural Resources, and Charles F. Sykes, Director, Wildlife and Freshwater Fisheries Division v. Terry Kennedy and Johnny McDonald | N/A | 1180649 | 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
August 28, 2020
1180649
Christopher M. Blankenship, as Commissioner of the Alabama Department of
Conservation and Natural Resources, and Charles F. Sykes, Director, Wildlife and Freshwater
Fisheries Division v. Terry Kennedy and Johnny McDonald (Appeal from Montgomery Circuit
Court: CV-18-901056).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on August 28, 2020:
Application Overruled. No Opinion. Mitchell, J. - Parker, C.J., and Bolin, Shaw, Wise,
Bryan, Mendheim, and Stewart, JJ., concur. Sellers, J., dissents.
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 May 29, 2020:
Reversed And Remanded. Mitchell, J. - Parker, C.J., and Stewart, J., concur. Bolin, Shaw,
Wise, Bryan, and Mendheim, JJ., concur in the result. 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 28th day of August, 2020.
Clerk, Supreme Court of Alabama | August 28, 2020 |
890f074f-a9e8-4f4c-97b9-a666a10206cb | The City of Montgomery and American Traffic Solutions, Inc. v. Charles Hunter and Mike Henderson | N/A | 1170959 | 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
August 28, 2020
1170959
The City of Montgomery and American Traffic Solutions, Inc. v. Charles Hunter
and Mike Henderson (Appeal from Montgomery Circuit Court: CV-15-901274).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on August 28, 2020:
Application Overruled. No Opinion. Bolin, J. - Parker, C.J., and Bryan, Sellers, Mendheim,
and Stewart, JJ., concur. Shaw, Wise, and Mitchell, JJ., recuse themselves.
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 May 1, 2020:
Reversed And Remanded. Bolin, J. - Bryan, Sellers, and Stewart, JJ., concur. Parker, C.J.,
and Mendheim, J., concur in the result. Shaw, Wise, and Mitchell, JJ., recuse themselves.
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 28th day of August, 2020.
Clerk, Supreme Court of Alabama | August 28, 2020 |
9baea509-6c03-4308-bd75-73455c74f1e5 | Ex parte C.N. | N/A | 1190908 | 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
September 11, 2020
1190908
Ex parte C.N. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: C.N. v. Talladega County Department of Human Resources) (Talladega Juvenile
Court: JU-17-100184.02; Civil Appeals :
2190054).
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 September 11, 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. 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 11th day of September, 2020.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
583a68d8-d5ed-4535-b723-5eac4736345f | Casey v. Beeker | N/A | 1190400 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2020
_________________________
1190400
_________________________
Laura Casey
v.
Chris "Chip" Beeker, Jr., Twinkle Andress Cavanaugh, and
Jeremy H. Oden, in their official capacities as
commissioners of the Alabama Public Service Commission
Appeal from Montgomery Circuit Court
(CV-19-902205)
SELLERS, Justice.
Laura Casey appeals from a judgment entered by the
Montgomery Circuit Court in Casey's action against Chris
"Chip" Beeker, Jr., Twinkle Andress Cavanaugh, and Jeremy H.
1190400
Oden ("the commissioners"), in their official capacities as
commissioners of the Alabama Public Service Commission ("the
PSC"). In her complaint, Casey asserted that a gathering of
the commissioners at a public hearing held by the PSC in
November 2019 constituted a "meeting" under the Alabama Open
Meetings Act, § 36-25A-1 et seq., Ala. Code 1975 ("the Act").
She alleged that proper notice of the hearing was not given as
required by the Act and that she was prohibited from recording
the hearing in violation of the Act. The trial court,
however, ruled that a "meeting" had not occurred at the
hearing and that the Act therefore does not apply. We affirm.
Section 37-1-83, Ala. Code 1975, which is part of the
statutory scheme governing the PSC, requires the PSC to
investigate complaints of unfair utility rates. It also
provides that "no order affecting such [utility] rates ...
shall be entered by the [PSC] without notice and a hearing."
In addition, § 37-1-96, Ala. Code 1975, provides that "[n]o
order shall be made by the [PSC] affecting any rate or
service, except as otherwise specifically provided, unless or
until a public hearing has been held in accordance with the
provisions of [Title 37]."
2
1190400
Two individuals, James Bankston and Ralph Phifer, filed
a complaint with the PSC regarding Alabama Power Company's
"capacity-reservation
charges,"
which
are
purportedly
aimed
at
enabling Alabama Power to recover the costs associated with
serving the backup-power needs of customers with "onsite
interconnected generation." Bankston and Phifer complained
specifically about charges levied against Alabama Power
customers who generate their own electricity through the use
of solar panels. According to a representative of Alabama
Power,
its
capacity-reservation charges
allow
Alabama
Power
to
recover the cost of "reserving" backup electricity for
customers whose solar panels are not producing enough power.
The Alabama Attorney General's Office and two nonprofit
organizations, G.A.S.P. and Energy Alabama, intervened in the
proceedings.
On November 21, 2019, the PSC held a public hearing
regarding the capacity-reservation charges. Pursuant to
§
37-
1-89, Ala. Code 1975, the PSC appointed an administrative law
judge to preside over the hearing. Notice of the hearing, in
the form of an order of the administrative law judge setting
a hearing date, was posted in advance on the PSC's Web site.
