id
stringlengths 36
36
| title
stringlengths 1
243k
| citation
stringlengths 3
718
| docket_number
stringlengths 1
304
⌀ | state
stringclasses 24
values | issuer
stringclasses 24
values | document
stringlengths 0
1.94M
| date
stringlengths 3
18
|
|---|---|---|---|---|---|---|---|
a07c5d25-ee98-4b16-ac09-864bf06e4959 | Manson Fisher-Bey v. Valerie Knapp | N/A | 1190031 | Alabama | Alabama Supreme Court | Rel: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190031
Manson Fisher-Bey v. Valerie Knapp (Appeal from Montgomery
Circuit Court: CV-19-165).
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 |
972c9380-94dd-481f-b0a3-b07fbf2c20f3 | Ex parte Victor Claye Barnes. | N/A | 1190630 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190630
Ex parte Victor Claye Barnes. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Victor Claye Barnes v. State of Alabama) (Mobile Circuit Court:
CC-17-371.60; CC-17-396.60; Criminal Appeals : CR-19-0036).
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 |
cc13b49f-d2d7-4fdd-a9ca-62234f63618d | Veitch v. Friday | N/A | 1180152 | 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
____________________
1180152
____________________
William G. Veitch
v.
Sherri C. Friday, Acting Chief Election Official of
Jefferson County
Appeal from Jefferson Circuit Court
(CV-18-901519)
MITCHELL, Justice.
William G. Veitch was a Republican candidate in 2018 for
District Attorney of the 10th Judicial Circuit ("Jefferson
County D.A.") and a resident of the area of Jefferson County
1180152
known as the Bessemer Cutoff. When he went to cast his vote
in the Republican primary, he was not able to vote for the
very office for which he was running. In fact, none of his
neighbors in the Bessemer Cutoff were. Because of a local law
enacted in 1953, residents of the Bessemer Cutoff do not
participate in primary elections for Jefferson County D.A.
Veitch challenged that law before the 2018 primary, and he
continues to maintain that it violates the United States
Constitution. The trial court entered a judgment against him.
We reverse that judgment.
Facts and Procedural History
Jefferson County constitutes the 10th Judicial Circuit,
which consists of two divisions -- the Birmingham Division,
anchored by the civil and criminal courthouses in Birmingham,
and the Bessemer Division, anchored by the courthouse in
Bessemer. The portion of Jefferson County covered by the
jurisdiction of the Bessemer Division is often referred to as
the Bessemer Cutoff. Each division has its own set of
officers, including district attorneys. So in addition to the
Jefferson County D.A., who sits in the Birmingham Division,
there is an elected Deputy District Attorney of the Tenth
2
1180152
Judicial Circuit, Bessemer Division ("Bessemer Division
D.A."). The Bessemer Division D.A. is variously referred to
in the Alabama Code as a "Deputy District Attorney," § 45-37-
82, Ala. Code 1975, or an "elected assistant district
attorney," § 45-37-82.01, Ala. Code 1975.
Voters in the Bessemer Cutoff vote for both the Bessemer
Division D.A. and the Jefferson County D.A. in the general
election. But, as provided by a local law enacted in 1953,
those voters are not permitted to vote for the Jefferson
County D.A. (referred to in 1953 as the "circuit solicitor")
in the primary election:
"Section
1:
That
candidates
in
primary
elections
for nomination for Circuit Solicitor of the Tenth
Judicial Circuit of Alabama shall be placed upon the
ballots in such primary elections only in those
precincts over which the Circuit Court holding at
Birmingham, Alabama, has jurisdiction; that is to
say, candidates for nomination in such primary
elections for Circuit Solicitor of the Tenth
Judicial Circuit of Alabama shall run and shall be
placed upon the ballots used in such primaries only
in those precincts which are within the jurisdiction
of said Circuit Court holding at Birmingham,
Alabama."
Act No. 138, Ala. Acts 1953 ("Act No. 138").
In 2018, Veitch ran for Jefferson County D.A. as a
Republican. He was a resident of the Bessemer Cutoff, and he
3
1180152
had previously served as the Bessemer Division D.A. Because
of Act No. 138, voters in the Bessemer Cutoff, including
Veitch's former constituents and Veitch himself, could not
vote for him (or anyone else running for Jefferson County
D.A.) in the 2018 primary election.
On April 13, 2018, Veitch filed a petition in the
Jefferson Circuit Court asking for a judgment declaring Act
No. 138 unconstitutional and for a writ of mandamus directing
the Jefferson County probate judge to include the candidates
for Jefferson County D.A. on primary ballots in the Bessemer
Cutoff.1 On April 20, 2018, the trial court dismissed
Veitch's action for lack of subject-matter jurisdiction and,
1Veitch's petition named Jefferson County Probate Judge
Alan King, who was the Chief of the Jefferson County Election
Commission, as the defendant. Because Judge King was running
for reelection, retired Circuit Judge Scott Vowell was
subsequently appointed as the acting Chief of the Jefferson
County Election Commission. Vowell was substituted as the
defendant in accordance with Rule 25(d), Ala. R. Civ. P.
Following the election, Judge King reassumed his position as
Chief of the Jefferson County Election Commission until his
retirement effective June 1, 2020. The Jefferson County
Attorney, who represents the appellee, has certified that
Jefferson County Probate Judge Sherri C. Friday is currently
"acting Chief Election Official of Jefferson County," and the
Court has substituted her as the appellee pursuant to Rule
43(b), Ala. R. App. P. Because Judge Vowell, not Judge
Friday, filed the appellee's brief and various appellate
motions, we refer to the appellee as "the election official"
in this opinion.
4
1180152
alternatively, based on the doctrine of laches. On June 1,
2018, four days before the primary, this Court reversed the
trial court's judgment and remanded the case for further
proceedings. Veitch v. Vowell, 266 So. 3d 678 (Ala. 2018).
On June 5, 2018, Mike Anderton defeated Veitch in the
Republican primary for Jefferson County D.A. No voters in the
Bessemer Cutoff were permitted to cast ballots in that race.
On remand, which took place after the primary, the trial
court considered Veitch's arguments on the merits and, on
September 28, 2018, once again dismissed the case. It
concluded that Act No. 138 was not unconstitutional because it
was rationally related to the division of power between the
Birmingham Division and the Bessemer Division of Jefferson
County, which the trial court considered to be a legitimate
legislative goal. Veitch appealed.
Following Veitch's appeal and the conclusion of the
general election, in which no Republican candidate for any
county-wide office in Jefferson County was elected, the
election official, on December 5, 2018, filed with this Court
a motion to dismiss the appeal as moot.
5
1180152
Standard of Review
Veitch argues that Act No. 138 is unconstitutional. We
review constitutional challenges to legislative enactments de
novo. State ex rel. King v. Morton, 955 So. 2d 1012, 1017
(Ala. 2006) (citing Richards v. Izzi, 819 So. 2d 25, 29 n.3
(Ala. 2001)).
Analysis
As a preliminary matter, and in light of the election
official's pending motion to dismiss this appeal, we first
consider
the
election
official's argument
that
Veitch's
appeal
has been mooted by the conclusion of the 2018 primary and
general elections. After concluding that the appeal is not
moot, we consider the merits, which requires us to answer two
questions: Does the Jefferson County D.A. have power in the
Bessemer Cutoff, and, if so, does Act No. 138 pass
constitutional muster?
A. Veitch's Appeal Is Not Moot
Mootness is a jurisdictional issue -- this Court cannot
consider a moot case. Swindle v. Remington, 291 So. 3d 439,
453 (Ala. 2019). "'A moot case or question is a case or
question in or on which there is no real controversy; a case
6
1180152
which seeks to determine an abstract question which does not
rest on existing facts or rights, or involve conflicting
rights so far as plaintiff is concerned.'" Case v. Alabama
State Bar, 939 So. 2d 881, 884 (Ala. 2006) (quoting American
Fed'n of State, Cty. & Mun. Emps. v. Dawkins, 268 Ala. 13, 18,
104 So. 2d 827, 830–31 (1958)). Under general principles of
mootness, we might be compelled to dismiss Veitch's appeal;
but different principles apply in cases involving elections.
Alabama law recognizes an exception to the mootness
doctrine for questions capable of repetition but evading
review:
"The capable-of-repetition-but-evading-review
exception has been applied in contexts that
generally involve a significant issue that cannot be
addressed by a reviewing court because of some
intervening factual circumstance, most often that
the issue will be resolved by the passage of a
relatively brief period of time. See, e.g., ...
Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493, 23
L.Ed.2d 1 (1969) (involving challenges to election
procedures after the completion of the election);
and [State ex rel.] Kernells [v. Ezell, 291 Ala.
440, 282 So. 2d 266 (1973)] (same)."
McCoo v. State, 921 So. 2d 450, 458 (Ala. 2005). As the
citations in McCoo illustrate, an election-law challenge is a
classic example of a question capable of repetition but
evading review.
7
1180152
This Court has applied the capable-of-repetition-but-
evading-review exception to consider challenges to laws that
will impact future elections. See Griggs v. Bennett, 710 So.
2d 411, 412 n.4 (Ala. 1998) ("We note that under the
principles enunciated in Moore v. Ogilvie, 394 U.S. 814, 816,
89 S. Ct. 1493, 1494-95, 23 L. Ed. 1 (1969), the
interpretation of § 6.14 of Amendment 328 [now § 153, Ala.
Const. 1901 (Off. Recomp.)] for this case is not moot, because
the interpretation could impact future elections."). Because
Act No. 138 will operate the same way in future primary
elections for the office of Jefferson County D.A., the
capable-of-repetition-but-evading-review exception to the
mootness doctrine permits us to consider the merits of
Veitch's appeal.
B. Addressing Veitch's Challenge to Act No. 138 on the
Merits
1. The Jefferson County D.A. Has Authority in the
Bessemer Cutoff
We now consider Veitch's challenge to Act No. 138 on the
merits. We begin by examining the Jefferson County D.A.'s
statutory power within the Bessemer Cutoff. Veitch's claim
that Act No. 138 unconstitutionally disenfranchises voters in
8
1180152
the Bessemer Cutoff proceeds from the premise that those
voters have a protected interest in voting for Jefferson
County D.A. Veitch argues that, because the Jefferson County
D.A. exercises power over residents of the Bessemer Cutoff,
those residents must be allowed to vote for that office in
both the primary and the general elections. The election
official counters that the Bessemer Cutoff is within the
exclusive jurisdiction of the Bessemer Division D.A., that the
Jefferson County D.A. has no power in the Bessemer Cutoff, and
that voters in the Bessemer Cutoff therefore have no
constitutional interest in voting for Jefferson County D.A.
The position that was the forerunner to the modern
Bessemer Division D.A., called the "deputy solicitor," was
created in 1915. See Act No. 490, Ala. Acts 1915; Act No.
720, Ala. Acts 1915. The legislature made it clear in 1915
that the new deputy solicitor would not exercise power within
the Bessemer Cutoff to the exclusion of the circuit solicitor
(now the Jefferson County D.A.):
"[The deputy solicitor] shall, in the absence of the
circuit solicitor, discharge the same duties and
exercise the same authority within the territory
from which he is elected as if he were solicitor;
... and [he] shall be under the supervision of the
circuit solicitor of such circuit ...."
9
1180152
Act No. 720, § 1 (emphasis added). The position and powers of
the deputy solicitor were eventually codified as follows:
"[T]here shall be elected by the qualified voters of
the Bessemer division of Jefferson county, a deputy
circuit solicitor of the tenth judicial circuit ...
who shall in the absence of the circuit solicitor
discharge the same duties and exercise the same
authority within the territory from which he is
elected as if he were solicitor...."
Tit. 13, § 252, Ala. Code 1940 (emphasis added). The same
provision was included in the 1958 recompilation of the
Alabama Code. See Tit. 13, § 252, Ala. Code 1940 (Recomp.
1958). Although the codified language did not include the
language from Act No. 720 about the deputy solicitor being
"under the supervision of the circuit solicitor," it
nonetheless makes clear that the deputy solicitor's authority
is based upon "the absence of the circuit solicitor" in the
Bessemer Cutoff. This Court concluded as much when it
considered the relationship between the circuit solicitor and
deputy solicitor in State ex rel. Gallion v. Hammonds, 281
Ala. 701, 703, 208 So. 2d 81, 83 (1968): "Thus, we have an
officer, elected by the people, who is clothed with all the
powers of the circuit solicitor but all of those powers are
nullified whenever the circuit solicitor of Jefferson County
10
1180152
is present." Unless that arrangement was altered by
subsequent legislation, it persists today.
Nothing in the 1975 Alabama Code altered the statutory
arrangement considered by this Court in Gallion. Rather, the
1975 Code, which is in effect today, ratified the arrangement
set out in the 1958 recompilation of the 1940 Alabama Code:
"All general laws applicable within certain judicial
circuits, general laws of local application and
local laws providing for deputy or assistant
district attorneys or circuit solicitors and the
manner of election or appointment, compensation,
duties, etc., of such officers, which said laws were
in effect on the effective date of this code, shall
continue in effect until amended or repealed by
statute; provided, that all such officers shall be
known as 'assistant district attorneys.'"
§ 12-17-198(b), Ala. Code 1975. Likewise, the current local
laws for Jefferson County do not change the 1958 status quo.
They provide, with respect to the Bessemer Division D.A., only
that "the elected Deputy District Attorney of the Tenth
Judicial Circuit, Bessemer Division, shall serve a term of
office of six years," § 45-37-82, and that the Bessemer
Division D.A. shall have the power to appoint deputies, §
45-37-82.01.
The election official argues that two provisions of the
general laws alter the relationship between the Jefferson
11
1180152
County D.A. and the Bessemer Division D.A. as that
relationship was understood in Gallion. First, the election
official cites § 12-17-222, Ala. Code 1975: "The elected
deputy district attorney of the tenth judicial circuit (the
Bessemer cutoff) shall be, for the purpose of this division,
considered a district attorney." But the election official
misapprehends that provision. Section 12-17-222 makes the
two
district attorneys equal only for the limited purposes of
"this division," i.e., Title 12, Chapter 17, Article 6,
Division 3: "Assistants, Investigators, and Other Personnel;
Budget Procedures." The fact that the Bessemer Division D.A.
is empowered to hire support staff, § 12-17-220, Ala. Code
1975, and is required to prepare a separate budget report,
§ 12-17-221, Ala. Code 1975, does not mean that the Bessemer
Division D.A. is "considered a district attorney," § 12-17-
222, for purposes of analyzing her relationship with the
Jefferson County D.A.
Second, the election official cites § 12-17-184, Ala.
Code 1975, as evidence indicating that the Jefferson County
D.A. and the Bessemer Division D.A. are wholly independent of
one another:
12
1180152
"It is the duty of every district attorney and
assistant district attorney, within the circuit,
county, or other territory for which he or she is
elected or appointed:
"(1) To attend on the grand juries, advise
them in relation to matters of law, and examine
and swear witnesses before them.
"(2) To draw up all indictments and to
prosecute all indictable offenses.
"(3) To prosecute and defend any civil
action in the circuit court in the prosecution
or defense of which the state is interested.
"...."
§ 12-17-184. But the fact that the Bessemer Division D.A. has
clearly defined statutory duties does not foreclose the
possibility that the Jefferson County D.A. can displace the
Bessemer Division D.A. and assume those same duties. In
addition, a substantially identical provision was on
the
books
at the time of Gallion. See Ala. Code 1940 (Recomp. 1958), T.
13, § 229. The Gallion Court was aware of the Bessemer
Division D.A.'s statutory duties and yet concluded that the
Jefferson County D.A. and the Bessemer Division D.A. are not
equal in authority. Section 12-17-184 does not bolster the
election official's argument either.
13
1180152
The relationship between the Jefferson County D.A. and
the Bessemer Division D.A. is the same as it was when this
Court decided Gallion in 1968. The Bessemer Division D.A. is
an officer "elected by the people, who is clothed with all the
powers of the [district attorney] but all of those powers are
nullified whenever the ... Jefferson County [D.A.] is
present." 281 Ala. at 703, 208 So. 2d at 83. Because the
Jefferson County D.A. has the ultimate power to displace the
Bessemer Division D.A. and to prosecute residents of the
Bessemer Cutoff, voters residing in the Bessemer Cutoff have
an interest in voting for the Jefferson County D.A. We turn
now to whether Act No. 138 unconstitutionally prevents them
from doing so.
2. Act No. 138 Unconstitutionally Disenfranchises
Voters in the Bessemer Cutoff
a. Act No. 138 Severely Restricts the Right to
Vote and Is Therefore Subject to Strict
Scrutiny
Veitch argues that Act No. 138 violates the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution: "No state shall ... deny to any person
within its jurisdiction the equal protection of the laws."
U.S. Const. amend. XIV, § 1. The general rule is that
14
1180152
legislation will be upheld in the face of an equal-protection
challenge "if the classification drawn by the statute is
rationally related to a legitimate state interest." City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440
(1985). But rational-basis review is not appropriate "when
the challenged statute places burdens upon 'suspect classes'
of persons or on a constitutional right that is deemed to be
'fundamental.'" Clements v. Fashing, 457 U.S. 957, 963 (1982)
(quoting San Antonio Independent School Dist. v. Rodriguez,
411 U.S. 1, 17 (1973)). When a fundamental right is involved,
courts typically apply "strict scrutiny" and sustain a
challenged statute only if it is narrowly tailored to serve a
compelling state interest. City of Cleburne, 473 U.S. at 440.
The United States Supreme Court has, at times, referred
to the right to vote as "fundamental." See, e.g., Reynolds v.
Sims, 377 U.S. 533, 561–62 (1964) ("Undoubtedly, the right of
suffrage is a fundamental matter in a free and democratic
society."); Smiley v. Holm, 285 U.S. 355, 366 (1932)
("[Election regulations] are necessary in order to
enforce the
fundamental right involved."); Yick Wo v. Hopkins, 118 U.S.
356, 370 (1886) ("[The political franchise of voting] is
15
1180152
regarded
as
a
fundamental
political
right,
because
preservative of all rights."). Accordingly, the
United States
Supreme Court has occasionally applied strict scrutiny to
statutes burdening the right to vote. See, e.g., Harper v.
Virginia State Bd. of Elections, 383 U.S. 663, 670 (1966).
But the United States Supreme Court has also cautioned
that "to subject every voting regulation to strict scrutiny
... would tie the hands of States seeking to assure that
elections are operated equitably and efficiently."
Burdick v.
Takushi, 504 U.S. 428, 433 (1992). Because of this concern,
it has occasionally applied a relaxed level of scrutiny in
voting-rights cases. See Anderson v. Celebrezze, 460 U.S.
780, 789 (1983) ("[A] court must resolve [constitutional
challenges to specific provisions of a state's election laws]
by an analytical process that parallels its work in ordinary
litigation. ... Only after weighing [the rights and interests
of the plaintiffs and the state] is the reviewing court in a
position to decide whether the challenged provision is
unconstitutional.").
To determine the appropriate level of scrutiny in this
case, we must determine which of those two lines of United
16
1180152
States Supreme Court cases applies. Concurring in the
judgment in Crawford v. Marion County Election Board, 553 U.S.
181 (2008), Justice Antonin Scalia attempted to harmonize the
coexistence of conflicting analytical approaches to voting-
rights cases by characterizing the precedent as creating a
two-track framework:
"To evaluate a law respecting the right to vote
--
whether
it
governs
voter
qualifications,
candidate selection, or the voting process -- we use
the approach set out in Burdick v. Takushi, 504 U.S.
428 (1992). This calls for application of a
deferential
'important
regulatory
interests'
standard
for
nonsevere,
nondiscriminatory
restrictions, reserving strict scrutiny for laws
that severely restrict the right to vote."
Crawford, 553 U.S. at 204 (Scalia, J., concurring in the
judgment). We adopt that framework here to determine the
applicable level of scrutiny.
A survey of leading voting-rights cases in which the
United States Supreme Court has applied less than strict
scrutiny illustrates what Justice Scalia meant by "nonsevere,
nondiscriminatory restrictions." In Crawford, the United
States Supreme Court considered a facial challenge to a voter-
ID law that, "[f]or most voters[,] ... [did] not qualify as a
substantial burden on the right to vote, or even represent a
17
1180152
significant increase over the usual burdens of voting." 553
U.S. at 198. In Burdick, it considered Hawaii's prohibition
on write-in voting and concluded the prohibition created only
a slight burden for a small number of voters. 504 U.S. at
436–37. And, in Anderson, the United States Supreme Court
concluded that Ohio's early filing deadline for Presidential
candidates should not be subject to strict scrutiny, although
it ultimately invalidated the law because the burdens imposed
by the law outweighed the state's "minimal interest." 460
U.S. at 789, 806.
Act No. 138 imposes a far more severe restriction than
any of the restrictions considered in the cases above. In all
of those cases, a law incidentally burdened the right to vote
by making voter registration and ballot access more difficult.
Act No. 138, by contrast, completely deprives voters in a
significant portion of Jefferson County of the right to vote
for an officer who has statutory authority over them. That
severe
restriction
falls
within
the
second
category
identified
by Justice Scalia in his special writing in Crawford and is
therefore subject to strict scrutiny.
18
1180152
The election official argues that, unlike the right to
vote in a general election, the right to vote in a primary
election is not fundamental and therefore cannot trigger the
application of strict scrutiny. We disagree. In United
States v. Classic, 313 U.S. 299, 309-10 (1941), the United
States Supreme Court considered the indictment of five
Louisiana officials for election fraud under the predecessors
to 18 U.S.C. §§ 241-42, which criminalized "any conspiracy to
injure a citizen in the exercise 'of any right or privilege
secured to him by the Constitution or laws of the United
States,'" and provided penalties for "anyone who, 'acting
under color of any law' 'willfully subjects, or causes to be
subjected, any inhabitant of any State ... to the deprivation
of any rights, privileges, or immunities secured or protected
by the Constitution and laws of the United States.'" One of
the questions presented in Classic was whether the right to
vote in a primary election was a right secured by the United
States Constitution. The United States Supreme Court rejected
the argument that the right to vote in a primary election was
less constitutionally protected than the right to vote in a
general election, saying:
19
1180152
"The right to participate in the choice of
representatives for Congress includes, as we have
said, the right to cast a ballot and to have it
counted at the general election whether for the
successful candidate or not. Where the state law
has made the primary an integral part of the
procedure of choice, or where in fact the primary
effectively controls the choice, the right of the
elector to have his ballot counted at the primary,
is likewise included in the right protected by
Article I, § 2."
313 U.S. at 318. The United States Supreme Court noted that
constitutional equivalence between primary and general
elections was particularly important given that in Louisiana
at the time (as has recently been the case in Jefferson
County) the winner of a particular party's primary was
virtually assured victory in the general election. 313 U.S.
at 319 ("[T]he right to choose a representative is in fact
controlled by the primary because, as is alleged in the
indictment, the choice of candidates at the
Democratic primary
determines the choice of the elected representative."). In
many states, the primary is the whole shooting match -- a
right to vote in the general election would be hollow without
a complementary right to vote in the critical primary
election. Thus, as a general matter, the right to vote in a
20
1180152
primary election is no less fundamental than the right to vote
in a general election.
The cases cited by the election official to suggest that
the right to vote in a primary election is not as strong as
the right to vote in a general election simply illustrate that
primary elections involve constitutional considerations that
are not at play in general elections -- most importantly, the
First Amendment right to associate in political parties. See
California Democratic Party v. Jones, 530 U.S. 567, 574 (2000)
("[T]he First Amendment protects 'the freedom to
join together
in
furtherance
of
common
political
beliefs,'
which
'necessarily presupposes the freedom to identify the people
who constitute the association, and to limit the association
to those people only.' That is to say, a corollary of the
right to associate is the right not to associate." (internal
citations omitted)). The fact that a countervailing
constitutional right is involved makes the right to vote in a
primary election more susceptible to regulation than the
right
to vote in a general election. But this is so because of the
importance of the First Amendment rights of members of
political parties, not because of the unimportance of voting
21
1180152
in primary elections. When the United States Supreme Court
dismissed the possibility of a "fundamental right" to vote in
a blanket primary election, i.e., a primary election in which
voters could vote for any candidate regardless of the voter's
or
candidate's
party
affiliation,
California
Democratic
Party,
530 U.S. at 573 n.5, it did so not because voting in primaries
is less protected under the Constitution, but because
California's
blanket
primary
unconstitutionally
subjugated
the
associational rights of members of political parties to the
voting rights of nonmembers. We see no reason why laws
burdening the right to vote in primary elections should be
categorically exempted from strict scrutiny.
b. Act No. 138 Is Not Narrowly Tailored to
Serve a Compelling State Interest
Act No. 138 is constitutional only if it is narrowly
tailored to serve a compelling state interest. City of
Cleburne, 473 U.S. at 440. The only state interest identified
in the record and briefs in this appeal is the interest in
"proportionately divid[ing] influence in the court system
between the two court divisions in [Jefferson County]"
mentioned by the trial court in its order. Counsel for the
election official echoed this theme at oral argument before
22
1180152
this Court when he identified principles of "representative
democracy" as providing the State's interest. For the
purposes of this opinion, we assume that this interest is
compelling. Cf. Evans v. Cornman, 398 U.S. 419, 422 (1970)
("The sole interest or purpose asserted by appellants to
justify the limitation on the vote in the present case is
essentially to insure that only those citizens who are
primarily or substantially interested in or affected by
electoral decisions have a voice in making them. Without
deciding the question, we have assumed that such an interest
could be sufficiently compelling to justify limitations on
the
suffrage, at least with regard to some elections." (citing
Kramer v. Union Sch. Dist., 395 U.S. 621, 632 (1969), and
Cipriano v. City of Houma, 395 U.S. 701, 704 (1969))).
But even if the interest in proportionately dividing
political influence between the two divisions in Jefferson
County is compelling, Act No. 138 is not narrowly tailored to
that interest. In fact, Act No. 138 directly undermines
representative democracy. It reinforces Birmingham voters'
interest in self-government only by disregarding the same
interest of Bessemer voters and subjecting Bessemer voters to
23
1180152
the possibility of prosecution without representation. A law
that gives the voters in one locality the exclusive right to
select an officer who will exercise power over the voters in
another locality is not narrowly tailored to an interest in
promoting representative local
government.
Therefore, Act
No.
138 violates the Fourteenth Amendment to the United States
Constitution.
Conclusion
The Jefferson County D.A. has the statutory authority to
displace the Bessemer Division D.A. and exercise his powers in
the Bessemer Cutoff. Because residents of the Bessemer Cutoff
are subject to the prosecutorial power of the Jefferson County
D.A., they have an equal interest with other Jefferson County
residents in who occupies that office. Despite that equal
interest, Act No. 138 denies voters in the Bessemer Cutoff the
right to participate in the primary election for Jefferson
County D.A. That discrimination violates the
Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution and renders Act No. 138 unconstitutional.
REVERSED AND REMANDED.
Parker, C.J., and Wise, Bryan, and Stewart, JJ., concur.
24
1180152
Shaw,2 Sellers, and Mendheim, JJ., concur in the result.
Bolin, J., recuses himself.
2Although Justice Shaw did not sit for oral argument of
this case, he has reviewed a recording of that oral argument.
25 | June 30, 2020 |
2ed8aea3-4d1e-4b89-b095-5d5652d55500 | Ex parte A.B. | N/A | 1190665 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190665
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-18-54.02; Civil Appeals : 2180962).
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 |
05177765-5509-4b98-a4db-e92b0bd1eb1f | Ex parte Jeffrey Dale Hunt. | N/A | 1190713 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190713
Ex parte Jeffrey Dale Hunt. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: State of Alabama v. Jeffrey Dale Hunt) (Lauderdale Circuit
Court: CC-17-215; Criminal Appeals : CR-18-0886).
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. 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
e65ed96e-717a-40a4-b48f-90f22696df27 | Ex parte Charles K. Makekau III. | N/A | 1190326 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190326
Ex parte Charles K. Makekau III. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Charles K. Makekau III v. State of Alabama) (Morgan Circuit
Court: CC-14-257; Criminal Appeals : CR-18-0428).
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 |
3da9db71-dd46-4a2a-be37-95b5696ae8f0 | Ex parte Freudenberger | N/A | 1190159 | 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
____________________
1190159
____________________
Ex parte Curt Freudenberger, M.D., and Sportsmed Orthopedic
Surgery & Spine Center, P.C.
PETITION FOR WRIT OF MANDAMUS
(In re: Rhonda Brewer and Charlie Brewer
v.
Crestwood Medical Center, LLC; Curt Freudenberger, M.D.; and
Sportsmed Orthopedic Surgery & Spine Center, P.C.)
(Madison Circuit Court, CV-19-901640)
SELLERS, Justice.
1190159
Two of the defendants below, Curt Freudenberger, M.D.,
and Sportsmed Orthopedic Surgery & Spine Center, P.C.
("Sportsmed Orthopedic"),1 petition this Court for a writ of
mandamus directing the Madison Circuit Court to vacate its
October 10, 2019, protective order to the extent it imposes
conditions upon ex parte interviews defense counsel intends to
conduct with physicians who treated one of the plaintiffs,
Rhonda Brewer, in connection with her injuries. We grant the
petition and issue the writ.
I. Facts and Procedural History
In August 2019, Rhonda and her husband, Charlie, sued Dr.
Freudenberger and Sportsmed Orthopedic (hereinafter sometimes
collectively referred to as "the defendants"), asserting
claims of medical malpractice based on injuries Rhonda
allegedly suffered during the course of a surgical procedure
performed by Dr. Freudenberger. Charlie also asserted a claim
of loss of consortium. Before discovery, the defendants moved
for the entry of a "qualified protective order," pursuant to
the Health Insurance Portability and Accountability Act of
1The Brewers also named Crestwood Medical Center, LLC, as
a defendant; Crestwood is not a party to this petition.
2
1190159
1996 ("HIPAA"), and filed a proposed order with their motion.
Among other things, the defendants' proposed order allowed the
parties' attorneys to request ex parte interviews with
Rhonda's treating physicians, who could either grant or deny
such request;2 it prohibited the parties from using or
disclosing protected health information for any purpose other
than the subject litigation; and it required the return or
destruction of that information at the end of the litigation.
The Brewers objected to the proposed order, arguing that
defense counsel's ex parte interviews with Rhonda's treating
physicians would violate both HIPAA and the Alabama Rules of
Civil Procedure.
The trial court thereafter entered a qualified protective
order authorizing the disclosure of Rhonda's protected health
information; the order, however, imposed the following
2The defendants' proposed order states, in relevant part,
that "[t]he attorneys for the parties to the lawsuit may
request an interview with any healthcare providers ... in
connection with [Rhonda's protected health information]. ...
Such healthcare provider ... may grant or deny a request for
an interview." We interpret the proposed order as meaning
that the attorneys may request interviews with only those
physicians with whom Rhonda consulted in connection with her
injuries.
3
1190159
conditions upon defense counsel's contacts with her treating
physicians:
"No ex parte interviews will be conducted by
[defense counsel] with [Rhonda's] prescribing and
treating physicians unless and until [defense
counsel] provides [Rhonda's counsel] with at least
ten (10) days written notice of the time and place
of the interview and the opportunity to attend."
The defendants moved the trial court to reconsider its
order, arguing that its limitations, if not elimination, of a
valid discovery tool was without any basis in Alabama law or
HIPAA. They specifically contended that Alabama law allowed ex
parte interviews with treating physicians, that HIPAA did not
prohibit ex parte interviews with treating physicians, and
that the restrictions imposed effectively deprived them from
conducting ex parte interviews. The trial court denied the
motion to reconsider. This mandamus petition followed.
II. Standard of Review
"Discovery matters are within the trial court's
sound discretion, and this Court will not reverse a
trial court's ruling on a discovery issue unless the
trial court has clearly exceeded its discretion.
Home Ins. Co. v. Rice, 585 So. 2d 859, 862 (Ala.
1991). Accordingly, mandamus will issue to reverse
a trial court's ruling on a discovery issue only (1)
where there is a showing that the trial court
clearly exceeded its discretion, and (2) where the
aggrieved party does not have an adequate remedy by
ordinary appeal. The petitioner has an affirmative
4
1190159
burden to prove the existence of each of these
conditions."
Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810, 813 (Ala.
2003). "Generally, an appeal of a discovery order is an
adequate remedy .... In certain exceptional cases, however,
review by appeal of a discovery order may be inadequate, for
example, ... when a privilege is disregarded ...." Ex parte
Ocwen, 872 So. 2d at 813.
III. Analysis
1. Mandamus Review
Mandamus review is appropriate in this case because the
trial court's protective order involves a disregard of the
work-product privilege. Ex parte Stephens, 676 So. 2d 1307,
1310 (Ala. 1996), overruled on other grounds, Ex parte Henry,
770 So. 2d 76 (Ala. 2000). As the defendants point out, the
trial court's order allows the Brewers' counsel to peer into
defense
counsel's
mental
impressions
and
effectively
discloses
defense strategies. Rule 26(b)(4), Ala. R. Civ. P., expressly
states that "the trial court shall protect against disclosure
of the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party
concerning the ligation." See also Hickman v. Taylor, 329
5
1190159
U.S. 495, 510 (1947)(explaining that a lawyer's work product
is reflected in many intangible ways, including interviews,
and that "it is essential that a lawyer work with a certain
degree of privacy, free from unnecessary intrusion by
opposing
parties and their counsel").
2. The Role of HIPAA in Regulating Ex Parte Interviews
In 1996, the United States Congress enacted, and the
President signed into law, HIPAA. (Pub. L. No. 104-191, 110
Stat. 1936 (1996)).3 Congress enacted HIPAA, in part, to
protect the privacy of an individual's health information.4
The Department of Health and Human Services subsequently
proposed and adopted the "Privacy Rule," which consists of a
series
of
regulations governing
permitted
uses
and
disclosures
of protected health information.5 The Privacy Rule prohibits
3HIPAA, as amended, is codified in various sections of
Titles 18, 26, 29, and 42 of the United States Code.
4See
45
C.F.R.
§
160.103
(1997)(defining
"protected
health
information" and its subset "individually identifiable health
information").
5The Privacy Rule is codified at parts 160 and 164 of
Title 45 of the Code of Federal Regulations (45 C.F.R. pt.
160, 164 (2018)).
6
1190159
a "covered entity"6 such as a health-care provider from using
or disclosing protected health information without written
authorization, unless the use or disclosure of that
information is specifically permitted or required by the
Privacy Rule. 45 C.F.R. §§ 164.502, 164.506, 164.508, 164.510,
164.512 (2018).
Relevant to medical-malpractice cases in general and to
this dispute in particular, the Privacy Rule permits a health-
care provider to disclose protected health information "in
the
course
of
any
judicial
or
administrative proceeding,"
pursuant
to a court order; in such situation, written authorization is
not required. 45 C.F.R. § 164.512(e)(2018). This permissive
disclosure is known as the "judicial exception" to the Privacy
Rule. Under the Privacy Rule, a "qualified protective order"
is an order of a court or administrative tribunal or a
stipulation by the parties that (1) prohibits the use or
disclosure of protected health information "for any purpose
other than the litigation or proceeding for which such
information was requested" and (2) requires the return or
6A "covered entity" is defined to include health plans,
health-care
clearinghouses,
and
health-care
providers,
such
as
physicians and hospitals.
7
1190159
destruction of that information at the end of the litigation
or proceeding. 45 C.F.R. § 164.512(e)(1)(v)(A).
In this case, the parties dispute whether the judicial
exception is applicable to ex parte interviews with treating
physicians such that HIPAA requirements would supersede
longstanding Alabama law by severely limiting ex parte
interviews. It is undisputed that the Privacy Rule does not
expressly mention ex parte interviews between counsel and
treating physicians. However, the definition in the Privacy
Rule of "health information" includes oral information; thus,
it is widely accepted that, by its terms, HIPAA covers oral
interviews. See 45 C.F.R. § 160.103(e) (2016). The Brewers
argue that ex parte interviews do not fall within the judicial
exception because, they say, the nature of the interviews
renders them outside the course of any judicial proceeding.
The Brewers rely on State ex rel. Proctor v. Messina, 320
S.W.3d 145 (Mo. 2010), in which the Missouri Supreme Court
interpreted the language "in the course of a judicial ...
proceeding," as precluding ex parte communications because,
the Court reasoned, such communications were not "under the
supervisory authority of the court either through discovery or
8
1190159
through other formal court procedures." 320 S.W.3d at 156.
The Missouri Supreme Court noted that, because the Missouri
Rules of Civil Procedure did not provide a mechanism for
courts to oversee ex parte communications, a meeting where
those communications occurred was not a judicial proceeding.
Id. at 157. Taken to its logical conclusion, the adoption of
such a rule would require trial courts to directly participate
in discovery matters where the health information of a
plaintiff was relevant.
The defendants, on the other hand, argue that the Privacy
Rule does not prohibit ex parte interviews with treating
physicians; rather, they say, it merely imposes procedural
prerequisites to authorize and protect the disclosure of
private health information. The defendants cite Arons v.
Jutkowitz, 9 N.Y.3d 393, 415, 850 N.Y.S.2d 345, 356, 880
N.E.2d 831, 842 (2007), in which the New York Court of Appeals
concluded that New York law permitting ex parte interviews and
HIPAA could
coexist because, the court reasoned, HIPAA "merely
superimposes procedural requirements" onto state law:
"[T]he Privacy Rule does not prevent this informal
discovery from going forward, it merely superimposes
procedural prerequisites. As a practical matter,
this means that the attorney who wishes to contact
9
1190159
an adverse party's treating physician must first
obtain a valid HIPAA authorization or a court or
administrative order; or must issue a subpoena,
discovery request or other lawful process with
satisfactory
assurances
relating
to
either
notification or a qualified protective order."
(Emphasis added.)
Although ex parte interviews are not under the direct
supervision of a court, they proceed alongside a pending
lawsuit and, in that respect, are considered to be "in the
course" of a judicial proceeding. To this extent, we agree
with the Arons court's analysis, and find it to be the more
persuasive, as well as an appropriate and practical
interpretation of the Privacy Rule. We conclude that the
federal Privacy Rule does not negate long-standing Alabama law
allowing
ex
parte
interviews with
treating
physicians;
rather,
it merely superimposes procedural prerequisites by requiring
defense counsel to obtain a valid HIPAA authorization or, in
this case, a court order complying with the provisions of 45
C.F.R. § 164.512(e). See also, e.g., Murphy v. Dulay, 768
F.3d 1360, 1377 (11th Cir. 2014)("Once a plaintiff executes a
valid HIPAA authorization [or obtains a qualified protective
order] as part of his presuit obligations, his physician can,
consistent with HIPAA, convey relevant health information
10
1190159
about the plaintiff to the defendant. A medical provider can
simultaneously comply with state and federal requirements.")
Ex parte interviews are allowed under Alabama common law7 and
nothing in HIPAA specifically precludes them. Accordingly,
Alabama law permitting ex parte interviews and HIPAA can
coexist so long as the procedural requirements of 45 C.F.R. §
164.512(e) are met.
3. Preemption
Finally, there is no federal preemption issue in this
case. Although the Privacy Rule expressly preempts any
"contrary" state law, there is no preemption when privacy
protections afforded by a state are more stringent than
HIPAA's regulations. 45 C.F.R. § 160.203. A state law is
"contrary" to HIPAA only if a health-care provider would find
it impossible to comply with both the state and federal
7Before the enactment of HIPAA, it was common practice in
Alabama for defense counsel to conduct informal ex parte
interviews with a plaintiff's treating physicians. As this
Court has noted, "when a party files a lawsuit that makes an
issue of his physical condition, he waives his privacy rights
in favor of the public's interest in full disclosure." Ex
parte Dumas, 778 So. 2d 798, 801 (Ala. 2000). See also Romine
v. Medicenters of America, Inc., 476 So. 2d 51, 55 (Ala.
1985)(discussing ex parte interviews); and Zaden v.
Elkus, 881
So. 2d 993 (Ala. 2003)(same).
11
1190159
requirements or if the state law stands as an obstacle to the
accomplishment of HIPAA's purposes. 45 C.F.R. § 160.202
(2016). The Privacy Rule defines "State law" as "a
constitution, statute, regulation, rule, common law, or other
State action having the force and effect of law." 45 C.F.R.
§ 160.202(6)(2016). Under these definitions, no laws in
Alabama could be deemed "contrary" to HIPAA.
In fact, in Alabama, there is no statutory law or Rule of
Civil Procedure prohibiting a litigant's ability to conduct ex
parte
interviews
with
the
opposing
party's
treating
physicians. Thus, Alabama law allowing such ex parte
interviews cannot be "contrary" to HIPAA, and no preemption
issue is presented. See Arons, 9 N.Y.3d at 415, 850 N.Y.S.2d
at 356, 880 N.E.2d at 842 ("[W]here 'there is a State
provision and no comparable or
analogous federal provision, or
the converse is the case,' there is no possibility of
preemption because in the absence of anything to compare
'there cannot be ... a "contrary" requirement' ....") (citing
Standards for Privacy of Individually Identifiable Health
Information, 64 Fed. Reg. 59,918, 59,995) (Nov. 3, 1999)).
IV. Conclusion
12
1190159
Based on the foregoing, we conclude that nothing in
Alabama law prohibits defense counsel from seeking ex parte
interviews with a plaintiff's treating physicians. We
similarly conclude that HIPAA does not prohibit ex parte
interviews with treating physicians as a means of informal
discovery. A physician's ability to disclose private health
information in an ex parte correspondence is regulated by
HIPAA, so disclosure of that information may be permitted
pursuant to a qualified protective order that satisfies 45
C.F.R. 164.512(e). To this extent, we hold that the trial
court exceeded its discretion by requiring the Brewers'
counsel to receive notice of, and have an opportunity to
attend, ex parte interviews that defense counsel intended to
conduct with Rhonda's treating physicians. The defendants
sought a protective order satisfying the requirements of 45
C.F.R. 164.512(e). Accordingly, the additional conditions
imposed by the trial court were not justified based on the
Brewers' objection that ex parte communications would violate
HIPAA and the Alabama Rules of Civil Procedure. We emphasize
that trial courts remain gatekeepers of discovery, and there
may be special or exceptional circumstances, if good cause is
13
1190159
shown, justifying the imposition of conditions and/or
restrictions upon ex parte interviews with a litigant's
treating physicians. However, in
this case, the Brewers failed
to demonstrate the existence of any circumstances warranting
limitations on ex parte communications with Rhonda's treating
physicians. Therefore, we direct the trial court to vacate
its order to the extent it imposes conditions upon defense
counsel's
ex
parte
interviews
with
Rhonda's
treating
physicians.
PETITION GRANTED; WRIT ISSUED.
Bolin, J., concurs.
Mendheim and Mitchell, JJ., concur specially.
Shaw,8 Wise, Bryan, and Stewart, JJ., concur in the
result.
Parker, C.J., dissents.
8Although Justice Shaw was not present at the oral
argument in this case, he has reviewed a recording of that
oral argument.
14
1190159
MENDHEIM, Justice (concurring specially).
I agree with the main opinion's conclusion that the
Health Insurance Portability and Accountability Act of 1996
("HIPAA") allows the defendants, Dr. Curt Freudenberger and
Sportsmed Orthopedic Surgery & Spine Center, P.C., to conduct
ex parte interviews with Rhonda Brewer's treating physicians
provided the defendants first obtain a "qualified protective
order" that places safeguards on the use and dissemination of
the
plaintiff's
private
medical
information.
See
generally, 45
C.F.R. § 164.512(e). I write separately to express my view
regarding the main opinion's final observation that "trial
courts remain gatekeepers of discovery, and there may be
special or exceptional circumstances, if good cause is shown,
justifying the imposition of conditions and/or restrictions
upon ex parte interviews with a litigant's treating
physicians." ___ So. 3d at ___.
This Court has continually emphasized that "[w]hen a
dispute arises over discovery matters, the resolution of the
dispute is left to the sound discretion of the trial court."
Ex parte Henry, 770 So. 2d 76, 79 (Ala. 2000). "The Alabama
Rules of Civil Procedure permit very broad discovery; however,
15
1190159
Rule 26(c)[, Ala. R. Civ. P.,] recognizes that this right to
discovery is not unlimited and accordingly vests the trial
court with broad discretionary power to control the use of the
process and prevent its abuse by any party." Ex parte Mack,
461 So. 2d 799, 801 (Ala. 1984). Thus, we intervene in the
discovery process only when "the trial court has clearly
exceeded its discretion." Ex parte Ocwen Fed. Bank, FSB, 872
So. 2d 810, 813 (Ala. 2003).
The main opinion correctly observes that, before the
enactment of HIPAA, ex parte interviews of the plaintiff's
treating physicians conducted by the defendant were permitted
in Alabama medical-malpractice cases. See, e.g., Romine v.
Medicenters of America, Inc., 476 So. 2d 51, 55 (Ala. 1985)
(quoting with approval Doe v. Eli Lilly & Co., 99 F.R.D. 126,
128 (D. D.C. 1983), for the proposition that "While the
Federal Rules of Civil Procedure have provided certain
specific
formal
methods
of
acquiring
evidence
from
recalcitrant sources by compulsion, they have never been
thought to preclude the use of such venerable, if informal,
discovery techniques as the ex parte interview of a witness
who is willing to speak."). However, because of the broad
16
1190159
discretion trial courts are afforded concerning discovery,
trial courts could also restrict or even prohibit such
interviews if the particular circumstances warranted such
measures. See, e.g., Zaden v. Elkus, 881 So. 2d 993, 999 n.7,
1011 (Ala. 2003) (describing an order in Ballew v. Eagan,
CV-00-6528, in which the circuit court disallowed "any
ex parte communications between defense counsel or insurance
investigators and the treating physicians of the deceased
patient" as the "circuit judge's exercise of discretion
concerning discovery matters").
HIPAA did not change the fact that such ex parte
interviews are allowed in Alabama or a trial court's
discretion
in
overseeing
such
discovery issues;
instead,
HIPAA
added procedural prerequisites to obtaining the plaintiff's
health-care information in order to safeguard the plaintiff's
medical privacy. In addition to providing some general
privacy safeguards, HIPAA's requirement that the defendant
seek a qualified protective order that places specified
restrictions on any "protected health information" the
defendant obtains through such informal discovery also exists
17
1190159
so that a plaintiff is able to offer any objections he or she
has to that method of disclosure. 45 C.F.R. § 164.512(e)(1).
"Of course, qualified protective orders for
ex parte interviews do not issue automatically, and
HIPAA does not require a court to issue them. 'If a
plaintiff shows a specific reason for restricting
access to her or his treating physicians, such as
sensitive medical history irrelevant to the lawsuit,
a court may restrict ex parte interviews and
disclosure of medical records.' Pratt v. Petelin,
09–2252–CM–GLR (D. Kan. Feb. 4, 2010) [(not selected
for publication in F. Supp.)]."
Thomas v. 1156729 Ontario Inc., 979 F. Supp. 2d 780, 784 (E.D.
Mich. 2013). Thus, as was the case before the enactment of
HIPAA, a plaintiff may establish a reasonable privacy concern
other than just tactical litigation strategy that warrants
further restrictions than those listed in 45 C.F.R.
§ 164.512(e)(1)(v) or that justifies prohibiting such
interviews altogether. Such privacy concerns could include
the involvement of a minor, an independent confidentiality
issue,
sexual
issues,
unnecessary embarrassment, and
so
forth.
The Thomas court noted that one requirement federal district
courts sometimes add in qualified protective orders that
address ex parte interviews is "'clear and explicit' notice to
the plaintiff's physician about the purpose of the interview
and that the physician is not required to speak to defense
18
1190159
counsel." 979 F. Supp. 2d at 785–86 (quoting Croskey v. BMW
of North America, No. 02-73747, Nov. 10, 2005 (E.D. Mich.
2005) (not selected for publication in F. Supp.)). Other
courts have suggested "affording plaintiff's counsel the
opportunity to communicate with the physician, if necessary,
in order to express any appropriate concerns as to the proper
scope of the interview and the extent to which plaintiff
continues to assert the patient-physician privilege." Smith
v. American Home Prods. Corp. Wyeth-Ayerst Pharm., 372 N.J.
Super. 105, 133, 855 A.2d 608, 625 (2003). Generally speaking,
I believe regulations such as these could be deemed
appropriate as "standard language" in a HIPAA qualified
protective order.
In my opinion, the trial court's error in this case was
issuing a "blanket" prohibition on ex parte interviews by
Dr. Freudenberger's lawyers of Rhonda Brewer's medical
providers without any other considerations. The trial court
should have considered the specific facts and issues of the
case, balanced the competing positions of the litigants
regarding ex parte interviews, and then issued an appropriate
qualified protective order. The starting point for a trial
19
1190159
court's analysis in this type of case should be that ex parte
interviews are allowed, and it should then consider specific
exceptions or regulations from the plaintiff that could be
incorporated into the qualified protective order. If the
plaintiff has presented sound reasons other than tactical
litigation strategy for the exceptions or regulations, then I
believe this Court should uphold the trial court's ruling as
consistent with the trial court's broad authority to oversee
discovery.
In sum, because HIPAA already places some restrictions on
a defendant's use and dissemination of a plaintiff's medical
information to safeguard the plaintiff's privacy, to warrant
further restrictions the plaintiff must establish that
specific circumstances exist in his or her situation that
justify the additional restrictions. If a plaintiff
demonstrates that such circumstances exist, trial courts
maintain the discretion to place additional restrictions and
regulations upon ex parte interviews with treating physicians
or even to prohibit such interviews altogether. "A general
argument,
however,
that
ex
parte
communications would
conflict
with public policy does not suffice to warrant restriction of
20
1190159
such communications." Pratt v. Petelin, No. 09-2252-CM-GLR,
Feb. 4, 2010 (D. Kan. 2010) (not selected for publication in
F. Supp.). In this case, the Brewers offered no patient-
specific reason why any restrictions beyond those listed in 45
C.F.R.
§
164.512(e)(1)(v)
should
be
placed
upon
Dr. Freudenberger's ex parte interviews of Rhonda's treating
physicians. Accordingly, as the main opinion concluded, the
trial court in this case exceeded its discretion by requiring
additional restrictions without sufficient justification of
privacy concerns from the Brewers. On return of the case to
the trial court, I believe that the Brewers would have the
opportunity to present specific arguments to the trial court
consistent with the parameters discussed herein.
Mitchell, J., concurs.
21
1190159
SHAW, Justice (concurring in the result).
I do not believe that the Health Insurance Portability
and Accountability Act of 1996 ("HIPAA") requires the specific
conditions imposed by the trial court in this case on the
defendants' ability to conduct ex parte witness interviews,
which are otherwise allowed by law. With the specific
considerations of HIPAA resolved and certain other issues of
medical confidentiality waived by law or not applicable, I see
nothing providing the trial court the discretion to restrict,
with no exception or limitation, only one party's ability to
conduct witness interviews in the fashion found in this case.
Any concerns that ex parte interviews might be abused could be
remedied by a more narrowly tailored and equitable order. I
therefore agree that the writ should be issued, and I concur
in the result.
Bryan, J., concurs.
22
1190159
STEWART, Justice (concurring in the result).
I agree with the main opinion insofar as it concludes
that defense counsel's ex parte interviews of a plaintiff's
treating physicians are authorized under Alabama law. I also
agree that the defendant's right to conduct such interviews is
not prohibited by HIPAA. As the main opinion notes, the
disclosure of the plaintiff's health information can be
authorized pursuant to the issuance of a qualified protective
order under 45 C.F.R. 164.512(e). In addition, ex parte
interviews of treating physicians provide a vital and
efficient information-gathering tool that comports with the
purpose of discovery, which is "to allow a broad search for
facts, the names of witnesses, or any other matters which may
aid a party in the presentation of his case." Committee
Comments on 1973 Adoption of Rule 26, Ala. R. Civ. P. As the
Delaware Supreme Court has stated:
"This Court will not condone the use of the formal
discovery rules as a shield against defense
counsel's informal access to a witness when these
rules were intended to simplify trials by expediting
the flow of litigation ... and to encourage the
production of evidence ...."
23
1190159
Green v. Bloodsworth, 501 A.2d 1257, 1258-59 (Del. Super. Ct.
1985).
Equally important to the right of the defendant in a
medical-malpractice action to prepare a defense with work-
product-privilege protection is the privacy right of the
plaintiff to his or her medical information, especially
medical information that is not relevant to the claims or
defenses raised in the litigation. This Court has held that
"when a party files a lawsuit that makes an issue of his
physical condition, he waives his privacy rights in favor of
the public's interest in full disclosure." Ex parte Dumas, 778
So. 2d 798, 801 (Ala. 2000). A party filing such a lawsuit,
however, cannot be said to have consented to the disclosure
and discovery of his or her entire medical history, in
particular if medical information is not relevant to the
lawsuit. In such situations, the Alabama Rules of Civil
Procedure provide an avenue for a party to seek judicial
intervention
to
protect
the disclosure
of
privileged
information. Indeed, this Court in Ex parte Dumas went on to
say:
"The Alabama Rules of Civil Procedure allow broad
and liberal discovery. Ex parte O'Neal, 713 So. 2d
24
1190159
956, 959 (Ala. 1998). Rule 26(b)(1), Ala. R. Civ.
P.,
allows
'[p]arties
[to]
obtain
discovery
regarding any matter, not privileged, which is
relevant to the subject matter involved in the
pending action' and which is 'reasonably calculated
to lead to the discovery of admissible evidence.'
This Court has written: 'A trial judge, who has
broad discretion in this area, should nevertheless
incline toward permitting the broadest discovery and
utilize his discretion to issue protective orders to
protect
the
interests
of
parties
opposing
discovery.' Ex parte AMI West Alabama Gen. Hosp.,
582 So. 2d 484, 486 (Ala. 1991). In fact, this Court
has suggested that it issues more writs of mandamus
to correct orders improperly restricting discovery
than it issues to correct orders permitting too much
discovery. Id. A party subject to discovery can
prevent the disclosure of confidential matters not
subject to discovery by securing a protective order
pursuant to Rule 26(c), Ala. R. Civ. P."
778 So. 2d at 801. Accordingly, a plaintiff seeking to limit
the scope of an ex parte interview with a treating physician
is authorized under the Alabama Rules of Civil Procedure to
seek a protective order to prevent the disclosure of medical
information that is irrelevant to the disposition of a claim
or defense raised in the action.
Of further importance in the context of ex parte
interviews are the interests of the treating physician.
Informal interviews provide an efficient mechanism for
information-gathering from the treating physician, whereas
depositions can be timely and costly. In addition,
25
1190159
establishing parameters could aid in the prevention of
inadvertent disclosure of nonrelevant medical information.
Balancing the interests of the parties and the physician
witnesses, I would reject any notion that ex parte interviews
cannot be conducted without the presence of the plaintiff or
the plaintiff's counsel. Likewise, I would reject any notion
that defense counsel's work-product privilege outweighs the
plaintiff's privacy rights at all costs. Instead, I would
adhere to this Court's long-held sentiment that trial courts
are
afforded
broad
discretion in
matters
concerning
discovery,
and a trial court's ruling on discovery matters will not be
reversed unless the trial court exceeds its discretion. Ex
parte Wal–Mart, Inc., 809 So. 2d 818, 822 (Ala. 2001). The
trial court is in the best position to craft, on a case-by-
case basis, a protective order specific to the facts of the
case setting forth the precise parameters within which ex
parte interviews of treating physicians may be conducted. I
would adopt the reasoning of the Georgia Supreme Court in
Baker v. Wellstar Health System, Inc., 288 Ga. 336, 339, 703
S.E.2d 601, 605 (2010), in which the Georgia Supreme Court
"exhort[ed] trial
courts,
in
authorizing
[ex
parte]
interviews
26
1190159
[of treating physicians], to fashion their orders carefully
and with specificity as to scope" and in which that court
developed a framework for trial courts in that state to follow
when issuing such orders:
"[I]n
issuing
orders
authorizing
ex
parte
interviews,
trial
courts
should
state
with
particularity: (1) the name(s) of the health care
provider(s) who may be interviewed; (2) the medical
condition(s) at issue in the litigation regarding
which
the
health
care
provider(s)
may
be
interviewed; (3) the fact that the interview is at
the
request
of
the
defendant,
not
the
patient-plaintiff, and is for the purpose of
assisting defense counsel in the litigation; and (4)
the
fact
that
the
health
care
provider's
participation in the interview is voluntary. See,
e.g., Arons v. Jutkowitz, 9 N.Y.3d 393, 850 N.Y.S.2d
345, 880 N.E.2d 831, 843, n. 6 (II)(B) (2007). See
also Angela T. Burnette & D'Andrea J. Morning, HIPAA
and Ex Parte Interviews—The Beginning of the End?,
1 J. Health & Life Sci. L. 73, 104–105 (April 2008).
In addition, when issuing or modifying such orders,
trial
courts
should
consider
whether
the
circumstances--including any evidence indicating
that ex parte interviews have or are expected to
stray beyond their proper bounds--warrant requiring
defense counsel to provide the patient-plaintiff
with prior notice of, and the opportunity to appear
at,
scheduled
interviews
or,
alternatively,
requiring the transcription of the interview by a
court reporter at the patient-plaintiff's request.
See Wayne M. Purdom, Ga. Civil Discovery, § 5.10
(6th ed.); Burnette, supra at 104.
"In sum, the use of carefully crafted orders
specifying precise parameters within which ex parte
interviews may be conducted will serve to enforce
the privacy protections afforded under state law and
27
1190159
advance HIPAA's purposes while at the same time
preserving a mode of informal discovery that may be
helpful in streamlining litigation in this State."
Baker, 288 Ga. at 339–40, 703 S.E.2d at 605. Although the
Baker court concluded that HIPAA preempted Georgia law, the
standards provided therein to be included in a protective
order authorizing ex parte interviews of treating physicians
provide a balanced approach that seeks to protect the
interests of the parties and the witnesses.
In the present case, the qualified protective order
entered by the Madison Circuit Court ("the trial court")
required counsel for Curt Freudenberger, M.D., and Sportsmed
Orthopedic Surgery & Spine Center, P.C., to provide notice of
the ex parte interview to counsel for Rhonda and Charlie
Brewer and to allow the Brewers' counsel to attend the
interview. Nothing in the materials presented to this Court
indicate that the proposed depositions would stray beyond the
bounds of
information relevant to the discovery of information
pertinent to the claims and defenses raised by the parties in
the case. Accordingly, I would issue the writ, but with
direction to the trial court to conduct a hearing to allow the
28
1190159
parties to present evidence in conjunction with the
aforementioned parameters.
29 | June 30, 2020 |
bbe6edbb-2ea0-4a8d-92b5-c77f289c1a6f | Cowgirls, Incorporated, d/b/a Cowgirls Orange Beach, et al. v. Wharf Retail Properties, LLC | N/A | 1190108 | Alabama | Alabama Supreme Court | Rel: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190108
Cowgirls, Incorporated, d/b/a Cowgirls Orange Beach, et al. v.
Wharf Retail Properties, LLC (Appeal from Baldwin Circuit
Court: CV-17-900139).
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 |
67e06b00-e9a0-4262-bafe-35a3cfc241ec | Ex parte Robert Wayne Kelley. | N/A | 1190931 | 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
1190931
Ex parte Robert Wayne Kelley. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Robert Wayne Kelley v. State of Alabama) (Etowah Circuit
Court: CC-10-650.01, CC-10-650.02, CC-10-650.03, CC-10-650.04; Criminal Appeals :
CR-19-0340).
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. 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 11th day of September, 2020.
Clerk, Supreme Court of Alabama | September 11, 2020 |
1f4ab78e-35e5-4c19-94a7-5ea41e1c598e | Ex parte Kathy Russell, R.N. | N/A | 1180317, 1180319, 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 |
4092ae0b-4708-4c22-a698-7bd7b505e8bf | Rogers v. Burch Corporation | N/A | 1190088 | Alabama | Alabama Supreme Court | Rel: June 19, 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
____________________
1190088
____________________
Joshua Rogers
v.
Burch Corporation
Appeal from Jefferson Circuit Court
(CV-19-901430)
BOLIN, Justice.
Joshua Rogers appeals from a preliminary injunction
entered by the Jefferson Circuit Court preventing Rogers from
soliciting any employees or clients of Burch Corporation, his
1190088
former employer, as contractually agreed to under restrictive
covenants in an employment agreement. We dismiss the appeal.
I. Facts and Procedural History
Burch Corporation is an Alabama construction company with
a
division that designs and builds cold-storage facilities for
use in industries such as food processing and food storage.
Burch operates its cold-storage facilities in several states.
In spring 2016, Burch and Rogers began discussing Rogers's
employment as project manager for its cold-storage division in
Tampa, Florida. On August 2, 2016, Burch wrote a letter to
Rogers outlining the terms of his proposed employment as
project manager and stated that the offer was good through
August 5, 2016. Rogers accepted the offer by signing and
returning the letter to Burch on August 3, 2016. The offer
further provided that Rogers's first day of employment would
be August 29, 2016.
One of the prerequisites of Rogers's employment with
Burch outlined in the letter was entering into an employment
agreement. A copy of the employment agreement was included
with the letter mailed to Rogers on August 2, 2016. On August
8, 2016, Rogers signed the employment agreement, and on August
2
1190088
29, 2016, Rogers began working with Burch. That same day,
Burch's president signed Rogers's employment agreement.
The employment agreement provided, in pertinent part, as
follows:1
"2. Confidentiality: Trade Secrets: Proprietary
Information.
"a.
Definition
of
Proprietary
Information.
As
an
employee of [Burch], [Rogers] will have access to
[Burch's] 'Proprietary Information' which is defined
as property belonging to [Burch] and utilized in its
products and services provided to customers and
clients which is confidential in nature, and
includes, but is not limited to: 'trade secrets,' as
defined in Alabama Code [1975,] § 8-27-2, Florida
Statute Ann. § 688.002(4) and/or the Georgia Trade
Secrets Act, OCGA § 10-1-761(4); pricing information
and methodology, compensation; customer lists;
customer data and information; mailing lists;
prospective customer information; financial and
investment information; management and marketing
plans,
business
strategy,
technique,
and
methodology; business models and data; [Burch]
provided files, software, code, reports, documents,
manuals, and forms used in the business that may not
otherwise qualify as a trade secret but which are
treated as confidential to [Burch], in whatever
medium provided or preserved; relationships or
contacts with specific prospective or existing
customers, vendors, or clients; customer or client
goodwill associated with the ongoing business of
[Burch] and each specific marketing or trade area in
1The employment agreement provided that Jefferson County,
Alabama, which is where Burch's principal office is located,
would be the venue for any disputes relating to the agreement
and that Alabama law would apply.
3
1190088
which [Burch] does business; any specialized or
unique training provided by [Burch] to [Rogers];
[Burch's] products themselves; [Burch] technology;
[Burch] technology support and support services;
sales
methods
and
support;
labeling;
quality
standards; suppliers and distributors; intellectual
property of any kind and any and all other business
or strategic information relating to [Burch's]
technological
information,
products
and/or
services,
all of which [Rogers] acknowledges are owned by
[Burch] and which are regularly used in the
operation of the business of [Burch].
"b. Confidentiality of Proprietary Information.
[Rogers] shall hold all Proprietary Information in
the strictest confidence and shall not disclose any
of
this
Proprietary
Information,
directly
or
indirectly, or use it in any way, either during the
term of this Agreement or at any later time, except
as required in the course of [Rogers's] employment
with
[Burch]
or
with
the
express
written
authorization from [Burch]. [Rogers] acknowledges
and agrees that any disclosure of the Proprietary
Information
shall
result
in
immediate
and
irreparable harm to [Burch], and that [Burch] shall
be entitled to seek injunctive relief as well as
recovery of any direct, indirect, consequential, or
punitive damages as provided by Alabama law
resulting from any disclosure in violation of this
Agreement.
"c. Company Property. All files, plans, pricing
and
other
records,
documents,
drawings,
specifications, equipment, computer data and images,
and similar items relating to the business of
[Burch], whether prepared by [Rogers], or otherwise
coming into [Rogers's] possession, shall remain the
exclusive property of [Burch] and shall be returned
to
[Burch]
immediately
upon
termination
of
[Rogers's] employment with [Burch].
4
1190088
"3.
No
Post-Employment
Solicitation
of
Customers
for Two (2) years. Upon the termination of
[Rogers's] employment with [Burch], for any reason
whatsoever, and for two (2) years following said
termination,
[Rogers]
shall
not,
directly
or
indirectly, impliedly or expressly, either as an
employee, member, manager, employer, consultant,
agent, principal, partner, stockholder, corporate
officer, director, or in any other individual or
representative capacity, offer to provide goods and
services that are provided by [Burch] to, or
otherwise call on, solicit, or take away, or attempt
to call on, solicit, or take away, any customer for
which [Burch] provided services (or solicited to
provide services) during [Rogers's] employment with
[Burch].
"4.
No
Post-Employment
Solicitation
of
Employees
for Two (2) Years. Upon the termination of
[Rogers's] employment with [Burch], for any reason
whatsoever, and for two (2) years following said
termination,
[Rogers]
shall
not,
directly
or
indirectly, impliedly or expressly, either as an
employee, member, manager, employer, consultant,
agent, principal, partner, stockholder, corporate
officer, director, or in any other individual or
representative capacity, offer to employ any person
who is employed by [Burch], or who was employed by
[Burch] during [Rogers's] employment with [Burch].
"5. Compensation for Breach. In the event of a
breach of this Agreement by [Rogers], in addition to
the termination of [Rogers's] employment with
[Burch], [Burch] may recover from [Rogers], at
[Burch's] sole discretion, either (1) any and all
damages actually sustained by [Burch]; or, (2) in
recognition of the fact that the exact amount of
damages sustained by [Burch] will be difficult or
impossible to ascertain, as liquidated damages and
not as a penalty, the sum of $10,000, such amount
representing the reasonably foreseeable minimum
amount of damages that would be sustained by [Burch]
5
1190088
in the event of a breach of this Agreement by
[Rogers]
"6. Equitable and Injunctive Relief Available.
In the event of a breach or threatened breach by
[Rogers] of the obligations under this Agreement,
[Rogers] acknowledges that [Burch] will not have an
adequate remedy at law and shall be entitled to such
equitable and injunctive relief as may be available
to restrain [Rogers] from the continued (or
threatened) violation of this Agreement. Nothing in
this paragraph shall be construed as prohibiting
[Burch] from pursuing any other remedies available
for breach or threatened breach of this covenant not
to compete, including the recovery of damages from
[Rogers]."
On November 21, 2017, Rogers gave notice to Burch that he
would be resigning effective December 5, 2017. After
receiving that notice, Burch informed Rogers that he did not
need to continue working for Burch.
Soon after leaving Burch, Rogers started working for
American Thermal Systems, Inc. ("ATS"), as its president. ATS
constructs cold-storage facilities. At the time, ATS was
owned by Rogers's father.2
2In 2019, Rogers purchased his father's interest in ATS.
ATS competes with Burch for the sale of cold-storage
facilities.
6
1190088
Clyde Walker was employed with Burch as the manager of
its cold-storage facilities in Birmingham.3 As part of his
job, Walker handled many
aspects of every cold-storage project
coming through Burch's Birmingham office. Walker's duties
included bid processes, construction management, and client
management.
On December 6, 2018, Rogers offered Walker a job with
ATS. Walker accepted the offer on December 10, 2018. On
December 31, 2018, Walker notified Burch that he was
resigning. Walker's final day of employment with Burch was
January 11, 2019. After beginning employment with ATS, Walker
contacted the Burch customers that he had worked with while he
was employed with Burch.
On January 29, 2019, Burch sued Rogers, Walker, and ATS,
setting out seven counts in its complaint. In count 1, Burch
alleged that Rogers breached the provisions in his employment
agreement
regarding
confidentiality,
trade
secrets,
proprietary information, and solicitation of customers. In
count 2, Burch alleged that Rogers and Walker solicited
3In contrast to Walker's job as manager of facilities,
Rogers was a project manager, a position that involved "client
management," "organization," and "subcontractor selection."
7
1190088
clients in violation of the employment agreement. In count 3,
Burch alleged that Rogers and Walker were negligent and wanton
in handling proprietary information belonging to Burch. Count
4 alleged conversion against ATS, Rogers, and
Walker regarding
proprietary information.
Count 5 asserted violations of
trade
secrets against ATS, Rogers, and Walker. In count 6, Burch
sought injunctive relief against ATS, Rogers, and Walker to
prevent further allegedly improper use of Burch's proprietary
information. Count 7 alleged civil conspiracy against ATS,
Rogers, and Walker for soliciting Burch's customers and
employees and for using Burch's proprietary information.
Rogers, Walker, and ATS were served with notice and were
notified that depositions would be taken. On September 30,
2019, Burch sought a preliminary injunction against Rogers,
alleging that the unique and confidential information
developed by
Burch's
management-level employees
like
Rogers
is
not available to the public and is part of Burch's proprietary
information. Burch further alleged that Rogers's employment
agreement
prohibited
Rogers
from
soliciting
Burch's
customers,
current employees, and former employees for two years.
Following
a
hearing,
the
trial
court
entered
a
8
1190088
preliminary injunction on October 17, 2019, finding, in
pertinent part, that there was:
"(1) Substantial evidence that Burch is likely
to succeed on the merits of its claims against
Rogers. Burch provided evidence of the existence of
the Agreement, fully signed by the parties and
enforceable only after the initiation of Rogers's
employment with Burch. Burch provided evidence that
Rogers violated that Agreement in various ways,
including (a) the solicitation and hiring of
Defendant Walker, whose position with Burch was
uniquely essential to Burch's operations; and (b)
soliciting current Burch clients and/or vendors
through his agents, ATS and Walker.
"(2) A reasonable probability of irreparable
injury to Burch due to the further loss of customers
and goodwill which qualifies as irreparable injury
that can be protected by injunctive relief. See,
e.g., Ala. Code [1975,] § 8-l-191(a)('A protectable
interest includes all of the following: ... (3)
Commercial relationships or contacts with specific
prospective
or
existing
customers,
patients,
vendors, or clients.'); Ormco Corp. v. Johns, 869
So. 2d 1109, 1119 (Ala. 2003); Bayou Lawn &
Landscape Servs. v. Oates, 713 F.3d 1080, 1085 (11th
Cir. 2013)('The court found that the Plaintiffs had
demonstrated that the new rules would have an
immediate and significant impact on them, resulting
in lost revenue, customers, and/or goodwill. We find
no clear error in these findings of fact. We have
held that these facts support a finding of
irreparable
injury.');
BellSouth
Telecommunications,
Inc. v. MCIMetro Access Transmission Services, LLC,
425 F.3d 964, 970 (11th Cir. 2005); Ferrero v.
Associated Materials Inc., 923 F.2d 1441, 1449 (11th
Cir. 1991); DJR Assocs., LLC v. Hammonds, 241 F.
Supp. 3d 1208, 1231-32 (N.D. Ala. 2017). The entry
of the requested preliminary injunction would keep
the status quo during the course of this litigation
9
1190088
and cause little to no harm to Rogers, as the
preliminary injunction would merely require Rogers
to abide by the terms of his Agreement.
"(3) Because Burch faces irreparable injury,
there is also no adequate remedy at law for the
potential damage to Burch. Water Works & Sewer Bd.
of
the
City
of
Birmingham
v.
Inland
Lake
Investments, LLC, 31 So. 3d 686, 692 (Ala. 2009)
('[A] conclusion that the injury is irreparable
necessarily shows that there is no adequate remedy
at law.').
"(4) The hardship imposed upon Rogers by the
injunction does not unreasonably outweigh the
benefit to Burch. Rogers remains able to work and
provide construction services for cold storage
facilities. This Order merely enjoins Rogers and
his agents from soliciting any further Burch
employees or customers, as Rogers contractually
agreed in his Agreement. Further, Walker testified
that he and ATS are using their best efforts not to
target Burch customers, so this Order should not
cause any additional harm to Rogers, ATS or Walker.
"Accordingly, it is hereby ORDERED that:
"Rogers, including, without limitation, his
officers, agents, servants, employees, attorneys and
all persons in active concert with said parties, are
hereby restrained and enjoined to:
"(1) refrain from any further solicitation of
Burch's current clients or current customers;
"(2) refrain from any further solicitation of
Burch's uniquely essential employees or agents.
"The Court makes no determination as to any
potential damages to Burch for Rogers's purported
breaches of the Agreement and that matter is held
over for a final hearing in this matter. This Order
10
1190088
shall remain in force and effect until such earlier
time as the Court may issue a final order in this
matter or the Order is altered or terminated by the
Court. The Court further orders that this
preliminary injunction is conditioned upon the
posting a bond by Burch with the Clerk of this Court
in the amount of ONE THOUSAND 00/100 Dollars
($1,000) for the payment of any costs or damages
which may be incurred by Rogers, such bond having
been approved by the Court."
(Capitalization in original.)
Rogers appeals, arguing that the employment agreement and
thus the restrictive covenants in that agreement are void
because he was not an employee of Burch when he signed the
agreement and the restrictions are broader than permitted
under § 8-1-190, Ala. Code 1975, and that the preliminary
injunction restricts his post-employment activities for a
longer period than prescribed in the employment agreement. 4
II. Standard of Review
"We have often stated: 'The decision to grant or
to deny a preliminary injunction is within the trial
court's sound discretion. In reviewing an order
granting
a
preliminary
injunction,
the
Court
determines whether the trial court exceeded that
discretion.' SouthTrust Bank of Alabama, N.A. v.
Webb–Stiles Co., 931 So. 2d 706, 709 (Ala. 2005).
4An appeal may be taken from "any interlocutory order
granting, continuing, modifying, refusing, or dissolving an
injunction, or refusing to dissolve or to modify an
injunction." Rule 4(a)(1)(A), Ala. R. App. P.
11
1190088
"A preliminary injunction should be issued only
when the party seeking an injunction demonstrates:
"'"(1) that without the injunction the
[party] would suffer irreparable injury;
(2) that the [party] has no adequate remedy
at law; (3) that the [party] has at least
a reasonable chance of success on the
ultimate merits of his case; and (4) that
the hardship imposed on the [party opposing
the
preliminary
injunction]
by
the
injunction would not unreasonably outweigh
the benefit accruing to the [party seeking
the injunction]."'
"Ormco Corp. v. Johns, 869 So. 2d 1109, 1113 (Ala.
2003)(quoting Perley v. Tapscan, Inc., 646 So. 2d
585, 587 (Ala. 1994))."
Holiday Isle, LLC v. Adkins, 12 So. 3d 1173, 1175–76 (Ala.
2008).
III. Discussion
At the outset, we must determine whether Rogers's appeal
from the preliminary injunction is moot based on the terms of
the employment agreement. A moot case lacks justiciability.
