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392d1d05-1cb6-4afc-8aa6-a189eeacaa4b | Ex parte Ryan Clark Petersen. | N/A | 1180504 | 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 21, 2020
1180504
Ex parte Ryan Clark Petersen. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF Cr Im INAL APPEALS (In re: State of Alabama v. Ryan Clark Petersen)
(Houston Circuit Court: CC-12-878; CC-12-879; CC-12-880; CC-12-881; CC-12-882; Criminal
Appeals :
CR-16-0652).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on August 21,2020:
Writ Quashed. No Opinion. (Special Writing) PER CURIAM - Parker, C.J., and Shaw,
Wise, Bryan, Sellers, and Stewart, JJ., concur. Bolin and Mitchell, JJ., concur specially.
Mendheim, J., recuses himself.
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 21st day of August, 2020.
Clerk, Supreme Court of Alabama | August 21, 2020 |
fcdfcd3f-76ad-410a-850a-a82aabc4bc28 | Ex parte Demarcus Chandler. | N/A | 1190874 | 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
1190874
Ex parte Demarcus Chandler. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Demarcus Chandler v. State of Alabama) (Jefferson Circuit
Court: CC-14-3972.70; CC-14-3973.70; CC-14-3974.70; CC-14-3975.70; CC-14-3976.70;
CC-14-3977.70; Criminal Appeals :
CR-19-0236).
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.
Clerk, Supreme Court of Alabama | September 11, 2020 |
e8ac9cfa-6ac6-443d-8e90-12b75491b13f | Ex parte Ronald Eugene Weems. | N/A | 1190955 | 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
1190955
Ex parte Ronald Eugene Weems. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Ronald Eugene Weems v. State of Alabama) (Colbert
Circuit Court: CC-12-172.61; Criminal Appeals :
CR-19-0465).
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 |
128c6a56-7cd7-42a3-9c03-78252ac76ee5 | Ex parte Jimmy Korea Davis. | N/A | 1190911 | 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
1190911
Ex parte Jimmy Korea Davis. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Jimmy Korea Davis v. State of Alabama) (Tuscaloosa Circuit
Court: CC-94-1705.63; Criminal Appeals :
CR-18-1074).
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.
l i t a
Clerk, Supreme Court of Alabama | September 11, 2020 |
ff7a410e-28e6-4528-8e4f-c0d7f33ecf17 | Kidd v. Benson | N/A | 1190413 | 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
____________________
1190413
____________________
James C. Kidd, Jr., and Carolyn P. Kidd
v.
Edwin A. Benson and Dianne A. Benson
Appeal from Baldwin Circuit Court
(CV-19-900371)
SELLERS, Justice.
James C. Kidd, Jr., and Carolyn P. Kidd appeal from a
summary judgment in favor of Edwin A. Benson and Dianne A.
Benson in their action against the Bensons arising out of a
real-estate transaction. We affirm.
1190413
Facts and Procedural History
In 1995, Mr. Benson purchased a house and property on the
Fish River;1 the property itself included a bluff area
overlooking the river. It is well known to people living in
the Fish River community that hurricanes, floods, and high
water levels have a detrimental impact on the banks of the
river, thus requiring substantial shore protection. In
September 1999, Mr. Benson hired a contractor to stabilize the
bluff on his property, which stabilization consisted of,
among
other things, the construction of three retaining walls that
terraced the bluff from the upper level down to the river. The
retaining wall bordering the river is referred to as the
bulkhead wall. According to the Bensons, the bluff area
required ongoing maintenance. For example, Mr. Benson stated
that, after major storm events, sinkholes would develop on the
bluff area and that he normally filled the sinkholes with dirt
or concrete. Mr. Benson also stated that, in either 2015 or
2016, the stairs from the upper level to the middle area of
the bluff had separated from the bluff about three-quarters of
an inch on one side, indicating to him that one of retaining
1Mr. Benson married Dianne in 2004; she became a co-owner
of the property in 2013.
2
1190413
walls had moved. Mr. Benson talked to Joshua Fields and Troy
Stewart, marine contractors, about the movement of the steps
and/or the bluff area in general. According to Stewart, the
entire bluff area had been leaning forward for several years,
and he recommended that Mr. Benson install anchors to secure
it. Rather than installing anchors to secure the bluff, Mr.
Benson hired a contractor, who installed large rocks referred
to as "rip rap" in front of the bulkhead wall. According to
Mr. Benson, the rip rap stabilized the bluff area because he
did not notice any further movement in the stairs.
On July 18, 2018, the Kidds signed an agreement to
purchase the Bensons' property for $475,000.2 The first
paragraph of the purchase agreement stated, in
pertinent part:
"This contract constitutes the sole agreement between the
parties" and "[n]o representation, promise, or inducement not
included in this contract shall be binding upon any party
hereto." Additionally, the purchase agreement contained a
clause stating that the Kidds accepted the property in its
"AS IS, WHERE IS, CONDITION." Before signing the purchase
agreement, the Kidds visited the property two or three times,
2The Kidds, who were from Georgia, claimed that they were
not very familiar with the Fish River community.
3
1190413
and they sent an e-mail through their real-estate agent asking
the Bensons to respond to the following question: "Looks like
the bluff area was stabilized. Was there a problem or is this
preventive?" The Bensons responded that the stabilization of
the bluff area was "preventive." The Kidds did not have the
bluff area or any of its structures inspected before signing
the purchase agreement or before the closing.
A few months after the Kidds took possession of the
property, Mr. Kidd discovered a large sinkhole that had opened
near the steps to the boathouse. The sinkhole had actually
developed while the Bensons owned the property, and Mr. Benson
had backfilled it with concrete. The Kidds hired Stewart, who
at the time was working on the neighboring property, to repair
the sinkhole, replace the upper deck of the boathouse with a
metal roof, and remove a closet from the boathouse. Stewart
stated that, to install the metal roof, he removed the deck
from the boathouse as well as the closet, at which time he
noticed that some of the pilings behind the boathouse were
cracked.
Approximately
two
weeks
later,
before
Stewart
resumed
any work on the Kidds' property, the bluff area collapsed and
portions of the bulkhead wall and the boathouse fell into the
4
1190413
Fish River; the evidence was disputed concerning the cause of
the collapse.3
The Kidds sued the Bensons, alleging negligence,
wantonness, and various claims of fraud. Their claims were
based on the Bensons' representation that the stabilization
that the Bensons had undertaken of the bluff area was
"preventive," which, they contended, was untrue and induced
them into signing the purchase agreement. They contended that
the Bensons had a duty to disclose the problems with the bluff
area because, they say, those problems were material defects
that posed a direct threat to health or safety. The Bensons
moved for a summary judgment on the basis that the Kidds'
claims were barred by both the doctrine of caveat emptor and
the "as is" clause in the purchase agreement. Following a
3In his deposition, Mr. Benson stated that the boathouse
was an integral part of the stabilization system, and he
hypothesized that Stewart had caused the bluff area to
collapse by removing the "linear bracing" from the boathouse
and by failing to stabilize the ground behind the boathouse
before making modifications to the boathouse. Stewart, on the
other hand, stated in his affidavit that the linear bracing
was not structural in nature and, thus, that its removal did
not cause and/or contribute to the collapse of the boathouse
or bluff area. The Kidds and the Bensons each hired structural
engineers, who reached differing conclusions as to
what caused
the bluff area to collapse.
5
1190413
hearing, the trial court granted the Bensons' motion for a
summary judgment. This appeal followed.
Standard of Review
"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 be proved.' West v.
Founders Life Assur. Co. of Fla., 547 So. 2d 870,
871 (Ala. 1989)."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39
(Ala. 2004).
Discussion
In Alabama, the doctrine of caveat emptor, "let the
buyer beware," applies to the sale of used real estate and
6
1190413
ordinarily relieves a seller of any duty to disclose to a
buyer defects in the property. Nesbitt v. Frederick, 941 So.
2d 950, 956 (Ala. 2006). This Court, however, has recognized
three exceptions to the doctrine that require a seller to
disclose to the buyer known defects in the property: (1) a
seller has a duty, under § 6-5-102, Ala. Code 1975, to
disclose known defects if a fiduciary relationship exists
between the buyer and the seller; (2) a seller has a duty to
disclose material defects affecting health or safety not
known
to or readily observable by the buyer; and (3) a seller has a
duty to disclose if the buyer inquires directly about a
material defect or condition of the property. Nesbitt, 941 So.
2d at 956.
In this case, the Kidds argue only that the second
exception to the doctrine of caveat emptor –- the health-and-
safety exception –- applies, asserting that the problems with
the bluff area were material defects that posed a direct
threat to health or safety, and they further claim that those
problems were not known to or readily observable by them.4
4In its order entering a summary judgment in favor of the
Bensons, the trial court rejected the Kidds' argument
regarding the health-or-safety exception, noting that the
Kidds clearly knew of the potential problems with the bluff
7
1190413
The Kidds contend that the "as is" provision in the purchase
agreement does not foreclose the applicability of the health-
or-safety exception to the caveat emptor doctrine. For the
reasons discussed below, we disagree with the latter argument
and clarify the law in Alabama regarding the doctrine of
caveat emptor and "as is" language in a purchase contract for
real property.
In Clay Kilgore Construction, Inc. v. Buchalter/Grant,
L.L.C., 949 So. 2d 893, 897-98 (Ala. 2006), this Court
discussed the interplay between the doctrine of caveat emptor
and the "as is" clause in a purchase contract, explaining that
"[u]nder a growing body of Alabama caselaw
involving circumstances in which the rule of caveat
emptor
is
applicable,
a
fraud
or
fraudulent-suppression claim is foreclosed by a
clause in a purchase contract providing that the
purchaser of real property accepts the property 'as
is.' Moore v. Prudential Residential Servs. [Ltd.
P'ship], 849 So. 2d [914] at 923 [(2002)];
Leatherwood, Inc. v. Baker, 619 So. 2d 1273, 1274
(Ala. 1992); Haygood v. Burl Pounders Realty, Inc.,
571 So. 2d 1086, 1089 (Ala. 1990); and Massey v.
Weeks Realty Co., 511 So. 2d 171 (Ala. 1987). This
is so, because an 'as is' clause negates the element
of reliance essential to any claim of fraud and/or
fraudulent suppression."
area and even inquired about them before closing on the
property.
8
1190413
Thus, under Alabama law, when a buyer elects to purchase
real property subject to an "as is" clause in the purchase
agreement and neglects to inspect the property, the buyer
cannot take advantage of any exceptions to the doctrine of
caveat emptor. See Nesbitt v. Frederick, 941 So. 2d at 959
(declining to apply the specific-inquiry exception to the
doctrine of caveat emptor when buyers signed a contract
containing an "as is" clause and failed to inspect the
property);
Moore
v.
Prudential Residential Servs.
Ltd.
P'ship,
849 So. 2d 914, 924 (Ala. 2002) (holding that, "[w]here a
purchaser's direct inquiry would otherwise impose a duty of
truthful disclosure, this Court has held that a purchaser's
fraud claim is precluded by language in a sales contract
stating that the purchase is 'as is'"); Hope v. Brannan, 557
So. 2d 1208, 1211 (Ala. 1989)(holding that buyers could not
take advantage of the specific-inquiry exception to caveat
emptor doctrine because they signed an "as is" purchase
contract and neglected to inspect the house); and Ray v.
Montgomery, 399 So. 2d 230, 233 (Ala. 1980)(holding that
seller had no duty to disclose dangerous, known, and latent
defect in a residence, when buyer signed "as is" contract and
9
1190413
had ample opportunity to inspect bearing timbers of house
before purchasing it). We also note that several federal
district courts interpreting Alabama law have understood that
the exceptions to the doctrine of caveat emptor do not apply
when a buyer purchases real property subject to an "as is"
clause, without inspecting the property. See Seong Ho Hwang v.
Gladden, No. 3:16-CV-502-SMD, Jan. 31, 2020 (M.D. Ala.
2020)(not reported in F. Supp.)(noting that "as is" clause in
real-estate purchase contract "effectively vitiates any
recognized exceptions to caveat emptor"); Shelby Res., Inc. v.
J.P. Morgan Chase Nat'l Corp. Servs, Inc., No. CV-07-BE-0170-
S, May 28, 2008 (N.D. Ala. 2008)(not reported in F.
Supp.)(explaining that, "where a buyer has failed to inspect
a property he is purchasing pursuant to a contract containing
an 'as is' clause, he cannot later invoke an exception to
caveat emptor in an attempt to impose upon the seller a duty
to disclose").
The language of a real-estate sales contract defines the
responsibilities of each party to the contract. Use of "as is"
language in a contract effectively places the burden on the
buyer to confirm the suitability of the property; after all,
10
1190413
it is the buyer who initiates the offer to purchase. See Teer
v. Johnston, 60 So. 3d 253, 261 (Ala. 2010)(explaining that a
buyer's awareness should be heightened even more when signing
a purchase agreement containing an "as is" clause because such
a clause "serves as a clear and common disclaimer of any
previous representations" regarding the condition of the
property). Real-estate purchase agreements allow a period of
time between execution and closing. During that time, the
buyer should confirm not only that the seller has good and
marketable title to the property, but also that the property
is structurally sound and mechanically sufficient and
that all
systems are in good working order. A buyer cannot rely on a
seller with only practical experience and no specialized
knowledge to confirm the suitability of the property; rather,
the buyer should engage inspectors to thoroughly assess the
condition of the property before purchase. Once a transaction
is closed under the terms of an agreement containing "as is"
language and property is conveyed, the seller should have no
further risk that liability for the condition of the property
would remain.
11
1190413
In this case, the Kidds signed a purchase agreement
expressly stating that they were accepting the property in its
"AS IS, WHERE IS, CONDITION." Before signing the purchase
agreement, the Kidds had knowledge that the bluff area had
been stabilized; despite this heightened knowledge, they did
not have the bluff or its structures professionally inspected.
Rather, they chose to rely on the Bensons' representation that
the stabilization of the bluff was merely "preventive."
Because the Kidds purchased the property in its "as is"
condition, without having the bluff area inspected, they
cannot invoke the health-or-safety exception to the doctrine
of caveat emptor in an attempt to impose upon the Bensons a
duty to disclose. Accordingly, the Kidds have failed to
present sufficient evidence creating a genuine issue of
material fact not only as to their fraud claims, but also as
to their negligence and wantonness claims. See Leatherwood,
Inc. v. Baker, 619 So. 2d 1273, 1274 (Ala. 1992) (holding that
an "as is" clause in a contract for the purchase of used real
estate barred both fraud and negligence claims).
Conclusion
12
1190413
For the reasons stated above, the summary judgment in
favor of the Bensons is affirmed.
AFFIRMED.
Wise and Mitchell, JJ., concur.
Parker, C.J., and Bolin, Shaw, Bryan, Mendheim, and
Stewart, JJ., concur in the result.
13 | September 4, 2020 |
f75ef86a-319d-42d2-9d6e-3295e33ba8fe | Ex parte Berry Stephens. | N/A | 1190457 | Alabama | Alabama Supreme Court | REL: August 28, 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
____________________
1190457
____________________
Ex parte Berry Stephens
PETITION FOR WRIT OF MANDAMUS
(In re: Berry Stephens
v.
Pauline Youngblood)
(Coffee Circuit Court, CV-19-65)
MENDHEIM, Justice.
Berry Stephens ("Stephens") petitions for a writ of
mandamus directing the Coffee Circuit Court to appoint him
1190457
administrator ad litem of the estate of his mother, Louise
Gennuso. We grant the petition and issue the writ.
I. Facts
In the 1990s Gennuso opened two accounts with Army
Aviation Federal Credit Union ("the credit union"); Gennuso
was the sole owner of those accounts. On September 29, 2006,
Gennuso executed a will. The primary beneficiaries under the
will were Gennuso's two sons -- Stephens and Stephen Stephens.
Gennuso's niece, Pauline Youngblood ("Youngblood"), was also
a beneficiary under the will; she was to receive $20,000. The
will noted that, at the time of its execution, Gennuso held
seven promissory notes given to her in exchange for loans she
had made to Youngblood and her husband Dan Youngblood that
totaled $695,000. Under the terms of Gennuso's will, $100,000
of the loan amount was to be paid to her estate at the time of
Gennuso's death, $100,000 more would be due six months after
her death, and the loans were to be completely paid off,
including interest, by the time Youngblood died. The will
further provided that, at Gennuso's death, Gennuso's sons
would be entitled to the principal and interest owing from
2
1190457
those promissory notes. The will named Youngblood as personal
representative of Gennuso's estate.
On July 10, 2013, Gennuso, who was then 83, was admitted
to Wiregrass Medical Center ("WMC") for combative and
uncooperative behavior while she had been a physical-therapy
patient at Enterprise Health and Rehab. Youngblood, who was
living with Gennuso, accompanied Gennuso to WMC. During
Gennuso's stay at WMC, she was diagnosed with dementia that
included "moderate to severe cognitive impairment." Medical
records from WMC state that Gennuso had "little family
involvement. She has one son [Stephens] that is somewhat
involved with her care. Her other son [Stephen] is not
involved at all with her care. Both sons were in agreement
that her niece, Pauline Youngblood, have [power of
attorney]."
Youngblood related to WMC personnel that Gennuso "'has no
friends and no one likes her,'" and she also claimed that
Gennuso
"has
'two
personalities.'"
A
psychological
evaluation
of Gennuso on July 17, 2013, concluded that Gennuso's
"[t]hought process
is
generally
disorganized," that
she
"tends
to be generally delusional," that her "[a]ttention span and
concentration were poor," and that her "[i]nsight and
judgment
3
1190457
were poor." The medical records indicated that Gennuso's
family members had decided to place Gennuso in a skilled long-
term nursing-home facility upon her discharge from WMC
because
Youngblood could no longer provide Gennuso with the level of
care she required, given Gennuso's condition.
On September 30, 2014, Youngblood accompanied Gennuso to
the credit union and they executed documents to change
Gennuso's two accounts into joint accounts with a right of
survivorship naming both Gennuso and Youngblood as owners. At
that time, one of those accounts had a balance of
approximately $465,000; the other account had a balance of
approximately $152,000. Youngblood had her own account with
the credit union. At that time, Youngblood's account had a
balance of $909.70. Gennuso contributed all the funds to the
two joint accounts; Youngblood contributed no funds to those
accounts.
On September 20, 2015, Gennuso died at the age of 86 from
chronic obstructive pulmonary lung disease. Within one month
of her death, Youngblood withdrew nearly all the funds from
the two joint accounts and deposited the funds into
Youngblood's personal account. In October 2015, the joint
4
1190457
account that had had an initial balance of approximately
$465,000 showed a balance of $1,000. The joint account that
had had an initial balance of approximately $152,000 showed a
balance of $5,000. The balance of Youngblood's account at the
credit union had increased $418,000.
On March 7, 2016, Youngblood filed in the Coffee Probate
Court a "Petition for Probate of Will" that declared that
Gennuso's sole heirs were Stephens and Stephen Stephens and
that the will named Youngblood as personal representative of
the estate. Both of Gennuso's sons submitted to the probate
court waivers agreeing that the will should be admitted to
probate. On March 9, 2016, the probate court entered an order
admitting the will to probate and granting Youngblood letters
testamentary as personal representative of Gennuso's estate.
On February 11, 2019, Stephens filed in the Coffee Circuit
Court a "Petition for Removal of Estate" seeking removal of
Gennuso's estate to the circuit court. On June 14, 2019, the
circuit court entered an order removing Gennuso's estate from
the probate court to the circuit court.
On June 14, 2019, Stephens filed a "Motion for
Appointment of Administrator Ad Litem" in which he asserted
5
1190457
that he had recently discovered that Youngblood had
transferred funds from the joint accounts she and Gennuso held
at the credit union into Youngblood's personal account before
Youngblood had filed the petition to probate the will. He
contended in the motion that the transferred funds were
intended to be part of Gennuso's estate, that Youngblood had
taken advantage of Gennuso's mental state in September 2014
when she had Gennuso change her accounts at the credit union
to joint accounts with a right of survivorship in the names of
both Gennuso and Youngblood, that Youngblood had wrongfully
withdrawn nearly all the funds from the two joint accounts
immediately following
Gennuso's
death,
and
that
Youngblood, as
personal representative of the estate, had a conflict of
interest. Stephens further argued that § 43-2-250, Ala. Code
1975, mandated the appointment of an administrator ad litem
under such circumstances and that the circuit court should
appoint Stephens to that position. Along with the motion,
Stephens submitted an affidavit asserting that he
had
personal
knowledge of Gennuso's mental state and detailing what had
occurred with the funds in her accounts at the credit union.
6
1190457
On July 11, 2019, the circuit court held a hearing on
Stephens's motion. On August 21, 2019, because the circuit
court had not ruled on the motion, Stephens filed a "Motion
for Ruling on Administrator Ad Litem Motion" that requested
action by the circuit court on his earlier motion. On
September 3, 2019, Youngblood filed a "Response in Opposition
to 'Motion for Ruling on Administrator Ad Litem Motion.'" In
her filing, Youngblood asserted that Stephens's only support
for his motion to have an administrator ad litem appointed was
his
"unsubstantiated affidavit"
alleging
that
Gennuso
had
been
diagnosed with a "severe cognitive impairment." Youngblood
admitted to transferring funds from the joint accounts to her
personal account but contended that
"[a]n examination of the face of those bank records
reveal[s] a perfectly normal transaction between the
Credit Union, [Gennuso], and Youngblood, which
accounts operated to transfer money in them to
Youngblood upon the death of Gennuso outside the
estate of Gennuso, and, contrary to the claim of
[Stephens] in his Motion, he has not presented to
this Court any admissible evidence otherwise."
On September 24, 2019, Stephens filed a "Reply to
Youngblood['s] Opposition" in which he again contended that
the facts related in his affidavit were based on personal
knowledge. In addition, Stephens attached to that filing
7
1190457
copies of bank-statement records from the credit union showing
the balances and transfers from the pertinent joint accounts
to Youngblood's personal account. On November 14, 2019,
Stephens filed a second "Motion for Ruling on Administrator
Ad Litem Motion," again seeking a ruling from the circuit
court.
On November 15, 2019, Youngblood filed a "Motion to
Strike and Renewed Objection to Motion for Administrator
Ad Litem." In that filing, Youngblood requested that the
circuit court strike Stephens's affidavit on the ground that
the affidavit lacked any admissible supporting evidence that
Gennuso had been diagnosed in July 2013 with a "severe
cognitive impairment." Youngblood additionally argued that
Stephens
"was
not
present
at
the
Credit
Union
on
September 30, 2014 when Gennuso created the two
joint accounts with Youngblood, did not observe
Gennuso on that occasion, has not presented any
statement from any other witness who did observe
Gennuso on that occasion, and therefore, he could
not possibly know what Gennuso's condition was on
that exact occasion when she signed the account
forms at the Credit Union."
8
1190457
Youngblood attached to that filing copies of the documents
from the credit union establishing the joint accounts in
September 2014. Youngblood also asserted in that filing:
"Pursuant to the language in the joint account
creating documents signed by Gennuso and Youngblood
and approved by the Credit Union, Youngblood could
have taken all of the money out of the accounts at
any time but did not do so until after the death of
Gennuso. Since those were 'survivorship accounts,'
the survivor, Youngblood, had every legal right to
take the money out of them after Gennuso died on
September 20, 2015. Due to the operation of the
survivorship provision contained in the account
documents, the funds in the accounts passed directly
to Youngblood under Alabama law and did not pass to
or through Gennuso’s estate."
On January 13, 2020, Stephens filed a "Reply to
Youngblood['s] Motion to Strike." Stephens noted in that
filing that he was attaching Gennuso's medical records from
WMC that he had obtained pursuant to a subpoena. The
highlights from those medical records have already been
related at the outset of this rendition of the facts.
Stephens contended that the medical records were admissible
under the Alabama Rules of Evidence and that his personal
observations
about
Gennuso's
condition
were
likewise
admissible. Stephens also reiterated his position that
§ 43-2-250 mandated the appointment of an administrator
9
1190457
ad litem under the circumstances presented to the circuit
court.
On January 24, 2020, the circuit court entered an order
denying Stephens's motion for the appointment of an
administrator ad litem. The order expressly stated that
"[t]he Court, however, reserves its right to appoint an
administrator ad litem in the future." On March 5, 2020,
Stephens filed this petition for a writ of mandamus.
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 circuit court's order refusing to appoint an
administrator ad litem is an interlocutory order, not
susceptible to review by appeal. Moreover, Stephens
persuasively
argues
that
waiting
until
the
estate
administration is final to seek review of the circuit court's
order denying his motion to have an administrator ad litem
appointed is not an adequate remedy given: (1) the length of
10
1190457
time that has already transpired with the administration of
this estate, (2) the fact that the funds in question allegedly
constitute the bulk of Gennuso's assets, and (3) the fact that
Youngblood could dissipate those assets at any time. This
Court has permitted mandamus review of similar rulings by
circuit courts. See Ex parte Adams, 168 So. 3d 40, 46 (Ala.
2014) (concluding that the petitioner, the coexecutor of the
estate, had "a clear legal right to have [the testator's son]
removed as coexecutor," but ultimately denying the mandamus
petition because the circuit court had not yet ruled on the
petitioner's motion to remove the testator's son as
coexecutor). Consequently, we conclude that a petition for a
writ of mandamus is the appropriate avenue for review of the
circuit court's order denying Stephens's motion seeking the
appointment of an administrator ad litem.
III. Analysis
Stephens
contends
that
§
43-2-250
requires
the
appointment
of
an
administrator
ad
litem
under
the
circumstances presented in this case. Section 43-2-250
provides:
"When, in any proceeding in any court, the
estate of a deceased person must be represented, and
11
1190457
there is no executor or administrator of such
estate, or he is interested adversely thereto, it
shall be the duty of the court to appoint an
administrator ad litem of such estate for the
particular proceeding, without bond, whenever the
facts rendering such appointment necessary shall
appear in the record of such case or shall be made
known to the court by the affidavit of any person
interested therein."
(Emphasis added.) In Ex parte Riley, 247 Ala. 242, 250, 23
So. 2d 592, 599 (1945), this Court explained the three
requirements of § 43-2-250:
"Under the statute three things must concur to
justify the appointment: (1) The estate of the
deceased person 'must be represented,' which means
that
the
interests
of
the
estate
require
representation. (2) 'There is no executor or
administrator of such estate, or he is interested
adversely thereto.' (3) 'The facts rendering such
appointment necessary shall appear in the record of
such case, or shall be made known to the court by
the affidavit of any person interested therein.'"
Stephens argues that he has met all three requirements
under § 43-2-250 because the interests of Gennuso's estate had
to
be
represented,
Youngblood's
personal
interests
are
adverse
to the interests of the estate, and he presented facts making
known Youngblood's adverse interests in the form of Gennuso's
medical records from WMC and bank statements from the credit
union. Stephens explains that he believes it is clear in this
case that Youngblood has
interests adverse to Gennuso's estate
12
1190457
because, he says, she is in personal possession of funds that
he says belong to the estate, as evidenced by the large funds
transfers from the two joint accounts to
Youngblood's personal
account. Stephens adds that the creation of the joint
accounts was contrary to the terms of the will with respect to
the amount of money Youngblood owed Gennuso, which raises
doubt about the propriety of that transaction. Stephens
further contends that he has produced evidence indicating that
Youngblood exerted undue influence upon Gennuso before her
death to obtain the funds that were originally held in
accounts
controlled
solely
by
Gennuso.
Specifically, Stephens
asserts that, at the time Youngblood accompanied Gennuso to
the credit union in September 2014 to set up the two joint
accounts with a right of survivorship, Gennuso had been
diagnosed with dementia that indicated severe cognitive
impairment, as evidenced by the medical records from WMC that
he produced.
Stephens notes that, although normally no inquiry can be
made regarding the ownership of a joint-survivorship account
that is clear upon its creation, that is not the case if there
is evidence of undue influence upon, or a competency issue
13
1190457
regarding, one of the owners. See, e.g., Johnson v. Sims, 501
So. 2d 453, 457 (Ala. 1986) (observing that Alabama law
"preclude[s] post-death inquiries into the ownership of funds
in a joint savings and loan account, 'absent allegations of
fraud, duress, mistake, incompetency or undue influence'"
(quoting Hines v. Carr, 372 So. 2d 13, 14 (Ala. 1979)));
Campbell v. Colonial Bank, 678 So. 2d 189, 191 (Ala. Civ. App.
1996) (explaining that, "if an instrument is unambiguous and
complete on its face regarding survivorship status, no reason
exists to allow extrinsic evidence to contradict these
findings, absent allegations of fraud, duress, mistake,
incompetency, or undue influence").
Stephens draws parallels between this case and McCollough
v. Rogers, 431 So. 2d 1246 (Ala. 1983). In McCollough, the
defendant at trial, Willie B. McCollough, worked and cared for
Mary Lee Rogers, an elderly woman, for two years. During that
period, Rogers was hospitalized twice for serious conditions,
including a stroke. In the second year, McCollough
accompanied Rogers to a bank at which Rogers had an existing
account, and they opened a joint account with a right of
survivorship naming both McCollough and Rogers as owners.
14
1190457
McCollough began withdrawing funds from the joint account
shortly before Rogers's death, and she withdrew the remainder
of the funds shortly after Rogers's death. An heir of Rogers,
Christine Rogers, sued McCollough regarding ownership of the
funds that were formerly in the joint account. After an
ore tenus trial, the trial court awarded the funds to
Christine Rogers. McCollough appealed, contending that there
was insufficient evidence of a confidential relationship and
that she had overcome the presumption of undue influence.
After noting that "undue influence or incompetency could be
made a defense to a property disposition like the one before
us," 431 So. 2d at 1248, this Court explained:
"'The
law
presumes
the
exercise of undue influence in
transactions inter vivos where
confidential
relations
exist
between the parties, and puts
upon the donee or grantee, when
shown to be the dominant party in
the
relation,
the
burden
of
repelling
the
presumption
by
competent
and
satisfactory
evidence. [Citations omitted.]'
[(Quoting Webb v. Webb, 250 Ala.
194, 203, 33 So. 2d 909, 915
(1948), quoted with approval in
McEniry v. Coats, 333 So. 2d 568,
570-71 (Ala. 1976).)]
15
1190457
"Thus, in order to establish the presumption of
undue influence, a confidential relationship must be
shown to have existed. Such a relationship may
spring from 'those multiform positions in life
wherein one comes to rely upon and trust another in
his important affairs.' Raney v. Raney, 216 Ala.
30, 34, 112 So. 313, 316 (1927), and so that kind of
relationship could have arisen between Mrs. Rogers
and Mrs. McCollough in this instance. Once that was
established it was incumbent upon the plaintiff here
to establish that Mrs. McCollough was the dominant
party in that relationship."
Id. The McCollough Court concluded that the record supported
the existence of a confidential relationship and that it was
a question of fact, left to the trial court's judgment, as to
whether McCollough had overcome the presumption of undue
influence.
Stephens asserts that, as in McCollough, because he has
introduced evidence indicating that in September 2014 Gennuso
was not of sound mind and because Youngblood had been caring
for Gennuso and held her power of attorney, a presumption of
undue influence arises that calls into doubt Youngblood's
right to the funds that were in the two joint accounts she
shared with Gennuso. Because of the possibility that those
funds were assets belonging to the estate, Stephens contends
that Youngblood's interests are clearly adverse to the
interests of the estate. Accordingly, Stephens argues, §
16
1190457
43-2-250 mandates that an administrator ad litem should have
been appointed by the circuit court.
Youngblood presented two arguments below in response to
Stephens.1 First, she argued that documents from the credit
union concerning the creation of the joint accounts showed
that it was "a perfectly normal transaction between the Credit
Union, [Gennuso,] and Youngblood." But those documents shed
no light on the condition of Gennuso's mental faculties at the
time the joint accounts were opened. Thus, Youngblood's only
pertinent argument was her contention that Stephens's
affidavit should be stricken because, she says, it was not
based on personal knowledge or evidence with respect to the
accusation that Gennuso had been diagnosed with "severe
cognitive impairment" in July 2013. We have nothing before us
indicating that the circuit court ruled on
Youngblood's motion
to strike Stephens's affidavit. In any event, Stephens
eventually supported his assertion with respect to Gennuso's
mental state with medical records from WMC obtained through a
subpoena. The medical records corroborated the statements in
Stephens's affidavit, and Youngblood did not file a response
1Youngblood did not file a respondent's brief with this
Court.
17
1190457
to Stephens's submission of the medical records. Thus,
Youngblood's arguments below did not weaken in any way the
case presented by Stephens for the appointment of an
administrator ad litem.
In her filings below, Youngblood openly admitted
transferring nearly all the funds in the joint accounts held
at the credit union to her personal account immediately after
Gennuso's death. She contended that her actions were
perfectly permissible, but she did not counter Stephens's
evidence of Gennuso's mental capacity at the time the joint
accounts were opened or the presumption of undue influence
that could arise from such facts. Accordingly, the facts
showed that Youngblood, the personal representative of
Gennuso's estate, had an interest adverse to the estate.
Therefore, under § 43-2-250, the circuit court had a duty to
appoint an administrator ad litem for the estate, but it
failed to do so. See, e.g., Loving v. Wilson, 494 So. 2d 68,
70 (Ala. 1986) (observing that, "[s]ince all of the elements
necessary to require an appointment of an administrator ad
litem are present, it was error for the trial court not to
appoint one for each of the estates"); Cannon v. Birmingham
18
1190457
Tr. & Sav. Co., 212 Ala. 316, 319, 102 So. 453, 456 (1924)
(stating that an identical predecessor statute to § 43-2-250
"makes it the duty of the court, in any proceeding where the
personal
representative is
interested
adversely to
the
estate,
to appoint an administrator ad litem").
IV. Conclusion
Based on the foregoing, we grant the petition for the
writ of mandamus, and we direct the circuit court to appoint
Stephens as administrator ad litem for the estate of Gennuso.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers,
Stewart, and Mitchell, JJ., concur.
19 | August 28, 2020 |
90a4ca50-cd1b-4747-89e6-a36d6fa26841 | Ex parte State Farm Fire and Casualty Company. | N/A | 1180451 | 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
1180451
Ex parte State Farm Fire and Casualty Company. PETITION FOR WRIT OF
MANDAMUS: CIVIL (In re: Elizabeth Byars v. State Farm Fire and Casualty Company et al.)
(Madison Circuit Court: CV-16-900396).
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 April 24, 2020:
Petition Denied. Mitchell, J. - Parker, C.J., and Bolin, Wise, Mendheim, and Stewart, JJ.,
concur. Shaw and Bryan, 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 |
ab007e0f-f532-41bc-9250-12bc3d08818d | Mark Mullaly and Diana Holladay v. Linda Mullaly | N/A | 1181046 | Alabama | Alabama Supreme Court | Rel: August 21, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1181046
Mark Mullaly and Diana Holladay v. Linda Mullaly (Appeal from
Shelby Circuit Court: CV-13-901035).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ.,
concur. | August 21, 2020 |
3df75c3a-b1e5-448a-b8ed-3c69385b3df3 | Gatewood A. Walden v. Alabama State Bar Association et al. | N/A | 1180203 | 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
1180203
Gatewood A. Walden v. Alabama State Bar Association et al. (Appeal from
Montgomery Circuit Court: CV-18-900378).
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, Sellers, Mendheim, 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 March 27, 2020:
Affirmed. Mitchell, J. - Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ.,
concur. Mendheim, J., concurs in the result.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 28th day of August, 2020.
Clerk, Supreme Court of Alabama | August 28, 2020 |
5602ce2f-a9c8-4190-93ee-12cbeb6461c3 | Bennie White v. Fred A. McLeod | N/A | 1181082 | Alabama | Alabama Supreme Court | rel: August 21, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1181082
Bennie White v. Fred A. McLeod (Appeal from Tallapoosa
Circuit Court: CV-14-900060).
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. | August 21, 2020 |
df45afe4-1c76-47c1-a89c-8ab4735a759b | Ex parte N.G., Jr. | N/A | 1190390 | 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
_________________________
1190390
_________________________
Ex parte N.G., Jr.; B.J.U.; and the N.G., Jr. Special Needs
Trust
PETITION FOR WRIT OF MANDAMUS
(In re: P.W.
v.
N.G., Jr., and B.J.U., individually and as guardian for
N.G., Jr.)
(Russell Juvenile Court, CS-89-167.11)
SELLERS, Justice.
1190390
N.G., Jr. ("the father"); B.J.U., the father's legal
guardian; and the N.G., Jr. Special Needs Trust ("the special-
needs trust") petition this Court for a writ of mandamus
directing the Russell Juvenile Court to vacate an order
transferring to the Russell Circuit Court a claim asserted by
P.W. ("the mother") alleging the fraudulent transfer of the
father's assets in a case she filed seeking past-due child
support from the father. We deny the petition.
In 2005, the father was involved in an automobile
accident and was rendered permanently disabled. His mother,
B.J.U., was appointed as his guardian. Through B.J.U., the
father commenced a personal-injury action seeking to recover
compensation for injuries he sustained in the accident. The
personal-injury action settled, and, in 2013, the settlement
proceeds were placed in the special-needs trust. Although it
is not entirely clear, it appears that B.J.U. may be the
trustee of the special-needs trust.
In August 2019, the mother filed a petition in the
Russell Juvenile Court seeking to recover approximately
$70,000 in past-due child support allegedly owed by the
father. The mother also named B.J.U., in her individual
2
1190390
capacity and as the father's guardian, as a defendant and
alleged that she had secreted the father's assets. In an
amended petition, the mother asserted a claim alleging a
fraudulent transfer under § 8-9A-4(a), Ala. Code 1975, which
provides that "[a] transfer made by a debtor is fraudulent as
to a creditor, whether the creditor's claim arose before or
after the transfer was made, if the debtor made the transfer
with actual intent to hinder, delay, or defraud any creditor
of the debtor." The mother asserted that placing the proceeds
of the father's personal-injury settlement in the special-
needs trust was a fraudulent transfer. She also added the
special-needs trust as a defendant.
The
father,
B.J.U.,
and
the
special-needs
trust
(hereinafter referred to collectively as "the petitioners")
moved
to
dismiss
the
fraudulent-transfer claim,
asserting
that
the juvenile court did not have subject-matter jurisdiction
over it. The juvenile court agreed that it lacked
jurisdiction but, instead of dismissing the fraudulent-
transfer claim, severed it from the child-support claim and
transferred it to the Russell Circuit Court. The petitioners
filed a petition for a writ of mandamus in the Alabama Court
3
1190390
of Civil Appeals, which denied the petition by order. Ex
parte N.G., Jr. (No. 2190337, Jan. 30, 2020), ___ So. 3d ___
(Ala. Civ. App. 2020) (table). The petitioners then filed a
mandamus petition with this Court.
"Mandamus is
an
extraordinary remedy and
will be
granted 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 Alfab, Inc.,
586 So.2d 889, 891 (Ala. 1991)."
Ex parte Dillard Dep't Stores, Inc., 879 So. 2d 1134, 1136
(Ala. 2003). A petition for a writ of mandamus is an
appropriate means of challenging the allegedly improper
transfer of a case from one court to another. See Ex parte
MedPartners, Inc., 820 So. 2d 815, 821 (Ala. 2001)
(considering the improper transfer of a case that allegedly
had been filed in the wrong venue and stating that "[t]he
aggrieved party's sole remedy in such a case is a petition for
writ of mandamus directed to the transferor court"); Ex parte
N.B., 204 So. 3d 887, 891 (Ala. Civ. App. 2016) (considering
the transfer of a case from a juvenile court to a circuit
court and noting that a petition for a writ of mandamus is a
proper means of challenging such a transfer).
4
1190390
Normally, if a court lacks subject-matter jurisdiction
over a case, it must dismiss the case. See Ex parte Rankin,
284 So. 3d 933, 936 (Ala. Civ. App. 2019). But a court can
transfer a case to another court if expressly authorized to do
so. Ex parte Boykin, 611 So. 2d 322, 326 (Ala. 1992). In its
order denying the petitioners' mandamus petition, the
Court of
Civil Appeals referenced § 12-11-11, Ala. Code 1975, which
provides:
"Whenever it shall appear to the court that any
case filed therein should have been brought in
another court in the same county, the court shall
make an order transferring the case to the proper
court, and the clerk or register shall forthwith
certify the pleadings, process, costs and order to
the court to which the case is transferred, and the
case shall be docketed and proceed in the court to
which it is transferred, and the costs accrued in
the court in which the case was originally filed
shall abide by the result of the case in the court
to which transferred."
In Ex parte E.S., 205 So. 3d 1245 (Ala. 2015), this Court held
that § 12-11-11 required a circuit court to transfer a dispute
regarding an adoption, over which the circuit court did not
have subject-matter jurisdiction, to the probate court. In a
dissenting opinion, Justice Shaw noted that the original
version of the statute now codified at § 12-11-11 provided:
5
1190390
"'Whenever it shall appear to any court of
law or equity that any cause filed therein
should have been brought in another court
of like jurisdiction in the same county,
the court shall make an order transferring
the cause to the proper court....'
"Ala. Code 1940, Tit. 13, § 156."
205 So. 3d at 1250 (Shaw, J., dissenting) (emphasis added).
Justice Shaw noted that the original statute was enacted as
part of a legislative act dealing with the transfer of cases
erroneously filed on the law "side" of the circuit court to
the equity "side" of the circuit court, and vice versa. Id.
In addition, in counties in which the circuit court sits in
multiple divisions, the original version of the statute was
used to transfer cases from one division to another. Id. As
Justice Shaw noted, however, when the original statute was
incorporated into the Code of Alabama 1975 as § 12-11-11, the
language referring to "law or equity" and "like jurisdiction"
was removed. Id.1
1In a later case, Justice Shaw wrote that, in his opinion,
"the alterations [resulting in the current version
of § 12-11-11] were simply to remove the language
referring to the distinction between law and equity,
which language was superseded by the Rules of Civil
Procedure, because there was no longer a need for a
statute to allow the transfer of cases between the
law and equity 'sides' of the circuit court. The
6
1190390
The Court of Civil Appeals, in denying the petitioners'
mandamus petition in the present case, cited Ex parte N.B.,
supra. In that case, Judge Donaldson authored an opinion, in
which Judge Pittman concurred, citing E.S. and § 12-11-11 as
support for the conclusion that a juvenile court had the power
to transfer a child-custody dispute, over which the juvenile
court had no jurisdiction, to the circuit court. Judge
Donaldson wrote:
"[Section] 12–11–11 authorizes 'the court' in a
given county to transfer a case to another court in
the
same
county,
without
further
limitation.
Predecessors to § 12–11–11 appear to have authorized
only transfers between divisions of the circuit
court and between the law and equity 'sides' of the
circuit court. See Ex parte E.S., 205 So. 3d at 1250
(Shaw, J., dissenting). Section 12–11–11, however,
contains
no
such
limitation
and,
when
read
literally, provides the authority for the transfer
in this case. Here, the juvenile court transferred
a case that 'should have been brought in another
court in the same county' to the appropriate court,
i.e., the circuit court."
204 So. 3d at 893.
"Words used in a statute must be given their
natural, plain, ordinary, and commonly understood
Code section was retained, however, because it still
had a use in transferring cases between divisions of
the circuit court."
Ex parte N.B., 222 So. 3d 1160, 1163 (Ala. 2016) (Shaw, J.,
concurring specially).
7
1190390
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."
IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346
(Ala. 1992). As Judge Donaldson concluded in N.B.: "[W]hen
read literally, [§ 12-11-11] provides the authority for the
transfer in this case." 204 So. 3d at 893.
In arguing that N.B. was incorrectly decided, the
petitioners point out that § 12-11-11 is set out in Chapter
22, Title 11, Ala. Code 1975, which is entitled "Circuit
Courts." Thus, they assert, § 12-11-11 authorizes only
circuit courts to transfer cases. They do not, however, cite
any controlling legal authority for the proposition that the
title of Chapter 22 governs over the otherwise plain language
of § 12-11-11, which is not limited to circuit courts.
The petitioners also point to Ex parte Boykin, 611 So. 2d
322 (Ala. 1992), and Hughes v. Branton, 141 So. 3d 1021 (Ala.
2013). Boykin involved the transfer of cases filed in the
circuit court for the 10th Judicial Circuit to the "equity
division" of that circuit. This Court held that "the creation
and maintenance of the equity division is not authorized by
8
1190390
Alabama law" and that the transfers were improper. 611 So. 2d
at 324. Boykin made no mention of § 12-11-11. Hughes held
that a probate court did not have the power to transfer to the
circuit court an action to set aside a deed. Like Boykin,
Hughes did not discuss the applicability of § 12-11-11.
Promoting judicial economy, § 12-11-11 allows courts
lacking subject-matter jurisdiction to transfer claims to an
appropriate court within the same county rather than
dismissing those claims to the detriment of the parties.
Under § 12-11-11, courts within the same county have the
authority to transfer cases both "horizontally" to courts of
like jurisdiction and "vertically" to "lower" and "higher"
courts. In the present case, the juvenile court appropriately
severed the fraudulent-transfer claim from the child-support
claim and transferred the former claim to a court with
subject-matter jurisdiction over that claim.
A writ of mandamus is an extraordinary remedy, and the
petitioners have the burden of showing a clear right to
relief. They have not demonstrated that the juvenile court
was
without
power
to
transfer
the
mother's
fraudulent-transfer
9
1190390
claim to the circuit court. Accordingly, we deny the
petition.
PETITION DENIED.
Bolin, Wise, Bryan, Mendheim, and Stewart, JJ., concur.
Parker, C.J., and Shaw and Mitchell, JJ., dissent.
10
1190390
SHAW, Justice (dissenting)
I respectfully dissent.
In the main opinion, this Court appears to adopt a
reading of the phrase "the court" in Ala. Code 1975, § 12-11-
11, to mean "a" or "any" court. My previous writings in Ex
parte E.S., 205 So. 3d 1245, 1250-52 (Ala. 2015) (Shaw, J.,
dissenting), and N.B. v. J.C.R., 222 So. 3d 1160, 1160-64
(Ala.
2016)
(Shaw,
J.,
concurring
specially),
together
explain
why the plain-meaning rule does not apply in reference to §
12–11–11 because of an ambiguity2 as to the meaning of the
phrase "the court";3 explain that, in light of the language of
2N.B., 222 So. 3d at 1161 (Shaw, J., concurring specially)
("[I]f the language of a statute is not 'plain' or is
ambiguous, then we must construe it in order to determine the
legislature's intent.").
3
"The use
of
the
definite article 'the' preceding
the word 'court' is a limitation; the Code section
does not use the indefinite article 'a' and state
that 'a court' without jurisdiction shall transfer
the case, which language could be interpreted to
mean that the Code section applied to any court. See
Freytag v. Commissioner of Internal Revenue, 501
U.S. 868, 902, 111 S. Ct. 2631, 115 L. Ed. 2d 764
(1991)
(Scalia,
J.,
concurring
in
part
and
concurring in the judgment) ('[The Appointments
Clause] refers to "the Courts of Law." Certainly
this does not mean any "Cour[t] of Law" .... The
definite article "the" obviously narrows the class
of eligible "Courts of Law" ....'). Section 12–11–11
11
1190390
that Code section before the adoption of the Rules of Civil
Procedure4 and its location in the Code,5 § 12-11-11 and the
phrase "the court" as used therein refers to the circuit court
and not other courts;6 and explain that another Code section
thus refers to a specific or particular court, but
that court is not designated in the Code section. We
do not, from the plain language of the Code section,
know which particular court may transfer a case when
it has no jurisdiction. To determine what 'court' is
'the court' referred to in the Code section, we must
look beyond the text to determine the legislature's
intent."
N.B., 222 So. 3d at 1162 (Shaw, J., concurring specially).
4N.B., 222 So. 3d at 1162-63 (Shaw, J., concurring
specially) (discussing the Committee Comments to Ala. Code
1940, Tit. 13, § 156, in Appendix III, Ala. R. Civ. P., which
explain the modifications to § 12-11-11 resulting from the
adoption of the rules).
5"The original act, [§ 4 of Act No. 725, Ala. Acts 1915,]
expressly applied to circuit courts. Further, § 12–11–11 is
placed in Chapter 11 of Title 12, which governs circuit
courts." E.S., 205 So. 3d at 1250 (Shaw, J., dissenting).
6
"Given the use of the limiting term 'the court,'
it appears that § 12–11–11 was 'intended' to apply
to a particular court. Given the original act from
which
§
12–11–11
derives
and
the
prior
interpretation and use of that act for 'horizontal'
transfers between circuit courts, it appears that §
12–11–11 was 'intended' to allow a transfer by one
circuit court lacking jurisdiction to another
circuit court. The Committee Comments explaining the
modifications to the Code section effected by the
12
1190390
dealing with transfers by circuit courts and district courts
shows that the legislature did not believe that § 12-11-11 was
an all-encompassing transfer statute.7
In Ex parte E.S., supra, this Court applied § 12-11-11 to
allow a circuit court to transfer an action to a probate
court. Now, this Court holds that § 12-11-11 provides a
different court -- the juvenile court -- with jurisdiction to
transfer a case. This holding expands the scope of § 12-11-11
even further than did Ex parte E.S. Because, for the reasons
discussed above, I believe that the Code section applies only
to circuit courts and provides jurisdiction to transfer cases
to only other circuit courts, "I do not believe that §
adoption of the Alabama Rules of Civil Procedure
confirm this interpretation."