3
1190400
The hearing was widely attended. Although all three PSC
commissioners attended the hearing, affidavits submitted to
the trial court indicate that there was no prearranged plan to
have a quorum of the PSC present.
Casey, a resident of Shelby County, attended the PSC
hearing. Using her cellular telephone, Casey began to record
the hearing. The record suggests that she may have also
simultaneously "streamed" the hearing over the Internet.
Before the hearing was over, the administrative law judge
stated:
"I continue to hear the chirping of an electronic
device. It's annoying the heck out of me and it's
taking away my focus. If anybody's streaming this
proceeding, shut it down right now. We don't record
proceedings. We don't stream live hearings here at
the Commission. Any live streaming needs to be shut
down right now. It's not permitted. If that's what
I'm hearing, the chirping, that needs to stop ...."
Casey alleges that, after the administrative law judge's
comments, her cellular telephone was confiscated and she was
escorted out of the proceedings and was not allowed to return
until she agreed to stop recording.1
1Nothing in the appellate record indicates that the
"chirping" heard by the administrative law judge was coming
from Casey's phone. The trial court did not determine that
Casey was disruptive, and the commissioners have abandoned any
reliance on that ground. The Court also notes that the
4
1190400
Section 36-25A-9, Ala. Code 1975, allows for civil
actions alleging violations of the Act. Interested parties
can sue members of a governmental body, in their official
capacities, who remain in attendance at a meeting allegedly
held in violation of the Act. Pursuant to that Code section,
Casey sued the commissioners, averring that they had violated
the Act by failing to give the notice called for by the Act
and by preventing Casey from recording the hearing.
The parties submitted legal briefs and documentary
evidence to the trial court. After hearing arguments, but
without receiving any oral testimony, the trial court entered
a final judgment in favor of the commissioners. In support of
its judgment, the trial court ruled that the Act did not apply
here because the gathering of the commissioners at the PSC
hearing was not a "meeting" that would trigger applicability
of the notice and recording provisions of the Act. Casey
appealed.
parties have not pointed to any express statutory prohibition
on recording public hearings of the PSC. Casey, however,
relies only on a provision of the Act allowing the recording
of meetings. She has not pleaded any other legal basis
supporting her claim that she had a legal right to record the
PSC hearing.
5
1190400
The parties agree that this Court should apply a de novo
standard of review. See Alfa Mut. Ins. Co. v. Small, 829 So.
2d 743, 745 (Ala. 2002) ("[W]here there are no disputed facts
and where the judgment is based entirely upon documentary
evidence, no ... presumption of correctness applies [to the
trial court's judgment]."). See also Pitts v. Gangi, 896 So.
2d 433, 434 (Ala. 2004) (noting that questions of statutory
interpretation are subject to de novo review on appeal).
Under the Act, Casey had the burden of demonstrating by a
preponderance of the evidence that a "meeting" occurred and
that the provisions of the Act were violated. See §
36-25A-9(b), Ala. Code 1975 (stating in part that, at a
preliminary hearing on a complaint alleging a violation of the
Act, "the plaintiff shall establish by a preponderance of the
evidence that a meeting of the governmental body occurred and
that each defendant attended the meeting"); § 36-25A-9(e),
Ala. Code 1975 (requiring a trial court to enter a final
judgment against a defendant in an Open Meetings Act case
"[u]pon proof by a preponderance of the evidence of a
defendant's violation of [the Act]").
6
1190400
Section 36-25A-1(a), Ala. Code 1975, provides, with some
exceptions not applicable here, that "no meetings of a
governmental body may be held without providing notice
pursuant to the requirements of Section 36-25A-3[, Ala. Code
1975]." (Emphasis added.) As for recording a meeting, § 36-
25A-6, Ala. Code 1975, provides, in part:
"A meeting of a governmental body, except while
in executive session, may be openly recorded by any
person in attendance by means of a tape recorder or
any other means of sonic, photographic, or video
reproduction provided the recording does not disrupt
the conduct of the meeting."
(Emphasis added.)
There is no dispute in this case that the PSC is a
"governmental body" under the Act. See § 36-25A-2(4), Ala.
Code 1975 (defining "governmental body"). The dispute is
whether a "meeting" occurred during the PSC hearing. On
appeal, Casey relies on
the following definition of "meeting":
"(6) Meeting. a. Subject to the limitations
herein, the term meeting shall only apply to the
following:
"....
"3. The gathering, whether or not it
was
prearranged,
of
a
quorum
of
a
governmental body during which the members
of
the
governmental
body
deliberate
specific matters that, at the time of the
7
1190400
exchange, the participating members expect
to come before the full governmental body
at a later date."
§ 36-25A-2(6)a.3., Ala. Code 1975. In the present case,
whether a "meeting" occurred at the hearing depends on whether
the commissioners "deliberated" a matter at the hearing that
they expected to come before the PSC at a later date. It is
not contested that the commissioners expected Alabama Power's
capacity-reservation charge to come before the PSC at a later
date. Thus, whether a meeting occurred depends on whether the
commissioners "deliberated" that matter at the hearing. 2
Although the Act defines the term "deliberation," §
36-25A-2(1), Ala. Code 1975, Casey argues that this Court, in
determining whether the commissioners deliberated at the PSC
hearing, should not consult that definition. Rather, she
asserts that we should apply Merriam-Webster's definition of
"deliberate," which is "to think about or discuss issues and
decisions
carefully."