Underwood v. Alabama State Bd. of Educ., 39 So. 3d 120 (Ala.
2009). "This Court must sua sponte recognize and address the
lack of subject-matter jurisdiction owing to the lack of
justiciability." Surles v. City of Ashville, 68 So. 3d 89, 92
(Ala. 2011).
12
1190088
"Events occurring subsequent to the entry or
denial of an injunction in the trial court may
properly be considered by this Court to determine
whether a cause, justiciable at the time the
injunction order is entered, has been rendered moot
on appeal. '[I]t is the duty of an appellate court
to consider lack of subject matter jurisdiction....'
Ex parte Smith, 438 So. 2d 766, 768 (Ala. 1983).
'[J]usticiability is jurisdictional.' Ex parte State
ex rel. James, 711 So. 2d 952, 960 n. 2 (Ala. 1998).
A justiciable controversy is one that 'is definite
and concrete, touching the legal relations of the
parties in adverse legal interest, and it must be a
real and substantial controversy admitting of
specific relief through a decree.' Copeland v.
Jefferson Cnty., 284 Ala. 558, 561, 226 So. 2d 385,
387 (1969). A case lacking ripeness has yet to come
into existence; a moot case has died. Between the
two lies the realm of justiciability. See 13B
Charles Alan Wright et al., Federal Practice and
Procedure § 3533 (3d ed. 2008) ('It is not enough
that the initial requirements of standing and
ripeness have been satisfied; the suit must remain
alive throughout the course of litigation, to the
moment of final appellate disposition.')."
South Alabama Gas Dist. v. Knight, 138 So. 3d 971, 975–76
(Ala. 2013)(footnotes omitted).
In this case, the trial court entered a preliminary
injunction based on the parties' employment agreement.
"The primary purpose of injunctive relief ... is to
prevent future injury. See Williams v. Wert, 259
Ala. 557, 559, 67 So. 2d 830, 831 (1953)('The court
cannot enjoin an act which has occurred.'); 43A
C.J.S. Injunctions 17 (2014)('Equity will not
usually issue an injunction when the act complained
13
1190088
of has been committed and the injury has already
occurred.')."
Irwin v. Jefferson Cty. Pers. Bd., 263 So. 3d 698, 704 (Ala.
2018).
Rogers notified Burch on November 21, 2017, that his last
day of employment
with Burch would be December 5, 2017. His
employment agreement with Burch provided that he could not
solicit Burch's employees or customers for two years from the
date his employment ended, which would have been, at the
latest, December 6, 2019.5 On October 17, 2019, the trial
court
entered
a
preliminary
injunction
prohibiting
Rogers
from
soliciting Burch's employees or customers. Rogers filed his
notice of appeal on October 30, 2019. The two-year period set
out in the employment agreement has now expired. Therefore,
the issue whether the trial court exceeded its discretion in
prohibiting Rogers from soliciting Burch's employees or
customers from the date the order was entered on October 17,
5Section 8-1-190(b)(5), Ala. Code 1975, provides that the
presumptively reasonable time limit for a nonsolicitation
restrictive covenant is 18 months. "The party seeking
enforcement of the covenant has the burden of proof on every
element. The party resisting enforcement of the covenant has
the burden of proving the existence of undue hardship, if
raised as a defense." § 8-1-194, Ala. Code 1975.
14
1190088
2019, until the two-year period established by the employment
agreement expired at the latest on December 6, 2019, is now
moot. That is, there is nothing justiciable concerning the
preliminary injunction because the nonsolicitation clause in
the employment agreement expired, at the latest, on December
6, 2019. Accordingly, "[a] decision by us in this case would
accomplish nothing"; therefore, we conclude that the case
before us is moot and that the appeal is due to be dismissed.
Eagerton v. Corwin, 359 So. 2d 767, 769 (Ala. 1977).
APPEAL DISMISSED.
Parker, C.J., and Wise, Sellers, and Stewart, JJ.,
concur.
15 | June 19, 2020 |
e1bef659-af2b-4035-a0c8-e68c52258777 | Ex parte R.M.S. and D.A.S. | N/A | 1190716 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190716
Ex parte R.M.S. and D.A.S. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: D.A.S. v. Madison County Department of Human Resources)
(Madison Juvenile Court: JU-17-1319.02; Civil Appeals : 2180918).
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 |
dd1489e3-a005-4ac3-a90e-6e54b380f36c | Cardell Coachman, a deceased minor, by and through his mother and next friend Johnitia Coachman v. Rucker Place, LLC, and Savoie Catering, LLC | N/A | 1190102 | 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
June 19, 2020
1190102
Cardell Coachman, a deceased minor, by and through his mother and next friend
Johnitia Coachman v. Rucker Place, LLC, and Savoie Catering, LLC (Appeal from Jefferson
Circuit Court: CV-17-903656).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on June 19, 2020:
Application Overruled. No Opinion. Sellers, J. - Bolin, Wise, Mendheim, Stewart, and
Mitchell, JJ., concur. Parker, C.J., and Shaw, and Bryan, JJ., dissent.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on April 24, 2020:
Affirmed. Sellers, J. - Bolin, Wise, Mendheim, Stewart, and Mitchell, JJ., concur. Parker,
C.J., and Shaw, and Bryan, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Ann D. Wilson, as Acting 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 19th day of June, 2020.
i j i .
Acting Clerk, Supreme Court of Alabama | June 19, 2020 |
a914d055-4c93-4bcc-a8c7-4328cce866fa | Ex parte Teshia Gulas and Carla Pruitt. | N/A | 1180319 | 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 |
5f847fb3-2450-4eaa-8f9f-d0085e82e38a | Ex parte Christopher Allen Adams. | N/A | 1190688 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190688
Ex parte Christopher Allen Adams. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Christopher Allen Adams v. State of Alabama) (Baldwin
Circuit Court: CC-18-2765; Criminal Appeals : CR-18-1083).
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. 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
256c55eb-75a7-4fe5-957a-8c313f26df55 | Ex parte Rhonda M. Johnson Bonham. | N/A | 1190784 | 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
1190784
Ex parte Rhonda M. Johnson Bonham. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Rhonda M. Johnson Bonham v. State of Alabama)
(Covington Circuit Court: CC-07-5.70; CC-07-5.71; Criminal Appeals :
CR-18-1194).
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 |
995791cf-1e1a-46a8-b317-7196ab3ebf6b | Michael Coleman, as administrator of the Estate of Diane McGlown, deceased v. Rucker Place, LLC, and Savoie Catering, LLC | N/A | 1190110 | 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
June 19, 2020
1190110
Michael Coleman, as administrator of the Estate of Diane McGlown, deceased v.
Rucker Place, LLC, and Savoie Catering, LLC (Appeal from Jefferson Circuit Court:
CV-17-905217).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on June 19, 2020:
Application Overruled. No Opinion. Sellers, J. - Bolin, Wise, Mendheim, Stewart, and
Mitchell, JJ., concur. Parker, C.J., and Shaw, and Bryan, JJ., dissent.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on April 24, 2020:
Affirmed. Sellers, J. - Bolin, Wise, Mendheim, Stewart, and Mitchell, JJ., concur. Parker,
C.J., and Shaw, and Bryan, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Ann D. Wilson, as Acting 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 19th day of June, 2020.
i j i .
Acting Clerk, Supreme Court of Alabama | June 19, 2020 |
0fc52c54-0883-440e-bfb2-312b05aff273 | Ex parte Nancy Beamon. | N/A | 1181060 | 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
_________________________
1181060
_________________________
Ex parte Nancy T. Beamon
PETITION FOR WRIT OF MANDAMUS
(In re: Bruce Allen Arnott
v.
Nancy T. Beamon, as personal representative of the Estate of
Lois P. Arnott)
(Washington Circuit Court, CV-18-900071)
WISE, Justice.
Nancy T. Beamon, personal representative of the estate of
Lois P. Arnott, the defendant below, filed a petition for a
writ of mandamus requesting that we order the Washington
1181060
Circuit Court to dismiss the complaint filed against her by
Bruce Allen Arnott, the plaintiff below. We grant the
petition and issue the writ.
Facts and Procedural History
Donovan Arnott, Jr., was married to Lois P. Arnott. The
two were residents of Lee County, Georgia. Bruce is the son
of Donovan and Lois. Lois had two children from a prior
marriage, Beamon and John Edward Terry. Donovan adopted
Beamon but did not adopt Terry.
Donovan died testate on May 1, 2014. At the time of his
death, Donovan owned a house and two lots located in Clarke
County, Alabama; a 488-acre tract of land in Washington
County, Alabama, known as the "Atchison tract"; a tract of
land in Clarke County, Alabama, known as "the Smith tract";
and another tract of land in Clarke County, Alabama, known as
"the Taylor tract." His will was probated in Lee County,
Georgia. In his will, Donovan left the house and two lots
located in Clarke County to Lois. Donovan's will also
provided, in pertinent part:
"I, give, devise, and bequeath to my beloved
wife, LOIS P. ARNOTT, if she shall survive me, a
life estate in and to all of my other real estate,
together with the right to cut any and all timber
2
1181060
located thereon as needed as long as the cutting
practice is in accordance with the acceptable
forestry practice with provisions made for timber
regeneration in accordance with acceptable forestry
practices."
Donovan devised a remainder fee-simple interest in the
Atchison tract to Bruce; a reminder fee-simple interest in the
Smith tract to Beamon; and a remainder fee-simple interest in
the Taylor tract to Terry.
Lois died testate on July 22, 2017, and her will was
probated in the probate court of Lee County, Georgia ("the
Georgia court"). Beamon was the executor of Lois's will. The
Georgia court issued letters testamentary to Beamon on
November 1, 2017.
On October 30, 2018, Bruce, a resident of Clarke County,
Alabama, filed a complaint in the circuit court of Washington,
County, Alabama ("the circuit court"). The complaint named
Beamon as the defendant, stating:
"Defendant, Nancy T. Beamon, at all times material
to this matter was serving in her capacity as
personal
representative
under
the
ancillary
administration in Clarke County, Alabama, of the
estate of Lois P. Arnott, which was filed on August
8, 2018 (see Affidavit of E. Tatum Turner,
attached)."
In his complaint, Bruce alleged:
3
1181060
"10. During 2016, Lois P. Arnott, as the life
tenant of the Atchison Tract, had the timber on the
488 acre Atchison Tract in Washington County,
Alabama clear cut, with such action completed in
November 2016.
"11. During the remainder of her life following
the clear-cutting of the Atchison Tract, Lois P.
Arnott took no steps to satisfy her timber
regeneration obligation under Item Three of Donovan
Arnott, Jr.'s will.
"12. It is understood in the forestry industry
that it is normal practice after the clear-cutting
of property to delay timber regeneration for a year
or so to allow time for preliminary steps such as
site preparation.
"13. Lois P. Arnott's obligation under Item
Three
of
Donovan
Arnott,
Jr.'s
will
to
regenerate/reforest the Atchison Tract following its
clear-cutting, for the benefit of Plaintiff Bruce
Allen Arnott, the owner of the remainder interest in
the Atchison Tract, survived Lois P. Arnott's death.
"14. Lois P. Arnott's timber regeneration
obligation passed to Lois's estate, and more
specifically to the ancillary administration of her
estate in Clarke County, Alabama, with the will also
filed in Washington County, Alabama (see Affidavit
of E. Tatum Turner).
"15. The obligation of the timber regeneration
of the Atchison Tract passed to Lois P. Arnott's
estate.
"16. As the personal representative of Lois P.
Arnott's estate under the ancillary administration
of the estate in Alabama, including the Atchison
Tract in Washington County, Alabama, Defendant Nancy
T. Beamon was responsible for carrying out the
timber regeneration of the Atchison Tract.
4
1181060
"17. Now that nearly two years has passed since
the completion of the clear-cutting of the Atchison
Tract in November 2016, no timber regeneration has
been commenced on the property by Defendant Nancy T.
Beamon in her capacity as personal representative of
Lois P. Arnott's estate.
"18. Representations have been made by Attorney
Greg Fullerton, representing Defendant Nancy T.
Beamon in her capacity as personal representative of
Lois P. Arnott's estate in Washington County,
Alabama, to the effect that payment was forthcoming
to cover the cost of timber regeneration.
"19. No such payment, full or partial, has been
made and none appears to be likely."
On December 5, 2018, Beamon filed a motion to dismiss the
complaint on the basis that the circuit court did not have
subject-matter jurisdiction over the claims. In her motion to
dismiss, Beamon asserted:
"In regard to the administration of an estate, the
probate court is a court of general and original
jurisdiction. Ala. Const. 1901, § 144; Ala. Code
1975, § 12-13-1(b); Dubose v. Weaver, 68 So. 3d 814,
821 (2011). A 'circuit court cannot initiate the
administration of an estate, because the initiation
of administration is a matter exclusively in the
jurisdiction of the probate court.' Ex parte Smith,
619 So. 2d 1374, 1376 (1993) (emphasis added)."
She went on to assert that there had not been any
administration of Lois's estate in Washington County; that
Lois's will had not been admitted to probate in Washington
County; and that letters testamentary had not been granted in
5
1181060
Washington County. She further asserted that no petition or
document regarding the administration of Lois's estate had
been filed in Washington County. Thus, she asserted that the
administration of Lois's estate in Washington County had not
yet commenced and that the circuit court did not have
jurisdiction over the complaint. Beamon further argued that,
even if the circuit court were to assume that the
administration of Lois's estate had commenced in Washington
County, the circuit court still did not have jurisdiction.
Beamon asserted:
"A circuit court may only obtain jurisdiction over
a pending administration of an estate by removing
the administration from the probate court to the
circuit court pursuant to Ala. Code 1975, §
12-11-[4]1. Code Section 12-11-41 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
6
1181060
will annexed and that, in the opinion of
the petitioner, such estate can be better
administered in the circuit court than in
the probate court.'
"Hence,
in
order
for
the
Court
to
have
subject-matter jurisdiction over the above-styled
matter, a petition to remove the administration of
Ms. Arnott's estate must have been filed and the
Court must have entered an order of removal prior to
the filing of the Plaintiff's Complaint. Ala. Code
[1975,] § 12-11-[4]1, Dubose[ v. Weaver], 68 So. 3d
[814,] 821-22 [(Ala. 2011)] ('[T]he 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 an estate
....') (citations omitted).
"Here,
neither
Plaintiff
nor
any
other
interested party has filed a petition for removal.
Moreover, this Court has not entered an order
purporting to remove the administration of Ms.
Arnott's estate from the Washington County Probate
Court. Accordingly, the Court lacks jurisdiction
over the administration of Ms. Arnott's estate and,
more specifically, the Plaintiff's Complaint."
Bruce filed a response to Beamon's motion to dismiss and
also filed a response to the caselaw cited by Beamon. In his
response to the motion to dismiss, Bruce stated that he did
not contest the accuracy of Beamon's assertion that no
documents regarding Lois's will or estate had been filed in
Washington County and Beamon's assertion that neither she nor
any
other
person
had
been
appointed
the
personal
7
1181060
representative of an ancillary estate for Lois by any probate
court in Alabama. Bruce went on to assert:
"The Plaintiff herein, conceding that the filing of
Ms. Arnott's will in Clarke County, Alabama does not
count as an ancillary administration in that
jurisdiction, accepts the Defendant's position that
no administration of Ms. Arnott's estate has been
undertaken in Alabama.
"Moreover, the Plaintiff does not assert this
Court's jurisdiction is based on an interest held by
Ms. Arnott at the time of her death in real property
with a situs in Washington County, the Atchison
Tract. It is clear that Ms. Arnott's interest in
the Atchison Tract was a life estate that therefore
terminated at her death. It is the Plaintiff's
contention that the absence of any proceeding for
the administration of Ms. Arnott's estate in Alabama
is irrelevant to the viability of the Plaintiff's
cause
of
action.
Rather,
this
suit
is
a
straightforward action to recover on a claim against
Lois P. Arnott's estate, which, as stated above, is
based on the Defendant's breach of her fiduciary
duty in her capacity as executrix of Lois P.
Arnott's estate to satisfy Lois's obligation to
carry out the timber regeneration of the Atchison
Tract following Lois's clear cutting of the
property.
"Focusing on the issue of subject matter
jurisdiction, the failure of the Defendant to
perform the obligation of timber regeneration
constituted
a
wrongdoing
that
affected
real
property, the Atchison Tract, with a situs in
Washington County. The obligation was for the
benefit of the remainderman, the Plaintiff, the
party to whom the Defendant owed the fiduciary duty
of timber regeneration. The Defendant's failure to
satisfy her obligation must be viewed as resulting
in damage to the property, a point that confirms the
8
1181060
idea that the Plaintiff's cause of action seeking
recovery for this damage has no direct relationship
to the administration of Lois P. Arnott's estate."
On June 27, 2019, Beamon filed a supplement to her motion
to dismiss and a reply to Bruce's response. Beamon pointed
out that Bruce had conceded that there was no ancillary
administration of Lois's estate but the complaint named her as
if there was an ancillary administration. She further pointed
out that, in his response to the caselaw she had cited, Bruce
had stated that he was "seeking satisfaction of that claim
from the estate" and that "Lois's estate is involved solely
for the limited purpose of serving as a source of compensation
for the breach of Lois's duty [as] life tenant of Atchison
Tract to reforest the property." Beamon argued that the only
estate that existed was Lois's estate in Georgia and that any
claim against Lois's estate must be brought in Georgia.
Beamon further argued:
"5.
Lastly,
the
Plaintiff
attempts
to
distinguish all of the cases cited in support of
Defendant's motion, but yet, fails to provide this
court with a single case where jurisdiction was
allowed over an executor appointed in a foreign
state. Furthermore, the case of Jefferson v. Beall,
117 Ala. 436 (Ala. 1897), specifically states, '...
an administrator, or executor, is not suable in a
foreign jurisdiction as he has no commission beyond
the State line.' Likewise, in Hatchett v. Berney,
9
1181060
65 Ala. 39 (Ala. 1880), the Alabama Supreme Court
stated, '... an executor, or administrator ... can
not sue, or be sued, in his representative capacity,
in any other state or country than that from which
the letters were derived.' In the present case, Ms.
Beamon's letters were derived from the State of
Georgia and any claim against her must be brought
against the estate of Lois P. Arnott in Georgia.
Ms. Beamon has no authority to take any action in
Alabama."
On July 2, 2019, Bruce filed an amended complaint. In
the style of the case, Bruce named Beamon "both in her
capacity as Executor of the Will of Lois P. Arnott and in her
individual capacity." He went on to state:
"2. Defendant, Nancy T. Beamon, at all times
material to this matter, was serving in her capacity
as Executor of the Will of Lois P. Arnott, who died
testate in Lee County, Georgia on July 22, 2017.
"....
"15. Lois P. Arnott's timber regeneration
obligation passed to Lois's estate, and more
specifically to Defendant Nancy T. Beamon as the
Executor of Lois P. Arnott's Will, with the will
also probated as a foreign will in Clarke County,
Alabama.
"16. The obligation of the timber regeneration
of the Atchison Tract passed to Lois P. Arnott's
estate.
"17. As the Executor of Lois P. Arnott's will
and thus as the personal representative of Lois P.
Arnott's estate including the Atchison Tract in
Washington County, Alabama, Defendant Nancy T.
Beamon was responsible for carrying out the timber
regeneration of the Atchison Tract.
10
1181060
"18. Now that nearly two years has passed since
the completion of the clear-cutting of the Atchison
Tract in November 2016, no timber regeneration has
been commenced on the property by Defendant Nancy T.
Beamon in her capacity as personal representative of
Lois P. Arnott's estate.
"19. Nancy T. Beamon's failure to carry out the
reforestation of the Atchison Tract was not a
failure to satisfy that obligation as part of her
duties to administer the assets of Lois P. Arnott's
because, since Lois P. Arnott died owning only a
life estate in the Atchison Tract, that property was
not an asset of Lois P. Arnott's estate.
"20. Because the reforestation obligation
required the Defendant Nancy T. Beamon to take
action in her capacity as administrator of Lois P.
Arnott's estate that was separate from her duties to
administer the disposition of the assets of Lois's
estate and required the Defendant's action in her
own right, the Defendant's failure to satisfy the
obligation was also a breach of the reforestation
obligation in her individual capacity.
"....
"23. Defendant Nancy T. Beamon, as the personal
representative of Lois P. Arnott's estate, has the
fiduciary duty to see to the fulfillment of Lois P.
Arnott's obligation under Item Three of Donovan
Arnott, Jr.'s Will as to the reforestation/timber
regeneration of the Atchison Tract.
"24.
Because
the
carrying
out
of
the
reforestation obligation was beyond the Defendant's
duties as administrator of Lois P. Arnott's estate
as they pertained to Lois's assets, the Defendant
also had a duty to carry out the reforestation
obligation in her individual capacity.
"25. Defendant Nancy T. Beamon's duty to see to
the timber regeneration of the Atchison Tract both
11
1181060
in her fiduciary and individual capacities was owed
to Plaintiff Bruce Allen Arnott as the owner of the
remainder interest in the Atchison Tract under Item
Six of Donovan Arnott, Jr.'s will.
"26. By not seeing to the performance of Lois P.
Arnott's timber regeneration obligation under Item
Three of Donovan Arnott, Jr.'s will, Defendant Nancy
T. Beamon has breached her fiduciary duty owed to
Plaintiff Bruce Allen Arnott as the individual to
whom the Defendant's fiduciary duty was owed.
"27. By not securing the performance of the
timber regeneration of the Atchison Tract, Defendant
Nancy T. Beamon also in effect breached the general
fiduciary duty that she had as the successor to Lois
P. Arnott's fiduciary duty as a life tenant of the
Atchison Tract owed to the remainderman, Plaintiff
Bruce Allen Arnott, to ensure the proper maintenance
and upkeep of the property and to not allow any
diminution in the value of the property."
(Emphasis added.)
On July 12, 2019, Beamon filed a "Motion to Dismiss
Plaintiff's Amended Complaint for Lack of Subject Matter
Jurisdiction, Lack of Personal Jurisdiction and Failure to
State a Claim upon Which Relief May Be Granted."
On July 24, 2019, Bruce filed a response to Beamon's
motion to dismiss his amended complaint, in which he asserted:
"3. The Plaintiff does not question the point
that the Defendant's fiduciary status and authority
as Executor of Lois P. Arnott's Will is derived from
the Defendant's appointment as such by the Probate
Court for Lee County, Georgia. The Plaintiff,
however, here restates the argument that he made at
page 7 of his Response to Defendant's Supplement to
12
1181060
Defendant's Motion to Dismiss Complaint that, under
the present circumstances, this Court should not
adhere strictly to the statement of the standard
rule as to the limitation of jurisdiction over an
estate fiduciary because (1) the Defendant, to the
extent that she is being sued in this jurisdiction
in her fiduciary capacity, is not being sued in the
context of her fiduciary duties regarding the
administration of Lois P. Arnott's estate. Rather,
she is being sued here on the basis of her failure
to perform the duty to which she succeeded upon Lois
P. Arnott's death to see to the reforestation/timber
regeneration of the Atchison Tract, property located
in this County, property which was not an asset of
Lois's estate; and (2) as pointed out at page 8 of
his Response to Defendant's Supplement, if this
Court does not accept jurisdiction of this case, it
is virtually certain that the Plaintiff will not be
able
to
find
any
forum
that
would
accept
jurisdiction of his cause of action, it is safe to
assume that the Probate Court for Lee County,
Georgia would not accept jurisdiction over an action
seeking compensation for damage suffered by real
property having a situs in Washington County,
Alabama."
On August 21, 2019, the circuit court entered an order
denying Beamon's motion to dismiss. Beamon filed her petition
for a writ of mandamus asking this Court to direct the circuit
court to enter an order dismissing the complaint against her,
and this Court ordered answer and briefs.
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
13
1181060
perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy;
and (4) properly invoked jurisdiction of
the court.'
"Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala.
1995). The question of subject-matter jurisdiction
is reviewable by a petition for a writ of mandamus.
Ex parte Flint Constr. Co., 775 So. 2d 805 (Ala.
2000)."
Ex parte Huntingdon Coll., [Ms. 1180148, March 27, 2020] ___
So. 3d ___, ___ (Ala. 2020).
"A ruling on a motion to dismiss is reviewed
without a presumption of correctness. Nance v.
Matthews, 622 So. 2d 297, 299 (Ala. 1993). This
Court must accept the allegations of the complaint
as true. Creola Land Dev., Inc. v. Bentbrooke
Housing, L.L.C., 828 So. 2d 285, 288 (Ala. 2002).
Furthermore, in reviewing a ruling on a motion to
dismiss we will not consider whether the pleader
will ultimately prevail but whether the pleader may
possibly prevail. Nance, 622 So. 2d at 299."
Newman v. Savas, 878 So. 2d 1147, 1148-49 (Ala. 2003).
Discussion
Beamon argues that the circuit court lacks subject-matter
jurisdiction over this matter and that it lacks personal
jurisdiction over her because the letters testamentary were
issued by the Georgia court and because no ancillary
administration has been filed in Alabama.
"It seems to be settled by the weight, if not by an
unbroken concurrence, of judicial authority, that a
judgment rendered in a foreign jurisdiction against
14
1181060
a domiciliary personal representative is void,
whether objection is or is not made to the exercise
of jurisdiction by the foreign court, and whether
the judgment is against the same or a different
representative.
"The accepted theory of administration is that
the right and liability is purely representative,
and exists only by force of the official character,
and so cannot pass beyond the jurisdiction which
grants it, and reserves to itself full and exclusive
authority over all the assets of the estate within
its limits. Braithwaite v. Harvey, 27 L[awy].
R[ep]. A[nn]. 101 and notes [(1894)]; Reynolds v.
Stockton, 140 U.S. 254 [(1891)]; Hopper v. Hopper,
125 N.Y. 400; [26 N.E. 457;] 12 L[awy]. R[ep].
A[nn]. 237 [(1891)]; Johnson v. Wallis, 112 N.Y.
230; [19 N.E. 653;] 2 L[awy]. R[ep]. A[nn]. 828
[(1889)]; Robinson v. Robinson, 11 Ala. 947
[(1847)]; Harrison v. Mahorner, 14 Ala. [829,] 834
[(1848)]; Hatchett v. Berney, 65 Ala. 39 [(1880)].
"The record affirmatively shows in this case
that appellant sued and obtained the judgment
against
the
defendants,
describing
them
as
executors, and that the present suit is upon such
judgment against them, in the same capacity, in this
state. The only complication or difficulty in the
case arises from the fact that both suits are
against the same persons who would in ordinary cases
be concluded by an adverse judgment. But in this
class of cases the defendant is not personally a
party,
otherwise
than
as
a
commissioned
representative of the court making the appointment,
and for the limits of its jurisdiction, so that
beyond that jurisdiction
he can exercise no
authority, or do or omit any act which will affect
the due administration of the trust by the local
authorities.
"The objection thus goes to the power or
jurisdiction of the court over the subject-matter of
the administration of assets in a foreign State, in
15
1181060
the control of foreign administrators, and to the
capacity of the defendant to do any act to the
prejudice of the domestic administration. Consent
can not give such jurisdiction, or extend the
limited authority of the administration to extra-
territorial acts resulting in judgments against the
assets of the estate. The domestic representative
has no authority to prosecute or defend suits in
foreign jurisdictions, except by the permission and
authority of the particular state, and only as to
assets there located. In Hatchett v. Berney, supra,
we announced the general rule as follows: 'It is
the settled doctrine of this court, and of the
common law, that letters testamentary, or of
administration,
have
no
extra-territorial
operation,
and title derived from them extends, as matter of
right, only to the personal assets which are found
within the jurisdiction of the government from which
they are derived.' And it follows from this, an
administrator, or executor, is not suable in a
foreign jurisdiction -– as he has no commission
beyond the State line. There was, therefore, no
jurisdiction in the court of Georgia to entertain
the suit resulting in the judgment against the
appellees as executor and executrix, by and under
the laws of Alabama; and the judgment rendered in
such a suit is entirely void, and thus can not
support an action in this State against the same or
other administrators."
Jefferson v. Beall, 117 Ala. 436, 439-40, 23 So. 44, 44-45
(1897)(emphasis added).
In this case, Lois's will was probated in Georgia, and
the letters testamentary appointing Beamon as the executor of
that estate were issued by the Georgia court. Further, no
ancillary administration of Lois's estate has been filed in
Alabama.
16
1181060
In the style of his amended complaint, Bruce named Beamon
"both in her capacity as Executor of the Will of Lois P.
Arnott and in her individual capacity." However, he went on
to allege:
"2. Defendant, Nancy T. Beamon, at all times
material to this matter, was serving in her capacity
as Executor of the Will of Lois P. Arnott, who died
testate in Lee County, Georgia on July 22, 2017."
In his amended complaint, Bruce also alleged:
"Because the reforestation obligation required the
Defendant Nancy T. Beamon to take action in her
capacity as administrator of Lois P. Arnott's estate
that was separate from her duties to administer the
disposition of the assets of Lois's estate and
required the Defendant's action in her own right,
the Defendant's failure to satisfy the obligation
was also a breach of the reforestation obligation in
her individual capacity."
Bruce's claims in this case are based on his assertion
that Lois's obligation to reforest the Atchison tract at the
appropriate time passed to her estate. Thus, any payment for
such reforestation would involve Beamon's payments from the
assets of Lois's estate. In fact, Bruce concedes that he is
seeking
compensation for
the
reforestation
from
Lois's
estate.
Thus, his assertion that the reforestation obligation "was
separate from [Beamon's] duties to administer the disposition
of the assets of Lois's estate" is without merit.
17
1181060
In his brief to this Court, Bruce asserts:
"[T]he purpose of the action is to establish the
Defendant's breach of her fiduciary duty to see to
the reforestation of the Atchison Tract, property
with a situs in Washington County, Alabama. Only
when such liability is established would the Georgia
probate
court
having
jurisdiction
over
the
administration of Lois's estate become involved to
the extent of satisfying the claim from Lois's
estate based on the Defendant's breach."
However, when the allegations in Bruce's complaint are read as
a whole, it is clear that he is not alleging that Beamon had
an independent obligation regarding the reforestation of the
Atchison tract. Rather, her only duty was the duty she owed
as the executor of Lois's estate. Further, Bruce's argument
makes it clear that he is not attempting to establish Beamon's
personal liability for
the reforestation or seeking any relief
from her personally for any alleged breach of her fiduciary
duty. Rather, he is seeking to establish his claim against
the estate so that that claim can be satisfied from the assets
of the estate.
Based on the foregoing, it is clear that Bruce's claim
is, in actuality, a claim against Lois's estate and that he is
actually suing Beamon in her capacity as the executor of
Lois's estate. However, Beamon, in her capacity as the
executor of Lois's estate, has no authority to defend a suit
18
1181060
in Alabama because the letters testamentary appointing her
were issued by the Georgia court. See Jefferson, supra.
Therefore, the circuit court did not have subject-matter
jurisdiction over claims against Beamon in her capacity as the
executor of Lois's estate. Accordingly, it erred when it
denied Beamon's motion to dismiss the claims against her.
Conclusion
For the above-stated reasons, we grant Beamon's petition
for a writ of mandamus and direct the circuit court to enter
an order granting Beamon's motion to dismiss the complaint
against her.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Bryan, Mendheim, Stewart,
and Mitchell, JJ., concur.
Sellers, J., concurs in the result.
19 | June 26, 2020 |
6470fbb3-2435-4d27-bc2c-2b0e17ee6156 | Ex parte Jerome Wesley Hughes. | N/A | 1190712 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190712
Ex parte Jerome Wesley Hughes. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Jerome Wesley Hughes v. State of Alabama) (Houston
Circuit Court: CC-16-300; CC-16-303; CC-16-305; CC-16-311; CC-16-323; CC-16-324;
CC-16-372; Criminal Appeals : CR-17-0768).
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 |
b39fcb50-b9e6-4a9f-be7a-38824300f575 | Ex parte Derek Tyler Horton. | N/A | 1190019 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 12, 2020
1190019
Ex parte Derek Tyler Horton. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Derek Tyler Horton v. State of Alabama) (Mobile Circuit Court:
CC-11-2588.80; Criminal Appeals : CR-17-0991).
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 June 12, 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 12th day of June, 2020.
Clerk, Supreme Court of Alabama | June 12, 2020 |
2d2ba14a-9b63-4482-845c-822206ff8145 | Crook v. Allstate Indemnity Company, et al. | N/A | 1180996 | 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
____________________
1180996
____________________
Kevin Crook
v.
Allstate Indemnity Company, The Barker Agency,
and Allstate Insurance Company
Appeal from Tuscaloosa Circuit Court
(CV-16-900626)
MENDHEIM, Justice.
Kevin Crook appeals a summary judgment entered by the
Tuscaloosa Circuit Court in favor of Allstate Indemnity
Company ("Allstate Indemnity"), Allstate Insurance Company
1180996
("Allstate Insurance"), and The Barker Agency (hereinafter
collectively referred to as "the defendants"). We affirm the
summary judgment.
Facts and Procedural History
Crook owns lake-front property in Tuscaloosa County. The
property consists of a house, a bathhouse, a garage, a deck,
and a boat dock. The deck is not directly connected to the
house; an exterior stairway connects the house to the deck.
The boat dock is, in turn, connected to the side of the deck
opposite the stairway and house.1 A portion of the boat dock
is covered with a roof supported by pilings, but the boat dock
has no walls.
In 2006, Crook, through The Barker Agency,2 obtained
property insurance on the house and other structures from
Allstate Indemnity. Allstate Indemnity issued a policy to
Crook ("the policy") and provided uninterrupted insurance
coverage of Crook's house from 2006 through 2015. Crook's
1Crook maintains that the deck and the boat dock are
essentially the same structure. See Crook's reply brief,
p. 11. It is unclear why this is significant to Crook's
argument.
2At that time, The Barker Agency was known as the Michael
Gray Agency.
2
1180996
deposition testimony indicates that, during that time,
although Crook was sent a renewal policy each year with the
details of the policy and specific instructions to read the
renewal policy and determine if the policy limits were
sufficient, Crook was not aware of the actual policy limits
provided by Allstate Indemnity and did not read the renewal
notices. Crook answered in the affirmative when asked if he
"simply trust[ed] that the limits supplied by [Allstate
Indemnity were] exactly what [he] need[ed]."
The policy provided that the "limits of insurance" for
"Coverage A Dwelling Protection" ("Coverage A") was $56,049
and for "Coverage B Other Structure Protection" ("Coverage B")
was $11,455. The policy stated, in pertinent part:
"Property we cover under Coverage A:
"1. Your dwelling including attached
structures. Structures connected to your
dwelling by only a fence, utility line, or
similar connection are not considered
attached structures.
"....
"Property we cover under Coverage B:
"1. Declarations separated from your
dwelling by clear space.
3
1180996
"2.
Structures
attached
to
your
dwelling by only a fence, utility line, or
similar connection."
The term "dwelling" is defined in the policy as "a one, two,
three or four family building structure, identified as the
insured property on the Policy Declarations, where you reside
and which is principally used as a private residence." The
term "building structure" is defined in the policy as "a
structure with walls and a roof."
On February 12, 2015, Allstate Indemnity conducted an
inspection of the property for underwriting purposes. After
the inspection, on February 23, 2015, The Barker Agency sent
Crook the following letter (Allstate Insurance's name was
also
on the letter):
"Re: Property Inspection Results
"As you may recall, we previously informed you
of an upcoming inspection of [the property's]
exterior. We have completed the inspection and want
to share the results with you.
"Congratulations! We did not find any issues
that impact your current coverage* and you do not
need to do anything further. If you have any
questions about the inspection, please give us a
call at the number below.
"We value your business and hope you are
satisfied with the insurance coverage we provide.
4
1180996
Thank you for giving us the opportunity to help
protect what's important to you.
"____________________
"*We want you to know that our inspection of
your property is limited. It focused only on
identifying certain types of hazards or conditions
that might impact your future insurance coverage.
It may not have identified some other hazards or
conditions on your property."
On April 14, 2015, a storm damaged the deck and the boat
dock; the amount of the damage caused "was at or greater than
the coverage provided by" Coverage B. Crook reported the
storm-caused damage. On April 24, 2015, Kevin Smith, a
"claims service analyst" employed by Allstate Insurance,
inspected the damage reported by Crook. Smith concluded that
the deck and the boat dock had been damaged by the storm and
that the damage was covered under Coverage B, rather than
Coverage A. Accordingly, on April 28, 2015, Allstate
Indemnity paid Crook the Coverage B policy limit of $11,455.
On June 7, 2016, Crook sued the defendants, asserting
claims of breach of contract, bad-faith failure to pay a
claim,
negligent/wanton
procurement
of
insurance,
and
estoppel.3 Concerning Crook's breach-of-contract and bad-
3In his complaint, Crook asserted his claims against all
the defendants. Before this Court, however, Crook makes
5
1180996
faith claims, Crook alleged that the damage to the deck and
the boat dock should have been covered under Coverage A, which
has a higher limit of insurance in the amount of $56,049.
Concerning Crook's negligent/wanton-procurement-of-insurance
claim, Crook alleged that he relied upon the defendants to
provide adequate coverage for the property and that the
defendants "knew or should have known that [Coverage B] ...
would be insufficient to cover damages to [the] deck and [the]
boat [dock]." Concerning his estoppel claim, Crook alleged
that the defendants, in the February 23, 2015, letter set
forth above, "assur[ed] [Crook] that his insurance coverage
was sufficient" and that the defendants should have known that
the alleged assurances in the February 23, 2015, letter "would
cause [Crook] to not take further actions to procure
additional or different insurance coverage." Crook asserted
that the defendants "are estopped from asserting a position
inconsistent with the representations in the February 23,
2015, letter."
arguments as if certain claims were asserted against specific,
and not all, defendants. For purposes of this opinion, we
have treated Crook's claims in the same manner he has treated
them before this Court.
6
1180996
On October 9, 2017, Allstate Indemnity and The Barker
Agency filed separate motions for a summary judgment, and on
September 27, 2018, Crook filed a response. Following a
hearing, the circuit court entered a summary judgment in favor
of Allstate Indemnity and The Barker Agency as to all claims
against them on February 27, 2019.
On April 10, 2019, Allstate Insurance filed a motion for
a summary judgment, and on July 24, 2019, Crook filed a
response. Following a hearing, the circuit court entered a
summary judgment in favor of Allstate Insurance as to all
claims against it on July 29, 2019. The circuit court
incorporated its February 27, 2019, order into the July 29,
2019, order and further stated that the policy "was issued by
Allstate Indemnity ..., not Allstate Insurance ...; and that
Allstate Indemnity ... ultimately investigated and issued
payments on [Crook's] claim." Crook appealed.
Standard of Review
Our standard of review of a summary judgment is well
settled:
"'The standard of
review applicable to
a
summary
judgment is the same as the standard for granting
the motion....' McClendon v. Mountain Top Indoor
Flea Market, Inc., 601 So. 2d 957, 958 (Ala. 1992).
7
1180996
"'A summary judgment is proper when
there is no genuine issue of material fact
and the moving party is entitled to a
judgment as a matter of law. Rule 56(c)(3),
Ala. R. Civ. P. The burden is on the moving
party to make a prima facie showing that
there is no genuine issue of material fact
and that it is entitled to a judgment as a
matter of law. In determining whether the
movant has carried that burden, the court
is to view the evidence in a light most
favorable to the nonmoving party and to
draw all reasonable inferences in favor of
that party. To defeat a properly supported
summary judgment motion, the nonmoving
party must present "substantial evidence"
creating a genuine issue of material fact
-- "evidence of such weight and quality
that fair-minded persons in the exercise of
impartial
judgment
can
reasonably
infer
the
existence of the fact sought to be proved."
Ala. Code 1975, § 12–21–12; West v.
Founders Life Assurance Co. of Florida, 547
So. 2d 870, 871 (Ala. 1989).'
"Capital Alliance Ins. Co. v. Thorough–Clean, Inc.,
639 So. 2d 1349, 1350 (Ala. 1994). Questions of law
are reviewed de novo. Alabama Republican Party v.
McGinley, 893 So. 2d 337, 342 (Ala. 2004)."
Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d 933, 935
(Ala. 2006).
Discussion
First, Crook argues that the circuit court erred in
entering a summary judgment in favor of Allstate Indemnity on
Crook's breach-of-contract claim. Crook argues that "[t]he
8
1180996
plain language of the policy provides that the deck [and] boat
[dock are] covered under Coverage A," rather than Coverage B.
Crook's brief, p. 34.
This
Court
applies
the
following
principles
of
construction in interpreting an insurance contract:
"The rules of contract interpretation are well
settled. 'The issue whether a contract is ambiguous
or unambiguous is a question of law for a court to
decide.' State Farm Fire & Cas. Co. v. Slade, 747
So. 2d 293, 308 (Ala. 1999).
"'"If a word or phrase is not
defined in [an insurance] policy,
then the court should construe
the word or phrase according to
the meaning a person of ordinary
intelligence
would
reasonably
give it. The court should not
define words it is construing
based
on
technical
or
legal
terms."
"'Safeway Ins. Co. of Alabama, Inc. v.
Herrera, 912 So. 2d 1140, 1143 (Ala. 2005)
(citations omitted).'
"Travelers Cas. & Sur. Co. v. Alabama Gas Corp., 117
So. 3d 695, 700 (Ala. 2012).
"'"'When analyzing an
insurance
policy,
a
court gives words used
in
the
policy
their
c o m m o n ,
e v e r y d a y
meaning and interprets
them as a reasonable
person in the insured's
9
1180996
position
would
have
u n d e r s t o o d
t h e m .
Western World Ins. Co.
v. City of Tuscumbia,
612 So. 2d 1159 (Ala.
1992); St. Paul Fire &
Marine Ins. Co. v. Edge
Mem'l Hosp., 584 So. 2d
1316 (Ala. 1991). If,
under
this
standard,
they
are
reasonably
certain
in
their
meaning, they are not
ambiguous as a matter
of law and the rule of
construction in favor
of the insured does not
apply. Bituminous Cas.
Corp. v. Harris, 372
So. 2d 342 (Ala. Civ.
App.
1979).
Only
in
cases
of
genuine
a m b i g u i t y
o r
inconsistency
is
it
proper
to
resort
to
rules of construction.
Canal Ins. Co. v. Old
Republic Ins. Co., 718
So. 2d 8 (Ala. 1998). A
policy
is
not
made
ambiguous by the fact
that
the
parties
interpret
the
policy
differently or disagree
as to the meaning of a
written provision in a
contract.
Watkins
v.
United States Fid. &
Guar. Co., 656 So. 2d
337
(Ala.
1994).
A
court must not rewrite
a
policy
so
as
to
10
1180996
include
or
exclude
coverage that was not
intended.
Upton
v.
Mississippi
Valley
Title Ins. Co., 469 So.
2d 548 (Ala. 1985).'
"'"B.D.B. v. State Farm Mut.
Auto. Ins. Co., 814 So. 2d 877,
879–80 (Ala. Civ. App. 2001).
However, if a provision in an
insurance policy is found to be
genuinely ambiguous, 'policies of
insurance should be construed
liberally in respect to persons
insured and strictly with respect
to the insurer.' Crossett v. St.
Louis Fire & Marine Ins. Co., 289
Ala. 598, 603, 269 So. 2d 869,
873 (1972)."
"'State Farm Mut. Auto. Ins. Co. v. Brown,
26 So. 3d 1167, 1169–70 (Ala. 2009)....'
"Travelers, 117 So. 3d at 699–700 (emphasis
omitted)."
St. Paul Fire & Marine Ins. Co. v. Britt, 203 So. 3d 804, 810-
11 (Ala. 2016).
As set forth above, the policy states that Coverage A
applies to Crook's "dwelling including attached structures.
Structures connected to your dwelling by only a fence, utility
line, or similar connection are not considered attached
structures." It is undisputed that the house is a dwelling
and that the deck and the boat dock are structures; the issue
11
1180996
to be decided is whether those structures are "attached
structures." Crook argues that the exterior staircase
attaches the deck to the house and that the deck, in turn,
which is attached to the boat dock, attaches the boat dock to
the house. Accordingly, Crook argues, Coverage A, rather than
Coverage B, applies to cover the damage to the deck and the
boat dock. The defendants argue that the damage is covered by
Coverage B, which applies to "[s]tructures ... separated from
your dwelling by clear space." The defendants argue that the
deck and the boat dock are separated from the dwelling by
"clear space," so as to qualify only for Coverage B.
No Alabama appellate court has published a decision
interpreting the particular policy language at issue. As a
result, the parties have cited various cases from foreign
jurisdictions in making their arguments. We find Dahms v.
Nodak Mutual Insurance Co., 920 N.W.2d 293 (N.D. 2018), the
most instructive; in that case, the Supreme Court of North
Dakota summarized and addressed all the authorities relied
upon by the parties in the present case. In Dahms, the
insureds had a property-insurance policy identical to the
policy at issue in this case in all material respects:
12
1180996
"A. Coverage A – Dwelling
"1. We cover:
"a.
The
dwelling
on
the
'residence premises' shown in the
D e c l a r a t i o n s ,
i n c l u d i n g
structures
attached
to
the
dwelling; ...
"....
"B. Coverage B – Other Structures
"1. We cover other structures on the
'residence premises' set apart from the
dwelling by clear space. This includes
structures connected to the dwelling by
only a fence, utility line, or similar
connection."
Dahms, 920 N.W.2d at 295. The property insured included a
dwelling and a detached garage. The insureds constructed a
deck between the dwelling and the garage, connecting the two
structures. It was undisputed that the deck was attached to
the dwelling and to the garage. Subsequently, the garage was
completely destroyed by a fire.
The insurer determined that the loss was covered under
Coverage B of the insureds' policy and paid the insureds the
policy limit of that coverage, which did not cover the total
amount of damage suffered by the insureds. The insureds
disagreed that Coverage B applied and sued the insurer,
13
1180996
claiming that Coverage A of the insureds' policy, which
provided greater coverage, applied "because the garage was
'attached' to their dwelling by the deck." 920 N.W.2d at 296.
The trial court ruled in favor of the insurer, and the
insureds appealed.
On appeal, the Supreme Court of North Dakota affirmed the
trial court's judgment. In so doing, the Supreme Court of
North Dakota provided the following analysis of the relevant
authorities cited by the parties in the present case:
"Whether Coverage A or Coverage B insurance
policy limits apply under the circumstances present
in this case is a question of first impression in
North Dakota. The parties do not cite, and we have
not found, any cases construing similar insurance
policy provisions from other jurisdictions that are
factually on point. In deciding this issue the
district court found persuasive a hypothetical posed
by the Texas Supreme Court in Nassar v. Liberty Mut.
Fire Ins. Co., 508 S.W.3d 254, 260 (Tex. 2017):
"'To illustrate using a hypothetical,
a stand-alone barn on a residence premises
set apart from the dwelling by clear space
would clearly be covered under subsection
(2). Yet without the second sentence in
subsection (2), a barn that was connected
to the dwelling by only a fence would
qualify as a "structure attached to the
dwelling." This is because the fence,
acting as a "structure attached to the
dwelling" and a "connection" to the barn
that would otherwise be "set apart by clear
space," acts to negate the clear space
14
1180996
requirement that places the barn neatly in
the first sentence of subsection (2). An
insured could simply use some fencing (or
a "utility line or similar connection") and
attach his or her dwelling to every barn,
garage, or other building on the residence
premises
and
secure
coverage
under
subsection (1) instead of subsection (2).
What protects the insurer from an insured
determined to secure coverage for his or
her other structures in such a way? The
second sentence of subsection (2) provides
the answer, and it does so with the
distinction between "dwelling" and "other
structures." In the above illustration,
applying the second sentence of subsection
(2) would cause the barn, connected to the
dwelling by only a fence, to not be
considered "attached to the dwelling" but
rather as effectively "separated by clear
space." The second sentence of subsection
(2) operates to prevent a fence (or similar
connection) attached to the dwelling from
doing exactly what the court of appeals
contemplated the Nassars' interpretation
would do: cause structures attached to the
fence to be covered under subsection (1).
Stated differently, the first sentence of
subsection (2) identifies what is to be
covered, and the second sentence limits
that
coverage.
Applying
this
interpretation
to our hypothetical, the barn would be
covered as an "other structure" even though
it is connected to the dwelling by a
fence.'
"Courts
in
other
jurisdictions
construing
nearly
identical policy language are in accord and have
concluded, as did the district court here, that
decks and concrete patios connected to a dwelling
and other structures constitute 'clear space' which
do not functionally differ from a lawn or garden,
15
1180996
rendering Coverage B limits applicable. The most
extended discussion of the issue appears in Porco v.
Lexington Ins. Co., 679 F. Supp. 2d 432, 434
(S.D.N.Y. 2009), which involved an insured's attempt
to claim Coverage A limits applied to damage to a
swimming pool connected to the dwelling by a patio,
stairs, and a pool deck, none of which was covered
by a roof. The pool's filtration system was located
in the dwelling and was connected to the pool by
pipes. Id. The court relied on ordinary dictionary
definitions of 'attached,' meaning '"joined or
fastened to something,"' and 'connected,' meaning
'"joined or linked together,"' to resolve the issue.
Id. at 437. The court determined the language used
in Coverage A and Coverage B was not ambiguous and
explained:
"'The plain language of "attached"
renders
unpersuasive
Plaintiff's
claim
that
the dwelling is connected to the pool via
the back patio, the steps, and the pool
deck. In essence, Plaintiff asserts that
because the house is "connected to" the
patio, and the patio is "connected to" the
steps, and the steps are "connected to" the
pool deck, and the pool deck is "connected
to" the pool, by some transitive property,
the pool is "attached" to the house and,
therefore, Coverage A applies. If the patio
is joined or fastened to the dwelling, as
it would seem to be, then that might
distinguish the patio from a lawn or other
obviously clear space separating the house
from other structures. However, a dwelling
might well be connected to a patio, and the
patio to a walkway, and a walkway to a dog
house or a mail box, but it would be absurd
to conclude that the dog house and mail box
are
"attached"
to
the
dwelling.
Plaintiff's
implicit argument that manmade structures
that are all connected to each other have
16
1180996
a property of being "attached" must,
therefore, be limited in some way.
"'That limitation is found in the
language of the Policy as applied to the
relationship
between
the
structure
at
issue
and the dwelling. ... Even granting that
the patio and stairs are attached to the
dwelling and that the pool deck is attached
to the pool, it strains the ordinary use of
"attached" to argue that the steps, fence,
and elevation do not set the dwelling apart
from the pool. Put another, simpler way,
the pool is indisputably not joined or
fastened to the dwelling, and the fact that
the pool deck is between the stairs and the
pool, even if they touch each other, does
not change the analysis.'
"Id. at 438. The court reasoned that 'the pool deck
is clear space separating the dwelling (even if
defined to include the stairs from the back patio)
from the swimming pool' because the 'Court is at a
loss to understand how cement is any more of a
restriction of the space than grass would be.' Id.
at
439.
The
court
granted
summary
judgment
concluding the pool was an 'other structure' and
Coverage B applied. Id. at 441.
"Two unreported decisions applying the same
policy language are in accord. See Mentesana v.
State Farm Fire & Cas. Co., No. 07-0456-CV-W-ODS
[May 28, 2008] (W.D. Mo. 2008) [(not selected for
publication in F. Supp.)] ('Plaintiff's pool and
waterfall are separated from his house by clear
space. While this clear space is a concrete patio,
rather than grass, it still provides separation from
the house. Plaintiff's interpretation ... would
allow for any structure to be brought within the
"Dwelling" coverage merely by placing it on a
concrete slab and connecting that slab to the
foundation of the house.'); Arch v. Nationwide Mut.
17
1180996
Fire Ins. Co., CIV. A. No. 88-5421 [Nov. 10, 1988]
(W.D. Pa. 1988) [(not selected for publication in
F. Supp.)] (unroofed twelve-foot concrete patio
between pool and dwelling was clear space because 'a
patio merely comprises part of one's yard as does
any lawn or garden').
"The [insureds] rely on Lazechko v. Auto Owners
Ins. Co., No. 276111 [July 10, 2008] (Mich. Ct. App.
2008) [(unpublished decision)], where the court
ruled Coverage A limits applied to a garage
connected to the dwelling by a breezeway based on a
dictionary
definition
of
breezeway
as
'"an
open-sided roofed passageway for connecting two
buildings, as a house and a garage."' Id. But the
present case does not involve a roofed breezeway,
and the insured in Lazechko was attempting to invoke
Coverage B limits to obtain additional insurance
proceeds."
920 S.W.2d at 297. Based on the above analysis, the Supreme
Court of North Dakota affirmed the trial court's judgment,
concluding that the damage to the insureds' garage was covered
under Coverage B of the insureds' policy, rather than
Coverage A.
As is made clear by the above analysis, the various
jurisdictions that have considered the issue before us have
determined that Coverage B applies to cover damage to an
"other structure" when there is "clear space" between the
dwelling and the other structure, even if the dwelling and the
18
1180996
damaged other structure are connected by a structure such as
a deck.
In the present case, the deck is connected to the house
by an exterior staircase. It is evident from the pictures
provided by the parties that there is "clear space" between
the house and the deck and the boat dock. The fact that the
exterior staircase spans the clear space between the house and
the deck and the boat dock is inconsequential according to
Dahms. The fact remains that neither the deck nor the boat
dock is attached to the house, but there exists clear space
between the structures.4 Accordingly, applying the plain
language of the policy, the circuit court properly determined
that the damage to Crook's deck and boat dock is covered under
Coverage B, rather than Coverage A.5
4Crook notes that Smith's deposition testimony indicates
that the exterior staircase and the deck do not constitute
"clear space" because "[t]here's something there." However,
as thoroughly explained above, the simple fact that there is
"something there" does not mean that there is not "clear
space" as that term is used in the policy. The interpretation
of the policy is a matter of law to be decided by the Court,
not a matter of fact to be decided by Smith. Smith's
testimony in this regard is irrelevant.
5Crook notes that, in determining that Coverage B applied
to the damage in the present case, the circuit court relied
upon the fact that the deck and the boat dock are actually
located on public land and that Crook's deck does not provide
19
1180996
Next, Crook argues that the circuit court erred in
entering a summary judgment in favor of Allstate Indemnity on
Crook's bad-faith claim. As Crook notes in his brief, the
following elements must be established to prevail on a bad-
faith claim:
"(a) an insurance contract between the parties
and a breach thereof by the defendant;
"(b)
an
intentional refusal to
pay
the
insured's
claim;
"(c) the
absence of
any
reasonably legitimate or
arguable reason for that refusal (the absence of a
debatable reason);
"(d) the insurer's actual knowledge of the
absence of any legitimate or arguable reason;
"(e) if
the
intentional failure to
determine the
existence of a lawful basis is relied upon, the
plaintiff must prove the insurer's intentional
failure to determine whether there is a legitimate
or arguable reason to refuse to pay the claim."
National Sec. Fire & Cas. Co. v. Bowen, 417 So. 2d 179, 183
(Ala. 1982) (emphasis added). The very first element of a
bad-faith claim is that there must be a breach of an insurance
structural support to the house. See Crook's brief,
pp. 44-46. Crook argues that these facts are irrelevant to
interpreting the plain language of the policy. We agree, and
we have not relied upon those facts in our analysis. As
demonstrated above, however, the circuit court's judgment may
be affirmed without reliance upon those superfluous facts.
20
1180996
contract between the parties. As discussed above, Crook has
failed to establish that the circuit court erred in
determining that Allstate Indemnity did not breach the
policy.
Crook has thus failed to establish the first element of his
bad-faith claim. Accordingly, we affirm the circuit court's
summary judgment in favor of Allstate Indemnity as to Crook's
bad-faith claim.
Next, Crook argues that, even if Allstate Indemnity did
not breach the policy by applying Coverage B, "Crook has
trial-worthy
claims
[against
Allstate
Indemnity and
The
Barker
Agency] for negligence in procurement of insurance, negligent
inspection, and estoppel." Crook's brief, p. 50. Crook's
negligence arguments appear to be intertwined.
He
essentially
argues that Allstate Indemnity and The Barker Agency
negligently inspected the property, which caused them to
negligently procure the policy. In other words, Crook appears
to be arguing that the alleged negligent inspection led
Allstate Indemnity to provide an inadequate limit for
Coverage B. Based on Crook's argument, the alleged negligent
inspection matters only insofar as it informed the policy
limits. Although Crook has divided his negligence claim into
21
1180996
two separate theories, the gravamen of Crook's negligence
claim is one of negligent procurement of insurance, and we
will treat it as such. Furthermore, we note that Crook does
not cite this Court to any authority indicating that such
negligence theories constitute separate claims.
In Alfa Life Insurance Corp. v. Colza, 159 So. 3d 1240,
1248 (Ala. 2014), this Court, relying on Kanellis v. Pacific
Indemnity Co., 917 So. 2d 149 (Ala. Civ. App. 2005), set forth
the elements of a negligent-procurement claim and also noted
the applicability of the doctrine of contributory negligence
to such a claim, as follows:
"In Kanellis v. Pacific Indemnity Co., 917 So. 2d
149, 155 (Ala. Civ. App. 2005), the Court of Civil
Appeals set forth the elements a plaintiff asserting
a
negligent-procurement
claim
is
required
to
establish:
"'Like any negligence claim, a claim
in tort alleging a negligent failure of an
insurance agent to fulfill a voluntary
undertaking
to
procure
insurance
...
requires demonstration of the classic
elements of a negligence theory, i.e.,
"(1)
duty,
(2)
breach
of
duty,
(3) proximate cause, and (4) injury."
Albert v. Hsu, 602 So. 2d 895, 897 (Ala.
2002).
Under
Alabama
law,
however,
contributory negligence is a complete
defense to a claim based on negligence.
Mitchell
v.
Torrence
Cablevision
USA,
Inc.,
22
1180996
806 So. 2d 1254, 1257 (Ala. Civ. App.
2000).'"
Crook argues that Allstate Indemnity and The Barker Agency
negligently procured the insurance limits of the policy.
Crook states that he relied upon the expertise of Allstate
Indemnity and The Barker Agency in setting the insurance
limits and that they negligently failed to properly set those
limits as evidenced by the fact that the policy limits of
Coverage B were inadequate to fully compensate him for the
damage to the deck and the boat dock.
The defendants, on the other hand, argue that Crook was
contributorily negligent. In Colza, this Court stated:
"With regard to establishing contributory negligence
as a matter of law, this Court has stated:
"'The question of contributory negligence
is normally one for the jury. However,
where
the
facts
are
such
that
all
reasonable persons must reach the same
conclusion, contributory negligence may be
found as a matter of law. Brown [v.
Piggly–Wiggly Stores, 454 So. 2d 1370, 1372
(Ala. 1984)]; see also Carroll v. Deaton,
Inc., 555 So. 2d 140, 141 (Ala. 1989).
"'To
establish
contributory
negligence
as a matter of law, a defendant seeking a
[judgment as a matter of law] must show
that the plaintiff put himself in danger's
way and that the plaintiff had a conscious
appreciation of the danger at the moment
23
1180996
the incident occurred. See H.R.H. Metals,
Inc. v. Miller, 833 So. 2d 18 (Ala. 2002);
see also Hicks v. Commercial Union Ins.
Co., 652 So. 2d 211, 219 (Ala. 1994). The
proof
required
for
establishing
contributory negligence as a matter of law
should
be
distinguished
from
an
instruction
given to a jury when determining whether a
plaintiff has been guilty of contributory
negligence. A jury determining whether a
plaintiff has been guilty of contributory
negligence must decide only whether the
plaintiff failed to exercise reasonable
care. We protect against the inappropriate
use of a summary judgment to establish
contributory negligence as a matter of law
by requiring the defendant on such a motion
to establish by undisputed evidence a
plaintiff's
conscious
appreciation
of
danger. See H.R.H. Metals, supra.'
"Hannah v. Gregg, Bland & Berry, Inc., 840 So. 2d
839, 860–61 (Ala. 2002)."
Colza, 159 So. 3d at 1248-49.
In Colza, this Court, relying upon the Court of Civil
Appeals' decision in Kanellis, supra, held that the doctrine
of contributory negligence applies in the context of an
insured's failure to read an insurance contract. A discussion
of these cases is helpful.
In Kanellis, Gus and Maria Kanellis engaged the service
of an insurance agent to obtain from an insurance company
automobile insurance for their vehicle. The agent was able to
24
1180996
secure automobile insurance for the Kanellises' vehicle, a
2001 Porsche 911 valued at $121,000. It is undisputed that
the
Kanellises
did
not
read
the
insurance
policy.
Subsequently, the Kanellises' vehicle was damaged, and they
filed a claim. The insurance company paid to repair the
Kanellises' vehicle, but the insurance company did not pay for
the alleged diminution of the overall value of the vehicle as
a result of the repaired damage. The Kanellises' insurance
policy did not provide for such coverage. Accordingly, the
Kanellises sued the agent, among others, asserting a claim of
negligent procurement of insurance. The trial court ruled in
favor of the Kanellises.
On appeal, the agent argued that the Kanellises had been
contributorily negligent based on their failure to read the
insurance policy and to understand the specific coverages and
limits set forth in the policy. The agent argued:
"[H]ad the Kanellises read their policy, they would
have been placed on notice that the ... policy
procured for them by [the agent] did not provide
coverage for diminution in value resulting from a
covered loss. Therefore, argue[s] [the agent], the
Kanellises' failure to discover that the ... policy
did
not
provide
coverage
for
consequential
diminution in their Porsche's value resulting from
a
covered
collision
amounts
to
contributory
negligence as a matter of law."
25
1180996
Kanellis, 917 So. 2d at 154. The Court of Civil Appeals
agreed. The Court of Civil Appeals stated:
"Foremost [Insurance Co. v. Parham, 693 So. 2d 409
(Ala. 1997),] describes Hickox [v. Stover, 551 So.
2d 259 (Ala. 1989),] as having altered the law so as
to 'eliminate[] the general duty on the part of a
person to read the documents received in connection
with a particular transaction.' Foremost, 693 So. 2d
at 421. As Foremost indicates, the abrogation of
that general duty in Hickox was a 'deviat[ion] from
this State's public policy' (id.); moreover, that
abrogation undercut the legal basis for the
presumption that 'a person receiving a written
instrument in the transaction of business, as, for
example, the ... recipient of an insurance policy,
is acquainted with its contents.' 31A C.J.S.
Evidence § 192 (1996) (footnotes omitted); see also
Hartford Fire Ins. Co. v. Shapiro, 270 Ala. 149,
155, 117 So. 2d 348, 354 (1960) (if an insurance
policy is accepted by the insured, the insured is
bound thereby despite divergence from preliminary
negotiations, because 'an insured is presumed to be
familiar with the provisions of his policy').
Post-Foremost, it is again the law that '[a]n
insured who is competent in intelligence and
background to understand insurance policy language
is charged with knowledge of language in a policy
received by that insured.' Allstate Ins. Co. v.
Ware, 824 So. 2d 739, 745 (Ala. 2002)."
917 So. 2d at 154.
With the above principles established, the Court of Civil
Appeals determined that the Kanellises' insurance policy did
not provide coverage for a diminution of the value of the
vehicle as a result of a covered loss. Moreover, the Court of
26
1180996
Civil Appeals stated that "the Kanellises adduced no evidence
that would tend to indicate that they were anything less than
'competent in intelligence and background to understand
insurance policy language.' Allstate Ins. Co. [v. Ware], 824
So. 2d [739] at 745 [(Ala. 2002)]." Kanellis, 917 So. 2d at
155. Finally, the Court of Civil Appeals concluded
"that in light of the clear language of the ...
policy issued to the Kanellises, the record is
susceptible only to the conclusion that, as a matter
of law, the Kanellises '"put [themselves] in
danger's way"' and had a '"conscious appreciation of
the danger"' of suffering a monetary loss in the
event
of
a
collision
involving
the
Porsche
automobile resulting in a diminution of the value of
the Porsche. See Hannah v. Gregg, Bland & Berry,
Inc., 840 So. 2d 839, 860 (Ala. 2002)."
Kanellis, 917 So. 2d at 155.
This Court relied upon Kanellis in Colza. In Colza,
Dante Colza submitted an application for a life-insurance
policy to an insurance company, naming his wife, Kimberly
Colza, as the beneficiary of the applied-for policy. An agent
of
the
insurance
company
helped
Dante
complete
the
application. Upon completion of the application, the
insurance
company
provided
Dante
with
documents
that
indicated
that several conditions had to be met before the life-
insurance policy went into effect. It is undisputed that the
27
1180996
conditions were not met before Dante's death; the insurance
company, accordingly, did not pay Kimberly the
benefit defined
in the life-insurance policy. Kimberly sued the insurance
company and the agent, asserting, among other things, a claim
of negligent procurement. The trial court ruled in favor of
Kimberly on this claim, and the agent appealed.
Before this Court, the agent, relying upon Kanellis,
argued that, regardless of whether he was negligent in
procuring
the
life-insurance
policy,
the Colzas
were
contributorily negligent because they failed to read the
relevant documents and to meet the requirements for the life-
insurance policy to go into effect clearly set forth therein.
This Court summarized and relied upon Kanellis:
"In ... Kanellis, ... the Court of Civil Appeals
held that an insurance agency and its agent were
entitled to a judgment as a matter of law on the
plaintiffs' negligent-procurement claim because the
insurance policy issued to the plaintiffs clearly
stated the extent of the coverage provided by the
issued policy and the plaintiffs should have
therefore been aware that the policy did not provide
the coverage they subsequently alleged that the
insurance agent failed to procure. 917 So. 2d at
154–55. Thus, the Court of Civil Appeals reasoned,
a finding of contributory negligence as a matter of
law was warranted for the following reason:
"'[I]n light of the clear language of the
[insurance]
policy
issued
to
the
28
1180996
Kanellises, the record is susceptible only
to the conclusion that, as a matter of law,
the
Kanellises
"'put
[themselves]
in
danger's way'" and had a "'conscious
appreciation of the danger'" of suffering
a
monetary
loss
[if
the
event
the
Kanellises allege they sought insurance to
protect themselves from occurred].'
"917 So. 2d at 155. Applying Kanellis to the facts
of
this
case,
[the
agent]
argues
that
the
[documents] apprised the Colzas that there was no
guarantee of immediate coverage based on Dante's
application for coverage and that they accordingly
should have had a conscious appreciation of the
danger they faced if Dante died before a completed
policy issued."
Colza, 159 So. 3d at 1249-50. This Court concluded:
"The documents in this case clearly apprised the
Colzas that Dante was not guaranteed immediate
coverage upon submitting his application for life
insurance to [the agent]. By not reading the
documents, they took a risk and put themselves in
danger's way. We do not think it unreasonable to
conclude as a matter of law that, in this day and
age, any adult of sound mind capable of executing a
contract necessarily has a conscious appreciation of
the
risk
associated
with
ignoring
documents
containing essential terms and conditions related to
the transaction that is the subject of the contract.9
Thus, we agree with the rationale of the Court of
Civil Appeals in Kanellis and hold that, because the
Colzas '"'put [themselves] in danger's way'" and had
a "'conscious appreciation of the danger'" of
suffering a monetary loss,' Kanellis, 917 So. 2d at
155, in the event Dante died before the conditions
for
immediate
coverage
were
met,
any
negligent-procurement
claim
is
barred
by
the
doctrine of contributory negligence.
29
1180996
"____________________
"9Indeed, it would seem more unreasonable to
allow plaintiffs to prevail on negligent-procurement
claims in spite of their failure to read documents
that put them on notice of the extent of their
insurance coverage when that same failure to read
already bars a fraud or breach-of-contract claim
based on the same essential facts. See, e.g.,
Locklear Dodge City, Inc. v. Kimbrell, 703 So. 2d
303, 306 (Ala. 1997) ('[The plaintiff] is capable of
reading; she simply chose not to read this contract
because her husband was ill and because she trusted
[the defendant]. In light of these factors, it is
understandable that [she] might choose not to read
the contract before signing it. She took a risk.
However, [she] should not be excused from her
contractual responsibilities because she took that
risk. To hold otherwise would turn the concept of
"sanctity of contract" upside down.'). See also
Nance v. Southerland, 79 So. 3d 612, 619 (Ala. Civ.
App. 2010) (recognizing that 'a party capable of
reading
and
understanding
English
given
the
opportunity to review an insurance application
cannot avoid the legal consequences of signing that
document, indicating his or her assent to its terms
on the basis that he or she did not read it').
Nothing in the evidence established that Dante
requested to review the application and that Morris
denied him that opportunity."
Colza, 159 So. 3d at 1252-53.
In the present case, it is undisputed that Crook did not
read the policy or the numerous policy-renewal notices sent to
him from 2006 to 2015 that explicitly set forth the policy
limits and explicitly requested that he read them. Had he
done so, Crook would have discovered that the policy limit for
30
1180996
Coverage B was only $11,455 and could have, had he desired,
requested additional coverage. Crook failed to do so and,
thus, "'"put [himself] in danger's way"' and had a '"conscious
appreciation of the danger"' of suffering a monetary loss."
Kanellis, 917 So. 2d at 155. Crook was contributorily
negligent as a matter of law.
Crook argues that "his failure to review his policy
limits is irrelevant because nothing in the coverage limits
informed Crook of how Allstate Indemnity classified [the] deck
[and the boat dock]." Crook's brief, p. 53. Essentially,
Crook argues that he could not have been contributorily
negligent for failing to read the policy because, he says, the
policy did not indicate whether Coverage A or Coverage B
applied to the deck and the boat dock. However, as explained
above, the plain language of the policy indicates that
Coverage B applies to the deck and the boat dock because those
structures are not attached to the dwelling. Crook's argument
is not convincing.
Accordingly, we affirm the circuit court's summary
judgment in favor of Allstate Indemnity and The Barker Agency
31
1180996
as to Crook's negligence claim against Allstate Indemnity and
The Barker Agency.6
Next, Crook argues that the circuit court erred in
granting Allstate Indemnity's summary-judgment motion as to
his estoppel claim. In his estoppel claim, Crook alleged that
Allstate Indemnity is estopped from taking a position
inconsistent with its February 23, 2015, correspondence with
Crook. In the February 23, 2015, letter, which is set forth
in full above, Crook was informed that an inspection of the
property had been completed and that no issues had been
discovered impacting his current coverage. The
letter further
expressly stated that the "inspection of [the] property [was]
limited. It focused only on identifying certain types of
hazards or conditions that might impact [Crook's] future
insurance coverage." According to Crook, he relied upon the
February 23, 2015, letter as a representation from Allstate
6Crook
argues
that
the
doctrine
of
contributory
negligence
is not available to The Barker Agency because, in its internal
records, The Barker Agency had noted that there were only two
"other structures," the bathhouse and the garage. However,
there is nothing indicating that that information was ever
communicated to Crook or that he relied upon that information.
Further, Crook provides no analysis or authority indicating
that that fact strips The Barker Agency of its ability to
argue that Crook was contributorily negligent. Crook's
argument is not supported by authority and is not convincing.
32
1180996
Indemnity that the insurance limits of his policy were
adequate. Crook claims that Allstate Indemnity could not,
after making such an assertion in the February 23, 2015,
letter, later refuse to provide coverage under Coverage A for
the damage to the deck and the boat dock.
Crook's argument in this regard before this Court is very
brief. Crook cites authority to indicate that the doctrine of
estoppel applies "against an insurer to preclude the insurer
from denying coverage in a case where the insurance policy
issued by the insurer did not cover the claim of the insured
but where the insurer's agent mistakenly thought and
represented that there was coverage at the time of the policy
issuance." Crook's brief, pp. 60-61 (citing Fidelity & Cas.
Co. of New York v. Watts Realty Co., 500 So. 2d 1126 (Ala.
Civ. App. 1986)). After setting forth that authority, Crook's
entire argument is as follows: "Crook's estoppel claim arises
from the February 23, 2015, letter ... that told Crook that
his property inspection had been completed and that 'we did
not find any issues that impact your current coverage.'"
Crook's brief, p. 62. Crook gives no further explanation of
his argument.
33
1180996
Crook's argument does not demonstrate reversible error on
the part of the circuit court. First, Crook does not even set
forth the legal standard for demonstrating estoppel that he is
required to present on appeal. Second, no assurance was made
in the February 23, 2015, letter that the insurance limits of
Coverage B would cover all possible damage to his deck and/or
boat dock. In fact, Allstate Indemnity sent Crook notices
every year with the actual insurance limits of Coverage B and
specifically asked him to read them, which he admittedly never
did. Allstate Indemnity very clearly informed Crook of his
policy limits; Crook simply chose ignorance.
Crook's argument
does not satisfy Rule 28(a)(10), Ala. R. App. P.,7 and is not
based on the complete factual picture of this case.
Accordingly, we affirm the circuit court's summary judgment in
favor of Allstate Indemnity as to Crook's estoppel claim.
Lastly, Crook argues that the circuit court erred in
granting
Allstate
Insurance's
summary-judgment
motion.
Crook's claims against Allstate Insurance are the same as
7Rule 28(a)(10) requires that an appellant present "[a]n
argument
containing
the
contentions
of
the
appellant/petitioner with
respect
to
the
issues
presented,
and
the reasons therefor, with citations to the cases, statutes,
other authorities, and parts of the record relied on."
34
1180996
those against Allstate Indemnity and The Barker Agency; in
fact, the circuit court incorporated its February 27, 2019,
order granting Allstate Indemnity's and The Barker Agency's
summary-judgment motions into its order granting Allstate
Insurance's summary-judgment motion. We have provided
extensive analysis of Crook's arguments explaining that the
plain language of the policy indicates that
Allstate Indemnity
properly applied Coverage B to the damage to the deck and the
boat dock, that Crook was contributorily negligent, and that
the doctrine of estoppel does not apply to bar Allstate
Indemnity from providing coverage under Coverage B. Crook
raises no new theory of breach of contract, negligence, or
estoppel against Allstate Insurance; he simply argues that
Allstate Insurance is also liable because Smith, an employee
of Allstate Insurance, determined that Coverage B,
rather than
Coverage A, applied to the damage to the deck and the boat
dock and because Allstate Insurance's name was on the
February 23, 2015, letter, which forms the basis of his
estoppel claim. However, as thoroughly explained above, Crook
has failed to demonstrate that the circuit court erred in any
respect. Accordingly, for the reasons set forth above, we
35
1180996
affirm the circuit court's summary judgment in favor of
Allstate Insurance.
Conclusion
Based on the foregoing, we affirm the circuit court's
summary judgment in favor of Allstate Indemnity, The Barker
Agency, and Allstate Insurance.
AFFIRMED.
Parker, C.J., and Bolin, Wise, Bryan, Sellers, and
Mitchell, JJ., concur.
Shaw and Stewart, JJ., concur in the result.