N.B., 222 So. 3d at 1163 (Shaw, J., concurring specially).
7
"[I]f § 12–11–11 allows any court to transfer a case
to any other court in that county, then why would
the legislature have enacted [Ala. Code 1975,] §
12–11–9[,] to allow circuit courts and district
courts -- and only those courts -- to transfer cases
to each other? If that would already be permissible
under the purportedly much broader transfer powers
of § 12–11–11, then § 12–11–9, covering the more
limited transfers, would be unnecessary."
N.B., 222 So. 3d at 1163–64 (Shaw, J., concurring specially).
13
1190390
12–11–11 would allow the juvenile court in the instant case to
transfer the action to the circuit court." N.B., 222 So. 3d
at 1164 (Shaw, J., concurring specially). I thus respectfully
dissent.
14
1190390
MITCHELL, Justice (dissenting).
I respectfully dissent from the majority's decision on
statutory-interpretation grounds. I believe the phrase "the
court" as used in § 12-11-11, Ala. Code 1975, is ambiguous and
that the best interpretation limits its application to giving
circuit courts authority to transfer a case to the proper
court in the same county. In his dissent, Justice Shaw
correctly
uses
the
statute's
contextual
setting,
the
surplusage canon, and the Legislature's choice of
the
definite
article to arrive at a narrower interpretation of the phrase
"the court" than the one chosen by the majority. I write
separately, however, to highlight two differences in my
approach to resolving the ambiguity in § 12-11-11.
First, even in the face of ambiguity, it is never this
Court's task to determine legislative intent. Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts at 391 (Thomson/West 2012) (discussing "[t]he false
notion that the purpose of interpretation is to discover
intent"). The alpha and omega of statutory interpretation is
the text itself. "The words of a governing text are of
paramount concern, and what they convey, in their context, is
15
1190390
what the text means." Id. at 56 ("Supremacy-of-Text
Principle"). When ambiguities arise, this Court should turn
to appropriate canons of interpretation to resolve them.
Second, the Legislature may, to an extent, instruct the
courts on the meaning of particular provisions in the Alabama
Code. Scalia & Garner, Reading Law at 225 ("Interpretive-
Direction Canon"). To the extent those instructions do not
violate the separation-of-powers doctrine, they should be
followed. See id. at 223. The Legislature has provided
interpretive instructions for the Code in § 1-1-14(a), Ala.
Code 1975. Normally, titles and headings within a statutory
framework are permissible indicators of meaning. Scalia &
Garner, Reading Law at 221 ("Title-and-Headings Canon"). But
§ 1-1-14(a) states: "The classification and organization of
the titles, chapters, articles, divisions, subdivisions and
sections of this Code, and the headings thereto, are made for
the purpose of convenient reference and orderly arrangement,
and no implication, inference or presumption of a legislative
construction shall be drawn therefrom." Thus, by statute, we
cannot permissibly use Chapter 11's Title "Circuit Courts" to
inform the meaning of § 12-11-11.
16
1190390
But the order of the Code sections is a different matter.
Interpreting a statute in isolation without reference to its
surrounding text or the larger body of law deprives the
statute of its context –- and context is universally
recognized as a primary determinant of the fair meaning of
texts. Scalia & Garner, Reading Law at 167 (noting that under
the "Whole-Text Canon .... [c]ontext is a primary determinant
of meaning"). As the branch tasked with interpreting and
applying the law in matters properly before it, see Ala.
Const. 1901, Art. VI, § 139, it is the job of the judiciary to
determine what the law means. Context is an indispensable
tool in that process –- and the Legislature cannot permissibly
tell us to ignore it. See Ala. Const. 1901, Art. III, § 42(c)
("[T]he legislative branch may not exercise the ... judicial
power ...."); Scalia & Garner, Reading Law at 233 ("It is one
thing for ... the legislature to supply the definition of the
words, and specify the implication of the words, that go into
this determination of fair meaning; it is something else for
them to prescribe that fair meaning will not govern.").
"[I]n Alabama, unlike in the federal system, the
legislature passes a separate act each term adopting the
17
1190390
codified text of previous enactments. See, e.g., Act No.
2007-147, Ala. Acts 2007." Blankenship v. Kennedy, [Ms.
1180649, May 29, 2020] __ So. 3d __, __ n.2 (Ala. 2020)
(plurality opinion). It is settled that
"'the Code of Alabama ... is not a mere compilation
of the laws previously existing, but is a body of
laws, duly enacted, so that laws, which previously
existed, ceased to be law when omitted from [the]
Code, and additions, which appear therein, become
the law from the approval of the Act adopting the
Code.'"
Swift v. Gregory, 786 So. 2d 1097, 1100 (Ala. 2000)(quoting
State v. Towery, 143 Ala. 48, 49, 39 So. 309, 309 (1905)
(emphasis added)). Therefore, we do not rely on the editorial
choices of code compilers to determine what the law is.
Rather, we rely on the text the Legislature has ratified, in
whole, every year, which sets out the statutes in a particular
order.
Here, the contextual setting of § 12-11-11 sheds light on
its meaning. Section 12-11-11 follows statutes concerning:
the creation of the circuit courts (§ 12-11-1, Ala. Code
1975), the division of the circuits around the state (§
12-11-2, Ala. Code 1975), the location of the circuit courts
(§ 12-11-3, Ala. Code 1975 ), the circuit courts' hours of
18
1190390
operation (§ 12-11-4, Ala. Code 1975), and the types of
sessions the circuit courts can hold (§ 12-11-5, Ala. Code
1975). And § 12-11-11 precedes the section establishing the
circuit courts' jurisdiction. See § 12-11-30, Ala. Code 1975.
It would be highly unusual to place a statute granting a power
to courts generally in this otherwise specialized area of the
Code. By way of proximity, it is only logical to infer that
a statute referring to "the court" within a stretch of the
Code dealing with circuit courts indicates its reach is
limited to courts of that variety.
I
do
not
necessarily
agree
with
Justice
Shaw's
interpretation of the phrase "proper court" in § 12-11-11.
But because the initial phrase, "the court," is limited to the
circuit court, the juvenile court is not authorized to
transfer the case to another court under § 12-11-11,
regardless of the meaning of the phrase "proper court" later
in the statute.
Parker, C.J., concurs.
19 | September 4, 2020 |
30bb6921-97f0-4e5e-836d-f8911eb31d19 | B. Clay Dudley III v. Anna D. Pamperin | N/A | 1181081 | Alabama | Alabama Supreme Court | Rel: August 21, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1181078
Anna D. Pamperin v. B. Clay Dudley III (Appeal from Russell
Circuit Court: CV-18-17).
1181081
B. Clay Dudley III v. Anna D. Pamperin (Appeal from Russell
Circuit Court: CV-18-17).
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 |
79583ebd-6dd1-4b48-86d7-5ca774f0d992 | Valerie Tremble v. Billy Wayne Koger | N/A | 1190449 | Alabama | Alabama Supreme Court | rel: August 21, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190449
Valerie Tremble v. Billy Wayne Koger (Appeal from Jefferson
Circuit Court: CV-17-902824).
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. | August 21, 2020 |
b8b1d384-0668-4d1c-8597-b5d692d19a63 | Ex parte Kenyatta K. Hudson. | N/A | 1190731 | 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 21, 2020
1190731
Ex parte Kenyatta K. Hudson. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL a Pp EALS (In re: Kenyatta K. Hudson v. State of Alabama) (Covington Circuit
Court: CC-12-470.60; Criminal Appeals :
CR-18-0707).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
a714de6c-8baf-434a-b94e-9cf183c6b246 | Capitol Farmers Market, Inc. v. Delongchamp | N/A | 1190103 | Alabama | Alabama Supreme Court | Rel: August 28, 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
____________________
1190103
____________________
Capitol Farmers Market, Inc.
v.
Cindy C. Warren Delongchamp
Appeal from Montgomery Circuit Court
(CV-17-901470)
BRYAN, Justice.
Capitol Farmers Market, Inc. ("Capitol Farmers Market"),
appeals from a judgment entered by the Montgomery Circuit
Court ("the circuit court") in favor of Cindy C. Warren
Delongchamp.
1190103
Background
John Huddleston and Judith B. Huddleston owned certain
real property located in Montgomery County, certain parcels of
which they conveyed to other persons. In July 1982, the
Huddlestons executed and recorded in the Montgomery Probate
Court ("the probate court") a "Declaration of Restrictive
Covenants" ("the 1982 Declaration"). The 1982 Declaration
particularly described certain of the Huddlestons' property
and
specifically
excepted
from
that
description
those
portions
of the property that had been conveyed to other persons before
the 1982 Declaration.
In pertinent part, the 1982 Declaration provided the
following regarding the Huddlestons' property:
"1.
The
Subject Property
shall not
be
subdivided
into or sold in parcels of less than five (5) acres.
"2. Only one single-family dwelling of not less
than 2,500 square feet heated and cooled shall be
erected on each five-acre parcel, which dwelling
shall be used solely for residential purposes. In
addition:
"....
"B. No dwelling or accessory building
or structure shall be located within 100
feet of the property line ....
"5. The Owners herein reserve unto themselves,
2
1190103
their heirs and assigns, and in unanimous concert
with the Grantees of other platted tracts, within
this subdivision, their heirs or assigns, the right,
by
appropriate
written
instrument,
to
waive,
release, amend or annul any one or more of the
foregoing provisions."
In 2003, Delongchamp acquired two adjacent parcels of
property ("the Delongchamp property"). The parties agree that
the Delongchamp property is included within the property
described by the 1982 Declaration and is, therefore, burdened
by the restrictive covenants noted above. In 2015, Capitol
Farmers Market acquired two parcels of property that are
adjacent to one another. The parties agree that one of the
parcels ("the Capitol Farmers Market property") is included
within the property described by the 1982 Declaration. The
Capitol Farmers Market property abuts the Delongchamp
property. It is undisputed that the other parcel acquired by
Capitol Farmers Market is not subject to the restrictive
covenants set out in the 1982 Declaration.
Near the Delongchamp property and the Capitol Farmers
Market property is certain property purchased by Southern
Boulevard Corporation, which, the record indicates, is now
known as Alfa Properties, Inc. ("Alfa"). It is undisputed
that certain of the property owned by Alfa ("the Alfa
3
1190103
property") is also burdened by the restrictive covenants set
out in the 1982 Declaration.
In September 2017, Delongchamp filed a complaint in the
circuit court that, as amended, sought a declaratory judgment
and injunctive relief regarding the Capitol Farmers Market
property. Delongchamp alleged that Capitol Farmers Market was
planning to "subdivide the Capitol [Farmers Market p]roperty
into a high density residential subdivision with proposed lots
being substantially less than the required five (5) acre
minimum." Delongchamp sought a judgment declaring that the
Capitol Farmers Market property was encumbered by the
restrictive covenants set out in the 1982 Declaration and that
Capitol Farmers Market was required to abide by the
restrictive covenants on the Capitol Farmers Market property.
Delongchamp also sought an injunction restraining Capitol
Farmers Market from "violating" the restrictive covenants set
out in the 1982 Declaration "to include, but not limited to,
subdividing the Capitol [Farmers Market] property into lots
less than five (5) acres." Capitol Farmers Market answered
Delongchamp's complaint and amended complaint and asserted a
separate counterclaim; the counterclaim is not pertinent to
4
1190103
this appeal.
The circuit court entered an order appointing a special
master "to recommend a resolution of all issues." Capitol
Farmers Market later moved for a summary judgment regarding
the relief requested in Delongchamp's amended complaint. In
January 2019, the special master conducted what he called "the
final hearing." He stated: "I will take into account the
motion for summary judgment and all the arguments there. But
when I rule, it will be final." The parties presented
arguments and evidence, including ore tenus testimony, to the
special master at the hearing. In August 2019, the special
master filed a report of his findings and his recommendation
in the circuit court.
The circuit court thereafter entered an order, providing,
in pertinent part:
"Based upon the report and recommendations of
the Special Master the Court makes the following
findings and enters the Orders as set forth herein:
"The relevant facts obtained through these
proceedings conclude that the property in question
belonging to [Delongchamp], and the property in
question belonging to [Capitol Farmers Market], as
well as additional property were all subject to a
set
of
restrictions
pursuant
to
the
[1982
Declaration] and recorded on July 7, 1982, in the
[probate court].
5
1190103
"Delongchamp purchased her property by deed
recorded on June 23, 200[3], in the [probate court].
At
the
time
the
Delongchamp
[property]
was
encumbered by the [1982] Declaration and remains so
encumbered to this date.
"Capitol
Farmers
[Market]
purchased
its
property
by deed recorded in the [probate court] on July 2,
2015 .... Prior to the date of the recording of the
Capitol Farmers [Market] deed, Judith B. Huddleston,
as one of the original Declarants under the [1982]
Declaration
unilaterally
executed
a
document
purporting to be a revocation of the [1982]
Declaration. Said document is recorded in the
[probate court] ('the Revocation'). At the time of
the Revocation, Mrs. Huddleston owned no interest in
any of the properties subject to the [1982]
Declaration, including but not limited to the
Delongchamp [property] and the Capitol Farmers
[Market property]. In fact, no property that was
originally subject to the [1982] Declaration has
ever been released from the encumbrance of the
[1982] Declaration prior to, nor since the date of
the purported Revocation. ...
"Since the time of the execution and recording
of the [1982] Declaration, substantial growth has
occurred in East Montgomery and in particular along
Taylor Road and Vaughn Road in the vicinity of the
property in question. However, there has been no
change in the use of the restricted properties. ...
"The
operative
portions
of
the
[1982]
Declaration applicable to the Capitol Farmers
[Market property], the Delongchamp [property], and
[a] parcel ... belonging to [Alfa] provide, among
other things, as follows: (i) 'No dwelling or
accessory building or structure shall be located
within 100 feet of the property line ...'; (ii) no
parcel 'shall be subdivided into or sold in parcels
of less than five (5) acres'; and (iii) any dwelling
shall not be less than 2,500 square feet on the
6
1190103
property. Section 5 of the [1982] Declaration
provided that 'the Owners herein reserve unto
themselves their heirs and [a]ssigns, and in
unanimous concert with the Grantees of other platted
tracts with this subdivision, their heirs and
assigns,
the
right,
by
appropriate
written
instrument, to waive, release amend or annul any one
or more of the foregoing provisions.'
"Capitol Farmers [Market] proposes to develop
the Capitol Farmers [Market property] into more than
twenty (20) lots with most of those lots being fifty
(50) feet wide and approximately one hundred (100)
feet deep. The total number of lots proposed by
Capitol Farmers [Market] on the restricted parcel
and the adjacent unrestricted parcel is 57. ..."
The circuit court's order included lengthy analyses
addressing the issues presented. Based on its analyses, the
circuit court's order concluded, in relevant part:
"1. The [1982] Declaration and the terms and
restrictions contained therein are not ambiguous, or
if ambiguous, the requirements to waive, amend,
release or annul such restrictions require the
consent of all parties burdened and benefitted by
the [1982] Declaration;
"2.
The
present
owners
and
properties
benefitted
and
burdened
by
the
[1982]
Declaration
are
[Delongchamp], [Capitol Farmers Market,] and [Alfa]
and the Delongchamp [property], the Capitol Farmers
[Market property,] and the properties belonging to
[Alfa];
"3.
The
attempted
waiver
of
the
[1982]
Declaration by [Capitol Farmers Market] and ... one
of the original 'Grantors' was insufficient to waive
the application of the restrictions contained in the
[1982] Declaration;
7
1190103
"4. [Delongchamp] purchased the Delongchamp
[property] in reliance upon the benefits and burdens
of the restrictions contained in the [1982]
Declaration;
"5. There exists no change in condition or use
of any of the properties encumbered by the [1982]
Declaration which would prohibit or preclude the
enforcement of the restrictions against the Capitol
Farmers [Market property] or any of the other
properties encumbered by the [1982] Declaration;
"6.
The
[1982]
Declaration
continues
to
encumber
the Capitol Farmers [Market property] and the
Delongchamp [property] and may be enforced by either
party against the property of the other described in
the [1982] Declaration ...."
Capitol Farmers Market thereafter filed a motion,
asserting that the circuit court had improperly entered its
order
without
affording
Capitol
Farmers
Market
sufficient time
and
a
hearing
to
object
to
the
special
master's
recommendation, as contemplated by Rule 53(e)(2), Ala. R.
Civ.
P. The circuit court granted Capitol Farmers Market's motion
and set the matter for a hearing. Capitol Farmers Market
thereafter filed objections to the special master's findings
and recommendations. In September 2019, the circuit court
modified its earlier order to dispose of Capitol Farmers
Market's counterclaim, which, as noted above, is
not
pertinent
to this appeal. Capitol Farmers Market appeals from the
8
1190103
circuit court's final judgment.
Analysis
The issue presented on appeal is whether the circuit
court erred in determining that the restrictive covenants set
out in the 1982 Declaration remain enforceable. Capitol
Farmers Market argues that the circuit court's judgment should
be reversed because, it says: (1) the
neighborhood surrounding
the restricted property at issue has changed so radically that
the purpose of the restrictive covenants can no longer be
accomplished and (2) the terms of the 1982 Declaration
regarding whose consent is required to revoke the restrictive
covenants are ambiguous.
As noted above, the circuit court determined that three
portions of real property are burdened by the restrictive
covenants at issue: the Delongchamp property, the Capitol
Farmers Market property, and the Alfa property. Alfa,
however, is not a party to these proceedings. In pertinent
part, Rule 19, Ala. R. Civ. P., provides:
"(a) Persons to Be Joined If Feasible. 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
9
1190103
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.
"(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."
(Emphasis added.)
In Holland v. City of Alabaster, 566 So. 2d 224, 226
(Ala. 1990), this Court explained the process provided in Rule
10
1190103
19:
"Rule 19, [Ala.] R. Civ. P., provides a
two-step process for the trial court to follow in
determining whether a party is necessary or
indispensable. Ross v. Luton, 456 So. 2d 249, 256
(Ala. 1984), citing Note, Rule 19 in Alabama, 33
Ala. L. Rev. 439, 446 (1982). First, the court must
determine whether the absentee is one who should be
joined if feasible under subdivision (a). If the
court determines that the absentee should be joined
but cannot be made a party, the provisions of
[subdivision] (b) are used to determine whether an
action can proceed in the absence of such a person.
Loving v. Wilson, 494 So. 2d 68 (Ala. 1986); Ross v.
Luton, 456 So. 2d 249 (Ala. 1984). It is the
plaintiff's duty under this rule to join as a party
anyone required to be joined. J.C. Jacobs Banking
Co. v. Campbell, 406 So. 2d 834 (Ala. 1981)."
In City of Gadsden v. Boman, 104 So. 3d 882, 887 (Ala.
2012), we stated:
"The purposes of Rule 19 'include the promotion of
judicial efficiency and the final determination of
litigation
by
including
all
parties
directly
interested in the controversy.' Byrd Cos. v. Smith,
591 So. 2d 844, 846 (Ala. 1991)."
There is no indication that Delongchamp or Capitol
Farmers Market sought to add Alfa as a party below, and
neither party raises an issue concerning Alfa's absence on
appeal.
"However, failure of the plaintiff or the trial
court to add a necessary and indispensable party,
and of the defendant to raise the absence of such
party in his or her pleadings, does not necessarily
11
1190103
dispose of the issue. This defect can be raised for
the first time on appeal by the parties or by the
appellate court ex mero motu. Mead Corp. v. [City
of] Birmingham, 350 So. 2d 419 (Ala. 1977); Davis v.
Burnette, 341 So. 2d 118 (Ala. 1976)."
J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834, 850 (Ala.
1981). See also Miller v. City of Birmingham, 235 So. 3d 220,
230 (Ala. 2017)(noting that the failure to join an
indispensable party can be raised by a court on its own motion
but explaining that the absence of an indispensable party does
not deprive a circuit court of subject-matter jurisdiction);
and Boman, 104 So. 3d at 887 ("Although no one has argued on
appeal that a necessary party was not joined below, 'this
Court is entitled to raise the absence of a necessary party ex
mero motu.' Chicago Title Ins. Co. v. American Guarantee &
Liab. Ins. Co., 892 So. 2d 369, 371 (Ala. 2004).").
The record demonstrates that the parties were aware of
Alfa's potential interest in this litigation and absence as a
party from these proceedings. During the special master's
"final hearing," the following exchange took place between the
special master and counsel for Capitol Farmers Market
concerning whose consent was needed to revoke the restrictive
covenants in the 1982 Declaration and how the circuit court's
12
1190103
resolution of that issue could impact Alfa's rights:
"[Counsel for Capitol Farmers Market]: ... We're
not asking that the covenants be nullified as to the
Delongchamp property or the [Alfa] property. ...
"Special Master: Isn't it, though, that as a result
of your position, taking each one alone or in
concert with one another, isn't the end result that
there are no restrictions on the [Alfa] property or
the Delongchamp property, should they merely say we
don't want them to be there, and then go to whomever
and get them to sign a revocation?
"[Counsel for Capitol Farmers Market]: It's our
position that the Court could determine that the
covenants are null and void solely as to the Capitol
[Farmers Market] property and not disturb the --
"Special Master: But what I'm asking though, is,
taking your argument, wouldn't Alfa have the right
to come in and say to whomever -- I don't know if
Judith Huddleston is still alive, but just assuming
that she's alive, hey, we no longer want those
restrictions to apply, so isn't the end result of
your argument that the restrictive covenants are no
more enforceable than the deed covenants which are
a one-party -- two-party document. And, therefore,
to argue as you are now, that you're not arguing
that they're off here, the end result of your
argument is all the owners of these adjoining
properties have to do is say we revoke and get Mrs.
Huddleston to agree.
"[Counsel for Capitol Farmers Market]: That is our
argument based on the ambiguities that's in the
revocation provision.
"Special Master: So there's no protection then or no
enforceability rights on any other person within the
covenant-described property?"
13
1190103
The special master, counsel for Capitol Farmers Market,
and counsel for Delongchamp then proceeded to discuss how the
revocation provision of the 1982 Declaration should be
interpreted.
Counsel
for
Delongchamp
proffered
his
interpretation that the consent of Delongchamp, Capitol
Farmers Market, and Alfa, "[t]hose assigns, together with
everyone, in unanimous concert is what it takes to revoke the
covenant."
After that discussion, the following exchange occurred:
"Special Master: I'm troubled -- I mean, we've
referenced in testimony and in argument, Alfa,
Southern Boulevard Corporation. If I rule as you
are arguing -- Excuse me. If I rule as [counsel for
Delongchamp] and Delongchamp[] are arguing, am I
making a ruling that's binding on Alfa, and are they
an indispensable party to this action?
"[Counsel for Delongchamp]: Let me say this.
They're aware of this case.
"Special Master: They would love for the answer to
be --
"[Counsel for Delongchamp]: I don't know that they
would. ... I don't know that they have a position
at this point.
"[Counsel for Capitol Farmers Market]: They haven't
objected.
"[Counsel for Delongchamp]: They haven't objected
either way so far.
14
1190103
"Special Master: I may go into this a little bit
more when we get off the [r]ecord, because I don't
think I have a position to make a ruling according
to that. So if there are no further arguments, then
I guess --
"[Counsel for Delongchamp]: I think they would have
had the right to come in and enforce [the
restrictive covenants] like ... Delongchamp. But on
the flip side, they're not trying to remove
covenants on [the Alfa property,] so I don't know
that it affects their property specifically. So I
don't think they are indispensable at this point."
We disagree with the conclusion apparently reached by the
parties' counsel at the "final hearing" insofar as they
determined that Alfa is not a party "to be joined, if
feasible." See Rule 19(a). On that point, we find the
circumstances of this case analogous to those of Withington v.
Cloud, 522 So. 2d 263 (Ala. 1988).
In this case, Capitol Farmers Market "wishes to divide
its property into residential lots smaller than five acres"
and is seeking relief from the restrictive covenants set out
in the 1982 Declaration so that it may do so. Capitol Farmers
Market's brief at 8-9. Similarly, in Withington, the owners
of property located within a subdivision brought an action
against the developer of the subdivision, seeking a judgment
permitting them to subdivide their property into two lots,
15
1190103
which was prohibited by the restrictive covenants of the
subdivision. The trial court dismissed the action under Rule
12(b)(7), Ala. R. Civ. P., because the plaintiffs had not
joined as parties to the action the other owners of property
in the subdivision, giving the plaintiffs 30 days to do so.
The plaintiffs appealed, and we affirmed the trial court's
judgment.
On appeal, in summarizing the developer's argument that
the other owners of property in the subdivision were
indispensable parties, we noted:
"The [developer] cite[s] cases holding that
owners of property subject to restrictive covenants
have mutual easements appurtenant. McCown v.
Gottlieb, 465 So. 2d 1120 (Ala. 1985); Callahan v.
Weiland, 291 Ala. 183, 279 So. 2d 451 (1973); Allen
v. Axford, 285 Ala. 251, 231 So. 2d 122 (1969); Hall
v. Gulledge, 274 Ala. 105, 145 So. 2d 794 (1962);
Scheuer v. Britt, 218 Ala. 270, 118 So. 658 (1928).
The [developer] cite[s] several cases for the
proposition that 'In an action where the final
decree affects title, ownership, or interest in real
property each possessor of title, ownership or
interest must be made a party.' Johnson v.
White–Spunner, 342 So. 2d 754, 759 (Ala. 1977);
Wilson v. Thomason, 406 So. 2d 871 (Ala. 1981);
Holley v. Wright, 408 So. 2d 129 (Ala. Civ. App.
1981). The [developer] assert[s] that it follows
from these two propositions that the trial court did
not err in dismissing the complaint for failure to
join the other property owners.
"None of the cases cited by the [plaintiffs]
16
1190103
contradicts these propositions."
Withington, 522 So. 2d at 264.
We acknowledge the statements made by counsel for Capitol
Farmers Market at the "final hearing" indicating that it is
seeking a determination regarding the enforceability of the
restrictive covenants as they pertain only to the Capitol
Farmers Market property -- not the Delongchamp property or the
Alfa property. However, because "owners of property subject
to restrictive covenants have mutual easements appurtenant,"
Withington, 522 So. 2d at 264, a determination regarding the
restrictive covenants as they relate to the Capitol Farmers
Market
property
necessarily
affects
the
interests
of
Delongchamp and Alfa.
The circuit court's judgment confirms this principle:
"5. There exists no change in condition or use
of any of the properties encumbered by the [1982]
Declaration which would prohibit or preclude the
enforcement of the restrictions against the Capitol
Farmers [Market property] or any of the other
properties encumbered by the [1982] Declaration;
"6.
The
[1982]
Declaration
continues
to
encumber
the Capitol Farmers [Market property] and the
Delongchamp [property] and may be enforced by either
party against the property of the other described in
the [1982] Declaration ...."
(Emphasis added.) In Withington, this Court explained:
17
1190103
"[I]t remains true that the other property owners
have
an
interest
in
the
character
of
the
[subdivision]
as
a
whole
by
virtue
of
the
restrictive covenants, which include a prohibition
against subdivision of lots. Thus, they have an
interest in the [plaintiffs]' property under the
cases cited and are at least 'persons to be joined
if feasible,' in the terms of Rule 19. The
[plaintiffs] have shown nothing to indicate that it
is not feasible to join the other property owners."
522 So. 2d at 265.
Like the other owners of property located within the
subdivision at issue in Withington, Alfa, as one of the three
parties determined by the circuit court to own property
burdened by the restrictive covenants set out in the 1982
Declaration, has "an interest in the character of the
[property] as a whole by virtue of the restrictive covenants."
522 So. 2d at 265. Therefore, Alfa is at least a party "'to
be joined if feasible,' in the terms of Rule 19." Withington,
522 So. 2d at 265. See Rule 19(a).
We also acknowledge the statements made by the parties'
counsel at the "final hearing" indicating that Alfa had notice
of this action and that the parties' counsel are not aware of
any objection Alfa would have to the ultimate outcome of this
litigation. Again, this Court considered a similar assertion
in Withington:
18
1190103
"[The plaintiffs] assert that none of [the other
property owners in the subdivision] has expressed
any opposition to the proposed change, but there are
no affidavits or any other cognizable proof of this
assertion. Moreover, even if this is true, it would
be better practice to join them and give them the
opportunity to oppose the change than to assume that
they have notice of it and would intervene if they
object."
522 So. 2d at 265.
"[S]tatements of counsel are not evidence." Prattville
Mem'l Chapel v. Parker, 10 So. 3d 546, 558 (Ala. 2008). The
statements made by the parties' counsel regarding notice to
Alfa and Alfa's position concerning this litigation do not
amount to evidence regarding those issues. Moreover, even if
there was such evidence in the record, "it would be better
practice to join [Alfa] and give [it] the opportunity to
oppose the change than to assume that [it] has notice of it
and would intervene if [it] object[s]." Withington, 522 So.
2d at 265. In other words, Alfa's position regarding whether
the restrictive covenants in the 1982 Declaration should be
enforced cannot be presumed in Alfa's absence, nor can it be
presumed that Alfa will not initiate subsequent litigation
concerning its rights regarding the restrictive covenants.
Based on the foregoing, we conclude that, as one of the
parties determined by the circuit court to be an owner of the
19
1190103
property restricted by the covenants in the 1982 Declaration,
Alfa possesses an interest
"relating to the subject of th[is] action and is so
situated that the disposition of the action in
[Alfa]'s absence may (i) as a practical matter
impair or impede [Alfa]'s ability to protect that
interest or (ii) leave [Delongchamp and Capitol
Farmers Market] subject to a substantial risk of
incurring
double,
multiple,
or
otherwise
inconsistent obligations by reason of the claimed
interest."
Rule 19(a). At this time, we do not hold that Alfa is an
indispensable party; we hold only that Alfa is a necessary
party that should be joined, if feasible, in accordance with
the requirements of Rule 19(a). See J.R. McClenney & Son,
Inc. v. Reimer, 435 So. 2d 50, 52 (Ala. 1983)(discussing the
conceptual distinction between indispensable parties and
necessary parties). "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." Reimer, 435 So. 2d at 52.
The record does not indicate that any effort was made to
join Alfa as a party to these proceedings. Therefore, it is
unclear, at this time, whether Alfa can be made a party to the
action.
20
1190103
"[B]ecause there is no indication that [Alfa]
'cannot be made a party,' Rule 19(b), the [circuit]
court was not forced to choose between allowing the
action to 'proceed among the parties before it,'
id., or dismissing it. Rule 19(a) requires that,
once it is determined that a 'person needed for just
adjudication' has not been joined, 'the court shall
order that [it] be made a party. ... 'The 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.' J.C. Jacobs Banking Co. v.
Campbell, 406 So. 2d 834, 851 (Ala. 1981), citing
Rogers v. Smith, 287 Ala. 118, 248 So. 2d 713
(1971).'"
Withington, 522 So. 2d at 265; see also Boman, 104 So. 3d at
887 ("Rule 19(a) is mandatory ....").
Thus, we reverse the judgment and remand the cause. On
remand, the circuit court is directed to join Alfa as a party
to this action, if feasible. See Rule 19(a); Boman, 104 So.
3d at 888-89. If Alfa cannot be made a party, the circuit
court should consider the reasons Alfa cannot be joined and
decide whether the action should proceed in Alfa's absence.
See Rule 19(b) and (c). In light of the foregoing, we express
no opinion concerning the merits of the arguments made by the
parties on appeal.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ.,
concur.
21 | August 28, 2020 |
ea4ad467-c729-4d8e-9660-22767eb1a746 | Jordan Mills and Bradley Braswell v. City of Opelika and American Traffic Solutions, Inc. | N/A | 1180268 | 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
1180268
Jordan Mills and Bradley Braswell v. City of Opelika and American Traffic
Solutions, Inc. (Appeal from Lee Circuit Court: CV-17-900507).
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 |
a92810b6-a6c2-4ca8-8868-4500ff1318a1 | Ex parte C.N. | N/A | 1190913 | 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
1190913
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-17-100185.02; Civil Appeals :
2190055).
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 |
4e941fe2-9560-4448-8154-eae1097069f7 | Ex parte Joann Bashinsky. | N/A | 1190193 | 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 21, 2020
1190193
Ex parte Joann Bashinsky. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
In the matter of the Estate of Joann Bashinsky, a protected person) (Jefferson Probate Court:
19BHM02213).
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 21,2020:
Application Overruled. No Opinion. Mendheim, J. - Parker, C.J., and Bolin, Wise, Bryan,
Sellers, and Stewart, JJ., concur. Mitchell, J., recuses himself.
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 2, 2020:
Petition Granted In Part and Denied In Part; Writ Issued. Mendheim, J. - Parker, C.J., and
Bolin, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J., recuses himself.
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 21st day of August, 2020.
Clerk, Supreme Court of Alabama | August 21, 2020 |
48393f0b-87d7-44c8-b6af-01dc8e446b25 | Ex parte Harlon B. Farrar. | N/A | 1180811 | 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 21, 2020
1180811
Ex parte Harlon B. Farrar. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Charles D. Langley v. Harlon B. Farrar) (Marion Circuit
Court: CV-16-900014; Civil Appeals :
2180058).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on August 21,2020:
Writ Quashed. 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 21st day of August, 2020.
Clerk, Supreme Court of Alabama | August 21, 2020 |
dc4026ab-8c93-45d0-905c-e294109c6dfd | Cecelia N. King v. William M. Lyon, Jr. | N/A | 1180520 | 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
1180520
Cecelia N. King v. William M. Lyon, Jr. (Appeal from Mobile Circuit Court:
CV-17-331).
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. 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 June 12, 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 28th day of August, 2020.
Clerk, Supreme Court of Alabama | August 28, 2020 |
ae8802f0-b9e8-430e-92a6-31db5e661d5a | Campbell v. City of Gardendale | N/A | 1180778 | 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
_________________________
1180778
_________________________
Jay Campbell, on behalf of himself and a certified class of
other persons similarly situated
v.
City of Gardendale, Alabama; Jefferson County, Alabama; and
J.T. Smallwood, in his official capacity as Tax Collector of
Jefferson County, Alabama
Appeal from Jefferson Circuit Court
(CV-18-900762)
SHAW, Justice.
The plaintiff below, Jay Campbell, on behalf of himself
and a certified class of "other persons similarly situated,"
appeals from a summary judgment on claims challenging the
1180778
constitutionality of two municipal taxes adopted in 2013 by
the City of Gardendale ("Gardendale") in connection with
Gardendale's planned creation of a municipal school system.
We affirm.
Facts and Procedural History
Because Gardendale, which is located in Jefferson County
("the
County"),
lacks
a
municipal
school
system,
public-school
students
residing
in
Gardendale have
attended
schools
operated
by the Jefferson County Board of Education ("the County Board
of Education"). "A racial desegregation order issued in 1971
still governs the Jefferson County Board of Education in
Alabama." Stout v. Jefferson Cty. Bd. of Educ., 882 F.3d 988,
991 (11th Cir. 2018). Residents of the County pay an ad
valorem tax ("the county school tax"), imposed pursuant to
Amendment No. 82, Ala. Const. 1901 (codified as Local
Amendments, Jefferson County, § 14, Ala. Const. 1901 (Off.
Recomp.)) ("Local Amendment 14"),1 which is discussed in depth
below. All proceeds of the county school tax are remitted
1According to Gardendale, "Local Amendment 14 authorized
only 5 mills but later amendments ... increased the millage
[to the current] rate [of] 8.8."
2
1180778
directly to the County Board of Education for education-
related purposes.
In or around 2012, Gardendale undertook steps toward
establishing a municipal school system. Stout, 882 F.3d at
991, 997. In connection with this, plans were made for the
creation of a separate school board and for the levying of
municipal taxes to support the proposed municipal school
system. Id. at 998. In 2013, Gardendale's City Council
adopted Ordinance No. 2013-11, approving, for the tax year
beginning October 1, 2013, the collection of a five-mill ad
valorem tax.2 Ordinance No. 2013-11 was titled "[An]
Ordinance Establishing the Levy of a 5-Mill Ad Valorem Tax on
All Property in the City of Gardendale for Public School
Purposes" and stated that the resulting proceeds "shall be
used for public school purposes." Also in 2013, the citizens
of Gardendale later ratified by referendum vote "an additional
5-mill ad valorem tax ... for public school purposes" (the
2As demonstrated by their filings below, the parties
appear to agree that, under Ala. Const. 1901, Art. XI, §§ 216
and 216.04, a municipality may levy up to a 5-mill general ad
valorem tax for any lawful municipal purpose by city-council
action alone; the levy amount may be increased to up to 12.5
mills by a vote of all qualified electors in the municipality.
3
1180778
foregoing taxes are hereinafter collectively referred to as
"the Gardendale school taxes"). The Gardendale City Council
next appointed the members of an inaugural board of education
("the Gardendale Board of Education"), which then selected a
superintendent.
After protracted litigation in federal court challenging
Gardendale's ongoing plans as being in violation of a prior
federal desegregation order, the United States Court of
Appeals for the Eleventh Circuit released its opinion in
Stout, supra. The court held that Gardendale failed to comply
with precedent requiring the proposal and defense of "a
secession plan that will not impede the desegregation efforts
of the school district subject to an ongoing desegregation
order." 882 F.3d at 1013. While acknowledging the
possibility that Gardendale might, "for permissible purposes
in the future, satisf[y] its burden to develop a secession
plan that will not impede the desegregation efforts of the
Jefferson County Board [of Education]," the Eleventh Circuit
concluded that Gardendale's present plan did not clear the
requisite legal hurdles. Id. at 1016. Therefore, the court
remanded the matter with instructions that the federal
4
1180778
district court deny Gardendale's attempt to withdraw from the
County Board of Education school system to form a municipal
school system. Id. at 1017.
Subsequently, Campbell, a Gardendale resident, filed a
complaint against Gardendale; the County; and J.T. Smallwood,
the County's tax collector, seeking class-based relief on
behalf of himself and all other similarly situated Gardendale
taxpayers. Campbell alleged that, despite representations
that the proceeds generated by the Gardendale school taxes had
been set aside for application to school-formation efforts,
those proceeds had, instead, been applied toward "(1) paying
school administrators to supervise a non-existent school
system, and (2) funding lawyers to prosecute" the
unsuccessful
effort to form the new municipal school system. He further
alleged that the Gardendale school taxes themselves were, for
various reasons, illegal. Relevant to the present appeal,
Campbell argued that Local Amendment 14 forbade the
simultaneous collection of both the county school tax and any
"special additional tax" like the Gardendale school taxes.
Campbell sought various forms of relief, including, but not
limited to, a judgment declaring the Gardendale school taxes
5
1180778
illegal, injunctive relief, and an order distributing the
proceeds collected from the Gardendale school taxes to class
members.
In lieu of an answer, Gardendale filed, pursuant to Rules
12(b)(6) and 56, Ala. R. Civ. P., a motion seeking, on various
grounds, to dismiss Campbell's complaint. Specifically,
Gardendale argued that Campbell failed to state a claim upon
which relief could be granted and that his action reflected a
third identical attempt at class-based relief filed by
Campbell's counsel of record. It explained that those prior
actions had allegedly been dismissed on the ground that,
because Gardendale then did not have a legally recognized
school system, "the case was not ripe for adjudication."
Relying
on
those
prior
dismissals,
Gardendale's
motion
invoked
principles of "issue preclusion."
Gardendale also argued that, because it had no school
system, the Gardendale school taxes were not implicated by
Local Amendment 14 and that Campbell cited no precedent for
the proposition that the Gardendale school taxes and the
county school tax were mutually exclusive.
Gardendale further
maintained that it levied and is collecting standard municipal
6
1180778
ad valorem taxes, the proceeds of which could be used in
Gardendale's discretion to fund the County Board of Education
schools
located
within
Gardendale's
municipal
limits
regardless of whether Gardendale operated its own municipal
school system. Based on the foregoing and its accompanying
exhibits,3
Gardendale sought dismissal of
Campbell's complaint
in its entirety or a summary judgment in its favor on the
claims included in the complaint.
Thereafter, the County filed its own motion to dismiss
incorporating Gardendale's motion as to the purported
preclusive effect of the prior litigation and the absence of
any change in circumstances since those dismissals. The
County further argued that Campbell had failed to name in his
complaint the County Board of Education, which, it alleged,
was the recipient of all proceeds of the county school tax
and, given Campbell's claims for monetary relief, was a
necessary party as defined by Rule 19, Ala. R. Civ. P.
3Gardendale's exhibits included, among other items, a
prior class-action complaint filed against Gardendale in the
Jefferson Circuit Court, case no. CV-2017-900254, alleging
similar claims to those included in Campbell's complaint and
the order issued by the Jefferson Circuit Court dismissing
that case.
7
1180778
Smallwood also filed a separate motion noting that Campbell's
complaint failed to allege that Smallwood did not properly
perform his official duties and did not request any particular
form of relief against him. Smallwood therefore maintained
that Campbell's complaint failed to state a claim against him.
In his response in opposition to the motions to dismiss,
Campbell argued, among other things, that the decision in
Stout and Gardendale's failure to appeal that ruling "legally
precluded [Gardendale] from having a school district and
operating schools" –- a preclusion that, according to
Campbell, rendered the Gardendale school taxes illegal and
led to the underlying litigation.4 Campbell also maintained
that Gardendale could not continue to collect the Gardendale
school taxes for the purpose of funding a school system that,
he argued, it could not legally operate. Alternatively,
Campbell contended that, even if the Gardendale school taxes
were lawful, the county school tax had been illegal since the
imposition of the Gardendale school taxes under a theory that
4Campbell's
pleadings
below
further
suggest
that
Gardendale "announced publicly that [it] was not going to seek
to operate schools."
8
1180778
the illegality of "double taxation" prevents collection of
either one or the other.
After a hearing, the trial court initially denied the
motions to dismiss and ordered the defendants to answer
Campbell's
complaint.
Thereafter,
proceedings
ensued
regarding the class-certification process and Campbell's
request for injunctive relief. In addition, Campbell filed
his own "Motion for Judgment on the Pleadings or for Summary
Judgment" on essentially the same grounds he had cited in
opposition to the defendants' earlier motions.
Following further filings and related proceedings in this
Court,5 the trial court entered an order holding that the
prior litigation cited by Gardendale and the County had no
preclusive effect on the instant action. Thereafter, the
parties stipulated to the propriety of class certification.
After the trial court's entry of a class-certification
order, it entered a "Final Order" denying Campbell's pending
5Gardendale filed a petition for a writ of mandamus in
this Court, which this Court denied. Ex parte City of
Gardendale (No. 1171214, Dec. 14, 2018), 291 So. 3d 1161 (Ala.
2018) (table).
9
1180778
motion for a judgment on the pleadings or for a summary
judgment, which stated, in part:
"Nothing in
Local
Amendment 14
prevents the
City
of Gardendale from levying a municipal ad valorem
tax. Plaintiffs really do not make this contention,
instead arguing that Gardendale's decision to levy
the 10-mill ad valorem taxes earmarked for public
educational purposes may not operate alongside [the]
County's levy of the 8.8 mill [county school] tax.
"The court agrees with the defendants that the
restriction on special or additional municipal
school tax, as found in Local Amendment 14, pertains
to any such taxes levied by [the] County for the
benefit of a school district found therein. Local
Amendment 14 does not address municipal ad valorem
taxes levied pursuant to Ala. Const., Art. XI,
Sections 216, et seq. Rather, Local Amendment 14
serves to limit a municipal public school district
from benefiting from [the] County levy within the
district of more than 8.8 mills (absent some other
grant of authority within the Alabama Constitution).
"Because Gardendale's municipal ad valorem levy
is not a 'special or additional tax' for municipal
public school purposes within the meaning of Local
Amendment 14, such taxes are here declared to be
lawfully levied and collected. Further, the court
declares that [the] County's school district tax of
8.8 mills is also being lawfully levied and
collected in the Gardendale municipal limits.
"Plaintiffs'
Motion
for
Judgment
on
the
Pleadings or for Summary Judgment ... is accordingly
denied. Further, the court sua sponte reconsiders
its prior order that had denied the defendants'
motions to dismiss or in the alternative for summary
judgment.... That order is vacated, and the court
now grants summary judgment in favor of the
10
1180778
defendants on all claims of the plaintiffs, for the
reasons discussed above."
Campbell appeals.
Standard of Review6
"'"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
6Because the trial court's order specifically provided
that it considered filings of the parties other than and/or in
addition to Campbell's complaint, we treat the order as a
summary judgment in the defendants' favor. See Rule 12(b),
Ala. R. Civ. P. ("If, on a motion ... to dismiss for failure
of the pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56, [Ala.
R. Civ. P.].").
11
1180778
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 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).
Discussion
Local Amendment 14 provides, in pertinent part:
"Jefferson county shall have power to levy and
collect an additional tax ... for public school
purposes ...; provided that in any incorporated
municipality where special or additional taxes are
being levied and collected for public school
purposes, including the servicing of debts incurred
for public schools, the additional tax herein
provided for shall be reduced by the amount of such
special or additional municipal public school taxes
in the corporate limits where such special or
additional municipal public school taxes are being
levied and collected ...."
(Emphasis added.) Local Amendment 14 thus provides for the
county school tax, but when a municipality has "special or
additional taxes ... for public school purposes," the county
school tax is reduced by the extent of those taxes.
12
1180778
Campbell identifies the "core legal issue" in this case
as "whether [the] Gardendale [s]chool [t]axes are 'special or
additional municipal taxes which are being levied and
collected for public school purposes' in Local Amendment 14's
parlance." Campbell's brief at p. 13. Because, according to
him, Local Amendment 14 prohibits "double taxation," either
the county school tax or the Gardendale school taxes must
"yield" to the other. Campbell argues that because Gardendale
was not actually operating a school system and its students
were instead attending schools operated by the County Board of
Education, it would be "absurd" to suggest that the county
school tax would be reduced by operation of Local Amendment
14. Thus, in order to invalidate the "double taxation," which
Campbell maintains is the goal of Local Amendment 14, he
asserts that the Gardendale school taxes must be invalidated.
Gardendale, however,
maintains that
the
Gardendale school
taxes were imposed pursuant to the authority of § 11-51-1,
Ala. Code 1975,7 which, it says, provides for the levy of
7Section 11-51-1 provides, in pertinent part:
"After October 1 of each year, cities and towns
may levy taxes upon property and all subjects of
taxation liable therefor at a rate not in excess of
13
1180778
property taxes by a municipality "for any lawful municipal
purposes." Gardendale's brief at p. 6. More specifically, it
contends that the mere earmarking of the resulting proceeds
for public-school purposes does not convert such taxes into a
"municipal public school tax" as described in Local Amendment
14, which, it continues, "refers to municipal school district
taxes
...
for
existing
municipal
school
districts."
Gardendale's brief at p. 7. Gardendale also counters that
"special" or "additional municipal public school taxes" may
be
levied only in a municipal school-tax district that has a
public-school system, which Gardendale does not.
"'The Constitution is a document of the people. Words or
terms used in that document must be given their ordinary
meaning common to understanding at the time of its adoption by
the people.'" Opinion of the Justices No. 376, 825 So. 2d
109, 114 (Ala. 2002) (quoting McGee v. Borom, 341 So. 2d 141,
143 (Ala. 1976)). In applying our constitution, this Court
the constitutional limit upon assessments to be made
by the city or town clerk or other person designated
by the council or other governing body, such
assessment to be made on the state assessment in the
manner provided by the Constitution of the state or
in the manner hereinafter authorized by law."
14
1180778
"adhere[s] to the plain meaning of the text." Jefferson Cty.
v. Weissman, 69 So. 3d 827, 834 (Ala. 2011). If we must
construe a provision of the Constitution, "we are, if
possible, to give the instrument such construction as will
carry out the intention of the framers, and make it reasonable
rather than absurd." State ex rel. Covington v. Thompson, 142
Ala. 98, 107, 38 So. 679, 682 (1905).
According to Local Amendment 14, the type of municipal
taxes that reduce the county school tax are "special or
additional taxes ... levied and collected for public school
purposes." Campbell focuses his legal argument on whether the
Gardendale school taxes are "special or additional taxes" but
appears to presume that they are "collected for public school
purposes." This latter phrase, however, is key. Broadly
viewed, this phrase could refer to the collection of taxes to
fund a future school system, i.e., "public school purposes"
refers to any purpose connected to public education in any
way, including taxes to create a school system. Under this
reading, the county school tax and funding to the County Board
of Education is reduced even though no municipal schools are
built or operating, no separation of the municipal system from
15
1180778
the County Board of Education has occurred,8 and municipal
public-school students are still attending the county
schools.9
A more narrow reading of the phrase "collected for public
school purposes" is that it refers to the actual operation of
a municipal school system. In that scenario, under Local
Amendment 14, the municipal taxes would be paying for the
actual operation of municipal schools by a municipal school
board instead of the County Board of Education, and the county
school tax is accordingly reduced. Applying that reading in
the instant case, the county school tax would continue to be
collected in full while the County Board of Education still
operated the schools in Gardendale. Only when the Gardendale
8See, e.g., § 16-8-20, Ala. Code 1975 (providing a process
for a city board of education to take control of annexed
portions of territory controlled by a county board of
education, including the requirement that the county board of
education retain supervision and control of the affected
schools until a separation agreement is reached). According
to Gardendale, prior municipal school districts separating
from the County Board of Education entered into such
separation agreements. It further asserts that it has never
entered into a separation agreement with the County Board of
Education.