Merriam-Webster's
Collegiate
Dictionary
329 (11th ed. 2020) (emphasis added). We disagree. The Act
2In her complaint and in the trial court, Casey cited
additional definitions of "meeting" that are set out in §
36-25A-2(6)a., Ala. Code 1975, which refer to "prearranged"
gatherings of quorums but do not require deliberation. On
appeal, Casey has abandoned reliance on those definitions.
8
1190400
uses
the
terms
"deliberative,"
"deliberate,"
and
"deliberation." See § 36-25A-1(a), Ala. Code 1975 ("It is the
policy of this state that the deliberative process of
governmental bodies shall be open to the public during
meetings ...."); § 36-25A-2(6), Ala. Code 1975 (defining
"meeting" in part as a gathering of a quorum of a governmental
body where the members of the quorum "deliberate" a matter
they expect to come before the full governmental body); § 36-
25A-7(a)(3), Ala. Code 1975 (stating that, if, during an
executive
session
where
litigation against
a
governmental
body
is discussed with counsel, "deliberation begins among the
members of the governmental body regarding what action to take
relating to pending or threatened litigation based upon the
advice of counsel, the executive session shall be concluded
and the deliberation shall be conducted in the open portion of
the meeting or the deliberation shall cease"). Thus, among
other things, the Act is aimed at making the "deliberative
process" transparent and open to the public during "meetings,"
which include gatherings at which governmental bodies
"deliberate."
It
also
requires
transparency
when
"deliberation" occurs during an executive session where
9
1190400
litigation is discussed with counsel. It is obvious to the
Court from the entirety of the Act and from the definition of
"deliberation" that that term refers to the act of
deliberating. In other words, it defines what it means to
"deliberate." Accordingly, the term "deliberate" should be
defined based on the statutory definition of "deliberation"
found in the Act. Cf. State v. Schmid, 859 N.W.2d 816 (Minn.
2015) (construing the statutory term "take," which was not
expressly defined in the statute, according to the statutory
definition of "taking" that was set forth in the same
statutory scheme). Indeed, Casey's argument on this point
conflicts with Swindle v. Remington, 291 So. 3d 439 (Ala.
2019), discussed more fully below, in which this Court
consulted the statutory definition of "deliberation" in
determining whether the members of a governmental body had
"deliberated" and had therefore held a "meeting."
"Deliberation" is defined in the Act as:
"An exchange of information or ideas among a quorum
of members of a subcommittee, committee, or full
governmental body intended to arrive at or influence
a
decision
as
to
how
any
members
of
the
subcommittee, committee, or full governmental body
should vote on a specific matter that, at the time
of the exchange, the participating members expect to
come before the subcommittee, committee, or full
10
1190400
body immediately following the discussion or at a
later time."
§ 36-25A-2(1), Ala. Code 1975. Two witnesses testified during
the PSC hearing. The first, Natalie Dean, is a "regulatory
pricing manager" for Alabama Power. She testified regarding
the purpose of the capacity-reservation charge, the amount of
the charge, how the charge is calculated, and the effect
solar-panel usage might have on Alabama Power's costs and its
ability to serve its customers. Dean's testimony was provided
in response to questioning by Alabama Power, by the parties
who had initiated the proceedings, and by intervenors with
interests in the subject matter of the proceedings.
The other witness to testify was Karl Rabago, an expert
called by G.A.S.P., one of the intervenors in the proceedings.
Rabago addressed the commissioners directly with a lengthy
summary of what appears to be previously given deposition
testimony. According to Rabago, the capacity-reservation
charges "eliminate much of the savings that [solar] customers
expect to realize from their investments [in solar panels]"
and are "punitive, discriminatory, and unlawful." None of the
other parties cross-examined Rabago.
11
1190400
Nothing in the transcript of the hearing indicates that
the commissioners themselves participated in the exchange of
relevant and substantive information during the hearing.
Rather, it appears that they listened passively to the
information provided by the parties in attendance. At the
conclusion of the hearing, the administrative law
judge stated
that the commissioners and the PSC staff members would
"evaluate ... the additional testimony that's been provided
today, and then a decision will be rendered at the appropriate
time ... at an open meeting of the [PSC]."
It is not contested that, at the hearing, information was
presented that was intended to influence the commissioners'
ultimate decision regarding the propriety of Alabama Power's
capacity-reservation charge. The issue is whether that
information was exchanged "among" the commissioners. § 36-
25A-2(1), Ala. Code 1975 (deliberation occurs when there is
"[a]n exchange of information or ideas among a quorum of
members").
Casey points to the first definition of "among" in
Merriam-Webster's dictionary, which is: "in or through the
midst of: surrounded by." Merriam-Webster's Collegiate
12
1190400
Dictionary 41 (11th ed. 2020). Merriam-Webster provides the
following example of a specific use of the term "among" Casey
urges: "hidden among the trees." Id. Merriam-Webster also
provides another similar definition of "among": "in
company or
association with," and gives "living among artists" as an
example of that usage. Id. According to Casey, the
commissioners "sat in the midst (the middle) of the parties'
exchange of ideas and information intended to influence the
[commissioners'] future vote." In other words, Casey asserts
that the exchange of information and ideas "among a quorum" of
a governmental body means the exchange of information and
ideas in the quorum's presence. She suggests that construing
the Act in any other way would allow members of governmental
bodies to avoid the application of the Act simply by remaining
silent at gatherings where information and ideas are
presented
to them.3
3There is no discussion in Casey's appellate briefs of the
definitions
of
"meeting"
that
refer
to
"prearranged
gatherings" of quorums but that do not mention deliberation.