36 | June 26, 2020 |
fa9a94fc-4743-467b-8c23-b391f8e1411f | Ex parte Tiffany Dawn Plaxco. | N/A | 1190537 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190537
Ex parte Tiffany Dawn Plaxco. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: Tiffany Dawn Plaxco v. James M. Plaxco III) (Lawrence Circuit Court:
DR-11-188.02; Civil Appeals : 2180837).
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 |
5ffa2cb0-ab8a-4dd7-9dd1-d3c3b840cc97 | Stiff v. Equivest Financial, LLC | N/A | 1181051 | 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
____________________
1181051
____________________
Mark Stiff
v.
Equivest Financial, LLC
Appeal from Jefferson Circuit Court
(CV-18-900776)
MITCHELL, Justice.
Mark Stiff's property was sold at a tax sale that took
place inside the Bessemer courthouse instead of "in front of
the door of the courthouse" as required by § 40-10-15, Ala.
Code 1975. He argues that the sale is void because of that
1181051
irregularity. We agree and therefore reverse the circuit
court's judgment refusing to set aside the tax sale.
Facts and Procedural History
Mark Stiff and his brother, Jim Stiff, fell behind on the
property taxes for their mother Doris Stiff's house in Hoover
in 2012. At that time, they were caring for Doris around the
clock at Mark's house because the family could no longer
afford to pay for her treatment at a nursing home. Doris died
in January 2013, and her sons inherited her property. They
were unable to pay the delinquent taxes.
On May 21, 2013, Equivest Financial, LLC ("Equivest"),
purchased Doris's house for delinquent taxes. After the tax
sale, Mark and Jim continued to possess the property, which
they rented to tenants. Equivest became entitled to a tax
deed three years after the sale, as provided in § 40-10-29,
Ala. Code 1975. That deed was issued in March 2017.
On February 23, 2018, Equivest sued Mark and Jim, as well
as other defendants who were later dismissed, for ejectment
and to quiet title to the property. On April 18, 2018, Mark
counterclaimed, seeking judicial redemption of the property
and a judgment declaring that the tax sale was void. Jim
2
1181051
filed an answer and a counterclaim seeking the same remedies
on August 7, 2018.
The parties proceeded to a two-day bench trial held on
June 4 and July 1, 2019. During the trial, Mark's primary
strategy was to show that he did not receive from Jefferson
County proper notice of the tax delinquency and sale. But in
the course of Mark's cross-examination of a witness from the
tax collector's office, it was discovered that the tax sale
was held in a probate courtroom at the Bessemer courthouse,
not in front of the door of the courthouse as required by
statute. No evidence was presented contradicting this
testimony. At the conclusion of the trial, the trial court
directed the parties to submit posttrial briefs. In his
posttrial brief, Mark argued that the tax sale was void based
on several theories of defective notice and because the sale
was not held in front of the door of the courthouse.
On August 13, 2019, the trial court ruled that the tax
sale was valid and that Mark and Jim had the right to redeem
the property for $87,419.84. Mark appealed.
3
1181051
Standard of Review
Mark makes two arguments on appeal. First, he argues
that the trial court erred when it failed to enforce the
requirement in § 40-10-15 that a tax sale "be made in front of
the door of the courthouse." And second, he argues that
Equivest failed to prove that he received notice as required
by § 40-10-4, Ala. Code 1975.
We review the sale-location issue de novo. The parties
agree that the tax sale was held in a probate courtroom at the
Bessemer courthouse, not in front of the courthouse door.
They disagree about the legal implications of that fact. When
an appeal focuses on the application of the law to undisputed
facts, we apply a de novo standard of review. Carter v. City
of Haleyville, 669 So. 2d 812, 815 (Ala. 1995).
Because we reverse the judgment of the trial court based
on its failure to enforce the requirement of § 40-10-15 that
the sale be held "in front of the door of the courthouse," we
pretermit discussion of Mark's notice-based argument.
Analysis
Title 40, Chapter 10, Ala. Code 1975 ("the tax-sale
statutes"), govern the sale of real property for unpaid taxes.
4
1181051
A tax sale is void unless there is evidence of compliance with
all the requirements of the tax-sale statutes. State ex rel.
Gallion v. Graham, 273 Ala. 634, 636–37, 143 So. 2d 810, 812
(1962). At times, this Court has insisted on "strict"
compliance with the statutory requirements.
See, e.g., Gunter
v. Townsend, 202 Ala. 160, 167, 79 So. 644, 651 (1918) ("Tax
sales, unless made in strict compliance with such statutory
requirements, are held void."). At other times, we have said
that "substantial" compliance with the tax-sale statutes is
sufficient. See, e.g., Laney v. Proctor, 236 Ala. 318, 319,
182 So. 37, 38 (1938) ("[T]he burden is upon the party
claiming under a tax title to show the necessary and
substantial
compliance
with
all
statutory
requirements
....").
Sometimes, we have spoken as if there is no difference between
"strict" and "substantial" compliance. See, e.g., Drennen v.
White, 191 Ala. 274, 277, 68 So. 41, 42 (1915) ("'In the sale
of land for taxes, great strictness is required. To divest an
individual of his property against his consent, every
substantial requirement of the law must be complied with.'"
(quoting Dane v. Glennon, 72 Ala. 160, 163 (1882)). Assuming,
but not deciding, that a showing of "substantial" compliance
5
1181051
with the tax-sale statutes is all that is required to prove a
valid tax sale, we conclude the sale here nonetheless falls
short.
In determining what constitutes "substantial compliance"
with a statute, our intermediate appellate courts have said:
"'"Substantial
compliance"
with a
statute means actual compliance in respect
to the substance
essential
to every
reasonable objective of the statute. ...
It means that a court should determine
whether the statute has been followed
sufficiently so as to carry out the intent
for which it was adopted. ...'
"Smith v. State, 364 So. 2d 1, 9 (Ala. Crim. App.
1978)."
C.Z. v. B.G., 278 So. 3d 1273, 1280–81 (Ala. Civ. App. 2018).
In another context, this Court has said that "'[s]ubstantial
compliance' may be defined as 'actual compliance in respect to
substance essential to every reasonable objective,' of a
decree giving effect to equitable principles." Pittman v.
Pittman, 419 So. 2d 1376, 1379 (Ala. 1982) (quoting
Application of Santore, 28 Wash. App. 319, 327, 623 P.2d 702,
707 (1981)). An examination of the text of the tax-sale
statutes makes their objectives clear.
6
1181051
The tax-sale statutes include detailed instructions on
the manner in which a tax sale must be held:
"Such sales [of land for taxes] shall be made in
front of the door of the courthouse of the county at
public outcry, to the highest bidder for cash,
between the hours of 10:00 A.M. and 4:00 P.M., and
shall continue from day to day until all the real
estate embraced in the decree has been sold."
§ 40-10-15. Jefferson County ignored one of those
requirements -- the location of the tax sale -- with no
apparent excuse. Despite that, Equivest argues "that the
holding of the tax sale indoors rather than outdoors [in front
of]
the
courthouse
substantially
complies
with
the
requirements of Section 40-10-15." Equivest's brief at 15.
This is essentially an argument that the statute's sale-
location requirement is a minor technicality that is not
essential to the objectives of the tax-sale statutes. We
disagree -- the sale-location requirement plays an important
role, and a county may not disregard it for convenience.
The efficient collection of property taxes and the
stability of local government revenues depend, in part, on the
availability of the tax sale as an enforcement mechanism. For
that reason, this Court has observed that "the purchasing of
tax-sale property is, in itself, a laudable practice, one to
7
1181051
be encouraged, rather than discouraged." Ross v.
Rosen-Rager,
67 So. 3d 29, 44 (Ala. 2010). But we also know that a tax
sale can be the result of a personal tragedy. That is the
case here. The Stiff family fell behind on their property
taxes while Mark and Jim were personally caring for their
ailing mother, and the tax sale took place shortly after her
death. When Mark was put on the witness stand and asked why
he thought the tax sale was void, he responded: "I just don't
think it's fair. ... I just don't think it's right to take
advantage of people when they are in their worst situation."
The tax-sale statutes attempt to balance the public
necessity of tax collection with the moral imperative that the
State treat people like Mark fairly. The tax-sale statutes
also reflect the pragmatic consideration that tax sales can be
a reliable method of tax collection only if the public views
the practice as just. The most obvious way that the tax-sale
statutes ensure that tax sales are fair is by providing
multiple layers of protection to delinquent taxpayers. Among
other protections, the tax-sale statutes require: specific
forms of notice at several points, §§ 40-10-4, -5, and -12,
Ala. Code 1975; a mechanism by which clouded title can be
8
1181051
restored following an erroneous sale, § 40-10-31, Ala. Code
1975; and the opportunity for redemption of land sold for
unpaid taxes, § 40-10-120 et seq., Ala. Code 1975. The tax-
sale statutes also protect the rights of tax-sale purchasers,
giving them some security in the event a tax sale is
eventually declared void. § 40-10-76, Ala. Code 1975. In
addition, the tax-sale statutes protect the public interest
through several provisions designed to promote transparency
and good government. Among these are the prohibition on
county officers having an interest in a tax sale, § 40-10-24,
Ala. Code 1975, and the requirement that a tax sale be held in
front of the courthouse in full view of the public, § 40-10-
15.
The facts of this case show why a practice of holding a
tax sale somewhere more private than in front of the door of
the courthouse could create an appearance of unfairness and
undermine public acceptance of tax sales as a just way to
enforce the law. Equivest's witnesses at trial testified that
Equivest is a subsidiary of a Michigan-based bank, that it
purchases around 30 tax-sale properties each year in the
Bessemer Division of Jefferson County alone, and that the tax
9
1181051
collector's office in Bessemer has a practice of maintaining
a file of tax certificates for "major investors" like Equivest
rather than physically issuing them. There is nothing
inherently wrong with any of this. But holding a tax sale in
full view of the public makes it clear that tax sales are made
to further the public good, not just for the benefit of repeat
players who know their way around the courthouse.
Mark does not claim that he was prejudiced by the
county's failure to hold the tax sale at the location
prescribed by § 40-10-15. But that is beside the point.
Among the legislature's objectives in enacting the tax-sale
statutes was to create a system that is fundamentally fair and
perceived by the public as such, despite the unpleasantness
that comes with the practice. Setting a fixed and public
location for all such sales is essential to that objective –-
the location requirement is thus more than an inconvenient
technicality. Ignoring the sale-location requirement is
injurious to the public, and a sale made with no attention to
that requirement is not made in substantial compliance with
§ 40-10-15.
10
1181051
We recognize that today's decision may cast doubt on
other tax sales made in Jefferson County and around the state.
But the legislature anticipated that tax sales would
occasionally be voided, and it provides a remedy for parties
like Equivest. See § 40-10-76, as it read before the
amendment effective January 1, 2020 ("If, in any action
brought by the purchaser ... to recover the possession of
lands sold for taxes, a recovery is defeated on the ground
that such sale was invalid for any reason other than that the
taxes were not due, the court shall ... ascertain the amount
of taxes for which the lands were liable at the time of the
sale ... and the amount of such taxes on the lands, if any, as
the plaintiff ... has, since such sale, lawfully paid ..., the
interest on both amounts to be computed at the rate of 12
percent per annum ...; and the court shall thereupon render
judgment against the defendant in favor of the plaintiff for
the amount ascertained and the costs of the action, which
judgment shall constitute a lien on the lands sued for, and
payment thereof may be enforced as in other cases."). We will
not provide a different remedy by writing the sale-location
requirement out of § 40-10-15 under the doctrine of
11
1181051
"substantial compliance." The proper remedy for tax-sale
purchasers injured by a county's failure to follow the law is
the remedy provided by the legislature.
Conclusion
The tax-sale statutes include a clear list of procedures
designed to protect the rights of property owners and the
public. The requirement that a tax sale be held in a uniform
public location encourages fairness and transparency, and it
supports the legitimacy of the tax-sale system as a whole. If
the "in front of the door of the courthouse" requirement is no
longer important to Alabamians, it is up to the legislature
(not the courts) to remove it.
Jefferson County ignored a clear statutory requirement
when it sold Mark and Jim's property to Equivest. The sale
was not made in substantial compliance with § 40-10-15, and it
is therefore void. We reverse the judgment and remand the
cause for further proceedings, including consideration of
Equivest's alternative claim for relief under §
40-10-76, Ala.
12
1181051
Code 1975, as that statute read before the amendment effective
January 1, 2020.
REVERSED AND REMANDED.
Parker, C.J., and Bolin and Stewart, JJ., concur
Sellers, J., concurs in the result.
Shaw, Wise, Bryan, and Mendheim, JJ., dissent.
13
1181051
BRYAN, Justice (dissenting).
The main opinion concludes that the tax sale of property
owned by Mark Stiff and Jim Stiff did not substantially comply
with the requirements of § 40-10-15, Ala. Code 1975. But not
even Mark Stiff makes that argument. Mark actually argues
that "strict compliance" with the statute is required, that
that requirement was not met here, and "that substantial
compliance with the statute is not sufficient." Mark's brief
at 13. Of course, "[i]t is not the function of this Court to
create arguments for an appellant." Certain Underwriters at
Lloyd's, London v. Southern Nat. Gas Co., 142 So. 3d 436, 464
(Ala. 2013). Regardless, considering this case using the
framework presented by the main opinion and given the facts
before us, I must conclude that there was substantial
compliance with the statute.
Section 40-10-15 provides, in pertinent part, that a tax
sale
"shall be made in front of the door of the
courthouse of the county at public outcry, to the
highest bidder for cash, between the hours of 10:00
A.M. and 4:00 P.M., and shall continue from day to
day until all the real estate embraced in the decree
has been sold. The judge of probate must attend
such sales and make a record thereof in a book to be
kept by him in his office for that purpose ...."
14
1181051
As the main opinion notes, this Court has sometimes stated the
need for "strict compliance" with the statutory requirements
of the tax-sale process. See, e.g., Gunter v. Townsend, 202
Ala. 160, 167, 79 So. 644, 651 (1918) (stating that "strict
compliance" is required). At other times, the Court has used
language suggesting that substantial compliance may suffice,
while at the same time using language suggesting the need for
strict compliance. See, e.g., Laney v. Proctor, 236 Ala. 318,
319, 182 So. 37, 38 (1938) (stating the need "to show the
necessary and substantial compliance with all statutory
requirements," while also stating that "courts are
enjoined to
give a strict construction to such proceedings"); and Drennen
v. White, 191 Ala. 274, 277, 68 So. 41, 42 (1915) ("'In the
sale of land for taxes, great strictness is required. To
divest an individual of his property against his consent,
every substantial requirement of the law must be complied
with.'" (quoting Dane v. Glennon, 72 Ala. 160, 163 (1882))).
Assuming, without deciding (as the main opinion also does),
that substantial compliance with the statute is the standard,
that standard was met here.
"'Substantial compliance' may be defined as 'actual
compliance in respect to substance essential to
15
1181051
every reasonable objective,' of a decree giving
effect to equitable principles –– equity –– in the
true meaning of that word. Application of Santore,
28 Wash. App. 319, 623 P.2d 702 (1981). Substantial
compliance means compliance which substantially,
essentially, in the main, for the most part,
satisfies the means of accomplishing the objectives
sought to be effected by the decree and at the same
time does complete equity. ... What constitutes
substantial compliance is a matter dependent upon
the particular facts of each case ...."
Pittman v. Pittman, 419 So. 2d 1376, 1379 (Ala. 1982).
The statutory requirements to obtain a valid tax deed are
extensive. The basic steps of the process are:
"(1) a valid assessment of the land; (2) a report
from the tax collector to the probate court stating
the inability to collect the assessed taxes; (3)
notice to the taxpayer of delinquent taxes; (4)
decree of sale from the county's probate judge; (5)
execution of the decree of sale; and (6) the
issuance of a tax deed."
Gary E. Sullivan, Alabama Tax Certificate Investors Beware:
Negotiating
Through
the
Labyrinth
of,
and
Important
Limitations to Recovering Money in, the Redemption Process, 73
Ala. Law. 416, 418 (Nov. 2012) (footnotes omitted). In this
entire lengthy process, evidently the only irregularity here
is the fact that the tax sale was held inside the courthouse,
in the courtroom of the probate court, instead of in front of
the door of the courthouse, as required by § 40-10-15. As the
16
1181051
main opinion correctly states, requiring tax sales to be held
in a fixed and public place serves the objectives of promoting
transparency,
fairness,
and
public
perception that
the
process
is fair. However, I cannot conclude that those objectives
were not met in this case by having the tax sale in the
courtroom of the probate court. There is no indication in the
record that the courtroom was not open to the public or that
it was not a sufficiently public place to hold the sale. Of
course, "courtrooms are generally open to the public." Allen
v. Commonwealth, 286 S.W.3d 221, 230 (Ky. 2009). The record
does not indicate that there was insufficient public notice
that the sale was to be held in the courtroom. Of course,
"[t]he burden is on the appellant to present a record
containing sufficient evidence to warrant a reversal,"
Seidler v. Phillips, 496 So. 2d 714, 716 (Ala. 1986), and
"[i]t is the duty of ... the appellant[] to demonstrate an
error on the part of the trial court." G.E.A. v. D.B.A., 920
So. 2d 1110, 1114 (Ala. Civ. App. 2005). The mere fact that
the sale was held inside the courthouse instead of in front of
the door of the courthouse is simply not significant enough to
establish a lack of substantial compliance with § 40-10-15.
17
1181051
That is, there is no indication that the essential objectives
of the statute were not accomplished here.1
Mark acknowledges that he has not found a decision that
"directly addresses the specific facts of this case." Mark's
brief at 13. Among the decisions of this Court that Mark
cites, none of them has set aside a tax sale because of a
defect like the one here. Rather, Mark cites decisions of
this Court that have set aside a tax sale for errors that are
plainly substantial. Among those errors are failure to give
notice to the property's owner, State ex rel. Gallion v.
Graham, 273 Ala. 634, 143 So. 2d 810 (1962), and Almon v.
Champion Int'l Corp., 349 So. 2d 15 (Ala. 1977); the absence
of the tax collector's report to the probate court stating the
inability to collect the assessed taxes, Landrum v. Davidson,
252 Ala. 125, 39 So. 2d 662 (1949); both the absence of
1Certainly, there is a risk in reading the sale-location
requirement in the statute too literally. What if the tax
sale were held under a large oak tree on courthouse grounds
near the courthouse door but not actually "in front of the
door"? I do not see how holding such a sale would undermine
the objectives of the statute. See, e.g., Trumbull v.
Jefferson Cty., 62 Wash. 503, 504, 114 P. 186, 187 (1911)
(declining to set aside a tax sale that was required to be
held "at the front door of the courthouse" when the sale was
made from a stair landing 25 or 30 feet inside the courthouse
door).
18
1181051
proper notice and the tax collector's report, Messer v.
Birmingham, 243 Ala. 520, 10 So. 2d 760 (1942); and the
holding of a tax sale after the taxes had actually been paid,
Laney, supra. Like Mark, I have found no case in which this
Court has voided a tax sale solely for the type of
irregularity found in this case. In taking that step today,
this Court breaks new ground.
Because I conclude that the tax sale was substantially
compliant with the statutory requirements, I would affirm the
trial court's judgment determining that the tax sale was
valid. Alternatively, assuming that there was
not
substantial
compliance with the statute, I disagree with the main
opinion's conclusion that the tax sale is void; I would
conclude that the noncompliance here would render the tax sale
voidable rather than void. It is true that this Court has
held in several cases that a tax sale is void if the statutory
requirements are not met. However, as discussed above, those
cases demonstrate significant noncompliance, such as failure
to give required notice to the property's owner, e.g.,
Gallion, Almon, and Messer, supra. The noncompliance here
(assuming there was "noncompliance") does not rise to that
19
1181051
level; thus, I would conclude that the tax sale here is only
voidable.
On this issue, I draw an analogy to cases involving the
foreclosure process in Alabama. Our Court of Civil Appeals
has explained the distinction between void and voidable acts
in that context:
"In a direct attack on a foreclosure -– that is,
an action seeking declaratory and injunctive relief
to halt the foreclosure sale before it occurs, see,
e.g., Ferguson v. Commercial Bank, 578 So. 2d 1234
(Ala. 1991); Bank of Red Bay v. King, 482 So. 2d
274 (Ala. 1985); and Woods v. SunTrust Bank, 81 So.
3d 357 (Ala. Civ. App. 2011), or an action to set
aside the sale after it has occurred, see, e.g.,
Beal Bank, SSB v. Schilleci, 896 So. 2d 395 (Ala.
2004); Kelly v. Carmichael, 217 Ala. 534, 536, 117
So. 67, 69 (1928); and Browning v. Palmer, 4 So. 3d
524 (Ala. Civ. App. 2008) -- any circumstance in the
foreclosure
process
that
would
render
the
foreclosure sale void or voidable may be asserted.
In a proceeding involving a collateral attack on a
foreclosure, however, only those circumstances that
would render the foreclosure sale void may be raised
as an affirmative defense.
"'[T]he true distinction between void and
voidable acts, orders, and judgments, is, that the
former can always be assailed in any proceeding, and
the latter, only in a direct proceeding.' Alexander
v. Nelson, 42 Ala. 462, 469 (1868). See, e.g.,
Carlton v. Owens, 443 So. 2d 1227, 1231 (Ala. 1983)
(stating that '[t]he only remedy available to a
defendant subject to a voidable judgment is a direct
appeal from that judgment; a collateral attack is
not allowed'); City of Dothan v. Dale Cnty. Comm'n,
295 Ala. 131, 324 So. 2d 772 (1975) (holding that,
20
1181051
because city's annexation of county land was, at
most, voidable, opponents could not attack the
annexation in a collateral proceeding); 23 Am. Jur.
2d Deeds § 162 (2002) (stating that '[a] voidable
deed must be attacked, if at all, directly, but a
deed that is void may be collaterally attacked by
anyone whose interest is adversely affected by it'
(footnote omitted)).
"One commentator has identified three types of
flaws in the foreclosure process: those that will
render the foreclosure sale void; those that will
render the sale merely voidable; and those that are
insignificant.
"'[W]hen the power [of sale in a mortgage]
is exercised in violation of the laws or of
the security instrument terms, questions
arise as to whether compliance with the
laws
or
instrument
provisions
is
a
prerequisite for the exercise of the power
so that the purported sale is utterly void,
or
whether
the
violation
is
merely
sufficiently egregious as to produce a
voidable sale, or whether it is so
insignificant as to have no impact on the
sale.'
______________________________
"'Courts frequently speak of flaws in
[nonjudicial-foreclosure] sales so serious
that they produce a void sale. ... What
the courts mean in denominating a sale as
void is that adversely affected parties may
have a sale set aside even though the
property passed into the hands of a bona
fide purchaser. In this sense of the term,
there are very few void sales. Most of the
cases in which a sale to a bona fide
purchaser was set aside involved sales by
21
1181051
trustees or mortgagees who lacked the power
to sell.'
"12 Thompson on Real Property §§ 101.04(c)(2) and
101.04(c)(2)(i)
at
401-02
(Thomas
ed.
1994)
(footnotes omitted).
"'Where a defect is not so egregious
as to make the sale utterly void but not so
inconsequential as to be overlooked, the
sale will be voidable; that is, it can be
set aside at the request of an injured
party so long as the legal title has not
moved to a bona fide purchaser. This
follows from the traditional common law
rule that a subsequent bona fide purchaser
of a legal title takes free of hidden
equities. The right of an injured party to
set aside a deed because of flaws that
produce only a voidable title is an
equitable right cut off by transfer to a
bona fide purchaser.'
"Id., § 101.04(c)(2)(ii) at 403.
"In Alabama, the following circumstances may
render a foreclosure sale void: (1) when the
foreclosing entity does not have the legal right to
exercise the power of sale, as, for example, when
that entity is neither the assignee of the mortgage,
Sturdivant v. BAC Home Loans Servicing, LP, 159 So.
3d 16 (Ala. Civ. App. 2011), [reversed on other
grounds, Ex parte BAC Home Loans Servicing, LP, 159
So. 3d 31 (Ala. 2013)], nor the holder of the
promissory note, Perry v. Federal Nat'l Mortg.
Ass'n, 100 So. 3d 1090 (Ala. Civ. App. 2012), at the
time it commences the foreclosure proceedings; (2)
when 'the debt secured by the mortgage was fully
paid prior to foreclosure,' Lee v. Gaines, 244 Ala.
664, 666, 15 So. 2d 330, 331 (1943); (3) when the
foreclosing entity failed to give notice of the time
and place of the foreclosure sale, Sanders v. Askew,
22
1181051
79 Ala. 433 (1885), but see Kelley Realty Co. v.
McDavid, 211 Ala. 575, 577, 100 So. 872, 873-74
(1924) (stating that 'a distinction must be made
between cases where there is no sort of compliance
with the requirement of advertisement or other
notice of the sale, and cases where there is
actually given some notice of the nature required,
sufficient to give public information of the
pendency and date of the sale, though it be ever so
defective or incomplete,' and that '[i]n the latter
class of cases the foreclosure sale will not be
void, but voidable only to the election of the
mortgagor, properly and seasonably asserted'); and
(4) when the purchase price paid is '"so inadequate
as to shock the conscience, it may itself raise a
presumption of fraud, trickery, unfairness, or
culpable mismanagement, and therefore be sufficient
ground for setting the sale aside,"' Hayden v.
Smith, 216 Ala. 428, 430, 113 So. 293, 295 (1927)."
Campbell v. Bank of America, N.A., 141 So. 3d 492, 494–96
(Ala. Civ. App. 2012).
Drawing the analogy, I conclude that the defect here was,
at worst, "'not so egregious as to make the sale utterly
void.'" Id. at 495 (quoting 12 Thompson on Real Property §
101.04(c)(2)(ii) at 403). In this case, the only statutory
defect was holding the sale in the courtroom instead of in
front of the door of the courthouse. That defect is nowhere
close to being as egregious as the substantial errors cited
directly above in Campbell that would render a foreclosure
sale void. And, as discussed earlier, the defect here does
23
1181051
not rise to the level of the substantial errors in cases in
which this Court has declared a tax sale void. Those
substantial, more fundamental errors include failure to give
notice to the property's owner (Gallion and Almon, supra), the
absence of the tax collector's report to the probate court
stating the inability to collect the assessed taxes (Landrum,
supra), both the absence of proper notice and the tax
collector's report (Messer, supra), and conducting a tax sale
after the taxes had actually been paid (Laney, supra). In
this case, the tax sale was merely held in a courtroom inside
the courthouse instead of in front of the door of the
courthouse. Further, as the main opinion notes, Mark does not
claim that he was prejudiced by the location of the tax sale,
and I can find no evidence in the record showing that he was
prejudiced, further indicating that the error here was not
egregious. That error is not the type of error that should
result in the drastic remedy of rendering a tax sale void; at
most, the tax sale is voidable.
By declaring the tax sale void based only on the fact
that it was improperly held in a courtroom, the main opinion
has subjected all other similarly situated tax sales to
collateral attack, thus opening a legal Pandora's box. It is
24
1181051
unknown how many tax sales in this State have been conducted
inside a courtroom. Evidently, the Bessemer Division in
Jefferson County is in the habit of doing so, and, given the
large population of that division, the number of tax sales
that have been conducted in that manner is likely very high.
My research of well populated counties indicates that at least
one other such county –- Tuscaloosa –- holds its tax sales
i n s i d e
t h e
c o u r t h o u s e .
S e e
https://www.tuscco.com/government/departments/tax-
collector/land-tax-sale.2 Declaring the tax sale here to be
void based on a single non-egregious defect needlessly
imperils the legal status of countless other tax sales. .
In sum, I would affirm the trial court's judgment
upholding the tax sale because I conclude that there was
substantial compliance with § 40-10-15. Alternatively,
assuming that there was not substantial compliance, I would
conclude that the single non-egregious defect in this case
would render the tax sale voidable, not of void.
Shaw, Wise, and Mendheim, JJ., concur.
2On the date this opinion was released, this information
could be found at this Web site. A copy of the information is
available in the case file of the clerk of the Alabama Supreme
Court.
25 | June 26, 2020 |
6c28b452-f268-4e59-a3c0-a6f8b6d43a97 | Ex parte H. Chase Dearman. | N/A | 1180911 | 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
____________________
1180911
____________________
Ex parte H. Chase Dearman
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: H. Chase Dearman
v.
State of Alabama)
(Mobile Circuit Court, CC-17-5331.70;
Court of Criminal Appeals, CR-18-0049)
MENDHEIM, Justice.
1180911
H. Chase Dearman petitioned this Court for a writ of
certiorari to review the Court of Criminal Appeals' decision
affirming, without an opinion, the Mobile Circuit Court's
order finding Dearman in direct contempt, as that term is
defined by Rule 33.1(b)(1), Ala. R. Crim. P. See Dearman v.
State (No. CR-18-0049, July 12, 2019), ___ So. 3d ___ (Ala.
Crim. App. 2019) (table) (on return to remand) ("Dearman II").
We granted certiorari review to determine whether the Court of
Criminal Appeals' decision is in conflict with Hawthorne v.
State, 611 So. 2d 436 (Ala. Crim. App. 1992); In re Powers,
523 So. 2d 1079 (Ala. Civ. App. 1988); and/or In re Carter,
412 So. 2d 811 (Ala. Civ. App. 1982).1 We conclude that the
Court of Criminal Appeals' decision is in conflict with
Hawthorne, and we reverse the Court of Criminal Appeals'
judgment.
1We note that Dearman also alleged that Dearman II is in
conflict with Ex parte Walker, 122 So. 3d 1287 (Ala. Civ. App.
2013). However, we did not grant certiorari review as to
Dearman's argument regarding Ex parte Walker because Ex parte
Walker is a plurality decision and, thus, is not a "prior
decision[]" of the Court of Civil Appeals for purposes of
Rule 39(a)(1)(D), Ala. R. App. P.
2
1180911
Facts and Procedural History
On
August
30,
2018,
Dearman,
an
attorney,
was
representing James Markese Wright at Wright's probation-
revocation hearing before the circuit court; Judge James T.
Patterson was the circuit-court judge presiding over the
hearing. During the course of the probation-revocation
hearing, the following exchange occurred between Dearman and
Judge Patterson:
"[Wright's probation officer]: During the
search [of Wright's house], I ended up locating in
the kitchen drawer, what was later determined to be
a controlled substance.
"[The State]: Specifically, what was it?
"[Wright's probation officer]: AK-47 Herbal
Incense.
"[The State]: Would that be on the streets
known as --
"MR. DEARMAN: I object. This officer has no
training in narcotics whatsoever. This is not a
regular drug and regularly identifiable.
"And in addition to that, the district court
found no probable cause on this case, the facts of
which the court is now hearing.
"THE COURT: All right.
"MR. DEARMAN: We've had a preliminary hearing.
3
1180911
"THE COURT: 'Alabama Rules of Evidence,
Article 11, Miscellaneous Rules, Rule 1101, rules
inapplicable. These rules, other than those with
respect to privileges, do not apply in the following
situations: Preliminary questions of fact, grand
jury,
miscellaneous
proceedings
including
proceedings
for
extradition
or
rendition,
preliminary hearing in criminal cases, sentencings,
granting and revoking probation.'[2]
"MR. DEARMAN: Judge, in district court --
"THE COURT: No. They don't apply.
"MR. DEARMAN: May I finish my objection?
"THE COURT: No, you may not. There's no
objection here. They don't apply. The Rules of
Evidence don't apply here.
"MR. DEARMAN: I have an objection for the
record.
"THE COURT: No, sir. The rules don't apply.
The rules don't apply, Mr. Dearman.
"MR. DEARMAN: The Judge is talking over me.
"THE COURT: The rules don't apply.
"MR. DEARMAN: My objection --
"THE COURT: The rules don't apply.
"MR. DEARMAN: My objection is --
"THE COURT: The rules don't apply.
"MR. DEARMAN: My objection is --
2We note that this is not a verbatim reading of Rule 1101,
Ala. R. Evid.
4
1180911
"THE COURT: The rules don't apply.
"MR. DEARMAN: Okay. Let me know when I can
speak.
"THE COURT: You're not going to speak. If
you're going to make an objection, you're not going
to speak.
"MR. DEARMAN: May the record reflect that I'm
not allowed to make --
"THE COURT: Get him out of here. Take the
lawyer out. Get out.
"MR. DEARMAN: May the record reflect --
"THE COURT: Get out.
"MR. DEARMAN: -- that I am being ordered out of
the courtroom --
"THE COURT: Get out.
"MR. DEARMAN: -- and the Judge has lost his
temper --
"THE COURT: Get out.
"MR. DEARMAN: -- again.
"THE COURT: Get out.
"Take him back.
"(Proceedings concluded.)"
On the same day of the hearing, the circuit court entered
the following order:
5
1180911
"Based on his conduct before this court this
date at hearing on the probation revocation of his
client, James Markese Wright, and specifically his
conduct after this court advised Mr. Dearman that
per Ala. R. Evid. 1101(b)(3), the rules of evidence
do not apply to granting or revoking probation, and
because of his contemptuous conduct cted [sic]
toward this court immediately after this Rule of
Evidence was pointed out to him, this court finds
attorney Chase Dearman in direct contempt of court
per Rule 33.1(b)(1)[, Ala. R. Crim. P].[3]
"This matter was immediately disposed of by
undersigned ordering Mr. Dearman to leave [the]
courtroom ..., and this court will take no further
action in this regard -- this time. However, please
be advised that further outbursts of this nature may
lead to other sanctions allowed per Ala. R. Crim. P.
Rule 33."
On September 24, 2018, Dearman filed a motion requesting that
the circuit court vacate its August 30, 2018, order and
requested a hearing on the matter. In his motion, Dearman
alleged that he was not given notice of the specific
contemptuous conduct and a reasonable opportunity to present
3"Direct contempt" is defined in Rule 33.1(b)(1), Ala. R.
Crim. P., as follows:
"'Direct Contempt' means disorderly or insolent
behavior or other misconduct committed in open
court, in the presence of the judge, that disturbs
the court's business, where all of the essential
elements of the misconduct occur in the presence of
the court and are actually observed by the court,
and where immediate action is essential to prevent
diminution of the court's dignity and authority
before the public."
6
1180911
evidence or mitigating circumstances as required under
Rule 33.2(b), Ala. R. Crim. P., which states:
"The court shall apprise the person of the specific
conduct on which the finding [of direct contempt] is
based and give that person a reasonable opportunity
to present evidence or argument regarding excusing
or mitigating circumstances. No decision concerning
the punishment to be imposed shall be made during
the course of the proceeding at which the contempt
occurs, unless prompt punishment is imperative to
achieve immediate vindication of the court's dignity
and authority."
On September 26, 2018, the circuit court denied Dearman's
motion. Dearman appealed the order of contempt to the Court
of Criminal Appeals. See Dearman v. State, [Ms. CR-18-0049,
April 12, 2019] ___ So. 3d ___ (Ala. Crim. App. 2019)
("Dearman I").
In Dearman I, the Court of Criminal Appeals concluded, as
follows:
"Rule 33.2(b) mandates that a person found in
contempt be allowed a reasonable opportunity to
present evidence or argument in an effort to excuse
or to mitigate the contemptuous behavior. Dearman
was
not
afforded
an
opportunity
to
do
so.
Therefore, the circuit court erred when it failed to
comply with Rule 33.2(b), and Dearman is entitled to
relief on this issue."
___ So. 3d at ___. Accordingly, the Court of Criminal Appeals
remanded the matter to the circuit court and ordered it to
7
1180911
comply with Rule 33.2(b). The Court of Criminal Appeals
expressly stated that, "[b]ecause we are remanding this case
for the circuit court to comply with Rule 33.2(b), we
pretermit discussion of Dearman's remaining issue on appeal,
namely, whether the circuit court erred in finding Dearman in
direct contempt." Dearman I, ___ So. 3d at ___ n. 1. 4
On remand, the circuit court conducted a hearing on
May 10, 2019, to comply with Rule 33.2(b). At the hearing, at
which Dearman was present, the circuit court stated that it
found Dearman in direct contempt "because of the challenge
[to] judicial authority as shown in the record on appeal" and
that Dearman's "behavior necessitated immediate and prompt
punishment; i.e., removal from the courtroom." Dearman was
then given the opportunity to present evidence or argument
regarding excusing or mitigating circumstances, at which time
Dearman stated:
4Dearman also argued in Dearman I that the Court of
Criminal Appeals should order Judge Patterson to recuse
himself from the contempt proceedings. See Dearman I, ___
So. 3d at ___. The Court of Criminal Appeals considered the
merits of Dearman's argument, but did not find it convincing.
Dearman did not petition this Court for certiorari review of
Dearman I.
8
1180911
"I would like to state for the record that it was my
intent only to fulfill my duty as the advocate for
my client.
"I was taught in law school that if you do not
put it on the record, you've lost it forever, and
that was all I was simply trying to do. There was no
intent on my behalf. It certainly wasn't anything
personal."
Following the hearing, the circuit court entered an order,
which states, in pertinent part:
"Today at the hearing mandated by the Court of
Criminal Appeals, Mr. Dearman was advised by this
court ... th[at] he had been held in contempt [on
August 30, 2018,] because the court was of the
opinion that what transpired was a challenge to the
court's authority; therefore, the court felt it
necessary to promptly punish said behavior, yet
considered the matter closed based on the order I
had entered that day."
On return to remand, the Court of Criminal Appeals
affirmed
the
circuit
court's
decision
by
unpublished
memorandum. Dearman II. Dearman filed an application for
rehearing, which was denied on August 2, 2019.
On August 19, 2019, Dearman petitioned this Court for
certiorari review of Dearman II. We granted certiorari review
to determine whether Dearman II is in conflict with Hawthorne,
supra, Powers, supra, and/or Carter, supra.
9
1180911
Standard of Review
In Holland v. State, 800 So. 2d 602, 604 (Ala. Crim. App.
2000), the Court of Criminal Appeals stated:
"'The scope of review on the issue of contempt "is
limited to questions of law and, if there is any
evidence to support its finding, the judgment of the
trial court will not be disturbed."' [Graham v.
State, 427 So. 2d 998,] 1006 [(Ala. Crim. App.
1983)], citing Murphy v. Murphy, 395 So. 2d 1047,
1049 (Ala. Civ. App. 1981)."5
5Under Alabama precedent as it currently stands, the "any
evidence" standard of review set forth in Ex parte Holland is
applied in reviewing findings of criminal contempt occurring
in a criminal case. However, we note that the following
standard set forth in Ex parte Ferguson, 819 So. 2d 626 (Ala.
2001), is the standard of review applied in reviewing findings
of criminal contempt occurring in a civil case:
"[T]he standard of review in an appeal from an
adjudication of criminal contempt occurring in a
civil case is whether the offense, i.e., the
contempt, was proved beyond a reasonable doubt.
Hicks v. Feiock, 485 U.S. 624, 108 S. Ct. 1423, 99
L. Ed. 2d 721 (1988); Combs v. Ryan's Coal Co., 785
F.2d 970 (11th Cir. 1986); and United States v.
Turner, 812 F.2d 1552 (11th Cir. 1987)(an attorney
was found guilty of criminal contempt by United
States District Judge Brevard Hand)."
819 So. 2d at 629 (emphasis added.) Before the adoption of
Rule 33, Ala. R. Crim. P., and its provision for the appeal of
contempt findings, all contempt findings were reviewed by
petition for the writ of certiorari. The "any evidence"
standard of review was applied in that context. Stack v.
Stack, 646 So. 2d 51, 56 (Ala. Civ. App. 1994)("In reviewing
contempt judgments by writ of certiorari, this court applied
the standard of whether there was any evidence to support the
judgment of the trial court."). Rule 33 became effective on
10
1180911
Discussion
Dearman argues that his conduct at the August 30, 2018,
hearing did not "constitute an act of direct contempt."
Dearman's brief, p. 14. Dearman argues that he was not
challenging the circuit court's authority at the August 30,
2018, hearing, but was attempting "to put a timely and
complete objection on the record" in defending his client. In
so arguing, Dearman argues that the Court of Criminal Appeals'
decision is in conflict with Hawthorne, supra.
In Hawthorne, an attorney used the phrase "sons of
bitches" during closing argument. There was no objection made
by opposing counsel at the time the phrase was used, and the
trial court took no immediate action to stop or to reprimand
January 1, 1991, and the procedural components were later
determined to apply to contempt proceedings in a civil case.
See Baker v. Heatherwood Homeowners Ass'n, 587 So. 2d 938, 944
(Ala. 1991) ("Rule 33 applies to the contempt proceeding even
though this is a civil proceeding."). The Court of Criminal
Appeals continued to apply the "any evidence" standard after
the adoption of Rule 33, but the Court of Civil Appeals began
applying different standards of review. This explains the
divergence in Alabama precedent, and there may be good reason
for applying the same standard of review whether the contempt
occurs in a criminal case or a civil case, but that issue is
not before us today; the Court would be well served to address
this complex area of the law at a future time when the issue
is directly presented and the parties have had the opportunity
to research, brief, and argue their positions concerning it.
11
1180911
the attorney for using the phrase. It was not until the
opposing side was giving its closing argument that the
attorney's use of the phrase "sons of bitches" was objected to
as inappropriate. The trial court agreed, stating that "'[i]t
was highly improper to use that language in the courtroom.'"
Hawthorne, 611 So. 2d at 437. Ten days later, the trial court
gave the attorney "an opportunity to be heard as to whether he
should be held in contempt of court for using the phrase 'sons
of bitches.'" Id. Following the hearing, the trial court
"issued an order finding the [attorney] guilty of direct
criminal contempt of court." Id. The attorney appealed to
the Court of Criminal Appeals.
On appeal, the Court of Criminal Appeals stated that
"[t]he question is whether the conduct amounts to direct
criminal contempt of court" as defined by Rule 33.1(a) and
Rule 33.1(c)(1) (now Rule 33.1(b)(1) and 33.1(b)(3)), Ala. R.
Crim. P. Hawthorne, 611 So. 2d at 437. The Court of Criminal
Appeals stated that, "[w]hile the language used was
unprofessional, indecorous, unnecessary, and unbecoming of a
member of the bar, the record is devoid of any evidence that
'immediate action [was] essential to prevent diminution of
the
12
1180911
court's dignity and authority before the public.' See A[la].
R. Cr[im]. P. 33.1[(b)(1)]." Hawthorne, 611 So. 2d at 437.
The Court of Criminal Appeals further stated that "the record
is devoid of sufficient evidence that the [attorney's] use of
the phrase 'sons of bitches' 'obstruct[ed] the administration
of justice' or interrupted, disturbed, or hindered the
court's
proceedings." Id. at 438 (quoting Rule 33.1(c)(1) (now
Rule 33.1(b)(3)(a)), Ala. R. Crim. P.).
In concluding as it did in Hawthorne, the Court of
Criminal Appeals specifically stated that the record was
"devoid of any evidence" supporting the trial
court's judgment
of contempt. Hawthorne, 611 So. 2d at 437. It is clear that
the Court of Criminal Appeals applied the "any evidence"
standard of review, which states that a trial court's judgment
of contempt will not be disturbed if there is any evidence to
support its finding. Holland v. State, 800 So. 2d at 604
("'"[I]f there is any evidence to support its finding, the
judgment of the trial court will not be disturbed."' [Graham
v. State, 427 So. 2d 998,] 1006 [(Ala. Crim. App. 1983)],
citing Murphy v. Murphy, 395 So. 2d 1047, 1049 (Ala. Civ. App.
1981)."). Having concluded that the record was devoid of any
13
1180911
evidence to support the trial court's judgment of contempt,
the Court of Criminal Appeals reversed the trial court's
judgment.6
In the present case, the circuit court held Dearman in
contempt because he repeatedly attempted to make a specific
objection after the circuit court determined that the Alabama
Rules of Evidence did not apply at the August 30, 2018,
probation-revocation hearing. It appears that the circuit
court believed that the objection Dearman was attempting to
make was related to that particular ruling. However, it is
unclear from the record the exact objection that Dearman
6We note that, at the very end of its opinion in
Hawthorne, the Court of Criminal Appeals stated: "Moreover,
the Court of Civil Appeals has held that '[a]n error in
judgment without clear and convincing evidence of bad faith
intent is insufficient for a finding of contempt.' In re
Powers, 523 So. 2d 1079, 1082 (Ala. Civ. App. 1988) (citing In
re Carter, 412 So. 2d 811 (Ala. Civ. App. 1982))." Hawthorne,
611 So. 2d at 438. This would suggest that, in Hawthorne, the
Court of Criminal Appeals abandoned the long-standing "any
evidence" standard for the clear-and-convincing-evidence
standard. However, the Court of Criminal Appeals provided no
analysis of the facts of that case under the clear-and-
convincing-evidence standard and discussed it no further; the
above-quoted sentence appears to be purely dicta. This is
supported by the fact that the Court of Criminal Appeals has
never again cited Powers or Carter, and our research does not
indicate that the Court of Criminal Appeals has ever applied
the
clear-and-convincing-standard
in
a
contempt
case.
Contempt that occurs during a criminal proceeding has
consistently been reviewed under the "any evidence" standard.
14
1180911
sought to assert. It is certainly true that the circuit court
made its position clear that the Alabama Rules of Evidence do
not apply in a probation-revocation proceeding, but it is
unclear if Dearman was attempting to object to that particular
ruling. The only objections on the record that Dearman made
during the probation-revocation hearing are as follows:
"MR. DEARMAN: I object. This officer has no
training in narcotics whatsoever. This is not a
regular drug and regularly identifiable.
"'And in addition to that, the district court
found no probable cause on this case, the facts of
which the Court is now hearing."
Dearman then noted that "[w]e've had a preliminary hearing,"
at which point the circuit court read from Rule 1101, Ala. R.
Evid., which states that the Alabama Rules of Evidence do not
apply
in
probation-revocation
hearings.
Immediately
thereafter, Dearman stated: "Judge, in district court --."
It is at this point that the circuit court would not permit
Dearman to continue to speak. Therefore, based on the facts
before us, there is nothing indicating that Dearman was
attempting to continually object to the
circuit court's ruling
that the Alabama Rules of Evidence do not apply in a
probation-revocation hearing. Dearman stated that he had "an
15
1180911
objection for the record," but the circuit court responded,
"[n]o sir." Dearman then attempted to state his objection,
three times, beginning his objection with "[m]y objection
...." or "[m]y objection is ...." Each time, however, the
circuit court spoke over Dearman and then told Dearman that
"[y]ou're not going to speak. If you're going to make an
objection, you're not going to speak." This statement of the
circuit court indicates that not only was the circuit court
not allowing Dearman to object to its determination that the
Alabama Rules of Evidence did not apply to the hearing (if
that was even Dearman's objection), but that Dearman could
make no objection whatsoever.
As did the Court of Criminal Appeals in Hawthorne, we
conclude in the present case that the record is devoid of any
evidence that Dearman's conduct "disturb[ed] the court's
business" and that "immediate action [was] essential to
prevent diminution of the court's dignity and
authority before
the public." Rule 33.1(b)(1). The evidence before us
indicates that Dearman, by trying to make an objection on the
record to preserve the issue for appellate review, was simply
trying to engage the court in the business before it, not
16
1180911
detract from it. The immediate action taken by the circuit
court in silencing Dearman was not to prevent Dearman from
diminishing the court's dignity or authority, but to prevent
Dearman from asserting a necessary objection on behalf of his
client. When finally given the opportunity to present
mitigating evidence as to why Dearman continually attempted to
state his objection on the record -- an opportunity afforded
Dearman only after the circuit court was ordered to do so by
the Court of Criminal Appeals in Dearman I -- Dearman
specifically stated that his intent was "only to fulfill my
duty as the advocate for my client." Dearman further
explained that he believed that "if you do not put [a specific
objection] on the record, you've lost it forever, and that was
all I was simply trying to do. There was no intent on my
behalf." Dearman's understanding of the law is correct. See
Cook v. State, 384 So. 2d 1158, 1160 (Ala. Crim. App. 1980)
("Specific grounds for objection waive all grounds not
specified, and the trial judge will not be placed in error on
grounds not assigned in an objection. Carter v. State, 205
Ala. 460, 462, 88 So. 571 (1921); Andrews v. State, 359 So. 2d
1172, 1176 (Ala. Cr[im]. App. 1978). 'Unless appropriate
17
1180911
grounds are stated, objections to the admission of evidence
are unavailing on appeal, even though the evidence may have
been subject to some ground not assigned.' Reese v. State, 49
Ala. App. 167, 171, 269 So. 2d 622, 625, cert. denied, 289
Ala. 750, 269 So. 2d 625 (1972)."). Dearman was appropriately
attempting to prosecute his client's cause.
In Hawthorne, the Court of Criminal Appeals determined
that a trial court's judgment of contempt must be affirmed if
there is any evidence in support of it. In the present case,
as in Hawthorne, the record is devoid of any evidence in
support of the circuit court's finding Dearman in direct
contempt. Dearman was properly attempting to state a specific
objection for the record; there is no evidence indicating that
Dearman was diminishing the dignity or authority of the
circuit court. The Court of Criminal Appeals' conclusion in
its unpublished memorandum in Dearman II that there was some
evidence to support the circuit court's contempt judgment is
in conflict with Hawthorne. Accordingly, because Dearman II
is in conflict with Hawthorne, we reverse the Court of
Criminal Appeals' judgment in Dearman II.
18
1180911
Dearman also alleges that Dearman II is in conflict with
Powers and Carter. However, because we have already concluded
that Dearman II is in conflict with Hawthorne, there is no
need to consider whether it is in conflict with Powers and
Carter. Moreover, we note that Powers and Carter appear to be
distinguishable from the present case. In both cases, the
Court of Civil Appeals examined whether the trial court's
finding of contempt that occurred during a civil proceeding
was supported by clear and convincing evidence; those cases
did not apply the "any evidence" standard that is applicable
in the present case.7
7We further note that Powers and Carter, which stand for
the principle that a finding of criminal contempt in a civil
case is to be affirmed if supported by clear and convincing
evidence, may have been overruled sub silentio by this Court's
decision in Ex parte Ferguson, 819 So. 2d 626, 629 (Ala.
2001), in which this Court stated, in pertinent part:
"[T]he standard of review in an appeal from an
adjudication of criminal contempt occurring in a
civil case is whether the offense, i.e., the
contempt, was proved beyond a reasonable doubt.
Hicks v. Feiock, 485 U.S. 624, 108 S. Ct. 1423, 99
L. Ed. 2d 721 (1988); Combs v. Ryan's Coal Co., 785
F.2d 970 (11th Cir. 1986); and United States v.
Turner, 812 F.2d 1552 (11th Cir. 1987)(an attorney
was found guilty of criminal contempt by United
States District Judge Brevard Hand)."
Dearman has not directed us to authority indicating that any
such rule in Alabama has been applied to a finding of criminal
19
1180911
Conclusion
Based on the foregoing, we conclude that the Court of
Criminal Appeals' affirmance of the circuit court's finding of
criminal contempt is in conflict with Hawthorne.
Accordingly,
we reverse the Court of Criminal Appeals' judgment and remand
the case to that court for proceedings consistent with this
opinion.8
REVERSED AND REMANDED.
Parker, C.J., and Bolin, Wise, Bryan, Sellers, Stewart,
and Mitchell, JJ., concur.
Shaw, J., concurs in the result.
contempt in a criminal case.
8We note that Dearman also raises two arguments in his
brief before this Court that he did not raise in his petition
for the writ of certiorari. Dearman argues that the circuit
court's "failure to follow the procedures in Rule 33.2[, Ala.
R. Crim. P.,] invalidate the contempt order." Dearman's
brief, p. 20. Dearman also argues that this Court should
order Judge Patterson to recuse himself from any further
contempt proceedings. The Court of Criminal Appeals addressed
Dearman's recusal argument in Dearman I, and, as noted above,
Dearman did not seek certiorari review of Dearman I.
Moreover, Dearman did not raise that argument in Dearman II.
Accordingly, those issue are not properly before us, and we
will not consider them.
20 | June 26, 2020 |
38ca0e45-a96c-40ca-94f4-e44a5edea61f | Steven R. Sears v. John Cooper, in his official capacity as Director of the Alabama Department of Transportation | N/A | 1190384 | Alabama | Alabama Supreme Court | Rel: June 12, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1190384
Steven R. Sears v. John Cooper, in his official capacity as
Director of the Alabama Department of Transportation (Appeal
from Montgomery Circuit Court: CV-19-159).
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. | June 12, 2020 |
54425a81-2fee-4baf-bb45-7a134405be18 | Odom v. Helms et al. | N/A | 1180749 | 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
____________________
1180749
____________________
Bernadine V. Odom
v.
Jimmy Helms et al.
Appeal from Butler Circuit Court
(CV-16-900030)
PARKER, Chief Justice.
Bernadine V. Odom appeals a summary judgment entered by
the Butler Circuit Court in favor of several supervisory
officers in the Alabama Law Enforcement Agency, Department of
Public Safety, Highway Patrol Division, in a lawsuit based on
1180749
the misconduct of a state trooper. Because Odom has not
overcome the officers' State-agent immunity, we affirm.
I. Facts
On the evening of December 6, 2015, Odom was involved in
an automobile accident on I-65 in Butler County. State
Trooper Samuel Houston McHenry II responded to the scene.
Odom's vehicle was inoperable, so after McHenry investigated
the accident, he gave her a ride, ostensibly to a safe
location. At 12:12 a.m., he radioed his post dispatcher that
he was en route with Odom to an exit about 10 miles from the
accident scene. He did not mention his vehicle's mileage as
of the time he left the accident scene. Instead of taking Odom
directly to the exit, McHenry took her to a wooded area and
sexually assaulted her. At 12:21 a.m., he radioed that he was
dropping Odom off at the exit, and at 12:25 he radioed that he
had completed the drop-off. Within two days, McHenry's
employment was terminated based on his misconduct.
McHenry was charged with first-degree rape, and he
pleaded guilty to sexual misconduct. Odom then filed this
civil lawsuit in the Butler Circuit Court against McHenry;
Spencer Collier, the secretary of the Alabama Law Enforcement
2
1180749
Agency; and Sgt. Jimmy Helms, the post commander of the post
to which McHenry was assigned. Odom later added as defendants
Cpl. Glenn Furukawa, McHenry's immediate supervisor; Cpl.
Jason Burch, another supervisor; Cpl. James Woodard, another
supervisor; Sgt. Brian Simerly, the acting post commander at
the time of the incident (Helms was on medical leave); Lt.
Dale Cobb, the assistant troop commander of McHenry's troop;
and Capt. Charles DeVinner, the troop commander (all
defendants other than McHenry and Collier are hereinafter
referred to collectively as "supervisory defendants"). Odom's
suit eventually included claims against the supervisory
defendants for failure to properly train and
supervise McHenry
and for violating various law-enforcement policies and
procedures. In support of these claims, Odom relied on a
provision in the Highway Patrol Division Procedure Manual
("Highway Patrol Manual"), known as the "relay" procedure,
that requires a trooper who transports a motorist to notify
the post of the trooper's starting and ending mileage. Odom
also relied on various provisions in the Highway Patrol Manual
regarding the supervisory defendants' duties relating to
McHenry.
3
1180749
The supervisory defendants moved for a summary judgment,
arguing that they were protected from liability by
State-agent
immunity. The trial court granted the motion and, with Odom's
claims against McHenry still pending,1 certified the partial
summary judgment as final under Rule 54(b), Ala. R. Civ. P.
Odom appeals.
II. 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."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39
(Ala. 2004).
1A summary judgment had previously been entered in favor
of Collier.
4
1180749
III. Analysis
In the supervisory defendants' summary-judgment motions,
they argued that they were entitled to State-agent immunity
because they were engaged in a function that involved
exercising judgment -- supervising McHenry. On appeal, Odom
contends that the supervisory defendants were not entitled to
a summary judgment on the basis of State-agent immunity
because she provided evidence that they acted willfully or
beyond the scope of their authority.
To be entitled to State-agent immunity, a defendant must
first make a prima facie showing that, at the time of the
conduct giving rise to the claim, he was an agent of the
State. Cf. Ex parte Cranman, 792 So. 2d 392, 405 (Ala.
2000);2 Ex parte Reynolds, 946 So. 2d 450, 452 (Ala. 2006).
It is undisputed that the supervisory defendants met this
requirement. Second, the defendant must make a prima facie
showing that the claim is based on one or more of certain
categories
of
conduct
by
the
agent,
which
include
"[e]xercising his or her judgment in the administration of a
2Ex parte Cranman was a plurality opinion. A majority
adopted the Cranman restatement in Ex parte Butts, 775 So. 2d
173, 177-78 (Ala. 2000).
5
1180749
department or agency of government, including ... supervising
personnel." Cranman, supra; Reynolds, supra. There is no
dispute that the supervision of McHenry was the basis of
Odom's claims. However, in an attempt to evade the clear
import of this subcategory of covered conduct involving
"supervising personnel," Odom argues that the supervisory
defendants did not come within its scope because they violated
"non-discretionary" policies and procedures. Yet that is not
properly an argument that the supervisory defendants were not
engaged in covered conduct; rather, it is an argument that the
supervisory defendants' covered conduct came within an
exception to
State-agent
immunity
regarding
conduct
beyond
the
agent's authority, an issue we address next.
If the defendant carries his burden of showing agency and
covered conduct, then the plaintiff must show either (1) that
non-immunity is required by the federal Constitution or laws;
the Alabama Constitution; or Alabama laws, rules, or
regulations enacted or promulgated to regulate a governmental
agency; or (2) that the agent "act[ed] willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or
under a mistaken interpretation of the law." Cranman, supra;
6
1180749
see Reynolds, supra. Here, Odom contends that the supervisory
defendants acted willfully and beyond the scope of their
authority. The only specific act or omission to which Odom
points is the supervisory defendants' "failure[] to supervise
McHenry ... after he violated the [r]elay procedure" that
required him to notify the trooper post of his starting
mileage when he began to transport Odom from the accident
scene.
To meet the willfulness exception, a plaintiff must show
more than that the defendant was negligent. See City of
Birmingham v. Sutherland, 834 So. 2d 755, 762 (Ala. 2002);
Giambrone v. Douglas, 874 So. 2d 1046, 1057 (Ala. 2003).
Rather, in this context, "willfully" means that the defendant
was consciously aware that his act or omission would likely
cause harm to someone. Cf. Ex parte Dixon Mills Volunteer
Fire Dep't, Inc., 181 So. 3d 325, 333 (Ala. 2015)
("'"'Implicit in ... willful ... misconduct is an acting, with
knowledge of danger, or with consciousness, that the doing or
not doing of some act will likely result in injury.'"'"
(quoting Phillips ex rel. Phillips v. United Servs. Auto.
Ass'n, 988 So. 2d 464, 467 (Ala. 2008), quoting other cases));
7
1180749
Hooper v. Columbus Reg'l Healthcare Sys., Inc., 956 So. 2d
1135, 1140 (Ala. 2006) ("'To constitute "willful or
intentional injury," there must be knowledge of danger
accompanied with a design or purpose to inflict injury ....'"
(quoting English v. Jacobs, 263 Ala. 376, 379, 82 So. 2d 542,
545 (1955))). Thus, Odom was required to provide evidence
that, when McHenry violated the relay procedure by failing to
call in his starting mileage, the supervisory defendants were
consciously aware that their omission to contact him
immediately or to take other action would likely result in
harm to someone. However, Odom presented no evidence that the
supervisory defendants were consciously aware of McHenry's
relay-procedure violation, let
alone
that
their
omission
would
harm anyone. Sgt. Helms was on medical leave at the time, and
there was no evidence that any of the other supervisory
defendants was informed that McHenry had failed to follow the
relay procedure in time to prevent his assault on Odom. Thus,
Odom did not make a prima facie showing of willfulness.
As for the beyond-the-scope-of-authority exception, Odom
argues that the supervisory defendants failed to follow
Highway Patrol Division policies and procedures when they
8
1180749
failed to respond immediately to McHenry's violation of the
relay procedure. "A State agent acts beyond authority ...
when he or she 'fail[s] to discharge duties [in accordance
with] detailed rules or regulations, such as those stated on
a checklist.'" Giambrone, 874 So. 2d at 1052 (quoting Ex
parte Butts, 775 So. 2d 173, 178 (Ala. 2000)). Odom relies on
the following provisions in the Highway Patrol Manual. As to
Cpls. Furukawa, Burch, and Woodard:
"A. General
"1.
Corporals are 'first line' supervisors in
the Highway Patrol Division. Corporals are
responsible
directly
to
the
Post
Commander.
"2.
Corporals shall provide leadership and
counsel for subordinates and by their own
bearing and conduct, they will set an
example for these subordinates.
"....
"B. Responsibilities
"1.
Corporals must remain alert to any unusual
incidents which occur within the Post and
keep the Post Commander informed of such
incidents. Any action taken by the Corporal
relating to such an incident will also be
reported to the Post Commander.
"2.
Corporals must remain aware of the morale,
general
health,
and
well-being
of
subordinates.
9
1180749
"3.
The Corporal should always issue clear,
concise
instructions
to
subordinates.
Corporals will strive to promote good
public relations, keep an active interest
in all activities within the Post, and
project a professional law enforcement
image.
"4.
In
addition
to
supervision
of
subordinates,
Corporals
on
occasion
will
provide
training
for personnel in the Post. Corporals will
maintain adequate observation of personnel
so a fair evaluation of job performance may
be conducted.
"....
"6.
Corporals
will
conduct
Performance
Appraisals, Mid-appraisals, Preliminary
Probationary
Reports,
and
Final
Probationary Reports on Troopers.
"....
"10. Corporals
receive
and
investigate
complaints against subordinate personnel
and recommend disciplinary action as
required by such. Corporals will perform
disciplinary counseling actions/sessions
such as warning/counseling forms, etc. for
inclusion in personnel grade files.
"11. Corporals will function as Acting-Post
Commander in the absence of the Post
Commander."
As to Sgts. Helms and Simerly:
"A. General
"1.
The primary function of the Post Commander
is to provide leadership and direction
10
1180749
while
maximizing
efforts
toward
the
prevention
of
traffic
accidents
and
protection of life and property.
"2. The Post Commander is the Assistant Troop
Commander's
advisor
on
operations,
planning, decisions, and the execution of
plans.
"3.
The Post Commander is directly responsible
to the Assistant Troop Commander. He will
advise and report to the Assistant Troop
Commander
on
all
matters.
From
his
observation, he will continually apprise
the Assistant Troop Commander on the
status of plans, programs, and operations
within the Post. ...
"....
"5.
The Post Commander has a broad range of
responsibilities .... He is a supervisory
officer, correcting any discrepancy of the
Corporal, Trooper or other subordinate
personnel.
"B. Responsibilities
"1.
The
Post
Commanders
are
directly
responsible
to
the
Assistant
Troop
Commander. Sergeants must remain alert to
any unusual incidents which occur within
the Post and keep the Assistant Troop
Commander informed of such incidents. ...
"....
"4.
The Post Commander is responsible for
monitoring
the
Police
Communications
Officers (PCO's), ... Corporals, and any
other subordinate personnel assigned to
the Post -- giving guidance and direction.
11
1180749
"....
"6.
The
Post
Commander
completes
all
performance appraisals on the employees
under his immediate supervision and as
otherwise directed.
"7.
The Post Commander monitors and reviews
the Field Training Officer (FTO) Program
Coordinator for his assigned post."
As to Lt. Cobb:
"A. General
"1.
The primary function of an Assistant Troop
Commander is to provide leadership and
direction while maximizing efforts toward
the prevention of traffic accidents and
protection of life and property. It is the
responsibility
of
Assistant
Troop
Commanders
to
effectively
use
all
available resources to accomplish any
missions which may be assigned.
"....
"4.
The
Assistant
Troop
Commander
is
responsible to the Troop Commander. He
will advise and report to the Troop
Commander
on
all
matters.
From
his
observation, he will continually apprise
the Troop Commander on the status of
plans, programs, and operations within the
Troop.
He
performs
those
tasks
and
functions assigned to him by the Troop
Commander.
"....
"6.
The
Assistant
Troop
Commander
is
a
supervisory
officer,
correcting
any
12
1180749
discrepancy of the Sergeant, Corporal, or
Trooper through the chain of command
unless the situation warrants immediate
action. The Assistant Troop Commander will
receive assistance from Post Commanders
and Trooper Corporals as needed.
"....
"9.
The
Assistant
Troop
Commander
is
responsible
for
maintaining
a
high
standard of discipline among personnel and
ensuring the overall morale, efficiency,
and operations of the Troop.
"....
"B. Responsibilities
"1. Reporting
"a. The Assistant Troop Commander shall
keep the Troop Commander informed of
any unusual incidents or serious
conditions that he becomes aware of.
The Assistant Troop Commander must
monitor all activities within the
Troop including assigned troopers,
other law enforcement agencies, and
activities of the general public.
"b. The Assistant Troop Commander is
responsible
for
disseminating
information from the Troop Commander
and keeping Troop personnel informed
of
changes
in
policy,
rules,
regulations, and
any
other
information
that may impact their duties and
responsibilities. When personnel are
made aware of such changes, the
Assistant
Troop
Commander
is
13
1180749
responsible for their implementation
and compliance.
"....
"K. Training
"The Assistant Troop Commander will remain aware of
the training requirements and needs for personnel
within the Troop and coordinate this with the
Division
Training
Officer.
Records
will
be
maintained regarding training and recommendations
will be included on each employee's Performance
Planning Form."
As to Capt. DeVinner:
"C. Responsibilities
"1.
A Troop Commander alone is responsible for
all the Troop does and fails to do. He
cannot delegate this responsibility.
"2.
The Troop Commander is responsible for the
... discipline of assigned personnel.
"3.
The Troop Commander should be familiar
with Rules of the State Personnel Board,
the
State
Merit
System
rules
and
procedure, and department policies and
procedures so that he may be able to
explain them to his subordinates."
Having reviewed these provisions in light of our
precedent regarding State agents' supervision of others, we
conclude that these provisions are not the kind of detailed,
checklist-like rules that remove a State agent's judgment and
bring his conduct within the beyond-the-scope-of-authority
14
1180749
exception. For example, in Giambrone, a
high-school wrestling
coach engaged a much smaller student in a "challenge match,"
rendering the student a quadriplegic. The student's mother
sued the coach, the athletic director, and the principal. As
to the athletic director and the principal, the mother relied
on guidelines that required that coaches be "'carefully
selected'" and "'well-trained'" and that they "'show a
mastery
of the principles that [they are] going to teach'" and "'have
a genuine and up-to-date knowledge of that which [they]
propose[] to teach.'" 974 So. 2d at 1056. The guidelines also
provided that principals "'shall be ultimately responsible in
all matters'" relating to sports. We held that these
guidelines "were not sufficiently detailed to impose specific
duties"; they were "not the type of detailed rules and
regulations that could remove the exercise of [the athletic
director's and principal's] judgment." Id. at 1056.
Similarly, in Ex parte Spivey, 846 So. 2d 322 (Ala.
2002), a student's hand was severely injured while he was
operating woodworking equipment. The student's parents sued
the woodworking teacher and the school director. As to the
teacher, the parents relied on his job description, which
15
1180749
required him "to teach students vocational skills, to 'insure
safety' by instructing students in safety practices and to
'[r]eport hazards which you cannot correct to the vocational
director.'" Id. at 332-33. As to the director, the parents
relied on a job-description requirement that he "'[i]mplement
safety instruction and practices as an integral part of all
vocational programs.'" Id. at 327. As to both defendants,
the parents relied on a statement in the faculty handbook that
"'[s]afety should complement the instructional program.'" Id.
at 333. This Court held that none of these provisions were
the type of detailed rules that would remove a State agent's
judgment.
Likewise, in Gowens v. Tys. S. ex rel. Davis, 948 So. 2d
513 (Ala. 2006), a child was unable to escape from a house
fire because her maternal grandmother had gone to work and
locked her in the house. The child suffered third-degree
burns and amputation of her fingers. The child's paternal
grandmother sued a Department of Human Resources investigator
and his supervisor, alleging that the supervisor failed to
properly act on the investigator's reports of suspected child
neglect. The paternal grandmother relied on portions of a
16
1180749
manual
that
required
the
supervisor
"to
'assess,'
'determine,'
'examine,' 'concur,' and 'devise' and 'develop' plans." We
held that, "[b]y definition, as well as in operation, the[se]
are not 'checklist' activities." Id. at 532.
The Court of Civil Appeals has held similarly. In Bayles
v. Marriott, 816 So. 2d 38 (Ala. Civ. App. 2001), a teacher
was injured in a "sinking chair" prank by other teachers, and
she sued the principal, among others. A school policy
provided:
"'[T]he principal shall be immediately responsible
for the condition of the school plant and shall
provide
direct
supervision
to
the
custodial
maintenance
personnel
assigned
to
his
[her]
building. The principal will ... [i]nspect the
school plant periodically for conditions that might
endanger the health and safety of students and or
employees. Fire, accident and health hazards should
be remedied or reported immediately.... [Principals
should]
[i]nitiate
through
the
Maintenance
supervisor, when necessary, prompt correction of
safety related deficiencies in the school plant or
grounds.'"
Id. at 40-41. The Court of Civil Appeals held that this
"broadly phrased" policy, "drafted in general terms," was not
a "detailed safety rule or checklist." Id. at 41, 42.
Like the requirements and guidelines in those cases, the
rules relied on by Odom are not the kind of detailed,
17
1180749
checklist-like rules that define the scope of a State agent's
authority. The Highway Patrol Manual leaves to the various
ranks of supervising officers wide discretion in carrying out
the Manual's general mandates to supervise, train, resolve
problems, report incidents, and generally provide leadership
for those under their command. These broadly worded
generalities are simply not sufficient to remove the
discretion that is the hallmark of State-agent immunity. To
invoke the beyond-the-scope-of-authority exception, a rule
"must be so specific that it removes the [S]tate agent's
discretion and puts him on notice that certain, specific acts
are unacceptable."
King v. Archer (No. 2:17-CV-174-KOB, Sept.
6, 2018) (N.D. Ala. 2018) (not reported in F. Supp. 3d).
In support of her argument, Odom relies on a case
involving
similar
allegations
of
a
trooper's
sexual
misconduct, Ex parte Bitel, 45 So. 3d 1252 (Ala. 2010), in
which this Court declined to hold that Department of Public
Safety supervisors were entitled to State-agent immunity. In
that case, however, we reviewed the immunity issue following
the denial of the supervisors' motion to dismiss. Id. at
1254. And in the realm of State-agent immunity, this
18
1180749
procedural distinction makes all the difference.
We
explained
in Bitel: "[B]ecause [at the motion-to-dismiss stage] this
Court is required to view the allegations in the complaint
most strongly in [the plaintiff's] favor, we cannot rule out
at this stage whether the supervisors may have acted beyond
their authority in failing to discharge duties pursuant to
detailed rules or regulations." Id. at 1258 (emphasis added).
Indeed, this Court has recognized
"that a motion to dismiss is typically not the
appropriate
vehicle
by
which
to
assert
...
State-agent
immunity
and
that
normally
the
determination as to the existence of such a defense
should be reserved until the summary-judgment stage,
following appropriate discovery. '"[I]t is the rare
case involving the defense of [State-agent] immunity
that would be properly disposed of by a dismissal
pursuant to Rule 12(b)(6), [Ala. R. Civ. P.]."'"
Ex parte Alabama Dep't of Mental Health & Retardation, 837
So. 2d 808, 813-14 (Ala. 2002) (quoting Butts, 775 So. 2d at
177, quoting in turn Patton v. Black, 646 So. 2d 8, 10 (Ala.
1994)).3
3Procedurally, this rarity is unsurprising given the
interaction between the factual "lens" applied at the motion-
to-dismiss stage and the Cranman/Reynolds burden-shifting
structure explained above. Under that structure, only after
a State-agent defendant has shown agency and covered conduct
is the plaintiff required to show a Cranman exception. Thus,
in pleading a claim against a State agent, a plaintiff's
initial burden is merely to state a cause of action against
19
1180749
In contrast, here the supervisory defendants moved for a
the defendant. The plaintiff need not anticipate a State-
agent-immunity defense by pleading with particularity a
Cranman exception. Therefore, unless the inapplicability of
all the Cranman exceptions is clear from the face of the
complaint, a motion to dismiss based on State-agent immunity
must be denied. See Butts, 775 So. 2d at 178 ("At first
blush, it appears that some claims ... are due to be
dismissed, pursuant to the Cranman test. However, if any
[defendant] failed to discharge duties pursuant to detailed
rules or regulations, such as those stated on a checklist, or
acted willfully, maliciously, fraudulently, in bad faith,
beyond his authority, or under a mistaken interpretation of
the law, then it is possible that that [defendant] would not
be entitled to State-agent immunity. ... [At the motion-to-
dismiss stage], '[i]t is not for this court to determine,
based on the complaint, whether the plaintiff will ultimately
prevail, but only if he may possibly prevail.' [Patton,] 646
So. 2d at 10. It is conceivable that the [plaintiffs] could
prove facts that would show that one or more of the
[defendants] failed to discharge duties pursuant to a
checklist or acted willfully, maliciously, fraudulently, in
bad faith, beyond his authority, or under a mistaken
interpretation of the law. If so, the [plaintiffs] 'may
possibly prevail' on their claims. Therefore, the trial court
properly denied the [defendants'] motion to dismiss ....").
Compare Department of Mental Health, 837 So. 2d at 813-14
(based on Butts rationale, denying mandamus relief regarding
trial court's denial of motion to dismiss based on State-agent
immunity), Ex parte Dangerfield, 49 So. 3d 675, 682-83 (Ala.
2010) (same), and Johnson v. Reddoch, 198 So. 3d 497, 506-08
(Ala. 2015) (plurality) (same), with Ex parte Gilland, 274 So.
3d 976, 983-86 (Ala. 2018) (granting mandamus relief regarding
trial court's denial of motion to dismiss based on State-agent
immunity because inapplicability of Cranman exceptions was
clear from face of complaint), and Ex parte Wilcox Cty. Bd. of
Educ., 279 So. 3d 1135, 1145-46 & n.3 (Ala. 2018) (same). But
see Ex parte Wilcox Cty. Bd. of Educ., 285 So. 3d 765, 778-79
(Ala. 2019) (granting mandamus relief regarding trial court's
denial of motion to dismiss based on State-agent immunity
because complaint failed to allege a Cranman exception).
20
1180749
summary judgment, and they showed agency and covered conduct.