9If such a reading is, as Campbell suggests, absurd, then
the rules of constitutional interpretation counsel that the
reading should not be applied. State v. Thompson, supra.
16
1180778
Board of Education actually started operating schools and the
County Board no longer needed to expend funds on schools it
operated in Gardendale would the county school tax be reduced
in accord with the amount collected through the Gardendale
school taxes.10
In any event, under either reading of Local Amendment 14
-- and we do not select one reading today because, as
explained below, it is unnecessary -- when a municipal tax is
one as described in Local Amendment 14, the effect is clearly
provided by Local Amendment 14: the county school tax is
reduced by the amount of the municipal tax.
10This second reading -- that "public school purposes"
refers to the operation of schools -- is supported by the text
of Local Amendment 14. Specifically, it gives as an example
of the municipal taxes that reduce the county school tax as
those that are "servicing of debts incurred for public
schools," and, in another portion of the amendment not quoted
above, provides that tax funds arising from within a
municipality actually operating schools shall be expended by
the municipal authority over those schools:
"So long as the public schools in any incorporated
municipality are operated separately from those of
Jefferson county, the funds arising from such
additional
tax
on
taxable
property
in
such
municipality shall be expended only by the board of
education or other authority charged with the
operation of the public schools in such municipality
and only for the benefit of the public schools
therein."
17
1180778
Under Campbell's theory of the case, the purpose of Local
Amendment 14 is to prevent "double taxation," it must operate
to invalidate any taxes that violate that principle, the only
taxes that may be invalidated in this case without an absurd
result are the Gardendale school taxes, and, thus, those taxes
must be rendered invalid. We disagree. Local Amendment 14 by
its terms is not a scheme to regulate, restrict, or prohibit
any or all taxation -- county-wide or municipal -- related to
school purposes. Its language simply provides for the levy of
one tax -- the county school tax -- to support schools in
Jefferson
County
with
an
exception and
corresponding reduction
of the tax in municipalities within the county if certain
municipal school taxes exist. If such municipal taxes are not
actually being used for school purposes, and instead the
county school tax is still levied in full and the County Board
of Education still continues to operate the schools in that
municipality, nothing in the language in Local Amendment 14
and no authority provided by the parties indicate that the
municipal taxes are rendered invalid by operation of Local
Amendment 14. Instead, the result that is actually prescribed
by the amendment, if applicable, would be that the county
18
1180778
school tax is reduced.11 Nothing in Local Amendment 14
requires that municipal taxes be rendered invalid because the
amendment itself calls for a different result. Further,
Campbell has not demonstrated that Local Amendment 14
expresses a policy preference against "double taxation" that
must be enforced in this case by invaliding municipal taxes
that Local Amendment 14 does not regulate; instead, the
amendment is limited to governing only the county school tax.
Thus, we need not determine whether the Gardendale school
taxes are "special or additional taxes" being levied and
collected for public-school purposes, which is extensively
briefed by the parties, because, even if they are, they are
not, as Campbell argues, rendered invalid solely by operation
of Local Amendment 14. Whether the Gardendale school taxes
are invalid under other theories -- for example, they were
ostensibly enacted or earmarked to fund a school system but
are not being used for that purpose -- was heavily litigated
in the trial court, but such theories are not raised and
advanced on appeal and are not before this Court. Thus, they
11According to Campbell, in the 2017 election to
reauthorize the county school tax, Gardendale was excluded,
suggesting that the county school tax is no longer being
collected in Gardendale.
19
1180778
are waived for purposes of this appeal. Tucker v.
Cullman-Jefferson Ctys. Gas Dist., 864 So. 2d 317, 319 (Ala.
2003).
Conclusion
Campbell has not demonstrated that the Gardendale school
taxes are rendered invalid by operation of Local Amendment 14.
We therefore pretermit discussion of the alternate arguments
for affirmance presented by Jefferson County and Smallwood.
The judgment of the trial court is affirmed.
AFFIRMED.
Parker, C.J., and Bolin, Wise, Bryan, Mendheim, Stewart,
and Mitchell, JJ., concur.
Sellers, J., concurs in the result.
20 | September 4, 2020 |
b2a50201-888e-4365-bc8f-84ff46ce6b3b | Ex parte Anthony Ball. | N/A | 1190554 | 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 21, 2020
1190554
Ex parte Anthony Ball. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APp Ea LS (In re: Anthony Ball v. State of Alabama) (Pickens Circuit Court:
CC-10-272.61; Criminal Appeals :
CR-19-0087).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
a690a514-204b-4616-86cf-4abe88e6621c | Ex parte James Matthew Hyde. | N/A | 1190777 | 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 21, 2020
1190777
Ex parte James Matthew Hyde. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: James Matthew Hyde v. State of Alabama) (Marshall Circuit
Court: CC-95-200099.62; Criminal Appeals :
CR-18-1138).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
1af200a1-ee6b-4418-834c-7f7298d99e19 | Ex parte Russell Lee Williamson. | N/A | 1190460 | 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 21, 2020
1190460
Ex parte Russell Lee Williamson. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Russell Lee Williamson v. State of Alabama) (Jefferson
Circuit Court, Bessemer Division: CC-16-307; Criminal Appeals :
CR-17-1234).
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 August 21,2020:
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 21st day of August, 2020.
Clerk, Supreme Court of Alabama | August 21, 2020 |
be59466c-d9ca-431c-8998-5ade920b8b30 | Spencer v. Remillard | N/A | 1180650 | 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
____________________
1180650
____________________
Kimberlee Spencer, as personal representative
of the Estate of James Scott Spencer, deceased
v.
Michael A. Remillard, M.D.,
and Helena Family Medicine, LLC
Appeal from Shelby Circuit Court
(CV-11-900701)
MENDHEIM, Justice.
Kimberlee
Spencer
("Kimberlee"),
as
personal
representative of
the estate of James Scott Spencer ("Scott"),
her deceased husband, appeals from a judgment as a matter of
1180650
law entered by the Shelby Circuit Court ("the trial court") at
the close of Kimberlee's medical-malpractice case against
Michael A. Remillard, M.D., and Helena Family Medicine, LLC,
the entity through which Dr. Remillard operates his family-
medicine clinic ("the clinic"). We reverse and remand.
I. Facts
A. Dr. Remillard's Patient Care of Scott
In 2001, Scott began seeing Dr. Remillard as his family
doctor at the clinic. Dr. Remillard is board certified in the
specialty of family-medicine practice and has been practicing
medicine since 1997. On a visit in 2006 for a physical, Scott
informed Dr. Remillard that his father had been diagnosed with
early-stage prostate cancer. Scott had blood work and lab
tests done during the 2006 visit, including a PSA test, which
is a blood test used to assess a man's risk for developing
prostate cancer. At that time, Scott's PSA level was 1.9,
which was within the normal range for a man his age, 46 years
old.
On
September
28,
2009,
Scott
again
visited
Dr. Remillard. Scott told Dr. Remillard that he had seen some
blood in his stool, and Dr. Remillard performed a rectal
examination on Scott. Dr. Remillard concluded from that exam
2
1180650
that Scott's prostate was firm and normal, so he recommended
that Scott get a colonoscopy to determine if there was a
problem with his colon. Scott also had blood work done during
the 2009 visit. At that time, Scott's PSA level was 14.3,
which Dr. Remillard and Kimberlee's medical experts agreed is
an elevated PSA level for a 49-year-old.
A pivotal factual dispute in this case centers on when
Dr. Remillard and Helena Family Medicine first informed Scott
of the 2009 elevated PSA level. Dr. Remillard testified at
trial that the standard practice at the clinic was to have
patients who have lab tests taken during a visit fill out a
postcard with the patient's mailing address. The patient is
told that, if lab-test results come back as normal, the
patient will receive the postcard in the mail approximately a
week to 10 days later and that, if the lab-test results are in
any way abnormal, the patient will receive a telephone call
from the clinic. Dr. Remillard further testified that he
evaluated Scott's 2009 lab-test results soon after he
received
them and that he wrote on the lab report that Scott's
cholesterol level was normal but that his PSA level was
elevated and that he needed to be evaluated by a urologist.
3
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The 2009 lab report contains an undated handwritten note to
that effect. Dr. Remillard's certified medical assistant
("CMA"),
Joan
Ehlman,
testified
that
she
received
Dr. Remillard's lab-report note and that on October 1, 2009,
she telephoned Scott and left a message on his cell-phone
voicemail informing him that he had an abnormal lab-test
result that he needed to discuss either with her or in a
follow-up appointment with Dr. Remillard.1 A notation written
on Scott's lab report by Ehlman states: "10/1/09 - L.M. [left
message] to call." Ehlman further testified that the next day
she heard a voicemail message left by Scott sometime after
5:00 p.m. on October 1, 2009 -- after close of business at the
clinic -- in which he stated that he would make a follow-up
appointment with Dr. Remillard.2 Ehlman made another notation
1Ehlman testified that she did not provide Scott's PSA
lab-test result in the voicemail because it would violate
regulations promulgated pursuant to the Health Insurance
Portability and Accountability Act based on concerns as to who
may have access to voicemail accounts.
2Scott's AT&T cell-phone call log for that period was
introduced into evidence. Dr. Remillard and Helena Family
Medicine contend that the phone records support Ehlman's
testimony about her phone call and Scott's return call.
Kimberlee contends that the call log demonstrates that Scott
actually talked to a person when he called the clinic.
4
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on Scott's lab report documenting that voicemail: "10-1-09 -
pt. [patient] left message - he will RTO [return to office]."
In contrast, Scott testified by video deposition that he
called the clinic on October 1, 2009, to inquire about his
cholesterol level and that he spoke with an individual who
"told [me] that my cholesterol was within acceptable levels
and my triglycerides were a little out of whack. But,
otherwise, no other information was provided to me. There was
no mention of PSA levels." Scott stated that he therefore did
not make a follow-up appointment with Dr. Remillard in 2009.
Scott testified that his father passed away in April 2010 and
that his mother became ill that same year, and so he failed to
visit Dr. Remillard in 2010.
Scott next visited Dr. Remillard on April 7, 2011. Scott
testified that he made the appointment because he was
experiencing discomfort around his bladder area and
was
having
some trouble urinating. During that visit, Dr. Remillard did
not tell Scott about his 2009 elevated PSA level, but he did
perform a rectal examination, and he determined that Scott's
prostate was enlarged. Dr. Remillard diagnosed Scott with
benign prostatic hyperplasia, and he prescribed Scott some
5
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medication for the condition. Blood work was also performed
on Scott at the April 7, 2011, visit.
Shortly after the April 7, 2011, visit, Scott called the
clinic to relate that he was experiencing swelling in his
right leg. The clinic scheduled a sonogram for Scott's right
leg to determine whether he had a blood clot. On April 21,
2011, Scott returned to the clinic for the sonogram and saw
Dr. Remillard. Dr. Remillard told Scott that the sonogram was
negative, but he also informed Scott that he had an elevated
PSA level and that he was referring Scott to a urologist for
an immediate consultation.3 Scott testified that it was at
the April 21, 2011, clinic visit that he first learned that he
had had an elevated PSA in 2009.
Scott visited a urologist the following day and was
diagnosed with stage IV metastatic prostate cancer: scans
showed that the cancer had spread to his lymph nodes and his
bones. Scott underwent a variety of treatments over the
course of a few years, but he died as a result of the cancer
on March 6, 2014.
3Scott's PSA level from the blood work done on April 7,
2011, was 131, a dangerously high level.
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B. Litigation in the Trial Court
On July 29, 2011, Scott and Kimberlee commenced an action
under the Alabama Medical Liability Act, § 6–5–480 et seq. and
§ 6–5–540 et seq., Ala. Code 1975 ("the AMLA"), against
Dr.
Remillard
and
Helena
Family
Medicine
(hereinafter referred
to collectively as "the defendants"). They alleged that the
defendants failed to inform the Spencers about Scott's 2009
elevated PSA level in a timely fashion and that, if Scott had
been timely informed, he could have received treatment for his
prostate cancer beginning in 2009. They further alleged that,
in 2009, Scott's prostate cancer had not metastasized -- i.e.,
had not spread beyond his prostate to his bones and lymph
nodes -- and thus that, if he had received treatment at that
time, his prognosis for a cure of the cancer would have been
very good. After Scott's death, Kimberlee amended the
complaint to assert claims of wrongful death against the
defendants based on the same alleged facts.
The case was initially set to be tried on December 11,
2017. The parties submitted several pretrial motions,
including motions in limine. One motion in limine relevant to
this appeal is the defendants' motion in limine #24
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("MIL #24"), which sought to preclude Kimberlee from "offering
any argument, evidence, or testimony regarding any alleged
breach of the standard of care relative to Mr. Spencer's
April 7, 2011 office visit to" the clinic. The defendants
argued that Kimberlee had never alleged that a breach of the
standard of care had occurred on April 7, 2011, and thus, they
asserted, Kimberlee should not be permitted to insinuate that
Dr. Remillard did anything wrong by not informing Scott of his
2009 elevated PSA level during the April 7, 2011, clinic
visit. The trial court granted MIL #24, ruling that Kimberlee
could elicit testimony from Dr. Remillard as to what did occur
during the April 7, 2011, clinic visit but that she could not
ask any questions pertaining to what did not happen on that
visit -- e.g., that Scott was not told about the elevated 2009
PSA level.
In another motion in limine ("MIL #26"), the defendants
sought to prohibit any witness "from offering testimony
regarding
'safer'
or
'better'
approaches or
otherwise equating
or suggesting that safety defines the standard of care"
because, they asserted, the actual standard of care under the
AMLA is that a physician must provide "reasonable care." The
8
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trial court granted MIL #26, concluding that the AMLA
precluded any use of the term "patient safety."
The defendants filed three motions in limine that
collectively sought to preclude Kimberlee's expert, Jennifer
Wood, a CMA, from offering testimony concerning the standard
of care for a CMA when notifying patients about abnormal lab-
test results based on instructions from a supervising
physician. The defendants contended that, under the AMLA,
Wood was not a "similarly situated health care provider" to
Ehlman because, in the year preceding the care at issue
(2008-09), Wood had worked as a CMA at a cardiovascular clinic
rather than at a family-medicine clinic and, as such, had not
communicated an abnormal PSA lab-test result to a patient
during that period. The trial court precluded Wood from
testifying.
In the trial that began on December 12, 2017, Kimberlee's
counsel gave an opening statement in which counsel purportedly
violated the trial court's ruling pertaining to MIL #24 by
referencing the fact that Dr. Remillard did not tell Scott
about the elevated 2009 PSA level during the April 7, 2011,
clinic visit. Upon a motion from the defendants, the trial
9
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court granted a mistrial based on the purported violation.
The second trial was set for April 8, 2019. At a pretrial
hearing for the second trial, the trial court adopted its
previous rulings concerning the parties' motions in limine
after hearing some additional arguments regarding MIL #24 and
the motions respecting CMA Wood.
During the second trial, Kimberlee presented video-
deposition testimony from Scott, deposition testimony from
AT&T phone analyst Marti Shuper, live testimony from CMA
Ehlman, live testimony from Dr. Remillard, live testimony from
Kimberlee's medical experts, Dr. Joe Haines and Dr. Joph
Steckel, and live testimony from Kimberlee. We will recount
the testimony that is pertinent to this appeal.
1. Testimony from Kimberlee's Standard-of-Care
Expert
Kimberlee's standard-of-care expert, Dr. Joe Haines,
testified that he had practiced in family medicine for
38 years and that he had been board certified in family-
medicine practice for the past 30 years. Dr. Haines's
deposition testimony and his curriculum vitae revealed that
during most of his career he had been in private family-
medicine practice, including founding and owning his own
10
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family-medicine practice from 1982 to 1997, and
that afterward
he had worked in other family-medicine clinics. However,
Dr. Haines testified at trial that, in 2005, he was
commissioned as a lieutenant commander in the United States
Navy Medical Corps and stayed in the service for 11 years. As
part of that service, starting in 2007, he entered an
aerospace residency program to earn his wings as a flight
surgeon. During 2007-08, Dr. Haines did classroom work as
part of the aerospace residency program to earn a master's
degree in public health, and he did not treat patients during
that period. Between 2008 and 2010, Dr. Haines practiced as
a resident in the aerospace residency program at the Naval Air
Station in Pensacola, Florida. Concerning that period,
Dr. Haines testified on cross-examination as follows:
"Q. And as you said in another deposition, that did
not involve family medicine. You have testified to
that?
"A. No, that did involve seeing patients, family
medicine patients, aerospace medicine patients, you
know, anything within my privileges that I had with
the Navy."
Also on cross-examination, Dr. Haines further testified that,
during his aerospace residency, he "moonlighted" at private
clinics outside the Naval station.
11
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"Q. Moonlighting in emergency rooms and things of
that sort?
"A. Urgent care centers primarily.
"Q. Urgent care?
"A. Yes.
"Q. Okay. Not a community-based family practice
program. You may have brought some of those skills
to bear at the urgent care, I'm not arguing that,
but as you told me under oath, not in a private
community-based family practice clinic, correct,
sir?
"A. No. Some of these were hybrids, they were
family practice/urgent care. The one in New Bern,
North Carolina, for example, you did both family
practice and urgent care simultaneously.
"Q. Did you testify in this case that you were not
functioning in a private family practice clinic
capacity during the time that you were in the
aerospace program even though you did moonlight in
these urgent care centers?
"A. Well, if I did, the statement -- [what] I meant
was I was not operating a private practice on my
own.
"....
"Q. So you wouldn't be -- during that period of time
that you were in that residency program, you would
not have been in the position of being the one to
oversee or manage any system of notification of
patients on a daily basis, would you?
"A. Correct.
12
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"Q. All right. And that would be true for the time
that you were in the aerospace residency program
from '08 to '10 until you finished and went back
into private practice?
"A. Yeah, but I had done it my whole career.
"Q. I understand that. And you did it for years, I
think, prior to going into the Navy? I'm not --
"Q. Twenty-four years."
(Emphasis added.) Dr. Haines also stated that "I have always
practiced family medicine in some capacity" and that,
following his service in the military, he returned to private
family-medicine practice and continues to practice family
medicine.
With respect to the applicable standard of care in this
case, Dr. Haines testified on direct examination that, in his
opinion, Dr. Remillard had breached the standard of care in
two respects.
"Q. And what breaches did you identify?
"A. Well, very -- very simply, in 2009, a failure to
provide Mr. Spencer with the abnormal PSA result of
14.3. And secondly, a failure to refer him to a
urologist for further evaluation, diagnosis and
treatment of prostate cancer.
"Q. So what -- what did the standard of care require
in this case?
13
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"A. Well, the standard of care required some means
of providing the patient with the information, that
he had an elevated PSA and, in fact, it was seven
times the elevation of what his previous PSA was,
which was 1.9. And to be the advocate for that
patient, and have him understand that this was a
serious problem that could well be cancer, that
could shorten his life.
"Q. So why is that the standard of care?
"A. Well, the standard of care is because, you know,
as a physician, I have the -- other physicians, we
have the knowledge, we understand what an elevated
PSA means. And a layman may not. He may not
understand what that means. And so standard of care
says you -- we have -- we have a duty and
responsibility to provide that information to the
patient so they can make an informed decision, so
they can, you know, realize in their mind, hey, this
is important; I need to go, you know, follow through
and get the right treatment and find out what the
options are."
Dr. Haines expanded on this opinion as follows:
"Q. ... If Mr. Spencer did, in fact, call the
office, Helena Family Medicine, on October 1st,
2009, and leave a voicemail saying that he will
return to the office, would the duty to inform Mr.
Spencer about that abnormal PSA and the duty to
refer him to a urologist, would it end at that
point?
"A. No, it would not.
"Q. Why not?
"A. Because the duty doesn't end until the physician
knows that the patient has been turned over to the
care of the urologist. So -- because if we don't
know, then it may require additional phone calls, a
14
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letter, some sort of proof that he has, in fact,
made that appointment and been seen.
"Q. So when does the duty to inform end?
"A. Once the urologist assumes care of the patient."
Concerning the clinic's patient-notification system,
Dr.
Haines
testified
that
it
was
Dr.
Remillard's
responsibility to set up that system and to maintain its
suitability for informing patients about lab-test results.
"Q. ... Were there any other family physicians at
Helena Family Medicine, based on your review, in
2008 and 2009 that would have had the responsibility
of setting up the communication system for abnormal
lab values?
A. No, sir, not that I know of.
Q. So is it -- who would have been responsible for
putting that system in place?
A. It was Dr. Remillard's practice, so he would be.
"Q. So would it have been his responsibility to set
that system up?
"A. Yes, sir.
"Q. And would it have been his responsibility to
maintain that system?
"A. Yes, sir.
"Q. And if any changes needed to be made for that
system, whose responsibility would it have been?
"A. It would have been his."
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On cross-examination, Dr. Haines was asked more questions
about Dr. Remillard's responsibility to inform patients about
abnormal lab-test results.
"Q. Now, you also have said in this case that the
opinion that you have expressed in response, for
example, to [Kimberlee's counsel's] questions is
that you were holding Dr. Remillard to a standard of
ensuring or guaranteeing that the communication with
the patient about the lab results and the referral
to the urologist occurred, right?
"A. Yes, sir.
"Q. All right. The basis of your opinion is that
you say that the -- Dr. Remillard fell below the
standard of care by not informing the patient of his
PSA results and ensuring that he saw a urologist in
a timely fashion?
"A. Correct.
"....
"Q. So if it was a -- and I got what you said in
response to my questions a few minutes ago. Even if
the physician has a reasonable and appropriate
method for following up with his patients, a system,
that is designed and that would be considered to be
a reasonable approach for contacting and notifying
patients about abnormalities, it is your position
that even if such a reasonable system exists, the
doctor is required to guarantee that the patient
does get the information?
"A.
Yes,
he's
--
that's
his
duty,
his
responsibility. And the problem I had with this
system is there was no red flag –- ....
"....
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"Q. Okay. Now, I understand that the position that
you take in this case is that even with a reasonable
system in place, you're critical of a physician and
his practice if that system does not produce the
guaranteed
result
of
patient
notification
of
elevated PSA and referral to a urologist, correct?
"A. You're correct.
"Q. That's the standard you're applying, right?
"A. Yes.
"Q. All right.
"A. Absolutely.
"Q. And I'll just put it to you this way, as we did
in your deposition. And, you know, I'm really not
suggesting that your opinion is any different than
what you have said that it is. But if the standard
of care, in fact, required something different of
Dr. Remillard than what you say, for example, if the
standard of care simply requires that a physician
such as Dr. Remillard and his practice take
reasonable steps in an effort to communicate the
abnormal lab results, but if the standard of care
does not require the physician to continuously
pursue the patient after the patient has agreed to
return to the office, then you told me under oath it
is true that Dr. Remillard met the standard of care.
And if those facts are so, we're still in agreement,
aren't we?
"A. Right. And I don't agree with those facts."
(Emphasis added.)
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On
redirect
examination,
Kimberlee's
counsel
had
Dr. Haines reiterate his explanation of the standard of care
applicable in this case.
"Q. Doctor, I believe you gave us your definition of
the standard of care earlier?
"A. Right.
"Q. Could you restate that, please?
"A. Well, yes, in a nutshell, it's what a reasonable
physician would do in treating the same or similar
patient in the same or similar circumstances.
"Q. Is that a standard of perfection?
"A. No.
"Q. Is that a standard of guaranteeing outcomes?
"A. No.
"Q. As you sit here today, are you using the
standard as you defined it and not as a standard of
guaranteeing an outcome of the service?
"A. Right. It's not a guarantee of anything.
"....
"Q. ... What did the standard of care require of
Dr. Remillard?
"A. It required that he notify the patient of the
elevated PSA and help him to understand the
significance of that elevated PSA, and that it could
shorten his life, that it could cause prostate
cancer -- I mean it could be prostate cancer. Then
his obligation under the standard of care was for
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him to refer that patient to the urologist. And then
finally to follow up to be sure that that
appointment with the urologist was made.
"It's very simple. There's nothing complicated
here at all.
"....
"Q. The criticisms that you have expressed here
today in regard to the standard of care and the
opinions that you have expressed, are those based on
a reasonable standard?
"A. Yes, sir."
2. Testimony from Kimberlee's Causation Expert
Kimberlee's causation expert,
Dr.
Joph
Steckel, testified
that he is a board-certified urologist with a subspecialty in
oncology and that he has been in practice for 24 years.
Dr. Steckel testified on direct examination that "close to
sixty percent of all oncology patients that I see are prostate
cancer patients." Specifically concerning Scott, Dr. Steckel
testified that, "more probably than not," he had cancer in his
prostate in 2009 because "[t]his is a man who is forty-nine
years old whose PSA should be under two and a half and it is
14.3 with a family history of prostate cancer." Dr. Steckel
then explained how urologists evaluate the range of PSA test
scores.
19
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"Q. Now, in regard to the PSA as a risk assessment
tool, are there any ranges of score where a
urological oncologist would have more concern about
the character and potential spread of the cancer?
"A. Yes, absolutely.
"Q. Can you talk to the Ladies and Gentlemen of the
Jury about that?
"A, We tend -- in PSAs less than 10, the chance of
having metastatic spread with any type of prostate
cancer is very, very low, almost to the point that
we are -- we don't do bone scans or CAT scans in men
who are diagnosed with prostate cancer provided
their PSA level is less than 10.
"Now, greater than 20, there's a chance that
there's metastatic spread, in which case you
definitely would do an evaluation to make sure that
the bones or the lymph nodes are not involved.
Between 10 and 20 is sort of the gray zone where
there's a real but not a very high chance of
probability that the prostate cancer has spread
either to the bones or lymph nodes.
"Under 10 it is unnecessary to do any scans
because statistically we know that the chance of
metastatic spread of that number is incredibly low."
(Emphasis added.)
Dr. Steckel then provided his medical opinion as to
whether, in 2009, Scott's prostate cancer had spread beyond
his prostate to his bones or his lymph nodes. This portion of
Dr. Steckel's testimony is replete with objections from
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counsel for the defendants, most of which were sustained by
the trial court, but some which were not.
"Q. Now, in regard specifically to your evaluation
of whether or not Mr. Spencer had bone metastasis in
October of 2009, is your review of the medical
record, all the information about the cancer that
was later diagnosed and based on your experience and
training and knowledge of the literature, did you
form an opinion as to the probability as to whether
or not in October of 2009 Mr. Spencer's cancer had
already metastasized to the bone?
"MR. WRIGHT: We object to the question as calling
for speculation and lack of foundation.
"THE COURT: Overruled. You can go ahead.
"Q. ... You can answer.
"A. Yes, I have an opinion.
"Q. And what is that opinion?
"MR. WRIGHT: Same objection, same grounds.
"THE COURT: Overruled.
"A. My opinion is that most likely to a greater
degree of certainty that the cancer was localized to
his prostate given his PSA of 14 and his normal
digital exam by the doctor's assessment.
"....
"Q. ... What is your understanding, Doctor, in a
general sense as to what the rate of bony metastasis
is in patients regarding their PSA levels?
"....
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"A. As I said before, the rate of bony metastasis in
men with PSAs less than 10 is essentially zero,
which is why we do not do bone scans once men are
diagnosed with prostate cancers and their PSAs are
below 10. We know that the rate of metastasis in
patients -- bony metastasis patients with PSAs
greater than 20 can be up to about twenty or thirty
percent.
"So somewhere between twenty and thirty percent
and zero is where we fall in with this case because
his PSA was 14.3. So if I were to ask -- if I were
to give you a number, the probability of his having
bony metastasis with a PSA --"
(Emphasis added.) At this point, counsel for the defendants
interrupted and objected to Dr. Steckel's attempting to give
a percentage, and the trial court sustained the objection.
Kimberlee's counsel then continued with questioning about
whether Scott's cancer was localized to his prostate in 2009.
"Q. In regard to your evaluation of this case and in
regard to the knowledge that you have formed over
the years in taking care of these patients and
looking at all of the information that was available
to you, is it your opinion that Mr. Spencer had a
treatable prostate cancer in 2009?
"MR. WRIGHT: Same objection. Lack of foundation.
"THE COURT: I am going to let him answer that one.
"A. I can answer?
"THE COURT: Yes.
"A. Yes, I think he had a treatable prostate cancer
when his PSA was 14.3, absolutely.
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"Q. ... And can you describe for the Ladies and
Gentlemen of the Jury what a urological surgeon
would have done, what the standard of care required
a urological surgeon to have done in assessing and
treating [Scott] if he had been evaluated in October
of 2009?
"....
"A. Absolutely. So a forty-nine-year-old man with
a family history of prostate cancer with a PSA of
14.3 absolutely would have required a transrectal
ultrasound guided by a --
"....
"A. A transrectal ultrasound-guided biopsy of the
prostate. In other words, he needed his prostate
biopsied to rule out a malignancy.
"....
"Q. ... And if indeed his biopsy was positive, what
would the standard of care require the urological
surgeon to do at that point?
"A. Well, with a positive biopsy, then you have to
ask yourself is the cancer outside the prostate or
contained. So he would have had a bone scan and a
CAT scan, which gets us back to what we discussed
before. In the absence of any metastatic disease in
a patient like this, he would have been offered and
should have certainly opted for definitive care and
treatment for his prostate cancer.
"Q. When you say 'definitive care,' what options did
that include?
"A. Either surgery, which would be complete removal
of the prostate and the lymph nodes, or radiation
therapy, which would be having him see a radiation
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oncologist. And they would use their devices to
radiate the prostate and the surrounding tissue.
"....
"Q. Dr. Steckel, in regard to [Scott], in October of
2009, based on the factual knowledge that included
that his PSA was 14.3, correct?
"A. Uh-huh, correct.
"Q. And he had a Gleason score of 4-5, which was
aggressive, correct?[4]
"A. Correct.
"Q. The fact that he had a normal prostate exam, the
fact that he had a father with prostate cancer, the
fact that he had no symptoms from his prostate at
that time, the fact that his prior PSA in 2006 had
been 1.9, taking all that information into account,
you've described to us that a urologist would then
perform a biopsy, and it was your opinion that the
biopsy at this time would more likely than not show
a cancer of the prostate, correct?
"A. Correct.
"Q. Taking all that into account, if a bone scan had
been done, hypothetically, at that time in October
of 2009 and a CT scan had been done to look for
lymph nodes, and if those two tests were both
negative, do you have an opinion in regard to his
4Earlier in his testimony, Dr. Steckel had explained that
"Gleason scoring is a scoring system, based on the histologic,
meaning for all purposes pathologic, features of the cancer
cells from a biopsy." The first Gleason number rates the most
prominent cell configuration and the second Gleason number
rates the less prominent cells biopsied. The combined score
indicates the type of cancer cells in the patient's body,
i.e., the aggressiveness of the cancer.
24
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prognosis, if he had undergone either a radical
prostatectomy
or
radiation
treatment
of
his
prostate, do you have an opinion regarding his
prognosis?
"....
A. I think it is more likely than not his prostate
cancer would have been confined to his prostate and
he had a good chance of cure.
"[Trial Court again sustains an objection with
respect to Dr. Steckel's giving a percentage on
Scott's chances of a cure if treatment had been
provided in 2009].
"Q. Is it your opinion that the -- that you just
shared with us in regard that the cancer would more
likely than not be limited to the prostate and you
say he had a good prognosis, is that opinion
consistent with your opinion more probable than not
he would have been cured of the prostate cancer?
"A. Correct.
"MR. WRIGHT: Same objection.
"THE COURT: More probably than not but not the
percentage.
"A. More probably than not."
(Emphasis added.)
On cross-examination, counsel for the defendants probed
Dr. Steckel's testimony that, in his opinion, Scott's cancer
was localized in his prostate in 2009. In doing so, for
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certain
questions,
counsel
quoted
from
Dr.
Steckel's
deposition.
"Q. ... Now, what you told me when I took your
deposition was you could not rule out the presence
of bone metastasis for Mr. Spencer in 2009 with a
PSA of 14 and what we know to be a Gleason 9, 4 plus
5 Gleason 9 score. Do you remember telling me that?
"A. You can't rely -- without a bone scan, you can't
rule out the presence of bony metastasis. I agree.
"....
"Q. Is what I just asked you, that it is just as
likely that he did have metastatic bone cancer as he
didn't in 2009?
"A. In 2009 when his PSA was 14.3, if he were to
have metastatic disease, it is likely that he could
have had it to his bones, to his lymph nodes. And
it is just as likely his disease could have been
totally localized to his prostate, totally localized
to the prostate without any spread.
"And the only way you are going to know that is
by doing your tests to determine. The fact that
tests were not done, you are only guessing as to
where the tumor possibly could be.
"....
"Q. ... My question is, 'You, Dr. Steckel, cannot
on the basis of any evidence that we have' -- did I
read that part right so far?
"A. So far.
"Q. -- 'any evidence that we have rules out the
possibility that Mr. Spencer had bony metastasis' --
meaning spread to the bone, right?
26
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"A. Correct.
"Q. -- 'with a PSA of 14 and what we know was a
Gleason 4-5 tumor in 2009, and that is a true
statement.' And his answer -- your answer, I'm
sorry, 'That is true because we don't have the bone
scan or CAT scan at that point.' And that is part
of what you just said, isn't it?
"A. Correct. If you don't have the tests, you don't
know what the results are.
"Q. Let's read on, 'It would be speculation to say
that he didn't, and you would tell me that it would
be speculation to say that he did. It would be
equal. Am I right?' And you said, 'Well, equal is
saying it is a coin toss whether he had it.'
"And I said, question: 'The point is, we don't
have any evidence that gives us anything but a coin
toss.' And what was your answer?
"A. I said 'right.'
"....
"Q. And you have testified that with earlier
diagnosis, there were some approaches to Mr.
Spencer's
workup
that,
in
your
opinion,
if
evaluation and potential treatment had occurred
then, those approaches to his treatment could have
made a difference in his outcome. You have
testified to that, haven't you?
"A. I agree.
"Q. And then your testimony was it could have made
a difference in the outcome and equally it could not
have made any difference in the outcome. That is
what you said under oath, isn't it?
"A. Yes.
27
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"Q. All right. And you stand by that testimony,
don't you?
"A. Right.
"Q. You have said also on this business of what you
mentioned after -- right before lunch when I had
asked you about metastatic cancer being uncurable,
you said well, it is incurable but it might be
controlled with treatment, right?
"A. Controlled, correct.
"Q. Controlled. And so I asked you in your
deposition and I am now asking you to acknowledge
this because you have stated and you do not know and
you cannot say that Mr. Spencer would have been in
a group of patients who might have been controlled
by earlier therapy or one that might have been
unaffected by the treatment. That is what you said
when I took your deposition, isn't it?
"A. Correct.
"Q. As you told me, that would be speculation on
your part to say that he would have been controlled.
"A. All we can say is in populations what would be
the chances that he'd be more likely controlled or
not likely controlled. But for the individual
patient, you are right, that would be speculation.
"Q.
Right.
In
Mr.
Spencer's
case,
that
is
speculation?
A. In the individual patient, it is speculation.
"....
"Q. All right. For example, you said that with a
known Gleason 9 and a PSA of 14, you have made the
28
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comment, indulging speculation, as you admitted,
that you felt the tumor was confined to the
prostate. That is what you said?
"A. Correct.
Q. All right. And you also told me, when I asked you
about that in your deposition, there's no scientific
study or research that you could point to to support
that statement.
"A. Correct.
"Q. All right. No studies that you can point to
that would suggest that the -- that high grade
aggressive tumors in a young man of his age are
confined to the prostate with just a normal digital
examination and the PSA of 14?
"A. Other than studies that have shown that men who
have PSAs of 14, there's a twenty percent chance
that
they
will
require
adjunctive
treatment
afterwards with an eighty percent chance of cure."
(Emphasis added.)
3. Disposition by the Trial Court
At the close of Kimberlee's case, the defendants moved
for a judgment as a matter of law ("JML"). Kimberlee filed a
response in opposition to the motion. The trial court held a
hearing on the motion following the conclusion of Kimberlee's
presentation of her case on April 11, 2019. The trial court
then orally announced that it was granting the defendants'
motion for a JML. The trial court explained, in part:
29
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"I will tell you that it is somewhat troubling
to me, some of the testimony given by the experts,
when it came to speculation and coin tosses and that
kind of thing. And in viewing this case in the
light most favorable to the plaintiff, as [counsel
for Kimberlee] has stated, in reaching my decision,
that is what I am going to do, is in light of the
most favorable to the plaintiff.
"However,
after
careful
consideration
of
the
law
and applying the testimony to the law, it is my
opinion that the defendants in this matter are
entitled to a judgment as a matter of law in this
case."
On April 12, 2019, the trial court entered a written order
granting the defendants' motion for a JML. On April 30, 2019,
the trial court entered a "Memorandum Opinion and Order"
explaining its decision. In the April 30, 2019, order, the
trial court noted the arguments of the defendants pertaining
both to Dr. Haines and to Dr. Steckel, and it quoted some
opinions of this Court addressing the issue of causation in an
AMLA action. The trial court then concluded:
"After
closely
reviewing
the
applicable
case
law
and trial testimony of Dr. Haines and Dr. Steckel,
and upon careful consideration of the oral arguments
and extensive briefing submitted by both sides, the
Court finds that the Motion for Judgment as a Matter
of Law filed by the defendants is well taken and due
to be granted."
II. Standards of Review
30
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This Court's standard of review for a ruling on a motion
for a JML is de novo:
"'"When reviewing a ruling
on a motion for a [judgment as a
matter of law], this Court uses
the same standard the trial court
used
initially
in
deciding
whether to grant or deny the
motion for a [judgment as a
matter of law]. Palm Harbor
Homes, Inc. v. Crawford, 689 So.
2d 3 (Ala. 1997). Regarding
questions of fact, the ultimate
question is whether the nonmovant
has presented sufficient evidence
to allow the case to be submitted
to
the
jury
for
a
factual
resolution. Carter v. Henderson,
598 So. 2d 1350 (Ala. 1992). The
nonmovant must have presented
substantial evidence in order to
withstand
a
motion
for
a
[judgment as a matter of law].
See § 12–21–12, Ala. Code 1975;
West v. Founders Life Assurance
Co. of Florida, 547 So. 2d 870,
871 (Ala. 1989). A reviewing
court must determine whether the
party who bears the burden of
proof has produced substantial
evidence
creating
a
factual
dispute requiring resolution by
the jury. Carter, 598 So. 2d at
1353. In reviewing a ruling on a
motion for a [judgment as a
matter of law], this Court views
the evidence in the light most
favorable to the nonmovant and
entertains
such
reasonable
31
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inferences as the jury would have
been free to draw. Id."'"
Thompson v. Patton, 6 So. 3d 1129, 1133 (Ala. 2008) (quoting
Leiser v. Raymond R. Fletcher, M.D., P.C., 978 So. 2d 700,
705–06 (Ala. 2007), quoting in turn Waddell & Reed, Inc. v.
United Investors Life Ins. Co., 875 So. 2d 1143, 1152 (Ala.
2003)).
"In reviewing a ruling on the admissibility of
evidence, including expert testimony, the standard
is whether the trial court exceeded its discretion
in excluding the evidence. In Bowers v. Wal–Mart
Stores, Inc., 827 So. 2d 63, 71 (Ala. 2001), this
Court stated: 'When evidentiary rulings of the trial
court are reviewed on appeal, "rulings on the
admissibility of evidence are within the sound
discretion of the trial judge and will not be
disturbed on appeal absent an abuse of that
discretion."' (Quoting Bama's Best Party Sales,
Inc. v. Tupperware, U.S., Inc., 723 So. 2d 29, 32
(Ala. 1998).)"
Swanstrom v. Teledyne Cont'l Motors, Inc., 43 So. 3d 564, 574
(Ala. 2009).
III. Analysis
Kimberlee raises several issues in this appeal, but the
two most pressing issues concern the qualifications of her
standard-of-care expert and the admissibility of testimony
presented by her experts on the standard of care and causation
because those are indispensable elements of an action under
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the AMLA. See, e.g., Kraselsky v. Calderwood, 166 So. 3d 115,
118 (Ala. 2014) ("To prevail in a medical-malpractice action
under the [AMLA], a plaintiff must establish 1) the
appropriate standard of care, 2) that the defendant
health-care provider breached that standard of care, and 3) a
proximate
causal
connection
between
the
health-care
provider's
alleged breach and the identified injury."). Thus, we will
first address the arguments concerning those two experts.
Although our conclusions as to those issues require reversal
of the trial court's judgment, for the sake of judicial
economy we will also analyze the trial court's rulings with
respect to the defendants' motions in limine that Kimberlee
challenges in this appeal. See, e.g., Ex parte Johnson, 620
So. 2d 709, 712 (Ala. 1993) (explaining that, "[a]lthough we
reverse for the reasons stated above, for the sake of judicial
economy we address two other issues raised by Johnson, which
are almost certain to come up again on remand for a new
trial").
A. Issues Concerning Dr. Haines's Testimony
1. Dr. Haines's Qualifications as an Expert Witness
Section 6-5-548(a), Ala. Code 1975, provides:
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"(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
general line of practice ordinarily have and
exercise in a like case."
(Emphasis added.) Because Dr. Remillard is board certified in
a medical specialty, family-medicine practice, the standard
for what constitutes a "similarly situated health care
provider" is further defined by § 6-5-548(c):
"(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
34
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alleged breach of the standard of care
occurred."
(Emphasis added.) Section 6-5-548(e) adds that "[a] health
care provider may testify as an expert witness in any action
for injury or damages against another health care provider
based on a breach of the standard of care only if he or she is
a 'similarly situated health care provider' as defined above."
As is recounted in the rendition of the facts,
Kimberlee's
standard-of-care
expert,
Dr.
Haines,
like
Dr.
Remillard, is
board
certified
in
family-medicine practice.
He had his own private family-medicine practice for 14 years
and practiced in other similar clinics for a few years after
that. However, Dr. Haines testified that, in the year
preceding the alleged breach, he was in the Navy's aerospace
residency program at the Naval Air Station in Pensacola,
Florida. Dr. Haines explained that, as part of the aerospace
residency program, he saw as patients the pilots in the
program and their family members. He also testified that he
"moonlighted" at urgent-care clinics and at some hybrid
urgent-care/family-medicine establishments in his off-duty
hours during the period when he was in the residency program.
Dr. Haines admitted that during this period he did not oversee
35
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a patient-notification system, but, he said, he had done so
for much of his career.
As they did in the trial court, the defendants argue that
Dr. Haines "was not qualified to define the standard of care
applicable to Dr. Remillard ... because he did not practice as
a board-certified family practice physician in a family
practice clinic overseeing and managing patient notification
systems in the year preceding the alleged breach." The
defendants' brief, pp. 53-54.
Kimberlee contends that this is "a hyper-technical
analysis of the similarly-situated rule. ... The requirement
under § 6-5-548 is that Dr. Haines had to practice family
medicine during the year preceding alleged breach of the
standard of care. There is no requirement that his private
practice must be identical to Dr. Remillard's in each and
every aspect." Kimberlee's brief, pp. 36-37.
In sum, the crux of the parties' dispute is whether
Dr. Haines was unqualified to testify about the applicable
standard of care because of two facts: (1) Dr. Haines was not
rendering patient care in medical practice identical to that
of Dr. Remillard between 2008 and 2009 because Dr. Haines was
36
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practicing at the Naval Air Station in Pensacola and not at a
private-practice clinic and (2) Dr. Haines did not oversee a
patient-notification system during that year. In the trial
court and on appeal, the defendants have emphasized two cases
in support of this position: Carraway v. Kurtts, 987 So. 2d
512 (Ala. 2007) ("Carraway"), and Holcomb v. Carraway, 945
So. 2d 1009, 1020–21 (Ala. 2006) ("Holcomb").
In Carraway, the Court concluded that the plaintiff's
proffered medical expert, Dr. Toni Cutson, was not qualified
under § 6-5-548(c) because the admissible evidence before the
trial court did not establish that Dr. Cutson was board
certified in the same specialty as the defendant or that she
had practiced in that specialty during the year preceding the
alleged breach of the standard of care. See Carraway, 987
So. 2d at 518 ("The affidavit does not state whether
Dr. Cutson is a board-certified family practitioner; neither
does it state whether Dr. Cutson had practiced in the same
specialty as Dr. Kurtts during the year preceding the alleged
breach."). The Carraway Court went on to discuss whether, if
inadmissible evidence was considered, Dr. Cutson would be
qualified under § 6-5-548(c). The Court noted that the
37
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curriculum vitae of Dr. Cutson indicated that, like the
defendant, she was a board-certified family practitioner.
"[H]owever, none of the professional appointments
listed on Dr. Cutson's curriculum vitae indicate
that she practiced in the same general area of
practice at the time of the hearing or during the
year preceding the alleged breach, as is required of
similarly situated physicians. § 6–5–548(c)(4), Ala.
Code 1975. Only those positions Dr. Cutson held for
the year preceding May through November 2003 are
relevant to whether Dr. Cutson qualifies as a
similarly situated physician. See § 6–5–548(c)(4),
Ala. Code 1975. Dr. Cutson's curriculum vitae
states that during the relevant period she served as
an 'Assistant Medical Director,' a 'Staff Physician,
Geriatric Research, Education and Clinical Center,'
a 'Staff Physician, Spinal Cord Injury & Dysfunction
Team,' a 'Medical Director of the Palliative Care
Consult Team,' and a 'Physician member of VISN 6 VHA
Palliative Care Team.' Dr. Kurtts is not accused of
breaching the standard of care applicable to a
medical director, a researcher in geriatrics, a
spinal-cord
specialist,
or
a
palliative-care
specialist,
nor
do
any
of
these
positions
affirmatively indicate that Dr. Cutson was involved
in the specialty of family practice during the
relevant period. To conclude that she was would
require us to speculate as to what she might have
been doing as a medical director or researcher or in
her other specialties, something that she could
easily have made clear in her affidavit if she had
in fact been actively engaged in family-practice
medicine at the relevant time. Therefore, even if
we were to consider the curriculum vitae, it is not
apparent from the curriculum vitae that the
positions
listed
are
sufficient
to
qualify
Dr. Cutson as a similarly situated physician."
38
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Carraway, 987 So. 2d at 519 (footnote omitted; emphasis
added). Although the defendants do not expressly say so,
presumably they believe there is a parallel between the
Carraway Court's conclusion that Dr. Cutson had not been
"actively engaged in family-practice medicine at the relevant
time," id., and Dr. Haines's position in the military in 2008-
09.
However, there are several ways in which Carraway is
distinguishable from this case. First, the Carraway Court's
primary conclusion was that no admissible evidence indicated
that Dr. Cutson was board certified in family medicine. No
such impediment exists here, because the defendants readily
concede that Dr. Haines is board certified in family-medicine
practice. Second, the Carraway Court went on to discuss -- as
dictum -- the fact that "none of the professional appointments
listed on Dr. Cutson's curriculum vitae indicate that she
practiced in the same general area of practice at the time of
the hearing or during the year preceding the alleged breach,
as
is
required
of
similarly
situated
physicians.
§ 6–5–548(c)(4), Ala. Code 1975." Carraway, 987 So. 2d at 519
(emphasis added). The same cannot be said of Dr. Haines.
39
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Dr. Haines plainly testified that he was actively engaged in
family-medicine practice in 2008-09, both on the Naval base
and during his moonlighting while off-duty. Carraway offers
no support for the proposition that the specialty of family-
medicine practice means being engaged in a family-medicine
practice identical to that of the defendant; the positions
held by Dr. Cutson in Carraway were, on their face, clearly
different from the role of a family-medicine practitioner.
In Holcomb, the plaintiff commenced an action against
multiple doctors for a failure to diagnose her with breast
cancer in a timely fashion. Three of the defendants were
radiologists who, the plaintiff alleged, negligently misread
her mammograms. The plaintiff's proffered expert, like those
defendants, was board certified in radiology, and those
defendants conceded that the plaintiff's expert "meets the
technical requirements of § 6-5-548(c) ...." 945 So. 2d at
1015. However, the defendant radiologists argued that the
trial court had properly excluded the plaintiff's expert from
testifying as a "similarly situated health care provider"
because he had not performed or interpreted mammograms during
40
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the relevant period.5 Thus, the defendant radiologists
contended that the plaintiff's expert "could not have been
familiar with the standard of care applicable to a radiologist
performing mammograms during the 12-month period preceding
their alleged breaches," 945 So. 2d at 1016, and therefore,
they asserted, the trial court had discretion under Rule 702,
Ala. R. Evid., to exclude testimony from the plaintiff's
expert. The Holcomb Court engaged in an extensive analysis of
the language used in § 6-5-548 and concluded that the statute
did not inhibit the discretion a trial court otherwise
possessed under the Rules of Evidence to exclude evidence if
the trial court believed it would not "assist the trier of
fact." Rule 702(a), Ala. R. Evid. The Holcomb Court
therefore concluded that the trial court did not exceed its
discretion in excluding the testimony of the plaintiff's
expert.