We are not tasked in this case to decide whether, under those
definitions, a gathering such as Casey hypothesizes, where
members of a governmental body do not speak, could still be a
"meeting" under the Act.
13
1190400
"Words used in a statute must be given their natural,
plain, ordinary, and commonly understood meaning ...." IMED
Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346
(Ala. 1992). In this Court's view, in the context in which
the term "among" is used in the statute, the ordinary and
commonly understood meaning is more closely embodied by
another definition of "among" provided by Merriam-Webster:
"through
the
reciprocal
acts
of."
Merriam-Webster's
Collegiate Dictionary 41 (11th ed. 2020). An example of a use
of that definition given by Merriam-Webster is:
"quarrel among
themselves." Another apt example given by counsel for the
commissioners during oral argument before this Court is: "a
discussion among the guests."
The Court is not writing on a clean slate with respect to
this issue. In Swindle v. Remington, supra, the Court
considered whether a particular private gathering of
the
board
of the Public Education Employees' Health Insurance Program
("PEEHIP") and PEEHIP staff members constituted a meeting
under the Act. At a private "morning" session, a PEEHIP
budget shortfall was addressed, and PEEHIP staff members
recommended to the board that it fill the shortfall by
14
1190400
increasing insurance premiums and spousal surcharges for
insurance coverage, which were matters the board was slated to
vote on at a later public "afternoon" session. Although this
Court concluded that a meeting had indeed occurred at the
morning session, the act of providing information to the
PEEHIP board members during that session was not, by itself,
enough to establish that a meeting had occurred. 291 So. 3d
at 460 ("[D]uring the [private] session, [PEEHIP] staff
recommended the Board's adoption of the proposed increases.
The primary question, however, is whether the Board engaged in
any
specific
'deliberation'
regarding
the
staff's
recommendations.").
There was more to the private morning session than just
the provision of information to the PEEHIP board. There was
testimony that, during the morning session, "'various [Board]
members shared thoughts and views on the [matter to be voted
on later], through discussion, questioning and otherwise.'"
291 So. 3d at 443. In concluding that "deliberation" had
occurred at the morning session, this Court observed:
"Board members asked questions about the proposals
[to be voted on during the afternoon session] and
... at least one member openly disagreed with the
recommendations and advocated for an alternative
15
1190400
solution. ... [Two Board members] stated that the
members shared their 'thoughts and views' on the
proposed increases [in premiums and surcharges] and
...
there
was
discussion
about
the
staff's
recommendations. Although the other Board members
provided statements alleging that they did not
exchange information or ideas during the meeting, it
is evident that the opinions of some of the Board
members were expressed during the morning session.
During both the morning and afternoon sessions, [one
Board member] advocated for the use of [a] trust
fund to fill the economic shortfall [facing PEEHIP's
budget]. ... [T]he chair of the Board, along with
PEEHIP officials, scheduled the morning session with
general knowledge of the proposals to be presented
by staff, and Board members asked questions
regarding
the
staff's
proposals
to
increase
premiums, an item the members knew would be
considered for a vote later that day. In addition,
during the morning session, [one Board member] read
and 'someone mentioned' a recently enacted Senate
resolution that suggested that an increase in PEEHIP
premiums would be inappropriate in light of recent
legislation
providing
an
increase
in
public-education employees' salaries. This Court
therefore must conclude that, under these particular
circumstances, 'deliberation' occurred during the
morning session."
291 So. 3d at 461 (footnote omitted). The Court in Swindle
also noted that questions asked by the members of a
governmental body could be posed in such a way as to
"influence those around him or her to vote a certain way."
Id. at 460.
Under the reasoning of Swindle, in order to prove that a
"meeting" occurred at the PSC hearing, Casey must demonstrate
16
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that the commissioners exchanged information and ideas with
each other and that their doing so was aimed at arriving at or
influencing the commissioners' ultimate decision on the
capacity-reservation charges. In her appellate brief, Casey
points out that the commissioners sat at the bench during the
PSC hearing, that expert testimony regarding the capacity-
reservation charges was heard by the commissioners, that the
commissioners "could have asked questions" if they had wanted
to, and that one of the commissioners "instructed the public
to follow the [administrative law judge's] directions not to
record the hearing." These facts are not sufficient to
establish that the commissioners deliberated and that a
meeting took place under the Act.4
The trial court did not err in determining that the
gathering of the commissioners at the November 21, 2019, PSC
4The Court does not hold that the members of a
governmental body necessarily have to address one another
directly in order to "deliberate." As the Court acknowledged
in Swindle, the exchange of information and ideas among
members of a governmental body can be accomplished in other
ways. The example given in Swindle was the posing of
questions by members that is intended to influence a vote.
There could be other examples. Nothing, however, in the
present case indicates that the commissioners exchanged any
relevant information, much less relevant ideas, during the
hearing.
17
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hearing was not a "meeting" under the Act. Accordingly, we
affirm the trial court's judgment.
AFFIRMED.
Bolin, Bryan, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Parker, C.J., concurs specially.
Shaw, J., concurs in the result.
Wise, J., recuses herself.
18
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PARKER, Chief Justice (concurring specially).
I concur fully with the main opinion. I write specially
to address a point argued by Laura Casey's counsel, at oral
argument before this Court, regarding the appropriateness of
applying a statutory definition of one form of a word to
another form of that word used in the statute.