In this posture, the burden was on Odom to provide evidence
that the supervisory defendants' conduct came within a
Cranman
exception. This burden is inherently heavier than the burden
required to survive a motion to dismiss and, as we have
explained above, was not carried. Therefore, Odom has not
demonstrated that the trial court erred in entering a summary
judgment for the supervisory defendants on the basis of State-
agent immunity.4
IV. Conclusion
Odom fails to demonstrate that the supervisory defendants
were not entitled to State-agent immunity. Accordingly, we
affirm the summary judgment in their favor.
AFFIRMED.
Shaw, Bryan, Mendheim, and Mitchell, JJ., concur.
4Although Odom also argues that the summary judgment was
not supported by the doctrine of the law of the case (based on
the earlier partial summary judgment in favor of Collier) and
that the supervisory defendants owed Odom a duty based on the
"special relationship" doctrine, we need not address those
issues. Because the summary judgment was supported by State-
agent immunity, whether it was also supported by law of the
case is unnecessary to decide, and the issue of duty was
unnecessary for the trial court to reach.
21 | June 26, 2020 |
198e011c-00be-460b-b151-4c24f2eaf2cb | Daniels v. Hawthorne-Midway Lily Flagg, LLC | N/A | 1190208 | 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
____________________
1190208
____________________
Geraldine Daniels
v.
Tracy Wiley and Hawthorne-Midway Lily Flagg, LLC
Appeal from Madison Circuit Court
(CV-18-901638)
BOLIN, Justice.
In December 2016, Geraldine Daniels was residing at the
Hawthorne at Lily-Flagg apartment complex, which was owned by
Hawthorne-Midway Lily Flagg, LLC ("Hawthorne-Midway"), and
managed by Hawthorne Residential Partners, LLC, and its
1190208
community
manager,
Tracy
Wiley.
Daniels
sued
Hawthorne-Midway
and Wiley for damages resulting from injuries she suffered
when she fell while stepping off a sidewalk at the complex.
Daniels appeals from a summary judgment entered in favor of
Hawthorne-Midway and Wiley. We affirm.
Facts and Procedural History
On the evening of December 17, 2016, Daniels was walking
on the sidewalk from her apartment to the mail kiosk for her
building to retrieve her mail. According to Daniels, mud had
accumulated on the sidewalk as a result of a rain earlier that
day. When she stepped off the sidewalk curb, Daniels slipped
and fell and, according to her, broke both of her knees.
On August 28, 2018, Daniels sued Hawthorne-Midway and
Wiley, alleging that Hawthorne-Midway and Wiley had breached
duties "to ensure that the premises of the apartment complex
were reasonably safe for tenants" and "to not create and/or
allow dangerous conditions on the premises of the apartment
complex." Hawthorne-Midway and Wiley answered the complaint,
pleading, among other defenses, the defenses of open and
obvious
danger,
contributory negligence, and
assumption
of
the
risk.
2
1190208
On August 1, 2019, after some discovery had been
conducted, Hawthorne-Midway and Wiley moved for a summary
judgment, arguing that they were not liable for Daniels's
injuries because, they argued, the alleged danger created by
mud was open and obvious, the presence of mud after a rain is
not
an
unreasonably
dangerous
condition,
Daniels's
claims
were
barred by her own contributory negligence and by her
assumption of the risk, Wiley had no personal liability, and
no evidence supported the wantonness claim. In support of
their
motion,
they
attached
testimony
from
Daniels's
deposition;
an
affidavit
from
Wiley;
deposition testimony from
Saundra Ikerd, Daniels's roommate; Daniels's answers to
interrogatories; and testimony from Wiley's deposition.
To explain their knowledge of Daniels's accident, the
area where Daniels fell, and the methods of mail retrieval
provided by the apartment complex, Hawthorne-Midway and Wiley
submitted affidavit testimony from Wiley in which she averred
that she did not learn of Daniels's fall on the night of the
accident but that, when she did learn of the accident in early
January, she personally inspected the area where she
understood Daniels had fallen. She averred in her affidavit:
3
1190208
"I personally inspected this area after [Daniels's]
accident. There are two large, shady trees in this
area. Grass does not easily grow in the areas
underneath and around these trees, which is somewhat
barren with soil and dirt. I understand from
[Daniels's] deposition that this area can become
muddy after periods of rain, and that it had rained
the day of her accident."
Wiley further averred that a diligent search had been
conducted of the records of the apartment complex and that no
record
was
located
concerning
complaints
about
mud
accumulating on the sidewalk near the area where Daniels fell
or other complaints regarding the general condition of the
sidewalk before Daniels's fall in December 2016. According to
Wiley, neither Daniels nor any other tenant had reported a
problem with the condition of the sidewalk to her. Wiley
explained that, in addition to walking on the sidewalk to
retrieve the mail, Daniels could walk on the street, walk
through a breezeway, or drive her car to the mail kiosk and
park in front of it in one of the spaces provided for that
purpose.
In support of their contention that the danger created by
the mud on the sidewalk was open and obvious, Hawthorne-Midway
and Wiley submitted deposition testimony from Daniels
regarding her knowledge of the condition of the sidewalk, her
4
1190208
navigation of the sidewalk, and the circumstances surrounding
her accident. The following exchange occurred during
Daniels's deposition:
"Q.: Had you ever seen mud at that spot before your
accident?
"A: Yes.
"Q: And over what period of time had you noticed the
mud?
"A.: For ever since we lived in that particular
apartment and had to go to, you know, go get the
mail.
"Q.: Had you ever had any problems with the mud
before?
"A.: Well, I didn't have a problem specifically with
it, but I was afraid Saundra might get some wild
hair or something and walk down there, even if I
told her not to. And she would have a problem with
it. I was navigating –- I was pretty agile at that
time. I was navigating pretty good. And I would
step around, and then where it drops off the curb
and it accumulates and --
"Q.: You say the mud drops off of the curb?
"A: Curb, right there where you step off the curb
and over to the mail boxes.
"....
"Q: But you've never had any problem navigating the
curb? You've always been able to get over the curb
with no problem?
5
1190208
"A: I never had any problem navigating the curb, but
–- and I never had a problem navigating that curb,
except that mud had piled down in, you know, where
you step off the curb, that little area, and it was
thick at that time.
"....
"A: ... I went to step off of that curb to go to the
mailbox. The sidewalk had ended pretty much, and I
stepped down, and instead of stepping over that mud
that had drained there –- and I usually did, I
could usually do that –- I stepped in it. That's
what made me fall.
"Q: And tell us everything that you recall that
happened.
"A: Okay. I went out the front door, I walked down
the sidewalk?
"....
"A: Then the sidewalk was ending and there was a
curb, sort of like that (indicating) going around.
I stepped off the curb and I knew the mud was there.
And I usually would step over it, kind of a little
hop step over it. But I didn't, I misstepped and I
stepped in it.
"....
"Q: And the after one foot slipped, what happened to
the rest of your body?
"A: It just completely collapsed and fell. ..."
Daniels's roommate, Ikerd, testified in deposition as follows
with regard to retrieving mail during periods when it had
rained:
6
1190208
"A: Well, if it rains, it's muddy and you can't
hardly –- In fact, I've almost fallen a couple of
times. I try to go, but [Daniels and I] just quit
going; we just drive up and get the mail.
"....
"A: [Daniels] just drives us around to the mailbox
and we just get out, and we don't have to walk in
that."
On September 17, 2019, Daniels responded to the motion
for a summary judgment. She argued, citing Campbell v. Valley
Garden Apartments, 600 So. 2d 240 (Ala. 1992), that, even
though she had knowledge of the danger created by the
accumulated mud on the sidewalk and curb, that knowledge did
not preclude her recovery for negligence and wantonness in
that Hawthorne-Midway and Wiley should have anticipated her
being injured by the danger because, she said, they did not
provide her with a "reasonable and safe alternative" means for
retrieving mail on a rainy day. Daniels further argued that
Hawthorne-Midway and Wiley were liable for her injuries
because, she said, they knew or should have known about the
danger created by the mud on the sidewalk, which, she said,
was "plainly visible." Daniels submitted her deposition
testimony in which she testified that at some point she had
telephoned the property management about the mud on the
7
1190208
sidewalk. Additionally, she attached an affidavit from Audra
Hampton, another resident in her building, who averred:
"The area where [Daniels] fell is dangerous
especially after it rains. When it rains mud always
covers the sidewalk and the area around the curb and
roadway. Whenever I have to get my mail, I avoid
walking near that part of the roadway and sidewalk
because it's so slick."
She further pointed out that Hawthorne-Midway and Wiley should
have been aware of the danger created by the mud because the
2017 Safety & Maintenance Manual ("the SAM Manual") of
Hawthorne
Residential
Partners,
LLC,
requires
daily
inspections of the complex to identify and to remove debris.
She also maintained that Hawthorne-Midway and Wiley should
have anticipated that she would be injured by the mud-created
danger because, she said, no safe alternative route to
retrieve mail existed on the day she fell. She submitted
evidence indicating that walking through the
breezeway was not
safe because of a "makeshift" fix of loose and uneven tiles;
that walking on the street was not safe because of drivers
speeding through the parking lot; and that driving her car was
not an option on the evening she was injured because no vacant
parking spaces were available at the mail kiosk.
8
1190208
On September 18, 2019, Hawthorne-Midway and Wiley filed
their replies to Daniels's response. They argued that they
owed no legal duty to Daniels because the accumulated mud on
the sidewalk and curb created an "open and obvious" condition
that was known to Daniels. They further argued that, because
Daniels knew of the mud and admitted her decision to "hop
step" over it that evening, Daniels failed to exercise
reasonable care and placed herself in the way of danger and
that, consequently, her recovery for negligence was barred by
her contributory negligence. They contended that Campbell
had been overruled by Ex parte Gold Kist, Inc., 686 So. 2d
260, 261 (Ala. 1996)(declining to adopt Restatement (Second)
of Torts § 343A (1965), which was quoted in Campbell, because
it was not "a correct statement of the law relating to the
liability of a possessor of land"),1 and that, consequently,
Daniels's reliance on Campbell is misplaced.
On September 19, 2019, the trial court conducted a
hearing addressing the summary-judgment motion,2 and on
1This Court did not discuss Campbell or other cases citing
or quoting Restatement (Second) of Torts § 343A in Ex parte
Gold Kist.
2A transcript of the hearing is not included in the
record.
9
1190208
September 24, 2019, the trial court, without providing its
reasons, entered a summary judgment for Hawthorne-Midway and
Wiley as to all of Daniels's claims against them. On October
24, 2019, Daniels moved the trial court to alter, amend, or
vacate the judgment, arguing that her "knowledge of the hazard
[did] not 'de jure' render her decision to traverse said
hazard to be an assumed risk or an incident of contributory
negligence"; that "[a] defendant landlord's duty to conduct
daily inspections of the property to identify and remove
debris is not abrogated because certain debris and/or a known
hazard is open and obvious";3 and that "[a] defendant
landlord's duty to maintain property in a reasonably clean and
safe condition is not abrogated because certain debris and/or
a known hazard is open and obvious." The trial court
summarily denied Daniels's motion the following day. Daniels
appeals.
Standard of Review
"'"The standard of review applicable
to a summary judgment is the same as the
standard for granting the motion...."
McClendon v. Mountain Top Indoor Flea
3This argument was presented for the first time in
Daniels's motion to alter, amend, or vacate.
10
1190208
Market, Inc., 601 So. 2d 957, 958 (Ala.
1992).
"'"A summary judgment is
proper when there is no genuine
issue of material fact and the
moving party is entitled to a
judgment as a matter of law. Rule
56(c)(3), Ala. R. Civ. P. The
burden is on the moving party to
make a prima facie showing that
there is no genuine issue of
material fact and that it is
entitled to a judgment as a
matter of law. In determining
whether the movant has carried
that burden, the court is to view
the evidence in a light most
favorable to the nonmoving party
and
to
draw
all
reasonable
inferences
in
favor of
that
party.
To
defeat
a
properly
supported
summary
judgment
motion, the nonmoving party must
present 'substantial evidence'
creating
a genuine
issue
of
material fact -- 'evidence of
such weight and quality that
fair-minded
persons
in
the
exercise of impartial judgment
can
reasonably
infer
the
existence of the fact sought to
be proved.' Ala. Code 1975, §
12–21–12; West v. Founders Life
Assurance Co. of Florida, 547 So.
2d 870, 871 (Ala. 1989)."
"'Capital
Alliance
Ins.
Co.
v.
Thorough–Clean, Inc., 639 So. 2d 1349, 1350
(Ala. 1994).'
11
1190208
"Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d
933, 935 (Ala. 2006)."
McClurg v. Birmingham Realty Co., [Ms. 1180635, January 31,
2020] ___ So. 3d ___, ___ (Ala. 2019).
Discussion
With regard to the claims against Wiley, Hawthorne-Midway
and Wiley made a prima facie showing that there is no genuine
issue of material fact. The burden then shifted to Daniels to
present substantial evidence creating a genuine issue of
material fact with regard to Wiley's liability. By entering
a summary judgment in favor of Wiley, the trial court
concluded that Daniels did not satisfy her burden.
Although she names Wiley as an appellee in her notice of
appeal, Daniels does not contend before this Court that the
trial court erred in entering a summary judgment for Wiley.
The evidence before us indicates that Wiley is not the
premises owner; rather, at the time of the accident she was
employed as the community manager. In their motion for a
summary judgment, Hawthorne-Midway and Wiley argued that
managerial employees "are liable for torts in which they have
personally participated." Ex pare Charles Bell Pontiac-Buick-
Cadillac-GMC, Inc., 496 So. 2d 774, 775 (Ala. 1986). Daniels
12
1190208
presented no argument or evidence in the trial court
indicating that Wiley personally participated in the alleged
tortious conduct or that Daniels had informed Wiley of the
alleged dangerous condition before the fall. On appeal,
Daniels does not address the assertions made in the trial
court that Wiley did not owe, and therefore did not breach,
any legal duty owed to Daniels. By failing to address this
issue, Daniels has waived her right to challenge the trial
court's summary judgment in favor of Wiley. Fogarty v.
Southworth, 953 So. 2d 1225, 1232 (Ala. 2006)("When an
appellant confronts an issue below that the appellee contends
warrants a judgment in its favor and the trial court's order
does not specify a basis for its ruling, the omission of any
argument on appeal as to that issue in the appellant's
principal brief constitutes a waiver with respect to the
issue."). As to Wiley, therefore, the summary judgment is
affirmed.
As to Hawthorne-Midway, Daniels contends in her brief to
this Court that, although the danger created by the
accumulated mud on the sidewalk and curb was open and obvious,
Hawthorne-Midway knew of the danger and owed her a duty to
13
1190208
provide a safe route to retrieve her mail and that, by failing
to provide a safe alternate route for her to retrieve her
mail, Hawthorne-Midway should have anticipated that she would
be harmed by the accumulated mud on the sidewalk and curb and,
therefore, is liable for her injuries.
In support of her contention, Daniels cites Campbell v.
Valley Garden Apartments, supra, McDonald v. Lighami
Development Co., 962 So. 2d 847 (Ala. Civ. App. 2006), and
Turner v. Dee Johnson Properties, 201 So. 3d 1197 (Ala. Civ.
App. 2016), which, she says, hold that, in a premises-
liability case, even if a tenant/invitee knows of the open and
obvious danger that causes the injury, the landlord may still
be liable for damages if the landlord knows of the danger and
should have anticipated the harm created by the danger. She
reasons that in situations where the danger is known and the
landlord does not provide a safe, reasonable alternative, the
tenant cannot avoid the danger and the defenses of
contributory negligence and assumption of risk cannot exist,
as a matter of law. Rather, she says, in such situations
questions of fact are created for the jury to resolve with
regard to the landlord's liability.
14
1190208
In Campbell, a resident of an apartment complex, while
walking to dispose of her trash in the complex's garbage
dumpster, crossed over a steel plate suspended over a drainage
ditch that was known to both the resident and the manager of
the apartment complex to be at times "slippery" and "slick."
The resident slipped on the steel plate, was injured, and sued
the owner of the apartment complex, alleging that the owner
was negligent and wanton in maintaining the sidewalk. The
trial court entered a summary judgment in favor of the owner
of the apartment complex. The resident appealed.
On appeal, the owner of the apartment complex maintained
that summary judgment was proper because the resident "knew of
the allegedly dangerous condition of the sidewalk and was
contributorily negligent, as a matter of law, in causing the
injury." 600 So. 2d at 241. This Court rejected that
argument, opining:
"A landlord has the duty to maintain common
areas in a reasonably safe condition in order to
avoid liability for injury to a tenant or a guest.
Hancock v. Alabama Home Mortg. Co., 393 So. 2d 969
(Ala. 1981). 'This duty is imposed so that "tenants
and their invitees may have egress and ingress
without unnecessary danger in the due exercise of
the privilege or necessity of going to and from [the
tenant's] apartment house or office building."'
Hancock, 393 So. 2d at 970, quoting Preston v.
15
1190208
LaSalle Apartments, 241 Ala. 540, 3 So. 2d 411
(1941).
"The Restatement (Second)
of
Torts
§
343A (1965)
states:
"'(1) A possessor of land is not
liable to his invitees for physical harm
caused to them by any activity or condition
on the land whose danger is known or
obvious to them, unless the possessor
should anticipate the harm despite such
knowledge or obviousness.'
"As quoted in Terry v. Life Ins. Co. of Georgia, 551
So. 2d 385, 386 (Ala. 1989).
"We note that illustration 5 to § 343A,
Restatement (Second) of Torts (1965), is analogous
to the present case:
"'A owns an office building, in which
he rents an office for business purposes to
B. The only approach to the office is over
a slippery waxed stairway, whose condition
is visible and quite obvious. C, employed
by B in the office, uses the stairway on
her way to work, slips on it, and is
injured. Her only alternative to taking the
risk was to forgo her employment. A is
subject to liability to C.'
"This Court has written:
"'[O]nce it has been determined that the
duty owed to an invitee has been breached,
questions
of
contributory
negligence,
assumption
of
risk,
or
whether
the
plaintiff should have been aware of the
defect are normally questions for the
jury.'
16
1190208
"Terry, 551 So. 2d at 386–87. A summary judgment is
rarely appropriate in a negligence case. Berness v.
Regency Square Associates, Ltd., 514 So. 2d 1346
(Ala. 1987).
"There was evidence that before her fall
Campbell knew of the slippery condition of the steel
plate connected to the sidewalk. However, only by
crossing the steel plate could she go to the garbage
dumpster, unless she walked through the drainage
swale. Therefore, we cannot say that Campbell was
contributorily negligent as a matter of law so as to
bar her claim. There are factual questions for a
jury to answer in this case. She also presented
evidence that the apartment complex knew of the
slippery condition of the steel plate. It can
reasonably be inferred that [the apartment complex]
could have anticipated harm from the condition of
the steel plate on the sidewalk."
600 So. 2d at 241-42.
In McDonald, the Court of Civil Appeals reversed a
summary judgment entered for a landlord on a claim brought by
a tenant's guest who fell while walking on concrete stepping
stones in the apartment complex's parking area. The tenant's
guest argued that she had presented substantial evidence of
the landlord's constructive knowledge of the hazard, thus
creating a genuine issue of material fact with regard to
whether the landlord knew about the alleged dangerous
condition. The court held that the tenant guest had met her
17
1190208
burden to overcome the landlord's summary-judgment motion,
stating:
"As our supreme court stated in Campbell v.
Valley Garden Apartments[, 600 So. 2d 240 (Ala.
1992)]:
"'There are factual questions for a jury to
answer in this case. [The tenant's guest]
... presented evidence that the apartment
complex knew of the slippery condition of
the [stepping stones and the ground around
them in wet weather]. It can reasonably be
inferred that [the landlord] could have
anticipated harm from the condition of the
[stepping stones and the ground around them
in wet weather].'
"600 So. 2d 242."
McDonald, 962 So. 2d at 851.
In Turner, a tenant sued her landlord after she fell and
was injured when a panel of the porch flooring of the house
she was leasing gave way. The tenant alleged in her complaint
that she had informed the landlord of a defect in the front-
porch flooring but that the landlord had not remedied the
defect at the time of her fall. The landlord moved to
dismiss, alleging that the face of the complaint indicated
that the alleged hazard was open and obvious and that the
tenant was fully aware of the hazard before she fell. The
trial court dismissed the complaint, and, after the denial of
18
1190208
her postjudgment motion, the tenant appealed. The Court of
Civil Appeals, after quoting the law set forth in Campbell,
reversed the trial court's judgment, stating:
"[W]e cannot conclude that the tenant cannot
'"'"prove any set of circumstances that would
entitle [her] to relief."'"' Murray [v. Prison
Health Servs., Inc.,] 112 So. 3d [1103,] 1106 [(Ala.
Civ. App. 2012)] (quoting other cases). Like in
Campbell [v. Valley Garden Apartments, 600 So. 2d
240 (Ala. 1992)], the tenant in the present case
alleged that the landlord knew of the defect in the
porch and that it had failed to repair it. Morever,
like in Campbell, '[i]t can reasonably be inferred
that the [landlord] could have anticipated harm from
the condition on the [porch].' 600 So. 2d at 242.
Because the landlord failed to show '"'"beyond doubt
that the [tenant] can prove no set of facts in
support of the claim that would entitle the [tenant]
to relief,"'"' we conclude that the trial court
erred in dismissing the tenant's complaint. Murray,
112 So. 3d at 1106."
201 So. 3d at 1200.
Hawthorne-Midway
rejects
Daniels's
contention
that
Campbell, McDonald, and Turner require the conclusion that
Hawthorne-Midway is liable even though the danger created by
the mud was open and obvious because, Daniels says, Hawthorne-
Midway should have anticipated the harm caused by the
accumulated mud in light of its alleged knowledge of the
danger and failure to provide an alternate, safe route to
retrieve the mail. It maintains that a landlord has no duty to
19
1190208
make safe or to warn of a danger that is open and obvious
where the tenant should be aware of the danger in the exercise
of reasonable care. See McClurg v. Birmingham Realty Co.,
[Ms. 1180635, January 31, 2020] ___ So. 3d ___, ___ (Ala.
2020). It directs this Court to Ex parte Gold Kist, Inc., 686
So. 2d
260
(Ala. 1996)(declining to adopt Restatement (Second)
of Torts § 343A as a correct statement of law); and Sessions
v. Nonnenmann, 842 So. 2d 649 (Ala. 2002), and its progeny.
In Gold Kist, an employee of the United States Department
of Agriculture was injured when she slipped on substances that
had accumulated on the floor of a poultry-processing plant
owned by Gold Kist. She injured her back and sued Gold Kist,
alleging that the accident was caused by an unsafe and
hazardous condition created at the plant by Gold Kist. At
trial, she asked the trial court to give the jury the
following two instructions based on Restatement (Second) of
Torts § 343(A):
"'I charge you, ladies and gentlemen of the jury,
that the plaintiff has the burden of proving actual
and constructive notice of the dangerous condition.
However, an exception exists when the hazard was
created by the defendant. In such situation, notice
of the hazardous condition is imputed to the
defendant, and there is no requirement that the
plaintiff introduce any additional evidence to
20
1190208
establish that the defendant had knowledge of the
dangerous condition.'
and
"'I charge you, ladies and gentlemen of the jury,
that a possessor of land is not liable to its
invitees for physical harm caused to them by any
activity or condition on the land whose danger is
known
to
them,
unless
the
possessor
should
anticipate the harm despite such knowledge or
obviousness.'"
686 So. 2d at 261.
On appeal to the Court of Civil Appeals, the employee
maintained that this Court had implicitly adopted the
Restatement (Second) of Torts § 343A, quoted in Campbell and
in Terry v. Life Insurance Co. of Georgia, 551 So. 2d 385
(Ala. 1989)(a premises-liability case involving a landowner
and invitee), as the law of Alabama. The Court of Civil
Appeals agreed and reversed the judgment, holding that this
Court had adopted § 343A as a correct statement of law. On
certiorari review,
without
addressing
Campbell,
Terry,
Sisk
v.
Heil Co., 639 So. 2d 1363, 1365 (Ala. 1994)(a premises-
liability case involving a landowner and invitee), or other
cases appearing to apply § 343A, this Court "decline[d] to
adopt § 343A as a correct statement of the law relating to the
liability of a possessor of land." 686 So. 2d at 261.
21
1190208
In Sessions, this Court addressed a premises-liability
case involving a general contractor (invitor) and a
subcontractor (invitee) where the danger causing the injury
was alleged to be open and obvious. This Court discussed the
operation of the affirmative defenses of contributory
negligence and assumption of risk and recognized this Court's
holding in Gold Kist.4 We explained:
"'In [a] premises-liability case, the elements
of negligence "'are the same as those in any tort
litigation: duty, breach of duty, cause in fact,
proximate or legal cause, and damages.'"' Ex parte
Harold L. Martin Distrib. Co., 769 So. 2d 313, 314
4Although Sessions is a premises-liability case involving
a general contractor and subcontractor, because a tenant is an
invitee of the landlord just as a subcontractor is an invitee
of the general contractor, the principles of law in Sessions
are applicable here. In Shelton v. Boston Financial, Inc.,
638 So. 2d 824, 825 (Ala. 1994), this Court stated:
"With respect to the common areas of an apartment
complex, a tenant has the same legal rights as an
invitee. Coggin v. Starke Brothers Realty Co., 391
So. 2d 111 (Ala. 1980). A landowner owes an invitee
the legal duty 'to exercise reasonable care and
diligence to keep the premises in a reasonably safe
condition
for
the
uses
contemplated
by
the
invitation, and to warn the invitee of known
dangers, or dangers that ought to have been known,
and of which the invitee was ignorant.' Lamson &
Sessions Bolt Co. v. McCarty, 234 Ala. 60, at 62,
173 So. 388 (1937)."
22
1190208
(Ala. 2000)(quoting E.R. Squibb & Sons, Inc. v. Cox,
477 So. 2d 963, 969 (Ala. 1985), quoting in turn
David G. Epstein, Products Liability: Defenses Based
on Plaintiff's Conduct, 1968 Utah L. Rev. 267, 270
(1968)). Breeden v. Hardy Corp., 562 So. 2d 159
(Ala. 1990), states the general duty a general
contractor owes a subcontractor on a job site:
"'"As
invitor,
...
the
general contractor[] was under a
duty to have the premises free
from danger, or if they were
dangerous, to give its invitee[,]
...
[the
subcontractor],
sufficient warning to enable him,
through
the
exercise
of
reasonable care, to avoid the
danger. This duty includes the
duty to warn the invitee of
danger of which the invitor knows
or ought to know, and of which
the invitee does not know.
"'"A general contractor is
not
responsible
to
a
subcontractor for injury from
defects or dangers which the
subcontractor knows of, or ought
to know of. 'If the defect or
danger is hidden and known to the
owner, and neither known to the
[sub]contractor, nor such as he
ought to know, it is the duty of
the owner [general contractor] to
warn the [sub]contractor and if
he does not do this, of course,
he
is
liable
for
resultant
injury.'
"'"The duty to keep an area
safe for invitees is limited to
hidden defects which are not
23
1190208
known to the invitee and would
not be discovered by him in the
exercise of ordinary care. All
ordinary
risks
present
are
assumed by the invitee, and the
general contractor or owner is
under no duty to alter the
premises so as to [alleviate]
known and obvious dangers. The
general contractor is not liable
to an invitee for an injury
resulting from a danger that was
obvious or that should have been
observed
in
the
exercise of
reasonable care. The entire
basis of an invitor's liability
rests upon his superior knowledge
of the danger that causes the
invitee's
injuries.
If
that
superior knowledge is lacking, as
when the danger is obvious, the
invitor cannot be held liable."
"'... A plaintiff may not recover if the
injury he receives is caused by an obvious
or known defect in the premises.'
"Breeden, 562 So. 2d at 160. (Emphasis added; first
bracketed language added; citations omitted.) See
also Ex parte Kraatz, 775 So. 2d 801, 803 (Ala.
2000)(holding '"[t]he premises owner has no duty to
warn the invitee of open and obvious defects in the
premises, which the invitee is aware of or should be
aware of through the exercise of reasonable care"'
(emphasis added) (quoting Woodward v. Health Care
Auth. of Huntsville, 727 So. 2d 814, 816 (Ala. Civ.
App. 1998))).
"Therefore, openness and obviousness of a
hazard,
if
established,
negate
the
general-contractor invitor's duty to eliminate the
hazard or to warn the subcontractor invitee of the
24
1190208
hazard; and this negation of duty, in and of itself,
defeats the subcontractor's injury claim without the
operation of any affirmative defense such as
contributory negligence or assumption of risk. In
other
words,
in
this
context,
openness
and
obviousness, if established, negate the duty, defeat
the claim, and pretermit any issue of the effect of
openness and obviousness on the affirmative defenses
of contributory negligence and assumption of risk.
Only if the subcontractor plaintiff can establish
some special duty on the general contractor to
protect the subcontractor from open and obvious
hazards,
as
distinguished
from
the
general
contractor's general duty as stated by Breeden,
which does not require such protection, and only if
the subcontractor plaintiff can likewise establish
a breach of such special duty and proximately
resulting damages, might the issue of the effect of
the openness and obviousness on the affirmative
defenses of contributory negligence and assumption
of risk become critical.
"....
"'To
establish
contributory
negligence
as a matter of law, a defendant seeking a
summary
judgment
must show that the
plaintiff put himself in danger's way and
that
the
plaintiff
had
a
conscious
appreciation of the danger at the moment
the incident occurred. See H.R.H. Metals,
Inc. v. Miller, 833 So. 2d 18 (Ala. 2002);
see also Hicks v. Commercial Union Ins.
Co., 652 So. 2d 211, 219 (Ala. 1994). The
proof
required
for
establishing
contributory negligence as a matter of law
should
be
distinguished
from
an
instruction
given to a jury when determining whether a
plaintiff has been guilty of contributory
negligence. A jury determining whether a
plaintiff has been guilty of contributory
negligence must decide only whether the
25
1190208
plaintiff failed to exercise reasonable
care. We protect against the inappropriate
use of a summary judgment to establish
contributory negligence as a matter of law
by requiring the defendant on such a motion
to establish by undisputed evidence a
plaintiff's
conscious
appreciation
of
danger. See H.R.H. Metals, supra.'
"Hannah v. Gregg, Bland & Berry, Inc., 840 So. 2d
839,
860–61
(Ala.
2002)(emphasis
added).
In
contrast, in order for a defendant-invitor in a
premises-liability case to win a summary judgment or
a judgment as a matter of law grounded on the
absence of a duty on the invitor to eliminate open
and obvious hazards or to warn the invitee about
them, the record need not contain undisputed
evidence that the plaintiff-invitee consciously
appreciated the danger at the moment of the mishap.
While Breeden, supra, does recite that '[a]ll
ordinary risks present are assumed by the invitee,'
562 So. 2d at 160, this recitation cannot mean that
the invitor's duty before a mishap is determined by
the invitee's subjective state of mind at the moment
of the mishap. This Court has expressly rejected the
notion that an invitor owes a duty to eliminate open
and obvious hazards or to warn the invitee about
them if the invitor 'should anticipate the harm
despite such knowledge or obviousness.' Ex parte
Gold Kist, Inc., 686 So. 2d 260, 261 (Ala. 1996)
(emphasis added). Gold Kist apparently overrules sub
silentio the contrary language in Sisk v. Heil Co.,
639 So. 2d 1363, 1365 (Ala. 1994)."
842 So. 2d 651-54 (some emphasis in original; some emphasis
added).
Thus, contrary to Daniels's contention, this Court in
Sessions explicitly recognized that the law relied upon by
26
1190208
Daniels holding that a landlord has a duty to eliminate open
and obvious dangers or to warn an invitee of such dangers if
the invitor "should anticipate the harm" –- is not the law in
Alabama. See also McClurg, ___ So. 3d at ___ ("The owner's
duty to make safe or warn is obviated ... where the danger is
open and obvious –- that is, where 'the invitee ... should be
aware of [the danger] in the exercise of reasonable care on
the invitee's part.'" (quoting Ex parte Mountain Top Indoor
Flea Market, Inc., 699 So. 2d 158, 161 (Ala. 1997))); Barnwell
v. CLP Corp., 235 So. 3d 238 (Ala. 2017); and Quillen v.
Quillen, 388 So. 2d 985, 989 (Ala. 1980)(recognizing that,
when an invitee has suffered injuries from a danger known to
the invitee or that should have been observed by the invitee
in the exercise of reasonable care, the invitor is not liable
for damages). To the extent that Turner, supra; McDonald,
supra; Ex parte Howard ex rel. Taylor, 920 So. 2d 553 (Ala.
2005); Campbell, supra; Terry, supra; and other cases citing,
quoting, and/or applying the Restatement (Second) of Torts §
343A may hold otherwise, they are overruled.
Applying Sessions to the facts of this case and viewing
the evidence in a light most favorable to Daniels, we conclude
27
1190208
that the mud that caused Daniels to fall was an open and
obvious danger. "A condition is 'open and obvious' when it is
'known to the [plaintiff] or should have been observed by the
[plaintiff] in the exercise of reasonable care.' Quillen v.
Quillen, 388 So. 2d 985, 989 (Ala. 1980)." Denmark v.
Mercantile Stores Co., 844 So. 2d 1189, 1194 (Ala. 2002). The
evidence that the accumulated mud on the sidewalk and curb was
an open and obvious danger is undisputed. Daniels agreed that
the accumulated mud on the sidewalk and curb created an open
and obvious danger, and she admitted that she appreciated the
danger created by the mud when she testified that she
typically avoided the danger by hopping over the mud. Browder
v. Food Giant, Inc., 854 So. 2d 594, 596 (Ala. Civ. App.
2002)(holding danger was open and obvious when invitee
admitted that she was not paying attention where she walked).
Because of the undisputed evidence that the danger created by
the accumulated mud on the sidewalk and curb was open and
obvious and that it was known and appreciated by Daniels,
Hawthorne-Midway did not owe Daniels any general duty to mark
the sidewalk and curb where the mud had accumulated or to warn
Daniels of the danger, and her negligence claim fails without
28
1190208
any operation of Hawthorne-Midway's affirmative defenses of
contributory negligence or assumption of the risk.
Next, Daniels contends that Hawthorne-Midway breached a
special duty, as distinguished from the general duty we have
already discussed. Daniels appears to maintain that, because
the SAM Manual used at the apartment complex required daily
inspections of the property to identify and remove debris,
Hawthorne-Midway had "a self-imposed duty to inspect the
property for daily debris" and that it breached that duty by
failing to identify and remove the danger created by the mud.
In her discussion of this issue, Daniels cites general
propositions of law regarding a landlord's duty to maintain
common areas, see Hancock v. Alabama Mortg. Co., 393 So. 2d
969, 970 (Ala. 1981)(noting that landlord has a duty to
maintain the common areas in a reasonably safe condition);
Graveman v. Wind Drift Owners' Ass'n, 607 So. 2d 199, 204
(Ala. 1992)(noting that landlord's duty to maintain common
areas includes stairways intended for the common use of
tenants); and Coggin v. Starke Bros. Realty Co., 391 So. 2d
111, 112 (Ala. 1980)(noting that tenants are invitees of the
landlord while using common areas on the
landlord's property).
29
1190208
Daniels does not cite any legal authority to support her
contention that a landlord's safety manual imposes a special
duty of care on the landlord to protect tenants from open and
obvious dangers.
Arguments in an appellant's brief must be supported by
adequate legal authority. See Rule 28(a)(10), Ala. R. App. P.
"[I]t 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). Because Daniels does
not provide this Court with a legal basis for reversing the
trial court's judgment in this regard, this unsupported
contention does not provide a ground for reversal.
To the extent that Daniels may argue that Hawthorne-
Midway breached a special duty by failing to provide a safe,
alternative route for Daniels to retrieve the mail, this
argument is without merit. In other words, Daniels argues
that by failing to provide a safe, alternative route for
retrieving the mail, Hawthorne-Midway should have anticipated
that Daniels would walk on the mud-covered sidewalk and be
30
1190208
injured. This alleged special duty rests upon the principal
of law this Court rejected in Gold Kist and, thus, is
unavailing.
Lastly, Daniels has waived her right to challenge the
summary judgment in favor of Hawthorne-Midway with regard to
her wantonness claim. Before the trial court, in her
opposition to the summary-judgment motion, Daniels did not
make a specific argument in support of her claim that
Hawthorne-Midway acted wantonly. Additionally, she did not
identify specific evidence that supported her wantonness
claim, i.e., she presented no evidence indicating that
Hawthorne-Midway
consciously
disregarded
her
safety.
Therefore, she did not satisfy her burden of presenting
substantial evidence on the existence of a genuine issue of
material fact with regard to wantonness. Likewise, she does
not raise this specific issue in her brief to this Court.
Therefore, she has waived any challenge to the summary
judgment in this regard. Frazier v. Core Indus., Inc., 39 So.
3d 140, 158 (Ala. 2009)(holding that, by failing to make a
specific argument with regard to wantonness claim, appellant
31
1190208
waived any challenge to the trial court's judgment on that
claim).
Conclusion
Daniels has not demonstrated any genuine issue of
material fact that prevents Hawthorne-Midway and Wiley from
being entitled to a judgment as a matter of law. Rule
56(c)(3), Ala. R. Civ. P. Accordingly, the summary judgment in
favor of Hawthorne-Midway and Wiley is affirmed.
AFFIRMED.
Parker, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim,
Stewart, and Mitchell, JJ., concur.
32 | June 26, 2020 |
e5b327aa-2239-4610-a466-2ec1998b178d | Ex parte A.B. | N/A | 1190667 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190667
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-18-56.02; Civil Appeals : 2180964).
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 |
94230181-f9ec-4d18-982e-a3c099bb6075 | Ex parte Forty Three Investments, LLC. | N/A | 1190643 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190643
Ex parte Forty Three Investments, LLC. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Forty Three Investments, LLC v. The Water Works Board
of the City of Birmingham) (Jefferson Circuit Court: CV-17-3; Civil Appeals : 2180799).
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. 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
d865c23b-a17d-4406-a3ae-399f93aeb327 | Ex parte Shaeffer Coleman. | N/A | 1190279 | 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
June 12, 2020
1190279
Ex parte Shaeffer Coleman. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Shaeffer Coleman v. State of Alabama) (Calhoun Circuit Court:
CC-98-665.68; CC-98-666.68; Criminal Appeals :
CR-18-0685).
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 June 12, 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 12th day of June, 2020.
l i t a
Clerk, Supreme Court of Alabama | June 12, 2020 |
daa344cf-fbb7-4790-ab84-383ce3a66c73 | Cecelia N. King v. Duane A. Graham | N/A | 1180833 | 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
1180833
Cecelia N. King v. Duane A. Graham (Appeal from Mobile Circuit Court:
CV-19-900510).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on September 18, 2020:
Application Overruled. No Opinion. Wise, J. - Parker, C.J., and Bolin, Shaw, Bryan, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on June 19, 2020:
Affirmed. No opinion. Wise, J. - Parker, C.J., and Bolin, Shaw, Bryan, Sellers, Stewart, and
Mitchell, JJ., concur. Mendheim, J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 18th day of September, 2020.
Clerk, Supreme Court of Alabama | June 19, 2020 |
1b85ec93-0cce-49e3-8252-334ff7b3438e | Marty Naylor v. Margaret Ann Burns, as administratrix of Estate of Matthew Aston Burns | N/A | 1190134 | Alabama | Alabama Supreme Court | Rel: June 12, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1190134
Marty Naylor v. Margaret Ann Burns, as administratrix of
Estate of Matthew Aston Burns (Appeal from Etowah Circuit
Court: CV-18-900039).
SELLERS, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Stewart, JJ.,
concur. | June 12, 2020 |
99962361-6072-4dca-9379-64c7d99cd8ea | Ex parte Wilbert Underwood, Jr. | N/A | 1190690 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190690
Ex parte Wilbert Underwood, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: Wilbert Underwood, Jr. v. Barbara Wheeler) (Marengo Circuit
Court: DR-18-900031.01; Civil Appeals : 2190256).
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. 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
5070756e-386b-435b-ae28-c0a357aff511 | Williams v. Barry | N/A | 1180352 | 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
_________________________
1180352
_________________________
Angela Williams, as mother and next friend of Li'Jonas Earl
Williams, a deceased minor
v.
Dr. Wesley H. Barry, Jr., and Advanced Surgical Associates,
P.C.
Appeal from Montgomery Circuit Court
(CV-16-901044)
WISE, Justice.
The plaintiff below, Angela Williams ("Williams"), as
mother and next friend of Li'Jonas Earl Williams, a deceased
minor, appeals from a judgment as a matter of law entered in
1180352
favor of the remaining defendants below, Dr. Wesley H. Barry,
Jr., and Advanced Surgical Associates, P.C. (hereinafter
sometimes collectively referred to as "the defendants"). We
reverse and remand.
Facts and Procedural History
Li'Jonas Williams was a 17-year-old with sickle-cell
disease. On June 29, 2014, Li'Jonas went to the emergency
room at Southern Regional Medical Center in Georgia ("the
Georgia hospital") complaining of back and chest pain. A CT
scan performed at the Georgia hospital showed that Li'Jonas
had cholelithiasis, which is stones in the gallbladder.
On July 7, 2014, Li'Jonas and Williams saw Li'Jonas's
pediatrician in Montgomery, Dr. Julius Sadarian. Dr.
Sadarian's notes indicated that Li'Jonas "presents with
preventive exam and referral for gallstones removal." Dr.
Sadarian referred Li'Jonas to Dr. Barry for gallbladder
removal.
On July 17, 2014, Li'Jonas and Williams saw Dr. Barry, a
board-certified surgeon, at his practice, Advanced Surgical
Associates, P.C. Dr. Barry stated that patients complete a
patient-history form and that his records include a summary of
2
1180352
that history. Dr. Barry noted that Li'Jonas was "[a] 17-year
old with documented gallstones" based on a review of the CT
scan. Dr. Barry also noted that Li'Jonas had sickle-cell
disease. Dr. Barry's notes indicated that Li'Jonas had had
about a one-month history of intermittent pain in the upper
abdomen and then radiating to the back and that Li'Jonas's
symptoms were associated with nausea and fatty-food intake.
Dr. Barry testified that the fact that Li'Jonas's
symptoms
were
associated with
fatty-food intake
was
consistent
with gallbladder disease. Dr. Barry testified that he did not
order an ultrasound because he already had the CT scan showing
the presence of gallstones. Dr. Barry diagnosed Li'Jonas with
chronic cholecystitis and cholelithiasis and recommended that
he undergo a cholecystectomy, which is the removal of the
gallbladder.
Dr. Barry performed the cholecystectomy on Li'Jonas at
Jackson Hospital on the morning of August 4, 2014. Dr. Barry
testified that Li'Jonas tolerated the procedure well; that
Li'Jonas did not experience any complications during the
surgery; and that Li'Jonas had only about 10ccs of blood loss
during the surgery. Testimony was presented that 10ccs is the
3
1180352
equivalent of about 2 teaspoons. Dr. Barry testified that, to
remove the gallbladder, the cystic artery and the cystic duct
must be cut. He further testified that, during such a
surgery, he typically places four surgical clips on the cystic
artery and four surgical clips on the cystic duct. Dr. Barry
was asked whether, on occasion, he may have used more than
four clips. Dr. Barry responded that he was sure that he
might have and that, if he did not like how one clip fit, he
might put another on. Dr. Barry further testified that, once
he has put the four clips on the artery and the four clips on
the duct, he then cuts the artery and the duct between the
four clips on each structure. Dr. Barry testified that, once
he cuts the artery and the duct, he removes the gallbladder;
that some of the clips come out with the gallbladder; that the
remaining clips stay inside the body; and that those clips are
intended to stay in the body forever. He further testified
that the purpose of the clips is to close and secure the
artery and the duct so that, once the gallbladder is removed,
those structures are closed off and there is no bleeding from
the artery and nothing coming from the duct. He further
testified that, if you were to cut the cystic artery without
4
1180352
securing it with clips, it would continue to bleed
tremendously; that it would be immediately obvious; and that
that did not happen with Li'Jonas.
Li'Jonas did not experience any problems when he was in
the post-anesthesia-care unit or when he was in the outpatient
recovery room. He was subsequently discharged from Jackson
Hospital at 11:22 a.m.
On the evening of August 4, 2014, Li'Jonas was found
unresponsive at his home. Emergency personnel arrived at the
scene and started CPR. Li'Jonas was transported to the
Baptist Medical Center South emergency room by ambulance.
Li'Jonas arrived at the emergency room at 7:06 p.m. According
to hospital records, Li'Jonas was brought to the hospital by
emergency-medical services ("EMS"); he was unresponsive; and
the amount of downtime was unknown. The records also
indicated that EMS personnel stated that Li'Jonas had had his
gallbladder removed that day; that he went home; that his
family went to a football game; and that, when they came back
home, Li'Jonas was unresponsive. Emergency-room personnel
continued CPR and performed various treatments in an attempt
to revive Li'Jonas. The notes of Dr. Amitricia Lumpkin, one
5
1180352
of the doctors who treated Li'Jonas in the emergency room,
indicated that Dr. John Moorehouse, another physician who
treated Li'Jonas, had performed a FAST1 ultrasound and that
the FAST ultrasound showed no cardiac activity and that there
was no free intraperitoneal fluid. Testimony was presented
that the finding of no free intraperitoneal fluid meant there
was no fluid or blood in Li'Jonas's abdomen. Ultimately, the
efforts to revive Li'Jonas were unsuccessful, and he was
pronounced dead at 7:38 p.m.
On August 4, 2016, Williams sued Dr. Barry, Advanced
Surgical Associates, Jackson Hospital, and Renea Majors, a
postoperative nurse at Jackson Hospital, and she subsequently
amended her complaint several times.2 In her fourth amended
complaint, Williams asserted a wrongful-death claim based on
allegations of medical malpractice pursuant to the Alabama
Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et
1"FAST" stands for Focus Assessment with Sonogram for
Trauma.
2The trial court entered a summary judgment in favor of
Jackson Hospital and Majors "with regard to all acts or
omissions other than Nurse Majors' handling of Li'Jonas
Williams' discharge from the hospital on August 4, 2014." The
remaining claims against Jackson Hospital and Majors were
subsequently dismissed.
6
1180352
seq., Ala. Code 1975, and a claim of negligence/wantonness.
On December 18, 2017, Dr. Barry and Advanced Surgical
Associates filed their answer to the fourth amended complaint,
which they later amended.
The trial in this case started on August 27, 2018. On
September 10, 2018, the defendants filed a written motion for
a judgment as a matter of law at the close of Williams's
evidence. Williams filed a written response and a
supplemental response to that motion. On September 11, 2018,
the trial court entered an order granting the defendants'
motion for a judgment as a matter of law.
On October 10, 2018, Williams filed a motion to alter,
amend, or vacate the judgment. On November 8, 2018, the
defendants filed their opposition to Williams's postjudgment
motion. Williams's postjudgment motion was subsequently
denied by operation of law. This appeal followed.
Standard of Review
"'"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 granting or denying
the motion. Palm Harbor Homes, Inc. v.
Crawford, 689 So. 2d 3 (Ala. 1997).
Regarding questions of fact, the ultimate
issue
is
whether
the
nonmovant
has
7
1180352
presented sufficient evidence to allow the
case or issue to be submitted to the jury
for a factual resolution. Carter v.
Henderson, 598 So. 2d 1350 (Ala. 1992)....
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. If the
question is one of law, this Court indulges
no presumption of correctness as to the
trial court's ruling. Ricwil, Inc. v. S.L.
Pappas & Co., 599 So. 2d 1126 (Ala.
1992)."'
"[Alabama Dep't of Transp. v. Land Energy, Ltd.,]
886 So. 2d [787,] 791–92 [(Ala. 2004)] (quoting Ex
parte Alfa Mut. Fire Ins. Co., 742 So. 2d 1237, 1240
(Ala. 1999))."
Housing Auth. of Birmingham Dist. v. Logan Props., Inc., 127
So. 3d 1169, 1173 (Ala. 2012).
"'"We
apply
the
same
standard of review to a ruling on
a motion for a [judgment as a
matter of law] as the trial court
used in initially deciding the
motion.
This
standard
is
'indistinguishable
from
the
standard by which we review a
summary judgment.' Hathcock v.
Wood, 815 So. 2d 502, 506 (Ala.
2001). We must decide whether
there was substantial evidence,
8
1180352
when viewed in the light most
favorable to the plaintiff, to
warrant a jury determination.
City of Birmingham v. Sutherland,
834 So. 2d 755 (Ala. 2002). In
Fleetwood
Enters.,
Inc.
v.
Hutcheson, 791 So. 2d 920, 923
(Ala. 2000), this Court stated
that '"[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."' 791 So. 2d at 923
(quoting West v. Founders Life
Assurance Co. of Florida, 547 So.
2d 870, 871 (Ala. 1989))."
"'Alabama Power Co. v. Aldridge, 854 So. 2d
554, 560 (Ala. 2002).'
"Black v. Comer, 38 So. 3d 16, 22 (Ala. 2009)."
Hill v. Fairfield Nursing & Rehab. Ctr., LLC, 134 So. 3d 396,
401 (Ala. 2013).
Discussion
Williams argues that the trial court erroneously granted
the defendants' motion for a judgment as a matter of law.
Specifically, she asserts that she "presented substantial
evidence of breaches of the standard of care by Dr. Barry that
proximately caused Li'Jonas's death." Williams's brief at p.
17.
9
1180352
"This Court has stated:
"'"To prevail on
a
medical-malpractice
claim, a plaintiff must prove '"1) the
appropriate standard of care, 2) the
doctor's deviation from that standard, and
3) a proximate causal connection between
the doctor's act or omission constituting
the breach and the injury sustained by the
plaintiff."' Pruitt [v. Zeiger], 590 So.
2d [236,] 238 [(Ala. 1991)] (quoting
Bradford v. McGee, 534 So. 2d 1076, 1079
(Ala. 1988))." Giles v. Brookwood Health
Servs., Inc., 5 So. 3d 533, 549 (Ala.
2008).
"'"A
plaintiff
in
a
medical-malpractice action must
...
present
expert
testimony
establishing a causal connection
between the defendant's act or
omission constituting the alleged
breach and the injury suffered by
the plaintiff. Pruitt v. Zeiger,
590 So. 2d 236, 238 (Ala. 1991).
See also Bradley v. Miller, 878
So. 2d 262, 266 (Ala. 2003);
University
of
Alabama
Health
Servs. Found., P.C. v. Bush, 638
So. 2d 794, 802 (Ala. 1994); and
Bradford v. McGee, 534 So. 2d
1076, 1079 (Ala. 1988). To prove
c a u s a t i o n
i n
a
medical-malpractice
case,
the
plaintiff must demonstrate '"that
the alleged negligence probably
caused, rather than only possibly
caused, the plaintiff's injury."'
Bradley, 878 So. 2d at 266
(quoting University of Alabama
Health Servs., 638 So. 2d at
802)."
10
1180352
"'Sorrell v. King, 946 So. 2d 854, 862
(Ala. 2006).'
"Breland v. Rich, 69 So. 3d 803, 814–15 (Ala.
2011)."
Smith v. Fisher, 143 So. 3d 110, 123 (Ala. 2013).
"'The plaintiff in a medical-malpractice action
is
required
to
present
substantial
evidence
indicating both that the defendant health-care
provider "failed to comply with the standard of care
and that such failure probably caused the injury or
death in question."' Mobile OB–GYN, P.C. v.
Baggett, 25 So. 3d 1129, 1133 (Ala. 2009) (quoting
§ 6–5–549, Ala. Code 1975)."
Hill, 134 So. 3d at 401.
A. Breach of the Standard of Care
Dr. Hien Tan Nguyen, a board-certified surgeon, testified
as an expert for Williams. During his testimony, Dr. Nguyen
stated that, based on Dr. Barry's notes, it was his
understanding that Dr. Barry made three diagnoses when he
initially
saw
Li'Jonas
--
sickle-cell
disease,
cholelithiasis,
and chronic cholecystitis, which means that there has been
long-term inflammation of the gallbladder. He testified that
Dr. Barry's notes basically state that Li'Jonas might have a
condition associated with the dysfunction of his gallbladder.
He further testified that, in this situation, Li'Jonas was
stating he was having nausea after fatty-food intake, which
11
1180352
implies that there was something wrong with his gallbladder.
However, he testified that, prior to this, there were no other
medical records that suggested that Li'Jonas had pain or
nausea of any kind after eating fatty foods.
Dr. Nguyen testified that Dr. Barry should have had an
ultrasound performed on Li'Jonas before he committed him to
surgery. He also testified that the ultrasound was required
before making a diagnosis of cholecystitis. He further
testified that, based on Li'Jonas's bilirubin levels, an
ultrasound should have been performed to determine whether
Li'Jonas also had a stone in his biliary tree, which would
have required a separate procedure from the cholecystectomy.
Dr. Nguyen testified that the CT scan that had been conducted
at the Georgia hospital was a CT angiogram; that the purpose
of that CT scan was to look for blood-vessel issues; that it
was not performed to look at the gallbladder; and that the
scan just incidentally found gallstones in the gallbladder.
He further testified that that CT scan was completely
inadequate for making a diagnosis of chronic cystitis; that it
was inadequate for determining whether there was a stone in
12
1180352
the biliary tree; and that the CT scan was not designed to
look for those things. Subsequently, the following occurred:
"[PLAINTIFF'S COUNSEL:] Dr. Nguyen, do you
agree with me that Dr. Barry breached the standard
of care by not conducting this ultrasound on
Li'Jonas' gallbladder prior to performing the
surgery?
"[DR. NGUYEN:] With all due respect, Dr. Barry,
I absolutely do think that you breached the standard
of care by not getting this ultrasound in this young
kid.
"....
"[PLAINTIFF'S COUNSEL:]
Do
you
believe that Dr.
Barry breached the standard of care by recommending
this cholecystectomy?
"[DR. NGUYEN:] I believe that there was an
insufficient evidence to make a diagnosis that the
gallbladder was inflamed.
"As a matter of fact, in retrospect, looking at
the pathology report, we know that the gallbladder
was normal and did not need to be removed. We also
know from Dr. Barry's own words that when he
performed the operation, the gallbladder looked
normal. He described it as a Robin's egg, a blue
Robin's egg. That is a normal gallbladder and did
not need to be removed.
"There
was
insufficient
evidence
at
the
beginning to make the diagnosis of gallbladder
disease.
During
the
operation,
there
was
insufficient visual evidence that the gallbladder
was diseased. And after the surgery, the pathology
report, which is something that we are mandated to
do -- we can't remove an organ from a patient and
throw it away. We have to send it to pathology.
13
1180352
The pathologist came back with a thorough report
stating, in essence, that the gallbladder was
absolutely normal. And that basically corroborates
my opinion that this patient did not need his
gallbladder removed surgically.
"[PLAINTIFF'S COUNSEL:]
And
is
it
your opinion,
Dr. Nguyen, based on your training, skill, and
knowledge and experience as a general surgeon that
Dr. Barry breached the standard of care when he
performed this surgery on August 4, 2014?
"[DR. NGUYEN:] It is."
Dr. Nguyen also testified that Dr. Barry's diagnosis of
cholelithiasis just meant that there were stones within the
gallbladder. He went on to testify that the simple fact that
there are stones in the gallbladder does not mean that the
gallbladder is not working correctly. He further testified
that, of the people who have stones in the gallbladder, maybe
20 percent become symptomatic; that 80 percent of people who
have gallstones do not need an operation because the stones
are not bothering them; that the only time the gallbladder
needs to be removed is if the stones are causing some of type
of dysfunction; that there was not evidence indicating that
the stones in Li'Jonas's gallbladder were causing any kind of
dysfunction in this case; and that, therefore, the diagnosis
14
1180352
of having stones in the gallbladder was not enough to commit
Li'Jonas to surgery.
The
defendants
presented
conflicting
evidence
to
establish
that
the gallbladder
surgery
was
medically
necessary; that the standard of care did not require that Dr.
Barry order an ultrasound before recommending and performing
surgery on Li'Jonas; and that Dr. Barry did not breach the
standard of the care by recommending and performing the
cholecystectomy on Li'Jonas. However, when viewing the
evidence in a light most favorable to Williams, Dr. Nguyen's
testimony presented substantial evidence to create a factual
dispute requiring resolution by the jury as to whether Dr.
Barry breached the applicable standard of care by
recommending
and performing an unnecessary surgery on Li'Jonas.
B. Proximate Cause
Next, we must determine whether Williams presented
substantial evidence that the purportedly unnecessary surgery
was the proximate cause of Li'Jonas's death.
"The 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: '"'"There must be more than
15
1180352
the mere possibility that the negligence complained
of caused the injury; rather, there must be evidence
that the negligence complained of probably caused
the injury."'"' Lyons v. Vaughan Reg'l Med. Ctr.,
LLC, 23 So. 3d 23, 27–28 (Ala. 2009) (quoting
Sorrell v. King, 946 So. 2d 854, 862 (Ala. 2006),
quoting in turn DCH Healthcare Auth. v. Duckworth,
883 So. 2d 1214, 1217 (Ala. 2003), quoting in turn
Parker v. Collins, 605 So. 2d 824, 826 (Ala. 1992)
(emphasis omitted))."
Hill, 134 So. 3d at 406.
"'In Cain v. Howorth, 877 So. 2d 566 (Ala.
2003), this Court stated:
"'"'"To present a jury question,
the
p l a i n t i f f
[in
a
medical-malpractice action] must
adduce some evidence indicating
that the alleged negligence (the
breach
of
the
appropriate
standard of care) probably caused
the injury. A mere possibility
is insufficient. The evidence
produced by the plaintiff must
have 'selective application' to
one theory of causation."'"
"'877 So. 2d at 576 (quoting Rivard v.
University
of
Alabama
Health
Servs.
Found.,
P.C., 835 So. 2d 987, 988 (Ala. 2002)).'"
Lyons v. Vaughan Reg'l Med. Ctr., LLC, 23 So. 3d 23, 28 (Ala.
2009) (quoting Sorrell v. King, 946 So. 2d 854, 862 (Ala.
2006)). In Golden v. Stein, 670 So. 2d 904 (Ala. 1995), this
Court noted that, when
a plaintiff alleges medical malpractice
based on an
unnecessary medical procedure, expert testimony is
16
1180352
not necessary to prove certain types of damages. However,
"any claims for damages based on complications from the
unnecessary procedure would be subject to the general rule
that expert testimony is normally required to establish
proximate cause in the medical malpractice context." 670 So.
2d at 908.
In
this
case,
Williams
introduced
into
evidence
Li'Jonas's death certificate, which listed the cause of death
as cardiopulmonary arrest. "Post Gall bladder surgery" was
listed under the section of the death certificate titled
"Other
Significant
Conditions
Contributing
to
Death."
However, no autopsy was performed at that time.
The evidence established that Li'Jonas's body was exhumed
over two and one-half years after he died; that Dr. James
Shaker performed an autopsy on Li'Jonas's body on March 20,
2017; that Dr. Shaker prepared an autopsy report; and that Dr.
Amy Hawes and Dr. Jonathan Eisenstat observed the autopsy.
Evidence was also presented indicating that the embalming of
Li'Jonas's body was not very good and that the body was
severely decomposed at the time of the autopsy.
17
1180352
Dr. Shaker did not testify at trial, but his autopsy
report was admitted into evidence. In the "Final Anatomic
Diagnoses" section of his report, Dr. Shaker listed the
following under the subsection titled "Hepatobiliary System":
"A.
Intraperitoneal hematoma, approximately 110
grams of clotted blood mixed with liquid blood
"B.
Cystic duct with surgical metallic clip
"C.
Cystic
artery
without
visible
surgical
clipping."
He further listed the cause of death as "Postoperative
Complication
of
Cholecystectomy."
In
the
"Internal
Examination" section of the report, under the Hepatobiliary
System subsection, Dr. Shaker stated, in pertinent part:
"The gallbladder has been surgically removed with
one surgical clip noticed over the cystic duct. The
cystic artery has no surgical clipping."
During the trial, Dr. Nguyen testified that he believed
that the surgery performed by Dr. Barry caused Li'Jonas's
death. Subsequently, the following occurred:
"[PLAINTIFF'S COUNSEL:] And what do you base
that -- what medical findings do you base that on?
"[DR. NGUYEN:] Well, first of all, it's a
17-year-old kid who died within 12 hours after an
operation. There's not a lot of things that can
kill a person that fast. One of which is bleeding.
If the person bleeds, they can die within 12 hours.
18
1180352
In this situation I base my opinion on the operative
notes on what was used to clip the cystic artery on
the medical records showing that the patient
basically was in cardiopulmonary arrest after he was
discharged from the hospital the same day and an
autopsy report which documented there was -- that
there was no clip on the cystic artery which is one
of the blood vessels that has to be divided for the
gallbladder to be removed.
"[PLAINTIFF'S COUNSEL:] And did that surgery
report also document that there was a certain amount
of blood in the area of the operation?
"[DR. NGUYEN:] The autopsy report was striking
to me in that it was done two years after Li'Jonas
died. This body was exhumed and evaluated by
forensic pathologists.
"Within the documentation, there was also
mention of 110 grams of blood or blood-related
products found within the pelvis two years after the
patient died.
"[PLAINTIFF'S COUNSEL:]
And
is
that striking
to
you as a physician?
"[DR. NGUYEN:] Absolutely, it is. Because, as
you know, blood products, these red blood cells, are
rather fragile. You know, if it's just a small
amount of blood, it probably would have broken down
by the time that the forensic pathologist exhumed
the body."
Dr. Eisenstat testified as an expert for the defense.
Dr. Eisenstat testified that he was the chief medical examiner
for the Georgia Bureau of Investigation and that, on occasion,
he would consult on private litigation matters such as this
19
1180352
case. In this case, Dr. Eisenstat attended Dr. Shaker's
autopsy of Li'Jonas's body as an observer. He further
testified that the first thing he noted during the autopsy was
the fact that the body was severely decomposed.
Dr. Eisenstat testified that, at the time of the autopsy,
he knew there was a question regarding the cholecystectomy Dr.
Barry had performed on Li'Jonas before his death; that he and
Dr. Shaker focused pretty intensely on the location where the
gallbladder was removed; and that that was the area underneath
the liver. He testified that he observed while Dr. Shaker
exposed and viewed that area of the body and that he took
multiple photographs as well. Dr. Eisenstat testified that he
saw that Dr. Shaker had reported that he "found the cystic
duct with surgical metal clip and the cystic artery without
visible surgical clipping." However, he testified that he did
not agree with those findings from Dr. Shaker. When asked why
he did not agree, he replied:
"Well, it's very apparent for me at the time of
autopsy and then obviously reviewing the photographs
as I reviewed the case that there were multiple
clips on different structures in what I'll call the
gallbladder fossa or the area where the gallbladder
used to be."
20
1180352
On a subsequent page of the autopsy report, Dr. Shaker
reported that the gallbladder had been surgically removed with
one surgical clip noticed over the cystic duct and that the
cystic artery had no surgical clipping. Dr. Eisenstat
testified that he absolutely disagreed with that finding.
Dr. Eisenstat was asked about Dr. Shaker's opinion as to
Li'Jonas's cause of death. Dr. Eisenstat testified that,
essentially, Dr. Shaker's opinion was that there was no clip
on the cystic artery, which led to bleeding that in turn led
to or contributed to Li'Jonas's death. He stated that it was
his understanding that Dr. Shaker's general conclusion was
that Li'Jonas bled to death because the cystic artery was not
clipped. However, Dr. Eisenstat testified that there was not
any evidence that Li'Jonas bled to death.
When going through the photographs, Dr. Eisenstat
testified that he could see multiple surgical clips at the
location where the gallbladder had been removed and that he
could see surgical clips on two different structures. In
discussing one of the photographs he took during the autopsy,
Dr. Eisenstat stated:
"So we have two structures where the anatomy of
that area and what is supposed to be clipped is the
21
1180352
cystic duct and the cystic artery, and we have two
tubular structures that are at different angles that
are both clipped multiple times."
While Dr. Eisenstat was looking at a photograph Dr. Hawes
took during the autopsy, the following occurred:
"[DEFENSE COUNSEL:] So is it your opinion that
we've got five or six surgical clips documented at
the location they should be following the removal of
the gallbladder?
"[DR. EISENSTAT:] Yes, sir.
"[DEFENSE COUNSEL:] And do I follow that based
on your opinion of what we're looking at, based on
the angle and the direction and the plane on which
these clips are viewed here that -- am I following
you that these clips in your opinion show that a
tubular structure is clipped and these clips show
that a separate tubular structure is clipped?
"[DR. EISENSTAT:] Yes, sir.
"[DEFENSE COUNSEL:] And, Doctor, what is your
understanding as to how many structures are clipped
and secured during the removal of a gallbladder?
"[DR. EISENSTAT:] So the two major structures
are the cystic duct and the cystic artery. Now, you
know, you may have little what we call -- what the
surgeons call bleeders which doesn't mean a massive
bleed. They're just -- you need to clip off these
little vessels.
"But the major structures are the cystic artery
which is a branch of a bigger artery going up to the
gallbladder and then the cystic duct which is a
branch of a bigger duct that goes to the liver
that's going up to the gallbladder.
22
1180352
"So those are -- need to be clipped prior the
removal of the gallbladder?
"[DEFENSE COUNSEL:] And is it your opinion that
there are two tubular structures clipped and secured
in these photographs?
"[DR. EISENSTAT:] Yes, in the area of the
gallbladder fossa.
"[DEFENSE COUNSEL:]
Doctor, in
terms of
general
anatomy, can you discern from this photo where the
artery would likely be in comparison with the duct?
"[DR. EISENSTAT:] Well, you know, from -- from
anatomy itself, the artery actually comes up a
little over the duct itself. So, you know, if you
were to look at these two structures, the one that's
coming out at us just from an anatomical point of
view would be the artery and the one coming down
would be the duct.
"But I have to say, you know, he was decomposed,
so there was alteration of the normal tissue. And
I'll say, you know, I -- I can't be specific, but
that would be the normal anatomy there.
"[DEFENSE COUNSEL:] Dr. Eisenstat, given the
condition of the body, did you observe any specific
dissection identification and dissection by Dr.
Shaker of the artery and the duct during the
autopsy?
"[DR. EISENSTAT:] I did not, no."
(Emphasis added.)
Dr. Eisenstat testified that, based on what he had
observed during the autopsy and what he had observed in the
autopsy photographs, it was his opinion that there was no
23
1180352
evidence indicating that Li'Jonas was bleeding from the
cystic
artery as a result of the surgery. He further testified that
he had reviewed the medical records from Dr. Barry and Jackson
Hospital regarding the surgery; that he did not see any
indication that there were any issues with bleeding during the
surgical procedure; and that he did not see anything in the
records that would be indicative of an intra-abdominal bleed.
He further testified that he had reviewed the emergency-room
records from Baptist South. With regard to those records, he
stated:
"[DEFENSE COUNSEL:] Did you see any indication
in the emergency room records that would support a
theory that Li'Jonas Williams had bled to death
prior to his arrival at the emergency room?
"[DR. EISENSTAT:] So, I mean, he essentially
came in essentially dead on arrival. So there were
a number of -- there was nothing in there that would
have said that he -- he bled to death. But already
being dead on arrival, that's a little hard.
"But there wasn't -- they did do a test that
confirmed what I saw at autopsy that there wasn't
any intra-abdominal hemorrhage.
"[DEFENSE COUNSEL:] And what test is that?
"[DR. EISENSTAT:] That's the FAST test,
F-A-S-T."
24
1180352
He further testified that he was referring to the FAST
ultrasound.
Dr. Eisenstat testified that he was also familiar with
Dr. Shaker's conclusion that he found approximately 110 grams
of clotted blood mixed with liquid blood. Defense counsel
asked Dr. Eisenstat if he had considered that conclusion and
if he had an opinion as to whether that was an indication of
internal bleeding. Dr. Eisenstat replied that he absolutely
did consider that and that there were a few problems there.
He testified that he believed that the 110 grams was a mixture
of a little bit of blood, decomposed liver, and possibly some
embalming fluid. Dr. Eisenstat testified that the amount of
material that was present and the localization of whatever the
decomposed material was was nowhere near what he would expect
for
hemorrhagic
complications
from
a
procedure
that
contributed to or caused someone's death.
When asked if he agreed or disagreed with Dr. Shaker's
conclusion in the autopsy report that the cause of death was
postoperative complications of cholecystectomy, Dr. Eisenstat
replied:
25
1180352
"Well, I mean, it's a very general statement. As I
-- as we've talked about, there's no mechanical
post-operative complication of the cholecystectomy.
"....
"... You know, unfortunately, Li'Jonas did not
have an autopsy right when he died. So doing an
autopsy on an embalmed, whether it be good embalming
or a not good embalming, decomposed individual makes
it much more difficult to say what the actual cause
of death was. But as far as post-operative
complication
of
cholecystectomy,
there
was
absolutely
no
mechanical
post-operative
complication
from the procedure."
He further testified that it was his opinion that Li'Jonas
"did not die as a result of the cystic artery not being
clipped because the cystic artery was clipped."
Defense counsel asked whether Dr. Eisenstat had any
opinions as to what might have caused Li'Jonas's death. Dr.
Eisenstat testified that he had a differential diagnosis,
which was a list of possibilities. He further testified that
he did not believe that anyone, including Dr. Shaker, could
make a definitive determination to a degree of medical
probability as to what was the cause of death for Li'Jonas.
However, he stated that he thought he could say to a
reasonable degree of medical certainty that mechanical
26
1180352
complications from the surgery and bleeding were not what
caused his death.
During
the
plaintiff's counsel's cross-examination of
Dr.
Eisenstat, the following occurred:
"[PLAINTIFF'S COUNSEL:] And I want to get this
straight. It's your testimony today to the ladies
and gentlemen of the jury that you can look in that
photograph and it's your position that those clips
are on the cystic artery and cystic duct?
"[DR. EISENSTAT:] Yes. Because they're both
tubular structures. And also there's no evidence of
any bile leak or -- which would be a green
discoloration. There's no evidence of, in my
opinion, a hemorrhagic complication. So in that
area which is where you have the cystic duct and
cystic artery, it's basically what's there may be a
little soft connective tissue.
"We
have
multiple
clips
on
two
tubular
structures which is the area of the cystic duct and
cystic artery. So more likely than not, it is the
cystic duct and cystic artery."
Subsequently, the following occurred:
"[PLAINTIFF'S COUNSEL:]
And
so
can
you
identify
for me where the cystic duct is?
"[DR. EISENSTAT:] Well, where all of those
clips are going up is clipping off one tubular
structure, and then up to the left coming out of us
-- out of the picture towards us is another tubular
structure. So like I said when I was asked on
direct, I started to say from an anatomic standpoint
which would be which, but then I followed up by
saying, well, he's decomposed, so it's a little more
difficult to say which one is which.
27
1180352
"[PLAINTIFF'S COUNSEL:] That it's decomposed
and it's hard to show these people or even yourself
as a forensic pathologist where the cystic duct and
artery is?
"[DR. EISENSTAT:] What I can say is I can't
tell you which one is which, but they're both
tubular structures, and those are the two tubular
structures that lie underneath the liver in that
location.
"[PLAINTIFF'S COUNSEL:] Is it your testimony
that that's one of those tubular structures that's
on that scissored clip?
"[DR. EISENSTAT:]
I
think the
tubular structure
runs where all the clips are. So, yes, underneath
that, there is a tubular structure, but it's also
the clip at the bottom and the clip just above it.
"So it's not just one clip on one tubular
structure. There's a number of clips on that
tubular structure."
______________________
"[PLAINTIFF'S COUNSEL:] Do you agree with me
that, more likely than not, this surgery contributed
in causing Li'Jonas Williams' death?
"[DR. EISENSTAT:] No, I can't say that.
"[PLAINTIFF'S COUNSEL:] Okay. But you can't
rule that out, can you, as possible?
"[DR. EISENSTAT:] I will agree with you. I
can't fully rule that out. I can rule out the
mechanical aspect, but I can't rule out that it had
any contributing factor."
(Emphasis added.) Subsequently, the following occurred:
28
1180352
"[PLAINTIFF'S COUNSEL:] Can you identify where
the cystic artery is?
"[DR. EISENSTAT:] Well, like I said, it's
difficult because of the decomposition, but through
the line of questioning of the -- the structure
that's up and towards the top and the left with the
two clips on it, that's probably the cystic artery.
But what I'll say is that can I be a hundred percent
specific? No, I can't.
"[PLAINTIFF'S COUNSEL:] Okay. So you can't sit
here today, you didn't see it at the autopsy, and
you can't see it here today after blowing these
pictures up, and you can't identify to the jury
where there is a clip on the cystic artery?
"[DR. EISENSTAT:] No. What I can say is that
there's two tubular structures in that area, each of
which have multiple clips on them, and that's the
area where the cystic duct and the cystic artery
are.
"[PLAINTIFF'S COUNSEL:] That tubular, what you
suggest is the cystic artery, is not visible?
"[DR. EISENSTAT:] I'm sorry. Say again.
"[PLAINTIFF'S COUNSEL:] Is the cystic artery
visible?
"[DR. EISENSTAT:] Well, it's decomposed and
squished for lack of a better term.
"[PLAINTIFF'S COUNSEL:] All right. And Dr.
Shaker said he dissected that artery; correct?
"[DR. EISENSTAT:] He said that in his
deposition, yes.
"[PLAINTIFF'S COUNSEL:] But is there -- of all
of these photos, is there anything better than this
29
1180352
photograph that's up there to show how there is a
clip on the cystic artery?
"[DR. EISENSTAT:] No. This is by far the best
photograph.
"[PLAINTIFF'S COUNSEL:] And you can't tell the
ladies and gentlemen of the jury which -- if there
is a clip on the cystic artery, you can't point it
out, can you?
"[DR. EISENSTAT:] Well, again, I'm going to go
back to the same thing. There are two tubular
structures in that area. Anatomically, it would
make sense that the top left is the cystic artery,
but due to decomposition, I can't say specifically
if that is the artery or not.
"[PLAINTIFF'S COUNSEL:] And is that a single
clip on the cystic duct? Is that what you suggest
is the cystic duct? Did I not hear you say just in
redirect right here that on the anatomy, this --
these lower ones would be the cystic duct?
"[DR. EISENSTAT:] Correct.
"[PLAINTIFF'S COUNSEL:] Okay. So Dr. Shaker
says that there was one clip on the cystic duct;
correct?
"[DR. EISENSTAT:] I know what he says there.
He says that there's only one clip in the entirety
of the gallbladder fossa. It's very obvious that
there are multiple clips there.
"So I don't want to get into an argument with
Dr. Shaker. I full on disagree with him. It's very
obvious that there are multiple clips in different
planes on two different structures that are located
in the area where the cystic duct and the cystic
artery would be. There's no significant associated
30
1180352
hemorrhage. You can't just take one thing by itself
and you put the case together.