The defendants contend that, as in Holcomb, "the trial
court was well within its discretion to determine testimony
from Dr. Haines regarding Dr. Remillard's care would not have
5The plaintiff's expert testified that "the earliest
breach by any of the defendant radiologists occurred in June
1997." Holcomb, 945 So. 2d at 1015. Thus, the relevant
period was June 1996 to June 1997.
41
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assisted the trier of fact because Dr. Haines was not
qualified to define or testify as to any alleged deviation
from the standard of care." The defendants' brief, p. 61.
Again, the defendants argue that Dr. Haines was unqualified
because in 2008-09 he was not engaged in a private family-
medicine practice and was not overseeing a patient-
notification system.
But, as in Carraway, Holcomb presented a situation in
which the plaintiff's proffered expert had not engaged at all
in the practices at issue, i.e., performing and reading
mammograms, for at least three or four years up to the
relevant period. In fact, the plaintiff's expert admitted
that he had "consider[ed] himself 'semi-retired to his office
since 1996 or '97.'" Holcomb, 945 So. 2d at 1016 n.6. In
contrast, Dr. Haines testified that he has "always practiced
family medicine in some capacity" and that he continued to do
so up to the time of trial. Thus, Holcomb, like Carraway,
does not illuminate the specific issue here of what
constitutes "practic[ing] in this specialty [of family-
medicine practice] during the year preceding the date that the
42
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alleged
breach
of
the
standard
of
care
occurred."
§
6-5-548(c)(4).
There is no dispute that Dr. Haines was "trained and
experienced in the same specialty" as Dr. Remillard and that
he was "certified by an appropriate American board in the same
specialty" as Dr. Remillard. § 6-5-548(c)(2) & (3). That
"same speciality" was family-medicine practice. Given that
context, we conclude that the requirement in § 6-5-548(c)(4)
that an expert must have "practiced in this specialty" in the
year preceding the alleged breach of the standard of care
refers to the actual practice of the specialty at issue rather
than the exact setting in which the defendant doctor practices
the speciality. Cf. Medlin v. Crosby, 583 So. 2d 1290, 1296
(Ala. 1991) (noting that § 6-5-548 "does not specify the
amount of time spent practicing or the nature and quality of
the practice"). Even though Dr. Haines's family-medicine-
practice experience in 2008-09 was not "in a community based
family practice clinic," the defendants' brief, p. 31,
Dr. Haines testified that he was still practicing family
medicine in 2008-09. Therefore, we believe that Dr. Haines
could assist the jury with the standard of care applicable to
43
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a family-medicine practitioner who receives a patient's
abnormal PSA lab-test result.
Moreover, the defendants repeatedly conflate whether
Dr. Haines was overseeing a patient-notification system in
2008-09 with whether he was "practic[ing] in th[e] specialty
[of family-medicine practice] during the year preceding the
date that the alleged breach of the standard of care
occurred." § 6-5-548(c). According to Medlin, identifying
the breach of the standard of care at issue is necessary in
order to "decid[e] whether a proffered expert witness
qualifies as a 'similarly situated health care provider'
within the meaning of the statute." 583 So. 2d at 1293.
Dr. Haines identified the standard of care as follows:
"[A] failure to provide Mr. Spencer with the
abnormal PSA result of 14.3. And secondly, a
failure to refer him to a urologist for further
evaluation, diagnosis and treatment of prostate
cancer."
An expert is required to assist the jury in answering those
questions
because
a
family-medicine practitioner would
need
to
inform the jury as to whether a physician with such a
specialty would comprehend the meaning of a PSA lab-test
result of 14.3, i.e., whether that result was abnormal,
44
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whether the result needed to be communicated to the patient,
and whether such a result necessitated referral of the patient
to a urologist. The defendants fail to provide any
authorities establishing that identifying and maintaining an
acceptable method for notifying patients of abnormal lab-test
results is unique to the specialty of family medicine and
that, therefore, evidence on that subject would require expert
testimony from a family-medicine practitioner. Indeed, given
that lab-test results are used by doctors in many different
fields of practice, there is no reason to assume that
communicating the results from such lab tests belongs to any
particular medical specialty. Even if evaluating the
effectiveness of a patient notification did require medical-
expert testimony, there is no dispute that Dr. Haines has
extensive
experience
overseeing
a
patient-notification
system;
he just did not do so in the year before Dr. Remillard's
alleged breach of the standard of care. Thus, we conclude
that Dr. Haines cannot be deemed unqualified to testify
regarding the applicable standard of care on the basis of the
fact that he did not oversee a patient-notification system in
2008-09.
45
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2. The Admissibility of Dr. Haines's Testimony
At trial and again on appeal, the defendants have also
objected to Dr. Haines's testimony on the ground that
allegedly "he sought to hold Dr. Remillard and his clinic to
a heightened standard of insuring or guaranteeing outcome
(that certain communication with the patient and follow up
with a specialist occurred), which is contrary to Alabama
law." The defendants' brief, p. 58. They argue that "[a]
physician's duty to a patient is to exercise 'reasonable
care,' not to 'insur[e] ... the successful issue of treatment
or service.' Ala. Code § 6-5-484," but that "Dr. Haines'
criticisms were premised on the flawed position that the
defendants had a duty beyond having a reasonable system in
place and instead had a duty to guarantee outcome." Id.,
pp. 59 & 60 (emphasis in original). In support of this
argument, the defendants cite answers Dr. Haines provided on
cross-examination in which he appeared to state that the
defendants had a duty to guarantee that Scott received the
result of his 2009 PSA lab test.
Kimberlee responds that "Dr. Haines made clear that his
opinion was based on a reasonable standard -- not some
46
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standard of perfection." Kimberlee's brief, pp. 37-38. In
support, Kimberlee cites portions of Dr. Haines's testimony on
direct examination, as well as this Court's opinion in Downey
v. Mobile Infirmary Medical Center, 662 So. 2d 1152 (Ala.
1995). In Downey, the Court reversed a trial court's
exclusion of standard-of-care testimony from the plaintiff's
proffered nursing expert, concluding that the trial court had
failed to evaluate the expert's testimony as a whole.
"After reviewing Nurse Read's testimony as a
whole, we conclude that the trial court erred in
determining that her testimony was insufficient on
the basis that she did not accurately state the
standard of care required by law. The trial court
focused on only one of her answers, ignoring the
rest of Nurse Read's 196–page deposition and
ignoring
her
affidavit.
When
asked
her
understanding as to the standard of care that is to
be exercised by nurses in Alabama, Nurse Read
responded: 'To ensure the safety and the welfare of
patients.' The trial court read the use of the word
'ensure' as violating § 6–5–484(b), which provides
that a health care provider is not considered 'an
insurer of the successful issue of treatment or
service.' The statement that a nurse should ensure
the safety and welfare of patients is not a
statement that the nurse should '[insure] the
successful issue of treatment or service' and
guarantee
the
treatment
or
service.
This
interpretation of Nurse Read's testimony ignores the
rest of her deposition and her affidavit, in both of
which she clearly demonstrates her knowledge of the
standard of care.
47
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"This Court has consistently held that the
testimony of an expert witness in a medical
malpractice case must be viewed as a whole, and that
a portion of it should not be viewed abstractly,
independently, or separately from the balance of the
expert's testimony. Hines v. Armbrester, 477 So. 2d
302 (Ala. 1985); Malone v. Daugherty, 453 So. 2d 721
(Ala. 1984). Here the trial court erred in striking
Nurse Read's affidavit, which was presented to the
trial court in response to the trial judge's
statement to the lawyers that they should 'go back
and brief this and give me something to go on why I
shouldn't grant it [the summary judgment motion].'
Rather than presenting a 'new opinion,' as the trial
court said the affidavit did, the affidavit
presented an explanation that further clarified
Nurse Read's knowledge of the standard of care.
Nurse Read stated in that affidavit:
"'I was asked during my deposition
what was the standard of care for nurses in
Alabama. I responded to ensure patient
safety. By using the word ensure I was not
indicating that a nurse was an insurer of
the successful issue of treatment or
service. By using the word ensure, it was
not my meaning, nor do I contend that the
nurse was responsible to guarantee the
safety of the patient. I used the word
only in the context that it was a nurse's
duty to make reasonable provision and/or
take reasonable and necessary measures to
provide for a patient's safety and I
further testified as to the proper measures
which should have been taken with regard to
Mr. Downey.'"
Downey, 662 So. 2d at 1154 (emphasis added).
It is true that Dr. Haines's testimony could be
understood as setting up a standard of guaranteed care for a
48
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patient; however, it is also true that his testimony could be
understood
as
simply
opining
that,
in
his
opinion,
Dr. Remillard did not follow the protocols that a reasonable
family-medicine
practitioner
would
have
followed
upon
receiving the abnormal PSA lab-test result from Scott's
September 28, 2009, clinic visit. This Court has "cautioned
against the practice of relying on isolated excerpts from ...
testimony to argue in favor of a proposition the testimony as
a whole does not support." Kraselsky, 166 So. 3d at 121.
Moreover, as we noted in the standards-of-review section of
this opinion, on a motion for a JML the trial court is
supposed to view the evidence in the light most favorable to
the nonmovant and to entertain such reasonable inferences as
the jury would have been free to draw. See, e.g., Thompson,
6 So. 3d at 1133. When Dr. Haines's testimony is viewed in
its totality and in a light most favorable to Kimberlee, it
cannot be concluded that his testimony should be excluded for
attempting to hold Dr. Remillard to a heightened standard of
ensuring or guaranteeing an outcome in patient care.
49
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3. Dr. Remillard's Standard-of-Care Testimony
Finally, with respect to the standard of care, we also
observe that Kimberlee has argued -- correctly in our view --
that Dr. Remillard himself provided the applicable standard of
care in this case in light of a key factual dispute between
the parties. Specifically, Dr. Remillard testified under
questioning from Kimberlee's counsel as follows:
"Q. Now, once you were aware of this elevated PSA
in a general sense, did you have a duty under the
standard of care to try to notify your patient of
both the elevated PSA and the need for a urology
specialist referral?
"A. Yeah. We had a duty to make a reasonable
attempt to notify Mr. Spencer of the abnormal lab.
"....
"Q. Now, if Mr. Spencer, once you had this result,
if he had direct communication with you October 1st,
September 30th, October 2nd of 2009, right around
this time when you found out about this PSA test --
if he had direct communication with you by phone or
by coming to the clinic to see you personally, would
the standard of care have required you to tell him
about his elevated PSA, and would it have required
you to refer him to a urologist?
"A. Yes, sir."
Based on the foregoing testimony, if the jury chose to
believe that Scott's version of the events of October 1, 2009,
is what unfolded -- i.e., that he talked to someone at the
50
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clinic but that person did not tell him about his elevated PSA
level -- then Dr. Remillard himself established the
applicable
standard of care and admitted to a breach of that standard.
In other words, given that what transpired on October 1, 2009,
with respect to the clinic's communication to Scott about his
lab-test results is clearly an issue of fact to be resolved by
a jury, then, by Dr. Remillard's own testimony, a scenario
exists in which a jury could find that he breached the
standard of care. Therefore, even apart from the facts that
Dr. Haines was qualified as an expert in family-medicine
practice and that his testimony should have been viewed as a
whole more favorably toward Kimberlee, the trial court erred
to the extent it entered a JML in favor of the defendants on
the basis of an alleged failure by Kimberlee to present
competent testimony regarding the standard of care.
B. Causation Testimony from Dr. Steckel
"With regard to proximate causation in an AMLA case, this
Court has stated that 'the plaintiff must prove, through
expert
medical
testimony,
that
the
alleged
negligence probably
caused, rather than only possibly caused, the plaintiff's
injury.'" Kraselsky, 166 So. 3d at 119 (quoting University of
51
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Alabama Health Servs. Found. v. Bush, 638 So. 2d 794, 802
(Ala. 1994)) (emphasis added in Kraselsky). By the same
token,
"[t]he
standard
for
proving
causation
in
a
medical-malpractice action
is
not
proof
that
the
complained-of
act or omission was the certain cause of the plaintiff's
injury. Instead, as this Court has frequently reiterated, the
standard is one of the 'probable' cause ...." Hill v.
Fairfield Nursing & Rehab. Ctr., LLC, 134 So. 3d 396, 406
(Ala. 2013).
At trial and again on appeal, the defendants have
contended that Kimberlee did not present competent causation
testimony because, they assert, her causation expert's
opinions were based on speculation. They concede that
Kimberlee's causation expert, Dr. Steckel, was an eminently
qualified urologist who had 24 years of experience treating
cancer patients and who estimated that approximately 60% of
his practice was composed of prostate-cancer patients.
However, the defendants insist that Dr. Steckel's opinion that
Scott would have had a much better prognosis in 2009 than in
2011
"required an assumption that Mr. Spencer probably
did not have bone metastasis in 2009. Ultimately,
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on cross-examination, Dr. Steckel admitted it would
be speculation to say Mr. Spencer's disease was
probably not metastatic in 2009, and consequently it
would be speculative to say that the outcome could
have been different with earlier treatment. Such
testimony simply amounts to a personal opinion based
on no fact or science, which he admitted would
require the indulgence of speculation that Mr.
Spencer lost a possible chance at survival based on
the alleged delay in diagnosis. This testimony
cannot rise to satisfy the Plaintiff's burden of
proof under Alabama law."
The defendants' brief, pp. 41-42. In support of this
argument, the defendants cite testimony from Dr. Steckel on
cross-examination in which he stated that, "without a bone
scan, you can't rule out the presence of bony metastasis" and
that, absent such a scan, it would be "speculation" to say
whether Scott did or did not have "bony metastasis." The
defendants emphasize that this Court has explained that
"'[t]he opinions of an expert may not rest on "mere
speculation and conjecture." Townsend v. General
Motors Corp., 642 So. 2d 411, 423 (Ala. 1994).'
Dixon v. Board of Water & Sewer Comm'rs of Mobile,
865 So. 2d 1161, 1166 (Ala. 2003). '[A]s a theory
of causation, a conjecture is simply an explanation
consistent with known facts or conditions, but not
deducible from them as a reasonable inference. See,
e.g., Griffin Lumber Co. v. Harper, 247 Ala. 616, 25
So. 2d 505 (1946).' Alabama Power Co. v. Robinson,
447 So. 2d 148, 153–54 (Ala. 1983). An expert
witness's opinion that is conclusory, speculative,
and without a proper evidentiary foundation cannot
create a genuine issue of material fact. Becton v.
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Rhone–Poulenc, Inc., 706 So. 2d 1134, 1141–42 (Ala.
1997)."
Bradley v. Miller, 878 So. 2d 262, 266 (Ala. 2003).
The defendants further argue that, because of the nature
of Dr. Steckel's testimony, this is not a case in which the
plaintiff
presented
"sufficient
evidence
that
prompt
diagnosis
and treatment would have placed the patient in a better
position than [he] was in as a result of the inferior medical
care." Hrynkiw v. Trammell, 96 So. 3d 794, 806 (Ala. 2012).
Instead, they insist, because Dr. Steckel's theory that
Scott's prostate cancer was curable in 2009 is based on
speculation about how far the disease had spread at that time,
Kimberlee's claims amounted to seeking "recovery for the loss
of any chance of
recovery resulting from medical malpractice,"
which is not permitted in Alabama. Id. In other words, they
contend that Kimberlee's claims are based on a mere
possibility, rather than a probability, that Scott's cancer
was treatable in 2009. The trial court apparently agreed with
the
defendants'
contentions
concerning
Dr.
Steckel's
causation
testimony.
In contrast, Kimberlee argues that Dr. Steckel
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"provided substantial evidence on direct examination
that is sufficient for a reasonable juror to find
that the alleged dilatory diagnosis and treatment
severely worsened Scott's prognosis and proximately
caused his death. He testified that Mr. Spencer
probably did not have metastatic disease in October
2009, and thus, he probably would have had a good
prognosis if he had been promptly informed of his
elevated PSA and treated by urology."
Kimberlee's brief, p. 27. For support, Kimberlee points to
testimony on direct examination in which Dr. Steckel stated
that "[m]y opinion is that most likely to a greater degree of
certainty that the cancer was localized to [Scott's] prostate
given his PSA of 14 and his normal digital exam by the
doctor's assessment" and that Scott "absolutely ... had a
treatable prostate cancer when his PSA was 14.3."
Kimberlee also cites Hrynkiw, supra, in which this Court
discussed at length the necessity of viewing a witness's
testimony as a whole and that the jury must be permitted to
determine the weight and credibility of witness testimony.
"At the outset, we note that the jury determines
the credibility of the expert witnesses and
determines the weight to give to their opinions.
Kilcrease v. John Deere Indus. Equip. Co., 663
So. 2d 900 (Ala. 1995). Here, it was for the jury
to determine whether it believed Dr. Hash's
explanation of his earlier testimony given during
his deposition. In Graves v. Brookwood Health
Services, Inc., 43 So. 3d 1218 (Ala. 2009), the
plaintiff's expert testified in a deposition that
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the intravenous infiltration probably caused the
injury to the plaintiff's right hand. Then, in a
subsequent deposition, the same expert told defense
counsel that it was merely 'possible' that the
infiltration caused plaintiff's injury and that he
could not say that it was the 'probable' cause. This
Court reversed the summary judgment for Brookwood
Health Services and held that any contradictions or
unclarity in the expert's testimony created jury
questions of weight and credibility. This Court
said:
"'Our cases make it abundantly clear,
however, that a portion of the testimony of
the plaintiff's expert cannot be viewed
"abstractly, independently, and separately
from the balance of his testimony." Hines
v. Armbrester, 477 So. 2d 302, 304 (Ala.
1985).
See,
e.g.,
Downey
v.
Mobile
Infirmary Med. Ctr., 662 So. 2d 1152, 1154
(Ala. 1995)(noting that "[t]his Court has
consistently held that the testimony of an
expert witness in a medical malpractice
case must be viewed as a whole, and that a
portion of it should not be viewed
abstractly, independently, or separately
from
the
balance
of
the
expert's
testimony").
"'....
"'"'We are to view the [expert]
testimony as a whole, and, so viewing it,
determine if the testimony is sufficient to
create a reasonable inference of the fact
the plaintiff seeks to prove.'" Giles v.
Brookwood Health Servs., Inc., 5 So. 3d
533, 550 (Ala. 2008) (quoting Hines, 477
So. 2d at 304–05). Viewing Dr. Buckley's
testimony as a whole and viewing the
evidence in the light most favorable to
Graves,
we
conclude
that
Graves
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demonstrated the existence of a genuine
issue as to medical causation and that the
trial court's summary judgment against her
on this basis therefore was in error.'
"43 So. 3d at 1228."
Hrynkiw, 96 So. 3d at 800-01. Based on Hrynkiw, Kimberlee
argues that the jury should have been permitted to sort
through
any
perceived
discrepancies in
Dr.
Steckel's
testimony
about the likelihood that Scott's cancer had already
metastasized in 2009.
Kimberlee also contends that Dr. Steckel's opinion that
Scott's prostate cancer had not metastasized in 2009 was not
based on speculation because Dr. Steckel plainly testified
that his assessment was based upon Scott's 2006 PSA level of
1.6, his 2009 PSA level of 14.3, the fact that bone scans are
not ordinarily mandated unless a patient has a PSA level of 20
or above,6 the fact that Dr. Remillard's rectal scan of Scott
in 2009 found no abnormalities in Scott's prostate, and
Dr. Steckel's extensive experience in working with prostate-
cancer patients. Thus, Kimberlee argues, Dr. Steckel's
conclusion is a reasonable inference deducible from the facts
6Dr. Steckel testified that PSA levels between 10 and 20
are in a "gray zone" in which ordering a scan is based on the
individual characteristics of a patient.
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rather than just a conjecture. See Bradley, 878 So. 2d at
266. Kimberlee insists that Dr. Steckel's statements on
cross-examination referred to the fact that it could not be
known for certain that Scott's cancer was localized to his
prostate in 2009 because no scan by a urologist was performed
at that time, but he clearly believed it was probable that the
cancer had not spread at that time. In Kimberlee's view,
categorizing Dr. Steckel's testimony as purely speculative
conflates "the inability to rule out the possibility of
metastatic disease in 2009 with Scott's likely prognosis in
2009 had he been promptly diagnosed and treated." Kimberlee's
reply brief, p. 17.
The evaluation required with respect to Dr. Steckel's
causation testimony is similar to what is required in
examining the defendants' objection that Dr. Haines's
standard-of-care testimony sought to impose a heightened
standard of care. That is, Dr. Steckel's testimony could be
understood as positing a "probability of a possibility" that
Scott's cancer had not metastasized in 2009, as the defendants
put it. The defendants' brief, p. I. However, Dr. Steckel's
testimony also could be understood as stating that, in all
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probability, Scott's cancer had not metastasized in 2009, and
probability, not certainty, is what is required to present
substantial evidence of causation under the AMLA. As we
concluded with respect to the testimony of Dr. Haines, when
Dr. Steckel's testimony is viewed in its totality and in a
light most favorable to Kimberlee, his testimony should not
have been excluded for a failure to provide substantial
evidence of causation. It should have been left to a jury to
decide if Dr. Steckel established that the
defendants' alleged
breach of the standard of care probably caused Scott not to be
in a better position than he otherwise would have been if he
had been informed of the PSA lab-test result in 2009.
In fact, the defendants' argument seems to ignore the
premise of the "better-position" principle that "'the issue of
causation in a malpractice case may properly be submitted to
the jury where there is evidence that prompt diagnosis and
treatment would have placed the patient in a better position
than [he] was in as a result of inferior medical care.'"
Hamilton v. Scott, 278 So. 3d 1180, 1186 (Ala. 2018) (quoting
Parker v. Collins, 605 So. 2d 824, 827 (Ala. 1992)) (emphasis
59
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altered). As Kimberlee's counsel observed during the hearing
on the motion for a JML:
"Judge, under the circumstances where a patient was
not diagnosed, and there's no imaging test to
completely rule in or rule out bony metastasis or no
CT scan test that was done to rule out lymph node
metastasis, the plaintiff is left in the position of
looking at all of the data points that we have
present in this case, applying that to what is the
general knowledge in the field of urological
surgery, knowledge that was admitted by both experts
in this case, that a PSA level of 14 relates to a
risk of metastasis of less than thirty percent. And
based on that exercise, that it is more probable
than not that you would not -- that he did not have
metastatic disease."
In other words, the defendants complain that Kimberlee
cannot prove that the cancer was localized in Scott's prostate
in 2009 because no scan was performed at that time even though
the whole premise of Kimberlee's action is that no diagnosis
was made and no referral for urological testing was done in
2009. It is inherent in a failure-to-diagnose-and-treat case
that a medical judgment assessing a patient's prognosis if
earlier treatment had occurred is necessarily based on less
evidence than would be available if that earlier treatment
actually had occurred. The key issue is whether the expert
medical judgment is, in fact, based on evidence rather than
just a baldly stated opinion. Dr. Steckel clearly did testify
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that facts supported his medical opinion, namely Scott's 2006
PSA level of 1.6, his 2009 PSA level of 14.3, the fact that
bone scans are not ordinarily mandated unless a patient has a
PSA level of 20 or above, the findings of Dr. Remillard's 2009
rectal scan of Scott's prostate, and Dr. Steckel's extensive
experience with similar cancer patients. Accordingly, Dr.
Steckel's testimony provided sufficient evidence of causation
for the issue to be submitted to a jury.
C. Testimony from CMA Wood
Kimberlee takes issue with the trial court's rulings on
three motions in limine filed by the defendants that prevented
CMA Wood from testifying about the standard of care applicable
to a CMA's informing patients of abnormal lab-test results
based on instructions from a supervising physician.
Kimberlee
sought this witness testimony ostensibly to counter testimony
from CMA Ehlman who worked for Dr. Remillard at the clinic.
For someone who is not a specialist, an expert witness
will be considered a "similarly situated health care provider"
if the person meets the three criteria stated in § 6-5-548(b),
Ala. Code 1975:
"(1) Is licensed by the appropriate regulatory
board or agency of this or some other state.
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"(2) Is trained and experienced in the same
discipline or school of practice.
"(3) Has practiced in the same discipline or
school of practice during the year preceding the
date that the alleged breach of the standard of care
occurred."
(Emphasis added.) The trial court excluded Wood's testimony
on the basis of § 6-5-548(b)(3) because Wood had worked in a
cardiovascular clinic during the year immediately preceding
the alleged breach of the standard of care, whereas Ehlman had
been working in Dr. Remillard's family-medicine practice.
Kimberlee contends that the trial court's reasoning is
erroneous:
"The relevant inquiry under
§
6-5-548
is
whether
Joanne Ehlman and Jennifer Wood both practiced in
the same discipline or school of practice during the
year preceding October 1, 2009. Both Jennifer Wood
and Joanne Ehlman are certified medical assistants
with experience communicating abnormal lab values in
the year preceding the alleged breach. CMAs are not
specialists, and both Jennifer Wood and Joanne
Ehlman have worked in multiple different types of
medical offices.
"There
is
no
distinction
between
the
certification for a CMA who works in a family
practice
clinic
and
a
CMA
who
works
in
a
cardiovascular setting. And the communication of an
abnormal lab value is general and not specific.
Jennifer Wood is therefore similarly situated to
Joanne
Ehlman
and
qualified
to
proffer
standard-of-care testimony."
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Kimberlee's brief, p. 46.
The defendants agree with the trial court's finding that
Wood had not "practiced the same discipline or school of
practice" as Ehlman during the year preceding the alleged
breach of the standard of care. For support, they cite
Anderson v. Alabama Reference Laboratories, 778 So. 2d 806
(Ala. 2000). In Anderson, the plaintiffs alleged that a
medical-lab testing company, Alabama Reference Laboratories
("ARL"), had
"failed to properly perform tuberculosis testing on
Mr. Anderson's sputum specimen, by allowing it be
contaminated with the specimen of another donor, so
that it gave an inaccurate test result. Thus, the
standard of care to be applied to this case is that
of a 'health care provider' practicing tuberculosis
testing."
778 So. 2d at 812. The erroneous testing had caused
Mr. Anderson to be diagnosed with tuberculosis even though he,
in fact, had not contracted the disease. ARL filed a summary-
judgment motion that it supported with an affidavit from "a
medical technologist certified by the American Society of
Clinical Pathologists ('ASCP') and
[who] was the supervisor of
microbiology at ARL when it tested Mr. Anderson's sputum
specimen." Id. at 810. In opposition to motion, the
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Andersons countered with deposition testimony from their
expert, Dr. Linda Pifer. The trial court concluded that
Dr. Pifer was not qualified to testify against ARL as to the
applicable standard of care and its alleged breach under
§ 6-5-548(b)(3). This Court agreed with the trial court's
conclusion:
"Dr. Pifer does not ... meet the requirement of
(b)(3). Although Dr. Pifer has training and
experience in the general field of microbiology, she
does not have recent training or experience in the
specific field of tuberculosis testing. In her
deposition testimony, Dr. Pifer admits that she has
never worked in a reference or clinical laboratory
or a mycobacteriology department; that prior to the
time of the testing that is the basis of this case,
she never supervised, or participated in, the
performance of tuberculosis testing and never did
any of the kinds of tuberculosis testing that were
performed by ARL on Anderson's sputum specimen; that
she has no practical experience in the field of
mycobacteria or tuberculosis testing; that she has
no personal knowledge of quality-assurance programs
at clinical or reference laboratories that conduct
tuberculosis testing; that she is not familiar with
the tuberculosis-testing guidelines recommended by
the
primary
certifying
agency
for
clinical
laboratories; that she is not familiar with the
Centers for Disease Control guidelines relating to
mycobacteriology and tuberculosis testing; that she
has not written any article relating to tuberculosis
testing; and that she has no teaching experience in
the area of tuberculosis testing. Finally, in her
deposition testimony, Dr. Pifer admits that she does
not practice in the same specialty as Decker or
Green. ... Because Dr. Pifer's own testimony shows
that she did not practice in the specialty of
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tuberculosis testing in the year preceding the
testing of Anderson's sputum specimen, she does not
qualify as a 'similarly situated health care
provider' and, thus, is not competent to give expert
testimony concerning ARL's alleged breach of the
applicable standard of care."
Anderson, 778 So. 2d at 812-13.
The defendants contend that Anderson is analogous
because, like Dr. Pifer in that case, Wood did not practice in
the same discipline or school of practice as Ehlman during the
year preceding the date of the alleged breach of the standard
of care. However, Anderson is factually distinguishable from
this case because Dr. Pifer admitted she had never performed
the types of tuberculosis testing at issue in that case,
whereas Wood testified in her deposition that she had worked
as a CMA for a family-medicine practitioner between 1989 and
1994. Moreover, Anderson does not illuminate the issue of
what is the applicable standard of care with respect to
CMA Ehlman? Does the standard of care entail notifying
patients about abnormal PSA lab-test results -- which Wood
admitted she had not notified patients about in the relevant
year because she worked in a cardiovascular clinic -- or did
it entail notifying patients about abnormal lab-test results
in general -- which Wood testified was one of her regular
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responsibilities? In short, does "the same discipline or
school of practice" in § 6-5-548(b)(3) mean that which is
identical to the defendant, including the type of lab test to
be reported to a patient?
The question of what constitutes "the same discipline or
school of practice" for purposes of the applicable standard of
care of a CMA is similar to the issue we addressed earlier
with regard to whether Dr. Haines was qualified to offer an
opinion as to the standard of care for a family-medicine
practitioner because he was not working in a private,
community-based family-medicine practice during the year
preceding the breach of the standard of care. On that issue,
we concluded that "this speciality" in § 6-5-548(c)(4) refers
to the board-certified specialty practiced by the defendant
doctor rather than the exact setting in which the defendant
doctor practiced that speciality. Likewise, a CMA who carries
out a task that is very similar, though not identical, to the
task of the defendant CMA7 is still "practic[ing] in the same
discipline or school of practice." § 6-5-548(b)(3). The
defendants have not identified anything about notifying a
7We recognize that CMA Ehlman is a "defendant" only in the
sense that she is an employee of the defendants in this case.
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patient of an abnormal PSA lab-test result based on
instructions
from
a
supervising
physician
that
is
significantly different from notifying a patient about an
abnormal lab-test result concerning a heart condition.
Accordingly, with respect to a CMA, the relevant question in
this case is what are the proper measures for notifying a
patient of an abnormal lab-test result based on instructions
from a supervising physician, not what are the proper measures
for notifying a patient regarding a specific kind of lab-test
result. Given that standard, we conclude that CMA Wood should
have been permitted to testify regarding the standard
applicable to a CMA in this case.
D. Trial Court's Ruling on Scott's April 7, 2011, Clinic Visit
By granting MIL #24, the trial court prohibited
Kimberlee's counsel from asking Dr. Remillard about his not
telling Scott about the 2009 abnormal PSA lab-test result
during Scott's April 7, 2011, clinic visit. The trial court
based that prohibition on § 6-5-551, Ala. Code 1975, which
requires the plaintiff in an AMLA action to "include in the
complaint filed in the action a detailed specification and
factual description of each act and omission alleged by
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plaintiff to render the health care provider liable to
plaintiff ...." The trial court concluded that, because
Kimberlee had not alleged that Dr. Remillard had breached the
standard of care on April 7, 2011, questioning Dr. Remillard
about his "failure" to notify Scott about the 2009 abnormal
PSA lab-test result on that visit would amount to adding an
act or omission that Kimberlee had not pleaded in the
complaint.
Kimberlee argues that the trial court's ruling on MIL #24
was erroneous because the complaint did include an allegation
that Dr. Remillard did not inform Scott about the 2009
abnormal PSA lab-test result during the April 7, 2011, clinic
visit. Kimberlee contends that the failure to inform Scott of
the test result was "an integral part of the theory of
liability" because
"[Kimberlee's] main theory of liability is that
[Dr.] Remillard failed to timely inform Scott about
the 2009 PSA results. Given that [Dr.] Remillard
did not inform Scott about his prior 2009 elevated
PSA test when Scott presented just eighteen months
later complaining of prostate issues, the jury could
reasonably infer that Dr. Remillard missed the
elevated PSA in 2009 and didn't know about it until
later. In other words, a jury can reasonably infer
that Dr. Remillard didn't tell Scott about the prior
2009 elevated PSA on April 7th because he didn't
know it was elevated. ... A juror should be able
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to consider why Dr. Remillard, if he had truly known
that Scott had an elevated PSA test from just
eighteen months earlier, would diagnose Scott with
a benign condition and not inform him about the
prior elevated PSA and serious concern for prostate
cancer. The exclusion of this evidence was highly
prejudicial
and
substantially
affected
[Kimberlee's]
rights and ability to try the case."
Kimberlee's brief, pp. 19-21.
The defendants contend that Kimberlee's argument should
be "rejected out of hand" because Kimberlee's counsel stated
numerous times that Kimberlee was not accusing Dr. Remillard
of a breach of the standard of care during the April 7, 2011,
clinic visit. The defendants's brief, p. 62. For example,
during one argument concerning MIL #24, Kimberlee's counsel
stated: "[W]hether it was finally diagnosed on April 7th or
April 21st, it makes no difference to the causation issue of
the case." In the same argument, Kimberlee's counsel flatly
stated: "We're not saying that they breached the standard of
care on April 7[, 2011]. I'm not saying that, Judge."
Therefore, the defendants argue, the trial court was clearly
within its discretion to prohibit questioning about an
omission that had no bearing on the alleged injury to Scott.
The defendants also observe that Kimberlee was permitted to
ask Dr. Remillard anything about what was said to Scott during
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the April 7, 2011, clinic visit, so the jury was not being
deprived of details as to what occurred during the visit.
Kimberlee's argument with respect to MIL #24 at best
confuses the issue of what was the actual omission that was
alleged as a breach of the standard of care. The consistent
allegation regarding a breach of the standard of care
concerned a failure to inform Scott in a timely manner about
the 2009 abnormal PSA lab-test result. Yet, Kimberlee argues
that Dr. Remillard's failure to tell Scott about that result
during the April 7, 2011, clinic visit indicates that "Dr.
Remillard missed the elevated PSA in 2009 and didn't know
about it until later." Kimberlee's brief, p. 21. The timing
of Dr. Remillard's knowledge of the 2009 abnormal PSA lab-test
result is ultimately irrelevant to whether the
defendants took
appropriate steps to inform Scott of the test result in a
timely manner. It is true that if Dr. Remillard was unaware
of the 2009 PSA lab-test result until April 21, 2011, that
fact could lend credence to Scott's testimony that he was not
told about an abnormal test result in 2009. On the other
hand, it is also true that specific questions to Dr. Remillard
about his failure to tell Scott about the 2009 abnormal PSA
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lab-test result on April 7, 2011, could confuse a jury as to
the ultimate issue in the case. See, e.g., Davis v. Hanson
Aggregates Southeast, Inc., 952 So. 2d 330, 338 (Ala. 2006)
(noting that "[a] trial court has discretion to exclude
otherwise admissible evidence in order to avoid misleading the
jury" (citing Rule 403, Ala. R. Evid.)). Moreover, a review
of Dr. Remillard's testimony about the April 7, 2011, clinic
visit reveals that Kimberlee's counsel was able to ask
Dr. Remillard about everything that did occur during that
visit. Further, Kimberlee's counsel was also permitted to ask
Dr. Remillard about informing Scott of his elevated PSA level
on April 21, 2011. Thus, the jury was free to infer that
Dr. Remillard did not inform Scott about the 2009 abnormal PSA
lab-test result during the April 7, 2011, clinic visit.
Kimberlee was just not permitted to draw an inference for the
jury as to what Dr. Remillard's failure to mention the 2009
PSA lab-test result on April 7, 2011, meant with respect to
the alleged breach of the standard of care. Given all of the
foregoing, we cannot conclude that the trial court erred in
its ruling on MIL #24.
71
1180650
E. The Trial Court's Ruling on Kimberlee's Use of the Term
"Patient Safety"
The trial court granted MIL #26, which sought to prohibit
any witness "from offering testimony regarding 'safer' or
'better' approaches or otherwise equating or suggesting that
safety defines the standard of care" because the actual
standard of care under the AMLA is that a physician must
provide "reasonable care." Kimberlee contends that this was
error because
"it does not run afoul of the AMLA, applicable case
law, ... or Ala. R. Evid. 402-403, to allow the
plaintiff to address, through qualified experts,
'better' or 'safer' approaches than the approach
used by the defendants, so long as the plaintiff's
expert addresses what the standard of care requires
and the approaches that fall within it."
Kimberlee's brief, p. 42.
We decline to examine the substance of this argument
because -- as the defendants observe -- Kimberlee did not
preserve this error for appellate review.
"When there is no indication in the record that a
trial court's ruling on a motion in limine was
absolute or unconditional, the proponent of the
contested evidence must attempt to admit the
evidence at trial and obtain a specific adverse
ruling in order to preserve the issue for appellate
review."
72
1180650
Pensacola Motor Sales, Inc. v. Daphne Auto., LLC, 155 So. 3d
930, 936–37 (Ala. 2013). There is no indication in the record
that the trial court's ruling on MIL #26 was absolute or
unconditional. Therefore, it was incumbent upon Kimberlee to
proffer the testimony with respect to "patient safety" at
trial and to obtain an adverse ruling. Kimberlee did not do
so, and Kimberlee did not address the defendants' response to
this argument in her reply brief. Accordingly, this argument
has not been properly preserved for our review, and we uphold
the trial court's ruling on this issue.
IV. Conclusion
Based on the foregoing, we conclude that Kimberlee
presented competent expert-witness testimony regarding the
standard of care and causation. In the interest of judicial
economy, we also have addressed other rulings by the trial
court challenged by Kimberlee in this appeal. Concerning
those rulings, Kimberlee's CMA nursing expert should have been
permitted to testify, but the trial court properly excluded
Kimberlee's counsel from directly questioning Dr. Remillard
about his failure to tell Scott about his 2009 abnormal PSA
lab-test result during his April 7, 2011, visit to the clinic.
73
1180650
Moreover, Kimberlee's challenge to MIL #26 was not properly
preserved for appellate review. The judgment of the trial
court is reversed, and the cause is remanded for a new trial.
REVERSED AND REMANDED.
Parker, C.J., and Wise, Bryan, Stewart, and Mitchell,
JJ., concur.
Sellers, J., concurs in part and dissents in part as to
the rationale and concurs in the result.
Shaw, J.,* concurs in the result.
*Although Justice Shaw did not sit for oral argument of
this case, he has reviewed a recording of that oral argument.
74
1180650
SELLERS, Justice (concurring in part and dissenting in part as
to the rationale and concurring in the result).
I respectfully dissent from the holding that the trial
court erred in determining that plaintiff Kimberlee Spencer's
expert certified medical assistant ("CMA"), Jennifer Wood, is
not a similarly situated health-care provider with respect to
CMA Joan Ehlman. I concur in the result as to the resolution
of the issue whether the plaintiff's expert physician, Dr. Joe
Haines, is a similarly situated health-care provider with
respect to defendant Dr. Michael A. Remillard. I concur fully
in all other aspects of the opinion, and I agree that the
judgment as a matter of law in favor of the defendants should
be reversed and the cause remanded for a new trial.
CMA Wood was prepared to testify as to the standard of
care applicable to a CMA's responsibility to inform patients
of
abnormal
laboratory-test results
based
on
instructions
from
a supervising physician. The trial court concluded that CMA
Wood had not "practiced in the same discipline or school of
practice during the year preceding the date" that CMA Ehlman
allegedly breached the standard of care. § 6-5-548(b)(3),
Ala. Code 1975. Thus, the trial court determined that CMA
75
1180650
Wood was not a similarly situated health-care provider under
§ 6-5-548(b)(3) and that her testimony could not establish
whether a breach of the standard of care occurred. In
Anderson v. Alabama Reference Laboratories, 778 So. 2d 806
(Ala.
2006),
this
Court
held
that
an
expert
microbiologist/medical-laboratory professional was not a
similarly situated health-care provider with respect to a
medical technologist who had tested the plaintiff for
tuberculosis, an infectious disease caused by bacteria.
Although the expert had significant knowledge and experience
in microbiology, which includes "the laboratory analysis of
different types of bacteria and viruses," she had not
practiced in the specific area of tuberculosis testing in the
year preceding the alleged breach of the standard of care.
778 So. 2d at 812. In the present case, the alleged breach of
the standard of care was the failure to timely inform Scott
Spencer of his elevated PSA levels. During the year preceding
the alleged breach of the standard of care, CMA Wood had
experience with receiving and reporting abnormal test results
with respect to some conditions, but not elevated PSA levels.
As the appellant, Kimberlee Spencer bears the burden of
76
1180650
demonstrating that the trial court exceeded its discretion.
I do not believe that she has demonstrated that there is no
significant difference between receiving and reporting
abnormal PSA test results and receiving and reporting other
abnormal test results.
77 | September 4, 2020 |
a8a855f1-49e8-4e70-8c40-68ec27a09f6e | Ex parte Denver Jeff Holloway. | N/A | 1190803 | 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 21, 2020
1190803
Ex parte Denver Jeff Holloway. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Denver Jeff Holloway v. Alabama Board of Pardons and Paroles)
(Montgomery Circuit Court: CV-19-221; Criminal Appeals :
CR-19-0028).
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 August 21,2020:
Writ Denied. No Opinion. Bolin, J. - Parker, C.J., and Shaw, Sellers, and Stewart, 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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
2d928627-399f-4c76-8327-3da24468fac7 | Ex parte Jack Avery Brown. | N/A | 1190734 | 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 21, 2020
1190734
Ex parte Jack Avery Brown. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Jack Avery Brown v. State of Alabama) (Lauderdale Circuit
Court: CC-19-507; Criminal Appeals :
CR-18-0913).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
1c154483-43b4-4f55-98b5-74fffa9f2232 | Ex parte James Lawson Fowler and Vivian Fowler. | N/A | 1190729 | 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 21, 2020
1190729
Ex parte James Lawson Fowler and Vivian Fowler. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS (In re: James Lawson Fowler and Vivian Fowler v.
Reginald Rorie) (Tuscaloosa Circuit Court: CV-16-900743; Civil Appeals :
2180301).
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 August 21,2020:
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 21st day of August, 2020.
Clerk, Supreme Court of Alabama | August 21, 2020 |
2eee8f56-7a77-41a2-b314-a70b5b889b69 | Ex parte Willie Lee Conner. | N/A | 1190775 | 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 21, 2020
1190775
Ex parte Willie Lee Conner. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Willie Lee Conner v. State of Alabama) (Baldwin Circuit Court:
CC-12-1861.62; Criminal Appeals :
CR-18-1029).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
5049d126-02d5-41dd-b092-c66fde93c5d2 | Ex parte Audrea Annie Gallegos. | N/A | 1190808 | 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 21, 2020
1190808
Ex parte Audrea Annie Gallegos. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Audrea Annie Gallegos v. State of Alabama) (Mobile Circuit
Court: CC-18-4979; CC-18-4980; Criminal Appeals :
CR-19-0101).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
1f4f0c86-c8bf-49b5-b8a8-9f345a8d6705 | Ex parte Armando Torres Escobar. | N/A | 1190837 | 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 21, 2020
1190837
Ex parte Armando Torres Escobar. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Armando Torres Escobar v. State of Alabama) (Jefferson
Circuit Court: CC-18-79, cC
-
18-
80,
C
C
-
18-
81;
Criminal Appeals :
CR-18-0611).
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 August 21,2020:
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 21st day of August, 2020.
Clerk, Supreme Court of Alabama | August 21, 2020 |
0ad5aabe-22f4-4ce1-98e7-cbb0cba21040 | Ex parte William Herbert Villar. | N/A | 1190811 | 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 21, 2020
1190811
Ex parte William Herbert Villar. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: William Herbert Villar v. State of Alabama) (Mobile Circuit Court:
CC-05-1443.65; Criminal Appeals :
CR-18-1008).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
76024482-a145-4490-98e1-5291b3c07513 | Ex parte P.R.T. II. | N/A | 1190778 | 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 21, 2020
1190778
Ex parte P.R.T. II. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS (In re: P.R.T. II v. State of Alabama) (Houston Circuit Court: CC-13-12.61;
Criminal Appeals :
CR-19-0106).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
16d4cfb7-c90f-4262-9d46-94743ebc5e92 | Ex parte Angelo B. Archible, Jr. | N/A | 1190787 | 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 21, 2020
1190787
Ex parte Angelo B. Archible, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Angelo B. Archible, Jr. v. State of Alabama.) (Mobile Circuit
Court: CC-16-4757; Criminal Appeals :
CR-18-1230).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
0b98021d-56f1-4ba0-9c00-e015601cc04c | Robin Woodgett and Jerome Ruffin v. City of Midfield and American Traffic Solutions, Inc. | N/A | 1180051 | 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
1180051
Robin Woodgett and Jerome Ruffin v. City of Midfield and American Traffic
Solutions, Inc. (Appeal from Jefferson Circuit Court, Bessemer Division: CV-18-20).
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 |
46741735-282a-42d7-a838-7c23afaf6b9d | Eddie Toeran and Ramilda Toeran v. Alcove, L.L.C., , et al. | N/A | 1180670 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 21,2020
1180670
Eddie Toeran and Ramilda Toeran v. Alcove, L.L.C., ,
et al. (Appeal from
Tuscaloosa Circuit Court: CV-16-900129).
ORDER
IT IS ORDERED that the above-styled case is dismissed.
SHAW, J. - Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur.
Witness my hand this 21st day of August, 2020.
/ra | August 21, 2020 |
2fb8cfaf-7b08-4469-936f-6a1519398fec | Ex parte D. A. L. | N/A | 1190867 | 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 14, 2020
1190867
Ex parte D. A. L. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS (In re: D. A. L. v. State of Alabama) (Montgomery Circuit Court: CC-16-1145;
CC-16-1254; Criminal Appeals :
CR-18-0472).
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 August 14, 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 14th day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 14, 2020 |
4d65bec1-d2d7-4d9a-92d1-636cd46cfe7a | Ex parte Renter's Realty. | N/A | 1190349 | 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
1190349
Ex parte Renter's Realty. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Renter's Realty v. Ieisha Smith) (Madison Circuit Court:
CV-18-69; Civil Appeals :
2181042).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on September 18, 2020:
Writ Quashed. 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 18th day of September, 2020.
Clerk, Supreme Court of Alabama | September 18, 2020 |
f5319dea-a3f4-4564-bd19-2fb98485684b | Ex parte Todd Jeffrey Gates. | N/A | 1190865 | 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 21, 2020
1190865
Ex parte Todd Jeffrey Gates. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Todd Jeffrey Gates v. State of Alabama) (Baldwin Circuit Court:
CC-06-413.61; Criminal Appeals :
CR-19-0376).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
57230a1a-b35a-4195-b18b-697b982b428d | Ex parte Demarcus Sanchez Mitchell. | N/A | 1190749 | 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 21, 2020
1190749
Ex parte Demarcus Sanchez Mitchell. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Demarcus Sanchez Mitchell v. State of Alabama)
(Mobile Circuit Court: CC-16-3780.70; Criminal Appeals :
CR-19-0184).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
6b908c37-57a9-4e03-9d6a-32b463739ce6 | Ex parte J.H. and J.H. II. | N/A | 1190702 | 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 21, 2020
1190702
Ex parte J.H. and J.H. II. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: J.H. and J.H. II v .Jackson County Department of Human Resources)
(Jackson Juvenile Court: JU-17-14.02; Civil Appeals :
2190003).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
39cce27c-a62b-469c-a7ac-cb4d8d2f06a0 | Ex parte Adam Michael Burrus. | N/A | 1190788 | 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 14, 2020
1190788
Ex parte Adam Michael Burrus. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Adam Michael Burrus v. State of Alabama) (Shelby Circuit
Court: CC-17-672; Criminal Appeals :
CR-18-1108).
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 August 14, 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 14th day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 14, 2020 |
37e0b4c8-f91d-4e91-b89d-c6fd793b69da | Ex parte J.H. and J.H. II. | N/A | 1190701 | 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 21, 2020
1190701
Ex parte J.H. and J.H. II. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: J.H. and J.H. II v. Jackson County Department of Human Resources)
(Jackson Juvenile Court: JU-17-13.02; Civil Appeals :
2190002).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
e4f7abbe-19b3-4492-8d3b-a6d4bfcbe71c | Ex parte Samuel Lee Stephens. | N/A | 1190745 | 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 21, 2020
1190745
Ex parte Samuel Lee Stephens. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: Samuel Lee Stephens v. Norma J. Stephens) (Montgomery
Circuit Court: DR-17-900495; Civil Appeals :
2180994).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
13454345-40b3-40fe-bbec-1fdeb6016bc1 | Holt v. Holt | N/A | 1190025 | Alabama | Alabama Supreme Court | Rel: August 21, 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
____________________
1190025
____________________
Michael J. Holt
v.
Jere B. Holt, as coexecutor of the Estate of
Geneva H. Holt, deceased
Appeal from Walker Circuit Court
(CV-16-900276)
SHAW, Justice.
Michael J. Holt, the coexecutor of the estate of Geneva
H. Holt, deceased, and the defendant in an action below
involving the estate, appeals the Walker Circuit Court's
1190025
judgment in favor of the plaintiff and coexecutor of the
estate, Jere B. Holt. We dismiss the appeal.