The outcome in this case depends partly on whether the
Open Meetings Act's definition of the noun "deliberation" in
§ 36-25A-2(1), Ala. Code 1975, controls the meaning of the
verb "deliberate" in § 36-25A-2(6). At oral argument, Casey's
counsel stated that there is "no legal authority that suggests
that when you have a statutorily defined noun, that you're
supposed ... to impose that definition on a verb." Because
counsel's improvident assertion relates both to an issue that
is pivotal to the case before us and to broader principles of
legal argument, I take this opportunity both to explore the
nature of "legal authority" and to point out the particular
authorities that support this Court's commonsense approach to
the linguistic question raised in this appeal.
I. Legal authorities in general
"In each case, [a court] must support its action by
reciting legal rules that mesh adequately with the existing
19
1190400
order." Reed Dickerson, The Interpretation and
Application of
Statutes 14 (1975). Consequently, attorneys arguing before a
court present legal rules that favor their respective clients'
positions, in support of which they will find it necessary to
provide legal authority. In this role, attorneys should
aspire to "recognize the existence of pertinent legal
authorities."
Comment
to
Rule
3.3,
"Misleading
Legal
Argument," Ala. R. Prof. Cond.5 Particularly in cases in
which this Court grants oral argument, it is typical for there
to be no statute or controlling precedent that squares neatly
with the facts and issues of the case at hand. When faced
with this problem, attorneys must apply legal reasoning to
information from other sources. To do so effectively,
attorneys must recognize the breadth of potential sources, as
well as their usefulness for persuasion. In almost every
instance, there will be some legal authority that sheds light
on the issue before the Court.
5I do not suggest that attorneys behave unethically by
failing
to
identify
or
acknowledge
noncontrolling
authorities,
but only that attorneys do have a duty to ensure the accuracy
of any representation that no legal authority exists that
supports a proposition that favors the opponent. It is one
thing not to disclose noncontrolling authority that supports
one's opponent; it is quite another to affirmatively state
that such authority does not exist.
20
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Every legal authority has two characteristics that
determine its role in constructing an argument: type and
weight. There are two types of legal authority: primary and
secondary. In general, primary authority is law and official
interpretations of it, for example, constitutions, statutes,
local
ordinances,
executive
orders,
administrative
regulations, court rules, and judicial decisions. Primary
authority includes all official pronouncements of a governing
body or individual that enact, interpret, or apply a law or
legal principle. All primary authorities purport to be
binding on someone, or did at one time.6 All authorities that
are not primary are secondary authorities, that is,
unofficial
commentary on the law. For example, good attorneys are
familiar with their jurisdiction's leading treatises and
periodicals pertaining to their area of practice. Other
secondary sources, such as practice manuals and desk books,
l e g a l
d i c t i o n a r i e s
a n d
e n c y c l o p e d i a s ,
continuing-legal-education
materials,
and
Internet
sources
can
6Plurality opinions, concurring opinions, dissenting
opinions, and dicta, though generally nonbinding in the sense
that they do not contain a court's holdings, are primary
authority because they are parts of official, binding
pronouncements.
Unlike
holdings
in
majority
opinions,
however,
they are persuasive rather than mandatory. See infra.
21
1190400
inform attorneys' decisions of how to advise a client or build
an argument.
Additionally, every authority has one of two weights:
mandatory or persuasive. Mandatory authority is authority
that a court must follow. Persuasive authority is authority
that a court need not follow but that may be used to persuade
the court. Only primary authorities can be mandatory, and
primary authorities that are not mandatory are persuasive.
All
secondary
authorities
are
persuasive
authorities.
Further, the weight of mandatory authorities does not vary: a
mandatory authority must be followed. By contrast, some
persuasive authorities are more persuasive than others. How
persuasive such an authority is depends on many factors, such
as the relevance of the commentary, the expertise of the
author, and the age of the source. Particularly with respect
to persuasive primary authority (e.g., nonbinding judicial
statements), an authority's persuasive value is impacted by
the relative positions, within the judicial hierarchy or
other
governmental structure, of the author and the decision-maker
being persuaded.
Many
attorneys
seem
to
have
little
difficulty
ascertaining the weight of primary authority. That is good,
22
1190400
because legal arguments must cite applicable law, and legal
conclusions must follow from law and its principles.
Consequently, no argument should rest solely on persuasive
authority if mandatory authority exists. Put another way,
attorneys must acknowledge mandatory authorities, even if
persuasive authorities better support their arguments.
Further,
attorneys cannot
depend
solely
on
secondary
authority
if there is primary authority available.
Some attorneys, however, have the opposite habit: They
rely on primary authority to the near-total exclusion of
secondary authority. Presumably, this habit has
been fostered
by the case method of legal education, which has held
ascendancy in law schools across the nation for many decades,
since shortly after Harvard Law School Dean Christopher
Columbus Langdell introduced it in the latter half of the 19th
century. See Marie Summerlin Hamm et al., The Rubric Meets
the Road in Law Schools: Program Assessment of Student
Learning Outcomes as a Fundamental Way for Law Schools to
Improve and Fulfill their Respective Missions, 95 U. Det.