"And I -- so I disagree with Dr. Shaker. He did
say there's one clip, which I'll let the picture
speak for itself, and that it was only on one
structure. I don't know what else I can say about
that.
"[PLAINTIFF'S COUNSEL:] I'll pull it up and
read it to you. But it says under hepatobiliary
system, B, cystic duct with surgical, metallic clip;
correct?
"[DR. EISENSTAT:] Yes, he said that.
"[PLAINTIFF'S
COUNSEL:]
That's
a
singular
clip.
"Can you identify where the cystic duct is
clamped by more than one clip in this picture?
"[DR. EISENSTAT:] Well, in my opinion and,
again, through anatomy, the duct is probably that
here right there where you have the one, two, three
clips going upwards, at least three clips going
upwards.
"[PLAINTIFF'S COUNSEL:] But can you see the
cystic duct in those?
"[DR. EISENSTAT:] Sir, it's decomposed, so
things are going to collapse. So can I say I see
the cystic duct? No. Can I say I see the cystic
artery? No.
"But when you look at where the clips are and
you look that they're scrunched, decomposed tubular
structures, they are the cystic duct and cystic
artery because there's nothing else that's there."
(Emphasis added.)
31
1180352
The defense also called Dr. Richard Stahl as an expert.
Dr. Stahl testified that he was a surgeon and an associate
professor of surgery in the gastrointestinal-surgery division
at the University of Alabama at Birmingham and that he was
board certified in general surgery. Dr. Stahl testified that
he had had occasions to become involved in determinating cause
of death in cases and in preparing death certificates.
Dr. Stahl testified that he had reviewed Dr. Shaker's
deposition.
He
further
testified
that
it
was
his
understanding that Dr. Shaker, upon conducting an autopsy two
and one-half years after death, had concluded that Li'Jonas
bled to death and that he reached that conclusion because the
cystic artery remained unclipped and unsecured after the
gallbladder-removal surgery. Dr. Stahl testified that he had
reviewed the autopsy report and photographs and that, based
upon his review, he disagreed with Dr. Shaker's conclusion
that Li'Jonas bled to death from an unclipped artery. Dr.
Stahl testified that Dr. Shaker indicated in his deposition
that there was a single clip. However, Dr. Stahl testified
that he saw at least five, and possibly six, surgical clips in
an autopsy photograph; that those clips appeared to be on two
32
1180352
separate structures; and that those clips appeared to be
appropriately placed. He further testified that there was not
a great deal of blood in the abdomen. Dr. Stahl testified
that, based on the autopsy photographs, he believed that the
findings of a cystic duct with a surgical clip and a cystic
artery without visible surgical clipping were wrong. When
testifying, he stated that the photographs showed two
structures that were clipped and identified what he believed
to be the cystic artery and the cystic duct in one of the
autopsy photographs. He further testified that, when a
cholecystectomy is performed, two structures are clipped by
the surgeon -- the cystic artery and the cystic duct -- and
that he believed there were two structures clipped in the
autopsy photograph.
Dr. Stahl acknowledged that, during his deposition, he
said that the clips were applied to structures but that the
structures
themselves were
largely
decomposed;
that
there
were
two structures; and that he was not sure which one was the
cystic duct and cystic artery. When asked if he was now able
to review and determine the cystic duct and the cystic artery,
Dr. Stahl replied:
33
1180352
"With not a hundred percent certainty, but, yes, I
think we have a pretty good idea. I have a pretty
good idea of which is which."
He further explained that the deposition was a telephone
deposition and that he was looking at Xerox copies of the
photographs and not high-resolution images. Dr. Stahl
testified that, when looking at the photographs on the
computer with higher resolution, he had a pretty good
estimation as to which structure was which. He further
testified that he could see the cystic duct and the cystic
artery in the photographs.
Dr. Stahl testified that he had also seen Dr. Shaker's
findings
and
conclusions
stating
that
there
was
an
intraperitoneal hematoma that consisted of approximately 110
grams of clotted blood mixed with liquid blood. However,
after having seen the photographs, the autopsy report, and Dr.
Shaker's deposition testimony, it was his opinion that that
finding would not support a conclusion that Li'Jonas bled to
death.
Dr.
Stahl also testified regarding differential diagnoses
as to the cause of death in this case. He subsequently
testified that, based on what happened at the time of death
34
1180352
and the passage of time until the autopsy, he thought it would
be impossible to tell with certainty the cause of death for
Li'Jonas. However, he testified that he believed, "to a
degree of medical certainty," that Li'Jonas did not die
because he bled to death from an unclipped artery. He further
testified that he did not think that there was any evidence of
that. Dr. Stahl also testified that, based upon his
education, training, and experience and his review of all the
information and records, it was his opinion that Dr. Barry's
surgery did not cause any injury or trauma to Li'Jonas; that
Dr. Barry performed the surgery in an appropriate manner in
accordance with the standard of care; and that the surgery did
not cause Li'Jonas to suffer internal bleeding that resulted
in his death. Dr. Stahl further testified that it was his
opinion that Li'Jonas did not die from a postoperative
complication of a cholecystectomy and that that was to a
reasonable degree of medical certainty. He further testified
that, although Li'Jonas died after undergoing surgery, he did
not die as a direct result of that surgery. Finally, Dr.
Stahl testified that, although he stated in his deposition
35
1180352
that he was not certain as to what caused Li'Jonas's death, he
could pretty easily say that it was not caused by hemorrhage.
The theory of Williams's claim against Dr. Barry was that
he had breached the standard of care by recommending and
performing an unnecessary surgery and that the unnecessary
surgery was the proximate cause of Li'Jonas's death. Dr.
Nguyen testified that it was his opinion that Dr. Barry had
breached the standard of care by recommending and performing
the surgery without first conducting an ultrasound and that
the surgery was the proximate cause of Li'Jonas's death. Dr.
Nguyen testified that he based his opinion as to the cause of
death on the findings in Dr. Shaker's autopsy report. It is
true that the defendants presented sharply conflicting
evidence as to the issue of causation. Although Dr. Shaker's
autopsy report referenced only one surgical clip, the
undisputed evidence presented at trial established that
multiple surgical clips were found in the location where
Li'Jonas's gallbladder had been removed. Dr. Eisenstat and
Dr. Stahl testified that the autopsy photographs showed that
two distinct structures had been clipped. The defense also
presented evidence indicating that only two structures -- the
36
1180352
cystic duct and the cystic artery -- are typically clipped
during a cholecystectomy.
However, Dr. Eisenstat testified that he could not, with
100% certainty, identify the cystic artery because of the
decomposition of the body. Additionally, although Dr.
Eisenstat testified that the cystic artery and the cystic duct
are the two structures that are typically clipped during a
cholecystectomy, he also stated:
"Now, you know, you may have little what we call --
what the surgeons call bleeders which doesn't mean
a massive bleed. They're just -- you need to clip
off these little vessels."
Additionally,
although
Dr.
Eisenstat
testified
that
mechanical
complications from the surgery and bleeding were not what
caused Li'Jonas's death, he could not completely rule out the
possibility that the surgery was a contributing factor in
Li'Jonas's death.
Based on the foregoing, when the evidence is viewed in a
light most favorable to the plaintiff, Williams presented
substantial evidence to create a factual dispute requiring
resolution by the jury as to the issue whether the surgery
performed by Dr. Barry was the proximate cause of Li'Jonas's
death.
37
1180352
For these reasons, the trial court erred when it granted
the defendants' motion for a judgment as a matter of law.
Conclusion
For the above-stated reasons, we reverse the trial
court's judgment and remand this case for proceedings
consistent with this opinion.3
REVERSED AND REMANDED.
Parker, C.J., and Bolin, Shaw, Bryan, Mendheim, Stewart,
and Mitchell, JJ., concur.
Sellers, J., dissents.
3Based on the foregoing, we pretermit discussion of the
remaining arguments raised by Williams.
38 | June 26, 2020 |
6e32f7f3-79c3-4cc7-93d7-d2f6902750b1 | Ex parte Gary Erris Coleman. | N/A | 1190144 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190144
Ex parte Gary Erris Coleman. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Gary Erris Coleman v. State of Alabama) (Madison Circuit
Court: CC-14-5806; Criminal Appeals : CR-18-0128).
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 |
597512d1-0987-4b80-86e8-4f76132d9ee7 | Ex parte Lori Cain. | N/A | 1190609 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 12, 2020
1190609
Ex parte Lori Cain. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: Lori Cain v. George Feltman, Jr., et al.) (Fayette Circuit Court: CV-19-005;
Civil Appeals : 2190168).
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 June 12, 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 12th day of June, 2020.
Clerk, Supreme Court of Alabama | June 12, 2020 |
c972bdac-4c85-4a69-ad02-90216f57fe66 | Ex parte Doris Sanders. | N/A | 1190478 | 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
____________________
1190478
____________________
Ex parte Doris Sanders
PETITION FOR WRIT OF MANDAMUS
(In re: Doris Sanders
v.
Shawn Reaves, Sae Him Chung, and Alfa Mutual Insurance
Company)
(Macon Circuit Court, CV-19-900181)
SELLERS, Justice.
1190478
Doris Sanders petitions this Court for a writ of mandamus
directing the Macon Circuit Court to vacate its March 13,
2020, order transferring the underlying action to the
Montgomery Circuit Court pursuant to § 6-3-21.1, Ala. Code
1975, Alabama's forum non conveniens statute. We grant the
petition and issue the writ.
Facts and Procedural History
On August 22, 2019, Sanders, a resident of Barbour
County, was involved in a multi-vehicle accident on
Interstate
85 in Macon County. Sanders sued the drivers of the other two
vehicles, Sae Him Chung and Shawn Reaves,1 in the Macon
Circuit Court, alleging negligence and wantonness and seeking
damages for her accident-related injuries.2 Sanders also
included a claim against her insurer, Alfa Mutual Insurance
1The parties submit that, at the time the trial court
transferred the underlying action to Montgomery County,
Reaves, a resident of Shelby County, had been served with
process but had not filed an answer or otherwise appeared in
the action.
2According to the allegations in the complaint, the
vehicle driven by Reaves struck the rear of the vehicle driven
by Chung, causing Chung's vehicle to strike the rear of
Sanders's vehicle.
2
1190478
Company, seeking to recover uninsured/underinsured motorist
benefits.3
Alfa and Chung (hereinafter referred to collectively as
"the defendants") filed a joint motion for a change of venue
pursuant to § 6-3-21.1, Ala. Code 1975, the forum non
conveniens statute, requesting that the action be transferred
to Montgomery County in the interest of justice and for the
convenience of the parties and witnesses. The defendants
supported their motion with a copy of the "Alabama Uniform
Traffic Crash Report," indicating, in relevant part, (1) that
the accident occurred in Macon County and was investigated
there; (2) that Sanders was employed by the State of Alabama
Tourism Department, which is located in Montgomery County; (3)
that Chung lived and worked in Montgomery County; and (4) that
Kellie Leigh McElvaine, a witness to the accident, lived and
worked in Montgomery County.
Sanders filed a response in opposition to the motion for
a change of venue, arguing that the case should remain in
Macon County because, she said, the defendants failed to carry
3The materials before us do not include any relevant
information regarding Alfa, other than the fact that it issued
the policy insuring Sanders's vehicle.
3
1190478
their burden of showing that a transfer to Montgomery County
was required under § 6-3-21.1. Sanders supported her motion
with her own affidavit stating that litigating the case in
Macon County would be more convenient for her because Macon
County was closer to her residence in Barbour County. Sanders
also stated that she did not work in Montgomery County;
rather, she said, she worked in Macon County at the Macon
County Rest Area. Finally, she stated that she received
medical treatment for her injuries in Lee County and Barbour
County, both of which are closer to Macon County than to
Montgomery County. Thus, she asserted that her health-care
providers in Lee County and Barbour County would have to
travel farther if the case were transferred to Montgomery
County.
Following a hearing, the Macon Circuit Court entered an
order transferring the action to Montgomery County. Sanders
petitioned this Court for mandamus review.
Standard of Review
"The proper method for obtaining review of a
denial [or grant] of a motion for a change of venue
in a civil action is to petition for the writ of
mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492
So. 2d 297, 302 (Ala. 1986). 'Mandamus is a drastic
and extraordinary writ, to be issued only where
4
1190478
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). 'When 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.'
Id. Our review is further limited to those facts
that were before the trial court. Ex parte American
Resources Ins. Co., 663 So. 2d 932, 936 (Ala.
1995)."
Ex parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala.
1998).
Analysis
Sanders argues that the Macon Circuit Court exceeded its
discretion in transferring the underlying action to the
Montgomery Circuit Court under the doctrine of forum non
conveniens.
Section 6-3-21.1(a), Ala. Code 1975, provides, in
pertinent part:
"With respect to civil actions filed in an
appropriate venue, any court of general jurisdiction
shall, for the convenience of parties and witnesses,
or in the interest of justice, transfer any civil
action or any claim in any civil action to any court
of general jurisdiction in which the action might
have been properly filed and the case shall proceed
as though originally filed therein."
5
1190478
It is undisputed that Macon County and Montgomery County
are both proper venues for the underlying action. See 6-3-
2(a)(3), Ala. Code 1975. "When venue is appropriate in more
than one county, the plaintiff's choice of venue is generally
given great deference." Ex parte Perfection Siding, Inc., 882
So. 2d 307, 312 (Ala. 2003). The party moving for a transfer
has the initial burden of showing that a transfer is justified
under § 6-3-21.1. Ex parte National Sec. Ins. Co., 727 So. 2d
at 789. Thus, this Court must determine whether the defendants
met their burden of showing that the interest of justice or
the convenience of the parties and witnesses override
Sanders's choice of venue.
"The purpose of the doctrine [of forum non conveniens] is
to prevent the waste of time, energy, and money and also to
protect
witnesses,
litigants,
and
the public
against
unnecessary expense and inconvenience." Ex parte New England
Mut. Life Ins. Co., 663 So. 2d 952, 956 (Ala. 1995). "[I]n
analyzing the interest-of-justice prong of § 6-3-21.1, this
Court focuses on whether the 'nexus' or 'connection' between
the plaintiff's action and the original forum is strong enough
to warrant burdening the plaintiff's forum with the action."
6
1190478
Ex parte First Tennessee Bank Nat'l Ass'n, 994 So. 2d 906, 911
(Ala. 2008). "[T]he county to which the transfer is sought
must have a 'strong' nexus or connection to the lawsuit, while
the county from which the transfer is sought must have a
'weak' or 'little' connection to the action." Ex parte J & W
Enters., LLC, 150 So. 3d 190, 196 (Ala. 2014). Additionally,
this Court has held that "litigation should be handled in the
forum where the injury occurred." Ex parte Fuller, 955 So. 2d
414, 416 (Ala. 2006).
The defendants argue that the interest of justice
requires a transfer of the action to Montgomery County
because, they say, Chung, one of the defendants, and
McElvaine, a witness to the accident, live and work in
Montgomery County. The defendants also assert that a section
of cable barrier owned by the State of Alabama was damaged in
the accident and that the appropriate witness to testify
regarding the damage is employed in Montgomery County.
Although the Alabama Uniform Traffic Crash Report does
indicate that a "section of cable barrier" owned by the State
of Alabama was damaged as a result of the accident, the State
is not a party to this action, and there is no evidence
7
1190478
indicating that the State is seeking compensation for the
damaged cable barrier. Further, the defendants have not
identified any specific witness they claim will testify on
behalf of the State. In short, Montgomery County's sole
material contact with this case is that one of the defendants
and an eyewitness reside there. The defendants have not
demonstrated that Sanders's choice of
venue, Macon County, has
a weak or little connection to this case. As indicated, the
accident made the basis of this case occurred in Macon County
and was investigated there. Sanders indicated in her affidavit
that litigating the case in Macon County would be more
convenient for her because she works in Macon County, and
Macon County is closer to her residence in Barbour County.
Sanders also asserted that her health-care providers in Lee
County and Barbour County would have to travel farther if the
case were transferred to Montgomery County. Simply put, the
defendants have failed to demonstrate that the interest of
justice overrides the
deference due Sanders's choice of venue.
In seems apparent from the facts before the trial court that
Macon County has a very strong connection to the action
whereas Montgomery County's connection is weak.
8
1190478
We further conclude that the defendants have not met
their burden of demonstrating that a transfer of the
underlying action to Montgomery County is required based on
the convenience of the parties and witnesses. See Ex parte New
England Mut. Life Ins. Co., 663 So. 2d at 956 (noting that the
burden is on the defendant to prove to the satisfaction of the
trial court that the transferee forum is significantly more
convenient than the forum selected by the plaintiff). In this
case, although the defendants rely on the fact that one of the
defendants, a nonparty witness, and a witness from the State
of Alabama all reside or work in Montgomery County, they have
produced no evidence or affidavits from any witnesses
declaring that Montgomery County would be a significantly more
convenient forum for litigating the action or that traveling
to Macon County for trial would be burdensome or otherwise
inconvenient for them. See Ex party Tyson Chicken, Inc., 291
So. 3d 477, 481 (Ala. 2019)(noting that this Court has
declined to order a transfer in cases in which the party
moving for a transfer has failed to present evidence
demonstrating that the transferee forum is significantly more
convenient than the transferor forum). Accordingly, the
9
1190478
defendants have not met their burden of showing that
Montgomery County is a significantly more convenient forum
than Macon County –- Sanders's chosen forum.
Conclusion
For the foregoing reasons, we conclude that the Macon
Circuit Court exceeded its discretion in transferring this
case to the Montgomery Circuit Court. We, therefore, grant
the petition for a writ of mandamus and direct the Macon
Circuit Court to vacate it March 13, 2020, order transferring
this action to the Montgomery Circuit Court.
PETITION GRANTED; WRIT ISSUED.
Bolin, Wise, Bryan, and Mendheim, JJ., concur.
Mitchell, J., concurs specially.
Parker, C.J., and Shaw and Stewart, JJ., concur in the
result.
10
1190478
MITCHELL, Justice (concurring specially).
I agree with the majority opinion that venue for this
case should be in Macon County, the location of the automobile
accident in which the petitioner Doris Sanders was injured.
I caution future litigants, however, against relying too
heavily upon the following quotation from Ex parte Fuller, 955
So. 2d 414, 416 (Ala. 2006), in the majority opinion:
"'litigation should be handled in the forum where the injury
occurred.'" ___ So. 3d at ___. Although the general principle
for which Ex parte Fuller is cited applies here, we have
clarified in more recent decisions that the location of the
injury is not the single determinative factor in the forum non
conveniens analysis. In 2017, this Court emphasized the
importance of the location where the injury occurred, while
recognizing that, in certain circumstances, the interests of
justice may nevertheless dictate that a case be tried in a
different venue:
"[A]lthough we have cautioned that it is not a
talisman, this Court has stated that where the
injury occurred is 'often assigned considerable
weight in an interest-of-justice analysis.' Ex
parte Wachovia, 77 So. 3d 570, 574 (Ala. 2011). Our
recent cases bear out this principle. See, e.g., Ex
parte Tier 1 Trucking, LLC, 222 So. 3d 1107 (Ala.
2016); Ex parte Wayne Farms, LLC, 210 So. 3d 586
11
1190478
(Ala. 2016); Ex parte Quality Carriers, Inc., 183
So. 3d 937 (Ala. 2015); Ex parte Manning, 170 So. 3d
638 (Ala. 2014); Ex parte Morton, 167 So. 3d 295
(Ala. 2014); Ex parte State Farm Mut. Auto. Ins.
Co., 149 So. 3d 1082 (Ala. 2014); Ex parte Southeast
Alabama Timber Harvesting, LLC, 94 So. 3d 371 (Ala.
2012).
Nevertheless,
'the
location
where
the
accident occurred ... is not, and should not be, the
sole consideration for determining venue under the
"interest of justice" prong of 6–3–21.1.' [Ex parte]
J & W Enters.[, LLC], 150 So. 3d [190,] 196–97
[(Ala. 2014)]."
Ex parte Elliott, 254 So. 2d 882, 886 (Ala. 2017).
In sum, I agree with the majority opinion's forum non
conveniens analysis and its conclusion that "the defendants
have failed to demonstrate that the interest of justice
overrides the deference due Sanders's choice of venue." ___
So. 3d at ___. Despite the quotation from Ex parte Fuller,
however, I do not understand the majority opinion to stand for
the principle that litigation must always be handled in the
forum where the injury occurred.
12 | June 26, 2020 |
d68b885d-9a48-4825-982b-1d73a1c0a8e2 | Ex parte James Arthur Culbreth. | N/A | 1190365 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 12, 2020
1190365
Ex parte James Arthur Culbreth. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: James Arthur Culbreth v. State of Alabama) (Montgomery
Circuit Court: CV-18-492; Criminal Appeals : CR-18-1094).
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 June 12, 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 12th day of June, 2020.
Clerk, Supreme Court of Alabama | June 12, 2020 |
310bc384-f291-4918-98f6-9aecb4a76b09 | Nancy Hicks v. Allstate Insurance Company | N/A | 1170589 | Alabama | Alabama Supreme Court | Rel: June 19, 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
____________________
1170589
____________________
Nancy Hicks
v.
Allstate Insurance Company
____________________
1170632
____________________
Allstate Insurance Company
v.
Nancy Hicks
Appeals from Madison Circuit Court
(CV-15-901699)
1170589, 1170632
STEWART, Justice.
This matter is before the Court on consolidated appeals
from the Madison Circuit Court ("the trial court") stemming
from an action filed by Nancy Hicks for injuries sustained in
an automobile accident. Hicks appeals following the trial
court's denial of her motion for a new trial. Allstate
Insurance Company ("Allstate") cross-appeals, challenging the
trial court's denial of its motion for a partial judgment as
a matter of law on the issue of causation of Hicks's injuries.
For the reasons stated below, we reverse the trial court's
order denying Hicks's motion for a new trial, and we remand
the cause to the trial court for a new trial. We affirm the
trial court's order denying Allstate's motion for a partial
judgment as a matter of law.
Facts and Procedural History
On October 9, 2014, Hicks was the passenger in an
automobile being driven by Yesy Gonzalez ("Yesy") when William
Davis rear-ended their vehicle, causing injuries to Hicks's
head, back, and neck. Yesy also sustained injuries as a
result of the accident.
2
1170589, 1170632
Hicks, Yesy, and Alfonso Gonzalez ("Alfonso"), Yesy's
husband (hereinafter collectively referred to as "the
plaintiffs") filed a complaint in the trial court on September
16, 2015, asserting various claims against Davis's estate1 and
against Allstate, the Gonzalezes' underinsured-motorist
("UIM") insurance carrier. Hicks and Yesy asserted claims of
negligence against Davis's estate, and Alfonso asserted a
loss-of-consortium
claim
against
Davis's
estate.
The
plaintiffs also sought UIM benefits from Allstate. Hicks also
amended the complaint to assert a claim for UIM benefits
against
State
Farm
Mutual
Automobile Insurance Company
("State
Farm"), her UIM insurance carrier.
Initially, both Allstate and State Farm opted out of the
litigation, see Lowe v. Nationwide Insurance Co., 521 So. 2d
1309 (Ala. 1988), and
the
plaintiffs proceeded against Davis's
estate. The plaintiffs subsequently agreed to
a
stipulation of
dismissal of all claims they asserted against Davis's estate.
As a result of the dismissal of the claims against Davis's
estate, the matter proceeded to trial on February 12, 2018,
1Davis died after the accident but before the plaintiffs
filed the complaint.
3
1170589, 1170632
solely on the plaintiffs' claims against Allstate for UIM
benefits. State Farm continued to opt out.
The evidence at trial presented the following relevant
facts pertaining to Hicks's claim. As a result of the
collision, Hicks's body was thrown forward and then backward,
and her head hit the passenger-side window of the car. Hicks
sought initial treatment at the Huntsville Hospital emergency
room for pain in her back, neck, and head. On October 13,
2014, Hicks visited Dr. Ramakrishna Vennam, her primary-care
physician, who diagnosed Hicks with a whiplash injury, post-
traumatic headaches, and lower back pain. One month after the
wreck, Hicks was diagnosed by Dr. Lynn Boyer, a neurologist,
with a concussion. On October 28, 2014, Hicks went to the
emergency room at Huntsville Hospital complaining of pain in
her head, neck, and back, and she was diagnosed by the
emergency-room physician with a cervical strain in her neck.
On January 23, 2015, Dr. Vennam saw Hicks, who was complaining
of a sharp pain in the left side of her head from headaches
and chronic back pain. Dr. Vennam referred Hicks to Dr. Rhett
Murray, a neurosurgeon. Dr. Murray had previously treated
Hicks for lower back pain in 2009, which treatment included
4
1170589, 1170632
surgery to correct a herniated or ruptured disk, relieving a
compressed nerve.
Dr. Murray diagnosed Hicks with spondylolisthesis, grade
one, and indicated there was a 25 percent slip between the L-4
and L-5 vertebrae in Hicks's back. Dr. Murray also diagnosed
Hicks with mild spondylosis, which is arthritic spurs in the
neck. Dr. Murray stated that the slip of the bone that he
found between the L-4 and L-5 vertebrae in March 2016 was not
present in scans of Hicks's back after the 2009 operation. Dr.
Murray also diagnosed Hicks with a slipped disk between the
bones of her L-5 and S-1 vertebrae and with stenosis, a
narrowing of the spinal canal, which was causing nerve
compression in her back.
On October 17, 2016, Dr. Murray performed a two-level
spinal-fusion surgery on Hicks. Under direct examination by
Hicks's attorney during a video deposition that was played to
the jury, Dr. Murray testified as follows concerning the
surgery:
"An incision is made on the low back in the middle
of the affected areas. And the muscles are pulled
back exposing the spine. The roof of the spine
bones, which is called the 'lamina,' are removed in
order to expose the nerves. The spurs form on these
joints. They are removed so that the nerves are
5
1170589, 1170632
further decompressed. If there's any scar tissue, it
is removed from around the nerves. That's called a
'neurolysis,' Screws are placed into the spine bones
through what we call the 'pedicles' which are die
arms that connect the back of the spine to the front
of the spine. So six screws were placed in her L-4,
L-5j and S-1, at each level. The discs which are the
spacers between the bones are removed. This doesn't
show –- well, actually it does show. This is the
spacer that [we] put back into the disc once we
remove it. It's packed with her bone that we harvest
from the removal of the roof of the spine. So two of
these were placed. And then rods are passed through
the screws and locked down with top screws as well
as a cross link in order to hold everything
together. Bone is also laid down to the sides here
in hopes of getting this to become solid with bone
overtime."
Dr. Murray testified that the screws and the rods would likely
remain in Hicks's body permanently. Dr. Murray testified:
"[T]hose bones no longer bend. That's what a fusion
is designed to do. So it adds stresses to the joints
above. And she has a probable 10 to 15 percent
chance of developing adjacent level significant
disease."
Hicks testified that she had external scarring at the site of
the surgery. Dr. Murray testified as follows regarding
Hicks's impairment:
"[Hick's
attorney:]
Doctor,
is
there
an
impairment rating associated with this type of
procedure?
"[Dr. Murray]: There is. I usually send them out
to our physiatrist to perform the impairment rating
6
1170589, 1170632
using the [American Medical Association] Guidelines.
I am certain she would have one."
Hicks attempted to introduce a mortality table into
evidence to aid the jury in determining damages. Hicks argued
that the testimony of Dr. Murray, specifically that Hicks
would have permanent hardware in her spine and permanent
scarring from the fusion surgery and that Hicks had not yet
recovered from the neck injuries she complained of, was
sufficient evidence to allow for the submission of a mortality
table. The trial court acknowledged that "the whole transcript
of [Dr. Murray's] deposition [was] admitted for purposes of
this argument" but ultimately did not allow Hicks to admit the
mortality table into evidence, finding that Hicks had not
presented
sufficient
evidence
that
her
injuries
were
permanent. The trial court also prohibited Hicks from
discussing permanent disability in her closing argument. In
addition, during the charging conference, the trial court,
over Hicks's objection, rejected jury instructions on
permanent injury and mortality tables.
At the close of the plaintiffs' evidence, Allstate filed
a motion for a partial judgment as a matter of law as to
Hicks's claim against it, arguing that Hicks had failed to
7
1170589, 1170632
prove that her spinal-fusion surgery was necessitated by the
injuries she
suffered in the October 2014 automobile accident.
The trial court denied Allstate's motion. Allstate did not
file a postjudgment motion to renew its motion for a partial
judgment as a matter of law.
On February 15, 2018, the jury returned a verdict for
Hicks in the amount of $135,000 and for Yesy in the amount of
$200,000.2 The trial court reduced the judgment against
Allstate and in favor of Hicks to $35,000 because Davis's
insurance company was responsible under its policy with Davis
for the first $100,000 in damages.
On February 28, 2018, Hicks filed a motion for a new
trial pursuant to Rule 59(a), Ala. R. Civ. P. Hicks argued
that the trial court erroneously determined that Hicks's
injuries were not permanent, that the trial court should have
allowed Hicks to offer a mortality table into evidence, and
that the trial court improperly refused to instruct the jury
on permanent injuries and mortality tables. The trial court
denied the motion on the same day. On March 23, 2018, Hicks
2Alfonso's loss-of-consortium claim had been dismissed.
8
1170589, 1170632
filed a notice of appeal. Allstate timely filed a cross-
appeal on April 5, 2018.
Analysis
I. Allstate's Cross-Appeal (No. 1170632)
Because the issues raised by Allstate in its cross-appeal
could be dispositive of Hicks's appeal, we address the cross-
appeal first. Allstate argues that the trial court's denial
of its motion for a partial judgment as a matter of law on the
issue of causation underlying Hicks's claim is reversible
error because, it asserts, Hicks did not present sufficient
evidence
showing
that
her
spinal-fusion
surgery
was
necessitated by the October 2014 automobile accident.
We must first determine whether Allstate has preserved
this argument for appellate review.
"Rule 50(b), Ala. R. Civ. P., provides a specific
procedure for challenging the sufficiency of the
evidence:
"'....'
"... In accordance with this procedure is the
well-settled rule 'that a motion for a [preverdict
judgment as a matter of law] must be made at the
close of all the evidence and that a timely
post-trial motion for judgment [as a matter of law]
must be subsequently made before an appellate court
may consider on appeal the insufficiency-of-evidence
9
1170589, 1170632
issue directed to the jury's verdict.' Bains v.
Jameson, 507 So. 2d 504, 505 (Ala. 1987); see also
Great Atlantic & Pacific Tea Co. v. Sealy, 374 So.
2d 877 (Ala. 1979); Black v. Black, 469 So. 2d 1288
(Ala. 1985); Housing Auth. of the City of Prichard
v. Malloy, 341 So. 2d 708 (Ala. 1977)."
Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018, 1024-25 (Ala.
1993). In Clark v. Black, 630 So. 2d 1012, 1016 (1994), this
Court stated that "the unsuccessful movant's failure to
present the trial court with an opportunity to revisit the
sufficiency of the evidence issue in [a postverdict motion for
a judgment as matter of law] precludes appellate reversal of
the denial of the [preverdict motion for a judgment as matter
of law]." See also Cook's Pest Control, Inc. v. Rebar, 28 So.
3d 716, 723 (Ala. 2009).
Allstate made its motion for a partial judgment as a
matter of law at the close of the plaintiffs' evidence and
before the jury entered its verdict. Allstate, however, did
not make a postjudgment motion for a partial judgment as a
matter of law on the issue of causation. Therefore, Allstate
did not preserve its causation argument for appellate review.
Accordingly, we do not address the merits of Allstate's
argument, and we affirm the trial court's judgment insofar as
10
1170589, 1170632
it denied Allstate's motion for a partial judgment as a matter
of law.
II. Hicks's Appeal (No. 1170589)
Hicks argues that the trial court erred in refusing to
allow the jury to determine whether Hicks had suffered
permanent injury in computing damages. In particular, Hicks
asserts that she presented evidence demonstrating a permanent
injury and that, as a result, the trial court erred by denying
the admission into evidence of the mortality table and by
refusing to instruct the jury using Hicks's proposed
instructions on the law pertaining to permanent injury and on
the use of mortality tables.
"The decision to grant or deny a motion for new
trial rests within the sound discretion of the trial
court, and the exercise of that discretion will not
be disturbed on appeal unless some legal right was
abused and the record plainly and palpably shows
that the trial court was in error."
Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 45
(1990) (citing Hill v. Cherry, 379 So. 2d 590 (1980)).
We first address Hicks's argument that the trial court
erred by excluding the mortality table from evidence because,
she argues, the trial court incorrectly determined that Hicks
had not presented sufficient evidence or testimony from her
11
1170589, 1170632
treating physicians to indicate that her injuries were
permanent. "'"It has been held that where there is nothing
from which a layman can form any well-grounded opinion as to
the permanency of the injury or where the injury is purely
subjective, expert evidence must be introduced. 25A C.J.S.
Damages § 162(9), at 110 (1966)."'" Skerlick v. Gainey, 42 So.
3d 1288, 1290 (Ala. Civ. App. 2010) (quoting Flowers Hosp.,
Inc. v. Arnold, 638 So. 2d 851, 852 (Ala. 1994), quoting in
turn Jones v. Fortner, 507 So. 2d 908, 910 (Ala. 1987)).
Further, "[t]his court has held that where there is evidence
from which there is a reasonable inference that a plaintiff's
injuries are permanent, the mortality tables are admissible."
Louisville & Nashville R.R. v. Steel, 257 Ala. 474, 481, 59
So. 2d 664, 669 (1952) (citing Southern Ry. v. Cunningham, 152
Ala. 147, 44 So. 658 (1907)).
At trial, Hicks offered deposition testimony from Dr.
Vennam and Dr. Murray showing the extent of the injuries she
suffered as a consequence of the automobile accident. Dr.
Murray
testified in
detail
regarding
the
spinal-fusion
surgery
he performed on Hicks following the accident. Although Dr.
Murray did not specifically mention the words "permanent
12
1170589, 1170632
injury," he testified that the hardware inserted during the
surgery –- screws, rods, and "spacers" between Hicks's
vertebrae -- is likely to remain permanently in Hicks's body.
He testified that, as a result of the surgery, the spinal
bones that were involved in the operation no longer bend,
which adds stress to the joints above those bones. When asked
about the effect that the surgery he performed on Hicks in
2009 could have on the development of her spondylolisthesis,
Dr. Murray responded: "[W]hen you operate on anyone, even the
smallest operation, you do not strengthen the spine. In fact,
you take a little bit of strength away from the spine." He
testified that Hicks had a "10 to 15 percent chance of
developing adjacent level significant disease." Finally, Dr.
Murray testified that he was certain that there would be an
impairment rating associated with the surgery he performed on
Hicks. Hicks further testified that she had surgical scars on
her body as a result of the 2016 surgery. See Ozment v.
Wilkerson, 646 So. 2d 4, 6 (Ala. 1994)("[T]he jury could
reasonably have concluded that the [plaintiff's] scar
constituted a permanent injury. Therefore, the court did not
err in admitting the mortality tables.").
13
1170589, 1170632
Allstate did not offer any evidence at trial to refute
the testimony of Dr. Murray or to challenge his testimony as
to the extent of Hicks's injuries. Allstate simply argued that
Hicks had failed to present sufficient evidence that her
injuries were permanent and that they were caused by the
October 2014 automobile accident to allow for the submission
into evidence of a mortality table.
Dr. Murray's medical testimony about the permanent
hardware remaining in Hicks's body, Hick's permanently
hindered mobility as a result of the spinal-fusion surgery,
and the inherent damage that generally occurs as a result of
any surgical procedure on the spine, combined with Hicks's
testimony about
the
permanent
external
scarring
resulting from
the surgery, provided evidence from which a jury could
reasonably infer that Hicks suffered permanent injuries.
Accordingly, the trial court exceeded its discretion in
refusing to admit into evidence the mortality table offered by
Hicks as an aid for the jury in determining damages.
"In reviewing a ruling on the admissibility of
evidence, ... 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
14
1170589, 1170632
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."'"
Swanstrom v. Teledyne Cont'l Motors, Inc., 43 So. 3d 564, 574
(Ala. 2009) (quoting Bama's Best Party Sales, Inc. v.
Tupperware, U.S., Inc., 723 So. 2d 29, 32 (Ala. 1998)).
The only issue for the jury to determine in this case was
the amount of damages to which Hicks was entitled, and the
mortality table can be used by the jury as an aid in
determining permanent damages.3 By refusing to allow the jury
to consider the mortality table, the trial court hindered the
jury's ability to determine the appropriate amount of damages
to which Hicks was entitled in a trial in which the only issue
was the amount of damages. Because the trial court erroneously
determined that the mortality table could not be admitted into
evidence, the trial court's denial of Hicks's motion for a new
trial is due to be reversed. Because of our holding on this
issue, we pretermit discussion of Hicks's other argument in
3See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Smelley,
295 Ala. 346, 349, 329 So. 2d 544, 546 (1976) ("If the
[mortality] tables are admitted, they may be used by the jury
to determine the plaintiff's impaired or diminished earning
capacity." (citing Alabama Great Southern Ry.
v.
Gambrell, 262
Ala. 290, 78 So. 2d 619 (1955))).
15
1170589, 1170632
support of her request for a new trial, namely that the trial
court erred by not giving the requested jury instructions on
permanent injuries and on the use of mortality tables.
Conclusion
For the foregoing reasons, the trial court's order
denying Hicks's motion for a new trial is reversed, and the
cause is remanded to the trial court for a new trial. Because
Allstate did not properly preserve for appellate review its
motion for a partial judgment as a matter of law of the issue
of causation underlying Hicks's claim, the trial court's
denial of that motion is affirmed.
1170589 –- REVERSED AND REMANDED WITH INSTRUCTIONS.
Parker, C.J., and Wise, J., concur.
Bolin and Sellers, JJ., concur in the result.
1170632 -– AFFIRMED.
Parker, C.J., and Bolin and Wise, JJ., concur.
Sellers, J., concurs in the result.
16 | June 19, 2020 |
193b8d48-98e6-45c5-ae38-d9a3a78cbb59 | Ex parte A.S. | N/A | 1190563 | 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
June 12, 2020
1190563
Ex parte AS. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: A.S. v. Madison County Department of Human Resources) (Madison Juvenile Court:
JU-09-1678.06; Civil Appeals :
2180816).
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 June 12, 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 12th day of June, 2020.
l i t a
Clerk, Supreme Court of Alabama | June 12, 2020 |
09691c10-35a9-42f7-a6dd-5fefd1375bf8 | Ex parte Vermillion Dionne Dailey. | N/A | 1190684 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190684
Ex parte Vermillion Dionne Dailey. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Vermillion Dionne Dailey v. State of Alabama) (Enterprise
Circuit Court: CC-17-614; Criminal Appeals : CR-18-0699).
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. 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 10th day of July, 2020.
Clerk, Supreme Court of Alabama | July 10, 2020 |
e7db7ff3-487a-4feb-b35b-a788131b5688 | Ex parte Shannon Dale Gargis. | N/A | 1190780 | 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
1190780
Ex parte Shannon Dale Gargis. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Shannon Dale Gargis v. State of Alabama.) (Franklin Circuit
Court: CC-16-350; Criminal Appeals :
CR-18-0426).
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 |
547f237a-2099-41c7-98a4-2a7f824d4308 | Clifford Goodman Wright, administrator of the Estate of Mary Evelyn Wright, deceased v. Cleburne County Nursing Home, Phyllis Harris, Dawn Reid, Tuwanda Worrills | N/A | 1190037 | Alabama | Alabama Supreme Court | Rel: June 12, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1190037
Clifford Goodman Wright, administrator of the Estate of Mary
Evelyn Wright, deceased v. Cleburne County Nursing Home,
Phyllis Harris, Dawn Reid, Tuwanda Worrills (Appeal from
Cleburne Circuit Court: CV-13-900053).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ.,
concur. | June 12, 2020 |
a56937aa-19e4-4879-9d7c-f274ab484505 | Ex parte James Antuam Blackman. | N/A | 1190105 | Alabama | Alabama Supreme Court | Rel: June 12, 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
____________________
1190105
____________________
Ex parte James Antuam Blackman
PETITION FOR WRIT OF MANDAMUS
(In re: James Antuam Blackman
v.
State of Alabama)
(Mobile Circuit Court, CC-18-4329, CC-18-4330, CC-18-4480,
CC-18-4481, and CC-18-4482)
PER CURIAM.
James Antuam Blackman petitions this Court for a writ of
mandamus directing Judge James Patterson of the Mobile Circuit
Court ("the trial court") to set aside an order setting
Blackman's case for trial, to reinstate Blackman's guilty plea
1190105
that the trial court withdrew sua sponte, and to proceed to
sentencing Blackman on his guilty-plea convictions. Because
the trial court's sua sponte withdrawal of Blackman's guilty
plea subjects Blackman to double jeopardy and thus divests the
trial court of jurisdiction to conduct a trial, we grant the
petition and issue the writ.
Facts and Procedural History
Blackman, an employee of the City of Prichard, was
indicted by the Mobile County grand jury on 47 separate
charges, including 22 counts of first-degree theft of
property, 9 counts of second-degree theft of property, 9
counts of third-degree theft of property, 3 counts of
fourth-degree theft of property, and 4 counts of using his
official position for personal gain. At a hearing on March 7,
2019, Blackman entered a blind guilty plea to all counts.1
Blackman, his attorney, and the trial court signed the
"Explanation of Rights and Plea of Guilty" form, commonly
known as an Ireland form.2 The trial court entered an order
1A blind guilty plea is defined as "[a] guilty plea made
without the promise of a concession from either the judge or
the prosecutor." Black's Law Dictionary 1392(11th ed. 2019)
2See Ireland v. State, 47 Ala. App. 65, 250 So. 2d 602
(Ala. Crim. App. 1971).
2
1190105
accepting Blackman's plea and adjudicating him guilty,
stating:
"This Court having ascertained that [Blackman]
understands his constitutional rights, the nature of
the crimes charged in the indictment and the
consequences of his Best Interest Plea of Guilty,
[Blackman] understandingly and voluntarily waives
his
constitutional
rights
and
pleads
guilty.
[Blackman] with the assistance of his attorney
informed the Court that there are no issues reserved
for appeal."
The trial court set a sentencing hearing for May 6, 2019, and
ordered a presentence investigation. According to Blackman,
the
convictions
are
subject
to
Alabama's
presumptive
sentencing standards, see § 12-25-30 et seq., Ala. Code 1975,
which, he states, mandate a non-prison sentence for his
convictions.
On March 9, 2019, the State of Alabama filed a motion
seeking the trial court's consent to prove aggravating factors
at
sentencing
to
depart
from
the
non-prison-sentence
recommendation in the presumptive sentencing standards.3
3The term "aggravating factors" is defined in § 12-25-
34.2(a)(1), Ala. Code 1975, as "[s]ubstantial and compelling
reasons justifying an exceptional sentence whereby the
sentencing court may impose a departure sentence above the
presumptive
sentence
recommendation
for
an
offense.
Aggravating factors may result in dispositional or sentence
range departures, or both, and shall be stated on the record
by the court."
3
1190105
Citing the Presumptive and Voluntary Sentencing Standards
Manual, effective October 1, 2016, promulgated by the Alabama
Sentencing
Commission
("the
sentencing-standards
manual"),
the
State acknowledged that the prosecutor is generally required
to give the defendant notice of intent to present aggravating
factors seven days before trial but that the sentencing-
standards manual allows the trial court to consent to notice
at any time for good cause shown if the defendant is provided
an opportunity to research and rebut the prosecutor's
request.4 The State asserted that it could establish good
cause because, it says, Blackman "unexpectedly rejected the
State's [plea-deal] offer" at the March 7, 2019, hearing,
4As of the date of this opinion, the sentencing-standards
manual
is
published
at
the
following
Web
address:
https://sentencingcommission.alacourt.gov/. The sentencing-
standards manual at page 29 states as follows regarding notice
of aggravating factors:
"The prosecutor shall give the defendant notice of
aggravating factors no less than seven (7) days
before trial. Once given, notice is deemed
sufficient for any future trial settings. For good
cause shown, notice may be given at any time with
the consent of the trial court, provided the
defendant is given an opportunity to research and
rebut the aggravating factor. Notice can be waived."
The aggravating factors that may justify departure from the
standards are set forth at page 30 of the sentencing-standards
manual.
4
1190105
which, it asserted, negated the customary triggering event of
the trial. The State also asserted that Blackman had waived
the seven-day notice requirement by pleading guilty prior to
his trial date. The State further asserted that consenting to
the State's notice of aggravating factors would not prejudice
Blackman because, it argued, the grounds for the aggravating
factors were apparent from the indictments and Blackman would
have the opportunity to research and rebut the aggravating
factors before the sentencing hearing. On March 12, 2019,
without a response from Blackman, the trial court granted the
State's motion.
On April 12, 2019, Blackman filed an objection to the
State's motion, arguing that the State's notice of its intent
to prove aggravating factors was untimely and that allowing
the State the opportunity to prove aggravating factors after
the trial court's acceptance of the guilty plea would render
that plea involuntary because, he asserted, he was not given
proper notice of the sentencing range before pleading guilty.
Blackman stated that he
"entered his plea believing that the [presumptive
sentencing standards] would apply since the State
had not given notice of intent to assert aggravating
factors. However, aggravating factors -- if proven
–- would give the [trial] court the option of a
departure
sentence
pursuant
to
the
statutory
5
1190105
sentencing range. If the State is excused from its
failure to give timely notice (or at least any
notice prior to the plea), then it would mean Mr.
Blackman could not have knowingly, intelligently,
and voluntarily entered his pleas. Accordingly, a
sentence
outside
the
presumptive
[sentencing
standards] would be unconstitutional ...."
Blackman, however, did not request an opportunity to withdraw
his guilty plea, and he did not otherwise seek to set aside
his guilty-plea convictions entered by the trial court.
On April 15, 2019, the trial court entered an order
setting aside its March 12, 2019, order allowing the State to
prove aggravating factors. The trial court further stated that
"Mr. Blackman's plea was obviously not entered 'freely,
voluntarily, and
knowingly.'
Therefore,
the
court
considers
it
WITHDRAWN, and so orders." The trial court reset a disposition
date for May 2, 2019. On April 16, 2019, Blackman filed a
motion to set aside the trial court's April 15, 2019, order
insofar as it sua sponte withdrew his guilty plea. Blackman
asserted that he did not request that his guilty plea be
withdrawn and that he did not intend for the trial court to
withdraw his guilty plea. Blackman cited Rule 14.4(e), Ala. R.
Crim. P.,5 among other legal authority, in arguing that the
5Rule 14.4(e) states:
"The court shall allow withdrawal of a plea of
6
1190105
trial court acted beyond its authority in sua sponte ordering
the withdrawal of his guilty plea. Blackman further argued
that the trial court's withdrawal of his guilty plea provided
the State "another 'bite at the apple'" and an opportunity to
pursue a departure from the presumptive sentencing standards.6
On April 18, 2019, the trial court entered an order
denying Blackman's motion to set aside its April 15 order.
The trial court stated, among other things:
"Because Mr. Blackman correctly pointed out that a
defendant must be apprised of the correct maximum
and minimum sentences for his guilty plea to be
'knowingly,
intelligently,
and
voluntarily'
entered,
and because this court may have mistakenly granted
the state's motion to prove aggravating factors
after Mr. Blackman had already pled guilty, and
after reviewing the principles set forth in Boykin
v. Alabama, 395 U.S. 238, 240 (1969), and the
frankly 'goofy' procedural posture of this case now,
undersigned decided to go back in time and do a 'do
over' and therefore ordered Mr. Blackman's plea
vacated as well."
guilty when necessary to correct a manifest
injustice. Upon withdrawal of a guilty plea, the
charges against the defendant as they existed before
any amendment, reduction, or dismissal made as part
of
a
plea
agreement
shall
be
reinstated
automatically."
6Blackman also states in his petition that, after the
trial court vacated his guilty plea, the State filed another
notice of intent to prove aggravating factors, which, he
states, the trial court granted on April 22, 2019.
7
1190105
The trial court noted that, because Blackman had stated in his
motion to set aside that he "'could not have knowingly,
intelligently, and voluntarily entered his pleas'" and that
"'a sentence outside of presumptive [sentencing standards]
would be unconstitutional,'" Blackman was "obviously ...
telling [the trial court] ... that his plea was not given
freely,
voluntarily,
and
knowingly."
The trial
court
concluded: "Because of these facts, and because I am supposed
to facilitate and not prevent justice, this Court ... VACATED
Mr. Blackman's prior guilty plea." The trial court went on to
explain that "[t]his is essentially a 'do-over' like kids used
to do on the play yard. We are back to where we were before
Mr. Blackman decided to plead to anything."
According to Blackman, at a hearing on May 2, 2019, he
informed the trial court that he stood on his previously
entered guilty plea, and he renewed his argument that the
trial court lacked the authority to set it aside. That same
day, the trial court entered an order setting Blackman's case
for trial on November 12, 2019.
On October 29, 2019, Blackman filed a petition for a writ
of mandamus in the Court of Criminal Appeals. On October 31,
2019, that court, by order, dismissed Blackman's petition as
8
1190105
untimely. Ex parte Blackman (CR-19-0080, Oct. 31, 2019), ___
So. 3d ___ (Ala. Crim App. 2019)(table). On November 4, 2019,
Blackman filed in this Court a petition for a writ of mandamus
and a motion to stay the trial-court proceedings. On November
8, 2019, a majority of this Court granted Blackman's motion to
stay the trial-court proceedings.
Standard of Review
"This Court has held that an accused's constitutional
right[] against being twice placed in jeopardy cannot be
adequately protected by appellate review and that the writ of
mandamus is appropriate in a case in which the petitioner
argues that former jeopardy bars a retrial on the charges
against him." Ex parte Head, 958 So. 2d 860, 865 (Ala.
2006)(citing Ex parte Roberts, 662 So. 2d 229, 231 (Ala.
1995)).
Under Rule 21(e)(1), Ala. R. App. P., a decision of the
Court of Criminal Appeals on an original petition for a writ
of mandamus may be reviewed de novo by this Court. 7
7Rule 21(e)(1) provides:
"A decision of a court of appeals on an original
petition for writ of mandamus or prohibition or
other extraordinary writ (i.e., a decision on a
petition filed in the court of appeals) may be
9
1190105
"Mandamus is a drastic and extraordinary writ
that will be issued only when there is: 1) a clear
legal right in the petitioner to the order sought;
2) an imperative duty upon the respondent to
perform, accompanied by a refusal to do so; 3) the
lack of another adequate remedy; and 4) properly
invoked jurisdiction of the court. Ex parte AmSouth
Bank, N.A., 589 So. 2d 715 (Ala. 1991); Ex parte
Day, 584 So. 2d 493 (Ala. 1991)."
Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503
(Ala. 1993).
Discussion
At issue in this case is whether the trial court's sua
sponte withdrawal of Blackman's guilty plea has subjected
Blackman to further jeopardy in violation of the double-
jeopardy protections of the Fifth Amendment to the United
States Constitution. The Fifth Amendment provides that no
person shall "be subject for the same offense to be twice put
in jeopardy of life or limb." The Double Jeopardy Clause
"protects against a second prosecution for the same offense
after acquittal, against a second prosecution for the same
reviewed de novo in the supreme court, and an
application for rehearing in the court of appeals is
not a prerequisite for such review. If an original
petition for extraordinary relief has been denied by
the court of appeals, review may be had by filing a
similar petition in the supreme court (and, in such
a case, in the supreme court the petition shall seek
a writ directed to the trial judge). ..."
10
1190105
offense
after
conviction, and
against
multiple
punishments
for
the same offense." Justices of Boston Mun. Court v. Lydon, 466
U.S. 294, 306–07 (1984). See also Arizona v. Washington, 434
U.S. 497, 503 (1978) ("A State may not put a defendant in
jeopardy twice for the same offense."). This Court has also
held that "[j]eopardy attaches on a guilty plea when the plea
is accepted and entered by a court with jurisdiction." Ex
parte Wright, 477 So. 2d 492, 493 (Ala. 1985)(citing Odoms v.
State, 359 So. 2d 1162, 1164 (Ala. Crim. App. 1978)).
In his petition, Blackman contends that jeopardy attached
when the trial court accepted and entered his guilty plea on
March 7, 2019. Blackman argues that the trial court's sua
sponte withdrawal of his guilty plea was unauthorized under
the law and that, as a consequence, his constitutional right
against being subjected to prosecution again for the same
offense has been violated by the trial court's order setting
the case for trial. Blackman argues that his double-jeopardy
claim divests the trial court of jurisdiction to conduct a
trial and that his guilty plea is due to be reinstated.
As a threshold matter, we must determine whether
Blackman's petition for the writ of mandamus filed in the
11
1190105
Court of Criminal Appeals on October 29, 2019, was untimely,
thus depriving that court of jurisdiction and, in turn,
depriving this Court of jurisdiction to review his mandamus
petition filed in this Court. Pursuant to Rule 21(a)(3), Ala.
R. App. P., a mandamus petition
"shall be filed within a reasonable time. The
presumptively reasonable time for filing a petition
seeking review of an order of a trial court or of a
lower appellate court shall be the same as the time
for taking an appeal. If a petition is filed outside
this presumptively reasonable time, it shall include
a statement of circumstances constituting good cause
for the appellate court to consider the petition,
notwithstanding that it was filed beyond the
presumptively reasonable time."
Under Rule 4(a)(1), Ala. R. App. P., an appeal must
generally be taken within 42 days of the entry of the order or
judgment
being
appealed.
Blackman
challenges the
trial
court's
authority to enter the April 15, 2019, order in which it sua
sponte ordered the withdrawal of Blackman's guilty plea and
the April 18, 2019, order in which it denied his motion to
reinstate his guilty plea and to proceed with sentencing. He
further challenges the trial court's jurisdiction to proceed
with a trial, thus attacking the trial court's authority to
enter the May 2, 2019, order setting the case for trial.
12
1190105
Blackman further asserts that he does not have an adequate
remedy by way of an appeal. See Ex parte Head, supra.
The State correctly notes that Blackman filed his
mandamus petition in the Court of Criminal Appeals well
outside the presumptively reasonable time after the trial
court's April 15, 2019, April 18, 2019, and May 2, 2019,
orders. Accordingly, the State contends that Blackman's
petition in this Court is due to be dismissed. The State also
contends that, even if Blackman's petition is
not
time-barred,
Blackman has an adequate remedy by way of appeal and that,
therefore, mandamus relief is unavailable.
Blackman, however, argues that, pursuant to this Court's
decision in Ex parte K.R., 210 So. 3d 1106 (Ala. 2016), he was
not required to file his petition within the presumptively
reasonable time prescribed by Rule 21(a)(3) because his
petition implicates the trial court's jurisdiction.8 In Ex
parte K.R., this Court held that the timeliness of a petition
for a writ of mandamus challenging the trial court's
8Blackman also included in his petition a statement of
circumstances that he asserts constitutes good cause for this
Court to consider his untimely petition. Because we determine
that Blackman's claims are jurisdictional, we pretermit
discussion of those circumstances.
13
1190105
jurisdiction was filed beyond the presumptively reasonable
time is "insignificant because 'we take notice of the lack of
jurisdiction ex mero motu.'" 210 So. 3d at 1112 (quoting Ruzic
v. State ex rel. Thornton, 866 So. 2d 564, 568–69 (Ala. Civ.
App. 2003), citing also Lawrence v. Alabama State Pers. Bd.,
910 So. 2d 126, 128 (Ala. Civ. App. 2004)). See also Ex parte
Madison Cty. Dep't of Human Res., 261 So. 3d 381, 385 (Ala.
Civ. App. 2017)("[A] petition for the writ of mandamus that
challenges the jurisdiction of the trial court to enter the
order sought to be vacated need not be filed within the
presumptively reasonable period prescribed by Rule 21."
(citing Ex parte K.R., 210 So. 3d at 112)). Thus, in
accordance with this Court's decision in Ex parte K.R., a
petition
for
a
writ
of
mandamus
filed
outside
the
presumptively reasonable time set forth in Rule 21(a)(3)
nonetheless may be considered by an appellate court insofar as
the
petitioner challenges the jurisdiction of the trial court.
We must determine whether Blackman's double-jeopardy claim is
jurisdictional. If it is jurisdictional, we will consider the
merits of his petition pursuant to K.R. If it is not
14
1190105
jurisdictional, then his untimely filing of a petition
constitutes a waiver of his right to mandamus review.
This Court and the Court of Criminal Appeals have
recognized that certain, but not all, double-jeopardy claims
are jurisdictional and are not subject to waiver by the
defendant. See, e.g., Heard v. State, 999 So. 2d 992 (Ala.
2007)(concluding that a double-jeopardy claim pertaining to
simultaneous convictions for greater and lesser-included
offenses
was
jurisdictional
and,
therefore, that
the
defendant
did not waive his double-jeopardy claim). See also Ex parte
Benefield, 932 So. 2d 92 (Ala. 2005); Ex parte Robey, 920 So.
2d 1069 (Ala. 2004); Straughn v. State, 876 So. 2d 492 (Ala.
Crim. App. 2003); and Rolling v. State, 673 So. 2d 812 (Ala.
Crim. App. 1995). In Ex parte Benefield, this Court concluded
that a defendant's double-jeopardy claim was directed to the
jurisdiction of the trial court to enter a judgment convicting
him
of first-degree sexual abuse and first-degree rape because
first-degree sexual abuse was a lesser-included offense of
first-degree rape. In a special concurrence, Justice Stuart
addressed the scope of jurisdictional double-jeopardy claims:
"I note that today's holding should not be
interpreted as establishing that all double-jeopardy
15
1190105
claims are jurisdictional. For example, if a
double-jeopardy claim is viable before trial, then
the defendant must object by pretrial motion, or the
double-jeopardy claim is foreclosed. Rolling v.
State, 673 So. 2d 812, 815 (Ala. Crim. App. 1995).
Judge Shaw recognized the consistent application of
this
distinction
between
jurisdictional
and
nonjurisdictional
double-jeopardy
claims
in
Straughn
v. State, 876 So. 2d 492, 508–09 (Ala. Crim. App.
2003), stating:
"'Since the decision in Rolling[ v.
State, 673 So. 2d 812 (Ala. Crim. App.
1995)], this Court has continued to hold
that
certain
double-jeopardy
claims
implicate the jurisdiction of the trial
court and, therefore, are not subject to
waiver.
Like Rolling,
most of those
decisions
involved
simultaneous
convictions
for both a greater and a lesser-included
offense.
"'However, caselaw from both this
Court and the Alabama
Supreme
Court
recognizes
that
generally
other
double-jeopardy
claims
are
singularly
constitutional
in
nature
and
are,
therefore, subject to waiver.'"
932 So. 2d at 94–95 (citations and emphasis omitted).
The
present
case
does
not
involve
simultaneous
convictions for both a greater and a lesser-included offense;
it involves the continued prosecution of the same offenses to
which the defendant has already pleaded guilty. The Court of
Criminal Appeals has addressed this as a jurisdictional issue
in Jackson v. State, 659 So. 2d 994 (Ala. Crim. App. 1994). In
16
1190105
Jackson, the Court of Criminal Appeals held that an
involuntary withdrawal of a defendant's guilty plea invokes a
double-jeopardy claim that divests the trial court of
jurisdiction to retry a defendant on the same charge to which
the defendant pleaded. In Jackson, the defendant, who had
initially been charged with escape in the first degree,
pleaded guilty to escape in the second degree, and the trial
court accepted his plea. The State moved to withdraw the
defendant's guilty plea, and the trial court granted the
motion and tried the case. The defendant was found guilty of
escape in the first degree, and the trial court sentenced him
to 15 years in prison. On appeal of the conviction, the Court
of Criminal Appeals stated that Rule 14.4(e), Ala. R. Crim.
P.,
"contemplates that only the party pleading guilty
may request to withdraw the plea. We agree with the
Nevada Supreme Court, which stated in Parker v.
State, 100 Nev. 264, [265,] 679 P.2d 1271, 1272
(1984): 'Like the decision to enter a plea of
guilty, the decision to seek withdrawal of the plea
and proceed to trial is personal to the accused.'
(Emphasis added.)."
Jackson, 659 So. 2d at 995. The court held that the
defendant's
"constitutional
protection
against
double
jeopardy
was violated. Jeopardy attached when the [defendant's] plea
17
1190105
was 'accepted and entered by the court with jurisdiction.' Ex
parte Hergott, 588 So. 2d 911 (Ala. 1991)." 659 So. 2d at 995.
The Court of Criminal Appeals concluded: "Consequently, any
proceedings following the restoration of the case to the trial
docket by the court on the state's motion were beyond the
court's jurisdiction; the judgment of conviction of escape in
the first degree and the sentence imposed as a result of that
conviction are to be set aside." Id. The court remanded the
cause to the trial court with instructions to conduct a new
sentencing hearing on the defendant's original conviction
pursuant to his guilty plea of escape in the second degree.
Id. See also Wright v. State, 664 So. 2d 240 (Ala. Crim. App.
1995)(relying on Jackson to conclude that the trial court
impermissibly granted the State's motion to withdraw the
defendant's guilty plea and remanding the cause to the trial
court to set aside the defendant's conviction and sentence, to
reinstate the defendant's guilty plea, and to conduct a new
sentencing hearing). See also State v. Savage, 961 So. 2d
181, 187 (Ala. Crim. App. 2006)(concluding, among other
things, that the trial court had "no grounds to invalidate the
guilty-plea proceedings and to dismiss the indictment" as a
18
1190105
result of misnomer of the defendant in the indictment, that
jeopardy had attached when the defendant's guilty plea was
accepted, and that the only matter to be resolved by the trial
court after entry of the guilty plea was the defendant's
sentence).
Applying the aforementioned authority, we conclude that
Blackman's double-jeopardy claim is aimed directly at the
trial court's jurisdictional authority to proceed with a
trial
on the very counts to which Blackman has pleaded guilty. Once
Blackman's guilty plea was accepted and entered by the trial
court, jeopardy attached. See Ex parte Wright, 477 So. 2d at
493. See also Ex parte Peterson, 890 So. 2d 990, 993 (Ala.
2004)(explaining that, after a defendant entered a valid
guilty plea to felony murder, "jeopardy attached to the
felony-murder
conviction,
prohibiting
any
further
prosecution"
of the defendant for the same offense). Absent a voluntary
withdrawal of his guilty plea, Blackman was not subject to
further prosecution by the State, and the trial court is
without jurisdiction to proceed with the trial. The ultimate
question presented by Blackman's petition, therefore, is
whether the trial court lacked jurisdiction to set the matter
for and to proceed with the trial. Because his double-jeopardy
19
1190105
claim implicates the trial court's jurisdiction, his petition
for a writ of mandamus is not procedurally barred as untimely.
Ex parte K.R., 210 So. 3d at 1112.
Whether Blackman was appropriately advised of the
potential minimum and maximum sentences for his convictions,
whether his guilty plea was truly voluntarily entered, and
whether the State provided adequate notice of its intent to
prove aggravating factors at sentencing are not questions
currently before this Court.9 The subject of our review is
whether the trial court's sua sponte withdrawal of Blackman's
guilty plea and subsequent decision to set his case for trial
has subjected Blackman to twice being put in jeopardy in
violation of the Fifth Amendment. We conclude that it has. The
9See Durr v. State, 29 So. 3d 922, 925 (Ala. Crim. App.
2009)(holding the defendant's plea to be involuntary when the
defendant was not advised of the applicable sentencing range
and remanding the cause so that defendant would "have the
opportunity to withdraw his guilty plea and to enter another
plea after he has been informed of the applicable sentencing
range" (emphasis added)). See also Williams v. State, 155 So.
3d 326, 330 (Ala. Crim. App. 2014), and Laakkonen v. State,
[Ms. CR-17-1146, April 12, 2019] ___ So. 3d ___ (Ala. Crim.
App. 2019). See further Hyde v. State, 185 So. 3d 501, 512–13
(Ala. Crim. App. 2015)(holding that the trial court exceeded
its discretion in imposing a prison sentence and departing
from the presumptive sentencing standards when there were no
aggravating factors or other evidence before it justifying a
departure from the non-prison recommendation).
20
1190105
trial court lacked the authority to withdraw Blackman's guilty
plea on its own motion. No provision for such a procedure
exists in the law. The decision whether to withdraw the
guilty plea and to proceed to trial was a decision only
Blackman was entitled to make. Jackson, 659 So. 2d at 995.
That decision-making power does not shift to the trial court
in the face of what the trial court perceives to be an
involuntary guilty plea. In addition, as discussed supra, the
acceptance and entry of Blackman's guilty plea has divested
the trial court of jurisdiction to set the matter for a trial.
After accepting and entering Blackman's guilty plea, the only
remaining matter pending under the trial court's jurisdiction
was the imposition of Blackman's sentences. See Savage, 961
So. 2d at 183. Accordingly, Blackman's guilty plea entered
and accepted by the Court on March 7, 2019, is due to be
reinstated, the trial court must vacate its May 2, 2019, order
setting the case for trial, and the trial court must proceed
to sentencing.
Conclusion
Blackman has demonstrated a clear legal right to the
relief he seeks. Accordingly, we issue the writ and direct the
trial court to set aside its May 2, 2019, order setting the
21
1190105
case for trial, to reinstate Blackman's guilty plea, and to
proceed to sentencing on Blackman's guilty-plea convictions.
PETITION GRANTED; WRIT ISSUED.
Bolin, Wise, Bryan, Stewart, and Mitchell, JJ., concur.
Parker, C.J., and Sellers and Mendheim, JJ., concur in
the result.
Shaw, J., dissents.
22
1190105
SHAW, Justice (dissenting).
I respectfully dissent. This Court is directing the
trial court to reinstate the guilty plea of the petitioner,
James Antuam Blackman, who contends that it was not knowingly,
intelligently, and voluntarily entered. I do not believe that
the petitioner has demonstrated a clear legal right to such
relief.
This petition was filed too late. The timeliness of a
petition for a writ of mandamus can be excused if it
challenges the trial court's jurisdiction. The decision in Ex
parte Jackson, 659 So. 2d 994 (Ala. Crim. App. 1994), appears
to
indicate that Blackman's claim is jurisdictional in
nature.
In that case, the defendant pleaded guilty to escape in the
second degree. The State filed a motion to withdraw that
plea, which the trial court granted. Rule 14.4(e), Ala. R.
Crim. P., states, in pertinent part: "The court shall allow
withdrawal of a plea of guilty when necessary to correct a
manifest injustice." The court in Jackson construed this to
mean that "[t]he rule contemplates that only the party
pleading guilty may request to withdraw the plea" and that the
trial court thus erred in granting the State's motion to set
23
1190105
it aside. 659 So. 2d at 995.10 The court went on to hold that
further proceedings violated the defendant's double-jeopardy
rights and that the trial court also lacked jurisdiction:
"The appellant's constitutional protection against
double jeopardy was violated. Jeopardy attached when
the appellant's plea was 'accepted and entered by
the court with jurisdiction.' Ex parte Hergott, 588
So.
2d
911
(Ala.
1991).
Consequently,
any
proceedings following the restoration of the case to
the trial docket by the court on the state's motion
were beyond the court's jurisdiction ...."
Jackson, 659 So. 2d at 995.
I have concerns that Jackson was incorrectly decided. As
discussed in the main opinion, some double-jeopardy claims are
jurisdictional in nature; those generally involve claims of
"simultaneous
convictions
for
both
a
greater
and
a
lesser-included offense." Straughn v. State, 876 So. 2d 492,
508 (Ala. Crim. App. 2003). Generally, the "failure to file
a pretrial motion raising a double jeopardy claim forecloses
subsequent assertion of that issue"; this rule applies "only
if the double jeopardy claim is viable prior to trial."
Rolling v. State, 673 So. 2d 812, 815 (Ala. Crim. App. 1995).
10I see nothing in the rule strictly limiting who may be
allowed to withdraw the plea and would be cautious in finding
a rigid rule that, if the trial court notices a manifest
injustice, it is barred from acting to correct that injustice
without a formal motion to withdraw filed by the defendant.
24
1190105
Further, in Ex parte Ziglar, 669 So. 2d 133, 135 (Ala. 1995),
this Court held that because the defendant in that case did
not raise a double-jeopardy objection in the trial court, his
challenge to a third trial on the same charge was waived: "A
defense of double jeopardy must be timely raised at trial, or
else it is waived."
Blackman's claim that jeopardy attached when he pleaded
guilty and that he cannot be placed in jeopardy again, like
the claim in Jackson, is essentially the same type of claim in
Ziglar: he is twice being placed in jeopardy for the same
offense. Such claims fall into the category of waivable
double-jeopardy issues that do not impact the jurisdiction of
the trial court. The contrary rationale behind the holding in
Jackson, however, is unclear. The Jackson court held that
"[j]eopardy attached when the appellant's plea" was entered
and that the trial court was without jurisdiction to proceed
to withdraw the plea without the defendant's consent. 659 So.
2d at 995. This suggests that the defendant essentially
waives the attachment of jeopardy and the denial of further
jurisdiction when the defendant withdraws his or her guilty
plea. But if the attachment of jeopardy is waivable by a
defendant, then it does not create a jurisdictional barrier to
25
1190105
further proceedings contrary to the plea. See Heard v. State,
999 So. 2d 992, 1006 (Ala. 2007) (holding that violations of
double-jeopardy rights that implicate a trial court's
jurisdiction "could not be waived").11 In other words, if the
trial court retains jurisdiction over the case when a
defendant,
after
jeopardy
attaches, consents
to
the
withdrawal
of his plea, then the attachment of jeopardy similarly would
not deprive the trial court of jurisdiction if the plea is
withdrawn without the defendant's consent. A trial court's
act of withdrawing a plea without a defendant's consent might
be erroneous, but I see no rationale for holding that it
deprives the trial court of jurisdiction.12
The decision in Jackson is precedent, but it is not
binding on this Court. Cf. Diversicare Leasing Corp. v.
Hubbard, 189 So. 3d 24, 39 n.1 (Ala. 2015), and Ala. Code
11The decision in Ex parte Hergott, 588 So. 2d 911 (Ala.
1991), which Jackson cites, contains nothing suggesting that
a double-jeopardy violation stemming from a trial court's
erroneous decision to withdraw a guilty plea implicates its
jurisdiction.
12This Court has recognized that, in the past, the
appellate courts of this State have erroneously categorized
issues as affecting jurisdiction when they do not. See
generally Ex parte BAC Home Loans Servicing, LP, 159 So. 3d 31
(Ala. 2013), and Ex parte Seymour, 946 So. 2d 536 (Ala. 2006).
26
1190105
1975, § 12-3-16. Further, its substantive holding is not
applied in this case; rather, it is used to bypass a
procedural barrier to Blackman's petition. Consequently, I
do
not believe that Jackson excuses the tardiness of the petition
here.
As to the substantive issue in this case, Blackman
contends that the trial court erred by sua sponte withdrawing
his guilty plea. As noted in the main opinion, after Blackman
pleaded guilty, the State sought consent from the trial court
to show aggravating factors that would allow departure from
the
non-prison
sentence
specified
in
the
presumptive
sentencing standards, which consent the trial court granted.
Blackman filed an objection in which he argued, among other
things:
"As discussed at length above, a defendant must be
apprised of the correct maximum and minimum
sentences for his guilty plea to be knowingly,
intelligently,
and
voluntarily
entered.
Mr.
Blackman entered his plea believing that the
sentencing guidelines would apply since the State
had not given notice of intent to assert aggravating
factors. However, aggravating factors –- if proven
–- would give the Court the option of a departure
sentence pursuant to the statutory sentencing range.
If the State is excused from its failure to give
timely notice (or at least any notice prior to the
plea), then it would mean Mr. Blackman could not
have knowingly, intelligently, and voluntarily
entered his pleas. Accordingly, a sentence outside
27
1190105
the presumptive guidelines would be unconstitutional
under the aforementioned case law."
(Citation omitted; emphasis added.)
The trial court could have construed this as an argument
that, if the trial court intended to allow the State to show
aggravating factors, then the plea had not been knowingly,
intelligently, and voluntarily entered because Blackman
arguably did not know the correct possible minimum and maximum
range of punishment. In such circumstances, I believe that a
trial court, considering the substance of the filing, could
have construed it as a motion to withdraw the plea.
However, the trial court, in its April 15, 2019, order
withdrawing the plea, also set aside its consent to allow the
State to prove aggravating factors. Thus, it removed the very
basis for making the plea involuntary and subject to
withdrawal. Further, in a subsequent order denying a motion
by Blackman to set aside its April 15 order, the trial court
seemed to make clear that it was acting on its own motion.
That aside, according to Blackman, the State later sought
consent again to prove aggravating factors, and the trial
court "granted" consent on April 22, 2019. So, under those
circumstances, Blackman is asking this Court to reinstate a
28
1190105
guilty plea that, as the case stands, he argues was not
knowing, intelligent, and voluntary when entered. He
contends
that he may waive the issue concerning the involuntariness of
his plea; indeed, by having this Court reinstate it, he may
have waived his ability to withdraw it in the future or have
it set aside if he is sentenced to prison. But I disagree
that he has a clear legal right to seek reinstatement of the
plea in an untimely petition for a writ of mandamus. Thus, I
respectfully dissent from granting the petition and issuing
the writ.
29 | June 12, 2020 |
7134c276-8479-484d-838b-dfe3e525f8b2 | Ex parte Nicholas Andre Haulcomb. | N/A | 1190174 | 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
June 12, 2020
1190174
Ex parte Nicholas Andre Haulcomb. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Nicholas Andre Haulcomb v. State of Alabama)
(Mobile Circuit Court: CC-18-1754; Criminal Appeals :
CR-18-0245).
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 June 12, 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 12th day of June, 2020.
l i t a
Clerk, Supreme Court of Alabama | June 12, 2020 |
442f1202-e85b-4087-8abf-3c48bdf14a43 | Ex parte Chanze Jones. | N/A | 1180839 | 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
June 12, 2020
1180839
Ex parte Chanze Jones. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Chanze Jones v. State of Alabama) (Jefferson Circuit Court:
CC-16-714; Criminal Appeals :
CR-17-1142).
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 June 12, 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 12th day of June, 2020.
l i t a
Clerk, Supreme Court of Alabama | June 12, 2020 |
cde1e257-a20e-4c64-9150-99a8d3e37bac | Plaintiff v. Defendant | 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 | June 12, 2020 |
95f30d52-c791-4f15-a6cb-09b31901834c | Jennifer Taylor Hayes and Timothy Hayes v. Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc., Asset Backed Pass-Through Certificates, Series 2004-R5, and Ocwen Loan Servicing, LLC | N/A | 1190002 | Alabama | Alabama Supreme Court | REL: June 5, 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
____________________
1190002
____________________
Jennifer Taylor Hayes and Timothy Hayes
v.