Facts and Procedural History
In October 2007, Jere and Michael's mother, Geneva Holt,
died. In May 2008, Jere and Michael filed a petition in the
Walker County Probate Court to probate their mother's will. In
June 2008, the probate court entered an order admitting the
will to probate and issued letters testamentary to Jere and
Michael as coexecutors.
In August 2016, Jere filed a petition in the Walker
Circuit Court to remove the proceedings from the probate
court. In a separate motion, Jere asked the circuit court to
construe the provisions of the will to allow the remaining
assets in Geneva's estate to be used to satisfy a $140,000
cash bequest to him in Geneva's will. Michael filed a response
to Jere's motion in which he asserted a counterclaim seeking
a judgment declaring that the specific bequest to Jere had
adeemed. On June 4, 2019, the circuit court entered an order
in favor of Jere, holding that the cash bequest to Jere could
be satisfied by selling assets of the estate. Thereafter,
Michael filed a notice of appeal to this Court.
2
1190025
Discussion
Although neither party on appeal challenges the circuit
court's
jurisdiction,
"the
absence
of
subject-matter
jurisdiction cannot be waived, and it is the duty of an
appellate court to notice the absence of subject-matter
jurisdiction ex mero motu." McElroy v. McElroy, 254 So. 3d
872, 875 (Ala. 2017). As a general matter, the probate court
has both original and general jurisdiction over matters
relating to the administration of an estate. See § 12–13–1,
Ala. Code 1975. However, the circuit court may acquire
jurisdiction over the administration of an estate if the
estate is properly removed from the probate court to the
circuit court pursuant to § 12–11–41, Ala. Code 1975. That
Code section provides:
"The administration of
any
estate
may
be
removed
from the probate court to the circuit court at any
time before a final settlement thereof, by any heir,
devisee,
legatee,
distributee,
executor,
administrator or administrator with the will annexed
of any such estate, without assigning any special
equity; and an order of removal must be made by the
court, upon the filing of a sworn petition by any
such heir, devisee, legatee, distributee, executor,
administrator or administrator with the will annexed
of any such estate, reciting that the petitioner is
such heir, devisee, legatee, distributee, executor,
administrator or administrator with the will annexed
and that, in the opinion of the petitioner, such
3
1190025
estate can be better administered in the circuit
court than in the probate court."
Thus, "'[o]nce a party seeking to remove the administration of
an estate pursuant to § 12–11–41[, Ala. Code 1975,] makes a
prima facie showing that she is an "heir, devisee, legatee,
distributee,
executor,
administrator
or
administrator
with
the
will annexed,"'" the circuit court, to obtain jurisdiction,
must then order the removal of the administration of the
estate. Nelson v. Nelson, 10 So. 3d 603, 605 (Ala. Civ. App.
2008) (quoting Ex parte McLendon, 824 So. 2d 700, 704 (Ala.
2001)).
In DuBose v. Weaver, 68 So. 3d 814 (Ala. 2011), this
Court addressed a situation in which a party sought to remove
the administration of an estate from a probate court to a
circuit court pursuant to § 12–11–41. In explaining how a
circuit court can obtain jurisdiction of such a case, this
Court made clear that "the filing of a petition for removal in
the circuit court and the entry of an order of removal by that
court are prerequisites to that court's acquisition of
jurisdiction over the
administration of the estate pursuant to
§ 12–11–41[, Ala. Code 1975]." 68 So. 3d at 822 (some emphasis
added). Because, among other things, the circuit court never
4
1190025
"enter[ed] an order purporting to remove the
administration of
the estate from probate court," 68 So. 3d at 822, this Court
concluded that the circuit court did not
obtain subject-matter
jurisdiction and that, as a result, the judgment entered by
that court was void and the appeal was due to be dismissed.
See also Nelson, 10 So. 3d at 605 (holding that, because the
circuit court "failed to enter an order removing" the
administration of the estate from the probate court, "the
circuit court never acquired jurisdiction").
In the present case, the record contains no order of
removal, and the parties did not produce one after this Court
issued a show-cause order. It thus appears that a removal
order was not entered in this case. As a result, the circuit
court never acquired subject-matter jurisdiction over the
administration of Geneva's estate; its June 4, 2019, order,
therefore, is void, and the appeal is due to be dismissed. See
Vann v. Cook, 989 So. 2d 556, 559 (Ala. Civ. App. 2008) ("A
judgment
entered
by
a
court
lacking
subject-matter
jurisdiction is absolutely void and will not support an
appeal; an appellate court must dismiss an attempted appeal
from such a void judgment.").
5
1190025
However, the parties note the following language from the
circuit court's June 4, 2019, order:
"3. Since there are other acts to be accomplished in
this estate, which has been removed to the Circuit
Court of Walker County, Alabama, the Court leaves
the estate open at the present time to accomplish
all actions necessary to eventually effect the
closing of this estate."
(Emphasis added.) According to the parties, the emphasized
language in the above quote constituted an "order of removal"
by the circuit court, despite the fact that the circuit court
never issued a separate order removing the estate from the
probate court.
Contrary to the parties' contention, however, the circuit
court's June 4, 2019, order is not an order of removal. This
order was entered after trial and merely states an apparently
incorrect belief that the case had previously been properly
removed when, in fact, it had not. The parties have offered no
other evidence or explanation indicating that the circuit
court entered an actual order of removal as required by the
caselaw discussed above.
The parties also argue that, even if this Court were to
conclude that the circuit court never obtained jurisdiction
over the administration of the estate because it failed to
6
1190025
enter
a
separate
removal
order,
Michael's
counterclaim
invoked
the
circuit
court's
jurisdiction.
This
argument
is
unpersuasive. This Court has previously held that, when a
court fails to initially obtain subject-matter jurisdiction,
it does not obtain jurisdiction over a subsequently filed
counterclaim. See Board of Sch. Comm'rs of Mobile Cty. v.
Thomas, 130 So. 3d 199, 204 (Ala. Civ. App. 2013) (holding
that, because the Board's petition did not invoke the trial
court's jurisdiction, that court likewise did not obtain
jurisdiction over a party's counterclaims, filed in the same
action, and its dismissal of those counterclaims was also
void). Here, because the circuit court never
acquired subject-
matter jurisdiction over the administration of Geneva's
estate, that court likewise did not obtain jurisdiction over
Michael's counterclaim.
The circuit court's June 4, 2019, order is void. Because
a void judgment will not support an appeal, this appeal from
that judgment must be dismissed. See Vann, 989 So. 2d at 559,
and Blevins v. Hillwood Office Ctr. Owners' Ass'n, 51 So. 3d
317, 321–23 (Ala. 2010).
APPEAL DISMISSED.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ.,
concur.
7 | August 21, 2020 |
6bd93b8c-2741-4e4e-a218-de38971bb977 | Anna D. Pamperin v. B. Clay Dudley III | N/A | 1181078 | Alabama | Alabama Supreme Court | Rel: August 21, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1181078
Anna D. Pamperin v. B. Clay Dudley III (Appeal from Russell
Circuit Court: CV-18-17).
1181081
B. Clay Dudley III v. Anna D. Pamperin (Appeal from Russell
Circuit Court: CV-18-17).
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 |
20a34af5-6bb9-4f7b-ba11-20d87969347b | Synergies3 Tec Services, LLC, et al. v. Corvo | N/A | 1170765 | Alabama | Alabama Supreme Court | Rel: August 21, 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
_________________________
1170765
_________________________
Synergies3 Tec Services, LLC, and DIRECTV, LLC
v.
Lisa M. Corvo, Thomas Bonds, and State Farm Fire and
Casualty Company
Appeal from Baldwin Circuit Court
(CV-15-900228)
STEWART, Justice.
Synergies3 Tec
Services,
LLC
("Synergies3"), and
DIRECTV,
LLC ("DIRECTV"), appeal from a judgment of the Baldwin Circuit
Court ("the trial court") entered, following a jury trial, in
favor of Lisa M. Corvo and Thomas Bonds and against Synergies3
and DIRECTV based on the doctrine of respondeat superior and
1170765
a claim alleging negligent hiring, training, and supervision.
For the reasons discussed below, we reverse the judgment in
part, affirm it in part, and remand the cause with
instructions.
Facts and Procedural History
Corvo and Bonds, Corvo's fiancé, sued Daniel McLaughlin,
Raymond Castro, and DIRECTV in the trial court, asserting
claims of conversion and theft as to a diamond that had been
removed from an engagement ring and $160 cash that, they
alleged, had been taken from the master bedroom of Corvo's
house on Ono Island when McLaughlin and Castro, employees of
Synergies3, installed DIRECTV equipment in Corvo's house.
Corvo and Bonds asserted the conversion and theft claims
against DIRECTV under the doctrine of respondeat superior and,
in addition, asserted claims against DIRECTV of negligent and
wanton hiring, training, and supervision. They also sought
damages for mental anguish and punitive damages. In June 2015,
Corvo and Bonds amended their complaint to add Synergies3 as
a defendant.1
1On December 18, 2015, Synergies3 and DIRECTV filed a
motion seeking to add State Farm Fire and Casualty Company as
a plaintiff because, they asserted, State Farm, which had paid
Bonds $59,765.40 for the missing diamond pursuant to an
2
1170765
McLaughlin and Castro failed to file an answer to the
complaint. Corvo and Bonds filed a motion for the entry of a
default judgment against McLaughlin and Castro. The trial
court granted the motion, entered a default judgment against
McLaughlin and Castro, and reserved the determination of the
amount of damages for a jury trial.
At trial, Corvo testified that she contacted DIRECTV to
initiate satellite television services in her house. On
February 20, 2013, Corvo and Bonds were working from home when
Castro and McLaughlin arrived. Corvo testified that Bonds let
them both inside the house, advised them where to install the
equipment, and then resumed working. Corvo testified that
Castro and McLaughlin were in the house for three and one-half
hours. At one point, she and Bonds experienced an interruption
in their Internet access, and, as a result, Bonds went to
check with Castro and McLaughlin regarding the Internet
access. Corvo noticed that the door to the master bedroom was
insurance policy, was the real party in interest. The trial
court granted the motion. Corvo and Bonds filed a petition for
a writ of mandamus in this Court seeking to vacate the trial
court's order joining State Farm. That petition was denied on
August 12, 2016. See Ex parte Corvo (No. 1150581), 233 So. 3d
925 (Ala. 2016)(table). Before the trial began, the trial
court purported to sever State Farm's claims.
3
1170765
"pushed to," i.e., almost closed, which she thought was
"really odd." Corvo hit the bedroom door with the laundry
basket to open it, which, she testified, startled McLaughlin,
who was standing behind the door. Corvo testified that she did
not see McLaughlin again and that she assumed he went outside.
Corvo testified that she returned to her work station and that
Internet
access
was
thereafter
restored.
When
the
installation
was complete, Castro provided Corvo and Bonds with a lengthy
overview of the services. Corvo and Bonds finished paperwork
associated with the installation, and Castro left.
Corvo testified that, after Castro left, she went to the
master bedroom to retrieve her handbag, jewelry, and shoes,
and she noticed that the three-carat diamond was missing from
the center of her engagement ring. Corvo testified that the
prongs on the ring were sticking out and were bent. Corvo told
Bonds, who, in turn, telephoned Castro. Meanwhile, Corvo
called local law enforcement and Ono Island security in an
attempt to stop Castro and McLaughlin from leaving the island.
Corvo and McLaughlin, however, had already left the island.
Corvo testified that she did not know whether Castro or
McLaughlin stole the diamond but that she and Bonds had been
4
1170765
more suspicious of McLaughlin because of Corvo's encounter
with him in the master bedroom.
Corvo testified that she and Bonds had become engaged in
Paris, France, without an engagement ring. Corvo also
testified that they specially designed and ordered the
engagement ring to have a band that resembled the Eiffel Tower
and that they found a diamond to fit into that setting.
Corvo testified that she felt "completely violated" and
"sickened" by the theft of her diamond, and she opined that a
person "shouldn't have to worry about people that are hired by
companies to come into your home." Corvo testified that she
had worried that McLaughlin and Castro might return to her
house to steal additional items. According to Corvo, she
suffered mental anguish and lost sleep and her sense of
security as a result of the theft, but she did not seek
treatment. Corvo testified that her symptoms had resolved by
May 2013.
Bonds testified that he had purchased the diamond for
$40,000. He had since purchased a replacement ring for Corvo
at a cost of $36,200, $31,000 of which was for the diamond.
Bonds testified that he heard Corvo's testimony and that it
was an accurate description of what had transpired the day
5
1170765
Castro and McLaughlin were in the house. Bonds testified that,
when he let Castro and McLaughlin into the house, they were
wearing DIRECTV badges and had told Bonds that they had been
sent by DIRECTV to initiate service to the house. Bonds
testified that he telephoned Castro after Corvo discovered
that the diamond was missing and that Castro told Bonds that
he did not take the diamond.
Stacy Castro testified that she and Castro were married
but that they had been separated for three years at the time
of the trial. Stacy testified that Mike Tucker, one of the
owners of Synergies3, had worked with Castro for a company
called MasTec in Texas. According to Stacy, in approximately
2006 or 2007, Castro told her that he had "a problem
stealing." Castro also told her that Tucker had suspended him
while he was working for MasTec because a customer alleged
that he had stolen a ring from her house while installing
equipment. Stacy also testified that she had previously
discovered a bag of women's jewelry in Castro's truck that he
told Stacy he had obtained "off the street" from a drug
addict. Stacy testified that, at the time of the trial, Castro
was in jail in Texas.
6
1170765
Before resting their case, Corvo and Bonds's attorney
admitted, over objection, a certified copy of Castro's January
31, 2001, conviction for writing worthless checks in North
Carolina.
Corvo and Bonds admitted into evidence portions of the
deposition of
Patrick
Thompson,
a
representative from
DIRECTV.
In his deposition testimony, Thompson indicated that DIRECTV
had a responsibility to ensure that customers could rely on
their technicians being safe, trustworthy, and law-abiding.
Thompson acknowledged that Synergies3 was an agent for
DIRECTV, and he testified that the technicians hired by
Synergies3 were subjected to the same background and drug
checks
that
were
administered
to
DIRECTV's in-house
employees.
Thompson was asked in his deposition what criminal acts would
disqualify a person from working for DIRECTV, and he
acknowledged that writing worthless checks is theft and would
disqualify an applicant.
Synergies3 and DIRECTV called Thompson to testify.
Thompson testified that he had worked for MasTec. Thompson
testified that, at the time of the trial, he was working for
AT&T, which owns DIRECTV, and that he supervises all the
technicians within a certain region. Thompson explained that
7
1170765
DIRECTV has
a
contract with Synergies3 to provide installation
services.2 Thompson testified that DIRECTV uses a company
named "Sterling" to perform background checks for DIRECTV's
potential employees and that DIRECTV has a department that
reviews the background-check information Sterling provides.
According to Thompson, an applicant is not assigned a "tech
number" until passing a background check. Thompson testified
that, once DIRECTV received a report about Corvo and Bonds's
missing diamond, one of his managers contacted Synergies3 to
look into the matter. Synergies3 ensured that the police were
notified and that Castro and McLaughlin were "pulled" from
work pending the results of the investigation. Thompson
testified that DIRECTV had not received any complaints about
Castro or McLaughlin before the date they installed the
equipment in Corvo's house.
2Synergies3 and DIRECTV, in a footnote in their appellate
brief, assert that the trial court erroneously ruled as a
matter of law that Synergies3 was an agent of DIRECTV and that
the question of agency should have been determined by the
jury, and they cite Bain v. Colbert County Northwest Alabama
Healthcare Authority, 233 So. 3d 945 (Ala. 2017), in support.
Synergies3 and DIRECTV's brief, p. 27 n.1. Synergies3 and
DIRECTV do not, however, argue on appeal that Synergies3 is
not an agent of DIRECTV, nor do they provide legal authority
in support of such a proposition.
8
1170765
Eric Atchley, one of the two owners of Synergies3,
testified that he lived in San Antonio. Atchley testified that
he worked for MasTec when Tucker and Castro were employed
there and that he had never heard anything regarding Castro's
being suspended for stealing a ring. Atchley testified that
Tucker left his employment with MasTec in 2005. Atchley
testified that Tucker had been his partner when they started
Synergies3 but that Tucker left Synergies3 in 2014. Atchley
testified that he had talked to Tucker earlier that day.
Atchley testified that Synergies3 has approximately 800
technicians located nationwide who install equipment for
DIRECTV. Atchley testified that Synergies3 obtains background
checks on all of its applicants for technician positions and
that the cost of those background checks ranges from $100 to
$1,000, depending on the number of cities in which the
applicant has lived. Atchley testified that McLaughlin's
background check indicated that he had one traffic violation
and that Castro's background check indicated that he had no
criminal history.
Atchley testified that the following would disqualify an
applicant from working for Synergies3:
9
1170765
"Three speeding tickets in a three-year period,
any
felony
whatsoever
and
just
about
every
misdemeanor, because a traffic ticket is also a
misdemeanor, so just about any -- any theft, any
assault, because sometimes those can be misdemeanors
as well. But pretty much all of those would restrict
you from having an eligible rating."
Atchley testified that, when he received notification
regarding Corvo's missing diamond, he immediately telephoned
Castro and McLaughlin's supervisor in Pensacola, Florida, and
advised him to determine what had occurred, to contact law
enforcement, and to prohibit Castro and McLaughlin from
working until law enforcement completed its investigation.
Atchley testified that the Pensacola supervisor had talked to
Castro and McLaughlin and that they both had denied taking the
diamond. Atchley also testified that Castro and McLaughlin
were never charged with a crime in relation to the missing
diamond.
Atchley read a portion of a disclosure on a general
Sterling background-check report that stated that Sterling
could not report negative information older than seven years.
Atchley was questioned about a disclaimer on Sterling's
background-check report that stated that the information in
the report "has not been obtained through Sterling Testing
System's standard criminal background research methods."
10
1170765
Atchley denied that that statement indicated that the
background check was substandard.
Tucker testified that he had worked for MasTec from 2004-
2007, that Castro had also worked for MasTec at that time, and
that he had never heard that Castro had been suspended or
accused of stealing anything while working for MasTec. Tucker
testified that he had been a co-owner of Synergies3 from 2011
to 2014 and that he had hired Castro to work for Synergies3.
According to Tucker, Synergies3 provides an applicant's
information to a company, which then performs a background
check. Tucker testified that there is no restriction regarding
the length of time criminal convictions can be reported on
background checks. Tucker testified that he retired from
Synergies3 and that he had not spoken to Atchley in
approximately three months.
Synergies3 and DIRECTV filed a motion for a judgment as
a matter of law at the close of Corvo and Bonds's case and
again at the close of all the evidence. The trial court
granted that motion at the close of evidence as to the claim
for
negligent
hiring,
training,
and
supervision of
McLaughlin,
but it denied the motion in all other respects.
11
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The jury rendered a verdict in favor of Corvo in the
amount of $300,000 and in favor of Bonds in the amount of
$65,160. The verdict form indicated that $40,000 was awarded
for the diamond, $160 for the cash, $75,000 for mental
anguish, and $250,000 as punitive damages. The trial court
entered a judgment in accordance with the jury's verdict.
Synergies3 and DIRECTV renewed their motion for a
judgment as a matter of law, alternatively seeking a new trial
or a remittitur. The trial court denied that motion, without
holding the requested Hammond v. City of Gadsden, 493 So. 2d
1374 (Ala. 1986), hearing. Synergies3 and DIRECTV appealed. 3
Standard of Review
On appeal, Synergies and DIRECTV, in addition to raising
evidentiary challenges, argue that the trial court should have
3On July 27, 2018, after determining that the claims of
State Farm Fire and Casualty Company remained unresolved (see
note 1, supra), this Court remanded the cause to the trial
court to consider certifying the judgment as final pursuant to
Rule 54(b), Ala. R. Civ. P., or resolving the outstanding
claims. On remand, the trial court entered what it styled as
an "amended final order" in which it, among other things,
found that State Farm was entitled to reimbursement from Bonds
in the amount of $59,765.40 for its subrogation claim and
entered a final default judgment against McLaughlin and
Castro.
12
1170765
entered a judgment as a matter of law in their favor on all
claims against them. It is well settled that,
"'[w]hen reviewing a ruling on a
motion for a [judgment as a matter of law],
this Court uses the same standard the trial
court used initially in deciding whether to
grant or deny the motion for a [judgment as
a matter of law]. Palm Harbor Homes, Inc.
v. Crawford, 689 So. 2d 3 (Ala. 1997).
Regarding questions of fact, the ultimate
question is whether the nonmovant has
presented sufficient evidence to allow the
case to be submitted to the jury for a
factual resolution. Carter v. Henderson,
598 So. 2d 1350 (Ala. 1992). The nonmovant
must
have
presented
substantial
evidence
in
order to withstand a motion for a [judgment
as a matter of law]. See § 12–21–12, Ala.
Code 1975; West v. Founders Life Assurance
Co. of Florida, 547 So. 2d 870, 871 (Ala.
1989). A reviewing court must determine
whether the party who bears the burden of
proof has produced substantial evidence
creating
a
factual
dispute
requiring
resolution by the jury. Carter, 598 So. 2d
at 1353. In reviewing a ruling on a motion
for a [judgment as a matter of law], this
Court views the evidence in the light most
favorable to the nonmovant and entertains
such reasonable inferences as the jury
would have been free to draw. Id.'
"Waddell & Reed, Inc. v. United Investors Life Ins.
Co., 875 So. 2d 1143, 1152 (Ala. 2003)."
Phillips v. Seward, 51 So. 3d 1019, 1023 (Ala. 2010).
Discussion
I. Real-Party-in-Interest Issue
13
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Initially, we must address Synergies3 and DIRECTV's
argument that the trial court violated Rule 17, Ala. R. Civ.
P., by permitting Corvo and Bonds to prosecute a claim for the
loss of the diamond because, they assert, that claim belonged
exclusively to State Farm Fire and Casualty Company based on
a provision of an insurance policy Corvo and Bonds had with
State Farm. In support of that argument, Synergies3 and
DIRECTV cite Broadnax v. Griswold, 17 So. 3d 656 (Ala. Civ.
App. 2008), for the proposition that,
"where the language of an insurance policy such as
that involved here assigns all rights to the
assignee insurance company on payment of a claim
under the policy, the insurer receives the legal
title to the claim from the insured and holds the
exclusive right to pursue the claim against the
tortfeasor."
Synergies3 and DIRECTV's brief, pp. 41-42.
In Broadnax, the Court of Civil Appeals explained:
"Generally, payment of a loss by an insurer gives that insurer
subrogation rights to reimbursement ... but does not divest
the insured of the legal right to pursue an action against a
party responsible for that loss," whereas "an assignment to
one's insurer of one's rights of recovery renders the insurer
the real party in interest." 17 So. 3d at 659–60.
14
1170765
The provision of the policy at issue in Broadnax stated:
"'If any person to or for whom we make payment under this
policy has rights of recovery from another, those rights are
transferred to us.'" 17 So. 3d at 658. The pertinent provision
in the State Farm policy in this case is entitled
"Subrogation" and reads:
"a. If any named insured to or for whom we make
payment under this policy has rights to recover
damages from another, those rights are automatically
transferred to us to the extent of our payment. We
are subrogated to the full extent of our payment and
our rights are not dependent on whether that named
insured is fully compensated for their loss or is
made whole."
Paragraph c. of the policy, however, provides:
"If any named insured to or for whom we have
made payment recovers from any other party liable
for the damages:
"1) that named insured shall hold in trust
for us the proceeds of the recovery; and
"2) that named insured shall reimburse us
to the extent of our payment."
Broadnax is distinguishable. The policy in this case
clearly envisions a situation in which the insured recovers
damages for the claimed loss and thereafter reimburses State
Farm for its payment to the insured for the loss. Based on the
language in the policy, we cannot say that Synergies3 and
15
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DIRECTV have demonstrated that Bonds's and Corvo's rights were
assigned to State Farm such that State Farm became the sole
real party in interest.
II. Conversion Claim
Synergies3 and DIRECTV argue that Corvo and Bonds failed
to present substantial evidence to support their claim
alleging conversion and that a judgment as a matter of law
should have been entered in their favor on that claim. "To
support a claim for conversion, a plaintiff must prove '(1) a
wrongful taking, (2) an illegal assumption of ownership, (3)
an illegal use or misuse of another's property, or (4) a
wrongful detention or interference with another's property.'"
Kelly v. Connecticut Mut. Life Ins. Co., 628 So. 2d 454, 460
(Ala. 1993)(quoting Gillis v. Benefit Trust Life Ins. Co., 601
So. 2d 951, 952 (Ala. 1992)).
In support of their argument, Synergies3 and DIRECTV cite
Heathcock v. Hadley, 380 So. 2d 915 (Ala. Civ. App. 1980), for
the proposition that "[m]ere access to money or property,
coupled with the disappearance thereof, is not sufficient
evidence" of conversion. Synergies3 and DIRECTV's brief, p.
24. In Heathcock, a son had lived with his mother for 13
months before the mother's death. After the mother's death,
16
1170765
the mother's daughter sued the son, alleging, among other
things, that the son had wrongfully taken a number of items,
including money, from the mother's home because the daughter
had been unable to find those items after the mother's death.
The Court of Civil Appeals explained:
"Considered most favorably to the [daughter], this
evidence
does
not
establish
that
the
[son]
wrongfully or otherwise took possession of the money
but merely shows that the [son] had access to the
home where the money was allegedly kept. For [a]ught
that appears, the [mother] could have spent the
money before her death."
380 So. 2d at 917. The court also explained:
"The [daughter] did not see the [son] remove any of
the items nor is there evidence to show the items
were in fact in the possession of the [son]. The
evidence, at best, showed that the [son] lived in
the home prior to the [mother's] death and that some
items, according to the [daughter,] were missing
from the home after the [mother's] death."
380 So. 2d at 917.
It is an important distinction that, in Heathcock, there
was another possible explanation for the disappearance of the
money (e.g., the owner of the money could have spent it), and
the daughter could not provide a time frame in which the items
had disappeared or been taken.
17
1170765
We have previously held, in the context of a conversion
claim alleged against the employees of a business, that, if a
defendant makes a prima facie showing that its employees did
not take the property, the burden then shifts to the plaintiff
"'to produce "substantial evidence" creating ... a [genuine]
dispute' as to whether one of [its] employees took or carried
away the [property]." Wint v. Alabama Eye & Tissue Bank, 675
So. 2d 383, 385 (Ala. 1996) (quoting Mardis v. Ford Motor
Credit Co., 642 So. 2d 701, 704 (Ala. 1994) (citing, in turn,
§ 12–21–12, Ala. Code 1975, and Bean v. Craig, 557 So. 2d
1249, 1252 (Ala. 1990))).
In this case, the undisputed evidence showed that Corvo
and Bonds were working in the house while Castro and
McLaughlin were installing the
DIRECTV equipment in the house.
Corvo was able to see the entry and exit points of the house
from her desk. There was no evidence indicating that any
individual, other than Castro, McLaughlin, Corvo, and Bonds,
entered the bedroom where the diamond was kept. Corvo found
McLaughlin in her bedroom where the diamond and cash were
located with the door almost closed. After Castro and
McLaughlin left the house, Corvo discovered that the diamond
18
1170765
was missing from her engagement ring and that the prongs that
held the diamond in place were bent and damaged. Corvo also
discovered that $160 in cash was missing. Accordingly, Corvo
and Bonds presented "'"substantial evidence" creating ... a
[genuine] dispute' as to whether one of [Synergies3 or
DIRECTV's] employees took or carried away the [property]."
Wint, 675 So. 2d at 385. Synergies3 and DIRECTV were not
entitled to a judgment as a matter of law on the conversion
claim.
III. Respondeat Superior Claim
Synergies3 and DIRECTV next argue that a judgment as a
matter of law should have been entered as to Corvo and Bonds's
claim alleging vicarious liability under the doctrine of
respondeat superior. An employer may be held vicariously
liable for the intentional tort of its employee or agent if
the plaintiff produces sufficient evidence showing "'that [1]
the agent's wrongful acts were in the line and scope of his
employment; or [2] that the acts were in furtherance of the
business of [the employer]; or [3] that [the employer]
participated in, authorized, or ratified the wrongful acts.'"
Potts v. BE & K Constr. Co., 604 So. 2d 398, 400 (Ala.
19
1170765
1992)(quoting Joyner v. AAA Cooper Transp., 477 So. 2d 364,
365 (Ala. 1985)).
"The employer is vicariously liable for acts of its
employee that were done for the employer's benefit,
i.e., acts done in the line and scope of employment
or for acts done for the furtherance of the
employer's interest. The employer is directly liable
for its own conduct if it authorizes or participates
in the employee's acts or ratifies the employee's
conduct after it learns of the action."
Potts, 604 So. 2d at 400.
Synergies3 and DIRECTV argue that the act of stealing
from customers of DIRECTV is such a marked and unusual
deviation from Synergies3 and DIRECTV's business of providing
satellite television service that they should have been
granted a judgment as a matter of law on Corvo and Bonds's
claim alleging respondeat superior liability. In support of
their argument, Synergies3 and DIRECTV cite Hendley v.
Springhill Memorial Hospital, 575 So. 2d 547 (Ala. 1990),
Hargrove v. Tree of Life Christian Day Care Center, 699 So. 2d
1242 (Ala. 1997), and Conner v. Magic City Trucking Service,
Inc., 592 So. 2d 1048 (Ala. 1992).4
4Synergies3 and DIRECTV also cite Copeland v. Samford
University, 686 So. 2d 190 (Ala. 1996), asserting that, in
that case, this Court affirmed a summary judgment based on the
trial court's finding that murder was a major deviation from
the business of the university. In Copeland, this Court noted
20
1170765
In Hendley, a patient sued a hospital alleging that an
independent contractor who maintained medical equipment for
the hospital performed an unauthorized vaginal examination on
the patient. The scope of the independent contractor's
employment was limited to tending to certain electronic
medical devices used in the hospital. In affirming the
summary judgment in favor of the hospital, this Court held
that the hospital could not be held liable, under the doctrine
of respondeat superior, for the independent contractor's
alleged unauthorized vaginal examination of the patient
because that conduct was "such a gross deviation from the
purpose for which [the independent contractor] was in [the
patient's] room (monitoring her
[medical device])." 575 So. 2d
at 551.
In Hargrove, two day-care-center employees and their
younger sister kidnapped the plaintiffs' child from the day-
care center because one of the sisters wanted a child of her
own. This Court affirmed the summary judgment entered against
that "[t]he trial court considered the murder to be a major
deviation from the master's business, as a matter of law, and
granted Samford's motion for summary judgment," 686 So. 2d at
195; however, although this Court affirmed the summary
judgment, it did not do so expressly on that basis.
21
1170765
the plaintiffs on their claims against the day-care center
based on vicarious liability, holding that the sisters'
"apparent plot ... constituted, as a matter of law, a gross
deviation" from the business of the day-care center. 699 So.
2d at 1246. In Hargrove, however, it was undisputed that
"there was nothing that should have, or could have, put ...
the [day-care] [c]enter on notice that the sisters would or
might kidnap one of the children." Id.
In Magic City Trucking, an employee of a trucking
company, which was subcontracted by the plaintiff's employer,
chased the plaintiff with a snake and eventually threw the
snake on the plaintiff while the two were working in the line
and scope of their employment for their respective employers.
The plaintiff sued the trucking company based on the theory of
respondeat superior, but the trial court entered a directed
verdict (now referred to as a preverdict judgment as a matter
of law, see Rule 50, Ala. R. Civ. P.) in favor of the trucking
company. 592 So. 2d at 1049. In affirming the trial court's
judgment, this Court held that the trucking company's
employee's "actions were a marked and unusual deviation from
the business of [the trucking company]. It cannot be said that
[the employee's] poor practical joke was in furtherance of
22
1170765
[the trucking company's] business. Therefore, it was not
within the scope of his employment." 592 So. 2d at 1050.
This Court, however, has recognized:
"'In order to recover against a defendant under
the doctrine of respondeat superior, the plaintiff
must establish the status of master and servant and
that the act done was within the line and scope of
the servant's employment. Naber v. McCrory & Sumwalt
Construction Company, 393 So. 2d 973 (Ala. 1981).
This rule applies even where the wrong complained of
was intentionally, willfully, or maliciously done in
such a manner as to authorize a recovery for
punitive damages. Anderson v. Tadlock, 27 Ala. App.
513, 175 So. 412 (1937). In extending the liability
to a willful wrong, the motive behind the act does
not defeat liability, Seaboard Air Line Railway
Company v. Glenn, 213 Ala. 284, 104 So. 548 (1925),
unless it can be shown that the servant acted from
wholly personal motives having no relation to the
business of the master. United States Steel Company
v. Butler, 260 Ala. 190, 69 So. 2d 685 (1953).
Whether the servant was actuated solely by personal
motives or by the interests of his employer is a
question for the jury. B.F. Goodrich Tire Company v.
Lyster, 328 F.2d 411 (5th Cir. 1964); Craft v.
Koonce, 237 Ala. 552, 187 So. 730 (1939). This is so
if there is any evidence having a tendency either
directly or by reasonable inference to show that the
wrong was committed while the servant was executing
the duties assigned to him. United States Steel
Company v. Butler, supra; Lerner Shops of Alabama v.
Riddle, 231 Ala. 270, 164 So. 385 (1935).'"
Meyer v. Wal-Mart Stores, Inc., 813 So. 2d 832, 834–35 (Ala.
2001)(quoting Plaisance v. Yelder, 408 So. 2d 136, 137 (Ala.
Civ. App. 1981)). In Plaisance, the Court of Civil Appeals,
23
1170765
summarizing Avco Corp. v. Richardson, 285 Ala. 538, 234 So. 2d
556 (1970), stated:
"In Avco, the supreme court noted that in cases
where a servant's deviation from the master's
business is slight and not unusual, the 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 falling between
these two extremes must be regarded as involving
merely a question of fact to be left to the jury."
408 So. 2d at 138.
The evidence, viewed in the light most favorable to Corvo
and Bonds, the nonmovants, indicates that Castro and
McLaughlin went to Corvo's house to install DIRECTV's
equipment. After Castro and McLaughlin left the house, the
diamond from Corvo's engagement ring and $160 in cash were
missing. A default judgment was entered against Castro and
McLaughlin on Corvo and Bonds's theft and conversion claims
against them. 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
24
1170765
benefit or in furtherance of their interests. Potts, 604 So.
2d at 400. Moreover, there is no evidence indicating that
Synergies3 or DIRECTV authorized or participated in theft and
conversion or later ratified the conduct so as to give rise to
any direct liability for theft or conversion. See Potts, 604
So. 2d at 400. See also Magic City Trucking, 592 So. 2d at
1050 ("Acts that an employee has done for some purpose of his
or her own are not done within the line and scope of the
employee's employment." (citing Hendley, 575 So. 2d at 551)).
Based on those circumstances, there was no factual dispute
regarding Synergies3's and DIRECTV's vicarious or direct
liability for Castro's and McLaughlin's actions that required
resolution by the jury; accordingly, the trial court should
have entered a judgment as a matter of law in favor of
Synergies3 and DIRECTV on Corvo and Bonds's claims asserting
liability based on the doctrine of respondeat superior. See
Phillips, 51 So. 3d at 1022–23.
IV. Negligent Hiring, Training, and Supervision Claim
The next issue is whether the trial court should have
entered a judgment as a matter of law in favor of Synergies3
and DIRECTV on Corvo and Bonds's claim of negligent hiring,
25
1170765
training, and supervision of Castro.5 In support of their
argument, Synergies3 and DIRECTV cite Ex parte South Baldwin
Regional Medical Center, 785 So. 2d 368 (Ala. 2000). In South
Baldwin, parents sued a hospital, alleging assault and
battery, negligent supervision, and breach of a duty to a
business invitee based on allegations that a registered nurse
employed by the hospital had molested their child. 785 So. 2d
at 369. The trial court in that case entered a summary
judgment in favor of the hospital, and the Court of Civil
Appeals reversed that summary judgment. E.P. v. McFadden, 785
So. 2d 364 (Ala. Civ. App. 2000). This Court reversed the
Court of Civil Appeals' judgment, quoting Judge Crawley's
dissenting opinion in E.P. v. McFadden, 785 So. 2d at 367–68,
which relied on Carroll v. Shoney's, Inc., 775 So. 2d 753
(Ala. 2000). In Carroll, this Court explained:
"Alabama law requires a plaintiff to show three
elements to establish a duty that would be the basis
for a cause of action such as the one presented in
this case. Moye [v. A.G. Gaston Motels, Inc.], 499
So. 2d [1368] at 1370 [(Ala. 1986) (involving a
5The trial court entered a judgment as a matter of law in
favor of Synergies3 and DIRECTV on the claim of negligent
hiring, training, and supervision as it related to
McLaughlin.
In addition, it appears that the trial court implicitly denied
Corvo and Bonds's wanton hiring, training, and supervision
claims, and the parties do not address that issue on appeal.
26
1170765
business's liability for injuries to an invitee
resulting from the criminal act of a third party)].
First, the particular criminal conduct must have
been foreseeable. Second, the defendant must have
possessed 'specialized knowledge' of the criminal
activity. Third, the criminal conduct must have been
a probability."
775 So. 2d at 756. Carroll, however, involved the issue
whether an employer could be held liable for an employee's
death that resulted from the criminal act of a third party.
775 So. 2d at 754. South Baldwin involved the scope of a
business's duty owed an invitee for the criminal acts of an
employee. 785 So. 2d at 369.
The question in this case involves the liability of a
business to a customer on the theory of negligent hiring,
training, and supervision when an employee commits an
intentional tort and/or criminal act. To confer liability on
an
employer for the negligent hiring, training, or
supervision
of an employee, the following principles are applicable.
"'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.
27
1170765
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 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.'"
Lane v. Central Bank of Alabama, N.A., 425 So. 2d 1098, 1100
(Ala. 1983) (quoting Thompson v. Havard, 285 Ala. 718, 723,
235 So. 2d 853, 858 (1970)). We note that, although Lane
specifically mentions "negligent supervision" and speaks in
terms of "incompetency," the principles in Lane have also been
applied
in
the
context
of
negligent-hiring-and-training claims
in relation to intentional torts. See, e.g., Machen v.
Childersburg Bancorporation, Inc., 761 So. 2d 981, 986 (Ala.
1999)(reversing a summary judgment in a case involving claims
against an employer based on negligent or wanton failure to
properly investigate, train, supervise, and discipline an
employee in the context of a sexual-harassment allegation);
Big B, Inc. v. Cottingham, 634 So. 2d 999, 1003 (Ala.
1993)(affirming judgment for plaintiff on negligent-training-
and-supervision claims involving false imprisonment and
28
1170765
assault and battery); and Sanders v. Shoe Show, Inc., 778 So.
2d 820, 824 (Ala. Civ. App. 2000)(affirming a summary judgment
for defendants on negligent-hiring-and-supervision claims
related
to
false-imprisonment
allegations).
See
also,
generally, Zielke v. AmSouth Bank, N.A., 703 So. 2d 354,
357–58 n. 1 (Ala. Civ. App. 1996) ("After reviewing Alabama
caselaw, we see no distinction between claims of wrongful
supervision and claims of wrongful training.").
In Anonymous v. Lyman Ward Military Academy, 701 So. 2d
25, 28 (Ala. Civ. App. 1997), the Court of Civil Appeals, in
considering the liability of an employer, a military academy,
for the alleged negligent supervision of an employee who
molested one of its students, explained: "In order to prove
his
negligent supervision claim, the [plaintiff] 'must show or
demonstrate that [the employer] had notice or knowledge
(actual or presumed) of the [employee's] alleged [conduct].'"
(Quoting Perkins v. Dean, 570 So. 2d 1217, 1219 (Ala. 1990).)
The court also explained that, insofar as the student
attempted to rest his negligent-supervision claim on alleged
criminal acts of the employee,
"'"[i]t is difficult to impose liability on one
person for an intentional act committed by another."
Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368,
29
1170765
1370 (Ala. 1986), quoting CIE Service Corp. v.
Smith, 460 So. 2d 1244, 1247 (Ala. 1984). The
difficulty usually arises because, in such a
situation, two essential elements of a negligence
... action are absent: duty and proximate cause.
Moye, 499 So. 2d at 1370. The key to either of these
elements is foreseeability. Id.
"'... Our cases have established only one
exception to the general rule that one has no duty
to protect another from the criminal acts of a third
party. Thetford v. City of Clanton, 605 So. 2d 835,
840 (Ala. 1992); Moye, 499 So. 2d at 1371. The duty
to protect a second person from the criminal acts of
a third person arises only when one's negligence ...
creates a situation in which it is foreseeable that
a third person will commit criminal conduct that
endangers the second person. Thetford v. City of
Clanton, 605 So. 2d 835; Moye, supra. "The number
and frequency of prior criminal acts at the place
where the injury occurred are used in determining
whether a particular criminal act was reasonably
foreseeable." Moye, 499 So. 2d at 1372.'"
Lyman Ward, 701 So. 2d at 28 (quoting E.H. v. Overlook
Mountain Lodge, 638 So. 2d 781, 783 (Ala. 1994)).6
In order to withstand the motion for a judgment as a
matter of law, Corvo and Bonds were required to submit
substantial evidence that created a factual dispute requiring
resolution by the jury regarding whether it was (or should
have been) foreseeable to Synergies3 and DIRECTV that Castro
6Overlook Mountain Lodge involved a business's duty to
protect invitees against the criminal acts of a third person.
638 So. 2d at 782.
30
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would commit conversion or theft while installing services for
a customer. See Overlook Mountain Lodge, supra; see also
Phillips, 51 So. 3d at 1022–23. Evidence was presented to the
jury showing that the background check that Synergies3
performed on Castro did not reveal any criminal history, and
Tucker testified that he had no knowledge of Castro's having
been suspended for stealing from a customer during his
previous employment. Tucker also testified that he did not
know when he hired Castro that Castro had previously been
convicted of negotiating worthless checks. Furthermore, there
had been no customer complaints regarding Castro before this
incident.
The evidence, however, when viewed in the light most
favorable to Corvo and Bonds, the nonmovants, indicated that
Castro had a criminal history involving theft that should have
been detected in a proper background check; that Castro had
admitted to Stacy that he had been suspended at his previous
employment by the same person who had hired him at Synergies3
for stealing a customer's ring; and that Stacy had discovered
a stash of women's jewelry in Castro's vehicle on an occasion
31
1170765
when they lived in Texas.7 Corvo and Bonds submitted
substantial evidence creating a factual dispute as to whether
Synergies3 and DIRECTV should have performed a more thorough
background check and thereby discovered Castro's criminal
history and whether it should have been foreseeable to
Synergies3 or DIRECTV that Castro would steal from a customer
during an installation. From that evidence, a jury could
reasonably infer that Synergies3 and DIRECTV negligently
hired, trained, and supervised Castro. Accordingly, the trial
court did not err in denying Synergies3 and DIRECTV's motion
for a judgment as a matter of law as to Corvo and Bonds's
claim of negligent hiring, training, and supervision of
Castro.
V. Punitive-Damages Award
7Synergies3 and DIRECTV also mention that the evidence
regarding Castro's conviction and Stacy's testimony that
contained hearsay were wrongfully admitted. Synergies3 and
DIRECTV, however, merely cite Rules 401, 402, 801, and 802,
Ala. R. Evid., without analyzing the application of those
rules to the facts. Accordingly, we will not address this
issue. See Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251
(Ala. 1994)("We have unequivocally stated that it is not the
function of this Court to do a party's legal research or to
make and address legal arguments for a party based on
undelineated general propositions not supported by sufficient
authority or argument."(citing Spradlin v. Spradlin, 601 So.
2d 76 (Ala. 1992)).
32
1170765
Synergies3 and DIRECTV also argue that the trial court
should have entered a judgment as a matter of law in their
favor on Corvo and Bonds's claim for punitive damages, and
they challenge the trial court's failure to hold a
postjudgment hearing to review the punitive-damages award
pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374, 1379
(Ala. 1986). They also challenge the verdict form submitted to
the jury because, they assert, it did not permit the jury to
assess punitive damages against one defendant and not the
other and it permitted an award of punitive damages on a
negligence claim.8
Punitive damages are not recoverable on negligence
claims, including claims of negligent hiring, training, and
8Synergies3 and DIRECTV also assert in a footnote that
mental-anguish damages were not recoverable on the negligence
claim because there was no physical injury and, because the
verdict form was a general verdict form, there was no way to
determine on what claim the mental-anguish damages were
awarded.
Although
Synergies3
and
DIRECTV
cite
Wal-Mart
Stores,
Inc. v. Bowers, 752 So. 2d 1201, 1204 (Ala. 1999), in support
of their assertion, the inclusion of this argument in a
footnote does not satisfy Rule 28(a)(10), Ala. R. App. P. "We
have unequivocally stated that it is not the function of this
Court to do a party's legal research or to make and address
legal arguments for a party based on undelineated general
propositions not supported by sufficient authority or
argument." Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251
(Ala. 1994)(citing Spradlin v. Spradlin, 601 So. 2d 76 (Ala.
1992)).
33
1170765
supervision. See CP & B Enters., Inc. v. Mellert, 762 So. 2d
356, 362 (Ala. 2000) ("A finding by the jury that [the
employer] was only negligent in hiring, supervising, and
retaining [the employee] would not warrant an award of
punitive damages."). Although punitive damages may be
recovered on a conversion claim, see, e.g., Liberty Nat'l Life
Ins. Co. v. Caddell, 701 So. 2d 1132, 1136 (Ala. Civ. App.
1997), or based on an employer's vicarious liability, see §
6-11-27(a), Ala. Code 1975,9 because we have held that the
theft and conversion were a deviation from the line and scope
9Section 6-11-27(a) provides:
"(a) A principal, employer, or other master
shall not be liable for punitive damages for
intentional wrongful conduct or conduct involving
malice based upon acts or omissions of an agent,
employee, or servant of said principal, employer, or
master unless the principal, employer, or master
either: (i) knew or should have known of the
unfitness of the agent, employee, or servant, and
employed him or continued to employ him, or used his
services without proper instruction with a disregard
of the rights or safety of others; or (ii)
authorized the wrongful conduct; or (iii) ratified
the wrongful conduct; or unless the acts of the
agent, servant, or employee were calculated to or
did benefit the principal, employer, or other
master,
except
where
the
plaintiff
knowingly
participated with the agent, servant, or employee to
commit fraud or wrongful conduct with full knowledge
of the import of his act."
34
1170765
of employment and Synergies3 and DIRECTV are not vicariously
or directly liable on those claims, there is no basis upon
which punitive damages could have properly been awarded.
Because we hold that punitive damages were improperly
awarded, we pretermit discussion of Synergies3 and DIRECTV's
other arguments challenging the verdict form submitted to the
jury, the apportionment of punitive damages among joint
tortfeasors, and the trial court's failure to hold a
postjudgment hearing to review the punitive-damages award
pursuant to Hammond.10
Conclusion
The judgment is reversed insofar as it holds Synergies3
and DIRECTV vicariously or directly liable on the claims of
theft and conversion and insofar as it awards punitive
damages. The judgment is affirmed insofar as it holds
Synergies3 and DIRECTV liable for the negligent hiring,
training, and supervision of Castro and awards compensatory
10Synergies3 and DIRECTV also assert that the trial court
should have held a hearing regarding their challenge to the
mental-anguish
damages.
Hammond,
however,
applies
to
punitive-
damages awards –- not mental-anguish damages -–
and
Synergies3
and DIRECTV have not provided this Court with argument or
authority to demonstrate their entitlement to a hearing
addressing mental-anguish damages.
35
1170765
and mental-anguish damages.11 The cause is remanded for the
trial court to enter a judgment consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH
INSTRUCTIONS.
Parker, C.J., and Wise, J., concur.
Bolin, J., concurs in part and concurs in the result in
part.
Sellers, J., concurs in the result.
11As explained above, Synergies3 and DIRECTV failed to
sufficiently raise and address any argument relating to the
award of damages for mental anguish.
36
1170765
BOLIN, Justice (concurring in part and concurring in the
result in part).
I concur in that portion of the opinion reversing the
judgment against Synergies3 Tec Services, LLC, and DIRECTV,
LLC, insofar as it awarded punitive damages to the plaintiffs
based on vicarious and direct liability on the plaintiffs'
claims of theft and conversion. As to the remainder of the
opinion, I concur in the result only.
37 | August 21, 2020 |
a2f13d3d-e7b5-4b47-a6c6-f9c188735ef2 | 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 | July 10, 2020 |
d242f809-4de4-46a0-8ab9-58681bb78bd0 | Ex parte Jason Dewayne Green. | N/A | 1190822 | 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 14, 2020
1190822
Ex parte Jason Dewayne Green. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPeAl S (In re: Jason Dewayne Green v. State of Alabama) (Franklin
Circuit Court: CC-11-295; Criminal Appeals :
Cr -18-0594).
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 August 14, 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 14th day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 14, 2020 |
b0634d53-2dc2-4b0e-a14a-430edbb10710 | Dynasty Group, Inc. v. Stephen Smith, Trustee for Bankruptcy Estate of Heritage Real Estate Investment Corporation | N/A | 1180584 | Alabama | Alabama Supreme Court | REL: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1180584
Dynasty Group, Inc. v. Stephen Smith, Trustee for Bankruptcy
Estate of Heritage Real Estate Investment Corporation (Appeal
from Sumter Circuit Court: CV-14-900049).