Mercy L. Rev. 343, 354-57 (2018); David D. Garner, The
Continuing Vitality of the Case Method in the Twenty-First
Century, 2000 BYU Educ. & L.J. 307, 316-23 (2000); W. Burlette
23
1190400
Carter, Reconstructing Langdell, 32 Ga. L. Rev. 1, 48-53
(1997)
(discussing
Langdell's
de-emphasis
of
secondary
sources
in legal education). As a result of Langdell's influence,
legal education places heavy emphasis on distilling and
synthesizing rules announced in judicial opinions. Law
students may receive an introduction to secondary sources in
a first-year legal-research course, but they are
rarely called
upon to use them in any other context. This case-focused
approach has some benefits, such as teaching students to
"think like lawyers," see James R. Maxeiner, Educating Lawyers
Now and Then: Two Carnegie Critiques of the Common Law and the
Case Method, 35 Int'l J. Legal Info. 1, 1 (2007), but it also
conditions them to overlook -- and undervalue -- the wealth of
information that experts have already compiled and condensed
to aid understanding and guide research. In addition, the
rise
of
electronic
legal-research
tools,
with
their
increasingly advanced search capabilities and (more recently)
artificial
intelligence,
has
diminished
the
perceived value
of
secondary sources, particularly as aids in finding primary
authority. It is easy to be lulled into complacency by the
power of those tools and forget that the "universal search
box" does not have access to the universe of legal
24
1190400
information. No single method, industry practice, or tool
defines the outer limit of the source types that may inform
attorneys' arguments and help them fulfill their obligations
of effective advocacy and candor to the court. Although
attorneys are not expected to digest all possible sources that
may comment on a given issue, they would do well to draw on
the wide variety of credible authorities available to them --
especially when arguing appeals.
With this context in mind, I return to the legal issue at
hand.
II. Legal authorities on using definitions across word forms
A. Primary sources
An abundance of judicial decisions support the Court's
holding that "the term 'deliberate' should be defined based on
the statutory definition of 'deliberation' found in the [Open
Meetings] Act." ___ So. 3d at ___. For example, this Court's
handling of the word "deliberate" in Swindle v. Remington, 291
So. 3d 439 (Ala. 2019), is fully consistent with today's
holding. Another supporting decision the Court cites is State
v. Schmid, 859 N.W.2d 816 (Minn. 2015), in which the defendant
had been convicted under a Minnesota law that "state[d] that
a person may not 'take' deer without a license." Id. at 817.
25
1190400
The state's fish and game laws defined the noun "taking" but
not the verb "take." Id. at 820. The court construed "take"
according to the definition of "taking":
"'Taking,' as defined [by the statute], can be used
as a verb, noun, or adjective. When 'taking' is used
as a verb it has the same underlying definition as
the root verb 'take.' ...
"Further, when 'taking' is used as a gerund or
adjective, the difference is not definitional, but
syntactical. The verb form is an action performed by
a subject, modifiable by adverbs, while the noun
form identifies the action as the object of a verb,
modifiable by adjectives. Thus, when 'take' and
'taking' are used in the same context, they have the
same basic definition. They are merely different
syntactical forms of the same word."
Id. at 820-21 (citations omitted).
Swindle and Schmid are far from the only cases that
support the Court's application of a definition of a noun to
its verb form. In an opinion construing Texas's Open Meetings
Act, the Texas Court of Criminal Appeals responded skeptically
to the State's argument that the statutory verb "meeting" had
a different meaning from the defined noun "meeting." Texas v.
Doyal, 589 S.W.3d 136, 143 n.25 (Tex. Crim. App. 2019) ("It
could be argued that the verb 'meeting' would be the act of
holding a 'meeting' -- so that the noun definition would
inform the meaning of the verb."). Additionally, decisions of
26
1190400
the United States Supreme Court and the United States Court of
Appeals for the 11th Circuit indicate that it is appropriate
to impute the same essential meaning to different forms of the
same word or phrase that occur in the same legislation. See,
e.g., Astrue v. Ratliff, 560 U.S. 586, 592 (2010) (declining
to interpret the noun "award" as having a different meaning
from the verb "award" because "[t]he transitive verb '"award"'
has a settled meaning in the litigation context"); Reves v.
Ernst & Young, 507 U.S. 170, 178 (1993) ("We conclude ... that
as both a noun and a verb in this subsection 'conduct'
requires an element of direction."); Janus Capital Grp., Inc.
v. First Derivative Traders, 564 U.S. 135, 142 (2011)
(explaining that pairing the verb "make" with a noun results
in a phrase approximately equivalent in meaning to the verb
form of the noun: "'To make any ... statement,' is thus the
approximate equivalent of 'to state.'"); United States v.
Caniff, 955 F.3d 1183, 1189 (11th Cir. 2020) (concluding that
the phrase "'to make any notice' simply means 'to notify'").
Similarly, the courts of this State have concluded that
the meaning of a noun informs the meaning of its verb form,
and vice versa. See, e.g., Randolph v. Yellowstone Kit, 83
Ala. 471, 472, 3 So. 706, 707 (1888) (inferring meaning of
27
1190400
noun "peddler" from verb "peddle"); Bank of Florala v. Smith,
11 Ala. App. 358, 359, 66 So. 832, 832 (1914) ("[T]he word
'mortgage,' when employed without qualification in [a
conveyance], whether as a verb or as a noun ..., ... is
construed to mean and accomplish what formal terms creating a
mortgage would have accomplished ...." (emphasis added)).
B. Secondary sources
Further support for the Court's use of the definition of
"deliberation"
across
word
forms
exists
in
secondary
authorities regarding principles of statutory interpretation.