Deutsche Bank National Trust Company, as trustee of
Ameriquest Mortgage Securities, Inc.,
Asset Backed Pass-Through Certificates, Series 2004-R5,
and Ocwen Loan Servicing, LLC
Appeal from Baldwin Circuit Court
(CV-17-901069)
MENDHEIM, Justice.
AFFIRMED. NO OPINION.
Bolin, Wise, Bryan, Sellers, and Mitchell, JJ., concur.
Parker, C.J., and Stewart, J., dissent.
1190002
PARKER, Chief Justice (dissenting).
Jennifer Taylor Hayes and Timothy Hayes appeal from a
summary judgment entered against them by the Baldwin Circuit
Court on their counterclaim against Deutsche Bank National
Trust Company, as trustee of Ameriquest Mortgage Securities,
Inc., Asset Backed Pass-Through Certificates, Series 2004-R5,
and Ocwen Loan Servicing, LLC (hereinafter referred to
collectively as "the Bank"). Because the Hayeses provided
substantial evidence that the Bank breached the terms of their
mortgage by failing to credit payments made by the Hayeses, I
would reverse the summary judgment.
In 2004, the Hayeses executed a mortgage on their house
in Fairhope to secure a loan from Deutsche Bank National Trust
Company. By 2013, they had fallen behind on their payments.
The Bank foreclosed and, when the Hayeses did not move out,
sued for ejectment in the Baldwin Circuit Court. The Hayeses
counterclaimed, alleging breach of contract and wrongful
foreclosure, arguing that the Bank had failed to apply certain
payments to their account. The terms of the loan required the
Bank to apply payments or to return them.
2
1190002
The Bank moved for a summary judgment on the Hayeses'
counterclaim. The Hayeses responded to the Bank's motion with
deposition testimony of Timothy Hayes that "there were many
payments made '05, '06, '07, '08, '09, always different
mortgage servicing companies. There were payments made in
those periods. They're not being credited at all." The
circuit court entered a summary judgment in favor of the Bank,
and the Hayeses appeal.
This Court reviews an appeal from a summary judgment de
novo, that is, "[w]e apply the same standard of review the
trial court used in determining whether the
evidence presented
to the trial court created a genuine issue of material fact."
Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792
So. 2d 369, 372 (Ala. 2000). To prevail on a motion for a
summary judgment, the movant "must make a prima facie showing
that there are no genuine issues of material fact and that he
is entitled to a judgment as a matter of law. ... If this
showing is made, the burden then shifts to the nonmovant to
rebut the movant's prima facie showing by 'substantial
evidence.'" Lee v. City of Gadsden, 592 So. 2d 1036, 1038
(Ala. 1992). "Substantial evidence" is "evidence of such
3
3
1190002
weight and quality that fair-minded persons in the exercise of
impartial judgment can reasonably infer the existence of the
fact sought to be proved." West v. Founders Life Assurance
Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989); § 12-21-12,
Ala. Code 1975.
The Hayeses argue that they presented substantial
evidence that the Bank had breached the terms of the loan and
that the foreclosure was therefore wrongful. In response, the
Bank argues that Timothy's deposition testimony does not
constitute substantial evidence because it was uncorroborated
by any financial records or documents and was insufficiently
specific to satisfy Rule 56(e), Ala. R. Civ. P. I disagree.
This Court has never held that, in a breach-of-contract
or
wrongful-foreclosure
action,
testimony
must
be
corroborated
by financial records or documents to constitute substantial
evidence. Indeed, it is hornbook law that testimony itself
may stand alone as substantial evidence of the existence of a
fact. See Fleming James, Jr., & Geoffrey C. Hazard, Jr.,
Civil Procedure 270 (2d ed. 1977) ("Where there is direct
testimony of the existence of a simple fact ... such testimony
is generally held in civil cases to satisfy the test of
sufficiency -- it will, as we say, justify or warrant a
4
4
1190002
finding by the trier that the fact existed."), Joseph L.
Lester, Alabama Evidence § 3:16 (2019 ed.) ("[T]he testimony
of one percipient witness to the truth of a certain material
proposition of fact will satisfy the sufficiency requirement
for that proposition."); cf. Smith v. State, 53 Ala. App. 27,
29, 296 So. 2d 925, 927 (Crim. App. 1974) (holding that, at
trial, "[a] fact may be established as firmly by the testimony
of one witness as by the testimony of an entire community").
Furthermore, this Court has held that corroboration goes to
credibility, and credibility is a determination for the
finder
of fact. See Hardy v. Hardin, 200 So. 3d 622, 633 n.9 (Ala.
2016) ("In Hardin's appellate brief, he characterizes Hardy's
testimony as 'self serving' and 'uncorroborated.' But it is
the role of the fact-finder ... to assess credibility and to
resolve conflicts in the evidence."). Thus, even though
Timothy's deposition testimony was not corroborated by
documents, it was substantial evidence.
Moreover, Timothy's testimony satisfied Rule 56(e)
because it contained specific facts, not legal conclusions.
This Court has addressed the specificity requirement of Rule
56(e). Adams v. Tractor & Equip. Co., 180 So. 3d 860, 870
(Ala. 2015). In that case, the defendant moved for a summary
5
5
1190002
judgment, and the plaintiff submitted an affidavit stating
that he had reviewed a contract provision but had not signed
it. There, as here, the movant argued that the statement was
"conclusory" and not sufficiently specific. This Court held:
"Although [the plaintiff's] ... affidavit was not detailed, it
contained a recitation of specific facts -- that he had
reviewed the guaranty provision at issue and that he did not
sign the guaranty provision -- that constituted substantial
evidence demonstrating a genuine issue of material fact ...."
180 So. 3d at 870. Adams also cited Bradley Outdoor, Inc. v.
Colonial Bank, 952 So. 2d 359, 362–63 (Ala. 2006), for the
proposition
that
"an
affidavit
that
contained
legal
conclusions, not statements of fact, was insufficient to
create a genuine issue of material fact." Adams, 180 So. 3d
at 870. Thus, under the distinction recognized by Adams,
"specific facts" means historical facts as opposed to legal
conclusions. In this case, the facts Timothy testified to --
that he made payments to the Bank during certain years and
that those payments were not credited to his account -- are
historical facts, not legal conclusions. Thus, this testimony
satisfied Rule 56(e).
6
6
1190002
Accordingly,
Timothy's
deposition
testimony
was
substantial evidence in support of the Hayeses' claim of
breach of contract and wrongful foreclosure. Because this
evidence created a genuine issue of material fact, summary
judgment was improper. Therefore, I would reverse the summary
judgment.
7
7 | June 5, 2020 |
0e408edb-98ca-4f36-9916-6ba967494902 | Edward E. May v. Alabama State Bar | N/A | 1180570 | Alabama | Alabama Supreme Court | REL: June 5, 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
____________________
1180570
____________________
Edward E. May
v.
Alabama State Bar
Appeal from the Disciplinary Board of the Alabama State Bar
(ASB-18-903)
MITCHELL, Justice.
Edward E. May appeals from a decision of the Disciplinary
Board of the Alabama State Bar ("the Board") disbarring him.
We affirm.
1180570
Facts and Procedural History
May was admitted to the Alabama State Bar ("the Bar") on
September 26, 1980. On August 14, 2014, he entered a guilty
plea with the Bar for failure to employ proper trust-
accounting procedures in violation of the Alabama Rules of
Professional Conduct, and he was suspended from the practice
of law. That suspension was put in abeyance for a
probationary period (initially two years, but extended to
four
following two interim violations) scheduled to end on August
13, 2018. On April 4, 2018, after he violated the terms of
the probationary period for a third time, the Board revoked
May's probation and suspended him from the practice of law for
91 days. May did not request reinstatement after the
suspension expired on July 4, 2018, and thus remained
suspended from practicing law.
While he was suspended, May represented parties in two
separate legal matters between May and August 2018. Although
May did not request compensation for his work in either
matter, he also did not disclose to the parties he represented
or to opposing parties that he had been suspended from the
practice of law.
2
1180570
First, May represented his personal doctor before the
Alabama State Board of Medical Examiners with respect to a
medical-licensing issue. As part of that representation, May
identified himself as the attorney of record, submitted
documents falsely stating he was authorized to represent his
doctor, appeared at more than one proceeding, entered into
binding stipulations, and ultimately agreed to a
binding legal
agreement on behalf of his doctor.
Second, May attended the sworn examination of a suspect
being questioned under oath by an insurance company about an
alleged arson. The suspect was represented at the time by
May's son, who was also an attorney. May objected on behalf
of his son's client throughout the proceeding, and his son's
client testified during the examination that May had
represented him in a criminal matter on a previous date while
May was suspended.
On January 3, 2019, the Bar filed charges against May for
violating Rule 5.5 (Unauthorized Practice of Law) and Rules
8.4(d) and (g) (Misconduct) of the Alabama Rules of
Professional Conduct. On April 10, 2019, May appeared pro se
at a hearing before the Board. At the hearing, May admitted
3
1180570
that he had falsely represented that he was an authorized
attorney, though he also stated his belief that neither
individual he represented while suspended thought he
was
their
legal counsel. Based on his admissions and the evidence
presented by the Bar, the Board found May guilty of violating
Rules 5.5, 8.4(d), and 8.4(g).
The Bar then asked the Board to disbar May in accordance
with the guidelines in Standards 6.11 and 8.1 of the Alabama
Standards for Imposing Lawyer Discipline. In imposing the
appropriate
discipline
for
May,
the
Board
considered
aggravating and mitigating factors, as required by Standard
3.0(d). The Board found five of the aggravating factors
listed in Standard 9.22: (a) prior disciplinary history; (b)
dishonest or selfish motive; (c) a pattern of misconduct; (d)
multiple offenses; and (i) substantial experience in the
practice of law. The Board also found two of the mitigating
factors listed in Standard 9.32: (b) an absence of a dishonest
or selfish motive and (l) remorse. Based on the disciplinary
guidelines and the findings of aggravating and mitigating
factors, the Board issued a Report and Order on April 11,
2019, disbarring May. May appealed.
4
1180570
Standard of Review
In reviewing a disciplinary order of the Board, this
Court "will presume that the Board's decision on the facts is
correct; and the disciplinary order will be affirmed unless
the decision on the facts is unsupported by clear and
convincing evidence, or the order misapplies the law to the
facts." Hunt v. Disciplinary Bd. of the Alabama State Bar,
381 So. 2d 52, 54 (Ala. 1980). All legal conclusions by the
Board, however, are reviewed de novo. Tipler v. Alabama State
Bar, 866 So. 2d 1126, 1137 (Ala. 2003).
Analysis
May contends that the Board erred in disbarring him
because, he says, his violations of the suspension order did
not cause an injury to a client and because, he says, the
Board should have considered additional mitigating factors.
We reject those arguments.
In disbarring May, the Board relied on the guidelines
provided in Standards 6.11 and 8.1(a) of the Alabama Standards
for Imposing Lawyer Discipline. We need not discuss the
Board's reliance on Standard 6.11 because we hold that the
5
1180570
Board's disbarment order was supported by Standard 8.1(a),
which states:
"Disbarment is generally appropriate when a lawyer:
"(a) Intentionally or knowingly violates the
terms of a prior disciplinary order and such
violation causes injury or potential injury to a
client, the public, the legal system, or the
profession ...."
May does not dispute that his actions violated the order
of suspension. Instead, he argues that he is not subject to
disbarment because, he says, his actions did not cause injury
to his clients. Under Standard 8.1(a), the Board was required
to find that May's violations caused an injury or a potential
injury to disbar him. The first sentence of the definition of
"injury" in the Alabama Standards for Imposing Lawyer
Discipline tracks the language of Standard 8.1(a), defining
"injury" as "harm to a client, the public, the legal system,
or the profession that results from a lawyer's misconduct."
The second sentence of the definition discusses the level of
injury and states that "a reference to 'injury' alone
indicates any level of injury greater than 'little or no'
injury." Standards, § II, Definitions. Although the Bar did
not attempt to prove that May's violations directly caused an
6
1180570
injury to a client, it argued that May's violations injured
the public and the legal system, to which he owed ethical
duties under the Alabama Standards for Imposing Lawyer
Discipline. Those ethical duties require every lawyer to
"exhibit the highest standards of honesty and integrity" and
"to not engage in conduct involving dishonesty, fraud or
interference with the administration of justice." Standards,
§ I, Ethical Duties. A lawyer also owes an ethical duty to
the legal system to "operat[e] within the bounds of the law."
Id. We agree with the Bar. By participating in more than one
legal matter while he was suspended, May knowingly breached
those ethical duties to the detriment of the public and the
legal system, making him subject to disbarment under Standard
8.1(a).
We now evaluate whether the Board, in ordering May's
disbarment, properly considered and weighed the aggravating
and mitigating factors set forth in Standard 9.0 of the
Alabama Standards for Imposing Lawyer Discipline, as required
by Standard 3.0(d). The Board considered those factors to
determine whether a discipline other than disbarment was
justified. The Board found five aggravating factors as set
7
1180570
forth in Standard 9.22(a)-(d) and (i). First, the Board found
that May failed to comply with a variety of disciplinary
measures imposed by the Board over a period of four years.
Second, the Board found that May acted dishonestly by
submitting false documents to the Alabama Board of Medical
Examiners and by acting as legal counsel for two individuals
while he was suspended. Third, the Board found that after
practicing for 39 years, including four years while on
probation, May had sufficient experience to know that he was
violating his suspension order. Fourth, the Board found that
May violated his suspension order multiple times during his
91-day suspension but never applied for reinstatement even as
he continued to represent parties. Finally, the Board found
that May's actions presented a pattern of misconduct that
continued even after an order of suspension was issued. These
aggravating factors are supported by the record and indicate
that maintaining May's suspended status or administering a
public reprimand was unlikely to be rehabilitative.
The Board found two mitigating factors set forth in
Standard 9.32 to be applicable: (b) absence of a dishonest or
selfish motive and (l) remorse. The record indicates that May
8
1180570
also asked the Board to consider his desire to retire after 40
years of practice "not in disgrace," his plan not to be active
in legal practice going forward, and his belief that he had
never "made a mistake where a client suffered" as compelling
reasons to allow him to maintain his law license. Although
May now argues that the Board should have considered
additional mitigating factors under Standard 9.32 of the
Alabama Standards for Imposing Lawyer Discipline, he did not
present those additional factors to the Board during the
penalty phase of the proceeding; therefore, he has waived
those arguments on appeal. Clements v. Alabama State Bar, 100
So. 3d. 505, 512 (Ala. 2012). The Board properly found the
existence of mitigating factors and also properly concluded
that those factors were outweighed by the applicable
aggravating factors, thus supporting the Board's decision to
disbar May under Standard 8.1(a).
Conclusion
Based upon relevant provisions in the Alabama Standards
for Imposing Lawyer Discipline, the evidence presented, and
the aggravating factors and the mitigating factors found by
9
1180570
the Board, the Board's order disbarring May is appropriate.
We affirm.
AFFIRMED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers,
Mendheim, and Stewart, JJ., concur.
10 | June 5, 2020 |
96bf376d-e17c-4385-ba99-a9bf2da33da2 | Ex parte Lakeith Antwon Smith. | N/A | 1190709 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 10, 2020
1190709
Ex parte Lakeith Antwon Smith. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Lakeith Antwon Smith v. State of Alabama) (Elmore Circuit
Court: CC-16-430; Criminal Appeals : CR-17-0845).
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 |
ea83c101-e3ac-46a1-80a4-b3ba702bee36 | Ex parte Kevin Lynn Lamb. | N/A | 1190631 | 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
June 12, 2020
1190631
Ex parte Kevin Lynn Lamb. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APp Ea LS (In re: Kevin Lynn Lamb v. State of Alabama) (Madison Circuit Court:
CC-15-5166.61; Criminal Appeals :
CR-19-0302).
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 June 12, 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 12th day of June, 2020.
l i t a
Clerk, Supreme Court of Alabama | June 12, 2020 |
6c0aaea4-6d5b-404e-98d0-90c07a74e936 | Tamikia Everheart v. Rucker Place, LLC, and Savoie Catering, LLC | N/A | 1190092 | 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
June 19, 2020
1190092
Tamikia Everheart v. Rucker Place, LLC, and Savoie Catering, LLC (Appeal from
Jefferson Circuit Court: CV-16-903634).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on June 19, 2020:
Application Overruled. No Opinion. Sellers, J. - Bolin, Wise, Mendheim, Stewart, and
Mitchell, JJ., concur. Parker, C.J., and Shaw, and Bryan, JJ., dissent.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on April 24, 2020:
Affirmed. Sellers, J. - Bolin, Wise, Mendheim, Stewart, and Mitchell, JJ., concur. Parker,
C.J., and Shaw, and Bryan, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Ann D. Wilson, as Acting 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 19th day of June, 2020.
Acting Clerk, Supreme Court of Alabama | June 19, 2020 |
bbb6a9aa-115e-42cc-9fb6-c7b1a3317ddb | Ex parte Darrin Garner. | N/A | 1190142 | 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
June 12, 2020
1190142
Ex parte Darrin Garner. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: Darrin Garner v. City of Florence, Alabama, a municipal corporation, and the
Civil Service Board of the City of Florence) (Lauderdale Circuit Court: CV-17-900171; Civil
Appeals :
2180127).
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 June 12, 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 12th day of June, 2020.
Clerk, Supreme Court of Alabama | June 12, 2020 |
62d249a1-db49-43df-8d83-7958d0ef7419 | Byron Porter Williamson v. Donald Porter, et al. | N/A | 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 |
d82a66ae-2c86-43bd-bd45-f603cffb53f3 | Ex parte A.S. | N/A | 1190559 | 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
June 12, 2020
1190559
Ex parte AS. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: A.S. v. Madison County Department of Human Resources) (Madison Juvenile Court:
JU-09-1679.08; Civil Appeals :
2180804).
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 June 12, 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 12th day of June, 2020.
l i t a
Clerk, Supreme Court of Alabama | June 12, 2020 |
36c7905a-6452-4041-9719-27fd962622a0 | Ex parte A.S. | N/A | 1190564 | 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
June 12, 2020
1190564
Ex parte AS. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: A.S. v. Madison County Department of Human Resources) (Madison Juvenile Court:
JU-09-1681.04; Civil Appeals :
2180817).
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 June 12, 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 12th day of June, 2020.
l i t a
Clerk, Supreme Court of Alabama | June 12, 2020 |
42a39486-9a98-4485-857b-557d6278fcbc | Ex parte Clayton Antwain Shanklin. | N/A | 1180254 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 22, 2020
1180254
Ex parte Clayton Antwain Shanklin. PETITION FOR WRIT OF CERTIORARI TO
THE COURT o F
CRIMINAL APPEALS (In re: Clayton Antwain Shanklin v. State of Alabama)
(Walker Circuit Court: CC-10-76; Criminal Appeals :
CR-17-0416).
CORRECTED CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on May 22, 2020:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers,
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 22nd day of May, 2020.
Clerk, Supreme Court of Alabama | May 22, 2020 |
32637512-d9da-4e32-931d-3e323c066063 | Ex parte Carrol Joe Driskell. | N/A | 1190806 | 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
1190806
Ex parte Carrol Joe Driskell. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Carol Joe Driskell v. Alabama Department of Corrections)
(Montgomery Circuit Court: CV-19-375; Criminal Appeals :
CR-19-0265).
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. Parker, C.J. - Shaw, Bryan, Mendheim, and Mitchell, JJ.,
concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 21st day of August, 2020.
l i t a
Clerk, Supreme Court of Alabama | August 21, 2020 |
75e66c45-967a-4e3a-9a94-eed962568436 | Ex parte Brian Andre Simpson. | N/A | 1190624 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 12, 2020
1190624
Ex parte Brian Andre Simpson. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Brian Andre Simpson v. State of Alabama) (Madison Circuit
Court: CC-18-2698; Criminal Appeals : CR-18-0531).
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 June 12, 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 12th day of June, 2020.
Clerk, Supreme Court of Alabama | June 12, 2020 |
28ba22d1-81fc-4b9e-b0da-dd1d5d2e34b3 | Mary W. Weatherspoon and Elizabeth W. McElroy, as administratrix of the Estate of Jakobie E. Johnson, a deceased minor v. Rucker Place, LLC, and Savoie Catering, LLC | N/A | 1190116 | 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
June 19, 2020
1190116
Mary W. Weatherspoon and Elizabeth W. McElroy, as administratrix of the Estate
of Jakobie E. Johnson, a deceased minor v. Rucker Place, LLC, and Savoie Catering, LLC
(Appeal from Jefferson Circuit Court: CV-16-903644).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on June 19, 2020:
Application Overruled. No Opinion. Sellers, J. - Bolin, Wise, Mendheim, Stewart, and
Mitchell, JJ., concur. Parker, C.J., and Shaw, and Bryan, JJ., dissent.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on April 24, 2020:
Affirmed. Sellers, J. - Bolin, Wise, Mendheim, Stewart, and Mitchell, JJ., concur. Parker,
C.J., and Shaw, and Bryan, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Ann D. Wilson, as Acting 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 19th day of June, 2020.
Acting Clerk, Supreme Court of Alabama | June 19, 2020 |
17f5df21-c96b-4ed0-b821-15a0ac7c7043 | Ex parte Arthur Dean Hanson. | N/A | 1190593 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 12, 2020
1190593
Ex parte Arthur Dean Hanson. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Arthur Dean Hanson v. State of Alabama) (Marion Circuit Court:
CC-16-285; Criminal Appeals : CR-18-0811).
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 June 12, 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 12th day of June, 2020.
Clerk, Supreme Court of Alabama | June 12, 2020 |
ee8e8065-da0b-4a12-8821-1f5d3b200f52 | Ex parte Vintage Homes, LLC. | N/A | 1180169 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 22, 2020
1180169
Ex parte Vintage Homes, LLC. PETITION FOR WRIT OF MANDAMUS: CIVIL (In
re: Glenda Burson, et al. v. Vintage Homes, LLC, et al.) (Jefferson Circuit Court:
CV-08-317).
ORDER
The petition for writ of mandamus in this cause is denied.
MITCHELL, J. - Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, and Stewart, JJ.,
concur. Parker, C.J., dissents.
Witness my hand this 22nd day of May, 2020.
/ra | May 22, 2020 |
4707643b-7a3e-4cf3-98eb-3268c1a16584 | Ex parte TD Bank US Holding Company | N/A | 1180998 | Alabama | Alabama Supreme Court | Rel: May 29, 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
____________________
1180998
____________________
Ex parte TD Bank US Holding Company and TD Bank, National
Association
PETITION FOR WRIT OF MANDAMUS
(In re: Dynamic Civil Solutions, Inc., and Bolaji Kukoyi
v.
ServisFirst Bank; A Prime Location, Inc.; Jessyca McKnight;
TD Bank US Holding Company; TD Bank, National Association;
Ozoria Global, Inc.; and Manuel Diaz Ozoria)
(Jefferson Circuit Court, CV-17-904639)
STEWART, Justice.
1180998
TD Bank, National Association, and TD Bank US Holding
Company1 (hereinafter referred to collectively as "TD Bank")
petition this Court for a writ of mandamus directing the
Jefferson Circuit Court ("the trial court") to dismiss claims
filed against them by Bolaji Kukoyi and Dynamic Civil
Solutions, Inc.2 (hereinafter referred to collectively as "the
plaintiffs"), on the basis of a lack of personal jurisdiction.
We grant the petition and issue the writ.
Facts and Procedural History
In January 2017, Kukoyi retained Jessyca McKnight, a
real-estate agent and broker employed with A Prime Location,
Inc., d/b/a A Prime Real Estate Location ("Prime"), to assist
him in purchasing a house. Kukoyi made an offer on a house,
the offer was accepted, and the closing was scheduled to take
place at attorney David Condon's office in Birmingham. Before
the closing date, McKnight and Prime received an e-mail
purportedly
from
Condon's
paralegal instructing Kukoyi
to
wire
1According to the petitioners, TD Bank US Holding Company
is a holding company that does not provide banking services in
its own name.
2Dynamic Civil Solutions, Inc., is identified in the
plaintiffs' complaint
as
a
domestic
corporation doing
business
in Alabama; Kukoyi is identified as its principal.
2
1180998
funds for the closing costs one week before the closing date
to an account at a TD Bank location in Florida. McKnight and
Prime forwarded the e-mail to Kukoyi. According to Kukoyi, he
questioned the instructions but was assured by McKnight and
Prime that wiring the funds was necessary for the closing to
go forward.
On January 27, 2017, Kukoyi initiated a wire transfer in
the amount of $125,652.74 from an account he owned jointly
with
Dynamic
Civil
Solutions
with
ServisFirst
Bank
("ServisFirst") to the account at TD Bank as instructed in the
e-mail McKnight and Prime had forwarded to
Kukoyi. Unbeknownst
to the plaintiffs, the account to which Kukoyi wired the funds
had been opened by a company known as Ozoria Global, Inc.
According to
the
plaintiffs, Kukoyi contacted ServisFirst
on February 3, 2017, to determine whether the funds had been
transferred. At that time, ServisFirst discovered that the
wire transfer was fraudulent and had not been completely
processed. Kukoyi requested that ServisFirst put a stop-
payment on the wire transfer, and ServisFirst advised TD Bank
that the transfer had been fraudulent and requested that TD
Bank reverse the transfer. According to the plaintiffs, as of
3
1180998
February 3, 2017, the funds had not been credited to any
account at TD Bank. The plaintiffs asserted that the Ozoria
Global, Inc., account had been flagged by TD Bank for
suspicious activity and that, as a result, the funds had been
automatically placed on a hold.
On February 6, 2017, TD Bank forwarded ServisFirst a
wire-transfer charge
and
instructed
ServisFirst
to
contact
its
corporate security office. ServisFirst advised TD Bank's
corporate security department of what had occurred. According
to the plaintiffs, the funds were still on hold at that time.
At some point thereafter, however, TD Bank released the funds
to the Ozoria Global, Inc., account and stopped communicating
or cooperating with ServisFirst and refused to return the
funds.
On November 3, 2017, the plaintiffs filed an action in
the trial court asserting various causes of action against TD
Bank and other defendants in relation to the wire transfer.
The
plaintiffs
thereafter
amended
their
complaint three
times.
On March 15, 2019, TD Bank filed a motion to dismiss the
claims against it based on a lack of personal jurisdiction. In
its motion, TD Bank argued that it was not subject to general
4
1180998
or specific personal jurisdiction. TD Bank asserted that its
main office was located in Delaware and that its principal
place of business was in New Jersey. TD Bank asserted that it
had no office, store, branch location, automatic-teller
machine, or other facility in the State of Alabama. TD Bank
also asserted that it had not directed any advertising or
marketing efforts to residents or businesses in Alabama. TD
Bank further asserted that any of the alleged activities made
the basis of the plaintiffs' complaint occurred out of state
because a Florida account received a wire transfer that would
have been processed through TD Bank's servers in Toronto,
Canada. TD Bank attached to its motion an affidavit of one of
its employees.
It does not appear from the materials submitted to this
Court that the plaintiffs filed a response to TD Bank's motion
to dismiss. At the trial court's direction, however, both
sides submitted proposed orders. On August 1, 2019, the trial
court entered an order denying TD Bank's motion to dismiss. TD
Bank then filed a petition for a writ of mandamus in this
Court, and the trial court stayed the trial-court proceedings
5
1180998
pending this Court's resolution of TD Bank's mandamus
petition.
Standard of Review
"A writ of mandamus is an extraordinary remedy
which requires a showing of (a) a clear legal right
in the petitioner to the order sought, (b) an
imperative duty on the respondent to perform,
accompanied by a refusal to do so, (c) the lack of
another adequate remedy, and (d) the properly
invoked jurisdiction of the court. Ex parte Bruner,
749 So. 2d 437, 439 (Ala. 1999)."
Ex parte McInnis, 820 So. 2d 795, 798 (Ala. 2001).
"'[A] petition for a writ of mandamus
is the proper device by which to challenge
the denial of a motion to dismiss for lack
of in personam jurisdiction. See Ex parte
McInnis, 820 So. 2d 795 (Ala. 2001); Ex
parte Paul Maclean Land Servs., Inc., 613
So. 2d 1284, 1286 (Ala. 1993). "'An
appellate court considers de novo a trial
court's judgment on a party's motion to
dismiss
for
lack
of
personal
jurisdiction.'" Ex parte Lagrone, 839 So.
2d 620, 623 (Ala. 2002) (quoting Elliott v.
Van Kleef, 830 So. 2d 726, 729 (Ala.
2002)). Moreover, "[t]he plaintiff bears
the burden of proving the court's personal
jurisdiction over the defendant." Daynard
v. Ness, Motley, Loadholt, Richardson &
Poole, P.A., 290 F.3d 42, 50 (1st Cir.
2002).'
"Ex parte Dill, Dill, Carr, Stonbraker & Hutchings,
P.C., 866 So. 2d 519, 525 (Ala. 2003)."
6
1180998
Ex parte Covington Pike Dodge, Inc., 904 So. 2d 226, 229 (Ala.
2004).
Discussion
TD Bank argues that the trial court should have granted
its motion to dismiss because, it says, the trial court lacked
both general and specific personal jurisdiction over it.
"'"In considering a Rule 12(b)(2),
Ala. R. Civ. P., motion to dismiss for want
of personal jurisdiction, a court must
consider as true the allegations of the
plaintiff's complaint not controverted by
the defendant's affidavits, Robinson v.
Giarmarco & Bill, P.C., 74 F.3d 253 (11th
Cir. 1996), and Cable/Home Communication
Corp. v. Network Productions, Inc., 902
F.2d 829 (11th Cir. 1990), and 'where the
plaintiff's complaint and the defendant's
affidavits conflict, the ... court must
construe
all
reasonable
inferences
in
favor
of the plaintiff.' Robinson, 74 F.3d at 255
(quoting Madara v. Hall, 916 F.2d 1510,
1514 (11th Cir. 1990))."'
"Wenger Tree Serv. v. Royal Truck & Equip., Inc.,
853 So. 2d 888, 894 (Ala. 2002) (quoting Ex parte
McInnis, 820 So. 2d 795, 798 (Ala. 2001)). However,
if the defendant makes a prima facie evidentiary
showing that the Court has no personal jurisdiction,
'the plaintiff is then required to substantiate the
jurisdictional allegations in the complaint by
affidavits or other competent proof, and he may not
merely reiterate the factual allegations in the
complaint.' Mercantile Capital, LP v. Federal
Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D. Ala.
2002)(citing Future Tech. Today, Inc. v. OSF
Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.
7
1180998
2000)). See also Hansen v. Neumueller GmbH, 163
F.R.D. 471, 474–75 (D. Del. 1995)('When a defendant
files a motion to dismiss pursuant to Fed. R. Civ.
P.
12(b)(2),
and
supports
that
motion
with
affidavits, plaintiff is required to controvert
those affidavits with his own affidavits or other
competent evidence in order to survive the motion.')
(citing Time Share Vacation Club v. Atlantic
Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984))."
Covington Pike Dodge, 904 So. 2d at 229-30.
Rule 4.2(b), Ala. R. Civ. P., allows Alabama courts to
exercise personal jurisdiction over nonresident defendants
"when the person or entity has such contacts with this state
that the prosecution of the action against the person or
entity in this state is not inconsistent with the constitution
of this state or the Constitution of the United States ...."
There are two types of personal jurisdiction -- general
and specific. Bristol-Myers Squibb Co. v. Superior Court of
California, San Francisco Cty., ___ U.S. ___, ___, 137 S. Ct.
1773, 1776 (2017). TD Bank argues that the plaintiffs failed
to demonstrate that TD Bank had general contacts such that it
was "at home" in Alabama, and the plaintiffs do not contend
that
the
trial
court
can
properly
exercise
general
jurisdiction over TD Bank.3
3"For general jurisdiction, the 'paradigm forum' is an
'individual's domicile,' or, for corporations, 'an equivalent
place, one in which the corporation is fairly regarded as at
home.'" Bristol-Myers Squibb Co., ___ U.S. at ___, 137 S. Ct.
8
1180998
The specific-jurisdiction inquiry "focuses on 'the
relationship among the defendant, the forum, and the
litigation.'" Keeton v. Hustler Magazine, Inc., 465 U.S. 770,
775 (1984)(quoting Shaffer v. Heitner, 433 U.S. 186, 204
(1977)). TD Bank argues that the plaintiffs failed to
demonstrate that it had sufficient minimum contacts with
Alabama to subject it to specific jurisdiction in Alabama. The
plaintiffs argue that TD Bank took numerous actions directed
toward the State of Alabama and the plaintiffs sufficient for
the trial court to exercise specific personal jurisdiction.
We must initially determine whether TD Bank made a prima
facie evidentiary showing in the trial court in support of its
motion to dismiss and, if so, whether the plaintiffs
substantiated
the
jurisdictional
allegations
in
their
complaint. See Ex parte Güdel AG, 183 So. 3d 147, 156 (Ala.
2015). In their complaint, the plaintiffs alleged that TD Bank
is a foreign entity that does business in Jefferson County.
The plaintiffs alleged that TD Bank "received a fraudulent
transfer of Plaintiff's funds from Defendant ServisFirst, but
refused to return said funds after being notified by
at 1776 (quoting Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 924 (2011)).
9
1180998
ServisFirst of the fraud." The plaintiffs further alleged that
the funds were wired to a TD Bank branch in Florida.
In support of its motion to dismiss, TD Bank submitted an
affidavit from an employee, JoAnn Leon, who testified that TD
Bank's main office was located in Delaware and that its
principal place of business was in New Jersey. Leon's
testimony further demonstrated that TD Bank had no office,
store, branch location, automatic-teller machine, or other
facility in Alabama. Leon further testified that TD Bank had
not directed any advertising or marketing efforts to
residents
or businesses in Alabama. Leon also testified that TD Bank
processes incoming wire transfers through its servers in
Toronto, Canada. Through its evidentiary submission, TD Bank
made a prima facie showing that the trial court lacked
specific personal jurisdiction over it. The burden then
shifted
to
the
plaintiffs
to
"substantiate
[their]
jurisdictional allegations with affidavits or other competent
evidence." Covington Pike Dodge, 904 So. 2d at 232. See also
Ex parte Excelsior Fin., Inc., 42 So. 3d 96, 104 (Ala. 2010),
and Ex parte Güdel AG, 183 So. 3d at 156 (in which this Court
granted mandamus relief when the defendant's evidence in
support of its motion to dismiss "disproved the factual
10
1180998
allegations
asserted
in
the
[plaintiffs']
complaint
that
would
establish specific jurisdiction and constituted a prima facie
showing that no specific jurisdiction existed" and the
plaintiffs had "indisputably failed" to meet their burden of
substantiating
"their
jurisdictional
allegations
with
affidavits or other competent evidence").
As mentioned above, the plaintiffs did not file a
response to TD Bank's motion to dismiss, and, moreover, they
did not submit any evidence to "substantiate [their]
jurisdictional
allegations"
in
their
complaint.
Covington
Pike
Dodge, 904 So. 2d at 232. Because TD Bank made a prima facie
showing that the trial court lacked specific personal
jurisdiction and the plaintiffs failed to produce any
evidence
to contradict that showing, the trial court should have
granted TD Bank's motion to dismiss.
Conclusion
TD Bank has demonstrated that it has a clear legal right
to the relief sought. The petition is granted, and the trial
court is directed to grant TD Bank's motion to dismiss.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, and
Mendheim, JJ., concur.
Mitchell, J., recuses himself.
11 | May 29, 2020 |
a27157a0-f03a-48dc-bf8f-341b3f8f1cb8 | Ex parte City of Andalusia. | N/A | 1190029 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 29, 2020
1190029
Ex parte City of Andalusia. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
Sherry Pollock v. City of Andalusia) (Covington Circuit Court: CV-19-900102).
ORDER
The petition for writ of mandamus in this cause is denied.
BRYAN, J. - Bolin, Shaw, Wise, Sellers, and Stewart, JJ., concur. Parker, C.J.,
and Mendheim, and Mitchell, JJ., dissent.
Witness my hand this 29th day of May, 2020.
/tw | May 29, 2020 |
e6ffcec7-07ca-4c48-8f77-a87971f05340 | Ex parte Matthew Mecomber. | N/A | 1190607 | 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
June 12, 2020
1190607
Ex parte Matthew Mecomber. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: Matthew Mecomber v. Barbara Mecomber) (Madison Circuit Court:
DR-13-900952.02; Civil Appeals :
2180767).
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 June 12, 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 12th day of June, 2020.
l i t a
Clerk, Supreme Court of Alabama | June 12, 2020 |
0854b438-ac36-4342-b9fd-4e424f8e2a67 | Craft v. McCoy et al. | N/A | 1180820 | Alabama | Alabama Supreme Court | Rel: June 5, 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
____________________
1180820
____________________
Justin Craft and Jason Craft
v.
James E. McCoy et al.
Appeal from Lee Circuit Court
(CV-17-900477)
BOLIN, Justice.
Justin Craft and Jason Craft appeal the summary judgment
entered by the Lee Circuit Court for the members of the Lee
County Board of Education ("the Board") and the Superintendent
of the Lee County Schools, Dr. James E. McCoy. We affirm.
1180820
Facts and Procedural History
During July, August, and September 2016, the Board hired
S&A Landscaping to perform three projects of overdue lawn
maintenance at Lee County schools. S&A Landscaping was owned
by an aunt by marriage of Marcus Fuller, the Assistant
Superintendent of the Lee County Schools. The Crafts, who at
that time were employed as HVAC technicians by the Board,
questioned the propriety of hiring S&A Landscaping for those
projects.1 The Crafts expressed their concerns with various
current and former Board members and individuals at the State
Ethics Commission ("the Commission") and at the Alabama
Department of Examiners of Public Accounts. Although an
individual at the Commission instructed Jason Craft on how to
file a complaint with the Commission, neither of the Crafts
did so.
Also, during this time, McCoy, Fuller, and others
suspected
various
maintenance
employees,
including
the
Crafts,
1Although at that time the Crafts believed that the hiring
of S&A Landscaping violated the Code of Ethics for Public
Officials, Employees, Etc., § 36-25-1 et seq., Ala. Code 1975,
because of the affiliation of the owners of S&A Landscaping
with Fuller, see § 36-25-5, Ala. Code 1975, they later agreed
that, because the work was not performed by a member of
Fuller's household, no violation had occurred.
2
1180820
of misusing their Board-owned vehicles and misrepresenting
their work hours. To investigate their suspicions, the Board
had GPS data-tracking devices installed in Board-owned
vehicles being used by employees to monitor their use and the
employees' activities.
In January 2017, a review of the GPS data indicated that
certain employees, including the Crafts, had violated Board
policy by inappropriately using the Board-owned vehicles and
by inaccurately reporting their work time. On January 26,
2017, McCoy sent letters to the Crafts and two other
employees, advising them that he had recommended to the Board
the termination of their employment on the grounds of
incompetency, neglect of duty, failure to perform duties in a
satisfactory manner, and other "good and just cause." The
letters detailed dates, times, and locations of specific
incidents of alleged misconduct. The Crafts were placed on
administrative leave. The Crafts contested the proposed
termination, pursuant to the Students First Act, § 16-24C-1 et
seq., Ala. Code 1975.
The record indicates that McCoy recommended terminating
the Crafts' employment shortly after he had sent an e-mail to
3
1180820
Fuller and the Board's Director of Human Resources, expressing
his frustration with the Crafts for communications and
complaints made to Board members and suggesting that Fuller
and the human-resources director review the GPS data on the
vehicles assigned to the Crafts.
On March 14, 2017, the Board conducted a hearing to
address McCoy's recommendations for terminating the Crafts'
employment. The Board found the Crafts guilty of violations
relating to the reporting of their time and their use of
Board-owned vehicles assigned to them. The Board suspended
the Crafts for 20 days and, upon their return to work,
transferred the Crafts to custodial positions with the same
pay and benefits that did not require them to use Board-owned
vehicles.2
The Crafts appealed the job transfers, arguing that they
were not afforded due process, i.e., a hearing, before the job
transfers were imposed. The administrative-law judge who
considered the appeal held that the Student First Act did not
2The dismissal of one other employee, whose employment
McCoy had recommended be terminated for the same or similar
reasons, was considered at the hearing, and the Board found
him guilty of the same or similar violations and ordered the
same suspension and a similar job relocation for him.
4
1180820
provide the opportunity for a hearing before the imposition of
a job transfer.
The Crafts sued the Board members and McCoy, requesting
declaratory relief based on alleged violations of the anti-
retaliation provision in § 36-25-24, Ala. Code 1975, arguing
that they were being punished in retaliation for contacting
the Commission. After conducting some discovery, the Board
members and McCoy moved for a summary judgment. The trial
court conducted a hearing on the summary-judgment motion and,
after considering arguments and supplemental briefs, entered
a summary judgment for the Board members and McCoy. The
written order states:
"This
case
primarily
turns
on
the
interpretation
of Ala. Code 1975, § 36-25-24, and the definition of
'reporting a violation' under Ala. Code 1975, § 36-
25-24(a) and (b). The [Crafts] argued that the
communications between [them] and public officials
... constitute 'reporting a violation.' However,
[the Board members and McCoy] argue that unless a
reporter follows the formal procedures set forth for
reporting a violation, the statute doesn't apply.
The court and both parties have noted that this
appears to be a case of first impression in the
State of Alabama.
"Ala. Code 1975 § 36-25-1(5) defines complaint
as a 'written allegation or allegations that a
violation of this chapter has occurred.' It is an
undisputed fact that the Crafts never filed a
written
complaint
with
the
Alabama
Ethics
5
1180820
Commission. Instead, they made verbal contact with
someone at the Alabama Ethics Commission and Alabama
Examiners of Public Accounts Office. The only
written communication was some Facebook messages
exchanged between the Crafts and members or former
members of the [Board]. The [Crafts] contend this
was sufficient notice to the [Board members and
McCoy]
of
a
complaint
for
the
statute's
whistleblower protections to apply. The [Board
members and McCoy] argue for a more narrow reading
of the definition of complaint. As this is a case
of first impression, the court proceeds with caution
in its interpretation of the statute. The [Crafts]
note a similar case from Minnesota regarding that
state's whistleblower statute.[3] In Hayes v.
Dapper, [No. A07-1878] (Minn. Ct. App. Sept. 23,
2008) [a case designated as unpublished and not
reported in North Western Reporter], the trial court
held that the plaintiff had not made a 'report' as
required by the State's statute. However, the
Minnesota Court of Appeals reversed this and found
that while the notification was not formalized, it
was sufficient for the requirements of the statute.
"In attempting to interpret the meaning of
'report' within the statute, the court notes that
Ala. Code 1975, § 36-25-4(d), states:
"'Prior to commencing any investigation,
the commission shall: receive a written
and signed complaint which sets forth in
detail the specific charges against a
respondent, and the factual allegations
which support such charges.'
3Minn. Stat. § 181.932 subd. 1(a) (2004) provided at the
time the Minnesota case was decided that "an employer shall
not discharge, discipline, threaten, otherwise discriminate
against, or penalize an employee" who "in good faith, reports
a violation or suspected violation of any federal or state law
or rule adopted pursuant to law to an employer or to any
governmental body or law enforcement official."
6
1180820
"While this text does not define a 'report' for the
statute, it does show what the statute intends for
such a report to contain. While respectful of the
analogous nature of the Minnesota case to the facts
and law in this case, the court notes that it was
the Minnesota Court of Appeals that expanded the
definition of 'report' within the statute, rather
than the trial court. The language of the statute
and the first impression nature of this case, leave
the court to find that the actions taken by the
[Crafts] in this matter do not constitute a report
under the statute.
"....
"As
the
[Crafts']
claim
regarding
the
whistleblower statute fails, there is no genuine
issue of material fact to be resolved by this court.
The [Board members and McCoy's] motion for summary
judgment is hereby granted."
The Crafts appeal.
Standard of Review
"'A summary judgment is proper when
there is no genuine issue of material fact
and the moving party is entitled to a
judgment as a matter of law. Rule 56(c)(3),
Ala. R. Civ. P. The burden is on the moving
party to make a prima facie showing that
there is no genuine issue of material fact
and that it is entitled to a judgment as a
matter of law. In determining whether the
movant has carried that burden, the court
is to view the evidence in a light most
favorable to the nonmoving party and to
draw all reasonable inferences in favor of
that party. To defeat a properly supported
summary judgment motion, the nonmoving
party must present "substantial evidence"
creating a genuine issue of material fact
7
1180820
–- "evidence of such weight and quality
that fair-minded persons in the exercise of
impartial
judgment
can
reasonably
infer
the
existence of the fact sought to be proved."
Ala. Code 1975, § 12–21–12; West v.
Founders Life Assurance Co. of Florida, 547
So. 2d 870, 871 (Ala. 1989).'
"Capital Alliance Ins. Co. v. Thorough–Clean, Inc.,
639 So. 2d 1349, 1350 (Ala. 1994). Questions of law
are reviewed de novo. Alabama Republican Party v.
McGinley, 893 So. 2d 337, 342 (Ala. 2004)."
Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d 933, (Ala.
2006).
Discussion
This case requires this Court to interpret § 36-25-24, a
Code section within the Code of Ethics for Public Officials,
Employees, Etc., see § 36-25-1 seq., Ala. Code 1975 ("the Code
of Ethics"). In § 36-25-2(a), the legislature set forth its
findings, declarations, and purpose with regard to the Code of
Ethics, stating:
"(1) It is essential to the proper operation of
democratic government that public officials be
independent and impartial.
"(2)
Governmental
decisions
and
policy
should
be
made in the proper channels of the governmental
structure.
"(3) No public office should be used for private
gain other than the remuneration provided by law.
8
1180820
"(4) It is important that there be public
confidence in the integrity of government.
"(5) The attainment of one or more of the ends
set forth in this subsection is impaired whenever
there exists a conflict of interest between the
private interests of a public official or a public
employee and the duties of the public official or
public employee.
"(6) The public interest requires that the law
protect against such conflicts of interest and
establish appropriate ethical standards with respect
to the conduct of public officials and public
employees in situations where conflicts exist."
To further this purpose, the legislature specifically created
the Commission, see § 36-25-3, Ala. Code 1975; defined a
"complaint" for reporting suspected violations of the Code of
Ethics, see § 36-25-1(5), Ala. Code 1975; provided parameters
for the filing of a complaint with the Commission, see § 36-
25-4(c), Ala. Code 1975; provided the Commission with the
authority
to
investigate complaints, see
§
36–25–4(a)(7), Ala.
Code 1975; and provided the Commission with the duty to report
suspected violations of the Code of Ethics to the appropriate
law-enforcement authorities, § 36–25–4(a)(8), Ala. Code 1975.
Being mindful of the purpose of the Code of Ethics, the
process for filing a complaint alleging a violation of the
Code of Ethics, and the duty of the Commission to investigate
9
1180820
and report a violation to law-enforcement authorities, we now
examine § 36-25-24, Ala. Code 1975, and interpret § 36-25-
24(a), the subsection at issue in this appeal, in light of the
facts presented in this case.
"'"In determining the meaning of a
statute, this Court looks to the plain
meaning of the words as written by the
legislature." DeKalb County LP Gas Co. v.
Suburban Gas, Inc., 729 So. 2d 270, 275
(Ala. 1998).
"'"'Words used in a statute must
be given their natural, plain,
ordinary, and commonly understood
meaning, and where plain language
is used a court is bound to
interpret that language to mean
exactly what it says. If the
language
of
the
statute
is
unambiguous, then there is no
room for judicial construction
and the clearly expressed intent
of the legislature must be given
effect.'"
"'Blue Cross & Blue Shield of Alabama, Inc.
v. Nielsen, 714 So. 2d 293, 296 (Ala.
1998)(quoting IMED Corp. v. Systems Eng'g
Assocs. Corp., 602 So. 2d 344, 346 (Ala.
1992)).'
"City of Prattville v. Corley, 892 So. 2d [845,] 848
[(Ala. 2003)].
"'In Archer v. Estate of Archer, 45 So. 3d
1259,
1263
(Ala.
2010),
this
Court
described
its
responsibilities
when
construing a statute:
10
1180820
"'"'"[I]t
is
this
Court's responsibility
in
a
case
involving
statutory construction
to give effect to the
legislature's intent in
enacting a statute when
t h a t
intent
is
manifested
in
the
wording
o f
t h e
statute....
'"'"[I]f
the
language
of
the
statute is unambiguous,
then there is no room
f o r
j u d i c i a l
construction
and
the
clearly
expressed
i n t e n t
o f
t h e
legislature
must
be
given effect."'"' ...
In
determining
the
i n t e n t
o f
t h e
legislature,
we
must
examine the statute as
a
whole
and,
if
possible, give effect
to each section."
"'"'Ex parte Exxon Mobil Corp.,
926 So. 2d 303, 309 (Ala. 2005).
Further,
"'"'"when
determining
legislative intent from
the language used in a
statute, a court may
explain the language,
but it may not detract
from or add to the
statute....
When
the
language
is
clear,
there is no room for
11
1180820
j
u
d
i
c
i
a
l
construction...."
"'"'Water Works & Sewer Bd. of
Selma v. Randolph, 833 So. 2d
604, 607 (Ala. 2002).'"
"'(Quoting Ex parte Birmingham Bd. of
Educ., 45 So. 3d 764, 767 (Ala. 2009).)
Similarly, in Lambert v. Wilcox County
Commission, 623 So. 2d 727, 729 (Ala.
1993), the Court stated:
"'"'The fundamental rule of
statutory construction is that
this Court is to ascertain and
effectuate the legislative intent
as expressed in the statute....
In this ascertainment, we must
look to the entire Act instead of
isolated phrases or clauses ...
and words are given their plain
and usual meaning.... Moreover,
just as statutes dealing with the
same subject are in pari materia
and should be construed together,
... parts of the same statute are
in pari materia and each part is
entitled to equal weight.'"
"'(Quoting Darks Dairy, Inc. v. Alabama
Dairy Comm'n, 367 So. 2d 1378, 1380–81
(Ala. 1979).)'
"First Union Nat'l Bank of Florida v. Lee Cty.
Comm'n, 75 So. 3d 105, 111–12 (Ala. 2011)."
Cockrell v. Pruitt, 214 So. 3d 324, 331–32 (Ala. 2016).
12
1180820
Section 36-25-24, entitled "Supervisor prohibited from
discharging or discriminating against employee where employee
reports violation," provides:
"(a) A supervisor shall not discharge, demote,
transfer, or otherwise discriminate against a public
employee regarding such employee's compensation,
terms, conditions, or privileges of employment based
on the employee's reporting a violation, or what he
or she believes in good faith to be a violation, of
this chapter or giving truthful statements or
truthful testimony concerning an alleged ethics
violation.
"(b) Nothing in this chapter shall be construed
in any manner to prevent or prohibit or otherwise
limit a supervisor from disciplining, discharging,
transferring, or otherwise affecting the terms and
conditions of a public employee's employment so long
as the disciplinary action does not result from or
is in no other manner connected with the public
employee's filing a complaint with the commission,
giving
truthful
statements,
and
truthfully
testifying.
"(c) No public employee shall file a complaint
or otherwise initiate action against a public
official or other public employee without a good
faith basis for believing the complaint to be true
and accurate.
"(d) A supervisor who is alleged to have
violated this section shall be subject to civil
action in the circuit courts of this state pursuant
to the Alabama Rules of Civil Procedure as
promulgated by the Alabama Supreme Court.
"(e) A public employee who without a good faith
belief in the truthfulness and accuracy of a
complaint filed against a supervisor, shall be
13
1180820
subject to a civil action in the circuit courts in
the State of Alabama pursuant to the Alabama Rules
of Civil Procedure as promulgated by the Supreme
Court. Additionally, a public employee who without
a good faith belief in the truthfulness and accuracy
of a complaint as filed against a supervisor shall
be subject to appropriate and applicable personnel
action.
"(f) Nothing in this section shall be construed
to allow a public employee to file a complaint to
prevent,
mitigate,
lessen,
or
otherwise
to
extinguish existing or anticipated personnel action
by a supervisor. A public employee who willfully
files such a complaint against a supervisor shall,
upon conviction, be guilty of the crime of false
reporting."
(Emphasis added.)
The Crafts contend that the plain meaning of 36-25-24(a)
is that an employee who in good faith reports a perceived
violation of the Code of Ethics or gives a truthful statement
about a suspected violation is protected from a supervisor's
retaliation, regardless of whether the employee files a
complaint with the Commission. They maintain that the trial
court's holding that the word "reporting" as used in § 36-25-
24(a) encompasses only the employee's act of completing and
filing a formal complaint with the Commission is too limiting.
To support their contention that "reporting" includes not
only the filing of a complaint with the Commission, but also
14
1180820
other means of notifying public officials of a suspected
violation of the Code of Ethics, the Crafts note that § 36-25-
24(a) provides public employees with protection for "giving
truthful statements or truthful testimony concerning an
alleged ethics violation," which, they say, is an oral form of
"reporting," in addition to filing a complaint, which is a
written form of "reporting." They also direct this Court to
§ 36-25-24(c), which provides: "No public employee shall file
a complaint or otherwise initiate action against a public
official or other public employee ...." (Emphasis added.)
They argue that, by including the language "otherwise initiate
action," the legislature acknowledged that the filing of a
complaint with the Commission is not the only means of
"reporting" a suspected violation of the Code of Ethics. The
Crafts reason that, when subsections (a) and (c) are read in
pari materia, the protection provided in subsection (a) is
triggered not only when an employee files a formal complaint
with the Commission, but also when an employee in good faith
makes an oral report of a suspected violation to the attorney
general or a district attorney, for example, who also have the
authority to investigate violations of the Code of Ethics.
15
1180820
To bolster their position, they also direct this Court to
§ 36-25-27(e), Ala. Code 1975,4 which states that officials
of every public employer have the power and the duty to take
appropriate action when a suspected violation of the Code of
Ethics is brought to their attention, and § 35-25-17(a), Ala.
Code 1975,5 which requires the head of a government agency to
file a report with the Commission within 10 days of learning
of a suspected violation. They argue that, because public
officials are required to enforce the Code of Ethics and
because employees should be encouraged to inform their
employers of alleged violations so the violations can be
addressed quickly, the protections from retaliation, provided
in § 36-25-24(a), for employees alleging violations of the
Code of Ethics must encompass more than when an employee files
a complaint with the Commission, i.e., it must also encompass
4Section 36-25-27(e) provides: "The penalties prescribed
in this chapter do not in any manner limit the power of a
legislative body to discipline its own members or to impeach
public officials and do not limit the powers of agencies,
departments, boards, or commissions to discipline their
respective officials, members, or employees."
5Section 35-25-17(a) provides: "Every governmental agency
head shall within 10 days file reports with the commission on
any matters that come to his or her attention in his or her
official capacity which constitute a violation of this
chapter."
16
1180820
reporting alleged violations internally to a supervisor or
employer. See Marques v. Fitzgerald, 99 F.3d 1, 6 (1st Cir.
1996)("We see no significant policy served by extending
whistleblower protection only to those who carry a complaint
beyond the institutional wall, denying it to the employee who
seeks to improve operations from within the organization. The
latter course appears to us more likely to lead to prompt
resolution of issues related to suspected violations of laws
and regulations.").
Although the Crafts' arguments asking this Court to
interpret "reporting" an alleged violation of the Code of
Ethics as that term is used in § 36-25-24(a) to encompass not
only the filing of a complaint with the Commission, but also
notifying employers and other public officials by
other means,
merit consideration, we conclude, after reading § 36-25-24(a)
in conjunction with the other subsections of § 36-25-24 and
with the Code of Ethics in its entirety, that the protections
from retaliation provided in § 36-25-24(a) are
applicable only
when a public employee reports alleged violations of the Code
of Ethics to the Commission in the form of a complaint.
17
1180820
First, we observe that immediately after providing an
employee with protection from retaliation when reporting a
suspected violation of the Code of Ethics in § 36-25-24(a),
the legislature stated in subsection (b):
"Nothing in this chapter shall be construed in any
manner to prevent or prohibit or otherwise limit a
supervisor
from
disciplining,
discharging,
transferring, or otherwise affecting the terms and
conditions of a public employee's employment so long
as the disciplinary action does not result from or
is in no other manner connected with the public
employee's filing a complaint with the commission,
giving
truthful
statements,
and
truthfully
testifying."
(Emphasis added.)
Unequivocally, subsection
(b)
provides
that
nothing in the Code of Ethics should be construed to limit the
disciplining of a public employee so long as the discipline is
unrelated to the filing of a complaint with the Commission.
This limitation on an employee's protection provides specific
direction to a supervisor so as not to impose unreasonable
restrictions on an employer's ability to discipline its
employees when that discipline is not connected to the filing
of a complaint with the Commission. By following the anti-
retaliation provision in subsection (a) with the provision in
subsection (b) that permits a supervisor to discipline an
employee, provided that the discipline is not a consequence of
18
1180820
the employee's filing a complaint with the Commission, giving
truthful
statements,
or
truthfully
testifying,
the
legislature
clarified its intent in subsection (a) that the action to be
protected from retaliation is the filing of a complaint with
the Commission. The opening clause in subsection (b) –-
"[n]othing in this chapter shall be construed in any manner to
prevent or prohibit" –- does not override subsection (a);
rather, it gives effect to the protection from anti-
retaliation. Reading subsections (a) and (b) in harmony
militates against the interpretation of the word "reporting"
that the Crafts urge. Thus, when subsections (a) and (b) are
read in para materia, giving effect to both subsections, the
meaning of "reporting" as used in subsection (a) can refer
only to the filing of a written complaint with the Commission.
Additionally, a harmonious reading of subsections (a) and
(b) requires the conclusion that the language "giving truthful
statements,
or
truthfully
testifying" in
subsection (b)
refers
to statements made in connection with filing a complaint with
the Commission. Considering the provision in subsection (a)
for anti-retaliation protection against an employee who gives
"truthful statements or truthful testimony concerning an
19
1180820
alleged ethics violation" and the following provision in
subsection (b) explaining that a supervisor's discipline of
an
employee cannot be related to "the public employee's filing a
complaint
with
the
commission,
giving
truthful
statements, and
truthfully testifying," the only harmonization of the two
provisions that gives effect to both is to conclude that the
giving
of
truthful
statements
or
truthful
testimony
referenced
in subsection (a) must be in reference to "reporting a
violation ... of this chapter." Bringing the two in accord
requires holding that "giving truthful statements" in
subsection (a) can refer only to giving truthful statements in
connection with a complaint filed with the Commission.
Moreover, recognizing that we must strive to interpret a
statute as a harmonious whole, see City of Montgomery v. Town
of Pike Road, 789 So. 3d 575, 580 (Ala. 2009), we observe that
subsections (b), (c), (e), and (f) of § 36-25-24 each focus
on acts involving or resulting from the filing of a complaint
with the Commission. Admittedly, subsection (c) recognizes
that other means exist to "initiate action" regarding an
alleged violation of the Code of Ethics. However, a
harmonious reading of all the subsections in § 36-25-24
20
1180820
requires the conclusion that the legislature's intent in § 36-
25-24(a) was to prevent retaliation by an employer against a
public employee when the employee files a complaint with the
Commission.
Furthermore, § 36-25-24(a) is part of the Code of Ethics,
which requires the Court to harmonize subsection (a) with not
only the other subsections of § 36-25-24, but also the entire
Code of Ethics. The primary purpose of the Code of Ethics is
to protect "the integrity of all governmental units of this
state and ... facilitat[e] the service of qualified personnel
by prescribing essential restrictions against conflicts of
interest in public service." § 36-25-2(d), Ala. Code 1975. To
further that purpose, the Code of Ethics sets out conduct that
constitutes violations of the Code of Ethics, creates the
Commission, provides specific methods of acceptable and
unacceptable reporting of a suspected violation to the
Commission, establishes the manner in which the
Commission can
investigate
complaints,
and
includes
provisions that
prohibit
false or bad-faith reporting of ethics violations. By placing
§ 36-25-24(a) in the Code of Ethics, which as a whole focuses
on to whom disclosures of suspected violations of the Code of
21
1180820
Ethics are made, how alleged violations are brought to the
attention of the Commission to trigger an investigation, and
how the Commission is to investigate alleged violations, the
protections from retaliation for reporting a suspected
violation can be triggered only by compliance with proper
reporting to the Commission. Indeed, reading "reporting" in
§ 36-25-24(a) to require the filing of a written complaint
with the Commission furthers the legislature's purpose of
enabling the Commission to conduct investigations of formal
complaints filed with it, by assuring that public employees
who file complaints are protected from retaliation and that
the integrity of public officials is not improperly tarnished
by unauthorized investigations.
Lastly,
because
the
protections from retaliation provided
in § 36-25-24(a) are included within the Code of Ethics, the
protections provided by subsection (a) are distinguishable
from
general
whistleblower
protections,
which
provide
informal
means of reporting suspected violations of the law. The
Crafts cite Gillispie v. Regionalcare Hospital Partners, 892
F.3d 585, 593 (3d Cir. 2018)(defining the word "report" as
used in a whistleblower provision to mean an "account brought
22
1180820
by one person to another" and "nothing more than the
transmission of information"), and Roche v. La Cie, Ltd. (No.
CV-08-1180-MO, Dec. 4, 2009) (D. Or. 2009) (not selected for
publication in Fed. Supp.)(observing that the common meaning
of "to report" includes "to give an account of," "to make
known to the proper authorities," or "to make charge of
misconduct against" and did not require that the recipient of
the report be an external entity). The whistleblower statutes
being considered in Gillespie and Roche were designed to
protect public or private employees from adverse employment
action based on the informal reporting of alleged violations
of state and/or federal law generally. The Alabama
Legislature recognized the need for a general whistleblower
statute when it enacted § 36-26A-1 et seq., Ala. Code 1975,
entitled "the State Employees Protection Act." Section 36-
26A-3, Ala. Code 1975, provides:
"A supervisor shall not discharge, demote,
transfer, or otherwise discriminate against a state
employee
regarding
the
state
employee's
compensation, terms, conditions, or privileges of
employment if the state employee[] reports, under
oath or in the form of an affidavit, a violation of
a law, a regulation, or a rule promulgated pursuant
23
1180820
to the laws of this state, or a political
subdivision of this state, to a public body."6
Thus, State employees, provided they make a sworn statement,
are protected from employer retaliation when they "blow the
whistle" or "report" an employer's violation of laws,
regulations, or rules.
Because
the
legislature provided certain public employees
general whistleblower protection in § 36-26A-3, it is
significant that the protections provided in § 36-25-24(a)
are within a chapter of the Code that focuses on providing a
mechanism for complainants, including public employees, to
bring complaints to the attention of the Commission for
investigation and possible criminal action. Therefore, it is
reasonable to conclude that the legislature intended for the
protection from retaliation provided in § 36-25-24(a) to apply
only when an employee files with the Commission a complaint
alleging suspected violations of the Code of Ethics or gives
truthful statements regarding such a complaint.
6Even if the Crafts had made their complaint under oath
or in the form of an affidavit, this statute would not provide
them protection because employees of county boards of
education are not considered "state employees" within this
statute. See § 36-26A-2(2) and § 36-26-2(10), Ala. Code 1975.
24
1180820
We hold, with regard to the facts of this case, that the
word "reporting" as that word is used in § 36-25-24(a) refers
only to the filing of a complaint with the Commission and,
accordingly,
that
the
anti-retaliation
protection
in
subsection (a) is triggered only when an employee files a
complaint with the Commission. It is undisputed that the
Crafts did not file a complaint with the Commission;
consequently, they are not entitled to the protections
afforded by § 36-25-24(a). Therefore, the summary judgment is
affirmed.7
Conclusion
Based on the foregoing, the judgment of the trial court
is affirmed.
AFFIRMED.
Shaw, Wise, Bryan, Sellers, Mendheim, Stewart, and
Mitchell, JJ., concur.
Parker, C.J., dissents.
7We
pretermit
discussion
of
other
issues
presented
because
they are now moot in view of this decision.
25
1180820
PARKER, Chief Justice (dissenting).
The broad purpose of Alabama's Code of Ethics for Public
Officials, Employees, Etc., § 36-25-1 et seq., Ala. Code 1975,
is to protect the integrity of government and the public's
confidence in it. I respectfully submit that the main opinion
fails to fully appreciate this purpose in its narrow
construction of a statute designed to protect those who
protect the public interest.
This case requires this Court to resolve two ambiguities
in the anti-retaliation statute, § 36-25-24, Ala. Code 1975.
The statute provides, in part:
"(a) A supervisor shall not discharge, demote,
transfer, or otherwise discriminate against a public
employee regarding such employee's compensation,
terms, conditions, or privileges of employment based
on the employee's reporting a violation, or what he
or she believes in good faith to be a violation, of
this chapter or giving truthful statements or
truthful testimony concerning an alleged ethics
violation.
"(b) Nothing in this chapter shall be construed
in any manner to prevent or prohibit or otherwise
limit a supervisor from disciplining, discharging,
transferring, or otherwise affecting the terms and
conditions of a public employee's employment so long
as the disciplinary action does not result from or
is in no other manner connected with the public
employee's filing a complaint with the commission,
giving
truthful
statements,
and
truthfully
testifying."
26
1180820
(Emphasis added.)
First, the emphasized "ors" in subsection (a) conflict
with the emphasized "and" in subsection (b). The use of the
disjunctive "or" in subsection (a) means that subsection (a)
protects an employee who reports a violation or gives truthful
statements about a
violation or gives truthful testimony about
a violation. However, the use in subsection (b) of the
conjunctive "and" removes protection from an employee unless
the employee files a complaint with the State Ethics
Commission ("the Commission") and gives truthful statements
and testifies truthfully. Thus, read literally, the "and"
would render subsection (a)'s broad protection practically
meaningless in all cases in which the employee does not engage
in all three types of protected conduct. What (a) giveth, (b)
taketh away.
Yet an interpretation of a statutory provision that
renders another provision meaningless is not preferred. See
Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167
(2004) ("[W]e must, if possible, construe a statute to give
every word some operative effect."); 2A Norman J. Singer and
J.D. Shambie Singer, Statutes and Statutory Construction §
27
7
1180820
46:6 (7th ed. 2014) ("Courts construe a statute to give effect
to all its provisions, so that no part is inoperative or
superfluous, void or insignificant, and so that one section
does not destroy another ...."), Antonin Scalia & Bryan A.
Garner, Reading Law: Interpretation of Legal Texts 176
(Thomson/West 2012) ("If a provision is susceptible of (1) a
meaning that ... deprives another provision of
all
independent
effect[] and (2) another meaning that leaves both provisions
with some independent operation, the latter should be
preferred."). To avoid this result and render the subsections
consistent with each other, subsection (b)'s "and" must be
read as an "or." See 73 Am. Jur. 2d Statutes § 147 (2012)
("[T]he courts have the power to change and will change 'and'
to 'or' and vice versa, whenever such conversion is required
by the context ...."), 82 C.J.S. Statutes § 442 (2009) ("The
words 'or' and 'and' may be construed as interchangeable ...
where the failure to adopt such a construction would render
the
meaning
of
the
statute
ambiguous
or
result
in
absurdities."). So read, subsections (a) and (b) together
protect an employee who reports a violation by filing a
28
8
1180820
complaint with the Commission or gives truthful statements or
testifies truthfully.
Once the protected acts listed in subsection (b) are
decoupled in this manner, the possibility arises that "giving
truthful statements" about an ethics violation may be an
independent basis for protection. Therein lies the second
ambiguity. Must the truthful statement be made in connection
with a complaint to the Commission? How broadly or narrowly
ought we interpret the word "statements"? I believe that the
answer is found in Legislature's express purpose in enacting
the Code of Ethics. The Legislature declared:
"(1) It is essential to the proper operation of
democratic government that public officials be
independent and impartial.
"(2)
Governmental
decisions
and
policy
should
be
made in the proper channels of the governmental
structure.
"(3) No public office should be used for private
gain other than the remuneration provided by law.
"(4) It is important that there be public
confidence in the integrity of government.
"(5) The attainment of one or more of the ends
set forth in this subsection is impaired whenever
there exists a conflict of interest between the
private interests of a public official or a public
employee and the duties of the public official or
public employee.
29
9
1180820
"(6) The public interest requires that the law
protect against such conflicts of interest and
establish appropriate ethical standards with respect
to the conduct of public officials and public
employees in situations where conflicts exist.
"....
"(d) It is the policy and purpose of this [Code
of Ethics] to implement these objectives of
protecting the integrity of all governmental units
of this state and of facilitating the service of
qualified
personnel
by
prescribing
essential
restrictions against conflicts of interest in public
service
without
creating
unnecessary
barriers
thereto."
§ 36-25-2(a), Ala. Code 1975. In summary, the broad,
fundamental purpose of the Code of Ethics, including the anti-
retaliation statute, is
to
protect the integrity of government
and the public's confidence in it. To serve that purpose, the
anti-retaliation statute
protects
those
who
attempt
to
protect
the public interest. Therefore, that protection should be
interpreted broadly.
Applying this interpretive lens to subsection (b),
"giving truthful statements" cannot be limited to statements
made in connection with a formal complaint to the Commission.
Rather, the protected "statements" must include all truthful
statements about an ethics violation or, to use the language
of subsection (a), "concerning an alleged ethics violation."
30
0
1180820
Those statements may be formal or informal, written or
unwritten, to the Commission or to others.
The main opinion recognizes the protective purpose of the
anti-retaliation statute but fails to recognize the above
interpretive implications of that purpose. In addition, the
main
opinion
posits
that
another,
apparently
counterbalancing,
purpose of the statute is to "assur[e] ... that the integrity
of
public
officials
is
not
improperly
tarnished
by
unauthorized investigations." ___ So. 3d at ___. It is not
clear what the main opinion means by "unauthorized" or from
what statutory language that purpose is divined. For these
reasons, I am not persuaded that the main opinion's discussion
of legislative purpose justifies a narrow construction of the
statute's protection.
Moreover, the main opinion's interpretation would render
superfluous subsections (a) and (b)'s inclusion of truthful
statements and truthful testimony as additional protected
conduct. Under the main opinion's interpretation, statements
and testimony are irrelevant; all that matters is the filing
of a complaint with the Commission. Again, an interpretation
31
1
1180820
that treats such important statutory language as surplusage
should be carefully avoided. See Cooper, supra.
Applying my interpretation of subsections (a) and (b) to
this case, and viewing the evidence in the light most
favorable to Justin Craft and Jason Craft, the nonmovants
below, as we must, see Nationwide Prop. & Cas. Ins. Co. v. DPF
Architects, P.C., 792 So. 2d 369, 372 (Ala. 2000), I conclude
that their communications to school-board members and the
Commission were "truthful statements" protected by the anti-
retaliation statute. Accordingly, I would reverse the
summary
judgment.
32
2 | June 5, 2020 |
b84c6fd0-ca35-4cde-9703-e8915f5598ce | Ex parte Glynn Alan Register. | N/A | 1190614 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 12, 2020
1190614
Ex parte Glynn Alan Register. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: Glynn Alan Register v. Mary Elizabeth Womble, Justin G. Hovey,
George Rodney Saxon, James Alan Mitcham, and Lauren Patricia Mitcham) (Houston Circuit
Court: CV-17-145; Civil Appeals : 2180541).
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 June 12, 2020:
Writ Denied. No Opinion. Bryan, J. - Parker, C.J., and Shaw, Stewart, and Mitchell, JJ.,
concur. 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 12th day of June, 2020.
Clerk, Supreme Court of Alabama | June 12, 2020 |
759343f7-acce-4514-9cb5-3b64c5eb972c | Levi Morrow, Jr., by and through his parent and next friend, Levi Morrow, Sr. v. Velma M. England, individually and as personal representative of the Estate of Valerie Teresa England, deceased, et al. | N/A | 1190027 | Alabama | Alabama Supreme Court | Rel: July 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2020
1190027
Levi Morrow, Jr., by and through his parent and next friend,
Levi Morrow, Sr. v. Velma M. England, individually and as
personal representative of the Estate of Valerie Teresa
England, deceased, et al. (Appeal from Perry Circuit Court:
CV-19-900023).
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 |
6e066499-c905-4be5-857a-18feca0dff3b | Ex parte A.C.B. | N/A | 1190523 | 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
June 5, 2020
1190523
Ex parte A.C.B. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: A.C.B. v. S.E. and M.E.) (Blount Juvenile Court: JU-17-287.05; Civil
Appeals :
2180496).
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 June 5, 2020:
Writ Denied. No Opinion. (Special Writing) Wise, J. - Shaw, Bryan, Sellers,
Mendheim, and Stewart, JJ., concur. Parker, C.J., and Bolin, and Mitchell, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 5th day of June, 2020.
l i t a
Clerk, Supreme Court of Alabama | June 5, 2020 |
ea89dec1-5dfe-4331-a5b2-970f41ded8d5 | Ex parte Patrick Daily and Regina Daily. | N/A | 1180956 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 22, 2020
1180956
Ex parte Patrick Daily and Regina Daily. PETITION FOR WRIT OF MANDAMUS:
CIVIL (In re: Greg Esser v. Patrick Daly, Regina Daly, White Sands, Inc. d/b/a
Remax of Orange Beach, Blue Palms, L.L.C. et al.) (Baldwin Circuit Court:
CV-17-901017; Civil Appeals :
2180945).
ORDER
The petition for writ of mandamus in this cause is denied.
MENDHEIM, J. - Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 22nd day of May, 2020.
/ra | May 22, 2020 |
e4712483-081a-4d81-a2df-79545f035b6c | Ex parte City of Gadsden. | N/A | 1180331 | 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
May 22, 2020
1180331
Ex parte City of Gadsden. PETITION FOR WRIT OF MANDAMUS (CIVIL) (In re:
John Boman et al. v. City of Gadsden) (Etowah Circuit Court: CV-09-669).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on May 22, 2020:
Application Overruled. No Opinion. PER CURIAM - Parker, C.J., and Bolin, Shaw, Wise,
Bryan, Mendheim, Stewart, and Mitchell, 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 July 19, 2019:
Petition Denied. No Opinion. PER CURIAM - Parker, C.J., and Bolin, Wise, Bryan,
Mendheim, Stewart, and Mitchell, JJ., concur. Shaw, J., concurs specially. 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 22nd day of May, 2020.
Clerk, Supreme Court of Alabama | May 22, 2020 |
ff079c4e-216e-4ed1-80f7-c0030532aa2e | Ex parte Sean Allen, One Bonehead Trucking, Inc., & FedEx Ground Package System, Inc. | N/A | 1190276 | Alabama | Alabama Supreme Court | Rel: June 5, 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
____________________
1190276
____________________
Ex parte Sean Michael Allen, One Bonehead Trucking, Inc.,
and FedEx Ground Package System, Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: Dionne Drisker
v.