MITCHELL, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(B), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur. | July 10, 2020 |
8416506f-5a38-47f5-95c9-5251760d591c | Ex parte Martin Moss. | N/A | 1190861 | 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 14, 2020
1190861
Ex parte Martin Moss. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: Martin Moss v. Evelyn Moss) (Montgomery Circuit Court:
DR-17-900260.02; Civil Appeals :
2181051).
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 August 14, 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 14th day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 14, 2020 |
6a5f01fe-12f7-462f-96b2-fe42190f1fa5 | Ex parte Blue Cross & Blue Shield of Alabama. | N/A | 1190232 | 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
____________________
1190232
____________________
Ex parte Blue Cross and Blue Shield of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re: Marilyn Player
v.
Blue Cross and Blue Shield of Alabama)
(Macon Circuit Court, CV-19-900104)
STEWART, Justice.
After her claim for coverage under the Public Education
Employees' Health Insurance Plan ("PEEHIP") was denied,
1190232
Marilyn Player sued Blue Cross and Blue Shield of Alabama
("BCBS") in the Macon Circuit Court ("the trial court")
asserting claims of breach of contract and bad faith. BCBS
seeks a writ of mandamus directing the trial court to
transfer Player's case to the Montgomery Circuit Court
pursuant to § 16-25A-7(e), Ala. Code 1975. For the reasons
stated below, we grant BCBS's petition and issue the writ.
I. Facts and Procedural History
Player, a resident of Macon County, is a retired teacher,
formerly employed in the Alabama public-school system. Player
receives health insurance under a policy issued to her
husband, also a retired teacher, through PEEHIP. PEEHIP is a
group health-benefits plan funded by the State, and BCBS
serves as a claim administrator for PEEHIP. Player, who
suffers from Type 1 Diabetes, has previously received
preapproval through PEEHIP for the purchase of insulin to
control her diabetes. Player, however, alleges that on
December 1, 2018, BCBS denied her preapproval for diabetes
medication and subsequently refused to reimburse Player for
her out-of-pocket purchase of insulin.1 As a result, on July
1BCBS disputes Player's allegation that it was the claim
administrator that made the decision to deny the preapproval
2
1190232
17, 2019, Player sued BCBS alleging breach of contract
pursuant to PEEHIP's coverages and bad faith on the part of
BCBS in failing to preapprove the purchase of insulin.
On August 16, 2019, BCBS filed a motion to dismiss or, in
the alternative, for a change of venue, in which it asserted
that Montgomery County is the exclusive statutory venue
authorized by § 16-25A-7(e) for the claims raised in Player's
complaint. BCBS asserted that Player's complaint invoked a
dispute over the denial of benefits and that Player was
seeking review of a claim administrator's decision, which, it
argued, falls within the purview of § 16-25A-7(e). BCBS
attached to its motion the PEEHIP Member Handbook and BCBS's
PEEHIP plan, which, among other things, provides details
pertaining to coverage.
On October 16, 2019, Player filed a response in
opposition to BCBS's motion, asserting that BCBS misconstrued
the nature of her breach-of-contract and bad-faith claims and
that, therefore, § 16-25A-7(e) was not applicable to Player's
claims. Player argued that under § 6-3-7(a), Ala. Code 1975,
the general-venue statute, Macon County is the proper venue
and reimbursement because, it contends, it does not
administer
pharmacy benefits under PEEHIP.
3
1190232
for the action because Player is a resident of Macon County
and she received the denial letters from BCBS in Macon County.
Additionally, Player contended that BCBS does business in
Macon County by selling insurance to and administering the
claims of Macon County residents.
The trial court held a hearing on BCBS's motion.
Subsequently, the trial court entered an order denying BCBS's
motion, concluding that venue was proper in Macon County. BCBS
petitioned this Court for the writ of mandamus.
II. Standard of Review
"'A
writ of
mandamus is
an
extraordinary remedy,
and it will be "issued only when there is: 1) a
clear legal right in the petitioner to the order
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 Flexible Prods. Co., 915 So. 2d 34, 39 (Ala.
2005)(quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.
2d 893, 894 (Ala. 1998), quoting in turn Ex parte United Serv.
Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993)). "'"The
proper method for obtaining review of a denial of a motion for
a change of venue in a civil action is to petition for the
writ of mandamus."'" Ex parte WMS, LLC, 170 So. 3d 645, 649
4
1190232
(Ala. 2014)(quoting Ex parte Pike Fabrication, Inc., 859 So.
2d 1089, 1091 (Ala. 2002), quoting in turn Ex parte Alabama
Great Southern R.R., 788 So. 2d 886, 888 (Ala. 2000)). This
Court has explained that, "[w]hen we consider a mandamus
petition relating to a venue ruling, our scope of review is to
determine if the trial court [exceeded] its discretion, i.e.,
whether it exercised its discretion in an arbitrary and
capricious manner." Ex parte Integon Corp., 672 So. 2d 497,
499 (Ala. 1995). A trial court that refuses to transfer a case
when such a transfer is proper has routinely been held to be
exceeding its discretion. See Ex parte WMS, LLC, supra.
III. Analysis
BCBS argues that § 16-25A-7(e), rather than § 6-3-7(a),
is the venue statute applicable to Player's complaint because
Player's suit, it contends, seeks review of a final decision
by a PEEHIP claims administrator. Under § 16-25A-7(e), proper
venue for PEEHIP disputes is exclusively in
Montgomery County,
and, therefore, BCBS asserts, the trial court erred in
refusing to transfer the case to the Montgomery Circuit Court.
BCBS contends that the trial court exceeded its discretion in
denying its motion for a change of venue and petitions this
5
1190232
Court to issue the writ of mandamus compelling the trial court
to transfer the case.
In § 16-25A-1 et seq., Ala. Code 1975, a general act of
statewide
application
governing
PEEHIP,
the
Alabama
Legislature implemented a procedure for judicial review of a
PEEHIP administrator's final decision and determined that
venue for such an action would be Montgomery County. Section
16-25A-7(e),
concerning
denial
of
claims,
provides:
"Review
of
a final decision by the claims administrator shall be by the
Circuit Court of Montgomery County as provided for the review
of contested cases under the Alabama Administrative Procedure
Act, Section 41-22-20." (Emphasis added.) By using the words
"shall," the legislature affirmatively determined that proper
venue
for
all
cases
concerning
review
of
a
claims
administrator's final decision is Montgomery County. Ex parte
Prudential Ins. Co. of Am., 721 So. 2d 1135, 1138 (Ala.
1998)("The word 'shall' is clear and unambiguous and is
imperative and mandatory.").
This Court has recognized that
"in a series of cases addressing special venue
provisions incorporated by the Legislature in
general statutes of statewide application, this
Court has concluded that the respective enactments
6
1190232
evidenced a clear intent by the Legislature to
exercise the authority accorded it by § 6.11 of
Amendment No. 328 [now § 150, Ala. Const 1901 (Off.
Recomp.)], pursuant to which any rules promulgated
by this Court governing the administration of
courts, and the practice and procedure in all
courts, 'may be changed by a general act of
statewide application.'"
Ex parte Fontaine Trailer Co., 854 So. 2d 71, 81 (Ala. 2003).
Additionally,
well
settled
caselaw
requires
that
courts
follow
the mandate of a specific-venue provision when that provision
conflicts with general-venue statutes. Id.; see also Ex parte
Alabama Power Co., 640 So. 2d 921, 924 (Ala. 1994) (holding
that § 6–3–11, Ala. Code 1975, "effectively prevented the
application of the venue provision of Rule 82(c)[, Ala. R.
Civ. P.,] to claims against municipalities"); Ex parte
McDonald, 804 So. 2d 204 (Ala. 2001) (similar holding); Ex
parte Kennedy, 656 So. 2d 365 (Ala. 1995) (holding that the
provisions of § 6-5-546, Ala. Code 1975, setting venue for
medical-malpractice actions, were mandatory and that the
statute superseded Rule 82, Ala. R. Civ. P.); see also Ex
parte Alabama Bd. of Cosmetology & Barbering, 213 So. 3d 587,
590-91 (Ala. Civ. App. 2016) (issuing a writ of mandamus to
transfer case to Montgomery Circuit Court in accordance §
34-7B-11, Ala. Code 1975).
7
1190232
Because the PEEHIP statute identifies Montgomery County
as the exclusive venue for claim disputes arising from a
review of a final decision by the PEEHIP claims administrator,
§ 16-25A-7(e) overrides § 6-3-7(a), the general-venue statute
that Player argues is applicable to her complaint, an argument
we address later in this opinion. Further, this Court has
determined that, when a statute identifies a specific venue
for judicial review by a circuit court of a ruling resulting
from
an
administrative proceeding,
only
the
designated circuit
court can hear the appeal, and if the appeal is filed in the
incorrect venue, the court in which it is filed "should
transfer the appeal to the circuit court designated by the
statute." Ex parte General Motors Corp., 800 So. 2d 159, 163
(Ala. 2000). Likewise, in accordance with § 16-25A-7(e), a
complaint seeking judicial review of a decision of a PEEHIP
claims administrator can be heard only by the Montgomery
Circuit Court.
Player asserts that § 16-25A-7(e) does not apply to her
complaint because her claims, she contends, do not constitute
an action for a dispute over the denial of benefits and her
complaint cannot be characterized as an appeal of any
8
1190232
administrative
action.
Rather,
the
breach-of-contract
and
bad-
faith claims, Player argues, are regular tort claims
recognized by the common law of Alabama and therefore do not
fall within the purview of § 16-25A-7(e). However, Player
cannot avoid the legislature's exclusive-venue provision by
recasting her claims using artful labels. Ex parte Bad Toys
Holdings, Inc., 958 So. 2d 852, 859 (Ala. 2006) (holding that
"'[s]trategic or artfully drawn pleadings ... will not work to
circumvent an otherwise applicable forum selection clause'"
(quoting Terra Int'l, Inc. v. Mississippi Chem. Corp., 119
F.3d 688, 695 (8th Cir. 1997))). In her complaint, Player
alleged:
"8. On or about December 1, 2018, the Defendant
BCBS, without a reasonable basis or justification,
denied
[Player's]
preapproval
for
diabetes
medication. As a consequence, [Player] had to
personally pay for the purchase of diabetes
medication so that she could survive. The Defendant
BCBS, upon submission of the personal payment by
[Player], refused to reimburse [Player] for the
insulin she was required to take to treat her
disease.
"9. As a proximate consequence of the Defendant
BCBS'
intentional
refusal
to:
(1)
preapprove
[Player's] daily and weekly insulin medications;
and, (2) its failure to reimburse [Player] after she
personally incurred the cost of these medications,
constitutes an act of breach of contract pursuant to
the PEEHIP coverages insuring her for health
9
1190232
insurance protection and was an act of bad faith
committed without a reasonable basis to deny
preapproval and/or reimbursement of the cost of said
medication."
Based on the stated facts, the underlying substance of
Player's complaint is that BCBS, as a PEEHIP claims
administrator, made a final decision denying Player's
insurance claim, and Player is contesting that decision. The
legislature's mandate in § 16-25A-7(e), which requires review
of such a decision to be heard in Montgomery County, applies
to Player's complaint, regardless of any attempt to recast the
request for judicial review as claims sounding in tort.
Player's pleadings substantively address and refer to a denial
of benefits under PEEHIP, and, consequently, asserting the
complaint under a different title does not allow Player to
circumvent § 16-25A-7(e). This Court has often recognized the
importance of "treat[ing] pleadings according to their
substance, rather than merely their label." Century 21
Paramount Real Estate, Inc. v. Hometown Realty, LLC, 34 So. 3d
658, 662 (Ala. 2009); see also Ex parte McWilliams, 812 So. 2d
318 (Ala. 2001) (interpreting nature of petition based on
substantive contents rather than on style). According to the
substance of Player's complaint, the action falls within the
10
1190232
category of disputes governed by § 16-25A-7(e); therefore,
venue is proper exclusively in Montgomery County.
The trial court exceeded its discretion in denying BCBS's
motion for a change of venue from Macon County to Montgomery
County. Despite Player's attempt to cast the issues in her
complaint as regular tort claims, Player's breach-of-contract
and bad-faith claims are, in essence, disputes over a final
decision allegedly made by BCBS regarding Player's insulin
medication. Section 16-25A-7(e) controls in this action;
therefore, venue is proper in Montgomery County.
IV. Conclusion
For the reasons expressed above, we grant the petition,
issue the writ, and order the trial court to transfer the
action to the Montgomery Circuit Court.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, and
Mendheim, JJ., concur.
Mitchell, J., recuses himself.
11 | September 4, 2020 |
b33db114-d6c9-4d55-93fa-713b96d1c9d9 | Ex parte Chester Jermaine Watkins. | N/A | 1190754 | 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 14, 2020
1190754
Ex parte Chester Jermaine Watkins. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Chester Jermaine Watkins v. State of Alabama)
(Jefferson Circuit Court: CC-18-4240 & CC-18-4241; Criminal Appeals :
CR-19-0309).
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 August 14, 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 14th day of August, 2020.
Clerk, Supreme Court of Alabama | August 14, 2020 |
2da1304a-0ec4-4c03-b244-b552968b7753 | Ex parte Douglas Ryan Roberts. | N/A | 1190539 | 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 21, 2020
1190539
Ex parte Douglas Ryan Roberts. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Douglas Ryan Roberts v. State of Alabama) (Mobile Circuit
Court: CC-16-6189; CC-16-6190; CC-16-6191; CC-16-6192; CC-16-6193; CC-16-6194;
CC-16-6195; CC-16-6196; CC-16-6197; CC-16-6198; Criminal Appeals :
CR-17-0763).
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 August 21,2020:
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 21st day of August, 2020.
Clerk, Supreme Court of Alabama | August 21, 2020 |
5c5a37c3-a020-46e7-9397-3591526bfb3b | Ex parte Estella Curry. | N/A | 1190868 | 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 21, 2020
1190868
Ex parte Estella Curry. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Estella Curry v. State of Alabama) (Escambia Circuit Court:
CC-14-573.60; Criminal Appeals :
CR-19-0268).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
3c1e45a1-be90-4954-ba66-6603c8e1b371 | Ex parte Clinton Lee Poores. | N/A | 1190770 | 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 21, 2020
1190770
Ex parte Clinton Lee Poores. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Clinton Lee Poores v. State of Alabama) (Tuscaloosa Circuit
Court: CC-18-2308; Criminal Appeals :
CR-18-0765).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
45308e5a-f0e3-4511-b061-2ab4563e7220 | Ex parte Cordarius Demetrius Scruggs. | N/A | 1190785 | 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 14, 2020
1190785
Ex parte Cordarius Demetrius Scruggs. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Cordarius Demetrius Scruggs v. State of Alabama)
(Marengo Circuit Court: CC-16-176; Criminal Appeals :
CR-18-0807).
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 August 14, 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 14th day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 14, 2020 |
a853984c-dc18-4efb-abc4-1a25d7b9f1c4 | Ex parte Willie Kevin Williams. | N/A | 1190772 | 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 14, 2020
1190772
Ex parte Willie Kevin Williams. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Willie Kevin Williams v. State of Alabama) (Mobile Circuit Court:
CC-11-2705.62; CC-11-2706.62; CC-11-2707.62; Criminal Appeals :
CR-18-0974).
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 August 14, 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 14th day of August, 2020.
Clerk, Supreme Court of Alabama | August 14, 2020 |
b24e6fb4-424e-4e8a-bc4e-a40eb3abcf79 | Ex parte Earnest Lee Walker. | N/A | 1190746 | 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 21, 2020
1190746
Ex parte Earnest Lee Walker. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Earnest Lee Walker v. State of Alabama) (Mobile Circuit Court:
CC-08-2835.61; CC-08-2836.61; CC-08-2837.61; CC-08-2838.61; Criminal Appeals :
CR-18-0098).
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 August 21,2020:
Writ Denied. No Opinion. Bolin, J. - Parker, C.J., and Shaw, Wise, and Sellers, JJ.,
concur. 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 21st day of August, 2020.
Clerk, Supreme Court of Alabama | August 21, 2020 |
a89a6ee6-bb9f-4ce1-a37c-0e3ad833dd38 | Ex parte Darius Devon McCants. | N/A | 1190348 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190348
Ex parte Darius Devon McCants. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Darius Devon McCants v. State of Alabama) (Mobile Circuit
Court: CC-16-5989; Criminal Appeals : CR-18-0348).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced cause has been
duly submitted and considered by the Supreme Court of Alabama and the judgment indicated
below was entered in this cause on July 10, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
c880fc9f-9fb7-4db4-b72e-c5813afbd506 | Ex parte George Bonner. | N/A | 1190812 | 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 14, 2020
1190812
Ex parte George Bonner. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: George Bonner v. State of Alabama) (Choctaw Circuit Court:
CC-99-43.64; Criminal Appeals :
CR-18-1207).
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 August 14, 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 14th day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 14, 2020 |
2f7775ee-da89-4fc4-8efb-6275ff6f7ecd | Lewis Ferguson and Toni Ferguson v. J & H Termite & Pest Control, LLC | N/A | 1180848 | Alabama | Alabama Supreme Court | Rel: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1180848
Lewis Ferguson and Toni Ferguson v. J & H Termite & Pest
Control, LLC (Appeal from Elmore Circuit Court:
CV-17-900134).
WISE, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Bolin, Sellers, and Stewart, JJ.,
concur. | July 10, 2020 |
3b5ff1c5-50d8-4fa3-af25-2ba7d6af0047 | Ex parte George Mark Tucker, Jr. | N/A | 1190786 | 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 21, 2020
1190786
Ex parte George Mark Tucker, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: George Mark Tucker, Jr. v. State of Alabama) (Pickens
Circuit Court: CC-16-152.61; CC-16-153.61; Criminal Appeals :
CR-18-0549).
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 August 21,2020:
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 21st day of August, 2020.
Clerk, Supreme Court of Alabama | August 21, 2020 |
288c74d9-873e-4968-adeb-ac4cc335dd8b | Ex parte Kederius Jaquin Moore. | N/A | 1190850 | 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 14, 2020
1190850
Ex parte Kederius Jaquin Moore. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPeAl S (In re: Kederius Jaquin Moore v. State of Alabama) (Jefferson
Circuit Court: CC-18-442; CC-18-443; CC-18-444; CC-18-445; CC-18-446; CC-18-447;
Criminal Appeals :
CR-18-0873).
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 August 14, 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 14th day of August, 2020.
Clerk, Supreme Court of Alabama | August 14, 2020 |
1763724f-65fc-434c-bfbe-ad9995ab5a9d | Ex parte Russell Lynn Housman. | N/A | 1190789 | 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 21, 2020
1190789
Ex parte Russell Lynn Housman. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Russell Lynn Housman v. State of Alabama) (Madison
Circuit Court: CC-18-4671; Criminal Appeals :
CR-18-1250).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
eb8610c4-5bb9-4f7a-a56d-0a8b0ff0729f | Joyce Hovell, individually and as personal representative of the Estate of Robert M. Taylor v. Stephanie Azar, Alabama Medicaid Agency, individually and in her representative capacity | N/A | 1190308 | Alabama | Alabama Supreme Court | Rel: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190308
Joyce Hovell, individually and as personal representative of
the Estate of Robert M. Taylor v. Stephanie Azar, Alabama
Medicaid Agency, individually and in her representative
capacity (Appeal from Mobile Circuit Court: CV-19-900344).
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. | July 10, 2020 |
813155c3-a221-41bc-9be6-d002cd935992 | Tamela S. Savage v. P.B. Surf, LTD | N/A | 1180903 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1180903 Tamela S. Savage v. P.B. Surf, LTD (Appeal from Jefferson Circuit Court:
CV-11-904034).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on July 10, 2020:
Application Overruled. No Opinion. Shaw, J. - Parker, C.J., and Bryan, Mendheim, 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 April 10, 2020:
Affirmed. 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
22c47c3a-84d2-416b-a260-1af44d7d2201 | Ex parte L.E.P. | N/A | 1190658 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190658
Ex parte L.E.P. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: Houston County Department of Human Resources) (Houston Juvenile
Court: JU-17-503.01; Civil Appeals : 2181068).
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 July 10, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
1c958a0f-c0e4-4975-8846-c1c71553dd4e | Cindy Grimm Henson, James Henson, and Christy Henson v. Kimberly Clough Thomas, Rick Reliford, and Laurie Reliford | N/A | 1190183 | Alabama | Alabama Supreme Court | Rel: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190183
Cindy Grimm Henson, James Henson, and Christy Henson v.
Kimberly Clough Thomas, Rick Reliford, and Laurie Reliford
(Appeal from Marshall Circuit Court: CV-19-900252).
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. | July 10, 2020 |
b4d98c07-3896-48c3-9df6-2c5f5112f22d | Ex parte Shinaberry. | N/A | 1180935 | Alabama | Alabama Supreme Court | Rel: July 31, 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
____________________
1180935
____________________
Ex parte Sandra Shinaberry
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Sandra Shinaberry
v.
Mark Wilson, as guardian ad litem for G.G., H.G., N.P., and
S.P., minors)
(Shelby Circuit Court, CV-14-900876;
Court of Civil Appeals, 2180359)
BOLIN, Justice.
Sandra Shinaberry petitioned this Court for a writ of
certiorari seeking review of the Court of Civil Appeals' no-
opinion affirmance of the Shelby Circuit Court's judgment
1180935
awarding a fee to a guardian ad litem appointed to represent
four minors for the sole purpose of making a recommendation to
the circuit court on whether a proposed settlement was in the
minors' best interest. See Shinaberry v. Wilson (No. 2180359,
August 9, 2019), So. 3d (Ala. Civ. App. 2019)(table).
We granted the petition to consider Shinaberry's arguments
that the attorney fee was unreasonable.
Facts and Procedural History
In
2012, Shinaberry's automobile
rear-ended an
automobile
being driven by Sherri Guy. Guy's three minor children and a
minor stepchild were in her car. The children were treated
for soft-tissue injuries. The children, by and through their
parents, sued Shinaberry and her insurer. In April 2015, a
settlement was reached between Shinaberry and her insurer and
the four minor children. On May 6, 2015, Mark Wilson was
appointed as guardian ad litem for the four children for the
purpose of determining if the settlement was fair to the
children. A pro ami hearing was scheduled for June 3, 2015.
However, the hearing was canceled when one of the parties and
Wilson did not appear. A second pro ami hearing was scheduled
for June 29, 2015, but it was continued because Wilson asked
2
1180935
for time to interview the family physician of one of the
children. It also appears that Wilson sought permission to
have a physician examine one of the children to determine if
the child's headaches were related to the car accident.
Electronic mail exchanged between the attorneys for the
parties indicates that Wilson failed to communicate with them
for a nine-month period.
On October 6, 2016, Shinaberry filed a motion to enforce
the settlement or, in the alternative, to appoint a new
guardian ad litem. On January 23, 2017, the circuit court
held a hearing on the motion, at which it decided to hold the
motion in abeyance pending the rescheduling of the pro ami
hearing. On January 29, 2018, a final pro ami hearing was
held to approve the settlement and Wilson's fee for serving as
guardian ad litem. On February 6, 2018, the circuit court
entered an order approving the settlement, which awarded a
total of $15,230 to the four minor children; after their
counsel was paid his attorney fee of $4,470 and their medical
expenses were satisfied, they received a total of $4,647.18.
Wilson was awarded $8,000 for his services as guardian ad
litem based on his affidavit that he worked 32 hours at a rate
3
1180935
of $250 an hour.1 It is undisputed that Wilson never prepared
a report with a recommendation as to whether the settlement
was in the best interest of the minors. It also appears that
this was the first case in which the circuit court had
appointed Wilson as a guardian ad litem.
On February 7, 2018, Shinaberry filed an objection to the
amount of Wilson's fee on the ground that there was no
documentation, evidence, or itemization of his claimed 32
hours of work on the case. Shinaberry also argued that Wilson
had unnecessarily delayed the settlement, had failed to
provide the circuit court with a report, had increased costs
of the litigation as a result of requiring multiple hearings
and failing to communicate, and had exceeded the duty of a
guardian ad litem in a pro ami proceeding. On February 26,
2018, the circuit court held a hearing on Shinaberry's
objection. At the hearing, it was noted that Wilson had had
chiropractic bills paid as part of the settlement. However,
it was also noted that those bills were incurred subsequent to
the parties' settlement agreement in April 2015. Shinaberry
1The circuit court determined that the hourly amount
should be $250 based on payment for "work in circuit court."
4
1180935
also argued that the fee awarded the guardian ad litem was
unreasonable when compared to the fees paid to the attorneys
who had represented the parties in the underlying action and
to the damages awarded the minors. The circuit court
indicated that it was not concerned with the attorney fees
paid to the parties' attorneys. That same day, the circuit
court reduced Wilson's fee to $7,750 because Wilson appeared
by telephone at one of the hearings.
Discussion
In Ex parte CityR Eagle Landing, LLC, [Ms. 1180630, Oct.
25, 2019] So. 3d , (Ala. 2019), this Court stated:
"In a pro ami hearing, the guardian ad litem
does not authorize or consent to the settlement.
Instead, the guardian ad litem prepares a report
with a recommendation on whether the proposed
settlement is in the best interest of the minor
based on the claims, injuries, and future needs of
the minor and the guardian ad litem's experience in
the area of personal injury."
See Pharmacia Corp. v. McGowan, 915 So. 2d 549 (Ala.
2004)(remanding case for entry of order explaining trial
court's reasons for awarding fee when guardian ad litem had
reviewed the settlement and had recommended to the court that
the settlement was in the best interest of the minors); see
also Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001)(applying
5
1180935
Alabama law and holding that the district court, at the time
of the settlement, should have conducted a fairness hearing to
make the settlement binding on a minor party).
Rule 17(d), Ala. R. Civ. P., governs the use and
compensation of guardians ad litem in civil cases and requires
the assessment of a reasonable fee for the legal services
rendered by a guardian ad litem. The rule, in pertinent part,
provides:
"(d) ... Whenever a guardian ad litem shall be
necessary, the court in which the action is pending
shall appoint to serve in that capacity some person
who is qualified to represent the minor or
incompetent person in the capacity of an attorney or
solicitor .... In all cases in which a guardian ad
litem is required, the court must ascertain a
reasonable fee or compensation to be allowed and
paid to such guardian ad litem for services rendered
in such cause, to be taxed as a part of the costs in
such action, and which is to be paid when collected
as other costs in the action, to such guardian ad
litem."
"The matter of the guardian ad litem's fee is within the
discretion of the trial court, subject to correction only for
abuse of discretion." Englund v. First Nat'l Bank of
Birmingham, 381 So. 2d 8, 12 (Ala. 1980)(citing Commercial
Standard Ins. Co. v. New Amsterdam Cas. Co., 272 Ala. 357,
362, 131 So. 2d 182, 186 (1961)).
6
1180935
Although Rule 17(d) does not provide guidance on how a
guardian ad litem's fee is to be established, this Court has
applied the criteria that a court might consider when
determining the reasonableness of an attorney fee:
"'(1) [T]he nature and value of the subject matter
of the employment; (2) the learning, skill, and
labor requisite to its proper discharge; (3) the
time consumed; (4) the professional experience and
reputation of the attorney; (5) the weight of his
responsibilities;
(6)
the
measure
of
success
achieved; (7) the reasonable expenses incurred; (8)
whether a fee is fixed or contingent; (9) the nature
and length of a professional relationship; (10) the
fee customarily charged in the locality for similar
legal
services;
(11)
the
likelihood
that
a
particular employment may preclude other employment;
and (12) the time limitations imposed by the client
or by the circumstances.'"
McGowan, 915 So. 2d at 554–55 (quoting Van Schaack v. AmSouth
Bank, N.A., 530 So. 2d 740, 749 (Ala. 1988)).
"These criteria are for purposes of evaluating
whether an attorney fee is reasonable; they are not
an exhaustive list of specific criteria that must
all be met. Beal Bank v. Schilleci, 896 So. 2d 395,
403 (Ala. 2004), citing Graddick v. First Farmers &
Merchants Nat'l Bank of Troy, 453 So. 2d 1305, 1311
(Ala. 1984)."
McGowan, 915 So. 2d at 553.
McGowan
involved
toxic-tort
actions
against
a
manufacturer. After the parties entered into a settlement
agreement, the trial court appointed an attorney to serve as
7
1180935
guardian
ad
litem
for
the
minor
plaintiffs
and
as
administrator ad litem for the estates of those plaintiffs who
had died during the course of the litigation. Her appointment
as administrator ad litem was "'for the limited purpose of
considering the Settlement Agreement and determining whether
to execute (and if a determination to execute is made, then to
execute) releases on behalf of the estates.'" 915 So. 2d at
551. The attorney reviewed the settlement and reported to the
court that it was in the best interests of the minors and the
estates. The trial court ordered the manufacturer to pay the
attorney $284,000 as an attorney fee.
The attorney in McGowan did not submit to the trial
court any records evidencing the actual time she had spent
representing her wards. Instead, the attorney argued that a
reasonable attorney fee would be $500 for each of the 568
plaintiffs she represented, or "at least $284,000." She also
sought reimbursement of expenses. The attorney supported her
petition for an attorney fee with the affidavits of two
attorneys who purported to serve regularly as guardians ad
litem and who stated their opinion that the fee was reasonable
under the circumstances.
8
1180935
On appeal, this Court stated:
"The determination of
whether an
attorney fee
is
reasonable is within the sound discretion of the
trial court and its determination on such an issue
will not be disturbed on appeal unless in awarding
the fee the trial court exceeded that discretion.
State Bd. of Educ. v. Waldrop, 840 So. 2d 893, 896
(Ala. 2002); City of Birmingham v. Horn, 810 So. 2d
667, 681–82 (Ala. 2001); Ex parte Edwards, 601 So.
2d 82, 85 (Ala. 1992), citing Varner v. Century Fin.
Co., 738 F.2d 1143 (11th Cir. 1984).
"....
"We defer to the trial court in an attorney-fee
case because we recognize that the trial court,
which has presided over the entire litigation, has
a superior understanding of the factual questions
that
must
be
resolved
in
an
attorney-fee
determination. Horn, 810 So. 2d at 681–82, citing
Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct.
1933, 76 L.Ed.2d 40 (1983). Nevertheless, a trial
court's order regarding an attorney fee must allow
for meaningful appellate review by articulating the
decisions
made,
the
reasons
supporting
those
decisions, and how it calculated the attorney fee.
Horn, 810 So.2d at 682, citing American Civil
Liberties Union of Georgia v. Barnes, 168 F.3d 423,
427 (11th Cir. 1999); see also Hensley, 461 U.S. at
437, 103 S.Ct. 1933.
"In this case, the trial court's order awarding
an attorney fee of $284,000 provides no indication
as to whether the trial court considered any of the
criteria outlined by this Court in Van Schaack [v.
AmSouth Bank, N.A., 530 So. 2d 740, 749 (Ala.
1988)]. Indeed, the trial court provided no
explanation for its award. It is particularly
troublesome that McGowan provided the trial court
with no records of the time she spent on behalf of
the plaintiffs she represented in this matter. It is
9
1180935
generally recognized that the 'first yardstick that
is used by the trial judges [in assessing the
reasonableness of an attorney-fee request] is the
time consumed. Peebles v. Miley, 439 So. 2d 137,
141 (Ala. 1983). Further, we note that, in its order
appointing McGowan as administrator ad litem for the
estates of the deceased plaintiffs, the trial court
stated that Pharmacia 'shall pay the administrator
ad litem her customary rate for her time spent on
this action.' Yet the trial court awarded McGowan
$134,000 in fees for representing the 268 estates,
without being provided any time records and without
any explanation for the apparent deviation from the
trial court's own prescribed method of calculating
McGowan's compensation."
McGowan, 915 So. 2d at 552–53 (footnote omitted). We remanded
the case for the trial court to enter an order explaining its
decision and articulating reasons for that decision. On
remand, the trial court entered an order articulating its
reasons for the attorney-fee award. However, this Court, on
return to remand, held that the trial court's award was
excessive, stating:
"In remanding the case to the trial court, we
noted that we were particularly troubled by the fact
that McGowan had provided the trial court with no
records of the time she had expended representing
her wards. We noted: 'It is generally recognized
that the "first yardstick that is used by the trial
judges [in assessing the reasonableness of an
attorney-fee
request]
is
the
time
consumed."
Peebles v. Miley, 439 So. 2d 137, 141 (Ala. 1983).'
915 So. 2d at 553. On ... remand, the trial court
responded to our concern as follows:
10
1180935
"'[T]his
Court
notes
that
although
attorneys may be paid on an hourly basis,
other fee structures are common within ...
the Bar. These include awards on a
contingency basis and the use of "flat
fees" for working specific tasks (for
example, drafting a will, handling a
criminal or domestic relations matter,
etc.). Although time spent in a case has
often been the first yardstick used by the
trial judge in setting a fee, it is not the
only measure of a fee, and indeed need not
even be considered by the judge at all. See
Peebles [v. Miley], [4]39 So. 2d [137] at
141 [(Ala. 1983)](emphasis added).'
"We do not agree with the trial court's
assessment that Peebles v. Miley, 439 So. 2d 137
(Ala. 1983), stands for the proposition that a trial
court, in determining an attorney-fee award, need
not consider 'at all' the time spent on the matter.
To the contrary, Peebles states that 'all of the [12
criteria] must be taken into consideration by the
trier of the facts.' 439 So. 2d at 141. Peebles does
state that 'we must beware of slavish adherence to
the time criterion to the exclusion of other
criteria.' 439 So. 2d at 141. But we cannot agree
with
McGowan
and
the
trial
court
that
the
reasonableness of an attorney-fee award should be --
nor are we convinced that it can be -- assessed with
complete disregard for the time spent on the matter.
See, e.g., Clement v. Merchants Nat'l Bank of
Mobile, 493 So. 2d 1350, 1355 (Ala. 1986) (reversing
trial court's award of $200,000 to guardians ad
litem who expended 373.55 hours, which was about
$535 per hour, '[e]ven taking into consideration the
large sum of money involved in this suit and the
fact that the guardians ad litem were representing
a minor').
"We
proceed,
nonetheless,
to
consider
the
manner
in
which
the
trial
court
did
assess
the
11
1180935
reasonableness of McGowan's requested attorney fee.
On original submission, we were unable to ascertain
whether the trial court had based its award on
McGowan's
suggested
calculation
of
$500
per
plaintiff. The trial court's order on ... remand
specifically states that McGowan 'is hereby awarded
a fee of $500 per ward (300 minors and 268 estates)
for a cumulative attorney's fee of $284,000.' In so
concluding, the trial court considered affidavits of
two attorneys who purported to serve regularly as
guardians ad litem. The attorneys averred in those
affidavits that the normal fee for a guardian ad
litem or an administrator ad litem is 'between
$400.00 to $1,000.00 per plaintiff, in a simple,
uncomplicated domestic relations case' and that a
reasonable fee for serving as a guardian ad litem is
'between $500 to $1,000 per ward in a simple Probate
matter.' We do not doubt that a fee ranging from
$400 to $1,000 per ward would be reasonable in an
uncomplicated domestic-relations case or in a simple
probate matter. However, in Peebles, this Court
warned against determining the reasonableness of an
attorney fee in a 'wooden inflexible manner,'
stating that the determination instead 'should be
done so that all factors will be given their proper
interplay.' 439 So. 2d at 143. In that case, the
Court submitted that a general concession that, in
a collections matter, an attorney fee of 20% of the
collected amount is reasonable would result in the
'anomalous
situation'
in
which
the
routine
collection of a $2,000,000 promissory note would
allow for an attorney fee of $400,000. 439 So. 2d at
143. We submit that conceding that an attorney fee
of $500 per ward is reasonable in a probate or
domestic-relations matter does not necessarily lead
to the conclusion that $500 per ward is a reasonable
method of calculating a fee for a guardian ad litem
with 568 wards in a mass-tort case. Thus, we cannot
conclude that $500 per ward is a reasonable basis
for calculating McGowan's fee.
12
1180935
"Furthermore, as we stated in Peebles, we agree
with the admonition of the American Bar Association
that '"a fee is clearly excessive when after a
review of the facts, a lawyer of ordinary prudence
would be left with a definite and firm conviction
that the fee is in excess of a reasonable fee."' 439
So. 2d at 143. After a review of the facts, we are
convinced that an award of an attorney fee of
$284,000 to McGowan is excessive.
"We acknowledge the reasons the trial court
offers to bolster the award it arrived at by
multiplying $500 per ward by the 568 wards; however,
we need not address the soundness of those reasons,
because we conclude that the trial court's method of
calculating the award at the outset -- that is, with
complete disregard for the time expended by McGowan
and in applying what might be a 'reasonable fee' in
a completely different context -- was unreasonable.
"We conclude that the trial court exceeded its
discretion in awarding McGowan an attorney fee of
$284,000. We, therefore, reverse the trial court's
judgment and remand the case for proceedings
consistent with this opinion."
McGowan, 915 So. 2d at 555–57 (footnotes omitted). 2
2We recognize that the Court of Civil Appeals in Roberts
v. Roberts, 189 So. 3d 79 (Ala. Civ. App. 2015), and T.C.M. v.
W.L.K., 248 So. 3d 1 (Ala. Civ. App. 2017), affirmed fees
awarded to guardians ad litem, applying the attorney-fee
factors set out in Van Schaack v. AmSouth Bank, N.A., 530 So.
2d 740, 749 (Ala. 1988). However, Roberts involved a guardian
ad litem appointed in a divorce case, and T.C.M. involved a
guardian ad litem appointed in an adoption. Moreover, in
Roberts, the guardian ad litem itemized his services, and in
T.C.M. the record supports the actions taken by the guardian
ad litem.
13
1180935
In the present case, the minors were involved in a rear-
end collision as a result of which they suffered soft-tissue
injuries. The parties entered into a settlement agreement,
and the guardian ad litem was appointed to evaluate the
settlement agreement and to determine whether it was in the
best interest of the minors. Wilson failed to itemize the
services he performed in his limited role in this personal-
injury case in which there the minors suffered no long-term
injuries. Wilson states that he spent 32 hours working on this
case; however, he failed to provide the parties and the court
with a report giving his recommendation, nor do we know how he
spent those 32 hours or whom he talked to or what he reviewed
as part of his evaluation. He delayed the parties' settlement
by failing to communicate with the parties' attorneys for a
nine-month period. It also appears that Wilson took on tasks
that were either unnecessary or outside his limited role. It
also appears that the circuit court arbitrarily chose $250 per
hour as a reasonable hourly amount for "work in circuit court"
without considering the guardian ad litem's limited role, the
nature of the underlying action, or the guardian ad litem's
experience (or lack thereof) in such matters. Additionally,
14
1180935
the fee awarded Wilson is almost twice the damages awarded the
minor plaintiffs and almost twice the fee awarded the
attorneys who represented the plaintiffs. As this Court
stated in Peebles v. Miley, 439 So. 2d 137, 143 (Ala. 1983),
we agree with the admonition of the American Bar Association
that "'a fee is clearly excessive when after a review of the
facts, a lawyer of ordinary prudence would be left with a
definite and firm conviction that the fee is in excess of a
reasonable fee.'" Such is the case here.
Conclusion
Based on the foregoing, we hold that the circuit court
exceeded its discretion in awarding Wilson $7,750 as a fee
because the record contains insufficient evidence to support
that fee. We reverse the Court of Civil Appeals' affirmance
of that award and remand this case to that court for it to
reverse the circuit court's judgment and remand the case to
the circuit court for it to reconsider the amount of
reasonable and necessary fees in accordance with this
opinion.3
3We note that, when an appellate court remands a case, the
trial court's authority is limited to compliance with the
directions provided by the appellate court; it does not have
15
1180935
REVERSED AND REMANDED.
Parker, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim,
Stewart, and Mitchell, JJ., concur.
the authority to reopen for additional testimony except where
expressly directed to do so. Madison Cty. Dept. of Human Res.
v. T.S., 53 So. 3d 38 (Ala. 2009).
16 | July 31, 2020 |
cc9d166b-cb20-44a7-bbc1-d93325c476bb | Ex parte Pilgrim's Pride Corporation. | N/A | 1190937 | 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
1190937
Ex parte Pilgrim's Pride Corporation. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Pilgrim's Pride Corporation v. Bonnie Wimberley)
(Lawrence Circuit Court: CV-11-7; Civil Appeals :
2180519).
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 |
44bfe247-75d6-4b84-b4c4-3f1ed83a4ff1 | Ex parte K.D.P. | N/A | 1190771 | 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 14, 2020
1190771
Ex parte K.D.P. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS (In re: K.D.P. v. State of Alabama) (Lauderdale Circuit Court: CC-13-346.60;
Criminal Appeals :
CR-16-0575).
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 August 14, 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 14th day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 14, 2020 |
81e4e301-a32b-47a3-b06c-a094e040307b | The Alabama Great Southern Railroad Company v. Progress Rail Services Corporation | N/A | 1180259 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1180259 The Alabama Great Southern Railroad Company v. Progress Rail Services
Corporation (Appeal from Jefferson Circuit Court: CV-16-902075).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on July 10, 2020:
Application Overruled. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Sellers, and
Mitchell, JJ., concur. Wise, 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 April 10, 2020:
Affirmed. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Sellers, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
315621f9-1775-4e47-a821-83f92fb7ee5f | Ex parte Steven Duatell Rice. | N/A | 1190721 | 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 14, 2020
1190721
Ex parte Steven Duatell Rice. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Steven Duatell Rice v. State of Alabama) (Madison Circuit
Court: CC-15-1225.60; Criminal Appeals :
CR-18-0442).
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 August 14, 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 14th day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 14, 2020 |
baf61abb-7058-4698-845e-804e7fd7cafa | Ex parte Bobby R. Mitchell. | N/A | 1190473 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190473
Ex parte Bobby R. Mitchell. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Bobby R. Mitchell v. State of Alabama) (Jefferson Circuit Court:
CC-17-4301; CC-17-4302; CC-17-4304; Criminal Appeals : CR-17-1144).
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 July 10, 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 10th day of 10th.
Clerk, Supreme Court of Alabama | July 10, 2020 |
02a8f839-0474-4467-a7e6-522a99deb4cb | 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 | July 10, 2020 |
531ebf9a-cde8-4382-be32-957fa518cd69 | Ex parte M.J.H. | N/A | 1190511 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190511
Ex parte M.J.H. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: M.J.H. v. Madison County Department of Human Resources) (Madison
Juvenile Court: JU-15-935.02; Civil Appeals : 2180786).
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 July 10, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
6ddfe6f9-4737-4d27-b4f2-b62ed7fd0fb0 | Joel Kennamer v. City of Guntersville et al. | N/A | 1180939 | 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
July 2, 2020
1180939
Joel Kennamer v. City of Guntersville et al. (Appeal from Marshall Circuit Court:
CV-19-900208).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on July 2, 2020:
Application Overruled. No Opinion. Mendheim, J. - Parker, C.J., and Bolin, Shaw, Wise,
Bryan, Sellers, Stewart, and Mitchell, JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on May 29, 2020:
Affirmed. Mendheim, J. - Parker, C.J., and Bolin, Shaw, Wise, Sellers, Stewart, and Mitchell,
JJ., concur. Bryan, J., concurs in the result.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 2nd day of July, 2020.
Clerk, Supreme Court of Alabama | July 2, 2020 |
08ad8272-bcc0-4c5c-9019-53fc30b06cf5 | Ex parte Kevin Lynn Lamb. | N/A | 1190518 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190518
Ex parte Kevin Lynn Lamb. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Kevin Lynn Lamb v. Alabama Board of Pardons and Paroles)
(Montgomery Circuit Court: CV-19-103; Criminal Appeals : CR-18-1286).
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 July 10, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
fd188571-893d-4494-895f-be3c0b1de305 | Pilgrim's Pride Corporation v. Linda Adams | N/A | 1180753 | Alabama | Alabama Supreme Court | Rel: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1180753
Pilgrim's Pride Corporation v. Linda Adams (Appeal from
Marshall Circuit Court: CV-17-900242).
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. | July 10, 2020 |
5a62969d-0fbb-48d6-8aea-c31330b2f7aa | Rashad Lee v. Governor Kay Ivey; Jefferson Dunn, Commissioner of the Alabama Department of Corrections; and Warden Gwendolyn Givens | N/A | 1190069 | Alabama | Alabama Supreme Court | Rel: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190069
Rashad Lee v. Governor Kay Ivey; Jefferson Dunn, Commissioner
of the Alabama Department of Corrections; and Warden Gwendolyn
Givens (Appeal from Montgomery Circuit Court: CV-19-290).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | July 10, 2020 |
2988d387-e4f4-4ab5-bc2e-0d218a3c380b | Sharon Benita Powell et al. v. Ricky Delaine | N/A | 1190123 | Alabama | Alabama Supreme Court | STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190123
Sharon Benita Powell et al. v. Ricky Delaine
(Appeal from Jefferson Circuit Court: CV-18-903428)
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. | July 10, 2020 |
35b13ec9-ca12-4c68-bf00-ec290dfab1e7 | Ex parte C. G. | N/A | 1190805 | 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 21, 2020
1190805
Ex parte C. G. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS (In re: C. G. v. State of Alabama) (Elmore Circuit Court: CC-98-374; Criminal
Appeals :
CR-18-1275).
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 August 21,2020:
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 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
286f6388-40dc-4783-9078-4ba7811304a4 | Rosemary Coggins and William Coggins v. Colbert County-Northwest Alabama Health Care Authority et al. | N/A | 1190376 | Alabama | Alabama Supreme Court | REL: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190376
Rosemary Coggins and William Coggins v. Colbert County-
Northwest Alabama Health Care Authority et al. (Appeal from
Colbert Circuit Court: CV-14-900345).
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. | July 10, 2020 |
1078dcfd-7dc9-4b37-9e1e-72136235e231 | Ex parte Joann Bashinsky. | N/A | 1190193 | 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 21, 2020
1190193
Ex parte Joann Bashinsky. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
In the matter of the Estate of Joann Bashinsky, a protected person) (Jefferson Probate Court:
19BHM02213).
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 21,2020:
Application Overruled. No Opinion. Mendheim, J. - Parker, C.J., and Bolin, Wise, Bryan,
Sellers, and Stewart, JJ., concur. Mitchell, J., recuses himself.
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 2, 2020:
Petition Granted In Part and Denied In Part; Writ Issued. Mendheim, J. - Parker, C.J., and
Bolin, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J., recuses himself.
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 21st day of August, 2020.
Clerk, Supreme Court of Alabama | July 2, 2020 |
ab35dbf1-a539-42a5-8bef-91fcf43ddd8a | Johnny T. Winhoven v. General Electric Company; Alliant Technologies, LLC; Rabiola Electric, Inc. | N/A | 1190325 | Alabama | Alabama Supreme Court | REL:07/10/2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190325
Johnny T. Winhoven v. General Electric Company; Alliant
Technologies, LLC; Rabiola Electric, Inc. (Appeal from Morgan
Circuit Court: CV-15-900302).
PARKER, Chief Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Shaw, Sellers, Mendheim, and Mitchell, JJ., concur. | July 10, 2020 |
a69a6273-4046-4737-a8ea-73fcf3bbe597 | Ex parte C.P.P. | N/A | 1190477 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190477
Ex parte C.P.P. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: C.P.P. v. L.J.B.) (Elmore Juvenile Court: JU-19-45.01; Civil Appeals :
2180953).
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 July 10, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
81110fa1-b62a-45a8-b4bb-d42a8fd1d122 | Ex parte R.M.S. and D.A.S. | N/A | 1190674 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190674
Ex parte R.M.S. and D.A.S. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: R.M.S. v. Madison County Department of Human Resources)
(Madison Juvenile Court: JU-17-1319.02; Civil Appeals : 2180893).
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 July 10, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
781b591c-fc73-49ea-b460-2622a1614554 | Kristy McKinney v. the City of Birmingham Retirement and Relief System | N/A | 1190273 | Alabama | Alabama Supreme Court | Rel: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190273
Kristy McKinney v. City of Birmingham Retirement and Relief
System (Appeal from Jefferson Circuit Court: CV-19-84).
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. | July 10, 2020 |
ec463b18-1026-49e0-9cd6-9d71d27a7ce5 | Charles Vernon Harris, Jr. v. Kristi A. Valls or the successor District Attorney for Limestone County | N/A | 1190447 | Alabama | Alabama Supreme Court | REL: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190447
Charles Vernon Harris, Jr. v. Kristi A. Valls or the successor
District Attorney for
Limestone County
(Appeal from Limestone
Circuit Court: CV-19-38; Civil Appeals: 2190448).
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. | July 10, 2020 |
a8d284e9-8c48-4d15-9927-83334ab299a8 | Ex parte Lowndes County Commission. | N/A | 1190685 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190685
Ex parte Lowndes County Commission. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Hayneville Plaza, LLC, Karl Bell and Helenor Bell v.
Lowndes County Commission) (Lowndes Circuit Court: CV-13-900014; Civil Appeals :
2180826).