For
example,
a
legislature
communicates "according to
accepted
standards of communication" existing at the time of the
enactment. Dickerson, supra, at 11, 273. Thus, courts
presume that the "drafters [of legislation] ... are ...
grammatical in their compositions." Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 140
(2012). That is, ordinarily, "[w]ords are to be given the
meaning that proper grammar and usage would assign them."
Scalia & Garner, supra, at 140; see Nielsen v. Preap, __ U.S.
__, __, 139 S. Ct. 954, 965 (2019) (applying this principle
and holding "that the scope of 'the alien' is fixed by the
28
1190400
predicate
offenses
identified
in
[the
preceding]
subparagraphs").
One remarkable characteristic of English grammar and
usage is that the same word can often function as many
different parts of speech. See Bryan Garner, Garner's Modern
English Usage 416 (4th ed. 2016) ("Renaissance rhetoricians
called [this characteristic] enallage ..., and some modern
grammarians call it transfer: the ability of a word to shift
from one grammatical function to another."). A word that is
normally a noun may serve as an adjective and vice versa.
With only a slight change of spelling and sentence structure,
a noun becomes a verb. Many such "functional shifts," also
called
"semantic
shifts,"
are
possible
and
normally
acceptable. See id. at 416-18. Pertinently here, a noun may
be used as a verb. Although stylistically legal-writing
experts tend to frown on such "nominalization" that creates a
"buried verb" or "zombie noun," their criticism inherently
recognizes
that
the
two
forms
are
functionally interchangeable
in relation to meaning. See Bryan A. Garner, Garner's Modern
American Usage 120 (3d. ed. 2009); Modern English Usage,
supra, at 983; Jason Dykstra, To Verb or Not to Verb, 56
Advocate 49 (2013); Bryan A. Garner, Legal Writing in Plain
29
1190400
English 38-39 (2001). This interchangeability has given rise
to what one scholar has labeled the "Consistency Principle":
"When a word is used as both a noun and a verb in a single
statutory statement, that word should be construed similarly
in each instance." Alani Golanski, Linguistics in Law, 66 Alb.
L. Rev. 61, 94 (2002).
III. Conclusion
From this brief survey, it is evident that a plethora of
legal authorities, both primary and secondary, support the
Court's use of the statutory definition of the noun
"deliberation" to understand the meaning of its verb form
"deliberate." More importantly, this case illustrates the
danger
of
attorneys
assuming
an
overly
restrictive
understanding of the scope of legal authority. Attorneys
throughout the State would do well to both recognize and
employ the full range of sources at their disposal under the
rubric of "legal authority."
30
1190400
SHAW, Justice (concurring in the result).
I do not believe that the plain-meaning rule can be used
in this case or that the main opinion's statement regarding a
definition of the word "among" found in Ala. Code 1975, §
36-25A-2(1), is required. Instead, I believe that the
appellant, Laura Casey, has simply failed to prove that the
trial court erred, and I would decline at this time to further
address the proper meaning and application of the statutes at
issue in this appeal. I thus concur in the result.
The issue in this case is whether the Open Meetings Act,
Ala. Code 1975, § 36-25A-1 et seq. ("the Act"), governed the
Alabama Public Service Commission ("PSC") hearing at issue in
this case. The Act applies to "meetings," and that term is
specifically defined in Ala. Code 1975, § 36-25A-2(6). The
issue on appeal relates to one particular definition of the
word "meeting" provided in § 36-25A-2(6)a.3:
"The gathering, whether or not it was prearranged,
of a quorum of a governmental body during which the
members of the governmental body deliberate specific
matters that, at the time of the exchange, the
participating members expect to come before the full
governmental body at a later date."
(Emphasis added.)
31
1190400
To decide if the gathering at issue in this case by a
quorum of the members of the PSC -- i.e., the hearing -- was
a "meeting," we are called upon to determine what it means to
"deliberate."
The
parties
offer
various
dictionary
definitions of the word, but I agree with the main opinion
that we should resort to the specific definition of the word
"deliberation" found in § 36-25A-2(1), which states, in
pertinent part:
"An exchange of information or ideas among a quorum
of members of a ... governmental body intended to
arrive at or influence a decision as to how any
members of the ... governmental body should vote on
a specific matter that, at the time of the exchange,
the participating members expect to come before the
... body immediately following the discussion or at
a later time."
(Emphasis added.) As framed by the main opinion, the
determinative factor in deciding whether there was a
"deliberation" and thus a "meeting" concerns the meaning of
the word "among."
The plain-meaning rule requires that "[w]ords used in a
statute must be given their natural, plain, ordinary, and
commonly understood meaning." IMED Corp. v. Systems Eng'g
Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992). However, if
the text is ambiguous, then the plain-meaning rule does not
32
1190400
apply, and this Court resorts to judicial construction to
determine its meaning. See id. at 346 ("If the language of
the statute is unambiguous, then there is no room for judicial
construction and the clearly expressed intent of the
legislature must be given effect."), and Deutsche Bank Nat'l
Trust Co. v. Walker Cty., 292 So. 3d 317, 326 (Ala. 2019) ("If
the language of a statute is not 'plain' or is ambiguous, then
–- and only then -- may a court construe or interpret it to
determine the legislature's intent.").