Sean Michael Allen, One Bonehead Trucking, Inc., and FedEx
Ground Package System, Inc.)
(Macon Circuit Court, CV-19-900134)
1190276
PARKER, Chief Justice.
Following an automobile accident in Lee County between
Dionne Drisker and Sean Michael Allen, Drisker sued Allen, One
Bonehead
Trucking,
Inc.
("Bonehead"),
and
FedEx
Ground
Package
System, Inc. ("FedEx"), in Macon County, where Drisker
resides. The defendants seek a writ of mandamus directing the
Macon Circuit Court to transfer this case to the Lee Circuit
Court under the interest-of-justice prong of the forum non
conveniens statute, § 6-3-21.1, Ala. Code 1975. We grant the
petition.
I. Facts
On August 7, 2019, Drisker and Allen were involved in a
car accident in Lee County. Drisker sued Allen alleging
negligence and wantonness and sued Allen's employer, FedEx,
and the owner of the vehicle that Allen was driving, Bonehead,
under theories of vicarious liability. Drisker filed the
action in Macon County, where she resides. Allen is a
resident of Russell County, and FedEx and Bonehead are foreign
corporations.
The defendants filed a motion to transfer the action to
Lee County on the basis of forum non conveniens. They
2
1190276
supported their motion with the Alabama Uniform Traffic Crash
Report, which stated that the Auburn Police Department in Lee
County
conducted the
investigation; that
Drisker's
vehicle
was
towed to a facility in Lee County; and that Drisker was
employed in Auburn. The defendants also filed an affidavit of
Randy Jensen, the only nonparty eyewitness noted on the crash
report, stating that he resides in Lee County and that it
would be inconvenient for him to travel to Macon County for
court proceedings.
Drisker responded to the motion for a change of venue,
attaching her own affidavit stating that "[t]ravel to Lee
County to pursue this case would be significantly inconvenient
for [her]." She stated that she no longer traveled to Lee
County for work and that she was dependent on relatives for
transportation. She also stated that she was receiving
treatment from two doctors who had offices in Montgomery and
that one of them also had an office in Tuskegee, in Macon
County.
After a hearing, the Macon Circuit Court denied the
motion for a change of venue. The defendants petition this
Court for mandamus review.
II. Standard of Review
3
1190276
"'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 Kane, 989 So.
2d 509, 511 (Ala. 2008) (quoting Ex parte National Sec. Ins.
Co., 727 So. 2d 788, 789 (Ala. 1998)). A petitioner is
entitled to a writ of mandamus upon a showing of "(1) a clear
legal right to the order sought; (2) an imperative duty upon
the respondent to perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy; and (4) the properly
invoked jurisdiction of the court." Ex parte BOC Grp., Inc.,
823 So. 2d 1270, 1272 (Ala. 2001). In determining whether a
petitioner challenging venue has a clear legal right to the
order sought, "this Court reviews ... a ruling on venue on the
basis of forum non conveniens by asking whether the trial
court exceeded its discretion." Kane, 989 So. 2d at 511. The
discretion of the trial court has been bounded by the
Legislature, which, in enacting the forum non conveniens
statute, mandated that the court "transfer a cause when 'the
interest of justice' requires a transfer." Ex parte First
Family Fin. Servs., Inc., 718 So. 2d 658, 660 (Ala. 1998).
III. Analysis
4
1190276
The doctrine of forum non conveniens is codified at §
6–3–21.1(a), Ala. Code 1975:
"With respect to civil actions filed in an
appropriate venue, any court of general jurisdiction
shall, for the convenience of parties and witnesses,
or in the interest of justice, transfer any civil
action or any claim in any civil action to any court
of general jurisdiction in which the action might
have been properly filed and the case shall proceed
as though originally filed therein. ..."
A party seeking a transfer under this statute has the initial
burden of showing either "(1) that the transfer is justified
based on the convenience of either the parties or the
witnesses, or (2) that the transfer is justified 'in the
interest of justice.'" Ex parte Indiana Mills & Mfg., Inc.,
10 So. 3d 536, 539 (Ala. 2008).
Here, the defendants primarily argue the interest-of-
justice prong. This prong looks at the connection between the
case and the forum county and asks whether that connection is
"strong enough to warrant burdening the plaintiff's forum with
the action." Ex parte First Tennessee Bank Nat'l Ass'n, 994
So. 2d 906, 911 (Ala. 2008).
An important factor in this strength-of-connection
analysis is the location of the injury. "'Although it is not
a talisman, the fact that the injury occurred in the proposed
5
1190276
transferee county is often assigned considerable weight in an
interest-of-justice analysis,'" Ex parte Southeast Alabama
Timber Harvesting, LLC, 94 So. 3d 371, 375 (Ala. 2012)
(quoting Ex parte Wachovia Bank, N.A., 77 So. 3d 570, 573-74
(Ala. 2011)), because "litigation should be handled in the
forum where the injury occurred," Ex parte Fuller, 955 So. 2d
414, 416 (Ala. 2006). Specific reasons for focusing on the
location of the injury include "the burden of piling court
services and resources upon the people of a county that is not
affected by the case and ... the interest of the people of a
county to have a case that arises in their county tried close
to public view in their county." Ex parte Smiths Water &
Sewer Auth., 982 So. 2d 484, 490 (Ala. 2007). Here, the
accident occurred and Drisker's injuries were sustained in
Lee
County.
There are other factors as well, including the location
of witnesses and evidence. Here, the nonparty eyewitness, the
responding police officers, and the towing company are all
located in Lee County. This Court has often held that the
connection to a county in which a party merely resides is weak
in comparison with the connection to a county where the
accident occurred and was investigated and where witnesses
6
1190276
work or reside. See, e.g., Ex parte Reed, [Ms. 1180564,
September 13, 2019] ___ So. 3d ___ (Ala. 2019); Ex parte Tier
1 Trucking, LLC, 222 So. 3d 1107 (Ala. 2016); Ex parte Autauga
Heating & Cooling, LLC, 58 So. 3d 745 (Ala. 2010); Ex parte
Kane, 989 So. 2d 509 (Ala. 2008).
For example, in Indiana Mills, supra, an automobile
accident occurred in Lee County, but the plaintiff brought
suit in Macon County, where one of the defendants resided and
another defendant conducted business. This Court observed:
"The accident made the basis of this case
occurred in Lee County, and the accident was
investigated by Lee County authorities. We see no
need for Macon County, with its weak connection with
this case, to be burdened with an action that arose
in Lee County simply because one of several
defendants resides there."
10 So. 3d at 542. Similarly, in Alabama Timber, an automobile
accident occurred in Lee County, but the plaintiff filed the
action in Chambers County, where one of the defendants
resided. The emergency personnel who responded to the
accident
worked in Lee County, the only nonparty eyewitness lived and
worked in Lee County, and the plaintiff herself, at the time
of the accident, lived and worked in Lee County. In the
interest of justice, this Court held that the case was
required to be transferred to Lee County. 94 So. 3d at 377.
7
1190276
Likewise, here the investigation was conducted by the
Auburn Police Department, the vehicle was towed to a Lee
County facility, and the only nonparty eyewitness lives and
works in Lee County. Furthermore, at the time of the
accident, Drisker also worked in Lee County. Although one of
Drisker's doctors has an office in Macon County, there is no
indication that witnesses, medical records, documents, or
other evidence are located there. The only connection Macon
County has to this case is that Drisker resides there. Thus,
Macon County has a weak connection to the case, and Lee County
has a strong one. Therefore, transfer of the case from Macon
County to Lee County is in the interest of justice.
Drisker argues that Alabama courts at times "have refused
to transfer an action to the forum in which the accident
occurred." In support, she cites Ex parte Yocum, 963 So. 2d
600 (Ala. 2007), Ex parte Johnson, 638 So. 2d 772 (Ala. 1994),
and Ex parte Siemag, Inc., 53 So. 3d 974 (Ala. Civ. App.
2010).1 We find those cases distinguishable.
1Drisker also cites Ex parte Suzuki Mobile, Inc., 940 So.
2d 1007, 1009 (Ala. 2006), and Ex parte Thomasville Feed &
Seed, Inc., 74 So. 3d 940, 943 (Ala. 2011). Those cases
addressed improper venue under § 6–3–7, not forum non
conveniens under § 6–3–21.1, and are therefore inapposite.
8
1190276
We distinguished Yocum in Alabama Timber, on a basis that
bears repeating here:
"In Yocum, the plaintiff, a resident of Dallas
County, filed her action in Jefferson County, the
residence or principal place of business of two of
the defendants. Several defendants who resided in
Dallas County filed a motion to transfer the action
to Dallas County on the basis of the doctrine of
forum non conveniens. The Jefferson Circuit Court
denied the motion to transfer, and this Court denied
the defendants' subsequent petition for a writ of
mandamus. Unlike this case, Yocum involved a
contract dispute in which the claims against the
Jefferson
County
defendants
included
fraud,
suppression, conversion, and interference with
business relations. This Court concluded that the
Jefferson
Circuit
Court
did
not
exceed
its
discretion in denying the motion to transfer
'[b]ecause of the nexus between Jefferson County and
the alleged participation of the two Jefferson
County
defendants
in
the
alleged
scheme
to
overcharge Cahaba Timber so as to deflate its
profits and hence the amount due [the plaintiff].'
Ex parte Yocum, 963 So. 2d at 603. Thus, this Court
denied the petition for a writ of mandamus seeking
a transfer of the case from Jefferson County not
simply because two of the defendants resided or had
a principal place of business in Jefferson County,
but because Jefferson County had a substantial
connection to the matters giving rise to the
action."
94 So. 3d at 376. The same distinction is present in this
case: Unlike in Yocum, here the forum county's only connection
to the case is the fact that the plaintiff resides there.
Likewise, Johnson is distinguishable. The plaintiff in
Johnson, an automobile-accident case, filed an action in a
9
1190276
defendant's county of residence. The defendants moved to
transfer the case to the county where the accident occurred,
which was also the plaintiff's county of residence. The trial
court granted the motion to transfer on the basis that the
county where the accident occurred was more convenient for the
parties and witnesses. This Court granted mandamus relief,
explaining:
"[T]he [order] to transfer was issued on a motion
that was not verified and to which the defendants
attached no supporting evidentiary material. The
burden of proof was on the movants. The unverified
allegations
presented
by
the
defendants
were
insufficient
to
prove
that
the
defendants'
inconvenience and expense in defending the action in
the venue selected by the plaintiff are so great as
to overcome the plaintiff's right to choose the
forum."
638 So. 2d at 774. Thus, although Drisker cites Johnson in
support of her argument regarding the interest-of-justice
prong of § 6-3-21.1, that case addressed only the convenience
prong. Furthermore, unlike the defendants in Johnson, the
defendants here did not rely on unsupported assertions but
rather submitted the crash report and Jensen's affidavit.
Siemag is also inapposite. The suit in Siemag stemmed
from the plaintiff's workplace injury -- amputation of both
arms -- while he was working in a coal mine. Although the
10
1190276
mine was in Tuscaloosa County, the plaintiff filed his
complaint in Walker County, where he resided. The plaintiff's
doctor testified that, because of the plaintiff's numerous
medical conditions, it would be far more appropriate for him
to attend court in Walker County than in Tuscaloosa County.
The Court of Civil Appeals noted that both Tuscaloosa and
Walker Counties were coal-mining communities. For those
reasons, the Court of Civil Appeals held that the interest of
justice did not require transferring the case to Tuscaloosa
County. Although we have never addressed the validity of the
Court of Civil Appeals' reasons in Siemag, neither of them
would apply in this case. There was no evidence that
requiring Drisker to travel to Lee County would be medically
inappropriate. And Drisker's alleged injury occurred in a car
accident, not a type of accident particular to a locale.
Next, Drisker argues that venue is proper in Macon County
because all the defendants were properly joined under Rule
82(c), Ala. R. Civ. P. However, Drisker conflates the issue
of improper venue with the doctrine forum non conveniens.
There is no question that venue is proper in Macon County.
Rather, the issue is whether, despite proper venue in Macon
County, the case must be transferred to Lee County based on
11
1190276
forum non conveniens. Indeed, the forum non conveniens
statute applies only to actions filed "in an appropriate
venue." § 6–3–21.1(a).
Finally, Drisker argues that, "as the plaintiff, [she]
has a right to choose the forum for her litigation, and that
choice is deserving of deference." Although Drisker is
correct, her choice will not stand if "the defendant
demonstrates ... that the action should be transferred to
another county under the doctrine of forum non conveniens."
Ex parte Jet Pep, Inc., 106 So. 3d 413, 415 (Ala. Civ. App.
2012). Because the defendants have demonstrated that it is in
the interest of justice to transfer this case to Lee County,
the forum non conveniens statute overrides Drisker's choice.
IV. Conclusion
Because the defendants have demonstrated that the
connection between this case and Macon County is weak and that
the connection between this case and Lee County is strong, the
trial court exceeded its discretion by denying the
defendants'
motion to transfer the case to Lee County. We therefore direct
the trial court to transfer this case to Lee County.
PETITION GRANTED; WRIT ISSUED.
12
1190276
Bolin, Shaw, Wise, Bryan, Mendheim, and Mitchell, JJ.,
concur.
Sellers and Stewart, JJ., concur in the result.
13 | June 5, 2020 |
1cb82c24-6419-409c-83b0-f7cd0c035426 | Ex parte Terry Lee Heiser. | N/A | 1190358 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 12, 2020
1190358
Ex parte Terry Lee Heiser. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Terry Lee Heiser v. State of Alabama) (Etowah Circuit Court:
CC-05-219.61; Criminal Appeals : CR-18-1151).
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 June 12, 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 12th day of June, 2020.
Clerk, Supreme Court of Alabama | June 12, 2020 |
27d3fafe-c002-4a03-8144-5bd4f43414ca | Kennamer v. City of Guntersville et al. | N/A | 1180939 | Alabama | Alabama Supreme Court | REL: May 29, 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
____________________
1180939
____________________
Joel Kennamer
v.
City of Guntersville et al.
Appeal from Marshall Circuit Court
(CV-19-900208)
MENDHEIM, Justice.
Joel Kennamer appeals from the Marshall Circuit Court's
dismissal of his complaint seeking a declaratory judgment, a
preliminary
injunction,
and
a
permanent injunction
against
the
City of Guntersville ("the City"), the City's mayor
1180939
Leigh Dollar, each member of the Guntersville City Council1
(the City, Mayor Dollar, and the city council members are
hereinafter
collectively
referred
to
as
"the
City
defendants"), and Lakeside Investments, LLC ("Lakeside"). We
affirm.
I. Facts
Kennamer's complaint sought to prevent the City from
leasing certain City property to Lakeside. The complaint
describes two parcels of property belonging to the City that
collectively compose what is known as "Guntersville City
Harbor." Kennamer's complaint refers to the property as
"Parcel One" and "Parcel Two" (hereinafter referred to
collectively as "the development property").2 Kennamer
1The members of the Guntersville City Council named in
Kennamer's complaint were: Sanchez Watkins, Phillip Kelley,
John Myers, Carson Ray, Donald Myers, Rudy Cornelius, and
Randall E. Whitaker.
2Both the City defendants and Lakeside argue that the
descriptions in the complaint of the development property
contains significant errors, including the actual boundaries
of the two parcels as well as from whom the City obtained
portions of the development property. See, e.g., Lakeside's
brief, pp. 5-7. Because we must construe doubts about the
facts in favor of Kennamer, and because the defendants
maintain that Kennamer's alleged errors "are inconsequential
considering the pertinent legal arguments," id. at 5, we will
use
Kennamer's
terminology
when
referring
to
separate
portions
of the development property.
2
1180939
alleged that Parcel One historically had "been used for
purposes of a public park or other recreational facilities."
Kennamer asserted that the City had erected a pavilion on
Parcel One for public use and that residents used Parcel One
for public fishing, fishing tournaments, truck and tractor
shows, and public festivals and events. Kennamer averred that
a portion of Parcel One was being used for police storage and
an impound facility.
As for Parcel Two, Kennamer alleged that on July 18,
2000, the City filed in the Marshall Probate Court a "Petition
for
Condemnation"
of
property
belonging to
CSX
Transportation,
Inc. ("CSX"), "for the purpose of constructing [a] public boat
dock and a public recreational park." The petition for
condemnation does, in fact, state: "The petitioner, City of
Guntersville, has deemed and determined that the acquisition
of the real estate hereinafter described is in the public
interest and necessary for public use for the construction and
maintenance, a public dock and a public recreation park."3 On
3Along with their motions to dismiss, the City defendants
and Lakeside submitted various materials pertaining to the
properties
at
issue
--
including
petitions, deeds,
publication
notices, and court pleadings -- that the circuit court
expressly considered in ruling on their motions to dismiss
Kennamer's complaint. All parties agree that those documents
3
1180939
April 2, 2003, the probate court entered an order condemning
Parcel Two "for the use of constructing a public boat dock and
a public recreational park area and such other uses as set out
in the original Complaint." CSX appealed that order to the
Marshall Circuit Court. On November 2, 2004, while the case
was pending on appeal, the parties entered into a settlement
agreement that was approved by the circuit court. The
settlement provided that the City would allocate additional
funds to CSX in payment for Parcel Two and, in exchange, the
City was "awarded and granted all right, title and interest"
in Parcel Two. The court-approved settlement acknowledged
that Parcel Two was "condemned for the uses and purposes
stated and sought in the Petition for Order of Condemnation."
On March 8, 2018, the City filed a declaratory-judgment
action in the Marshall Circuit Court against CSX. In its
complaint, the City acknowledged the language in the
were referenced in Kennamer's complaint. "A trial court does
not treat a Rule 12(b)(6) motion as a summary-judgment motion
by considering authenticated documents that are attached to
the motion to dismiss if '"'the document[s are] referred to in
the complaint and [are] central to the plaintiff[s']
claim[s].'"'" Newson v. Protective Indus. Ins. Co. of
Alabama, 890 So. 2d 81, 87 (Ala. 2003) (quoting Donoghue v.
American Nat'l Ins. Co., 838 So. 2d 1032, 1035 (Ala. 2002),
quoting in turn other cases).
4
1180939
November 2, 2004, settlement agreement referencing the use of
Parcel Two for the purposes stated in the petition for
condemnation -- which had stated it was to be used to
construct "a public boat dock and a public recreation park
area." The City asked the circuit court to "clarify the
Consent Settlement to appropriately and properly reflect that
[the City], as the fee simple owner of [Parcel Two], can put
[Parcel Two] to any lawful use, without restriction, the City
determines to be in the public interest." CSX did not file an
answer or otherwise make an appearance in the action, and the
City subsequently filed a motion for a default judgment. On
May 1, 2018, the circuit court entered a default judgment in
favor of the City and against CSX, stating that the City "is
the fee simple owner" of Parcel Two and that, as such, the
City "may use [Parcel Two] for any lawful use, without
restriction, which the City of Guntersville determines to be
in the public interest."
On June 6, 2018, the City published a legal notice
"pursuant to Amendment No. 772 to the Constitution of Alabama
of 1901, as amended (recodified as Section 94.01 of the
Recompiled Constitution of
Alabama
of
1901),"
explaining
that,
5
1180939
at a public meeting of the city council to be held on June 18,
2018, the mayor and the city council would consider a
resolution approving a "Project Development Agreement" ("the
development agreement") between the City and Lakeside,
together with a ground lease to Lakeside of certain City
property for a development project. The public notice stated
the "public benefits" from the proposed development agreement
would include, among other things, "increasing sales, lodging
and other tax revenues with currently unused property of the
City,"
"promoting
tourism,
commerce,
and
industrial
development within the City," and "serving as a catalyst for
entertainment,
commercial,
retail
and
other
developments
along
Lake Guntersville and elsewhere within the downtown core of
the City." On June 18, 2018, the city council approved a
resolution declaring: that it "own[ed] fee simple title" to
property "fronting Lake Guntersville in the downtown area of
the City and which, to date, the City has been unable to
utilize in any material manner"; that the City authorized the
development project contained in the development agreement
with
Lakeside
(hereinafter
the
"City
Harbor
development"); and
that the City approved a ground lease of property specifically
6
1180939
described in the resolution for use in the City Harbor
development, which is "hereby determined by the City to be in
the public interest and, further, is being made under and in
furtherance of any power and authority authorized by
Amendment
772 to the Constitution of Alabama of 1901." The resolution
also declared that the ground lease "will serve a valid and
sufficient public purpose, notwithstanding any incidental
benefit accruing to any private entity or entities." At the
same meeting, the city council adopted an ordinance stating
that the development property was "no longer needed for public
or municipal purposes." The development agreement expressly
stated that the development property would be used "for a
mixed-use lakefront development containing restaurants,
entertainment,
retail,
office
space,
high
density
multi-family
residential, and other appropriate commercial uses, including
parking."
On January 12, 2019, the City published another legal
notice "pursuant to Amendment No. 772 to the Constitution of
Alabama of 1901, as amended (recodified as Section 94.01 of
the Recompiled Constitution of Alabama of 1901)," explaining
that, at a public meeting of the city council to be held on
7
1180939
January 22, 2019, the mayor and the city council would
consider a resolution approving an updated version of the
development agreement with Lakeside together with a ground
lease that would include additional City property for the City
Harbor development. The legal notice again listed the "public
benefits" to be derived from the City Harbor development. On
January 22, 2019, the city council approved a resolution
authorizing
the
lease
of
the
development
property
(hereinafter
"the development lease") "under and in furtherance of any
power and authority authorized by Amendment 772 to the
Constitution of Alabama of 1901." Like the June 18, 2018,
resolution, the new resolution stated that the development
lease "will serve a valid and sufficient public purpose,
notwithstanding any
incidental
benefit
accruing
to
any
private
entity or entities." At the same meeting, the city council
approved an ordinance declaring that the development property
"is no longer needed for public or municipal purposes." The
development agreement, as updated, again affirmed that the
development property would be used "for a mixed-use lakefront
development containing restaurants, entertainment, retail,
8
1180939
office
space,
high
density
multi-family
residential,
and
other
appropriate commercial uses, including parking."
On May 9, 2019, Kennamer sued the City defendants and
Lakeside in the Marshall Circuit Court seeking a judgment
declaring the development lease void on the basis that the
City lacked the authority to lease to a third-party developer
City property that had been dedicated for use as, and/or was
being used as, a public park. Specifically, the complaint
alleged that the development lease violated § 35-4-410, Ala.
Code 1975, which requires approval of a majority of the
electors in the City for alienation of property that is
designated as a public park or recreational facility.
Kennamer also sought a preliminary and permanent injunction
against leasing the property in question.4 The complaint
asserted that Kennamer filed the action in his capacity as a
resident and taxpayer of the City.
On June 13, 2019, the City defendants and Lakeside filed
motions to dismiss the complaint. The motions contended that
4Kennamer did not argue for an injunction before the
circuit court, and he does not attempt to assert in this
appeal that he met the requirement for the issuance of an
injunction. Therefore, the initial request for injunctive
relief is not before us in this appeal.
9
1180939
the City had authority to execute the development lease under
Art. IV, § 94.01, Ala. Const. 1901 (Off. Recomp.), also cited
as Amendment No. 772, Ala. Const. 1901. The motions argued in
the alternative that, even if § 94.01 did not apply, § 35-4-
410 would not hinder the lease to Lakeside because the
development property had never been dedicated as a public park
and/or recreational facility. On July 15, 2019, Kennamer
filed his response in opposition to the motions to dismiss.
Kennamer argued that § 94.01 did not apply to a lease for the
type of project described in the development agreement. He
also contended that evidence would show that the development
property had been dedicated as a public park and/or that it
was being used as a public park, and thus § 35-4-410 did
apply. Kennamer also argued that the City had violated
§ 11-47-21, Ala. Code 1975, because, he said, it had
fraudulently stated that the development property was not
needed for public or municipal purposes. On July 29, 2019,
the circuit court held a hearing on the motions.
On August 9, 2019, the circuit court granted the motions
to dismiss filed by the City defendants and Lakeside. The
10
1180939
judgment granting the motions explained the circuit court's
reasoning:
"The Court concludes that [Kennamer's] claims
for declaratory and injunctive relief in Counts One
and Two of the complaint fail to state a claim upon
which relief can be granted against the City
defendants and Lakeside based on § 94.01 of the
Alabama Constitution ('Amendment 772'). In so
ruling, the Court finds that, based on the facts
alleged in [Kennamer's] complaint and otherwise
properly before the Court, the City's lease of
Parcels One and Two to Lakeside for the purpose of
commercially developing the City Harbor project
falls within the scope of Amendment 772 and was a
duly authorized real estate transaction given the
City's undisputed compliance with the procedural
requirements exclusively set out in Amendment 772.
Additionally, the Court finds that the City was not
required by Ala. Code § 35-4-410 (1975) to obtain
approval from a majority of its electorate before
leasing the real property to Lakeside because
Amendment 772 contains no such requirement and as a
constitutional amendment it overrides § 35-4-410.
Lastly, the Court finds that § 35-4-410 is
inapplicable in any event because the real property
subject to the lease at issue was not dedicated as
a public park or recreational facility within the
meaning of Alabama law."
On August 20, 2019, Kennamer appealed the circuit court's
judgment.
II. Standard of Review
"This Court must review de novo the propriety of
a dismissal for failure to state a claim and must
resolve all doubts in favor of the plaintiff:
11
1180939
"'It is a well-established principle of law
in this state that a complaint, like all
other
pleadings,
should
be
liberally
construed, Rule 8(f), Ala. R. Civ. P., and
that a dismissal for failure to state a
claim is properly granted only when it
appears beyond a doubt that the plaintiff
can prove no set of facts entitling him to
relief. Winn–Dixie Montgomery, Inc. v.
Henderson, 371 So. 2d 899 (Ala. 1979)....
"'Where a 12(b)(6) motion has been
granted and this Court is called upon to
review the dismissal of the complaint, we
must examine the allegations contained
therein and construe them so as to resolve
all doubts concerning the sufficiency of
the complaint in favor of the plaintiff.
First National Bank v. Gilbert Imported
Hardwoods, Inc., 398 So. 2d 258 (Ala.
1981). In so doing, this Court does not
consider
whether
the
plaintiff
will
ultimately prevail, only whether he has
stated a claim under which he may possibly
prevail. Karagan v. City of Mobile, 420
So. 2d 57 (Ala. 1982).'
"Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.
1985)."
Bay Lines, Inc. v. Stoughton Trailers, Inc., 838 So. 2d 1013,
1017–18 (Ala. 2002).
III. Analysis
Disposition
of
this
appeal
primarily
turns
on
interpreting Art. IV, § 94.01, Ala. Const. 1901 (Off.
Recomp.). Indeed, Kennamer argues that, absent the
12
1180939
authorization in § 94.01 of the development lease to Lakeside,
both § 35-4-410 and § 11-47-21 would prohibit the City from
executing the development lease. See, e.g.,
Kennamer's brief,
p. 31 (arguing that, "[s]ince the lease does not fall within
the provisions of Ala. Const. §94.01, the City Defendants do
not have any authority to lease or alienate property that is
still being used for public or municipal purposes").
In pertinent part, § 94.01 provides:
"(a) The governing body of any county, and the
governing body of any municipality located therein,
for which a local constitutional amendment has not
been adopted authorizing any of the following, shall
have full and continuing power to do any of the
following:
"(1) Use public funds to purchase,
lease, or otherwise acquire real property,
buildings, plants, factories, facilities,
machinery, and equipment of any kind, or to
utilize
the
properties
heretofore
purchased
or otherwise acquired, and improve and
develop the properties for use as sites for
industry of any kind or as industrial park
projects, including, but not limited to,
grading and the construction of roads,
drainage,
sewers,
sewage
and
waste
disposal
systems, parking areas, and utilities to
serve the sites or projects.
"(2) Lease, sell, grant, exchange, or
otherwise convey, on terms approved by the
governing body of the county or the
municipality, as applicable, all or any
part of any real property, buildings,
13
1180939
plants, factories, facilities, machinery,
and equipment of any kind or industrial
park project to any individual, firm,
corporation, or other business entity,
public
or
private,
including
any
industrial
development
board
or
other
public
corporation or authority heretofore or
hereafter created by the county or the
municipality,
for
the
purpose
of
constructing, developing, equipping, and
operating
industrial,
commercial,
research,
or service facilities of any kind.
"(3) Lend its credit to or grant
public funds and things of value in aid of
or to any individual, firm, corporation, or
other business entity, public or private,
for the purpose of promoting the economic
and industrial development of the county or
the municipality.
"(4) Become indebted and issue bonds,
warrants which may be payable from funds to
be realized in future years, notes, or
other
obligations,
or
evidences
of
indebtedness to a principal amount not
exceeding 50 percent of the assessed value
of taxable property therein as determined
for state taxation, in order to secure
funds for the purchase, construction,
lease, or acquisition of any of the
property described in subdivision (1) or to
be used in furtherance of any of the other
powers or authorities granted in this
[Section]. The obligations or evidences of
indebtedness may be issued upon the full
faith and credit of the county or any
municipality or may be limited as to the
source of their payment.
"....
14
1180939
"(b) In carrying out the purpose of this
[Section], neither the county nor any municipality
located therein shall be subject to Section 93 or 94
of this Constitution. Each public corporation
heretofore created by the county or by any
municipality
located
therein,
including
specifically
any industrial development board incorporated under
Article 4 of Chapter 54 of Title 11 of the Code of
Alabama
1975,
and
any
industrial
development
authority incorporated or reincorporated under
Chapter 92A of Title 11 of the Code of Alabama 1975,
and the Shoals Economic Development Authority
enacted under Act No. 95-512, 1995 Regular Session,
are validated and the powers granted to the board or
authority under its respective enabling legislation
are validated notwithstanding any other provision of
law or of this Constitution. The powers granted by
this [Section] may be exercised as an alternative
to, or cumulative with, and in no way restrictive
of, powers otherwise granted by law to the county,
or to any municipality, or to any agency, board, or
authority created pursuant to the laws of this
state.
"(c) Neither the county nor any municipality
located therein shall lend its credit to or grant
any public funds or thing of value to or in aid of
any private entity under the authority of this
[Section] unless prior thereto both of the following
are satisfied:
"(1) The action proposed to be taken
by the county or municipality is approved
at a public meeting of the governing body
of the county or municipality, as the case
may be, by a resolution containing a
determination by the governing body that
the expenditure of public funds for the
purpose specified will serve a valid and
sufficient public purpose, notwithstanding
any incidental benefit accruing to any
private entity or entities.
15
1180939
"(2) At least seven days prior to the
public meeting, a notice is published in
the
newspaper
having
the
largest
circulation in the county or municipality,
as
the
case
may
be,
describing
in
reasonable detail the action proposed to be
taken, a description of the public benefits
sought to be achieved by the action, and
identifying
each
individual,
firm,
corporation, or other business entity to
whom or for whose benefit the county or the
municipality proposes to lend its credit or
grant public funds or thing of value.
"....
"(d) This [Section] shall have prospective
application
only.
Any
local
constitutional
amendments previously adopted and any local law
enacted pursuant to such amendment shall remain in
full force and effect."
Kennamer does not dispute that the City fulfilled the
procedural requirements of § 94.01, which are enumerated in
subsection (c), i.e., (1) the City gave sufficient advanced
public notice of the public meetings at which it considered
the development lease and the development agreement, and
(2) at those meetings the city council approved resolutions
determining that the development lease "will serve a valid and
sufficient public purpose, notwithstanding any incidental
benefit accruing to any private entity or entities."
§ 94.01(c)(1).
16
1180939
Instead of any procedural objection, Kennamer contends
that the development lease does not fulfill any purpose
permitted
under
§
94.01(a)(2).
In
pertinent
part,
§ 94.01(a)(2) authorizes the City to "[l]ease ... all or any
part of any real property ... to any ... corporation, or other
business entity, public or private, ... for the purpose of
constructing,
developing,
equipping,
and
operating
industrial,
commercial, research, or service facilities of any kind."
Kennamer contends that the City Harbor development "falls
outside of the scope and meaning of Ala. Const. § 94.01"
because
the
development
agreement
specifies
that
the
development property will be used for "constructing and
operating restaurants, entertainment, retail businesses and
condos." Kennamer's brief, pp. 21, 25. Kennamer argues that
the City Harbor development will consist of "retail"
businesses, that § 94.01 "did not include the term 'retail,'"
and that such businesses "do not fall within the definition of
'commercial' so as to allow the lease under Ala. Const. §
94.01."5 Id. at pp. 21, 25.
5In his reply brief, Kennamer additionally argues that
"operating a condominium development" also does not fall
within purposes listed in § 94.01(a)(2) of "industrial,
commercial, research, or service facilities of any kind."
17
1180939
In contending that the term "retail" is not included
within the term "commercial" in § 94.01(a)(2), Kennamer relies
on two cases: McDonald's Corp. v. DeVenney, 415 So. 2d 1075
(Ala. 1982), and Brown v. Longiotti, 420 So. 2d 71 (Ala.
1982). In McDonald's Corp., a group of private-business
owners in Elmore County filed a declaratory-judgment action
against
"McDonald's Corporation, Aronov Realty Company,
K–Mart Corporation, and the Industrial Development
Board of Elmore County, regarding the validity of
two proposed bond issues established pursuant to
Code 1975, §§ 11–20–30 to –50 (1977 County Board
Act). The bond issues were authorized by the
Industrial Development Board of Elmore County. The
two projects involve retail facilities. One project
is a McDonald's Restaurant and the other is a retail
shopping
center
comprised
of
various
retail
mercantile stores including a K–Mart Store.
"The issue on appeal is the same issue that was
before the trial court -- whether the two projects
are within the definition of 'project' under the
1977 County Board Act. The trial court held that
the Act does not include as a 'project' the 'planned
expansion of retail facilities.'"
Kennamer's reply brief, p. 6. However, Kennamer did not
present this argument to the circuit court, nor did he offer
it in his initial appellate brief. Therefore, we will not
consider this argument. See, e.g., Melton v. Harbor Pointe,
LLC, 57 So. 3d 695, 696 n.1 (Ala. 2010) (noting that "this
Court will not consider arguments made for the first time in
a reply brief").
18
1180939
McDonald's Corp., 415 So. 2d at 1077. Section § 11-20-30(5),
Ala. Code 1975, defines a "project" under the 1977 County
Board Act, in part, as:
"Any land and any building or other improvement
thereon and all real and personal properties deemed
necessary in connection therewith, whether or not
now in existence, which shall be suitable for use by
the following or by any combination of two or more
thereof:
"a.
Any
industry
for
the
manufacturing, processing or assembling of
any agricultural, manufactured or mineral
products;
"b. Any commercial enterprise in
storing,
warehousing,
distributing
or
selling any product of agriculture, mining
or industry; and
"c. Any enterprise for the purpose of
research, but does not include facilities
designed for the sale or distribution to
the public of electricity, gas, water or
telephones or other services commonly
classified as public utilities."
After quoting this definition, the McDonald's Corp.
Court stated:
"Obviously, subsections a. and c. do not apply;
thus, the question before this Court is whether the
Legislature intended for retail enterprises such as
McDonald's or K–Mart to be considered as '[a]ny
commercial enterprise in storing, warehousing,
distributing or selling any product of agriculture,
mining or industry.'"
19
1180939
McDonald's Corp., 415 So. 2d at 1078.
The Court chose to examine the meaning of the 1977 County
Board Act in the context of three other acts passed by the
legislature during the same relative period as the 1977 County
Board Act -- the Cater Act, the Wallace Act, and the 1961
County Act -- because the Court believed that "all four acts
have a common purpose and the means provided to effectuate
this purpose are identical." McDonald's Corp., 415 So. 2d at
1078. The Court then explained:
"All of these acts express a similar intent and
purpose, that is, to give a municipality or county
the power to offer inducements to industrial,
manufacturing, commercial, and research enterprises
to either locate in Alabama or expand existing
facilities in this state. These acts authorize
municipalities and counties to acquire industrial,
manufacturing, commercial, and research projects and
to issue bonds to finance the cost of such
acquisitions. Each of the four acts grants this
authority to a different body. ...
"This Court is of the opinion that the intent of
the Legislature in the passage of the 1977 County
Board Act, as well as the Cater Act, the Wallace
Act, and the 1961 County Act, was not to give retail
business establishments desiring to expand their
operations within the state such as McDonald's and
K–Mart, ready access to lower cost financing than
other retail businesses; the legislative intent was
to induce, attract, and persuade businesses of a
non-retail nature, particularly industrial, mining,
manufacturing, and research enterprises, to locate
20
1180939
here
or
to
expand
existing
facilities in
this
state."
McDonald's Corp., 415 So. 2d at 1079 (emphasis added). In
support of its conclusion that the 1977 County Board Act did
not intend to include "retail" businesses within its
definition of a "project," the McDonald's Corp. Court cited
several other acts passed by the legislature "which
specifically provide inducements for retail enterprises such
as McDonald's and K–Mart." Id. The McDonald's Corp. Court
then concluded:
"Clearly, these acts show that the Legislature
has enacted legislation designed to include retail
enterprises. Appellants' contention that retail
establishments similar to McDonald's and K–Mart were
intended by the Legislature to be included in the
definition of 'project' in the [1977] County Board
Act is a persuasive argument because a retail
establishment could fall under the broad term
'commercial enterprise' as that term is used in the
County
Board
Act,
if
that
term
is
viewed
independently from the rest of the statute and the
history of the legislation. However, we must view
the statute in a manner which best comports with the
intent of the Legislature. Thus, we must interpret
the term 'commercial enterprise' as it is used in
the statute by reference to the entire statute and
we must examine the history of the legislation,
which shows the County Board Act to be a part of the
legislative plan to bring industry into this state.
The Legislature could have specifically included the
word 'retail' in its definition of 'project' but it
did not."
McDonald's Corp., 415 So. 2d at 1080.
21
1180939
In Brown v. Longiotti, a group of retail-business owners
sued the City of Hamilton and other defendants
"to challenge the city's plan to construct a retail
shopping center and to issue industrial revenue
bonds to finance its acquisition and construction.
Under the terms of the plan, the land would be
developed by the city and then leased to Samuel
Longiotti who would in turn lease the property to
K-Mart. The bonds that the city proposes to issue
are tax-exempt."
Brown, 420 So. 2d at 71–72. The circuit court granted a
motion to dismiss the action on the basis that Amendment No.
84, Ala. Const. 1901 (recodified as Ala. Const. 1901, Local
Amendments, Marion County § 4), granted the City of Hamilton
the authority to issue the bonds.
In pertinent part, Amendment No. 84 provides:
"Any provision of the Constitution or laws of
the
state
of
Alabama
to
the
contrary
notwithstanding, any municipality in Marion county,
or any one or more of them, shall have full and
continuing power and authority, without any election
or approval other than the approval of its governing
body, to do any one or more of the following:
"1. To purchase, construct, lease, or
otherwise acquire real property, plants,
buildings, factories, works, facilities,
machinery and equipment of any kind.
"2. To lease, sell for cash or on
credit, exchange, or give and convey any
such property described in subdivision 1
22
1180939
above, to any person, firm, association or
corporation.
"3. To promote local industrial,
commercial or agricultural development and
the
location
of
new
industries
or
businesses therein.
"4. To become a stockholder in any
corporation, association or company.
"5. To lend its credit or to grant
public moneys and things of value in aid
of,
or
to,
any
individual,
firm,
association, or corporation whatsoever."
(Emphasis added.)
The Brown Court concluded that "the bond offering for
locating a retail store in the municipality of Hamilton is
inconsistent with the intent and object of amendment 84."
Brown, 420 So. 2d at 74. To explain its reasoning, the Court
then quoted extensively from McDonald's Corp., finding that
"the reasoning employed in McDonald's Corp. v. DeVenney is
applicable to amendment 84." Brown, 420 So. 2d at 75.
Specifically, the Brown Court quoted the portion of
McDonald's
Corp. that concluded that the legislature's intent in
enacting
the 1977 County Board Act, the Cater Act, the Wallace Act, and
the 1961 County Act "'was not to give retail business
establishments desiring to expand their operations within the
23
1180939
state such as McDonald's and K-Mart, ready access to lower
cost financing than other retail businesses.'"6 Brown, 420
So. 2d at 75 (quoting McDonald's Corp., 415 So. 2d 1079).
Kennamer contends that the interpretation of the term
"commercial" in § 94.01 should mirror the conclusions of the
McDonald's Corp. and Brown Courts. That is, the term
"commercial" should not be interpreted to include "retail"
establishments such as those planned for the City Harbor
development.
"[H]ad
retail
purposes
been
intended
to
be
authorized by Ala. Const. § 94.01 it would have
clearly said so. The fact that it is not expressly
included
means
that
the
stated
purposes
(restaurants, entertainment, retail stores and
multi-unit housing) in the ordinances approved by
the City Defendants do not fall within the meaning
and intent of Ala. Const. 94.01. Without such
expressed
provision,
it
is
clear
that
the
legislature and/or the citizens of this State did
not give local governments the authority to lease
municipal-owned public property to a private, for
profit company to build bars, restaurants, retail
stores and condos. The City Defendants simply did
6The Brown Court also concluded that the sale of tax-free
bonds by the City of Hamilton "would not serve a significant
'public purpose,' but, instead would primarily benefit the
individual lessee through lower rentals." Brown, 420 So. 2d
at 75. Kennamer does not argue that the development lease
would not serve a "public purpose" as that phrase is discussed
in Brown; thus, we do not deem that portion of Brown to be
relevant to this case.
24
1180939
not have the authority to lease the property to the
Developer for such retail purposes."
Kennamer's brief, pp. 29-30.
We cannot agree with Kennamer's argument. Simply put,
§ 94.01 is different than the law at issue in McDonald's Corp.
and Brown; it is more broadly worded to suit a broader
purpose. Consequently, a straightforward reading of § 94.01
does not yield the same result reached in McDonald's Corp. and
Brown.
"'The
fundamental
principle
of
statutory
construction is that words in a statute must be
given their plain meaning.' Mobile Infirmary Med.
Ctr. v. Hodgen, 884 So. 2d 801, 814 (Ala. 2003).
'When a court construes a statute, "[w]ords used in
[the] statute must be given their natural, plain,
ordinary, and commonly understood meaning, and where
plain language is used a court is bound to interpret
that language to mean exactly what it says."'
Ex parte Berryhill, 801 So. 2d 7, 10 (Ala. 2001)
(quoting IMED Corp. v. Systems Eng'g Assocs. Corp.,
602 So. 2d 344, 346 (Ala. 1992))."
Trott v. Brinks, Inc., 972 So. 2d 81, 85 (Ala. 2007).
Section 94.01(a)(2) authorizes a county or municipality
to "[l]ease, sell, grant, exchange, or otherwise convey ...
all or any part of any real property ... to any ...
corporation, or other business entity, public or private, ...
for the purpose of constructing, developing, equipping, and
25
1180939
operating industrial, commercial, research, or service
facilities of any kind." (Emphasis added.) The ordinary
understanding of the phrase "commercial ... facilities of any
kind" plainly includes retail establishments. Section 94.01
was ratified in December 2004. At that time, Black's Law
Dictionary defined the term "commerce" as: "The exchange of
goods and services, esp. on a large scale involving
transportation between cities, states, and nations." Black's
Law Dictionary 285 (8th ed. 2004). "Retail" was defined as:
"The sale of goods or commodities to ultimate consumers, as
opposed to the sale for further distribution of processing."
Id. at 1341.7 The common understanding was, and is, that
"commercial"
activity
concerns
transactions
involving
goods
in
general, while "retail" activity concerns the sale of goods
directly to consumers. In other words, retail business is a
7The
seventh
and
eighth
editions
of
Black's
Law
Dictionary
do not contain definitions for the term "commercial." The
sixth edition defines "commercial" as: "Relates to or is
connected with trade and traffic or commerce in general; is
occupied with business and commerce." Black's Law Dictionary
270 (6th ed. 1990). The first definition of "commercial" in
the current edition is: "Of, relating to, or involving the
buying and selling of goods." Black's Law Dictionary 336
(11th ed. 2019). The definition of "retail" has remained
essentially the same through all of the aforementioned
editions of Black's Law Dictionary.
26
1180939
subset of "commercial" business. That the term "commercial"
in § 94.01 is not to be construed in a specific, exclusive
sense is confirmed by the use of the phrase "facilities of any
kind." That phrase counsels for interpreting the term
"commercial" broadly and inclusively to encompass all
varieties of commerce, which obviously would include retail
facilities.
In contrast, the term "commercial" used in § 11-20-30 --
the provision of the 1977 County Board Act at issue in
McDonald's Corp. -- and used in Amendment No. 84 -- the
provision at issue in Brown -- is not accompanied by the
phrase "of any kind." Section 11-20-30(5)(b) concludes in the
definition of "project" "[a]ny commercial enterprise in
storing, warehousing, distributing or selling any product of
agriculture,
mining
or
industry."
"[A]ny
commercial
enterprise"
is
limited
to
enterprises related
to
"agriculture,
mining
or
industry."
Amendment
No.
84
authorizes
municipalities
in
Marion
County
"[t]o
promote
local
industrial, commercial or agricultural development and the
location of new industries or businesses therein." It does
27
1180939
not indicate that the term "commercial" should be given its
broadest meaning as is indicated in the text of § 94.01. 8
Beyond the clear difference in the wording of § 94.01 and
the provisions at issue in McDonald's Corp. and Brown, the
purpose of § 94.01 also stands in contrast to the purpose of
§ 11-20-30 of the 1977 County Board Act discussed in
McDonald's Corp. and Amendment No. 84 at issue in Brown. As
we noted earlier in this analysis, the McDonald's Corp. Court
concluded that the legislature's purpose in enacting the 1977
County Board Act -- as well as the Wallace Act, the Cater Act,
and the 1961 County Act -- was "to induce, attract, and
persuade businesses of a non-retail nature, particularly
industrial, mining, manufacturing, and research enterprises,
to locate here or to expand existing facilities in this
state." McDonald's Corp., 415 So. 2d at 1079. The McDonald's
Corp. Court contrasted those acts with other acts that
8We would observe, however, that nothing in the text of
Amendment No. 84 indicates that the term "commercial" should
be given a specifically restricted meaning. The Brown Court's
conclusion that the term "retail" was not included in the
understanding of "commercial" in Amendment No. 84 appears to
depend entirely upon its conclusion that Amendment No. 84 was
similar to the 1977 County Board Act, the Cater Act, the
Wallace Act, and the 1961 County Act -- a conclusion for which
the Brown Court offered no explanation.
28
1180939
specifically concerned retail businesses. The Brown Court
concluded that Amendment No. 84, which was ratified in 1950,
had a similar purpose for municipalities in Marion County.
See Brown, 420 So. 2d at 75.
However, the provisions addressed in McDonald's Corp. and
Brown represent just part of the legal landscape of economic-
development
legislation
for
Alabama
counties
and
municipalities. The backdrop for such legislation was § 94 of
the Alabama Constitution of 1901, which, in pertinent part,
provides:
"(a) The Legislature shall not have power to
authorize
any
county,
city,
town,
or
other
subdivision of this state to lend its credit, or to
grant public money or thing of value in aid of, or
to any individual, association, or corporation
whatsoever, or to become a stockholder in any
corporation, association, or company, by issuing
bonds or otherwise."
§ 94, Ala. Const. 1901.
Over time, § 94 had the effect of limiting the ability of
counties and municipalities to promote economic development.
Consequently, the legislature came up with the idea of
empowering local governments to create separate entities that
could assist those governments with attracting business
opportunities.
29
1180939
"In 1949, the Alabama Legislature adopted the
Cater Act, § 11–54–80 et seq., Ala. Code 1975, to
promote and to develop industry in Alabama. The
Cater Act authorizes municipalities to incorporate
industrial development boards (IDBs). §§ 11–54–81
through –85, Ala. Code 1975. The Act authorizes
IDBs to acquire projects composed of real and
personal property and to lease, to sell, to
exchange, to donate, or to convey its projects or
properties. §§ 11–54–87(a)(4), (a)(5), and (a)(6).
..."
Dobbs v. Shelby Cty. Econ. & Indus. Dev. Auth., 749 So. 2d
425, 428 (Ala. 1999). After the legislature adopted the Cater
Act, the governor asked this Court for an advisory opinion as
to whether the creation of industrial development boards
violated § 94. The resulting opinion advised that
"[t]he restriction in
Section 94
applies only to
a 'county, city, town, or other subdivision of this
state.' An industrial development board is a public
corporation and is a separate entity from a county,
city, or town. It is not the alter ego or agent of
the municipality in which it is organized. It is
also not a subdivision of the state."
Smith v. Industrial Dev. Bd. of Andalusia, 455 So. 2d 839, 840
(Ala. 1984) (summarizing Opinion of the Justices No. 120, 254
Ala. 506, 49 So.2d 175 (1950)). With the specter of
constitutional infirmity out of the way, the legislature
followed the enactment of the Cater Act with several other
"industrial-development statutes":
30
1180939
"In 1951, the legislature passed the Wallace
Act, § 11–54–20 et seq., Ala. Code 1975. The
Wallace Act authorizes the municipalities themselves
to perform the same acts and services as the IDBs.
McDonald's Corp. v. DeVenney, 415 So. 2d 1075 (Ala.
1982). However, the Wallace Act requires that the
principal of and interest on bonds issued by a
municipality must be paid from the revenues derived
from leasing the property. § 11–54–24. ...
"In order to give counties the same economic
opportunities as municipalities, the legislature
adopted the 1961 County Board Act, §§ 11–20–1
through –13, Ala. Code 1975. The 1961 County Board
Act authorizes counties to acquire and to improve
land (projects), to lease the projects, and to issue
'revenue bonds' to defray the costs of acquiring and
constructing the projects. § 11–20–3. However,
before a county may issue any bonds, the county must
lease the property. ...
"The legislature next adopted the 1977 County
Board Act, which authorizes counties to incorporate
industrial development boards. § 11–20–30 et seq.,
Ala. Code 1975. The 1977 County Board Act grants the
IDBs incorporated by counties the same powers,
rights, and duties as the IDBs incorporated by
municipalities. §§ 11–20–37, 11–20–38, and 11–20–41.
...
"In 1989, the legislature adopted the County
Industrial Development Authorities Act, § 11–92A–1
et seq., Ala. Code 1975, for the creation and
empowerment of industrial development authorities
(IDAs). Existing industrial development authorities
and industrial development boards are authorized to
reincorporate under §§ 11–92A–6 and –7 to cure
irregularities or otherwise to obtain the benefits
of
the
Act.
The
Act
also
authorizes
the
incorporation
of
new
industrial
development
authorities. §§ 11–92A–3 through –6. The 1989 Act
grants to IDAs the power to acquire real property
31
1180939
for the purpose of establishing industrial parks, to
improve such industrial parks, and to lease or to
sell projects consisting of land, improvements, or
both in the industrial parks to any persons.
§ 11–92A–12(18). ..."
Dobbs, 749 So. 2d at 428-29. Dobbs itself concerned the Tax
Incentive Reform Act of 1992 (TIRA), codified at §§ 40–9B–1
through –8, Ala. Code 1975, which was
"intended to promote industrial growth in Alabama by
permitting
municipalities,
counties,
and
PIAs
[Public Industrial Authorities] to abate municipal,
county, and state noneducational ad valorem taxes,
construction-related 'transaction' taxes, mortgage
taxes, and recording taxes for a 'maximum exemption
period' of 10 years when such taxes would otherwise
be levied or collected 'with respect to private use
industrial property.' §§ 40–9B–4 and –5, Ala. Code
1975."
Dobbs, 749 So. 2d at 428. Each of these legislative acts
expanded the authority of counties and municipalities for the
purpose of promoting economic development in their respective
regions.
One particularly interesting landmark in this landscape
of economic-development legislation is noted in Smith v.
Industrial Development Board of Andalusia, supra:
"The issues presented by
this appeal
concern the
constitutionality of Act No. 83–199, amending
§ 11–54–80, Ala. Code 1975, known as the Cater Act.
The Cater Act authorizes the incorporation of
industrial development boards, and gives them the
32
1180939
power to assume certain 'projects' designated by the
legislature as promoting a public purpose. Ala.
Code 1975, § 11–54–81(a). Act No. 83–199 amends the
Cater Act to include in the list of projects '[a]ny
commercial enterprise ... providing hotel, motor inn
services ... including food or lodging services or
both.' Ala. Code 1975, § 11–54–80(3)."
455 So. 2d at 840 (emphasis added). This amendment to the
Cater Act was enacted the year after this Court's decision in
McDonald's Corp. The Smith Court concluded that the amendment
did not run afoul of § 94 because it was directed to
industrial development boards. More generally, the amendment
to the Cater Act at issue in Smith indicated an updated and
expanded understanding of what could constitute a "commercial
enterprise" that local-government industrial development
boards could promote in their regions.
Moreover, this legal landscape is not confined to
ordinary legislation: Amendment No. 84, ratified in 1950 and
examined in Brown, constituted the first in a large number of
local constitutional amendments to the Alabama Constitution
concerning economic development. Several of those local
amendments mirrored the language in Amendment No. 84 that
empowered municipalities in Marion County "[t]o promote local
industrial, commercial or agricultural development and the
33
1180939
location of new industries or businesses therein."9 However,
some
other
local
constitutional amendments --
ratified
several
years later than most of the local amendments that parroted
Amendment No. 84 -- mirror the language in § 94.01 that
empowers counties and municipalities to "[l]ease,... all or
any part of any real property ... to any ... corporation ...
for the purpose of ... developing ... commercial ...
9By this Court's survey, at least 26 local constitutional
amendments parrot the language of Amendment No. 84: Autauga
County, Amendment No. 183 (1961); Bibb County, Amendment No.
312 (1972); Blount County, Amendment No. 95 (1952); Chilton
County, Amendment No. 679 (2000); Clarke County, Amendment No.
217 (1963); Covington County, Amendment No. 725 (2002); Etowah
County, Amendment No. 761 (2004); Fayette County, Amendment
No. 94 (1952); Franklin County, Amendment No. 186 (1961);
Geneva County, Amendment No. 263 (1966); Greene County,
Amendment No. 188 (1961); Hale County, No. 313 (1972); Henry
County, Amendment No. 729 (2002); Lamar County, Amendment No.
189 (1961); Lawrence County, Amendment No. 190 (1961); Marengo
County, Amendment No. 308 (1969); Pickens County, Amendment
No. 302 (1969); St. Clair County, Amendment No. 197 (1961);
Sumter County, Amendment No. 250 (1965); Amendment No. 104
(1954) for the municipalities of Haleyville and Double
Springs; Amendment No. 155 (1960) for the municipality of
Uniontown; Amendment No. 221 (1963) for the City of York in
Sumter County; Amendment No. 244 (1965) for the Town of Lester
in Limestone County; Amendment No. 251 (1965) for the
municipality of Livingston in Sumter County; Amendment No.
256
(1965) for the municipalities of Addison and Lynn in Winston
County; and Amendment No. 277 (1967) for the Town of Carbon
Hill in Walker County.
34
1180939
facilities of any kind."10 Other local constitutional
amendments mention "commercial facilities" with different
language than either Amendment No. 84 or § 94.01.11 Some local
amendments do not mention "commercial facilities," listing
instead "industrial, transportation, distribution, warehouse
or research facilities, and of office and other facilities
auxiliary
to
the
foregoing."12
Finally,
some
local
10By this Court's survey, at least eight local amendments
employ the same pertinent language used in § 94.01(a)(2):
Barbour County, Amendment No. 757 (2004); Butler County,
Amendment No. 719 (2002); Coffee County, Amendment No. 723
(2002); Crenshaw County, Amendment No. 748 (2004); Lee
County,
Amendment No. 642
(1999); Montgomery County, Amendment No. 713
(2002); Russell County, Amendment No. 737 (2002); and
Tallapoosa County, Amendment No. 739 (2002).
11Amendment No. 245 (1965) empowers Madison County and the
City of Huntsville in part "to lease, sell, exchange or
otherwise convey all or any part of" a "project" -- meaning
"industrial, commercial and agricultural projects, including
real and personal property, plants, buildings, factories,
works, facilities, machinery and equipment of any kind
whatsoever" -- "to
any
person, firm or corporation." Amendment
No. 303 (1969) mirrors the language in Amendment No. 245 for
Morgan County and the cities of Hartselle and Decatur.
12Amendment No. 429 (1982) is the most prominent of these
amendments,
which
initially addressed the
counties
of
Bullock,
Coffee, Coosa, Dallas, Etowah, Geneva, Houston, Jefferson,
Lawrence, Macon, Marengo, Mobile, Morgan, Talladega, Madison,
Shelby, and Tuscaloosa. Amendment No. 759 (2004) amended
Amendment No. 429 to include Baldwin County. Amendment No.
415 (1982), for Calhoun County, mirrors the language in
Amendment No. 429. A few of the counties listed in Amendment
No. 429 have other local constitutional amendments addressing
35
1180939
constitutional amendments more generally authorize the
legislature to create "a public corporation empowered or
intended to assist or aid in any way" the particular county
"or any municipality therein in promoting industry, trade, and
economic development" of the county and its municipalities.13
In sum, before the ratification of § 94.01, which applies
to the governing bodies of all the counties and municipalities
in
Alabama,
the
legal
landscape
concerning
economic
development for local governments in Alabama was a patchwork
of legislative acts and local constitutional amendments that
provided varying degrees of empowerment to the respective
counties and municipalities for which the acts and amendments
were enacted or ratified. Section 94.01(d) expressly
acknowledges
these
earlier
local
constitutional
amendments
and
laws: "This amendment shall have prospective application
only. Any local constitutional amendments previously adopted
and any local law enacted pursuant to such amendment shall
remain in full force and effect." At the same time, § 94.01
economic development: Coffee County, Madison County, and
Morgan County.
13Amendments No. 678, 682, and 701, all ratified in
December 2000, for Chambers, Clay, and Randolph Counties,
respectively, employ the language quoted in the text above.
36
1180939
also indicates that it is meant to increase some of the powers
previously
granted
to
counties
and
municipalities for
economic
development: "The powers granted by this amendment may be
exercised as an alternative to, or cumulative with, and in no
way restrictive of, powers otherwise granted by law to the
county, or to any municipality, or to any agency, board, or
authority created pursuant to the laws of this state."
§ 94.01(b). No local constitutional amendments pertaining to
economic development have been ratified since § 94.01 was
ratified, indicating that § 94.01 has proven to be sufficient
for
empowering
governing
bodies
in
counties
and
municipalities
for attracting economic development to their respective
regions.
In short, the decisions in McDonald's Corp. and Brown
addressed only a portion of the statutory and constitutional
law concerning the powers of county and
municipality governing
bodies with respect to the promotion of economic development.
As Smith indicates, the legislature quickly responded to this
Court's decision in McDonald's Corp. by expanding the scope of
the Cater Act with respect to what constituted a "commercial
enterprise." Local constitutional amendments also continued
37
1180939
to be adopted after Brown, some of those amendments being
forerunners of the language eventually adopted statewide
through § 94.01 and others employing the encompassing phrase
"economic development." All of this, considered together with
the fact that § 94.01(a)(2) is worded more broadly than the
act at issue in McDonald's Corp. and the local amendment at
issue in Brown, leads to the conclusion that those decisions
do not provide the proper lens for interpreting § 94.01 for
purposes of this case. Instead, as we have already stated,
"commercial ... facilities of any kind" in § 94.01(a)(2)
clearly includes retail businesses such as those that will be
part of the City Harbor development. Accordingly, the City
defendants had the authority under § 94.01 to lease the
development property to Lakeside.
"When the Constitution and a statute are in conflict, the
Constitution controls." Parker v. Amerson, 519 So. 2d 442,
446 (Ala. 1987). Moreover, Kennamer concedes that if § 94.01
applies, the City had the authority to enter into the
development lease.
Therefore, because we have determined that
the circuit court was correct that § 94.01 permits the
development lease of the development property for the City
38
1180939
Harbor
development,
Kennamer's
arguments
concerning
§
35-4-410
and § 11-47-21 are irrelevant because the City's authority
under § 94.01 is controlling. Accordingly, the circuit
court's judgment dismissing Kennamer's action is affirmed.
AFFIRMED.
Parker, C.J., and Bolin, Shaw, Wise, Sellers, Stewart,
and Mitchell, JJ., concur.
Bryan, J., concurs in the result.
39 | May 29, 2020 |
dde7e4cd-ec78-4593-b1b6-202ab0a9fb39 | Ex parte Huntingdon College. | N/A | 1180148 | 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
May 22, 2020
1180148
Ex parte Huntingdon College. PETITION FOR WRIT OF MANDAMUS: CIVIL (In
re: Bellingrath-Morse Foundation Trust et al. v. Huntingdon College et al.) (Mobile Probate
Court: 2017-1609).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on May 22, 2020:
Application Overruled. No Opinion. (Sellers, J.) Sellers, J. - Bolin, Bryan, Mendheim, and
Stewart, JJ., concur. Parker, C.J., and Shaw, J., dissent. 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 March 27, 2020:
Petition Granted. Writ Issued. PER CURIAM - Sellers, Mendheim, and Stewart, JJ., concur.
Bolin and Bryan, JJ., concur specially. Parker, C.J., and Shaw, J., dissent. 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 22nd day of May, 2020.
Clerk, Supreme Court of Alabama | May 22, 2020 |
461651a3-9c51-44fa-8619-e4acd7808164 | Ex parte Matthew Mecomber. | N/A | 1190605 | 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
June 12, 2020
1190605
Ex parte Matthew Mecomber. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: Matthew Mecomber v. Barbara Mecomber) (Madison Circuit Court:
DR-13-900952.01; Civil Appeals :
2180766).
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 June 12, 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 12th day of June, 2020.
l i t a
Clerk, Supreme Court of Alabama | June 12, 2020 |
fe55ecc8-07c3-445f-87e8-148c62048914 | Ex parte Sedrick Letzie Norris. | N/A | 1190578 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 12, 2020
1190578
Ex parte Sedrick Letzie Norris. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Sedrick Letzie Norris v. State of Alabama) (Jefferson Circuit
Court: CC-16-3471; CC-16-3472; CC-16-3473; CC-16-3474; CC-16-3475; Criminal Appeals :
CR-18-0276).
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 June 12, 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 12th day of June, 2020.
Clerk, Supreme Court of Alabama | June 12, 2020 |
41a871b2-c019-4312-9a3c-d346c1634bcd | Ex parte Zoterrian Marquez Jones. | N/A | 1190616 | 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
June 12, 2020
1190616
Ex parte Zoterrian Marquez Jones. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEa Ls (In re: Zoterrian Marquez Jones v. State of Alabama) (Coffee
Circuit Court: CC-19-146, Cc -19-147; Criminal Appeals :
CR-19-0451).
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 June 12, 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 12th day of June, 2020.
l i t a
Clerk, Supreme Court of Alabama | June 12, 2020 |
906086b6-57a5-43c2-86f9-ff05bdaf9e35 | Ex parte Mark Prestridge. | N/A | 1190432 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 22, 2020
1190432
Ex parte Mark Prestridge. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
James Fetner and Delilah Fetner v. Randolph County Water Sewer and Fire
Protection Authority, et al.) (Randolph Circuit Court: CV-16-900078).
ORDER
The petition for writ of mandamus in this cause is denied.
WISE, J. - Parker, C.J., and Bolin, Shaw, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 22nd day of May, 2020.
/ra | May 22, 2020 |
861c239a-0c57-4d74-8ee2-f0d45cc8ca9c | Shannon v. Smith | N/A | 1180926 | Alabama | Alabama Supreme Court | REL: May 15, 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
____________________
1180926
____________________
Deborah K. Shannon
v.
Jenna Kathryn Smith
Appeal from Jefferson Circuit Court
(CV-17-902307)
MITCHELL, Justice.
Deborah K. Shannon suffers from ongoing medical problems
that she claims are the result of an automobile accident. The
jury that considered the claims she asserted against the other
driver rejected her claims and returned a verdict in favor of
1180926
the other driver. After the trial court denied her motion for
a new trial, Shannon appealed, arguing that the jury's verdict
was not sustained by the preponderance of the evidence.
Because there was adequate evidence to support the verdict, we
affirm.
Facts and Procedural History
On February 20, 2016, Shannon stopped at a red light on
U.S. Highway 280 in Birmingham. Jenna Kathryn Smith stopped
behind her. When the light turned green and traffic began to
move, Smith's cell phone fell down by her feet. As she
reached down to pick it up, she rear-ended Shannon's vehicle
while her eyes were off the road. Shannon claims that she
suffers neck and shoulder pain as a result of the accident, as
well as vertigo and migraines. Shannon was treated by a
chiropractor and an acupuncturist and received multiple
surgical interventions to manage her pain.
On June 7, 2017, Shannon sued Smith in the Jefferson
Circuit Court, alleging negligence and wantonness and seeking
compensatory damages, special damages, and punitive damages.
A jury trial was held on June 17 and 18, 2019, and Shannon
asked the jury to award her $47,374.24 in medical expenses,
2
1180926
compensatory damages for pain and suffering and permanent
injuries, and punitive damages. Smith did not deny that she
was at fault in the accident, but she contested whether
Shannon's injuries were the result of the accident. The jury
returned a verdict in favor of Smith on both the negligence
and wantonness counts. Shannon moved for a new trial, arguing
that the jury's verdict was against the weight of the
evidence. The trial court denied the motion. Shannon
appealed.
Standard of Review
We review a trial court's denial of a motion for a new
trial for an excess of discretion. Colbert County-Northwest
Alabama Healthcare Auth. v. Nix, 678 So. 2d 719, 722 (Ala.
1995).
"'[T]he denial of a motion for a new trial [on the
ground that the verdict is against the weight and
preponderance of the evidence] will not be reversed
by this Court unless, after allowing all reasonable
presumptions as to the verdict's correctness, the
preponderance of the evidence is so against it that
this Court is clearly convinced that it is wrong and
unjust.'"
Med Plus Props. v. Colcock Constr. Grp., Inc., 628 So. 2d 370,
374 (Ala. 1993) (quoting Deal v. Johnson, 362 So. 2d 214, 218
(Ala. 1978) (second alteration added in Med Plus)).
3
1180926
Analysis
To establish both negligence and wantonness, a plaintiff
must prove that her injuries were caused by the defendant.
"'To establish negligence, the plaintiff must
prove: (1) a duty to a foreseeable plaintiff; (2) a
breach of that duty; (3) proximate causation; and
(4) damage or injury. Albert v. Hsu, 602 So. 2d
895, 897 (Ala. 1992). To establish wantonness, the
plaintiff must prove that the defendant, with
reckless
indifference
to
the
consequences,
consciously and intentionally did some wrongful act
or omitted some known duty. To be actionable, that
act or omission must proximately cause the injury of
which the plaintiff complains. Smith v. Davis, 599
So. 2d 586 (Ala. 1992).'"
Lemley v. Wilson, 178 So. 3d 834, 841-42 (Ala. 2015) (quoting
Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994) (emphasis
omitted)).
Credible evidence was presented at trial indicating that
Shannon's injuries predated the February 2016 automobile
accident and that her
negligence and wantonness claims against
Smith were therefore meritless. Dr. Phillip Langer treated
Shannon's shoulder injuries and testified that those injuries
could have been caused by an automobile accident. Smith
rebutted this evidence by showing that Shannon had not
disclosed her past participation in the Atlanta Axe Throwing
4
1180926
League to Dr. Langer and that her shoulder injuries were also
consistent with injuries caused by axe throwing.
Dr. Armin Vatani Oskouei treated Shannon's neck injuries
and testified about efforts to treat her ongoing neck and
shoulder pain, as well as the fact that her injuries were
consistent with an automobile accident. Smith rebutted this
testimony by pointing out that Dr. Oskouei's testimony about
injuries caused in automobile accidents seemed to assume a
much more serious collision than the collision that actually
took place and that he knew very little about Shannon's prior
medical history or developments after the short period in
which she received treatment at his practice.
In addition, Smith rebutted Shannon's allegation that her
ongoing dizziness and migraines were the result of the
automobile accident by introducing a record from an urgent-
care facility in Georgia showing that Shannon was treated for
those symptoms on July 22, 2015, almost seven months before
the accident. And she impeached Shannon's testimony on
several
occasions
by
highlighting
inconsistencies
in
Shannon's
statements about her participation in axe throwing and her
prior treatment for vertigo.
5
1180926
Based on this record, the jury was entitled to believe
Smith's evidence and to disbelieve Shannon's -- and the jury
apparently did so. The trial court subsequently acted within
its discretion in denying Shannon's motion for a new trial.
Conclusion
Because Smith presented credible evidence at trial that
Shannon's injuries
predated
the
automobile
accident,
the
trial
court acted within its discretion when it denied Shannon's
motion for a new trial. Its judgment is therefore affirmed.
AFFIRMED.
Parker, C.J., and Shaw, J., concur.
Bryan and Mendheim, JJ., concur in the result.
6 | May 15, 2020 |
ad158ee3-269f-4cc5-b5c7-4b5c258b6c15 | Blankenship v. Kennedy | N/A | 1180649 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
August 28, 2020
1180649
Christopher M. Blankenship, as Commissioner of the Alabama Department of
Conservation and Natural Resources, and Charles F. Sykes, Director, Wildlife and Freshwater
Fisheries Division v. Terry Kennedy and Johnny McDonald (Appeal from Montgomery Circuit
Court: CV-18-901056).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on August 28, 2020:
Application Overruled. No Opinion. Mitchell, J. - Parker, C.J., and Bolin, Shaw, Wise,
Bryan, Mendheim, and Stewart, JJ., concur. Sellers, J., dissents.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on May 29, 2020:
Reversed And Remanded. Mitchell, J. - Parker, C.J., and Stewart, J., concur. Bolin, Shaw,
Wise, Bryan, and Mendheim, JJ., concur in the result. Sellers, J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 28th day of August, 2020.
Clerk, Supreme Court of Alabama | May 29, 2020 |
4f0b49c4-99ae-4b1a-b189-fe7c8b916c8f | Collier v. Dade Capital Corporation | N/A | 1170771, 1170743 | Alabama | Alabama Supreme Court | REL: June 5, 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
____________________
1170743
____________________
SMM Gulf Coast, LLC
v.
Dade Capital Corporation and David J. Fournier
____________________
1170771
____________________
Oliver Collier, Charles Deel, Pearl River Recycling, LLC,
and Recycling Centers, Inc.
v.
Dade Capital Corporation and David J. Fournier
Appeals from Mobile Circuit Court
(CV-13-903094)
1170743, 1170771
MITCHELL, Justice.
These consolidated appeals stem from an August 2012
transaction in which SMM Gulf Coast, LLC ("SMM"), purchased
the assets of four salvage and recycling businesses in Alabama
and Mississippi. After that transaction closed, Dade Capital
Corporation ("Dade"), a creditor of one of the businesses
whose assets were purchased by SMM, and Dade's president David
J. Fournier, who owned stock in that same business, sued SMM,
the four businesses that had sold their assets to SMM, and
various individuals associated with those businesses in the
Mobile Circuit Court alleging that Dade and Fournier should
have received a greater share of the purchase price paid by
SMM. Following a bifurcated trial, the trial court found that
Dade and Fournier's claims were barred by a release agreement
that Fournier executed in conjunction with the
transaction and
entered a judgment against them.
SMM, two of the businesses that had sold their assets to
SMM, and two individuals with ownership interests in those
businesses subsequently moved the trial court to award them
attorney fees, court costs, and litigation expenses in
accordance with a prevailing-party provision in the release
2
1170743, 1170771
agreement. The trial court denied their motions, and those
parties appeal, arguing that the prevailing-party provision
entitles them to the requested awards and that they have not
waived their right to recover the requested amounts. We
reverse and remand.
Facts and Procedural History
In approximately 2005, David Hickman, who at the time was
an owner or part owner of several salvage and recycling
businesses
along
the
Mississippi Gulf
Coast,
began
formulating
plans to open David's Auto Shredding, Inc. ("DAS"), a similar
business in Mobile. Hickman enlisted Dade, an Ohio firm with
experience arranging financing and equipment deals for
businesses in the salvage and recycling industry, to assist
him in setting up DAS, and DAS ultimately executed two
promissory notes in favor of Dade totaling $1,350,000. In
addition, DAS issued 800 shares of stock to Fournier, giving
him an 8% ownership interest in the company.
In 2009, Hickman, DAS, and one of Hickman's Mississippi
businesses, David Motor & Scrap, Inc. ("DM&S"), filed separate
petitions for bankruptcy in the United States Bankruptcy Court
for the Southern District of Alabama. Dade filed claims with
3
1170743, 1170771
the bankruptcy court, and, under the reorganization plans that
were ultimately approved by that court, Dade was due to
receive $274,031 on its claims.
After those reorganization plans were approved, SMM
contacted Hickman and expressed its interest in
purchasing: 1)
DAS; 2) DM&S; 3) Pearl River Recycling, LLC ("Pearl River"),
a salvage and recycling business in Picayune, Mississippi,
that Hickman co-owned with Charles Deel; and 4) Recycling
Centers, Inc. ("RCI"), a salvage and recycling business in
Pascagoula, Mississippi, that Hickman co-owned with Oliver
Collier (these four businesses are hereinafter referred to
collectively as "the selling companies"). On May 21, 2012,
SMM entered into an asset-purchase agreement in which it
agreed, upon closing of the asset purchase, to pay up to
$11,926,610 to purchase substantially all the assets of the
selling companies, with much of that purchase price being used
to satisfy the selling companies' creditors. An appendix to
the asset-purchase agreement noted that Dade and Fournier
claimed a debt owed them of $1,300,000, but the asset-purchase
agreement did not guarantee that they would receive any
specific part of the purchase price.
4
1170743, 1170771
In early August 2012, Fournier was notified by Hickman
that SMM objected to paying him and Dade the entire $1,300,000
they were claiming. Fournier claims that he was told during
his ensuing negotiations with the selling companies that SMM
might complete its purchase of the selling companies' assets
without his or Dade's consent and that they would then receive
only
what
they
were
entitled
to
receive
under
the
reorganization plans approved by the bankruptcy court.
Ultimately, Fournier agreed to accept $650,000, and, on
August
16, 2012, Fournier executed a release agreement providing that
he and Dade would not thereafter pursue any claims against
SMM, the selling companies, Hickman, Deel, or Collier
(hereinafter referred to collectively as "the released
parties"):
"[Dade], on behalf of itself and its respective
affiliates, officers, directors, managers, members,
agents,
consultants,
employees,
predecessors,
attorneys, successors and assigns ..., hereby
completely and forever releases and discharges each
of [the released parties] ... from any claims (as
defined below) which any of them may now have, has
ever had or shall ever have against any of the
released parties arising contemporaneously with or
prior to the date of this release or on account of
or arising out of any matter, cause or event related
to [the selling companies], the sale of the assets
to [SMM], the operation of [the selling companies],
the business of [the selling companies], the
5
1170743, 1170771
governance
of
[the
selling
companies],
any
investments in, agreements with, or loans to, [one
of the selling companies], and any other actions (or
omissions)
regarding
[the
selling
companies],
occurring contemporaneously with or prior to the
date of this release."