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 July 10, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
d84fb575-d66f-4dfd-8140-6e559b6be0bf | Ex parte Albert Leroy Robertson, Jr. | N/A | 1190417 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190417
Ex parte Albert Leroy Robertson, Jr. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Albert Leroy Robertson, Jr. v. Janet Lynn Robertson)
(Madison Circuit Court: DR-17-900185; Civil Appeals : 2180158).
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 July 10, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
643d4395-9c4b-4eaf-b9a6-8f107518ea7a | Charles Bryant and Clara Cottingham v. The Estate of Bertha Nixon, a protected person | N/A | 1190176 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190176 Charles Bryant and Clara Cottingham v. The Estate of Bertha Nixon, a protected
person (Appeal from Jefferson Probate Court: 17-BHM-02333).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on July 10, 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 May 15, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
81722f52-56a6-4a5f-9e40-5b03b5a0b3ee | Ex parte Kristen Blanchard, R.N. | N/A | 1180318 | Alabama | Alabama Supreme Court | REL: June 26, 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, 2019-2020
____________________
1180317
____________________
Ex parte Kathy Russell, R.N.
PETITION FOR WRIT OF MANDAMUS
(In re: Lamerle Miles, as personal representative of the
Estate of Tameca Miles, deceased
v.
Coosa Valley Medical Center et al.)
____________________
1180318
____________________
Ex parte Kristen Blanchard, R.N.
PETITION FOR WRIT OF MANDAMUS
(In re: Lamerle Miles, as personal representative of the
Estate of Tameca Miles, deceased
v.
Coosa Valley Medical Center et al.)
____________________
1180319
____________________
Ex parte Teshia Gulas and Carla Pruitt
PETITION FOR WRIT OF MANDAMUS
(In re: Lamerle Miles, as personal representative of the
Estate of Tameca Miles, deceased
v.
Coosa Valley Medical Center et al.)
(Talladega Circuit Court, CV-15-900184)
MITCHELL, Justice.
Lamerle Miles ("Miles"), as the personal representative
of the estate of her deceased mother Tameca Miles ("Tameca"),
sued Coosa Valley Medical Center ("CVMC") and other named and
fictitiously named parties, alleging that they had engaged in
negligent, wanton,
and
outrageous
conduct
that
caused
Tameca's
death. Miles specifically alleged that multiple CVMC
employees had breached the applicable standards of care,
2
1180317, 1180318, 1180319
resulting in the Sylacauga Police Department removing Tameca
from the CVMC emergency room before she was treated for what
was ultimately determined to be bacterial meningitis. Miles
did not identify any specific CVMC employees in her original
complaint, but she later filed a series of amendments
substituting Kristen Blanchard, Teshia Gulas, Carla Pruitt,
and Kathy Russell (hereinafter referred to collectively as
"the CVMC petitioners") for fictitiously named defendants.
After
being
substituted
as
defendants,
the
CVMC
petitioners moved the trial court to enter summary judgments
in their favor, arguing that they had not been named
defendants within the two-year period allowed by the statute
of limitations governing wrongful-death actions. The
Talladega Circuit Court denied those motions, and the CVMC
petitioners now seek mandamus relief in this Court. We deny
the petitions filed by Blanchard, Gulas, and Pruitt and grant
the petition filed by Russell.
Facts and Procedural History
At issue in these petitions is whether the CVMC
petitioners were appropriately substituted for fictitiously
named defendants after the statute of limitations had
expired:
3
1180317, 1180318, 1180319
(1) Kristen Blanchard, one of the emergency-room nurses who
was on duty when Tameca was first brought to the emergency
room; (2) Teshia Gulas, the emergency-room secretary; (3)
Carla Pruitt, an admissions clerk who, along with Gulas,
unsuccessfully attempted to get identifying information from
Tameca before Tameca was removed from the emergency room by
police; and (4) Kathy Russell, the nursing supervisor and
highest ranking administrator on duty at CVMC when Tameca was
first brought to the emergency room. The involvement that
each of these individuals had in the events giving rise to
this action are described in detail below.
A. Hospital Visits and Death of Tameca
At 6:05 p.m. on December 28, 2013, Tameca telephoned 911
seeking emergency medical assistance for a severe headache.
Michael
Ashworth, an
emergency medical
technician
("EMT")
with
Sylacauga Ambulance Service, was dispatched to her residence.
When he arrived on the scene, Tameca was agitated and in
extreme pain. Ashworth states that he did not have any
medication he could give Tameca for the pain so he just tried
to help her calm down after she entered the ambulance for the
trip to CVMC. Once Tameca was in the ambulance, Ashworth had
4
1180317, 1180318, 1180319
difficulty measuring her blood pressure and pulse because she
would not be still and was repeatedly unbuckling her seat belt
and hitting the cabinets at her side. Ashworth states that,
after Tameca began sticking her fingers in her mouth in an
apparent attempt to induce vomiting, he was able to grab her
hands and hold them in her lap for the duration of the trip.
As they approached CVMC, the EMT driving the ambulance radioed
the emergency room to, as Ashworth describes it, "tell them we
were coming and kind of what we had." That radio report was
received by Kristen Blanchard, an emergency-room nurse, who
recorded the report in the communication-control log.
At 6:26 p.m., the ambulance carrying Tameca arrived at
the CVMC emergency room, where it was met by two security
guards from Delta Security Services, Inc. ("Delta"), which
CVMC retained to provide security. Ashworth states that
Tameca initially cooperated in exiting the ambulance, but
that
she became loud and combative. According to Ashworth, upon
entering the emergency room with Tameca, he described her
condition and behavior to the emergency-room staff at the
nurses' station, including Blanchard and Dr. Jenna Johnson,
before leaving to respond to another emergency call.
5
1180317, 1180318, 1180319
Jeff Hill was one of the security guards who assisted
Ashworth with Tameca when she arrived at CVMC. Hill states
that he witnessed Ashworth telling Blanchard and
Teshia Gulas,
the emergency-room secretary, about Tameca when they entered
the emergency room. Hill states that "[Tameca] was being very
combative. She was spitting. She was hissing. She was
cussing people out." According to Hill, Tameca continued to
be uncooperative while Carla Pruitt, an admissions clerk,
attempted to get her name and birth date so that Pruitt could
register her as a patient. During this time, Gulas also
unsuccessfully attempted to get identifying information from
Tameca. According to Hill, after Tameca's behavior continued
to escalate, he telephoned his supervisor at Delta as well as
Russell, the nursing supervisor at CVMC who was not in the
emergency room at that time, for guidance on how to handle
Tameca. Hill states that, after he talked to Russell a second
time, she told him: "[I]f you need to call the police, call
them." Hill then contacted the Sylacauga police, and, after
two police officers arrived, he apprised them of the
situation. When the police officers approached Tameca, who
was still in the emergency-room waiting area, she swore at
6
1180317, 1180318, 1180319
them and kicked one of the officers. The police officers then
tried to talk to Tameca for what Hill estimated to be 15
minutes. After Tameca attempted to kick and bite the
officers, they handcuffed her and transported her to the
Talladega County jail.
Tameca spent the night of December 28 in jail. During
that time, she was evaluated by personnel from Quality
Correctional Health Care, Inc. ("QCHC"), which provided
health-care services at the jail. At some point on December
29, the decision was made to transport Tameca back to CVMC to
be treated. This time, Tameca received medical treatment and
was eventually diagnosed with bacterial meningitis. At
approximately 5:30 p.m. on December 29, Tameca died.
B. Filing of This Lawsuit and Initial Discovery
On May 19, 2015, Miles filed a three-count complaint
initiating this wrongful-death action. Miles specifically
named CVMC and QCHC as defendants, along with other yet-to-be
identified parties who were identified under Rule 9(h), Ala.
R. Civ. P., as fictitiously named defendants. In the first
count, Miles claimed that the defendants, both named and
fictitiously named, negligently breached the applicable
7
1180317, 1180318, 1180319
standard of care by (1) "failing to timely and properly
triage, evaluate or diagnose Tameca's complaints;" (2)
"failing to timely and properly treat Tameca's complaints;"
and (3) "failing to timely and properly notify physician(s) of
Tameca's
symptoms
and
her
emergency
serious
medical
condition." Miles's second count claimed that those same
failures constituted a wanton breach of the applicable
standard of care. Finally, Miles claimed in count three that
CVMC and the fictitiously named defendants had "acted
outrageously by failing to diagnose, monitor, manage, or
treat
Tameca, a seriously ill patient, but rather having her
arrested and sent to jail."
In
conjunction
with
filing
her
complaint,
Miles
propounded
discovery
requests
to
CVMC.
Through
interrogatories, Miles requested that CVMC identify any
employees or agents who were involved in, had witnessed, or
had knowledge of the events described in the complaint. Among
other things, Miles requested that CVMC disclose all
documents
it maintained that were "pertinent" to Tameca's December 28
and 29 visits and provide a list of all personnel who were
working in the emergency room on those dates.
8
1180317, 1180318, 1180319
On May 29, 2015, CVMC was served with Miles's complaint
and discovery requests; CVMC filed its answer on June 29,
2015. Shortly thereafter, Miles's attorney began inquiring
about the status of CVMC's discovery responses, even though
those responses were not yet due under Rules 33(a) and 34(b),
Ala. R. Civ. P. A time line of those inquiries and Miles's
further attempts to conduct discovery over the next three
months is as follows:
July 2, 2015: Miles's attorney sent CVMC's attorney
an e-mail stating: "We want to take the deposition
of the nurse who saw [Tameca] the day she was sent
to the jail. Can you give me her name ...?"
July 9, 2015: Miles's attorney sent CVMC's attorney
a letter requesting CVMC's discovery responses
within 15 days.
July 28, 2015: Miles's attorney sent CVMC's
attorney another e-mail, stating: "Following up
with you on discovery responses and the nurse names.
Please let me hear from you [as soon as possible]."
July 31, 2015: A conference call was held for all
the attorneys in the case to discuss deposition
scheduling. Miles's attorney followed up with an e-
mail to those attorneys summarizing the content of
the call and noting that Miles would be deposed on
October 5, 2015; that he would attempt to schedule
the depositions for Ashworth and the other EMT for
the week of October 5; and that CVMC's attorney
would "check with his client to see if we can take
the triage nurse or whoever the nurse that saw
[Tameca] on 12/28, the day she initially reported to
[CVMC]."
9
1180317, 1180318, 1180319
August 4, 2015: Miles's attorney sent another e-
mail to CVMC's attorney requesting that he "[p]lease
let me know where you are on discovery responses."
That same day, Miles also issued subpoenas to
Ashworth and the other EMT setting their depositions
for October 6, 2015.1
August 7, 2015: Miles moved the trial court to
enter an order compelling CVMC to respond to her
discovery requests.
August 26, 2015: Miles's attorney sent CVMC's
attorney an e-mail requesting to talk about the case
and noting that "I still have not received your
discovery responses."
On September 3, 2015, the trial court granted Miles's
motion to compel and ordered CVMC to serve its discovery
responses within 30 days. On September 17, 2015, Miles's
attorney sent CVMC's attorney an e-mail asking if there was
"[a]ny update on discovery and records yet?" CVMC's attorney
responded that same day by leaving Miles's attorney a voice
mail in which he apparently indicated that CVMC was not yet
ready to send some documents and video. Miles's attorney
responded with the following e-mail later that afternoon:
"Listened to your voicemail. All of that is fine.
However, why can't you go ahead and send me the
medical records and discovery? You can send the
other documents and video later. I know you have
1On September 14, 2015, Miles's attorney canceled the
depositions of the EMTs because of a conflict with a trial in
another case.
10
1180317, 1180318, 1180319
the medical records and discovery ready. As you
know, I need those to discover my case. I have to
send experts, etc., just like you. Please send the
medicals and discovery."
On September 25, 2015, CVMC's attorney sent the medical
records from Tameca's admission on December 29, 2013, to
Miles's attorney; the rest of CVMC's responses were provided
to Miles's attorney four days later on September 29, 2015. In
those responses, CVMC did not identify any documents
associated with Tameca's visit to the emergency room on
December 28, 2013, nor did it identify any specific CVMC staff
members who interacted with Tameca, witnessed her behavior, or
otherwise had knowledge of her visit to the emergency room on
that date. CVMC did, however, provide a list of 14 staff
members who had been assigned to the emergency room on
December 28, 2013, along with a description of their positions
and the hours each of them had worked. Blanchard and Gulas
were included on that list, but not Pruitt or Russell.
C. Continuing Discovery Following CVMC's September 2015
Discovery Responses
Miles subsequently issued subpoenas to Ashworth and the
other EMT setting their depositions for November 18, 2015, but
she states that those subpoenas were returned without being
11
1180317, 1180318, 1180319
served. New subpoenas were thereafter issued and served,
setting those depositions for January 21, 2016. Ashworth's
deposition was held as scheduled on that date, and, as recited
above, he testified that he talked to Blanchard and Dr.
Johnson about Tameca when he brought her into the emergency
room on December 28, 2013. Six days after Ashworth's
deposition –– on January 27, 2016 –– Miles amended her
complaint and substituted Blanchard, Dr. Johnson, and Delta
for fictitiously named defendants.2
On February 25, 2016, Blanchard moved the trial court to
enter a summary judgment in her favor, arguing that Miles's
claims against her were barred by the statute of limitations.3
Specifically, Blanchard argued: (1) that CVMC's September 29,
2015, discovery responses identified her as a nurse on duty in
the emergency room when Tameca was brought in on December 28,
2013; (2) that Tameca died on December 29, 2013; (3) that the
two-year period during which a wrongful-death claim based upon
Tameca's death could be asserted expired on December 29, 2015;
2The trial court later dismissed Delta and QCHC.
3Section 6-5-410(d), Ala. Code 1975, provides that a
wrongful-death claim must be asserted "within two years from
and after the death of the testator or intestate."
12
1180317, 1180318, 1180319
and (4) that Miles did not name her as a defendant until
January 27, 2016. Dr. Johnson thereafter filed her own motion
for a summary judgment making a similar argument.
In the meantime, Miles continued taking discovery. On
March 3, 2016, Miles's attorney contacted CVMC's attorney
requesting
to
schedule
Blanchard's
deposition;
they
ultimately
agreed on a date of May 11, 2016. On April 29, 2016, in
advance of Blanchard's deposition, CVMC supplemented its
September 29, 2015, response to Miles's initial discovery
requests by producing a copy of the communication-control log
for December 28, 2013. This log contained the entry made by
Blanchard indicating that an EMT had radioed the emergency
room at 6:20 p.m. on December 28 regarding a 40-year-old
female patient who was being transported. Written inside the
box labeled "Initial Pt. Assessment Information/Orders" were
two notes –– "HA," shorthand for headache, and "aggressive."
The entry further listed the physician as "Johnson" and the
nurse as "KNB," which is acknowledged to be Blanchard.
Blanchard's scheduled deposition was ultimately delayed, but
when she was finally deposed, she acknowledged that she had
made this entry.
13
1180317, 1180318, 1180319
On May 20, 2016, Miles's attorney again contacted CVMC's
attorney by e-mail, expressing his frustration with his
inability to obtain requested information from CVMC and
stating that he would ask the trial court to intervene if CVMC
was not forthcoming about which CVMC employees "saw" Tameca on
December 28, 2013. CVMC's attorney responded on May 22, 2016,
stating that CVMC had already identified the CVMC employees
who were working in the emergency room on December 28 and 29
in its September 29, 2015, discovery responses and that he
would try to make them available for depositions as soon as
possible. Miles's attorney responded later that day, stating:
"We requested the names of the employees who saw [Tameca] not
the ones who worked there. You and I discussed this before."
On May 27, 2016, Miles moved the trial court to compel CVMC to
fully respond to its May 2015 discovery requests, asking the
court
to
order
CVMC
to
identify
all
"nurses/employees/witnesses who saw, witnessed, provided
treatment to, or otherwise [were] involved with [Tameca] on
December 28 and 29, 2013."
On June 10, 2016, CVMC served supplemental discovery
responses, one of which provided:
14
1180317, 1180318, 1180319
"All witnesses with knowledge of the facts
related to Tameca Miles on December 28 and 29 are
not known. A list of staffing for the emergency
room on December 28, 2013, was [previously] provided
.... This list includes emergency room staff that
saw Tameca Miles on December 28, 2013, including
Kristen Blanchard, RN, and Teshia Gulas, Unit
Secretary. In addition, admissions clerk Carla
Pruitt saw Tameca Miles on December 28, 2013."
On June 24, 2016, Miles amended her complaint to substitute
Gulas and Pruitt for fictitiously named defendants, and, on
June 28, 2016, the trial court denied Miles's motion to compel
as moot.
Over the next two months, the parties worked to schedule
depositions, and Miles repeatedly sought confirmation from
CVMC that no other CVMC employees had information about
Miles's visit and removal from the emergency room on December
28. Depositions for the Delta security guards and the CVMC
employees who had been named as defendants were ultimately
scheduled for the end of August 2016, but CVMC eventually
canceled those depositions after its attorneys concluded that
they could not represent all the CVMC employees.
After Gulas and Pruitt were provided with separate
counsel,
Blanchard's deposition
was
scheduled
for
November
10,
2016. During that deposition, Blanchard acknowledged that she
15
1180317, 1180318, 1180319
had been at the nurse's station when Ashworth brought Tameca
into the emergency room, but she denied receiving an oral
report from him at that time, stating that she was merely
there to get a different patient's chart and that she heard
Ashworth talk about Tameca for only "a few seconds." She
otherwise
denied
assessing,
treating,
or being
given
responsibility for Tameca's care in any way on December 28.
A status conference was conducted by the trial court
later that month, and Miles states that the parties were
thereafter able to reach an agreement about the scheduling of
future depositions. The deposition of Delta security guard
Jeff Hill was conducted on January 31, 2017, and, during that
deposition, Hill stated that he had spoken with Russell on the
telephone about what to do with Tameca on December 28. This
was the first time Miles learned of Russell's involvement with
Tameca, and, on February 3, 2017, she amended her complaint
for a third time to substitute Russell for a fictitiously
named defendant.
Depositions for Gulas and Pruitt were conducted on March
23, 2017; both confirmed that they had interacted with Tameca
on December 28 but stated that they had been unable to obtain
16
1180317, 1180318, 1180319
identifying information from her. When Russell was deposed on
August 31, 2017, she denied having had any conversation with
Hill on December 28 about Tameca or any other unruly or
aggressive patient in the emergency room.
D. Hearing and Disposition of Summary-Judgment Motions
That Form the Basis of These Petitions
On September 14, 2017, Gulas and Pruitt filed a joint
motion for a summary judgment, arguing, among other things,
that the claims Miles had asserted against them were barred by
the statute of limitations. The next day, Russell filed her
own summary-judgment motion making a similar argument. Miles
thereafter filed a single response opposing the summary-
judgment motions filed by (1) Blanchard, (2) Dr. Johnson, (3)
Gulas and Pruitt, and (4) Russell. Miles argued that she had
properly substituted these defendants for fictitiously named
defendants who were specifically described in her May 2015
complaint and that her claims against them were therefore
timely under Rules 9(h) and 15(c), Ala. R. Civ. P. Miles
further argued that any delay in making those substitutions
was attributable to CVMC's failure to timely respond to her
discovery requests.
17
1180317, 1180318, 1180319
On November 8, 2017, the trial court conducted a hearing
on the pending summary-judgment motions. For reasons that are
not clear from the materials before this Court, the trial
court did not rule on those motions in the ensuing months,
and, on September 4, 2018, it conducted a second hearing. On
December 7, 2018, the trial court denied all four summary-
judgment motions. Blanchard, Dr. Johnson, Gulas, Pruitt, and
Russell subsequently petitioned this Court for writs of
mandamus directing the trial court to dismiss on statute-of-
limitations grounds the claims Miles had asserted against
them.4 We have consolidated the petitions for the purpose of
issuing one opinion.
Standard of Review
This Court explained in Ex parte Integra LifeSciences
Corp., 271 So. 3d 814, 817 (Ala. 2018), the standard of review
that we apply in mandamus proceedings that involve a dispute
about the use of fictitiously named parties to avoid a statute
of limitations:
"'"A
writ
of
mandamus
is
an
extraordinary remedy, and one petitioning
for it must show: (1) a clear legal right
4This Court dismissed Dr.
Johnson's petition after she
and
Miles jointly moved the Court to do so.
18
1180317, 1180318, 1180319
in the petitioner to the order sought; (2)
an imperative duty on the respondent to
perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy;
and (4) the properly invoked jurisdiction
of the court ...."'
"Ex parte Mobile Infirmary Ass'n, 74 So. 3d 424, 427
(Ala. 2011) (quoting Ex parte Jackson, 780 So. 2d
681, 684 (Ala. 2000)).
"Although mandamus will not generally issue to
review the merits of an order denying a motion for
a summary judgment, this Court has held that, in the
'narrow class of cases involving fictitious parties
and the relation-back doctrine,' mandamus is the
proper method by which to review the merits of a
trial court's denial of a summary-judgment motion in
which the defendant argues that the plaintiff's
claim was barred by the applicable statute of
limitations. Mobile Infirmary Ass'n, 74 So. 3d at
427-28 (quoting Jackson, 780 So. 2d at 684)."
Analysis
The CVMC petitioners seek mandamus relief from this Court
on statute-of-limitations grounds. Although the specific
circumstances of each petitioner are different, the same
general principles of fictitious-party practice guide our
review. Accordingly, we began our analysis with a review of
those principles.
The use of fictitiously named parties is authorized by
Rule 9(h), which states:
19
1180317, 1180318, 1180319
"When a party is ignorant of the name of an opposing
party and so alleges in the party's pleading, the
opposing party may be designated by any name, and
when the party's true name is discovered, the
process and all pleadings and proceedings in the
action may be amended by substituting the true
name."
Rule 15(c)(4), Ala. R. Civ. P., further provides that an
amendment substituting the true name of a party under Rule
9(h) "relates back to the date of the original pleading" if
relation back is consistent with "principles applicable to
fictitious party practice." This Court summarized those
principles in Ex parte Noland Hospital Montgomery, LLC, 127
So. 3d 1160, 1167 (Ala. 2012):
"In order to avoid the bar of a statute of
limitations when a plaintiff amends a complaint to
identify a fictitiously named defendant on the
original complaint, the plaintiff: (1) must have
adequately
described
the
fictitiously
named
defendant in the original complaint; (2) must have
stated a cause of action against the fictitiously
named defendant in the body of the original
complaint; (3) must have been ignorant of the true
identity of the fictitiously named defendant; and
(4) must have used due diligence in attempting to
discover the true identity of the fictitiously named
defendant. Ex parte Tate & Lyle Sucralose[, Inc.],
81 So. 3d [1217,] 1220–21 [(Ala. 2011)]."
This Court has further emphasized that the due-diligence
requirement applies both before and after the filing of the
original complaint and that a plaintiff must similarly
20
1180317, 1180318, 1180319
exercise due diligence in amending his or her complaint once
the true identity of a defendant is discovered. Ex parte
Cowgill, [Ms. 1180936, February 7, 2020] ___ So. 3d ___, ___
(Ala. 2020). We now turn to the specific arguments made by
each of the CVMC petitioners.
A. Kristen Blanchard
Blanchard
argues
that
Miles's
amended
complaint
substituting her as a defendant does not relate back to the
original complaint because, she says, Miles did not exercise
due diligence to identify her before the statute of
limitations expired. Blanchard does not argue that Miles
should have been able to identify her before Miles filed her
original complaint in May 2015, but she emphasizes that CVMC's
September 29, 2015, discovery responses identified her as one
of only five nurses on duty in the emergency room at the time
Tameca was brought in on December 28, 2013. Miles had three
months at that point to seek more information about the listed
nurses before the statute of limitations expired, but,
Blanchard states, Miles failed to initiate any discovery
during that period to determine whether any of those nurses
were potential defendants. Blanchard argues that this was a
21
1180317, 1180318, 1180319
lack of due diligence that bars Miles from invoking Rule 9(h)
to substitute her for a fictitiously named defendant.
In support of her argument, Blanchard primarily relies
upon Sherrin v. Bose, 608 So. 2d 364, 365-67 (Ala. 1992), in
which this Court held that a physician was entitled to a
summary judgment on statute-of-limitations grounds when the
undisputed facts showed that the plaintiff had learned the
physician's name –– and that the physician had actually seen
the
now
deceased
patient
in
the
emergency
room
––
approximately 10 months before amending her complaint to
substitute him for a fictitiously named party after the
statute of limitations had expired. Blanchard asserts that
Sherrin controls this case because, she says, Miles similarly
knew of Blanchard's identity for several months before
amending her complaint to substitute Blanchard as a defendant
after the statute of limitations expired.
We disagree that this Court's holding in Sherrin requires
the same result here. In Sherrin, the plaintiff learned in
the responses she received to her interrogatories not just
that the physician she later substituted as a defendant was on
duty in the emergency room when the patient went there for
22
1180317, 1180318, 1180319
treatment, but also that this physician had actually seen the
patient on that date and was, in fact, the first physician to
have treated her. 608 So. 2d at 366. In contrast, it is
undisputed in this case that Miles did not learn that
Blanchard had any specific connection to Tameca until after
the statute of limitations expired. All Miles knew before the
statute of limitations expired was that Blanchard had been on
duty in the emergency room when Tameca was brought in, and,
Miles argues, any suggestion that she should have amended her
complaint to substitute Blanchard as a defendant on that basis
alone was refuted by this Court in Oliver v. Woodward, 824 So.
2d 693, 699 (Ala. 2001):
"Although
Dr.
Woodward
argues
that
[the
plaintiff] should have sued him and the other
emergency-room
doctor
as
soon
as
they
were
identified by [the hospital] in November 1998 [as
being the emergency-room doctors on duty when the
plaintiff went to the hospital], substitution of Dr.
Woodward and the other emergency-room doctor for
fictitious defendants without a reasonable factual
basis or a substantial justification for the
substitution would have subjected [the plaintiff] to
sanctions under Rule 11, Ala. R. Civ. P., and the
Alabama Litigation Accountability Act, § 12–19–270
et seq., Ala. Code 1975."
The facts of this case are more akin to Oliver –– in
which the plaintiff had no knowledge that the physician
23
1180317, 1180318, 1180319
eventually substituted for a fictitiously named defendant had
a connection to the case, beyond merely being on duty in the
emergency room when the plaintiff was there, until after the
statute of limitations expired –– than Sherrin –– in which it
was undisputed that the plaintiff knew for months before the
statute of limitations expired that the physician who was
belatedly substituted for a fictitiously named defendant was
involved in the decedent's treatment. But Oliver is not
dispositive. Blanchard asserts that Miles failed to exercise
due diligence because she did not initiate any discovery to
learn the extent of Blanchard's knowledge of, and involvement
with, Tameca in the three-month window after Blanchard was
first identified and before the statute of limitations
expired. This argument implicitly asks us to give no
consideration to the discovery Miles initiated before
Blanchard was generically identified to which CVMC failed to
file timely and complete responses.
Miles argues that Blanchard's status as a potential
defendant would have been known much sooner if CVMC had given
timely,
complete,
and
accurate
responses
to
the
interrogatories and requests for production that she served
24
1180317, 1180318, 1180319
upon it in May 2015. We discuss the substance of the
interrogatories more in the following section, but we note
that Miles's requests for production sought "all ...
documents
... which are in any wise pertinent to anything that happened
to or was experienced by [Tameca] on December 28 or 29, 2013."
That document request clearly encompassed the communication-
control log, which identified Blanchard as the nurse on the
December 28, 2013, entry that undisputedly refers to Tameca.
This document, however, was not produced until April 2016 ––
11 months after Miles's request for production was made, 4
months after the statute of limitations expired, and 3 months
after Blanchard was substituted as a defendant. A writ of
mandamus will issue only when the petitioner has shown a clear
legal right to the order sought. Integra LifeSciences Corp.,
271 So. 3d at 817. We cannot conclude that such a showing has
been made here, where the trial court could have reasonably
concluded
that
Miles
had
diligently pursued
discovery
targeted
toward identifying Blanchard but had been hindered by CVMC's
failure to timely disclose a requested record that would have
25
1180317, 1180318, 1180319
clearly revealed a connection between Blanchard and Tameca.5
Accordingly, Blanchard's petition is denied.
B. Teshia Gulas
The argument Gulas makes in her petition is similar to
the argument made by Blanchard –– CVMC's September 29, 2015,
discovery responses identified her as 1 of 14 CVMC employees
who was working in the emergency room on December 28, 2013,
but, Gulas argues, Miles took no action over the next three
months to determine whether Gulas was a potential defendant
and instead allowed the statute of limitations to expire.
Gulas contends that this is a lack of due diligence that bars
Miles from relying upon Rule 9(h) to substitute her for a
fictitiously named defendant.
As Gulas notes, a long line of this Court's cases makes
clear that, when a plaintiff has asserted a claim alleging
that an injury or death was caused by an act of medical
malpractice, that plaintiff is obligated to diligently
5CVMC was apparently aware of the communication-control
log when it served its September 2015 interrogatory responses
because one response stated that "Sylacauga Ambulance called
[the CVMC emergency room] at 6:20 p.m. to report that they
were transporting a 40 year old, aggressive female who was
complaining of a headache." It is unclear where this
information was
obtained
if
not
from
the
communication-control
log.
26
1180317, 1180318, 1180319
investigate
the
involvement of
every
health-care
provider
that
has been identified as being involved in the injured or
deceased party's treatment. The failure to exercise due
diligence in this respect prevents the plaintiff from
subsequently relying upon Rule 9(h) to substitute a long-
identified party for a fictitiously named defendant. See,
e.g., McGathey v. Brookwood Health Servs., Inc., 143 So. 3d
95, 108 (Ala. 2013) ("Because of the medical records she
obtained, [the plaintiff] knew [the health-care providers']
names shortly after her surgery and knew that they were
involved in her treatment during the surgery. Despite this
knowledge, there is no indication that, in the nearly two
years between the time [the plaintiff] received the medical
records and the time she filed her complaint, [the plaintiff]
performed any investigation to determine whether either of
those individuals was responsible for her injury."); Weber v.
Freeman, 3 So. 3d 825, 833 (Ala. 2008) ("Because [the
plaintiff] knew of Dr. Weber's involvement in
[the decedent's]
treatment, it was incumbent upon her, before the statute of
limitations on her claim expired, to investigate and evaluate
the claim to determine who was responsible for [the
27
1180317, 1180318, 1180319
decedent's] death."); Harmon v. Blackwood, 623 So. 2d 726, 727
(Ala. 1993) ("[W]hen a plaintiff knows the name of a physician
and the involvement of that physician in the treatment of the
patient, it is incumbent upon the plaintiff, before the
running of the statutory period, to investigate and to
evaluate his claim to determine who is responsible for the
injury and to ascertain whether there is evidence of
malpractice.").
Crucially, the principle applied in McGathey, Weber, and
Harmon applies only when the plaintiff had reason to know,
before the statute of limitations expired, that the health-
care provider had some involvement in the facts upon which the
action was based. Here, Miles had no medical records or other
information indicating which CVMC employees interacted with
Tameca or were otherwise involved in her treatment on December
28, 2013, until after the statute of limitations expired.
Although Gulas was identified in a list of 14 CVMC employees
who worked in the emergency room on December 28, 2013, Miles
had no knowledge of Gulas's relevance to this case until CVMC
supplemented its discovery responses on June 10, 2016, and
revealed for the first time that Gulas "saw Tameca Miles on
28
1180317, 1180318, 1180319
December 28, 2013." Miles then amended her complaint to
substitute Gulas as a defendant that same month.
Gulas nevertheless argues that Miles should have done
more to determine whether she was a potential defendant in the
three-month period after she was identified as having been on
duty on December 28, 2013; like Blanchard, however, she
ignores the fact that Miles diligently conducted discovery
even before Gulas was identified that, if CVMC had promptly
and fully responded, would have revealed that Gulas was a
potential defendant. That discovery included interrogatories
served in May 2015 specifically asking CVMC to identify (1)
its employees who were "involved in any way with the treatment
of [Tameca] on December 28"; (2) any individual "who witnessed
or has knowledge regarding the facts and circumstances
surrounding the happening of the incident made the basis of
this case"; and (3) its employees "(whether administrative,
nursing, technical staff or otherwise) ... who played any role
in administering health care services to Tameca." Despite
those interrogatories and repeated informal requests by
Miles's counsel for more specific information –– catalogued
above in the first section of this opinion –– Gulas was not
29
1180317, 1180318, 1180319
identified as an individual who interacted with Tameca on
December 28, 2013, until five and a half months after the
statute of limitations expired. Under these
circumstances, we
are satisfied that Miles had no knowledge that Gulas "was in
fact a party intended to be sued" when the statute of
limitations expired and that Miles exercised due diligence in
her attempt to identify Gulas. Harmon, 623 So. 2d at 727.
Gulas has not shown that she has a clear legal right to the
relief she seeks, and her petition for the writ of mandamus is
therefore denied.
C. Carla Pruitt
Carla Pruitt was not identified in CVMC's September 2015
discovery responses as one of the CVMC employees on duty in
the emergency room on December 28, 2013; the materials before
us do not explain why she was omitted from that list. But it
is undisputed that Pruitt was first identified as an employee
who interacted with Tameca in June 2016, five and a half
months after the statute of limitations expired, when CVMC
disclosed her name for the first time and revealed that she
"saw Tameca Miles on December 28, 2013." Miles substituted
Pruitt as a defendant that same month, and Pruitt does not
30
1180317, 1180318, 1180319
argue that Miles failed to exercise due diligence in either
identifying her or substituting her as a defendant. Pruitt
instead argues that her substitution for a fictitiously named
defendant was improper because (1) she was not adequately
described as a fictitiously named defendant in the original
complaint; and (2) the original complaint did not assert a
cause of action against her. We disagree.
Miles's original complaint identified as "Defendant G"
any "medical services therapist, technician, or worker who
undertook to provide services to [Tameca] [on] the occasion
made the basis of this suit, the negligence, breach or
contract, or other actionable conduct of whom contributed to
cause [Tameca's] death." As an employee of CVMC, Pruitt can
reasonably be
considered a
medical-services worker.
Moreover,
Pruitt has acknowledged that she attempted to get information
from Tameca so that she could register her as a patient. It
is therefore at least arguable that Pruitt "undertook to
provide services" to Tameca when she first visited the CVMC
emergency room on December 28, 2013. Our caselaw does not
require that the description of the fictitiously named
defendant "perfectly" or "exactly" describe the party that the
31
1180317, 1180318, 1180319
plaintiff eventually seeks to substitute; it requires only an
"adequate[]" description. Noland Hosp., 127 So. 3d at 1167.
Miles's complaint meets that standard in its substitution of
Pruitt.
Pruitt also argues that Miles's original complaint did
not assert a claim against her. This Court explained in Ex
parte International Refining & Manufacturing Co., 972 So. 2d
784, 789 (Ala. 2007), that "[a] complaint stating a claim
against
a
fictitiously named
defendant must
contain
sufficient
specificity to put that defendant on notice of the plaintiff's
claim if it were to read the complaint." Moreover, "the
complaint must describe the actions that form the basis of the
cause of action against the fictitiously named defendant."
Id. We have further explained that "[o]ne need not state with
more particularity a cause of action against an unknown party
as compared to a named party –– the test is the same."
Columbia Eng'g Int'l, Ltd. v. Espey, 429 So. 2d 955, 960 (Ala.
1993). Because Miles's wrongful-death action asserts claims
against health-care providers, the provisions of the Alabama
Medical Liability Act apply; § 6-5-551, Ala. Code 1975, of
that Act requires a plaintiff to include in his or her
32
1180317, 1180318, 1180319
complaint
"a
detailed
specification and
factual
description
of
each act and omission alleged by [the] plaintiff to render the
health care provider liable."
Miles's original complaint alleged that the fictitiously
named defendants committed the following negligent and wanton
acts that proximately resulted in Tameca's death: (1) they
failed "to timely and properly triage, evaluate or diagnose
Tameca's
complaints of
severe
headache,
altered
mental
status,
confusion, etc."; (2) they failed "to timely and properly
treat Tameca's complaints of severe headache, altered mental
status, confusion, etc."; (3) they failed "to timely and
properly notify physician(s) of Tameca's symptoms and her
emergency serious medical condition"; and (4) they "acted
outrageously by failing to diagnose, monitor, manage, or
treat
Tameca, a seriously ill patient, but rather having her
arrested and sent to jail." Miles argues that Pruitt, as the
admissions clerk, represented the first step in the "triage"
process and that she bore some responsibility in determining
that Tameca was in urgent need of care. Pruitt, however,
states that she had no such responsibility for evaluating a
patient or determining whether a physician was needed.
33
1180317, 1180318, 1180319
It is not the role of this Court to make a factual
determination of Pruitt's job responsibilities; it is enough
for us to note that Miles's original complaint is sufficiently
specific to assert a cause of action against Pruitt. For
these reasons, the trial court did not err in allowing Miles
to substitute Pruitt for a fictitiously named defendant under
Rule 9(h).6 Accordingly, Pruitt's petition for the writ of
mandamus is due to be denied.
D. Kathy Russell
Russell states that Miles should not have been allowed to
rely upon Rule 9(h) to avoid the statute of limitations with
regard to the claims asserted against her because, she argues,
(1) she was not adequately identified in the original
complaint; (2) the original complaint did not assert a cause
of action against her; and (3) Miles did not exercise due
diligence in attempting to discover her identity. Noland
6Gulas and Pruitt filed a joint petition. Although the
argument in that petition about whether Miles's original
complaint was sufficiently specific primarily addressed
Pruitt's
circumstances, Gulas
states
that
the
argument
applies
with equal force to her. Because Gulas and Pruitt were
similarly involved in this case –– both were administrative
employees who attempted to get identifying information from
Tameca so that she could be registered as a patient in the
CVMC computer system –– we also reject this argument as it
relates to Gulas.
34
1180317, 1180318, 1180319
Hosp., 127 So. 3d at 1167. For the reasons that follow, we
agree that Miles did not state a cause of action against
Russell in the body of the original complaint; thus, Russell's
summary-judgment motion was due to be granted.
As explained in the preceding section, "[a] complaint
stating a claim against a fictitiously named defendant must
contain sufficient specificity to put that defendant on
notice
of the plaintiff's claim if it were to read the complaint."
International Refining & Mfg., 972 So. 2d at 789. Miles's
original complaint alleges that the fictitiously named
defendants committed the following negligent and wanton acts
that proximately caused Tameca's death: (1) they failed "to
timely and properly triage, evaluate or diagnose Tameca's
complaints of severe headache, altered mental status,
confusion, etc."; (2) they failed "to timely and properly
treat Tameca's complaints of severe headache, altered mental
status, confusion, etc."; (3) they failed "to timely and
properly notify physician(s) of Tameca's symptoms and her
emergency serious medical condition"; and (4) they "acted
outrageously by failing to diagnose, monitor, manage, or
treat
35
1180317, 1180318, 1180319
Tameca, a seriously ill patient, but rather having her
arrested and sent to jail."
It is undisputed that Russell was never in the emergency
room or involved in any attempt to provide medical services to
Tameca. Rather, Russell is alleged only to have told the
security guard Hill –– after he telephoned her to describe a
disturbance in the emergency room –– "if you think you need to
call the police, call them." Thus, Russell did not summon the
police, instruct Hill to summon the police, or make the
decision to have Tameca arrested and taken to jail; she merely
told Hill he could contact the police if he thought the
situation warranted it. Because none of the allegedly
tortious acts described in Miles's complaint adequately
describe the act Russell is accused of committing –– telling
the security guard he could call the police if he thought it
was necessary to do so –– Miles cannot use Rule 9(h) to avoid
the statute of limitations and assert an otherwise untimely
claim against Russell. The trial court therefore erred by
denying her motion for a summary judgment.
36
1180317, 1180318, 1180319
Conclusion
In May 2015, Miles sued CVMC and other fictitiously named
defendants, including unnamed CVMC employees, alleging that
their wrongful acts had caused the December 2013 death of
Tameca. Upon learning that CVMC employees Blanchard, Gulas,
Pruitt, and Russell were allegedly involved in the police
removing Tameca from the CVMC emergency room before she was
treated for what was ultimately determined to be bacterial
meningitis, Miles filed a series of amendments substituting
those employees for the fictitiously named defendants. Those
CVMC employees all subsequently moved the trial court to enter
summary judgments in their favor, arguing that the claims
Miles had asserted against them were untimely because they had
not been named defendants within the two-year period allowed
by the statute of limitations governing wrongful-death
actions. After the trial court denied those motions, the CVMC
petitioners sought mandamus relief in this Court.
As discussed above, we deny the petitions filed by
Blanchard, Gulas, and Pruitt. We grant Russell's petition,
however, because Miles's May 2015 complaint did not state a
cause of action against her. The trial court is directed to
37
1180317, 1180318, 1180319
vacate
the
order
denying
Russell's
summary-judgment motion
and
to enter an order granting the same.
1180317 –– PETITION GRANTED; WRIT ISSUED.
Bolin, Shaw, Wise, Bryan, and Stewart, JJ., concur.
Mendheim, J., concurs in the result.
Parker, C.J., recuses himself.
1180318 –– PETITION DENIED.
Bolin, Shaw, Wise, Bryan, Mendheim, and Stewart, JJ.,
concur.
Parker, C.J., recuses himself.
1180319 –– PETITION DENIED.
Bolin, Shaw, Wise, Bryan, Mendheim, and Stewart, JJ.,
concur.
Parker, C.J., recuses himself.
38 | June 26, 2020 |
389cd40b-d4d2-4f0d-9a2a-78110814ed10 | Brown v. Berry-Pratt, as successor administrator of the Estate of Pauline Brown | N/A | 1180348 | Alabama | Alabama Supreme Court | REL: June 30, 2020
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2019-2020
____________________
1180348
____________________
Leah E. Brown, Robert Allen Brown, and Cheryl P. Woddail
v.
Ellen Berry-Pratt, as successor administrator of the Estate
of Pauline Brown, deceased
Appeal from Tuscaloosa Circuit Court
(CV-06-1154)
MITCHELL, Justice.
Leah E. Brown ("Leah"), Robert Allen Brown ("Allen"), and
Cheryl P. Woddail ("Cheryl") are heirs of Pauline Brown
("Brown"), who died without a will. Leah, Allen, and Cheryl
1180348
appeal the judgment of the Tuscaloosa Circuit Court
authorizing Ellen Berry-Pratt, the administrator of Brown's
estate, to sell certain real property owned by Brown at the
time of her death. Because Leah, Allen, and Cheryl have not
established that the circuit court erred by entering its
judgment in favor of Berry-Pratt, we affirm.
Facts and Procedural History
On May 25, 2005, Brown died in Tuscaloosa County without
leaving a will. She was survived by four children: Leah,
Allen, Cheryl, and Debra Gifford ("Debra"). At the time of
her death, Brown owned at least 18 parcels of real estate in
Alabama and Mississippi encompassing more than 560 acres.
In November 2005, the Tuscaloosa Probate Court appointed
Zondra Hutto as special administrator to temporarily manage
Brown's estate; the probate court later issued Hutto full
letters of administration appointing her to be the personal
representative of the estate. After Debra petitioned the
Tuscaloosa Circuit Court to remove the administration of
Brown's estate from the probate court, the circuit court
entered an order granting Debra's petition and removing the
estate to the circuit court for future administration.
2
1180348
In approximately 2010, Leah, Allen, Cheryl, and Debra
concluded that Hutto was mismanaging Brown's estate. In May
2011, Hutto resigned as personal representative. Over the
next several years, an attorney appointed by the circuit court
to represent Brown's estate pursued a claim against Hutto's
surety bond based on Hutto's alleged mismanagement of the
estate.1 A settlement was eventually reached, and, as part of
its order entering a judgment on that settlement, the trial
court appointed Leah administrator of Brown's estate; formal
letters of administration were issued to her in August 2015.
On May 18, 2018, Allen and Cheryl petitioned the circuit
court for an order requiring Leah to file an inventory and an
accounting of the estate, alleging that she had yet to do so
since being appointed administrator. Allen and Cheryl also
requested that Leah be removed as administrator and that they
be appointed to take her place. On June 21, 2018, the circuit
1Although the materials in the record refer to this
attorney as a "guardian ad litem," because the attorney was
representing the estate of a deceased person –– not a minor or
an individual shown to be incompetent –– he is properly
considered an "administrator ad litem" as opposed to a
"guardian ad litem." See Pharmacia Corp. v. McGowan, 915 So.
2d 549, 550 (Ala. 2004) (recognizing that an attorney was
appointed "the guardian ad litem for the minor plaintiffs and
the administrator ad litem for the deceased plaintiffs").
3
1180348
court entered an order removing Leah and appointing
Berry-Pratt as the new administrator of Brown's estate. The
circuit court further indicated that it would address the
other issues raised by Allen and Cheryl at a later date "by
separate orders if necessary." On July 9, 2018, the circuit
court
issued
letters
of
successor
administration
to
Berry-Pratt.
On July 27, 2018, Berry-Pratt submitted to the circuit
court an inventory of the 18 parcels of real estate Brown
owned when she died, listing the location, approximate
acreage, and most recent tax-appraised value for each parcel.
Invoking §§ 43-2-442 and -844, Ala. Code 1975, Berry-Pratt
requested that the circuit court allow her to list those
properties
for
sale
"for
payment
of
the
costs
of
administration of the estate and ... equitable distribution to
the heirs." See § 43-2-442 (providing that, "[i]n case of
intestacy, lands may be sold by the administrator for the
payment
of
debts")
and
§
43-2-844
(authorizing
the
administrator of an estate, after receiving court approval, to
"dispose of an asset, including land in this or another
state," and to "[s]ell, mortgage, or lease any real or
4
1180348
personal property of the estate"). The circuit court granted
her motion that same day, stating in its order that the sale
was needed "to provide funds to settle and distribute
inheritances to the heirs of Pauline Brown who do not all
agree to accept their share in kind and also to alleviate the
expense and liability of maintaining the properties." None of
Brown's four children filed anything with the circuit court
indicating that they opposed the granting of Berry-Pratt's
motion, although the certificate of service attached to the
motion indicates that it was mailed to each of them.
On August 28, 2018, Berry-Pratt notified the circuit
court that she had located a buyer willing to purchase two
adjacent parcels of property on McFarland Boulevard in
Northport ("the Northport property") for $501,101. She noted
that the tax-appraised value of the two parcels was $285,200
and recommended that the circuit court allow the sale to
proceed because "[t]he property is a liability to the estate
of Pauline Brown in that it is uninsured and incurs expense
such as annual property tax in the approximate amount of
$2,200." Berry-Pratt further stated that, under § 43-2-848,
Ala. Code 1975, she was entitled to receive "reasonable
5
1180348
compensation" in the amount of 5% of the sale price for her
services in facilitating the sale.2
The same day Berry-Pratt notified the circuit court that
she had received an offer on the Northport property, Allen and
Cheryl notified the attorney who had been representing them
that they were terminating his representation; his subsequent
motion to withdraw was granted by the circuit court on
September 4, 2018. Allen and Cheryl did not immediately
retain successor counsel.
On October 1, 2018, the circuit court held a hearing on
Berry-Pratt's motion to sell the Northport property. A
transcript of that hearing is not in the record, and it is not
clear whether Leah, Allen, Cheryl, or Berry-Pratt provided
sworn testimony at that hearing or whether only oral argument
was presented. It is apparent, however, that Leah, Allen, and
Cheryl made it known that they objected to the price for which
2Section
43-2-848(a)
provides
that
the
reasonable
compensation a personal representative receives "shall not
exceed two and one-half percent of the value of all property
received and under the possession and control of the personal
representative
and
two
and
one-half
percent
of
all
disbursements." Section 43-2-848(b) further explains,
however, that "[i]n addition the court may allow a reasonable
compensation for extraordinary services performed for the
estate."
6
1180348
the Northport property was being sold, and the record contains
three comparative real-estate listings that they submitted to
the circuit court for other commercial properties on
McFarland
Boulevard in Northport with asking prices ranging from $2.376
million to $3.9 million. It is also evident that someone at
the October 1 hearing advised the circuit court that Brown's
other heir –– her daughter Debra –- was disabled and had
dementia.
The next day, October 2, 2018, Berry-Pratt moved the
circuit court to appoint a guardian ad litem to represent
Debra; the circuit court granted that motion and appointed a
guardian ad litem that same day. Simultaneously, the circuit
court stated that it was deferring its ruling on Berry-Pratt's
request to sell the Northport property for 30 days so that the
unrepresented parties could retain counsel.
On October 10, 2018, Berry-Pratt filed a response to the
objections that Leah, Allen, and Cheryl apparently made at the
October 1 hearing. In that response, Berry-Pratt argued that
the three real-estate listings that Leah, Allen, and Cheryl
had submitted were of no relevance because they were active
listings as opposed to completed sales. She further
7
1180348
emphasized that the listings were from October 2006, April
2014, and April 2017 and argued that the fact that the
properties had not sold at the listed prices was an indication
that those asking prices were too high and were not accurate
reflections of the values of the properties. Finally, she
argued that the locations and specific characteristics of
those properties were different than the Northport property
she was asking the circuit court to permit her to sell.