The word "among," as the main opinion describes, is
capable of different meanings. If "among" can mean both an
exchange "between" the members of the quorum and, alternately,
an exchange that occurs "in the midst of" or in the "company
of" the members, then there are different circumstances in
which a "deliberation" occurs and thus a "meeting" exists.
Neither of the two competing definitions of the word "among"
advanced by the parties nor the resulting changes in meaning
of § 36-25A-2(1) and § 36-25A-2(6)a.3 are absurd; both are
reasonable readings.
The context of the use of the word "among" does not, for
me, show a plain meaning. The "exchange" may be "intended to
... influence a decision as to how any members ... should
33
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vote." Certainly the members can act in the exchange with the
intent to influence each other, but this context does not
exclude nonmembers from participating in the exchange with the
intent to influence the members or indicate that members
solely are involved in that process. Influence can be
attempted by nonmembers in "the company" of or "in the midst"
of the quorum just as well as by members between each other.
This is neither unreasonable nor absurd and appears to be
precisely what was occurring in this case: dueling viewpoints
as to the propriety of a utility charge were being provided to
a quorum of the PSC with the apparent intent to influence that
body. To me, the context does not show the sole meaning
selected by the main opinion.7
Because the word "among" is reasonably susceptible to two
different definitions in this case, and because the different
definitions change the applicability of these Code sections,
its meaning is ambiguous and not "plain." Because it is
ambiguous, the plain-meaning rule does not apply, and this
7This is not to say that merely because a word has more
than one definition it is ambiguous. Here, § 36-25A-2(1) can
reasonably be read using either definition of the word
"among." Nothing in the context suggests that a particular
definition is required or is exclusively the natural, plain,
ordinary, and commonly understood meaning.
34
1190400
Court must resort to the rules of statutory construction to
determine its correct meaning.
However, the parties generally argue on appeal that their
own respective proposed meaning of the word "among" is the
plain and ordinary meaning and thus do not provide the legal
analysis or theories of construction required to resolve the
ambiguity I see. Casey does suggest in her brief that the
more narrow reading of the word "deliberation" actually
adopted by the main opinion "would thwart the Alabama public
policy of having the public have open access to the
deliberative process."
Considering
the
legislative
intent
and
purpose of a statute is one method of statutory construction
when the plain-meaning rule does not apply: "'[When a court]
is called upon to construe a statute, the fundamental rule is
that the court has a duty to ascertain and effectuate
legislative intent expressed in the statute, which may be
gleaned from the language used, the reason and necessity for
the act, and the purpose sought to be obtained.'" Blue Cross
& Blue Shield of Alabama, Inc. v. Nielsen, 714 So. 2d 293, 296
(Ala. 1998) (quoting Ex parte Holladay, 466 So. 2d 956, 960
(Ala. 1985)).
35
1190400
However, the legislature has already stated the purpose
of the Act, and the setting in which the Act applies is more
limited than Casey suggests: "It is the policy of this state
that the deliberative process of governmental bodies shall be
open to the public during meetings as defined in Section
36-25A-2(6)."
Ala. Code 1975, § 36-25A-1(a) (emphasis added).
Thus, the stated purpose of the Act is not to provide the
public access to all facets of the "deliberative process"
generally, as Casey argues, but -- at least under the
circumstances addressed in this appeal -- to provide access to
only what the legislature has defined as a "meeting" in the
first place. This restriction provided by § 36-25A-1(a),
which is not ambiguous, has thus limited the broad, general
public-policy consideration suggested by Casey as a basis for
rejecting the definition put forth by the PSC commissioners.
There are numerous methods of statutory construction and
policy considerations that may lead a resolution of the proper
definition of "among" in different directions; I do not have
the benefit of further briefing or argument to engage in that
particular analysis when I must choose one reasonable
definition over another.
36
1190400
Our caselaw indicates that I cannot provide such an
argument to reverse the judgment of the trial court because,
"when we are asked to reverse a lower court's ruling, we
address only the issues and arguments the appellant chooses to
present." Hart v. Pugh, 878 So. 2d 1150, 1157 (Ala. 2003).
I universally follow this caselaw to treat fairly all
litigants who come before this Court. Further, given that
there might be other arguments to show an interpretation of
"among" different from that adopted in the main opinion, I
would not at this time issue a legal precedent definitively
determining the meaning of the word "among" without a more
comprehensive argument as to the proper construction of the
statutory language.
I note, however, that the main opinion's definition of
"meeting" renders a PSC hearing that is required by law to be
noticed and open to the public by different statutes8 to
nevertheless escape coverage under the Open Meetings Act.
This is particularly troublesome to me. In addition, the
result of the main opinion's holding in relation to other
gatherings of the members of governmental bodies when, unlike
8See Ala. Code 1975, §§ 37-1-83 and 37-1-96.
37
1190400
in this case, the gatherings are not required by other laws to
be open to the public, is not clear. Furthermore, the
interpretation
provided
in
the
main
opinion
creates
uncertainty as to when the Act would apply to some gatherings
of members of governmental bodies; specifically, gatherings
with no planned deliberation between the members of the quorum
and to which the Act would now not apply might be instantly
transformed into a "meeting" under the Act by a mere utterance
of one of the members. The Open Meetings Act is a creature of
the legislature; given the posture of this case, its
importance to the public, and the concerns that are apparent
to me as a result of the main opinion's holding, I urge that
body to move expeditiously to resolve these issues and the
ambiguity presented in the Act.
38 | September 4, 2020 |
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