Berry-Pratt simultaneously filed an updated inventory of the
estate indicating that the balance of the estate's cash
account was $2,028, down from $4,894 when she was appointed
administrator approximately three months earlier.
On October 26, 2018, an attorney representing Leah,
Allen, and Cheryl filed a notice of appearance. In
conjunction with Berry-Pratt and Debra's guardian ad litem,
that attorney moved the circuit court to schedule an
attorneys-only status
conference.
The
circuit
court
scheduled
that conference for December 6, 2018, but there is no
transcript of the hearing in the record before us. On
December 17, 2018, the circuit court granted Berry-Pratt's
motion to sell the Northport property. In its judgment
8
1180348
"authorizing, approving, and confirming [the] sale of
decedent's real estate," the circuit court explained:
"This sale is to liquidate real estate for an
equitable division of inheritance to the four (4)
children and heirs of Pauline Brown and to avoid the
liability and expense of maintaining the property.
This sale is in the best interest of the estate of
Pauline Brown and the sale is due to be approved and
confirmed.
"....
"... [T]he offer to purchase this property ...
in the amount of $501,101 is the best price that can
be ascertained for this property which is a
liability and burden to the estate of Pauline Brown.
"It is therefore ordered that the successor
administrator Ellen Berry-Pratt is hereby authorized
under the powers of Ala. Code [1975,] 43-2-442 ...
and -844 to sell the above-described property ...."
The circuit court further ordered that Berry-Pratt was
entitled to "reasonable compensation of 5% of the proceeds of
the sale for her services in facilitating and completing this
sale."3
On December 27, 2018, Leah, Allen, and Cheryl moved the
circuit court to reconsider its judgment.4 In that motion,
3Leah, Allen, and Cheryl have not challenged in this
appeal the reasonableness of the compensation paid to Berry-
Pratt for the sale of the Northport property.
4Debra was not a party to this motion, but the motion
states that the guardian ad litem appointed to represent her
9
1180348
they disputed Berry-Pratt's claim that the estate needed
funds, arguing that the estate had other income-producing
properties that produced sufficient income to pay
the
property
taxes for the Northport property. They further claimed that
the only reason the estate needed funds was because
Berry-Pratt had been steadily depleting the estate's funds
since her appointment, and, for that reason, they stated that
they would personally pay the property taxes due on the
Northport property. Finally, Leah, Allen, and Cheryl argued
that Berry-Pratt had failed to comply with various statutory
requirements governing the sale of real property by the
administrator of an estate, including those found in § 43-2-
442, which, they said, authorizes an administrator to sell
real property only "for the payment of debts." According to
Leah, Allen, and Cheryl, Berry-Pratt had "failed to set forth
any debts of the estate, or costs and expenses of the
administration [of the estate]." Thus, they argued, the
circuit court should vacate its December 17 judgment
permitting Berry-Pratt to sell the Northport property. On
January 2, 2019, the circuit court denied the motion to
had discussed the motion with her and that she agreed with the
substance of it.
10
1180348
reconsider, and, later that month, Leah, Allen, and Cheryl
filed their notice of appeal to this Court.5
Standard of Review
Although the parties disagree about some of the
peripheral facts, this appeal can be resolved by applying well
established principles of law to the relevant facts, which are
essentially undisputed. Accordingly, our standard of review
is de novo. See Ruttenberg v. Friedman, 97 So. 3d 114, 134
(Ala. 2012) (explaining that, when the issue before this Court
5Although Leah, Allen, and
Cheryl stated in
their December
27 motion to reconsider that the circuit court's December 17
judgment authorizing Berry-Pratt to sell the Northport
property and awarding her a fee based on that sale was not a
final judgment, they now claim that their appeal is proper
under § 12-22-4, Ala. Code 1975 (authorizing an appeal from a
circuit court's judgment on the partial settlement of an
estate). See Wehle v. Bradley, 49 So. 3d 1203, 1207 (Ala.
2010) (concluding that heirs' appeal challenging the fee
claimed
by
the
personal
representatives "properly invoked
this
Court's
appellate
jurisdiction" under
§
12-22-4).
Berry-Pratt
agrees that the circuit court's judgment supports an appeal,
although that fact is not dispositive. In Myers v. Parker,
349 So. 2d 1136, 1137 (Ala. 1977), this Court previously
exercised jurisdiction in an appeal of a judgment granting the
administrator of an estate's application "to sell lands of the
decedent for the payment of lawful charges against the
estate." See also Sexton v. Sexton, 280 Ala. 479, 482, 195
So. 2d 531, 533 (1967) ("When the court orders the lands sold,
that decree is final insofar as it will support an appeal.").
Based on these authorities, we acknowledge that this Court has
jurisdiction to consider this appeal.
11
1180348
"presents a question of law and does not concern a disputed
issue of fact, our review is de novo").
Analysis
Leah, Allen, and Cheryl argue that the circuit court's
judgment should be reversed because, they allege, real
property belonging to a decedent at the time of her death can
be sold by the estate only to pay debts incurred by the
decedent before her death, and there is no evidence of any
such debts in this case. Leah, Allen, and Cheryl further
argue that Berry-Pratt was not qualified to serve as the
administrator of Brown's estate and that this Court should
order her to reimburse the estate for the expenses it has
incurred because of her allegedly self-serving attempt to
sell
the Northport property. We reject these arguments.
A. Power of an Estate Administrator to Sell Real Property
Leah, Allen, and Cheryl first argue that the circuit
court erred by authorizing Berry-Pratt to sell the Northport
property because, when a property owner dies without a will,
her "real estate vests immediately in the heirs at law subject
only to recapture by the administrator ... in the event th[e]
property is needed for the payment of debts of the decedent."
12
1180348
McCollum v. Towns, 435 So. 2d 17, 19 (Ala. 1983). They assert
that Brown's estate has been open since 2005 and that all
debts owed by Brown when she died have been paid. Thus,
although § 43-2-442 provides that, "[i]n case of intestacy,
lands may be sold by the administrator for the payment of
debts," Leah, Allen, and Cheryl argue that Berry-Pratt cannot
now "recapture" and sell the Northport property because that
sale is not needed to pay any debts owed by Brown when she
died.
Berry-Pratt says in response that Leah, Allen, and
Cheryl's argument reveals an incomplete understanding of the
relevant law. Berry-Pratt does not dispute the legal
principle recognized in McCollum –– that an estate's
administrator may "recapture" real estate from an heir for the
payment of the decedent's debts –– but she argues that the
debts of a decedent include not just the sums that the
decedent owes when she dies, but also the "fees and charges of
administration." See § 43-2-371, Ala. Code 1975 (setting
forth the order in which the debts of an estate are to be paid
and noting that the "fees and charges of administration" are
prioritized above all debts other than funeral expenses).
13
1180348
Berry-Pratt's position is supported by additional authority,
including § 43-2-830, Ala. Code 1975, which provides:
"(a) Upon the death of a person, decedent's real
property
devolves
...,
in
the
absence
of
testamentary disposition, to decedent's heirs ....
"....
"(c) The devolution of a decedent's property,
real
and
personal,
is
subject
to
homestead
allowance, exempt property, family allowance, rights
of creditors, elective share of the surviving
spouse, and to administration."
Our appellate courts have considered how § 43-2-830
should be applied. In Self v. Roper, 689 So. 2d 139, 141
(Ala. Civ. App. 1996), the Court of Civil Appeals summarized
the statute as follows:
"[T]itle to the real property vests upon death in
the
heirs
as
joint
owners,
but
subject
to
divestment, if needed, for payment of debts of the
estate or costs and expenses of administration.
Real property is left with the heirs, the persons
presumptively entitled thereto, unless the personal
representative shall determine that his possession
of the real property is necessary for purposes of
administration."
In Schlumpf v. D'Olive, 203 So. 3d 57, 62 (Ala. 2016), this
Court quoted Self extensively and concluded that the Court of
Civil Appeals' analysis of § 43-2-830 was "persuasive."
14
1180348
The parties do not cite § 43-2-830, Schlumpf, or Self in
their briefs to this Court, but those authorities clearly
support Berry-Pratt's argument that she was entitled to sell
the Northport property if funds were needed for the
administration of Brown's estate. It is apparent from the
materials in the record that the cash holdings of the estate
were limited and that there were, in fact, expenses that the
estate would need to pay. Those expenses included not only
the fees to which Berry-Pratt was entitled as administrator,
but also the fees of the guardian ad litem who had been
appointed to represent Debra. Moreover, the circuit court's
order authorizing Berry-Pratt to pursue a sale of real estate
explained that one of the purposes of any sale was to provide
funds to finally settle and close the estate, which, we note,
has now been open for approximately 15 years. Berry-Pratt,
who is not an attorney, claims that the estate also needs
funds to retain an attorney to assist with that closing
process, and, in their brief to this Court, Leah, Allen, and
Cheryl acknowledge that they too would have to employ an
attorney and incur those legal fees if they were appointed as
administrators. In light of this, we cannot hold that the
15
1180348
circuit court erred by concluding that funds were needed for
the administration of Brown's estate.
Finally, the circuit court stated in its judgment
authorizing Berry-Pratt to sell the Northport property that
the sale was "in the best interest of the estate" and that
Berry-Pratt was authorized by both § 43-2-442 and § 43-2-844
to pursue the sale. We have already addressed § 43-2-442, but
we note that § 43-2-844 authorizes the administrator of an
estate, with the approval of the trial court, to "dispose of
an asset, including land in this or another state," and to
"[s]ell, mortgage, or lease any real or personal property of
the estate." It is undisputed that Berry-Pratt complied with
the statutory requirement in § 43-2-844 that she obtain court
approval before selling real property of the estate. Thus, §
43-2-844
also
supports
the
circuit
court's
judgment
authorizing Berry-Pratt to sell the Northport property.
B. Berry-Pratt's Appointment and Performance as
Administrator
Leah, Allen, and Cheryl next argue that the circuit court
erred by appointing Berry-Pratt as administrator of the estate
because, they allege, she was not qualified for that
appointment. They also argue that Berry-Pratt should be
16
1180348
ordered to reimburse the estate for the expenses it has
incurred in this litigation because, they say, the litigation
stems from Berry-Pratt's "egregious actions" in the
pursuit of
"a big commission." Leah, Allen, and Cheryl's brief, p. 18.
But nothing in the record indicates that either of those
arguments was presented to the circuit court. "'This Court
cannot consider arguments raised for the first time on appeal;
rather, our review is restricted to the evidence and arguments
considered by the trial court.'" Marks v. Tenbrunsel, 910 So.
2d 1255, 1263 (Ala. 2005) (quoting Andrews v. Merritt Oil Co.,
612 So. 2d 409, 410 (Ala. 1992)). Therefore, we need not
consider
Leah,
Allen,
and
Cheryl's
arguments
concerning Berry-
Pratt's appointment or alleged personal liability for the
expenses the estate incurred as a result of this litigation.
Conclusion
Leah, Allen, and Cheryl challenge the judgment of the
circuit
court
allowing
Berry-Pratt, the
administrator of
their
deceased mother's estate, to sell real estate that their
mother owned at her death. After reviewing the relevant
authorities and the parties' arguments, it is clear that Leah,
Allen, and Cheryl have not established that the circuit court
17
1180348
erred by entering its judgment. Accordingly, that judgment is
affirmed.
AFFIRMED.
Bolin, Shaw, Wise, Bryan, Mendheim, and Stewart, JJ.,
concur.
Parker, C.J., and Sellers, J., concur in the result.
18 | June 30, 2020 |
2f4cae79-fcce-4783-ae53-963c82f072d4 | Steven King v. Dean Calvert | N/A | 1190431 | Alabama | Alabama Supreme Court | Rel: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190431
Steven King v. Dean Calvert (Appeal from Blount Circuit
Court: CV-19-900209).
SELLERS, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and 53(a)(2)(F), Ala. R. App. P.
Shaw, Wise, Stewart, and Mitchell, JJ., concur. | July 10, 2020 |
a6003482-bae0-4594-8aed-1c9ef1f2783d | Porter, et al. v. Williamson | N/A | 1180355, 1180634 | Alabama | Alabama Supreme Court | Rel: June 26, 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, 2019-2020
____________________
1180355
____________________
Donald Porter et al.
v.
Byron Porter Williamson
____________________
1180634
____________________
Byron Porter Williamson
v.
Donald Porter et al.
Appeals from Jefferson Circuit Court
(CV-13-902152)
1180355, 1180634
BRYAN, Justice.
In appeal no. 1180355, Donald Porter, Marc Porter, Porter
Capital Corporation, Porter Bridge Loan Company, Inc.,
Lowerline Corporation, CapitalPartners Leasing, Inc., and
CapitalPartners
Leasing,
LLC
(hereinafter
referred
to
collectively as "the Porter defendants"), appeal from a
judgment entered by the Jefferson Circuit Court ("the trial
court") in favor of Byron Porter Williamson in his action
seeking specific performance of a shareholders agreement that
Williamson had entered into with Donald and Marc ("the
agreement"). In appeal no. 1180634, Williamson cross-appeals
from the same judgment seeking prejudgment interest on the
full amount of the judgment.
I. Facts and Procedural History
A. Porter v. Williamson
This is the second time the parties in this case have
appeared before this Court. See Porter v. Williamson, 168 So.
3d 1215 (Ala. 2015). The relevant background and procedural
history was set forth in Porter:
"Marc Porter and Donald Porter are brothers;
they founded Porter Capital Corporation in 1991 and
thereafter established the related companies Porter
Bridge Loan Company, Inc., Lowerline Corporation,
2
1180355, 1180634
CapitalPartners Leasing, Inc., and CapitalPartners
Leasing, LLC (the business entities are hereinafter
referred to collectively as 'the Porter companies').
In 1992, the Porters hired their nephew Williamson
as an employee of the Porter companies. In 2004,
Williamson, Marc Porter, and Donald Porter entered
into a shareholders agreement that made Williamson
a 10% shareholder in Porter Capital Corporation,
Porter
Bridge
Loan
Company,
Inc.,
Lowerline
Corporation, and CapitalPartners Leasing, Inc. ('the
agreement').[1]
"On August 3, 2012, Williamson's employment as
an employee of the Porter companies was terminated.
Williamson thereafter provided written notice to the
Porter companies of his intention to retire as a
shareholder of the corporations and as a member of
the
limited-liability
company.
The
agreement
provided that under certain circumstances, including
termination of the employment of a shareholder for
cause or retirement of a shareholder, the Porter
companies were required to purchase the shares of
the terminated or retiring shareholder. Following
his termination and resignation as a shareholder of
the
corporations
and
a
member
of
the
limited-liability company, Williamson demanded that
his shares in the corporations and his interest in
the limited-liability company be purchased by the
Porter companies pursuant to the agreement. The
parties, however, were unable to agree on the value
of Williamson's shares and interest. On May 30,
2013, Williamson sued Marc Porter, Donald Porter,
and the Porter companies.
"Count I of Williamson's complaint asserted
that, pursuant
to the agreement, the Porter
1We noted in Porter that the agreement did not include
CapitalPartners Leasing, LLC, which was formed after 2004, but
that the parties treated the limited-liability company as
being included in the agreement. See Porter, 168 So. 3d at
1216 n. 1 and n. 2. The same is true in these appeals.
3
1180355, 1180634
defendants were required to purchase his shares and
interest
in
the
Porter
companies.
Williamson
requested that the court enter an order requiring
specific performance of the provisions of the
agreement
requiring
the
Porter
defendants
to
purchase his shares and interest. Count II of
Williamson's
complaint
asserted,
alternatively,
that
the agreement was due to be rescinded. Count III
sought compensatory and punitive damages for alleged
misrepresentations and suppression of material facts
by the Porter defendants. Count IV alleged that the
Porter defendants had converted money belonging to
Williamson from an investment account controlled by
the Porter companies."
168 So. 3d at 1216–17 (footnotes omitted).
The Porter defendants moved the trial court to dismiss
the action without prejudice or to stay discovery and compel
arbitration based on the terms of an arbitration provision set
forth in the agreement. The trial court denied that motion
after concluding that the arbitration provision in the
agreement contained an exception for claims seeking specific
performance of the
agreement. The Porter defendants appealed,
and the sole issue on appeal "concern[ed] the scope of the
specific-performance
exception
of
the
arbitration
provision
--
i.e., whether the
arbitration provision applies to the dispute
in question." 168 So. 3d at 1218. We held:
"In the present case, the agreement requires
that all claims arising out of the agreement shall
be arbitrated '[e]xcept for items of specific
4
1180355, 1180634
performance referred to' in Section 28 of the
agreement. Section 28 provides, in pertinent part:
"'Should any dispute arise concerning the
sale or disposition of the Securities, an
injunction may be issued restraining any
sale or disposition thereof pending the
determination of such controversy, in the
event of any controversy concerning the
purchase or sale of any such Securities,
the same shall be enforceable in a court of
equity by a decree of specific performance
or by temporary or permanent injunction or
any other legal or equitable remedy,
without the necessity of showing actual
damages or furnishing a bond or other
security.'
"(Emphasis added.) The allegations of Williamson's
complaint include the following:
"'[T]he
[Porter]
defendants
have
failed
and
refused
to
follow
the
Shareholder
Agreement
and purchase Plaintiff Williamson's shares
as set forth in the Shareholders Agreement,
even though they agreed [Williamson] has
voluntarily retired....
"'6. Accordingly, [Williamson] is entitled
under Section 28 of the Agreement to
specific performance and an injunction
requiring
[the
Porter]
Defendants
to
purchase his shares in accordance with the
Agreement.
"'7. If a jury determines the Agreement is
valid, [the Porter] Defendants are in
breach of this Agreement, and [Williamson]
prays that this Court shall enter an order
requiring
specific
performance
and
purchase
of his shares.
5
1180355, 1180634
"'....
"'9. [Williamson] prays that this Court
shall empanel a jury on all issues and
determine if the Agreement is enforceable
and, if valid, [enter] a judgment that [the
Porter] Defendants are required to buy his
shares at their fair value.'
"Williamson's
action
clearly
pertains
to
a
'controversy concerning the purchase or sale of any
... Securities.' As a result of that 'controversy,'
Williamson
seeks
'a
decree
of
specific
performance[,] ... injunction or other legal or
equitable remed[ies].' Accordingly, we hold that,
under the express and unambiguous terms of the
agreement,
Williamson's
claims
for
specific
performance and injunctive relief are not within the
scope of the arbitration provision."
168 So. 3d at 1219–20 (footnote omitted; final emphasis
added).
Thus, we affirmed "the trial court's denial of the Porter
defendants' motion to compel arbitration insofar as that
motion
related
to
Williamson's
request
for
specific
performance and injunctive relief." 168 So. 3d at 1220
(emphasis added). As to Williamson's remaining claims, the
Court "remand[ed] this case with instructions for the trial
court to determine if any of the remaining claims are due to
be dismissed," but, "[t]o the extent those claims [were] not
dismissed, we instruct[ed] the trial court to grant the Porter
6
1180355, 1180634
defendants' motion to compel arbitration with respect to
those
claims." Id.
B. On Remand After Porter v. Williamson
On July 2, 2015, the trial court entered an order
dismissing with prejudice counts II and IV of Williamson's
complaint and dismissing without prejudice count III. The
sole remaining count, count I, which sought specific
performance of the agreement, was set for a bench trial. On
remand, the trial court conducted a hearing over three days in
late July and early August 2015 at which it heard ore tenus
evidence.
The primary factual dispute between the parties was
whether, under the agreement, there was an event that
triggered the
obligation of
Porter
Capital
Corporation,
Porter
Bridge
Loan
Company,
Inc.,
Lowerline
Corporation,
CapitalPartners Leasing, Inc., and CapitalPartners Leasing,
LLC (hereinafter referred to collectively as "the Porter
companies"), to purchase Williamson's 10% interest in the
Porter companies. The evidence indicated that, on August 3,
2012, Donald and Marc notified Williamson that they were
terminating his
employment with
the
Porter
companies
effective
7
1180355, 1180634
December 31, 2012; Williamson was given no reason for his
termination
from
the
Porter
companies.
Williamson
communicated his desire to sell his interest in the Porter
companies to Marc and Donald. The parties engaged in
discussions regarding the value of Williamson's shares, and
Donald invited Williamson to make a proposal as to the value
of his interest in the Porter companies. Williamson hired an
evaluator who determined the value of Williamson's shares in
the Porter companies, but Donald and Marc rejected that
valuation.
The parties could not agree on which part of the
agreement –- if any –- controlled the sale of Williamson's
shares of the Porter companies to the remaining shareholders,
i.e., Donald and Marc. The agreement provided that the Porter
companies "shall ... acquire" or "shall ... purchase" the
securities of a shareholder in the event of the shareholder's
death (paragraph 8), retirement (paragraph 9), voluntary
termination
of
employment
with
the
Porter
companies (paragraph
10), permanent disability (paragraph 11), or termination of
employment of the shareholder for cause (paragraph 12). It is
undisputed between the parties that the agreement does not
8
1180355, 1180634
require the Porter companies to purchase the shares of a
shareholder who, like Williamson, was terminated without
cause.2 Thus, Donald and Marc insisted that, pursuant to the
terms of the agreement, the Porter companies were obligated to
purchase Williamson's shares in the Porter companies only if
Williamson was willing to "travel" under paragraph 12 of the
agreement, i.e., termination for cause. However, unlike other
buyout provisions in the agreement, paragraph 12 provided
significantly less favorable buyout terms for the departing
shareholder.
Regardless of the reason for the Porter companies'
obligation to purchase or acquire a departing shareholder's
shares in the companies, the agreement defined how the value
of the shares would be determined. The agreement defines
"share value" as "the value (as determined in accordance
herewith) of each Corporation divided by the number of shares
outstanding in each such Corporation upon the occurrence of a
2"Cause" is defined in the agreement as when "a
Shareholder commits any of the following acts: (i) disloyalty
or dishonesty which results or is intended to result in
personal enrichment to the Shareholder at the expense of any
of the Corporations or (ii) fraudulent conduct in connection
with the business or affairs of any Corporation."
9
1180355, 1180634
Triggering Event."3 (Emphasis added.) In the definition of
"share value," the agreement further provides:
"For purposes of determining the value of each
Corporation,
the
current
accountant
for
the
Corporation shall select an independent evaluator
('the Evaluator') acceptable to the Shareholders.
The Evaluator shall determine the value of each
Corporation by using the evaluation methods set
forth on Exhibit 'C' attached hereto which are most
applicable for the Corporation being evaluated and
then averaging the result obtained to determine the
value of each Corporation."
(Emphasis added.) Exhibit C to the agreement, which is labeled
"Evaluation Methods," has two numbered blanks, and the first
blank is followed by a parenthetical that states: "(Get from
Shank)." It was undisputed that the reference to "Shank" was
a reference to the Porter companies' long-time accountant,
John Shank. Exhibit C does not actually contain any
evaluation methods –- just the parenthetical indicating that
the evaluation methods should be "gotten" from Shank. It was
undisputed that Exhibit C to the agreement was in this form
3The
agreement defines
a
"Triggering Event"
as
"the
death,
permanent disability, retirement or termination of the
employment with the Corporations of a Shareholder." As noted
above, however, the parties agreed that a termination without
cause was not an event that triggered the Porter companies'
obligation
to
purchase
the
shares
of
the
departing
shareholder.
10
1180355, 1180634
when the parties signed the agreement in 2004 and that it had
not been changed at any point thereafter.
In late November 2012, Donald sent Williamson an e-mail
stating that Shank would provide the shareholders with the
names of three evaluators who Williamson could choose from to
determine share value under the agreement. In early December
2012, Donald, Marc, and Williamson tentatively agreed to have
the evaluation performed by William Dameworth, one of the
evaluators
recommended
by
Shank,
subject
to
further
discussion
concerning the valuation method to be used. However, Donald
and Marc refused to engage Dameworth to value Williamson's
shares unless Williamson agreed that paragraph 12 of the
agreement controlled the buyout; Williamson, however, refused
to accept paragraph 12 -- and its less favorable buyout terms
-- as the operative provision of the agreement because his
employment was not terminated for cause.
Shortly thereafter, on December 11, 2012, Williamson
notified Donald and Marc that he was retiring "as a
shareholder," effective
February
3,
2013.
Williamson informed
Donald and Marc that, because he was retiring as a
shareholder, paragraph 9 of the agreement controlled the
11
1180355, 1180634
Porter
companies' obligation
to
purchase
his
shares.
Paragraph
9 provides:
"9. Retirement of a Shareholder. In the event of
the Retirement of the Shareholder, after such
shareholder has given at least six months notice to
the Corporations and the remaining Shareholders of
his Retirement, the Corporations shall within ninety
(90) days after the date of such retirement of the
Shareholder,
acquire
the
Securities
from
the
Shareholder at a price equal to the Share Value for
the Securities determined as of the end of the
fiscal year immediately preceding the date of
retirement of the Shareholder times the number of
shares
held
by
such
Shareholder,
plus
the
undistributed profit or loss of each Corporation
since the end of such fiscal year."
Although the buyout terms in paragraph 9 and paragraph 12
of the agreement differ, both paragraph 9 and paragraph 12
require a determination of the "Share Value for the Securities
determined as of the end of the fiscal year immediately
preceding the date of such termination of employment [or
retirement of the Shareholder] times the number of shares held
by such Shareholder."
Shank testified that, in fall 2012, he provided the names
of three individuals who could serve as evaluators pursuant to
the agreement. Shank further testified that, in February 2013,
while the parties were still discussing how to value
Williamson's interest in
the
Porter companies, he e-mailed the
12
1180355, 1180634
attorney for the Porter companies and advised that "share
value" pursuant to the agreement should be determined using
the fair-market-value standard of valuation. In his e-mail,
Shank further stated that "[t]he Evaluator shall use his
education, skill, training and expertise to determine the
appropriate weight to be given to the following three
evaluation methods so as to determine the fair market value."
Shank then provided three evaluation methods that the
evaluator was to use to determine the fair market value of the
Porter companies. Williamson was not included in this e-mail,
and it is unclear when he learned that Shank proposed that
share value be determined based on the fair-market-value
standard of valuation.
Donald and Marc did not believe that Williamson could
retire "as a Shareholder" after his employment with the Porter
companies had already been terminated, and they maintained
that the Porter companies were required to purchase
Williamson's interest in the companies only if Williamson was
willing to travel under paragraph 12 of the agreement.
Sometime after Williamson filed this action in May 2013,
Donald and Marc engaged Dameworth, without Williamson's
13
1180355, 1180634
knowledge, to conduct an evaluation of Williamson's shares in
the Porter companies. However, although Dameworth applied the
fair-market-value standard endorsed by Shank, Dameworth
completed only a draft report that was a "calculation of
value" of the Porter companies rather than a full appraisal of
the value of the Porter companies. The Porter defendants did
not view Dameworth's draft report as a final, accurate
representation of the value of the Porter companies.
At the hearing, over the Porter defendants' repeated
objections, the trial court allowed Williamson to present
expert testimony concerning the value of his shares from an
evaluator independently selected by Williamson. The Porter
defendants argued that Williamson's expert was not a mutually
acceptable evaluator selected by Shank, as required by the
agreement, and that he did not apply the valuation methods
required by the agreement -- i.e., the methods proposed by
Shank in his February 2013 e-mail.
Goodloe White, Williamson's expert witness, testified
that he determined the value of Williamson's interest in the
Porter companies using the fair-value standard of valuation,
rather than the fair-market-value standard that was endorsed
14
1180355, 1180634
by Shank. White testified that he believed that fair value was
the "more appropriate" standard, that it was "more applicable
here as defined under the ... agreement," and that,
irrespective of the valuation methods provided by
Shank, White
did not view Shank's determination of the appropriate
valuation methods "as part of the agreement."
The Porter defendants moved for a judgment as a matter of
law at the close of Williamson's evidence and again at the
close of all the evidence. The Porter defendants argued that
White's testimony should not be considered because it had no
bearing on Williamson's claim for specific performance, which
was the only claim this Court recognized as being properly
before the trial court on remand from our decision in Porter.
They argued that, because Williamson sought only specific
performance of the agreement, and did not bring a breach-of-
contract claim, if the trial court found that there had been
a "triggering event" that required the Porter companies to
purchase Williamson's interest in the Porter companies, the
trial court could only order the Porter defendants to perform
under the terms of the agreement, which, in this case, would
require Shank to select an evaluator "acceptable" to the
15
1180355, 1180634
parties who would then value Williamson's interest in the
Porter companies based on the valuation methods provided by
Shank. Because White was not selected pursuant to the terms
of the agreement –- that is, he was not "an independent
evaluator ... acceptable to the Shareholders" -- and because
he had not used the valuation methods proposed by Shank –-
instead using fair value and not fair market value -- the
Porter defendants argued that the trial court could not
consider
White's
testimony regarding the
value
of
Williamson's
interest in the Porter companies. The trial court denied the
motions.
On December 26, 2018, more than three years after the
conclusion of the hearing, the trial court entered a judgment
holding that Williamson was entitled to specific performance
of the agreement. Specifically, the trial court found that
Williamson gave valid notice of his retirement on December 11,
2012, and that his retirement, which became effective six
months later, was a "triggering event" under the agreement
that
"legally
obligated
[the
Porter
companies] to
specifically
perform the purchase of all of [Williamson's] shares, as well
as comply with other relevant provisions of the agreement, on
16
1180355, 1180634
or before September 9, 2013." The trial court further held
that the agreement, specifically Exhibit C, did not contain
any evaluation methods; that the evaluation method set forth
by Shank in February 2013 was "not the 'most applicable for
the Corporation being evaluated'";4 and that the fair-value
standard, rather than the fair-market-value standard, should
be applied to determine the value of Williamson's interest in
the Porter companies. Thus, the trial court accepted White's
testimony
concerning
the
"fair
value"
of
Williamson's
interest
in the Porter companies and held that Williamson was entitled
to $2,554,969.30 from the Porter defendants pursuant to the
buyout provisions for a retiring shareholder under paragraph
9 of the agreement, which included an award of undistributed
profits.
The Porter defendants filed a postjudgment motion,
arguing, among other things, that the trial court "went
outside the long-established parameters of the specific
performance equitable remedy ... by ... purporting to
4This language is taken from the definition of "share
value" in the agreement. This part of the definition allowed
the evaluator to consider the valuation methods provided by
Shank and to apply the valuation method "most applicable for
the Corporations being evaluated."
17
1180355, 1180634
determine the value of Williamson's shares in the Porter
companies, disregarding the provisions of the Shareholders'
agreement concerning share valuation, and entering a money
damage[s] award." Williamson also filed a
postjudgment motion
seeking an award of prejudgment interest. The trial court
awarded Williamson prejudgment interest on the part of the
judgment that represented his undistributed profits, but the
parties' postjudgment motions were otherwise denied. The
Porter defendants appealed, and Williamson filed a cross-
appeal.
II. Standard of Review
The trial court's findings of fact, insofar as they are
based on evidence presented during the hearing, are presumed
correct and will not be overturned unless they are shown to be
plainly or palpably wrong. See Ex parte Powell, 763 So. 2d
230, 232 (Ala. 1999) ("When evidence is presented to a trial
court sitting without a jury, the general rule is that its
findings will be presumed correct unless there is plain and
palpable error.").
However, a presumption of
correctness does
not attach to the trial court's legal conclusions, which are
reviewed de novo. See Van Hoof v. Van Hoof, 997 So. 2d 278,
18
1180355, 1180634
286 (Ala. 2007) ("The presumption of correctness accorded a
trial court's judgment following a bench trial does not extend
to its decisions on questions of law. Instead, this Court
reviews such rulings on questions of law de novo.").
III. Analysis
A. Appeal No. 1180355
The question presented for this Court's review is whether
the trial court exceeded the scope of Williamson's request for
specific performance of the agreement by awarding Williamson
a monetary sum representing the value of his interest in the
Porter companies based on a valuation process that differed
from the valuation process set forth in the agreement. In this
appeal, the Porter defendants do not challenge the trial
court's determination that Williamson's retirement was a
"triggering event" under the agreement that required the
Porter defendants to "acquire" Williamson's shares under
paragraph 9 of the agreement. They argue only that the trial
court awarded relief beyond the scope of a request for
specific performance of the agreement.
19
1180355, 1180634
"The remedy of specific performance is equitable in
nature ...." Wilson v. Thomason, 406 So. 2d 871, 872 (Ala.
1981). Specific performance is
"[t]he rendering, as nearly as practicable, of a
promised performance through a judgment or decree;
specif[ically], a court-ordered remedy that requires
precise fulfillment of a legal or contractual
obligation when monetary damages are inappropriate
or inadequate, as when the sale of real estate or a
rare article is involved."
Black's Law Dictionary 1686 (11th ed. 2019). In other words,
"[s]pecific performance means 'performance specifically as
agreed.'" 71 Am. Jur. 2d Specific Performance § 1 (2012).
"The purpose of the remedy is to give the one who seeks it the
benefit of the contract in specie by compelling the other
party to the contract to do what he or she agreed to do --
perform the contract on the precise terms agreed upon by the
parties." Id. (Emphasis added.)
"It is also a principle of equity jurisprudence
that, before a court of chancery will specifically
enforce a contract, it must be made to clearly
appear to the court that it is thereby enforcing the
contract which the parties made .... The court will
not attempt to make a contract for the parties, and
enforce it, even though it be one which the parties
might and ought to have made."
Gachet v. Morton, 181 Ala. 179, 182, 61 So. 817, 818
(1913)(emphasis added). "[T]he courts, under guise of
20
1180355, 1180634
specific performance, cannot do violence to the contract
itself, and make a contract for the parties." City of
Andalusia v. Alabama Utils. Co., 222 Ala. 689, 693, 133 So.
899, 902 (1931).
"This court has frequently held that specific
performance may be ordered where the contract is
just, fair and reasonable, and reasonably certain in
respect to the subject matter, terms and founded on
a valuable consideration. Alabama Central Railroad
Co. v. Long, 158 Ala. 301, 48 So. 363 (1909);
Carlisle v. Carlisle, 77 Ala. 339 (1884); Moon's
Adm'r v. Crowder, 72 Ala. 79 (1882)."
Montgomery v. Peddy, 355 So. 2d 698, 700 (Ala. 1978). "In
order for a complainant to procure the specific performance of
a contract through a court of equity, he must show a contract
that
is
specific, certain
and
complete."
Citronelle
Turpentine
Co. v. Buhlig, 184 Ala. 404, 406, 63 So. 951, 951 (1913).
If Williamson's request for specific performance of the
agreement is about compelling the Porter defendants "to do
what [they] agreed to do," 71 Am. Jur. 2d Specific Performance
§ 1, we must first determine what the parties actually "agreed
to do" after a shareholder provided notice of his retirement
and triggered the Porter companies' obligation to acquire the
retiring shareholder's interest in the Porter companies.
Pursuant to paragraph 9 of the agreement, upon notice of a
21
1180355, 1180634
shareholder's retirement, the Porter companies were required
to "acquire the Securities from the Shareholder at a price
equal to Share Value for the Securities determined as of the
end of the fiscal year immediately preceding the date of
retirement of the Shareholder." Understandably, the parties
did not agree on a specific "share value" of each share in the
Porter companies, but they did agree that "share value" would
be determined in a particular way: (1) "the current accountant
for the Corporation shall select an independent evaluator ...
acceptable
to
the
Shareholders";
and
(2),
after
an
"acceptable" evaluator was identified, "[t]he Evaluator shall
determine the value of each Corporation by using the
evaluation methods set forth on Exhibit 'C' ... which are most
applicable for the Corporation being evaluated and then
averaging the results obtained." However, as noted above,
Exhibit C does not contain any evaluation methods; Exhibit C
includes two blanks with the following parenthetical: "(Get
from Shank.)" The parties dispute whether Exhibit C expresses
any agreement of the parties.
The Porter defendants argue that the fact that no
evaluation methods were specifically included in Exhibit C is
22
1180355, 1180634
immaterial because, they say, Exhibit C clearly demonstrates
that the parties agreed that the evaluation methods for
determining share value would be provided by Shank. Thus,
according to the Porter defendants, for purposes of
determining share value, the parties agreed (1) that Shank
"shall" select an evaluator "acceptable" by the shareholders
and (2) that the agreed-upon evaluator "shall" determine share
value using the evaluation methods provided by Shank. They
further argue that, instead of requiring performance of these
clear terms, the trial court (1) accepted valuation evidence
from an evaluator independently selected by Williamson and
(2)
rejected the valuation methods provided by Shank in favor of
a valuation method that the court found was the most
appropriate method of valuing the Porter companies. The
Porter defendants argue that, by taking these actions, the
trial court, under the guise of ordering specific performance
of
the
agreement,
actually
enforced
"a
new,
judicially-crafted
contract that is at odds with the contract actually agreed to
by the parties." Porter defendants' brief at 15.
Williamson maintains that the trial court's actions were
acceptable for several reasons. First, he contends that the
23
1180355, 1180634
trial court found that the parties did not agree to any
particular evaluation method because they never filled in the
blanks in Exhibit C and that, therefore, the trial court was
within its discretion to supply an evaluation method based on
the evidence presented at trial. In its judgment, the trial
court, citing Murphree v. Henson, 289 Ala. 340, 267 So. 2d 414
(1972), stated that, "[i]f a term in the contract is
considered too indefinite to permit specific performance, it
may later acquire a more definite meaning and become
enforceable based on the parties' subsequent acts, words, or
conduct." Citing the facts that Shank did not provide the
names of any evaluators or evaluation methods until after a
dispute arose between the parties concerning the value of
Williamson's shares, that Shank was not an evaluation expert,
and that Shank selected the fair-market-value standard of
valuation because Marc told Shank to do so, the trial court
concluded that the valuation method proposed by Shank was "not
the 'most applicable for the Corporations being evaluated.'"
The trial court then looked to the agreement itself and
concluded that "share value" was the equivalent of fair value,
not fair market value, and held that the fair-value standard
24
1180355, 1180634
of valuation proposed by Williamson should be applied to
determine the value of Williamson's shares in the Porter
companies.
The Porter defendants argue that the trial court's
reliance on Murphree was misplaced and that the agreement,
including the method therein for determining share value, was
sufficiently definite to support specific enforcement of the
actual terms of the agreement, including the provision in
Exhibit C that the evaluation methods would be provided by
Shank. In Murphree, the plaintiff, Henson, sought specific
performance of an oral contract between himself and Murphree
for the conveyance of approximately 120 acres of land.
Murphree, the owner of the land, argued that the specific
terms of the agreement –- the land to be conveyed, the price
to be paid, and the time for delivery of the deed -- were too
vague for the agreement to be enforced through specific
performance. The Court noted that the Statute of Frauds
required such agreements to be in writing, "'[u]nless the
purchase money, or a portion thereof be paid, and the
purchaser be put in possession of the land by the seller.'"
Murphree, 289 Ala. at 348, 267 So. 2d at 421 (emphasis
25
1180355, 1180634
omitted) (quoting the Statute of Frauds found in former § 20-
3-5, Ala. Code 1940). The Court stated:
"It is well established by our decisions that to
authorize the specific performance of an agreement
to sell land, all the terms of the agreement must
have
been
agreed
upon,
leaving
nothing
for
negotiation. Alba v. Strong, 94 Ala. 163, 10 So. 242
[(1891)]; Tensaw Land and Timber Co. v. Covington,
278 Ala. 181, 176 So. 2d 875 [(1965)].
"However, as stated in 17 Am. Jur. 2d,
Contracts, Sec. 78, p. 418:
"'A contract which is originally and
inherently
too
indefinite
may
later
acquire
precision and become enforceable by virtue
of the subsequent acts, words and conduct
of the parties. ... Thus, the objection of
indefiniteness
may
be
obviated
by
performance
and
acceptance
of
performance.'"
289 Ala. at 348, 267 So. 2d at 421 (emphasis added). The
Court in Murphree held that the evidence of the parties'
subsequent acts, words, and conduct –- including that Murphree
had put Henson in possession of the land at issue after
Murphree promised to convey that land to Henson in exchange
for Henson's work on other land Murphree owned, which Henson
had performed -- was sufficient to remove any uncertainties in
the oral agreement to convey the land at issue.
26
1180355, 1180634
We agree with the Porter defendants that the trial
court's reliance on Murphree was misplaced. We cannot agree
that the method of determining share value in the agreement
was so unclear or indefinite that it could not be specifically
enforced. As set forth above, the agreement provided a two-
step process to determine share value. Regarding the first
step, there is no indication that any of the parties believed
that the part of the agreement requiring an evaluator to be
selected by Shank that was acceptable to the shareholders was
indefinite or otherwise unenforceable. Yet, the trial court
ignored that clear and specific part of the agreement when it
accepted the valuation provided by an evaluator independently
selected by Williamson. As to the second step, we must
conclude, as a matter of law, that the agreement clearly
expressed the parties' agreement that Shank would provide the
evaluation methods that would be used by the independent
evaluator acceptable to the shareholders to determine share
value. The evidence reflected that Shank had been the
accountant for the Porter companies since 1992 or 1993, and,
given his knowledge and familiarity with the
Porter companies,
we see no reason why the parties could not have agreed to
27
1180355, 1180634
allow Shank to provide the evaluation methods to be used by an
independent evaluator for purposes of determining share
value.5 Thus, the rule from Murphree, which the trial court
applied in an attempt to make a purportedly indefinite term of
the agreement definite, was unnecessary.6
Williamson also contends that, "[i]f the blanks in
Exhibit C are viewed as missing terms, ... the trial court can
supply a reasonable term." Williamson's brief at 43. In
5Williamson contends that taking this holding "to its
logical conclusion, if Shank proposed that the
methodology for
valuing the [Porter companies by] valuing them at $0,
Williamson would be bound to follow said methodology."
Williamson's speculation about what Shank "could do" is not a
convincing basis for ignoring, in an action for specific
performance, the clear intent of the parties to obtain
evaluation methods from Shank.
6Even if we concluded that the agreement did not include
an evaluation method and, therefore, that that part of the
agreement was indefinite, and even if we determined that the
rule from Murphree could be applied in that circumstance to
make that purportedly indefinite part of the agreement
definite and enforceable, the trial court still incorrectly
applied the rule in Murphree to the facts in this case. The
facts the trial court relied on do not support a conclusion
that there was "performance and acceptance of performance" so
that the parties' conduct demonstrated that they agreed to the
terms that were enforced by the trial court, i.e., there was
no evidence indicating that by their conduct the parties
indicated that they had agreed that share value would be
determined
by
an
evaluator
independently
selected
by
Williamson who applied the fair-value standard to determine
share value.
28
1180355, 1180634
support of this argument, Williamson relies upon § 204 of the
Restatement (Second) Contracts, which provides: "When the
parties to a bargain sufficiently defined to be a contract
have not agreed with respect to a term which is essential to
a determination of their rights and duties, a term which is
reasonable in the circumstances is supplied by the court."
This Court has never expressly endorsed § 204 of the
Restatement. Regardless, for the reasons set forth above, §
204 of the Restatement would not have any application in this
case because we conclude that the parties agreed on all terms
essential to the determination of their rights and duties
under the agreement. Although Exhibit C included blanks
instead of any specific evaluation methods, the
parties signed
the agreement, which included Exhibit C, with the intent that
evaluation methods would be obtained from Shank. The
shareholders were apparently content to allow Shank to choose
the evaluation methods, and we see no reason why, in an action
for specific performance, that part of the agreement should be
ignored.
Confronted with the clear conclusion that on remand the
trial court did not order specific performance of the actual
29
1180355, 1180634
terms of the agreement, Williamson argues that "the trial
court was not rigidly bound by the abstract doctrine of
'specific performance.'" Williamson's brief at 27. He
contends that paragraph 28 of the agreement, which was the
subject of our decision in Porter, supra, "expressly provides
for broader remedies." Williamson's brief at 27. Williamson
relies on language in paragraph 28 of the agreement, which
excepts certain claims from arbitration: "[I]n the event of
any controversy concerning the purchase or sale of any such
Securities, the same shall be enforceable in a court of equity
by a decree of specific performance or by temporary or
permanent injunction or any other legal or equitable remedy
...." (Emphasis added.) Thus, Williamson argues, because
paragraph 28 allows for "other legal and
equitable remed[ies]"
in addition to specific performance in addressing a
controversy over the sale of securities under the agreement,
the trial court was not bound to provide a remedy within only
the confines of a specific-performance claim.7
7The trial court, in its final judgment in this case,
noted the existence of the "any other legal or equitable
remedy" language from paragraph 28 and stated that this Court
"emphasized" that phrase from paragraph 28 in Porter, supra.
At one point in Porter, we emphasized the entire portion of
paragraph
28
that
was
subject
to
application
and
30
1180355, 1180634
Although Williamson attempts to construe our decision in
Porter as "expressly acknowledging" that the trial court was
not bound to provide a remedy within only the confines of a
specific-performance claim, nothing in Porter supports that
contention. Indeed, the actual holding in Porter was simply
that Williamson's claims for specific performance and
injunctive relief were properly before the trial court. See
Porter, 168 So. 3d at 1220 ("[W]e hold that, under the express
and unambiguous terms of the agreement, Williamson's claims
for specific performance and injunctive relief are not within
the scope of the arbitration provision."(footnote omitted)).
Regardless of whether paragraph 28 of the agreement may
allow for legal and equitable remedies beyond specific
performance of the agreement and an injunction, Williamson is
bound by the claims he actually brought against the Porter
defendants. As we held in Porter, those claims sought
specific performance of the agreement and an injunction.
Williamson did not attempt to amend his complaint on remand
interpretation in that decision, including the phrase "any
other legal or equitable remedy." However, no part of our
decision in Porter "emphasized" the language in question any
more than any other part of paragraph 28. Regardless, the
trial court granted Williamson's request for specific
performance, not "any other legal or equitable remedy."
31
1180355, 1180634
after the decision in Porter, nor is there any indication in
the record that Williamson's complaint was amended by the
express or implied consent of the parties. See Rule 15(b),
Ala. R. Civ. P. Accordingly, because Williamson had pending
before the trial court only a claim for specific performance
of the agreement and an injunction, the trial court was not at
liberty to provide relief pursuant to "any other legal or
equitable remedy" that may have been available to Williamson
under paragraph 28 of the agreement.
Finally, Williamson argues that, even if "strict
compliance" with the agreement is required, the Porter
defendants "waived their right to enforce strict compliance"
because, as the trial court found, the Porter defendants
initially indicated a willingness to operate outside the
terms
of the agreement when Donald asked Williamson to make a
proposal for the value of his shares, Shank selected proposed
evaluators and a method of valuation only after a dispute
arose between the parties, and Shank's method of valuation was
not "the most applicable for the Corporation being evaluated,"
as determined by the trial court. See Silverman v. Charmac,
Inc., 414 So. 2d 892, 895 (Ala. 1982) ("[A] party's waiver of
32
1180355, 1180634
contractual provisions may be implied from the acts and
circumstances surrounding the performance of the contract.").
However, neither the trial court nor Williamson cites any
evidence indicating that the Porter defendants, knowing that
paragraph 9 of the agreement applied, demonstrated a
willingness to deviate from the process for determining share
value as set forth in the agreement. There was no "waiver" on
the part of the Porter defendants.
Accordingly, we conclude that the trial court's judgment,
insofar as it determined share value using an evaluation
process that was inconsistent with the evaluation process set
forth in the agreement, must be reversed. The case is
remanded to the trial court for further proceedings consistent
with this opinion.
B. Appeal No. 1180634
In appeal no. 1180634, Williamson filed a cross-appeal
challenging part of the trial court's judgment. In his brief
on appeal, Williamson makes no challenge to the trial court's
judgment and asserts that he "voluntarily waives [his] cross-
appeal." Williamson's brief at iii. We construe this
33
1180355, 1180634
statement as a voluntary dismissal of Williamson's appeal,
and, therefore, we dismiss the cross-appeal.
Conclusion
For the reasons set forth above, in appeal no. 1180355,
the trial court's judgment is reversed, insofar as it
determined share value using an evaluation process that was
inconsistent with the evaluation process set forth in the
agreement, and the case is remanded for further proceedings
consistent with this opinion. In case no. 1180634, the cross-
appeal is dismissed.
1180355 –- REVERSED AND REMANDED.
1180634 –- APPEAL DISMISSED.
Parker, C.J., and Bolin, Wise, Stewart, and Mitchell,
JJ., concur.
Sellers, J., recuses himself.
34 | June 26, 2020 |
a0b69992-2217-4846-a1f1-a06a0882f736 | Ex parte A.B. | N/A | 1190666 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190666
Ex parte A.B. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: A.B. v. A.P. and J.P.) (Blount Juvenile Court: JU-18-55.02; Civil Appeals : 2180963).
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 July 10, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
52697b9d-64c9-4499-ba5c-fd12e9caf77e | Ex parte Lowndes County Commission. | N/A | 1190686 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190686
Ex parte Lowndes County Commission. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Aaron McCall v. Lowndes County Commission)
(Lowndes Circuit Court: CV-13-900014; Civil Appeals : 2180781).
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 July 10, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
3d3a1968-8b2e-49c2-8009-12b1092fe163 | Ex parte L.E.P. | N/A | 1190657 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190657
Ex parte L.E.P. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: L.E.P. v. Houston County Department of Human Resources) (Houston
Juvenile Court: JU-17-502.01; Civil Appeals : 2181067).
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 July 10, 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
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