The release agreement also contained a prevailing-party
provision stating that, "[i]n any action to enforce the terms
of [the release agreement], the prevailing party shall be
entitled to recover its attorneys' fees and court costs and
other non-reimbursable litigation expenses."
On August 20, 2012, SMM closed on its purchase of the
selling companies' assets and, three days later, sent a
$650,000 payment to the law firm that had been representing
Dade and Fournier. When Fournier was informed that the
payment had been received, he instructed the law firm to
withhold a retainer for "round two" before transmitting the
balance of the funds to him.
On November 14, 2013, Dade and Fournier sued the released
parties and various other individuals who had received some
portion of the purchase price paid by SMM, alleging that they
had conspired to suppress the details of the asset purchase
from Dade and Fournier and that Dade and Fournier had
accordingly been paid a smaller share of the purchase price
6
1170743, 1170771
than they were entitled to receive. Dade and Fournier
specifically asserted claims of breach of fiduciary duty,
fraud,
conspiracy,
negligence,
breach
of
contract,
conversion,
and unjust enrichment. The trial court later dismissed the
claims asserted against Hickman, DAS, and DM&S, as well as the
claims asserted against several of the other individual
defendants named by Dade and Fournier. Eventually, the trial
court also entered judgment in favor of all the other
individual defendants except Deel and Collier. (Because the
only defendants before this Court in these appeals are SMM,
Pearl River, RCI, Deel, and Collier, the remainder of our
opinion addresses only the claims asserted against those
parties (Pearl River, RCI, Deel, and Collier are hereinafter
referred to collectively as "the appellant sellers").)
Dade and Fournier acknowledge in their brief submitted to
this Court that, after they initiated this action, SMM and the
appellant sellers filed answers and dispositive motions
asserting that the release agreement (1) barred the claims
asserted against them and (2) authorized them to recover the
attorney fees, court costs, and litigation expenses they had
incurred
defending themselves from
Dade
and
Fournier's
claims.
7
1170743, 1170771
After those dispositive motions were all denied by the trial
court, SMM filed a motion noting that it was undisputed that
Dade and Fournier had not returned the $650,000 they had
received as consideration for executing the release agreement
and asking the trial court to therefore conduct a bifurcated
trial under Rule 42(b), Ala. R. Civ. P., "solely on the issue
of whether it was impossible for [Dade and Fournier] to
restore the consideration paid by SMM." SMM argued that if
that issue was resolved against Dade and Fournier, it would
obviate the need to consider the merits of their various
claims, thus saving all parties involved time and money. See
United States Cast Iron & Foundry Co. v. Marler, 17 Ala. App.
358, 360, 86 So. 103, 104 (1920) ("The Supreme Court of
Alabama is firmly committed to the principle that, where money
is paid as an inducement for signing a release, there can be
no repudiation of the release without first tendering back the
money as paid."); see also Taylor v. Dorough, 547 So. 2d 536,
541 (Ala. 1989) (recognizing that a party seeking to avoid a
release is not required to return the consideration received
if it would be impossible, impractical, or futile to do so).
8
1170743, 1170771
On March 1, 2017, the trial court granted SMM's motion
for a bifurcated trial, defining the scope of the issues to be
tried as broader than SMM had requested:
"The separate issues to be tried include the
effect of the August 16, 2012, release on [Dade and
Fournier's] claims, whether [Dade and Fournier] are
bound by the release, whether the release was
obtained by fraud or duress, and whether on any
ground under Alabama law [Dade and Fournier] can
avoid the release they executed though they have not
returned the $650,000 in consideration. The parties
are directed to be prepared to present evidence
bearing on their respective burdens of proof as
outlined
generally
by
[Alabama
Pattern
Jury
Instructions] 11.43, 11.45, 11.47, 11.48, and/or
11.49. The parties are further directed to amend
their pleadings, as may be necessary, no later than
March 31, 2017, to add or confirm any defenses or
affirmatives defenses that would be considered in
the bifurcated bench trial."
None of the parties amended their pleadings, and the
bifurcated trial was held as scheduled beginning on April 19.
During the course of the trial, neither SMM nor the appellant
sellers addressed any claim they might have under the
prevailing-party provision of the release agreement, nor did
they address those claims in the proposed orders they
submitted to the trial court after the trial concluded.
On August 7, 2017, the trial court entered a final
judgment in favor of SMM and the appellant sellers, holding
9
1170743, 1170771
that all of Dade and Fournier's claims were barred by the
release agreement. The 30-day period during which any party
could file a postjudgment motion under Rule 59, Ala. R. Civ.
P., subsequently elapsed without any party requesting the
trial court to alter, amend, or vacate its judgment.
On September 29, 2017, SMM moved the trial court to order
Dade and Fournier to reimburse SMM for its attorney fees,
court costs, and litigation expenses –– a total of $427,822 ––
in accordance with the terms of the
prevailing-party provision
in the release agreement. On October 6, 2017, the appellant
sellers filed a similar motion requesting an award of $71,053
in their favor. Both motions were supported by affidavits
supporting the amounts of the reimbursement requests.
Dade and Fournier thereafter filed a response in which
they did not dispute the validity or applicability of the
prevailing-party provision
but,
instead,
argued
that
the
trial
court lacked jurisdiction to consider the reimbursement
requests because the time for filing postjudgment motions, as
well as the time for filing an appeal of the trial court's
judgment, had expired before those requests were made. Dade
and Fournier argued that, because the trial court did not
10
1170743, 1170771
expressly retain jurisdiction over any future requests for
attorney fees, court costs, and litigation expenses in its
final judgment, the trial court was now required to strike
both motions for reimbursement.
The parties submitted additional briefing on this issue
and presented oral arguments in support of their respective
positions. On April 2, 2018, the trial court entered an order
denying the motions for reimbursement, explaining that SMM and
the appellant sellers had waived their right to recover their
attorney fees, court costs, and litigation expenses because
(1) they failed to assert counterclaims encompassing their
claims for reimbursement; (2) they did not ask the trial court
to expressly retain jurisdiction over their reimbursement
claims before the court lost jurisdiction over the case; (3)
they did not file postjudgment motions raising their claims
within the 30-day period allowed by Rule 59(e), Ala. R. Civ.
P.; and (4) they did not address their claims for
reimbursement at any point during the bifurcated trial. SMM
and the appellant sellers thereafter filed separate notices of
appeal to this Court.
11
1170743, 1170771
Standard of Review
In Arnold v. Hyundai Motor Manufacturing Alabama, LLC,
[Ms. 1170974, July 12, 2019] ___ So. 3d ___, ___ (Ala. 2019),
this Court explained that the de novo standard of review
applies to a trial court's grant or denial of a request for
attorney fees and other amounts that a prevailing party is
entitled to recover under a contract. The parties agree that
questions about the trial court's jurisdiction or the proper
interpretation of the Alabama Rules of Civil Procedure are
also questions of law subject to de novo review by this Court.
See, e.g., Ex parte Scott, 220 So. 3d 1042, 1050 (Ala. 2016)
(explaining that "questions of jurisdiction" are subject to
de
novo review by this Court); Skinner v. Bevans, 116 So. 3d
1147, 1151 (Ala. Civ. App. 2012) ("An appellate court reviews
de novo the trial court's interpretation of procedural rules
...." (citing United States v. Elmes, 532 F.3d 1138, 1141
(11th Cir. 2008))).
Analysis
SMM and the appellant sellers argue that none of the
reasons offered by the trial court for denying their motions
seeking the reimbursement of their attorney fees, court costs,
12
1170743, 1170771
and litigation expenses was a proper basis for denying those
motions. Specifically, they argue (1) that a party seeking to
recover under a prevailing-party provision is not required to
assert a counterclaim stating their potential claim at the
beginning of an action that will determine whether, in fact,
that party will be the prevailing party; (2) that a trial
court may award attorney fees, court costs, and litigation
expenses that are owed under a prevailing-party provision
after a final judgment has been entered even if the trial
court did not expressly reserve jurisdiction to do so; (3)
that postjudgment motions requesting attorney fees, court
costs, and litigation expenses that the losing party is
obligated to pay under a prevailing-party provision are not
filed under Rule 59(e) and therefore do not have to be filed
within the 30-day period allowed by Rule 59(e); and (4) that
they did not waive their right to seek reimbursement for their
attorney
fees,
court
costs,
and
litigation
expenses
postjudgment by not addressing that issue during the
bifurcated trial because the trial court defined the scope of
the bifurcated trial to include only issues directly related
13
1170743, 1170771
to whether the release agreement barred Dade and Fournier from
pursuing their claims. We consider these arguments in turn.
A. Compulsory Counterclaims under Rule 13(a), Ala. R.
Civ. P.
In its order denying the motions for attorney fees, court
costs, and litigation expenses filed by SMM and the appellant
sellers, the trial court stated that their claims "for fees
and expenses were not ancillary to the core case [but] arose
out of the transaction or occurrence that was the subject
matter of [Dade and Fournier's] claim." Citing Rule 13(a),
Ala. R. Civ. P., the trial court therefore concluded that
those
claims
"were
compulsory counterclaims,
requiring
SMM
and
[the appellant] sellers to [assert them] to be tried in the
April 2017 trial." Because they did not assert their claims
for reimbursement as counterclaims, the trial court held that
the doctrine of res judicata barred them from asserting those
claims postjudgment. See Mississippi Valley Title Ins. Co. v.
Hardy, 541 So. 2d 1057, 1059-60 (Ala. 1988) (explaining that
the doctrine of res judicata bars a party from subsequently
asserting a claim that should have previously been asserted as
a compulsory counterclaim). SMM and the appellant sellers
argue that the trial court's ruling is inconsistent with the
14
1170743, 1170771
plain language of Rule 13(a), which defines a compulsory
counterclaim as:
"[A]ny claim which at the time of serving the
pleading the pleader has against any opposing party,
if it arises out of the transaction or occurrence
that is the subject matter of the opposing party's
claim and does not require for its adjudication the
presence of third parties of whom the court cannot
acquire jurisdiction."
(Emphasis added.) Highlighting the emphasized language, SMM
and the appellant sellers argue that their reimbursement
claims cannot be considered compulsory counterclaims because
the reimbursement claims had not accrued and were not ripe at
the time they served their answers. At that time, they argue,
they held only potential claims that would not ripen unless
and until the trial court entered a judgment deciding Dade and
Fournier's claims in favor of SMM and the appellant sellers.
See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568,
580–581 (1985) (explaining that a claim is not ripe for
adjudication if it rests upon contingent future events that
may not occur). We agree.
In Brooks v. Peoples National Bank of Huntsville, 414 So.
2d 917, 920 (Ala. 1982), this Court explained that "the time
for determining whether a counterclaim exists is at the time
15
1170743, 1170771
the counterclaimant must serve an answer. ... The pleader
does not waive his right to assert a counterclaim which
accrues after serving the pleading." SMM and the appellant
sellers did not have a ripe claim against Dade and Fournier
when they served their answers in early 2014 because the
release agreement gave the right to recover attorney fees,
court costs, and litigation expenses only to "the prevailing
party" in an action enforcing the release agreement, and SMM
and the appellant sellers had yet to prevail on Dade and
Fournier's claims at that time. In fact, SMM and the
appellant sellers did not become "prevailing part[ies]" under
the terms of the release agreement until the trial court
entered its August 2017 judgment over three years after they
filed their early 2014 answers to Dade and Fournier's
complaint. For that reason, SMM's and the appellant sellers'
claims for attorney fees, court costs, and
litigation expenses
were not compulsory counterclaims that were waived when they
were not asserted in the 2014 answers to Dade and Fournier's
complaint. The trial court therefore erred by holding that
those claims were barred by the doctrine of res judicata. See
also Desroches v. Ryder Truck Rental, Inc., 429 So. 2d 1010,
16
1170743, 1170771
1012 (Ala. 1983) (explaining that a claim for attorney fees,
costs, and expenses stemming from the breach of a release
agreement was not a compulsory counterclaim under Rule 13(a)
because, among other things, the claim was not "fixed in
amount until the litigation in the first action was
completed").
B.
The
Trial
Court's
Jurisdiction
to
Consider
Postjudgment Requests for Attorney Fees, Court Costs, and
Litigation Expenses
In its order denying the motions for reimbursement filed
by SMM and the appellant sellers, the trial court also held
that it lacked jurisdiction over those requests because its
August 2017 order holding that Dade and Fournier's claims were
barred by the release agreement was a final judgment.
Therefore, the trial court reasoned, because it had not
expressly stated that it was retaining jurisdiction to
consider any future requests for attorney fees, court costs,
or litigation expenses, it lost jurisdiction over the case 30
days after the judgment was entered. See Ex parte Caremark
Rx, LLC, 229 So. 3d 751, 757 (Ala. 2017) ("If no Rule 59
motion is filed after a judgment is entered, the trial court
that entered the judgment generally loses jurisdiction to
17
1170743, 1170771
amend the judgment 30 days after the judgment is entered.").
SMM and the appellant sellers do not dispute that the August
2017 judgment was a final judgment, but they argue that their
reimbursement claims based on the prevailing-party provision
were collateral to that judgment and that the trial court
therefore retained jurisdiction to address those claims
without regard to whether it had expressly reserved
jurisdiction to do so. We agree.
All the parties acknowledge that the trial court's August
2017 judgment was a final judgment that would have supported
an appeal by Dade and Fournier. See State Bd. of Educ. v.
Waldrop, 840 So. 2d 893, 899 (Ala. 2002) (recognizing that "a
decision on the merits disposing of all claims is a final
decision from which an appeal must be timely taken, whether a
request for attorney fees remains for adjudication"); see
also
Ray Haluch Gravel Co. v. Central Pension Fund of Int'l Union
of Operating Eng'rs, 571 U.S. 177, 184 (2014) (rejecting
argument that unresolved claims for attorney fees authorized
by contract are not collateral for finality purposes). This
Court and the Court of Civil Appeals have both recognized that
a trial court has jurisdiction to award attorney fees and
18
1170743, 1170771
costs after entering a final judgment because such requests
are collateral to the merits. See, e.g., Complete Cash
Holdings, LLC v. Powell, 239 So. 3d 550, 555 n.6 (Ala. 2017)
(noting that the appellee's request for attorney fees and
costs, which was ultimately granted, was still pending when
the appellant filed its notice of appeal); Ford v. Jefferson
Cty., 989 So. 2d 542, 545 (Ala. Civ. 2007) (affirming an award
of attorney fees, costs, and expenses entered over five months
after final judgment was entered). See also Dunlap v. Regions
Fin. Corp., 983 So. 2d 374, 379 n.5 (Ala. 2007) (noting that
"a majority of other jurisdictions have held that a trial
court retains jurisdiction to award attorney fees after a
notice of appeal has been filed"). It is thus clear that a
trial court may grant a request for an award of attorney fees,
court costs, and litigation expenses even after a final
judgment has been entered. As explained below, there is an
exception to this general rule for requests made under the
Alabama Litigation Accountability Act ("the ALAA"), § 12-19-
270 et seq., Ala. Code 1975, but that exception does not apply
in this case.
19
1170743, 1170771
In explaining its holding that it lost jurisdiction to
consider the reimbursement motions filed by SMM and the
appellant sellers because it did not expressly reserve
jurisdiction to do so in its August 2017 judgment, the trial
court cited Gonzalez, LLC v. DiVincenti, 844 So. 2d 1196, 1202
(Ala. 2002), in which this Court concluded that the trial
court's failure to expressly reserve jurisdiction to consider
an attorney-fee award in its final judgment barred it from
subsequently considering such a request. Importantly,
however, the request for an award of attorney fees in Gonzalez
was made under the ALAA. Section 12-19-272(a) of the ALAA
provides that a court "shall award, as part of its judgment
and in addition to any other costs otherwise assessed,
reasonable attorneys' fees and costs against any attorney or
party" that initiates an action or asserts a claim or defense
that the court determines "to be without substantial
justification." (Emphasis added.) Based on this plain
language, the Gonzalez Court explained that a trial court
"'must make its award of attorney's fees under [the ALAA] as
part of its judgment on the merits of the case.'" 844 So. 2d
at 1201 (quoting Baker v. Williams Bros., 601 So. 2d 110, 112
20
1170743, 1170771
(Ala. Civ. App. 1992)). The Court nevertheless recognized
that "'it is within the court's discretion to hold a separate
hearing on an ALAA petition after the entry of final judgment
on the merits, provided that the court retained jurisdiction
to do so.'" Gonzalez, 844 So. 2d at 1201 (quoting Baker, 601
So. 2d at 112). See also Terminix Int'l Co., L.P. v. Scott,
142 So. 3d 512, 528 (Ala. 2013) ("The trial court does not
have jurisdiction to rule upon an ALAA claim after it has
entered a final judgment on the underlying claim unless it has
specifically reserved jurisdiction to hear the ALAA claim.").
Because Gonzalez involved a request for attorney fees under
the ALAA –– not a contractual prevailing-party provision ––
its holding that a trial court can award attorney fees only
after a final judgment has been entered if the court has
expressly retained jurisdiction to do so does not apply. Dade
and Fournier's reliance on Gonzalez and other ALAA cases is
misplaced.
C. Rule 59 and Postjudgment Motions Requesting Attorney
Fees, Court Costs, and Litigation Expenses
The trial court did not expressly state that it was
denying the requests for reimbursement filed by SMM and the
appellant sellers because they failed to make those requests
21
1170743, 1170771
in the context of a Rule 59(e) motion asking the trial court
to alter or amend its August 2017 final judgment. But in its
order denying those requests, the trial court emphasized that
SMM and the appellant sellers had failed to make their
requests during the 30-day period in which Rule 59 motions are
permitted, and the court concluded that if it were to grant
their requests it would be ignoring "the letter and intent" of
Rule 59. The trial court's order was wrong on this point. As
Alabama courts have explained, a party making a postjudgment
request for an award of attorney fees, court costs, and
litigation expenses does not make that request under Rule 59.
In Russell v. State, 51 So. 3d 1026, 1027 (Ala. 2010), a
property owner challenged the trial court's denial of his
request for "litigation expenses" after the State's attempt to
condemn a portion of his property using its eminent-domain
powers failed.1 After the trial court dismissed the State's
1Section 18-1A-232(a), Ala. Code 1975, requires a trial
court to award the defendant in an eminent-domain action
"litigation expenses" if the action is "dismissed for any
reason." Section 18-1A-3(12), Ala. Code 1975, defines
"litigation expenses" to include "[t]he sum of the costs,
disbursements, and expenses, including reasonable attorney,
appraisal, and engineering fees, necessary to prepare for
anticipated or participation in actual probate or circuit
court proceedings."
22
1170743, 1170771
action on August 20, 2008, the property owner moved the trial
court to award him litigation expenses; on October 31, 2008,
the trial court denied his motion. On November 24, 2008, the
property owner moved the trial court to reconsider its denial
of his request, but, on December 5, 2008, the trial court
denied that motion as well. The property owner thereafter
filed a notice of appeal on December 31, 2008, and it appears
an issue subsequently arose concerning the timeliness of that
notice of appeal.2 If the property owner's initial request
for an award of litigation expenses was considered a Rule
59(e) motion, the trial court's denial of that motion on
October 31 started the 42-day period in which the property
owner could appeal, and his notice of appeal was therefore due
by December 12, 2008, thus making his December 31 notice of
appeal untimely. Conversely, if the trial court's October 31
denial of the property owner's initial request was the
"judgment" and his November 24 motion to reconsider was
2The specific date the property owner filed his notice of
appeal is not stated in Russell, but SMM and the appellant
sellers have cited Russell and "this Court may take judicial
notice of its own records in another proceeding when a party
refers to the proceeding." Kennedy v. Boles Invs., Inc., 53
So. 3d 60, 66 n.2 (Ala. 2010) (citing Butler v. Olshan, 280
Ala. 181, 187-88, 191 So. 2d 7, 13 (1966)).
23
1170743, 1170771
effectively a Rule 59(e) motion, then the trial court's denial
of that motion on December 5 started the appeal clock and the
December 31 notice of appeal was timely. The Russell Court
ultimately agreed with the latter position and concluded that
the property owner's appeal was timely:
"[The property owner's] motion for litigation
expenses and attorney fees was not a motion to alter
or amend a judgment pursuant to Rule 59(e), Ala. R.
Civ. P. ... Therefore, [the property owner's]
motion to 'reconsider' the denial of that request
was not a successive postjudgment motion, and it
tolled the 42–day period for filing an appeal. See,
e.g., Ex parte Keith, 771 So. 2d 1018, 1022 (Ala.
1998) (noting that 'a successive postjudgment motion
does not suspend the running of the time for filing
a notice of appeal')."
51 So. 3d at 1028 n.4. See also Ford v. Jefferson Cty., 989
So. 2d 542, 545 (Ala. Civ. App. 2008) (concluding that a
postjudgment request for attorney fees and costs was not
subject to the 30–day time limitation of Rule 59(e) and
observing that "the United States Supreme Court has held that
a request for an award of attorney fees ... is not a 'motion
to alter or amend a judgment'" (quoting White v. New Hampshire
Dep't of Employment Sec., 455 U.S. 445, 452 (1982))).
Although the basis of the postjudgment request for litigation
expenses in Russell was a statute, the Russell Court
24
1170743, 1170771
recognized that such awards may be allowed by statute or by
contract, 51 So. 3d at 1028, and Dade and Fournier have
offered no compelling reason why we should treat requests
based upon a statute differently from requests based upon a
contract.
In sum, a party requesting attorney fees, court costs,
and litigation expenses in accordance with a prevailing-party
provision is not required to make that request within a motion
invoking Rule 59(e), nor is such a party required to file that
request within the 30-day postjudgment period set forth in
Rule 59(e). The decisions of SMM and the appellant sellers to
file their motions for reimbursement without regard to Rule 59
was therefore an insufficient basis for the trial court to
deny those motions.
D. Lack of Argument and Evidence about the Prevailing-
Party Provision during the Bifurcated Trial
Finally, the trial court held that "[a]ll matters related
to the [release agreement], including claims for fees, were
triable in the bifurcated bench trial" and that "SMM and the
[appellant sellers] abandoned any claim[s] for fees which may
have existed" by failing to address those claims during the
bifurcated trial. SMM and the appellant sellers state,
25
1170743, 1170771
however, that the arguments they made and the evidence they
presented during the bifurcated trial were consistent with the
trial court's order defining the scope of that trial.
Therefore, they argue that their inattention at trial to the
prevailing-party provision did not constitute a waiver of
their right to subsequently seek reimbursement based upon that
provision.
Before considering the scope of the issues that were
before the court during the bifurcated trial, we note that no
party disputes that, at the very earliest stages of this
litigation, SMM and the appellant sellers notified the trial
court and Dade and Fournier of their position that the
prevailing-party provision entitled them to recover the
attorney fees, court costs, and litigation expenses they
incurred defending this action if the action was ultimately
resolved in their favor. The trial court, in fact, recognized
that SMM and the appellant sellers had made this argument in
both their motions for judgment on the pleadings and their
later motions for a summary judgment. After those motions
were denied, however, SMM moved the trial court to conduct a
bifurcated trial "solely on the issue of whether it was
26
1170743, 1170771
impossible
for
[Dade
and
Fournier]
to
restore
the
consideration paid by SMM." The resolution of this issue, SMM
argued, would obviate the need to expend time and resources on
the merits of Dade and Fournier's claims.
On March 1, 2017, the trial court granted SMM's motion to
bifurcate. In its order doing so, the trial court
characterized the thrust of SMM's motion as follows: "SMM
essentially seeks to bifurcate the trial of the issue of
whether [Dade and Fournier] are bound by the terms of the
[release agreement] –– that is, whether [Dade and Fournier]
can avoid the terms of the release." The trial court went on
to conclude that, because a bifurcated trial would be more
expedient and promote the interests of justice, "the issues
related to the effect of the release executed by or on behalf
of [Dade and Fournier] on the claims asserted by [Dade and
Fournier] shall be tried in a bifurcated trial." The trial
court further specifically defined the issues to be tried as
follows:
"The separate issues to be tried include the
effect of the August 16, 2012, release on [Dade and
Fournier's] claims, whether [Dade and Fournier] are
bound by the release, whether the release was
obtained by fraud or duress, and whether on any
ground under Alabama law [Dade and Fournier] can
27
1170743, 1170771
avoid the release they executed though they have not
returned the $650,000 in consideration. The parties
are directed to be prepared to present evidence
bearing on their respective burdens of proof as
outlined
generally
by
[Alabama
Pattern
Jury
Instructions] 11.43, 11.45, 11.47, 11.48, and/or
11.49. The parties are further directed to amend
their pleadings, as may be necessary, no later than
March 31, 2017, to add or confirm any defenses or
affirmatives defenses that would be considered in
the bifurcated bench trial."
Dade and Fournier state that the purpose of the
bifurcated trial was therefore to determine the efficacy of
the release agreement, which, they argue, had three primary
elements: (1) the payment of $650,000 to Dade; (2) Dade's
release of SMM, the selling companies, Hickman, Deel, and
Collier; and (3) the entitlement of the parties to the release
agreement to attorney fees, court costs, and litigation
expenses if there was a breach of that agreement. Thus, Dade
and Fournier argue, any claim for attorney fees, court costs,
and litigation expenses based on a breach of the release
agreement was a triable issue in the bifurcated trial. We do
not agree.
When SMM moved the trial court to conduct a bifurcated
trial, it requested that the bifurcated trial be held to
determine one single issue –– "whether it was impossible for
28
1170743, 1170771
[Dade and Fournier] to restore the consideration paid by SMM."
That request clearly does not include the issue of whether SMM
or the appellant sellers were entitled to recover the attorney
fees, court costs, and litigation expenses they incurred
defending themselves against Dade and Fournier's claims.
Nevertheless, "Rule 42(b)[, Ala. R. Civ. P.,] gives the trial
court a virtually unlimited freedom to order separate trials
of claims, issues, or parties," Committee Comments on the 1973
Adoption of Rule 42, Ala. R. Civ. P., and a trial court's
authority under Rule 42(b) is not limited by the parties'
requests. See Colley v. Estate of Dees, 266 So. 3d 707, 716
(Ala. 2018) (explaining that a trial court has broad
discretion under Rule 42(b) to schedule and manage trials).
Thus, the trial court could have structured the bifurcated
trial to include the issue of whether SMM and the appellant
sellers were entitled to recover their attorney fees, court
costs, and litigation expenses. It is apparent from the
language of the trial court's order, however, that it did not.
The trial court initially stated in its order that
"issues related to" the effect of the release agreement on the
claims asserted by Dade and Fournier –– the primary issue ––
29
1170743, 1170771
would be tried in the bifurcated trial. The effect of the
prevailing-party provision is arguably such a related issue,
but, in the next paragraph of its order, the trial court
further defined the four specific issues to be tried: (1) the
effect of the release agreement on Dade and Fournier's claims;
(2) whether Dade and Fournier were bound by the release
agreement; (3) whether the release agreement was obtained by
fraud or duress; and (4) whether on any ground under Alabama
law Dade and Fournier can avoid the release agreement even
though they had not returned the $650,000 they received in
consideration for executing it. We cannot conclude that this
delineation of the issues to be tried included the issue of
whether SMM and the appellant sellers were entitled to recover
their attorney fees, court costs, and litigation expenses,
especially when, as SMM and the appellant sellers note, that
delineation was immediately followed by an instruction
notifying them "to be prepared to present evidence bearing on
their respective burdens of proof as outlined generally by
[Alabama Pattern Jury Instructions] 11.43, 11.45, 11.47,
11.48, and/or 11.49" –– which specifically address releases
and the avoidance of releases but have no relevance to SMM and
30
1170743, 1170771
the appellant sellers' burden to establish any damages they
might be entitled to receive under the prevailing-party
provision. In light of the trial court's order, the decision
by SMM and the appellant sellers not to present evidence of
their potential claims under the prevailing-party provision
should not be viewed as an abandonment of those claims, but as
compliance with the terms of the trial court's order.
Conclusion
Following a bifurcated trial, the trial court found that
the claims Dade and Fournier had asserted against SMM and the
appellant sellers were barred by the terms of a release
agreement. SMM and the appellant sellers then moved the trial
court to award them their attorney fees, court costs, and
litigation expenses in accordance with a prevailing-party
provision in that release agreement, but the trial court
denied their motions, holding that they had waived their right
to recover those amounts because (1) they failed to assert
counterclaims
encompassing
their
claims
for
reimbursement;
(2)
they did not ask the trial court to retain jurisdiction over
their reimbursement claims before the court lost jurisdiction
over the case; (3) they did not file postjudgment motions
31
1170743, 1170771
raising their claims within the 30-day period allowed by Rule
59(e); and (4) they did not address their claims for
reimbursement at any point during the bifurcated trial. As
discussed above, none of the reasons set forth by the trial
court was a proper basis for denying the reimbursement motions
filed by SMM and the appellant sellers. The trial court's
judgment is therefore reversed and the cause remanded for the
trial court to consider the evidence submitted by SMM and the
appellant sellers in conjunction with their motions for
reimbursement and to enter an appropriate award based on that
evidence.
1170743 –– REVERSED AND REMANDED.
1170771 –– REVERSED AND REMANDED.
Parker, C.J., and Bolin, Wise, Bryan, Mendheim, and
Stewart, JJ., concur.
Sellers, J., dissents.
32 | June 5, 2020 |
1c578bc5-f90e-4d80-a667-c22ceae54026 | SMM Gulf Coast, LLC v. Dade Capital Corporation and David J. Fournier | N/A | 1170743 | Alabama | Alabama Supreme Court | REL: June 5, 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
____________________
1170743
____________________
SMM Gulf Coast, LLC
v.
Dade Capital Corporation and David J. Fournier
____________________
1170771
____________________
Oliver Collier, Charles Deel, Pearl River Recycling, LLC,
and Recycling Centers, Inc.
v.
Dade Capital Corporation and David J. Fournier
Appeals from Mobile Circuit Court
(CV-13-903094)
1170743, 1170771
MITCHELL, Justice.
These consolidated appeals stem from an August 2012
transaction in which SMM Gulf Coast, LLC ("SMM"), purchased
the assets of four salvage and recycling businesses in Alabama
and Mississippi. After that transaction closed, Dade Capital
Corporation ("Dade"), a creditor of one of the businesses
whose assets were purchased by SMM, and Dade's president David
J. Fournier, who owned stock in that same business, sued SMM,
the four businesses that had sold their assets to SMM, and
various individuals associated with those businesses in the
Mobile Circuit Court alleging that Dade and Fournier should
have received a greater share of the purchase price paid by
SMM. Following a bifurcated trial, the trial court found that
Dade and Fournier's claims were barred by a release agreement
that Fournier executed in conjunction with the
transaction and
entered a judgment against them.
SMM, two of the businesses that had sold their assets to
SMM, and two individuals with ownership interests in those
businesses subsequently moved the trial court to award them
attorney fees, court costs, and litigation expenses in
accordance with a prevailing-party provision in the release
2
1170743, 1170771
agreement. The trial court denied their motions, and those
parties appeal, arguing that the prevailing-party provision
entitles them to the requested awards and that they have not
waived their right to recover the requested amounts. We
reverse and remand.
Facts and Procedural History
In approximately 2005, David Hickman, who at the time was
an owner or part owner of several salvage and recycling
businesses
along
the
Mississippi Gulf
Coast,
began
formulating
plans to open David's Auto Shredding, Inc. ("DAS"), a similar
business in Mobile. Hickman enlisted Dade, an Ohio firm with
experience arranging financing and equipment deals for
businesses in the salvage and recycling industry, to assist
him in setting up DAS, and DAS ultimately executed two
promissory notes in favor of Dade totaling $1,350,000. In
addition, DAS issued 800 shares of stock to Fournier, giving
him an 8% ownership interest in the company.
In 2009, Hickman, DAS, and one of Hickman's Mississippi
businesses, David Motor & Scrap, Inc. ("DM&S"), filed separate
petitions for bankruptcy in the United States Bankruptcy Court
for the Southern District of Alabama. Dade filed claims with
3
1170743, 1170771
the bankruptcy court, and, under the reorganization plans that
were ultimately approved by that court, Dade was due to
receive $274,031 on its claims.
After those reorganization plans were approved, SMM
contacted Hickman and expressed its interest in
purchasing: 1)
DAS; 2) DM&S; 3) Pearl River Recycling, LLC ("Pearl River"),
a salvage and recycling business in Picayune, Mississippi,
that Hickman co-owned with Charles Deel; and 4) Recycling
Centers, Inc. ("RCI"), a salvage and recycling business in
Pascagoula, Mississippi, that Hickman co-owned with Oliver
Collier (these four businesses are hereinafter referred to
collectively as "the selling companies"). On May 21, 2012,
SMM entered into an asset-purchase agreement in which it
agreed, upon closing of the asset purchase, to pay up to
$11,926,610 to purchase substantially all the assets of the
selling companies, with much of that purchase price being used
to satisfy the selling companies' creditors. An appendix to
the asset-purchase agreement noted that Dade and Fournier
claimed a debt owed them of $1,300,000, but the asset-purchase
agreement did not guarantee that they would receive any
specific part of the purchase price.
4
1170743, 1170771
In early August 2012, Fournier was notified by Hickman
that SMM objected to paying him and Dade the entire $1,300,000
they were claiming. Fournier claims that he was told during
his ensuing negotiations with the selling companies that SMM
might complete its purchase of the selling companies' assets
without his or Dade's consent and that they would then receive
only
what
they
were
entitled
to
receive
under
the
reorganization plans approved by the bankruptcy court.
Ultimately, Fournier agreed to accept $650,000, and, on
August
16, 2012, Fournier executed a release agreement providing that
he and Dade would not thereafter pursue any claims against
SMM, the selling companies, Hickman, Deel, or Collier
(hereinafter referred to collectively as "the released
parties"):
"[Dade], on behalf of itself and its respective
affiliates, officers, directors, managers, members,
agents,
consultants,
employees,
predecessors,
attorneys, successors and assigns ..., hereby
completely and forever releases and discharges each
of [the released parties] ... from any claims (as
defined below) which any of them may now have, has
ever had or shall ever have against any of the
released parties arising contemporaneously with or
prior to the date of this release or on account of
or arising out of any matter, cause or event related
to [the selling companies], the sale of the assets
to [SMM], the operation of [the selling companies],
the business of [the selling companies], the
5
1170743, 1170771
governance
of
[the
selling
companies],
any
investments in, agreements with, or loans to, [one
of the selling companies], and any other actions (or
omissions)
regarding
[the
selling
companies],
occurring contemporaneously with or prior to the
date of this release."
The release agreement also contained a prevailing-party
provision stating that, "[i]n any action to enforce the terms
of [the release agreement], the prevailing party shall be
entitled to recover its attorneys' fees and court costs and
other non-reimbursable litigation expenses."
On August 20, 2012, SMM closed on its purchase of the
selling companies' assets and, three days later, sent a
$650,000 payment to the law firm that had been representing
Dade and Fournier. When Fournier was informed that the
payment had been received, he instructed the law firm to
withhold a retainer for "round two" before transmitting the
balance of the funds to him.
On November 14, 2013, Dade and Fournier sued the released
parties and various other individuals who had received some
portion of the purchase price paid by SMM, alleging that they
had conspired to suppress the details of the asset purchase
from Dade and Fournier and that Dade and Fournier had
accordingly been paid a smaller share of the purchase price
6
1170743, 1170771
than they were entitled to receive. Dade and Fournier
specifically asserted claims of breach of fiduciary duty,
fraud,
conspiracy,
negligence,
breach
of
contract,
conversion,
and unjust enrichment. The trial court later dismissed the
claims asserted against Hickman, DAS, and DM&S, as well as the
claims asserted against several of the other individual
defendants named by Dade and Fournier. Eventually, the trial
court also entered judgment in favor of all the other
individual defendants except Deel and Collier. (Because the
only defendants before this Court in these appeals are SMM,
Pearl River, RCI, Deel, and Collier, the remainder of our
opinion addresses only the claims asserted against those
parties (Pearl River, RCI, Deel, and Collier are hereinafter
referred to collectively as "the appellant sellers").)
Dade and Fournier acknowledge in their brief submitted to
this Court that, after they initiated this action, SMM and the
appellant sellers filed answers and dispositive motions
asserting that the release agreement (1) barred the claims
asserted against them and (2) authorized them to recover the
attorney fees, court costs, and litigation expenses they had
incurred
defending themselves from
Dade
and
Fournier's
claims.
7
1170743, 1170771
After those dispositive motions were all denied by the trial
court, SMM filed a motion noting that it was undisputed that
Dade and Fournier had not returned the $650,000 they had
received as consideration for executing the release agreement
and asking the trial court to therefore conduct a bifurcated
trial under Rule 42(b), Ala. R. Civ. P., "solely on the issue
of whether it was impossible for [Dade and Fournier] to
restore the consideration paid by SMM." SMM argued that if
that issue was resolved against Dade and Fournier, it would
obviate the need to consider the merits of their various
claims, thus saving all parties involved time and money. See
United States Cast Iron & Foundry Co. v. Marler, 17 Ala. App.
358, 360, 86 So. 103, 104 (1920) ("The Supreme Court of
Alabama is firmly committed to the principle that, where money
is paid as an inducement for signing a release, there can be
no repudiation of the release without first tendering back the
money as paid."); see also Taylor v. Dorough, 547 So. 2d 536,
541 (Ala. 1989) (recognizing that a party seeking to avoid a
release is not required to return the consideration received
if it would be impossible, impractical, or futile to do so).
8
1170743, 1170771
On March 1, 2017, the trial court granted SMM's motion
for a bifurcated trial, defining the scope of the issues to be
tried as broader than SMM had requested:
"The separate issues to be tried include the
effect of the August 16, 2012, release on [Dade and
Fournier's] claims, whether [Dade and Fournier] are
bound by the release, whether the release was
obtained by fraud or duress, and whether on any
ground under Alabama law [Dade and Fournier] can
avoid the release they executed though they have not
returned the $650,000 in consideration. The parties
are directed to be prepared to present evidence
bearing on their respective burdens of proof as
outlined
generally
by
[Alabama
Pattern
Jury
Instructions] 11.43, 11.45, 11.47, 11.48, and/or
11.49. The parties are further directed to amend
their pleadings, as may be necessary, no later than
March 31, 2017, to add or confirm any defenses or
affirmatives defenses that would be considered in
the bifurcated bench trial."
None of the parties amended their pleadings, and the
bifurcated trial was held as scheduled beginning on April 19.
During the course of the trial, neither SMM nor the appellant
sellers addressed any claim they might have under the
prevailing-party provision of the release agreement, nor did
they address those claims in the proposed orders they
submitted to the trial court after the trial concluded.
On August 7, 2017, the trial court entered a final
judgment in favor of SMM and the appellant sellers, holding
9
1170743, 1170771
that all of Dade and Fournier's claims were barred by the
release agreement. The 30-day period during which any party
could file a postjudgment motion under Rule 59, Ala. R. Civ.
P., subsequently elapsed without any party requesting the
trial court to alter, amend, or vacate its judgment.
On September 29, 2017, SMM moved the trial court to order
Dade and Fournier to reimburse SMM for its attorney fees,
court costs, and litigation expenses –– a total of $427,822 ––
in accordance with the terms of the
prevailing-party provision
in the release agreement. On October 6, 2017, the appellant
sellers filed a similar motion requesting an award of $71,053
in their favor. Both motions were supported by affidavits
supporting the amounts of the reimbursement requests.
Dade and Fournier thereafter filed a response in which
they did not dispute the validity or applicability of the
prevailing-party provision
but,
instead,
argued
that
the
trial
court lacked jurisdiction to consider the reimbursement
requests because the time for filing postjudgment motions, as
well as the time for filing an appeal of the trial court's
judgment, had expired before those requests were made. Dade
and Fournier argued that, because the trial court did not
10
1170743, 1170771
expressly retain jurisdiction over any future requests for
attorney fees, court costs, and litigation expenses in its
final judgment, the trial court was now required to strike
both motions for reimbursement.
The parties submitted additional briefing on this issue
and presented oral arguments in support of their respective
positions. On April 2, 2018, the trial court entered an order
denying the motions for reimbursement, explaining that SMM and
the appellant sellers had waived their right to recover their
attorney fees, court costs, and litigation expenses because
(1) they failed to assert counterclaims encompassing their
claims for reimbursement; (2) they did not ask the trial court
to expressly retain jurisdiction over their reimbursement
claims before the court lost jurisdiction over the case; (3)
they did not file postjudgment motions raising their claims
within the 30-day period allowed by Rule 59(e), Ala. R. Civ.
P.; and (4) they did not address their claims for
reimbursement at any point during the bifurcated trial. SMM
and the appellant sellers thereafter filed separate notices of
appeal to this Court.
11
1170743, 1170771
Standard of Review
In Arnold v. Hyundai Motor Manufacturing Alabama, LLC,
[Ms. 1170974, July 12, 2019] ___ So. 3d ___, ___ (Ala. 2019),
this Court explained that the de novo standard of review
applies to a trial court's grant or denial of a request for
attorney fees and other amounts that a prevailing party is
entitled to recover under a contract. The parties agree that
questions about the trial court's jurisdiction or the proper
interpretation of the Alabama Rules of Civil Procedure are
also questions of law subject to de novo review by this Court.
See, e.g., Ex parte Scott, 220 So. 3d 1042, 1050 (Ala. 2016)
(explaining that "questions of jurisdiction" are subject to
de
novo review by this Court); Skinner v. Bevans, 116 So. 3d
1147, 1151 (Ala. Civ. App. 2012) ("An appellate court reviews
de novo the trial court's interpretation of procedural rules
...." (citing United States v. Elmes, 532 F.3d 1138, 1141
(11th Cir. 2008))).
Analysis
SMM and the appellant sellers argue that none of the
reasons offered by the trial court for denying their motions
seeking the reimbursement of their attorney fees, court costs,
12
1170743, 1170771
and litigation expenses was a proper basis for denying those
motions. Specifically, they argue (1) that a party seeking to
recover under a prevailing-party provision is not required to
assert a counterclaim stating their potential claim at the
beginning of an action that will determine whether, in fact,
that party will be the prevailing party; (2) that a trial
court may award attorney fees, court costs, and litigation
expenses that are owed under a prevailing-party provision
after a final judgment has been entered even if the trial
court did not expressly reserve jurisdiction to do so; (3)
that postjudgment motions requesting attorney fees, court
costs, and litigation expenses that the losing party is
obligated to pay under a prevailing-party provision are not
filed under Rule 59(e) and therefore do not have to be filed
within the 30-day period allowed by Rule 59(e); and (4) that
they did not waive their right to seek reimbursement for their
attorney
fees,
court
costs,
and
litigation
expenses
postjudgment by not addressing that issue during the
bifurcated trial because the trial court defined the scope of
the bifurcated trial to include only issues directly related
13
1170743, 1170771
to whether the release agreement barred Dade and Fournier from
pursuing their claims. We consider these arguments in turn.
A. Compulsory Counterclaims under Rule 13(a), Ala. R.
Civ. P.
In its order denying the motions for attorney fees, court
costs, and litigation expenses filed by SMM and the appellant
sellers, the trial court stated that their claims "for fees
and expenses were not ancillary to the core case [but] arose
out of the transaction or occurrence that was the subject
matter of [Dade and Fournier's] claim." Citing Rule 13(a),
Ala. R. Civ. P., the trial court therefore concluded that
those
claims
"were
compulsory counterclaims,
requiring
SMM
and
[the appellant] sellers to [assert them] to be tried in the
April 2017 trial." Because they did not assert their claims
for reimbursement as counterclaims, the trial court held that
the doctrine of res judicata barred them from asserting those
claims postjudgment. See Mississippi Valley Title Ins. Co. v.
Hardy, 541 So. 2d 1057, 1059-60 (Ala. 1988) (explaining that
the doctrine of res judicata bars a party from subsequently
asserting a claim that should have previously been asserted as
a compulsory counterclaim). SMM and the appellant sellers
argue that the trial court's ruling is inconsistent with the
14
1170743, 1170771
plain language of Rule 13(a), which defines a compulsory
counterclaim as:
"[A]ny claim which at the time of serving the
pleading the pleader has against any opposing party,
if it arises out of the transaction or occurrence
that is the subject matter of the opposing party's
claim and does not require for its adjudication the
presence of third parties of whom the court cannot
acquire jurisdiction."
(Emphasis added.) Highlighting the emphasized language, SMM
and the appellant sellers argue that their reimbursement
claims cannot be considered compulsory counterclaims because
the reimbursement claims had not accrued and were not ripe at
the time they served their answers. At that time, they argue,
they held only potential claims that would not ripen unless
and until the trial court entered a judgment deciding Dade and
Fournier's claims in favor of SMM and the appellant sellers.
See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568,
580–581 (1985) (explaining that a claim is not ripe for
adjudication if it rests upon contingent future events that
may not occur). We agree.
In Brooks v. Peoples National Bank of Huntsville, 414 So.
2d 917, 920 (Ala. 1982), this Court explained that "the time
for determining whether a counterclaim exists is at the time
15
1170743, 1170771
the counterclaimant must serve an answer. ... The pleader
does not waive his right to assert a counterclaim which
accrues after serving the pleading." SMM and the appellant
sellers did not have a ripe claim against Dade and Fournier
when they served their answers in early 2014 because the
release agreement gave the right to recover attorney fees,
court costs, and litigation expenses only to "the prevailing
party" in an action enforcing the release agreement, and SMM
and the appellant sellers had yet to prevail on Dade and
Fournier's claims at that time. In fact, SMM and the
appellant sellers did not become "prevailing part[ies]" under
the terms of the release agreement until the trial court
entered its August 2017 judgment over three years after they
filed their early 2014 answers to Dade and Fournier's
complaint. For that reason, SMM's and the appellant sellers'
claims for attorney fees, court costs, and
litigation expenses
were not compulsory counterclaims that were waived when they
were not asserted in the 2014 answers to Dade and Fournier's
complaint. The trial court therefore erred by holding that
those claims were barred by the doctrine of res judicata. See
also Desroches v. Ryder Truck Rental, Inc., 429 So. 2d 1010,
16
1170743, 1170771
1012 (Ala. 1983) (explaining that a claim for attorney fees,
costs, and expenses stemming from the breach of a release
agreement was not a compulsory counterclaim under Rule 13(a)
because, among other things, the claim was not "fixed in
amount until the litigation in the first action was
completed").
B.
The
Trial
Court's
Jurisdiction
to
Consider
Postjudgment Requests for Attorney Fees, Court Costs, and
Litigation Expenses
In its order denying the motions for reimbursement filed
by SMM and the appellant sellers, the trial court also held
that it lacked jurisdiction over those requests because its
August 2017 order holding that Dade and Fournier's claims were
barred by the release agreement was a final judgment.
Therefore, the trial court reasoned, because it had not
expressly stated that it was retaining jurisdiction to
consider any future requests for attorney fees, court costs,
or litigation expenses, it lost jurisdiction over the case 30
days after the judgment was entered. See Ex parte Caremark
Rx, LLC, 229 So. 3d 751, 757 (Ala. 2017) ("If no Rule 59
motion is filed after a judgment is entered, the trial court
that entered the judgment generally loses jurisdiction to
17
1170743, 1170771
amend the judgment 30 days after the judgment is entered.").
SMM and the appellant sellers do not dispute that the August
2017 judgment was a final judgment, but they argue that their
reimbursement claims based on the prevailing-party provision
were collateral to that judgment and that the trial court
therefore retained jurisdiction to address those claims
without regard to whether it had expressly reserved
jurisdiction to do so. We agree.
All the parties acknowledge that the trial court's August
2017 judgment was a final judgment that would have supported
an appeal by Dade and Fournier. See State Bd. of Educ. v.
Waldrop, 840 So. 2d 893, 899 (Ala. 2002) (recognizing that "a
decision on the merits disposing of all claims is a final
decision from which an appeal must be timely taken, whether a
request for attorney fees remains for adjudication"); see
also
Ray Haluch Gravel Co. v. Central Pension Fund of Int'l Union
of Operating Eng'rs, 571 U.S. 177, 184 (2014) (rejecting
argument that unresolved claims for attorney fees authorized
by contract are not collateral for finality purposes). This
Court and the Court of Civil Appeals have both recognized that
a trial court has jurisdiction to award attorney fees and
18
1170743, 1170771
costs after entering a final judgment because such requests
are collateral to the merits. See, e.g., Complete Cash
Holdings, LLC v. Powell, 239 So. 3d 550, 555 n.6 (Ala. 2017)
(noting that the appellee's request for attorney fees and
costs, which was ultimately granted, was still pending when
the appellant filed its notice of appeal); Ford v. Jefferson
Cty., 989 So. 2d 542, 545 (Ala. Civ. 2007) (affirming an award
of attorney fees, costs, and expenses entered over five months
after final judgment was entered). See also Dunlap v. Regions
Fin. Corp., 983 So. 2d 374, 379 n.5 (Ala. 2007) (noting that
"a majority of other jurisdictions have held that a trial
court retains jurisdiction to award attorney fees after a
notice of appeal has been filed"). It is thus clear that a
trial court may grant a request for an award of attorney fees,
court costs, and litigation expenses even after a final
judgment has been entered. As explained below, there is an
exception to this general rule for requests made under the
Alabama Litigation Accountability Act ("the ALAA"), § 12-19-
270 et seq., Ala. Code 1975, but that exception does not apply
in this case.
19
1170743, 1170771
In explaining its holding that it lost jurisdiction to
consider the reimbursement motions filed by SMM and the
appellant sellers because it did not expressly reserve
jurisdiction to do so in its August 2017 judgment, the trial
court cited Gonzalez, LLC v. DiVincenti, 844 So. 2d 1196, 1202
(Ala. 2002), in which this Court concluded that the trial
court's failure to expressly reserve jurisdiction to consider
an attorney-fee award in its final judgment barred it from
subsequently considering such a request. Importantly,
however, the request for an award of attorney fees in Gonzalez
was made under the ALAA. Section 12-19-272(a) of the ALAA
provides that a court "shall award, as part of its judgment
and in addition to any other costs otherwise assessed,
reasonable attorneys' fees and costs against any attorney or
party" that initiates an action or asserts a claim or defense
that the court determines "to be without substantial
justification." (Emphasis added.) Based on this plain
language, the Gonzalez Court explained that a trial court
"'must make its award of attorney's fees under [the ALAA] as
part of its judgment on the merits of the case.'" 844 So. 2d
at 1201 (quoting Baker v. Williams Bros., 601 So. 2d 110, 112
20
1170743, 1170771
(Ala. Civ. App. 1992)). The Court nevertheless recognized
that "'it is within the court's discretion to hold a separate
hearing on an ALAA petition after the entry of final judgment
on the merits, provided that the court retained jurisdiction
to do so.'" Gonzalez, 844 So. 2d at 1201 (quoting Baker, 601
So. 2d at 112). See also Terminix Int'l Co., L.P. v. Scott,
142 So. 3d 512, 528 (Ala. 2013) ("The trial court does not
have jurisdiction to rule upon an ALAA claim after it has
entered a final judgment on the underlying claim unless it has
specifically reserved jurisdiction to hear the ALAA claim.").
Because Gonzalez involved a request for attorney fees under
the ALAA –– not a contractual prevailing-party provision ––
its holding that a trial court can award attorney fees only
after a final judgment has been entered if the court has
expressly retained jurisdiction to do so does not apply. Dade
and Fournier's reliance on Gonzalez and other ALAA cases is
misplaced.
C. Rule 59 and Postjudgment Motions Requesting Attorney
Fees, Court Costs, and Litigation Expenses
The trial court did not expressly state that it was
denying the requests for reimbursement filed by SMM and the
appellant sellers because they failed to make those requests
21
1170743, 1170771
in the context of a Rule 59(e) motion asking the trial court
to alter or amend its August 2017 final judgment. But in its
order denying those requests, the trial court emphasized that
SMM and the appellant sellers had failed to make their
requests during the 30-day period in which Rule 59 motions are
permitted, and the court concluded that if it were to grant
their requests it would be ignoring "the letter and intent" of
Rule 59. The trial court's order was wrong on this point. As
Alabama courts have explained, a party making a postjudgment
request for an award of attorney fees, court costs, and
litigation expenses does not make that request under Rule 59.
In Russell v. State, 51 So. 3d 1026, 1027 (Ala. 2010), a
property owner challenged the trial court's denial of his
request for "litigation expenses" after the State's attempt to
condemn a portion of his property using its eminent-domain
powers failed.1 After the trial court dismissed the State's
1Section 18-1A-232(a), Ala. Code 1975, requires a trial
court to award the defendant in an eminent-domain action
"litigation expenses" if the action is "dismissed for any
reason." Section 18-1A-3(12), Ala. Code 1975, defines
"litigation expenses" to include "[t]he sum of the costs,
disbursements, and expenses, including reasonable attorney,
appraisal, and engineering fees, necessary to prepare for
anticipated or participation in actual probate or circuit
court proceedings."
22
1170743, 1170771
action on August 20, 2008, the property owner moved the trial
court to award him litigation expenses; on October 31, 2008,
the trial court denied his motion. On November 24, 2008, the
property owner moved the trial court to reconsider its denial
of his request, but, on December 5, 2008, the trial court
denied that motion as well. The property owner thereafter
filed a notice of appeal on December 31, 2008, and it appears
an issue subsequently arose concerning the timeliness of that
notice of appeal.2 If the property owner's initial request
for an award of litigation expenses was considered a Rule
59(e) motion, the trial court's denial of that motion on
October 31 started the 42-day period in which the property
owner could appeal, and his notice of appeal was therefore due
by December 12, 2008, thus making his December 31 notice of
appeal untimely. Conversely, if the trial court's October 31
denial of the property owner's initial request was the
"judgment" and his November 24 motion to reconsider was
2The specific date the property owner filed his notice of
appeal is not stated in Russell, but SMM and the appellant
sellers have cited Russell and "this Court may take judicial
notice of its own records in another proceeding when a party
refers to the proceeding." Kennedy v. Boles Invs., Inc., 53
So. 3d 60, 66 n.2 (Ala. 2010) (citing Butler v. Olshan, 280
Ala. 181, 187-88, 191 So. 2d 7, 13 (1966)).
23
1170743, 1170771
effectively a Rule 59(e) motion, then the trial court's denial
of that motion on December 5 started the appeal clock and the
December 31 notice of appeal was timely. The Russell Court
ultimately agreed with the latter position and concluded that
the property owner's appeal was timely:
"[The property owner's] motion for litigation
expenses and attorney fees was not a motion to alter
or amend a judgment pursuant to Rule 59(e), Ala. R.
Civ. P. ... Therefore, [the property owner's]
motion to 'reconsider' the denial of that request
was not a successive postjudgment motion, and it
tolled the 42–day period for filing an appeal. See,
e.g., Ex parte Keith, 771 So. 2d 1018, 1022 (Ala.
1998) (noting that 'a successive postjudgment motion
does not suspend the running of the time for filing
a notice of appeal')."
51 So. 3d at 1028 n.4. See also Ford v. Jefferson Cty., 989
So. 2d 542, 545 (Ala. Civ. App. 2008) (concluding that a
postjudgment request for attorney fees and costs was not
subject to the 30–day time limitation of Rule 59(e) and
observing that "the United States Supreme Court has held that
a request for an award of attorney fees ... is not a 'motion
to alter or amend a judgment'" (quoting White v. New Hampshire
Dep't of Employment Sec., 455 U.S. 445, 452 (1982))).
Although the basis of the postjudgment request for litigation
expenses in Russell was a statute, the Russell Court
24
1170743, 1170771
recognized that such awards may be allowed by statute or by
contract, 51 So. 3d at 1028, and Dade and Fournier have
offered no compelling reason why we should treat requests
based upon a statute differently from requests based upon a
contract.
In sum, a party requesting attorney fees, court costs,
and litigation expenses in accordance with a prevailing-party
provision is not required to make that request within a motion
invoking Rule 59(e), nor is such a party required to file that
request within the 30-day postjudgment period set forth in
Rule 59(e). The decisions of SMM and the appellant sellers to
file their motions for reimbursement without regard to Rule 59
was therefore an insufficient basis for the trial court to
deny those motions.
D. Lack of Argument and Evidence about the Prevailing-
Party Provision during the Bifurcated Trial
Finally, the trial court held that "[a]ll matters related
to the [release agreement], including claims for fees, were
triable in the bifurcated bench trial" and that "SMM and the
[appellant sellers] abandoned any claim[s] for fees which may
have existed" by failing to address those claims during the
bifurcated trial. SMM and the appellant sellers state,
25
1170743, 1170771
however, that the arguments they made and the evidence they
presented during the bifurcated trial were consistent with the
trial court's order defining the scope of that trial.
Therefore, they argue that their inattention at trial to the
prevailing-party provision did not constitute a waiver of
their right to subsequently seek reimbursement based upon that
provision.
Before considering the scope of the issues that were
before the court during the bifurcated trial, we note that no
party disputes that, at the very earliest stages of this
litigation, SMM and the appellant sellers notified the trial
court and Dade and Fournier of their position that the
prevailing-party provision entitled them to recover the
attorney fees, court costs, and litigation expenses they
incurred defending this action if the action was ultimately
resolved in their favor. The trial court, in fact, recognized
that SMM and the appellant sellers had made this argument in
both their motions for judgment on the pleadings and their
later motions for a summary judgment. After those motions
were denied, however, SMM moved the trial court to conduct a
bifurcated trial "solely on the issue of whether it was
26
1170743, 1170771
impossible
for
[Dade
and
Fournier]
to
restore
the
consideration paid by SMM." The resolution of this issue, SMM
argued, would obviate the need to expend time and resources on
the merits of Dade and Fournier's claims.
On March 1, 2017, the trial court granted SMM's motion to
bifurcate. In its order doing so, the trial court
characterized the thrust of SMM's motion as follows: "SMM
essentially seeks to bifurcate the trial of the issue of
whether [Dade and Fournier] are bound by the terms of the
[release agreement] –– that is, whether [Dade and Fournier]
can avoid the terms of the release." The trial court went on
to conclude that, because a bifurcated trial would be more
expedient and promote the interests of justice, "the issues
related to the effect of the release executed by or on behalf
of [Dade and Fournier] on the claims asserted by [Dade and
Fournier] shall be tried in a bifurcated trial." The trial
court further specifically defined the issues to be tried as
follows:
"The separate issues to be tried include the
effect of the August 16, 2012, release on [Dade and
Fournier's] claims, whether [Dade and Fournier] are
bound by the release, whether the release was
obtained by fraud or duress, and whether on any
ground under Alabama law [Dade and Fournier] can
27
1170743, 1170771
avoid the release they executed though they have not
returned the $650,000 in consideration. The parties
are directed to be prepared to present evidence
bearing on their respective burdens of proof as
outlined
generally
by
[Alabama
Pattern
Jury
Instructions] 11.43, 11.45, 11.47, 11.48, and/or
11.49. The parties are further directed to amend
their pleadings, as may be necessary, no later than
March 31, 2017, to add or confirm any defenses or
affirmatives defenses that would be considered in
the bifurcated bench trial."
Dade and Fournier state that the purpose of the
bifurcated trial was therefore to determine the efficacy of
the release agreement, which, they argue, had three primary
elements: (1) the payment of $650,000 to Dade; (2) Dade's
release of SMM, the selling companies, Hickman, Deel, and
Collier; and (3) the entitlement of the parties to the release
agreement to attorney fees, court costs, and litigation
expenses if there was a breach of that agreement. Thus, Dade
and Fournier argue, any claim for attorney fees, court costs,
and litigation expenses based on a breach of the release
agreement was a triable issue in the bifurcated trial. We do
not agree.
When SMM moved the trial court to conduct a bifurcated
trial, it requested that the bifurcated trial be held to
determine one single issue –– "whether it was impossible for
28
1170743, 1170771
[Dade and Fournier] to restore the consideration paid by SMM."
That request clearly does not include the issue of whether SMM
or the appellant sellers were entitled to recover the attorney
fees, court costs, and litigation expenses they incurred
defending themselves against Dade and Fournier's claims.
Nevertheless, "Rule 42(b)[, Ala. R. Civ. P.,] gives the trial
court a virtually unlimited freedom to order separate trials
of claims, issues, or parties," Committee Comments on the 1973
Adoption of Rule 42, Ala. R. Civ. P., and a trial court's
authority under Rule 42(b) is not limited by the parties'
requests. See Colley v. Estate of Dees, 266 So. 3d 707, 716
(Ala. 2018) (explaining that a trial court has broad
discretion under Rule 42(b) to schedule and manage trials).
Thus, the trial court could have structured the bifurcated
trial to include the issue of whether SMM and the appellant
sellers were entitled to recover their attorney fees, court
costs, and litigation expenses. It is apparent from the
language of the trial court's order, however, that it did not.
The trial court initially stated in its order that
"issues related to" the effect of the release agreement on the
claims asserted by Dade and Fournier –– the primary issue ––
29
1170743, 1170771
would be tried in the bifurcated trial. The effect of the
prevailing-party provision is arguably such a related issue,
but, in the next paragraph of its order, the trial court
further defined the four specific issues to be tried: (1) the
effect of the release agreement on Dade and Fournier's claims;
(2) whether Dade and Fournier were bound by the release
agreement; (3) whether the release agreement was obtained by
fraud or duress; and (4) whether on any ground under Alabama
law Dade and Fournier can avoid the release agreement even
though they had not returned the $650,000 they received in
consideration for executing it. We cannot conclude that this
delineation of the issues to be tried included the issue of
whether SMM and the appellant sellers were entitled to recover
their attorney fees, court costs, and litigation expenses,
especially when, as SMM and the appellant sellers note, that
delineation was immediately followed by an instruction
notifying them "to be prepared to present evidence bearing on
their respective burdens of proof as outlined generally by
[Alabama Pattern Jury Instructions] 11.43, 11.45, 11.47,
11.48, and/or 11.49" –– which specifically address releases
and the avoidance of releases but have no relevance to SMM and
30
1170743, 1170771
the appellant sellers' burden to establish any damages they
might be entitled to receive under the prevailing-party
provision. In light of the trial court's order, the decision
by SMM and the appellant sellers not to present evidence of
their potential claims under the prevailing-party provision
should not be viewed as an abandonment of those claims, but as
compliance with the terms of the trial court's order.
Conclusion
Following a bifurcated trial, the trial court found that
the claims Dade and Fournier had asserted against SMM and the
appellant sellers were barred by the terms of a release
agreement. SMM and the appellant sellers then moved the trial
court to award them their attorney fees, court costs, and
litigation expenses in accordance with a prevailing-party
provision in that release agreement, but the trial court
denied their motions, holding that they had waived their right
to recover those amounts because (1) they failed to assert
counterclaims
encompassing
their
claims
for
reimbursement;
(2)
they did not ask the trial court to retain jurisdiction over
their reimbursement claims before the court lost jurisdiction
over the case; (3) they did not file postjudgment motions
31
1170743, 1170771
raising their claims within the 30-day period allowed by Rule
59(e); and (4) they did not address their claims for
reimbursement at any point during the bifurcated trial. As
discussed above, none of the reasons set forth by the trial
court was a proper basis for denying the reimbursement motions
filed by SMM and the appellant sellers. The trial court's
judgment is therefore reversed and the cause remanded for the
trial court to consider the evidence submitted by SMM and the
appellant sellers in conjunction with their motions for
reimbursement and to enter an appropriate award based on that
evidence.
1170743 –– REVERSED AND REMANDED.
1170771 –– REVERSED AND REMANDED.
Parker, C.J., and Bolin, Wise, Bryan, Mendheim, and
Stewart, JJ., concur.
Sellers, J., dissents.
32 | June 5, 2020 |
7d2d7a5f-810a-4a53-a2e0-61c1b3d2cdb5 | Ex parte Alabama Department of Mental Health ex rel John L. Woods III. | N/A | 1190374 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 22, 2020
1190374
Ex parte Alabama Department of Mental Health ex rel John L. Woods III. PETITION
FOR WRIT OF MANDAMUS: CRIMINAL (In re: State of Alabama v. John L. Woods
M
I) (Autauga Circuit Court: CC-14-167; Criminal Appeals :
CR-19-0115).
ORDER
The petition for writ of mandamus in this cause is denied.
SHAW, J. - Parker, C.J., and Bolin, Wise, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 22nd day of May, 2020.
/ra | May 22, 2020 |
ca0e6cd2-0b45-4bc6-af57-efb1a4489d7a | Butler Precision Components, Inc. v. Patterson Leasing, LLC | N/A | 1180405 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 15, 2020
1180405 Butler Precision Components, Inc. v. Patterson Leasing, LLC (Appeal from
Marshall Circuit Court: CV-15-900445).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on May 15, 2020:
Application Overruled. No Opinion. Parker, C.J. - Shaw, 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 March 13, 2020:
Affirmed. No Opinion. Parker, C.J. - Shaw, Bryan, Mendheim, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 15th day of May, 2020.
Clerk, Supreme Court of Alabama | May 15, 2020 |
e436eb51-6ded-4261-9b05-ac793dd790bd | Edwards v. Pearson | N/A | 1180801 | Alabama | Alabama Supreme Court | Rel: May 22, 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
1180801
Rita Marie Edwards, as mother of Raven June Edwards, a
deceased minor
v.
Penny Pearson
Appeal from Elmore Circuit Court
(CV-15-900369)
STEWART, Justice.
Rita Marie Edwards, as mother of Raven June Edwards, a
deceased minor, appeals from a summary judgment entered in
favor of Penny Pearson on the ground of State-agent immunity.
For the reasons discussed below, we affirm the judgment.
Procedural History
On November 5, 2014, Raven Edwards, an eight-year-old
student at Airport Road Elementary School, attempted to cross
the Deatsville Highway ("the highway") to board a school bus
being driven by Pearson, an employee of the Elmore County
Board of Education. As she did so, Raven was struck by an
automobile,
and she ultimately died as a result of her
injuries.
On December 21, 2015, Rita Marie Edwards ("Edwards"),
Raven's mother, sued Pearson and fictitiously named defendants
A, B, and C, asserting claims of wrongful death and negligent
infliction of emotional distress. Edwards alleged that Pearson
negligently had instructed and/or invited Raven to cross the
highway to board the school bus. Pearson filed an answer
denying the allegations in the complaint and asserting various
affirmative defenses, including, among others, State-agent
immunity.
On August 25, 2016, Pearson filed a motion for a summary
judgment. In support of her motion, Pearson submitted, among
other
evidence,
affidavits,
excerpts
from
deposition
1180801
2
testimony, photographic exhibits, and video footage from a
camera on the school bus. On November 4, 2016, Edwards filed
an amended complaint asserting only a claim of wrongful death.
The parties thereafter engaged in further discovery.
On November 16, 2018, Pearson filed another motion for a
summary judgment grounded on State-agent immunity. Pearson
attached to her motion excerpts of deposition testimony of
Pearson,
Edwards,
and J. Robert Berkstresser and Sandra
Thomas, expert witnesses retained by Edwards. Pearson also
attached a map of the area where the accident occurred, a copy
of Ex parte Mason,
146 So. 3d 9, 14 (Ala. 2013), and a letter
to "Parents" from Ray Mullino, the Transportation Coordinator
for the Elmore County Board of Education
("the Mullino
letter").
On February 16,
2019,
Edwards
filed a response in
opposition to Pearson's
summary-judgment motion.
To her
response,
Edwards
attached
an
affidavit
from
Cody
Rauschenberger, an eyewitness to the accident; the accident
report; excerpts from the Alabama School Bus Driver Handbook
("the State handbook"), published by the Alabama Department of
Education, the Elmore County Public Schools Department of
1180801
3
Transportation School Bus Driver Handbook ("the Elmore County
handbook"), and the Alabama Commercial Driver License Manual
published by the Alabama Department of Public Safety ("the CDL
manual"); the Mullino letter; deposition excepts from Pearson,
Berkstresser, and Dr. Lila Laux, an expert in human-factors
engineering; and photographs of the scene of the accident.
The trial court held a hearing on the summary-judgment
motion on February 20, 2019. On June 5, 2019, the trial court
entered a summary judgment in favor of Pearson on the basis of
State-agent immunity. Edwards appealed.
Facts
The facts are largely undisputed, but a review of the
evidence submitted in support of and in opposition to the
summary-judgment motion is necessary to determine whether
Pearson is entitled to State-agent immunity.
Pearson had been driving a school bus since 2008. On
November 5, 2014, she drove by Raven's house, which was
located on the highway. Raven was not in front of her house,
which, Pearson said, was unusual. Pearson continued her route,
turning left onto Sunset Drive in a subdivision across the
street from Raven's house. After she picked up the students
1180801
4
from that subdivision, her route returned her to the stop sign
on Sunset Drive across from Raven's house at the intersection
of Sunset Drive and the highway. Pearson saw Raven coming out
of the front door to her house and running across the front
yard, heading toward the highway. Pearson testified:
"So I
immediately turned on all my lights, put
my brake on, opened the door. I
was coming down the
steps because her mama wasn't with her. So I
was
going to go get her. And then -- I
mean, I
never got
off the steps, and then I
just heard a noise and
then seen -- you know, I
never saw the truck hit
her, but I
-- I
could just -- I
mean, you just heard
it. And then -- and then she was just there in the
road.
"And so then I
ran to her. And then her mama ran
out then and was coming up to her. So as soon as her
mom got there, I
immediately went, you know, back to
the bus and called 911 and then called my -- you
know, called my boss."
Pearson testified that she thought it was best for her to
stop the bus where she did. Pearson acknowledged that, based
on the position of the bus, oncoming traffic on the highway
could not see the warning lights on the bus. Pearson also
acknowledged that she could have turned left onto the highway
as she was planning to do, and then she could have stopped the
bus on the highway to pick up Raven. She testified, however,
1180801
5
that she was not sure that that would have been a better
decision because Raven was already running toward the bus.
Pearson agreed in her deposition that establishing
designated bus stops is the responsibility of the local board
of education and the local transportation supervisor. Pearson
acknowledged having seen the Mullino letter, but she testified
that Mullino had never told her not to make an unscheduled
stop. Pearson also agreed that the State handbook applies to
school-bus drivers in Alabama.
Edwards's deposition testimony indicated that Raven was
not ready for school when the bus first drove by the
designated stop in front of her house and that Edwards had
waved at Pearson to let her know Raven would be riding the
bus. Edwards testified that she did not intend to walk Raven
to the bus stop; it was cold and she had her two other small
children she was caring for that morning. After Raven left the
house, Edwards heard the impact and ran outside.
Rauschenberger stated in his affidavit that he was
traveling north on the highway and that, as he approached the
intersection of the highway and Sunset Drive, he noticed a
young girl standing to his left at the end of her driveway. He
1180801
6
testified that a school bus was just stopping on Sunset Drive.
According to Rauschenberger, the girl "appeared to be anxious
to cross the road." After he passed, in his rearview mirror he
saw the young girl run into the highway and get hit by an
automobile.
The State handbook excerpt submitted by Edwards provides
that "the exact location of each stop [is] the responsibility
of the local board of education and the transportation
supervisor." The State handbook lists "several things [a bus
driver] should keep in mind in making stops," including, among
others:
"Students who must cross the road should do so
under the watchful eye of the school bus driver and
the protection of the school bus warning system.
1180801
"School bus stops should not be located at
street intersections...
"It is recommended that the warning system
always be used when loading or unloading students."
On another page, under the heading "RULES TO LOAD AND UNLOAD
STUDENTS," the State handbook reads:
"1. The driver should NEVER change stops. Unsafe
situations should be reported to the supervisor.
7
1180801
”2. Students should load or unload ONLY at their
school or designated stop.
”4. Stops should be at least 100 feet from
railroad tracks and intersections.
”5.
Stops
on
interstate
highways
are
prohibited.”
(Capitalization in original.)
Edwards also submitted an
excerpt from the Elmore County handbook, which includes a
section that mirrors the language in the State handbook, with
the exception that the Elmore County handbook does not include
non-standard capitalization or emphasis.1
In addition, Edwards submitted an excerpt from the CDL
manual.
The
CDL
manual
states:
”Each
school
district
establishes official routes and official school bus stops. All
stops should be approved by the school district prior to
making the stop. You should never change the location of a bus
stop without written approval from the appropriate school
district official.”
1
The excerpt from the Elmore County handbook Edwards
submitted with her response in opposition to Pearson's
summary-judgment motion indicates it was revised August 1,
2016. The accident occurred November 5, 2014. Neither party
addresses whether the submitted version of the handbook was in
effect at the time of the accident.
8
Both parties submitted the Mullino letter, which is
undated and addressed to "Parents." It states, in pertinent
part:
"The purpose of this letter is to request that
your child(ren) arrive at the designated stop at
least 5 minutes prior to the bus arrival.
Your
child(ren)'s bus driver has reported a concern that
the child(ren) is not present at the stop prior to
the bus's arrival.
... Please
note that the bus driver is directed to stop only
ONCE at the designated stop. Often drivers travel
through a street, and must return by passing the
designated stop again.
I
HAVE DIRECTED THE BUS
DRIVER TO MAKE ONLY ONE STOP."
(Emphasis and capitalization in original.)
Thomas, who had been a school-bus driver for 23 years,
testified in her deposition that she disagreed with the
actions Pearson took on the morning of November 4, 2015.2
Thomas
opined that
the
only options
Pearson
had when
confronted with the situation were either to turn left and
leave Raven behind, or to turn right, circle around, and then
pick up Raven. Thomas agreed that Pearson was in a bad
position and that, no matter what choice Pearson made, there
was a risk Raven would be injured. Thomas acknowledged that
1180801
2
Although Thomas had been hired by Edwards, Pearson,
rather than Edwards, submitted excerpts from her deposition
testimony.
9
Raven could have attempted to cross the highway while the bus
sat at the stop sign waiting to make a left turn. Thomas
testified that there was nothing in the State handbook or the
Elmore County handbook to address the specific situation
Pearson was faced with and that Pearson had to make split-
second decision and a judgment call.
Berkstresser, who was retained by Edwards, had 41 years
of experience in the school-bus-transportation field as a bus
driver, supervisor of operations, and safety and training
manager. Berkstresser testified that he had reviewed the State
handbook,
Pearson's
deposition
testimony,
a
summary of
Edwards's deposition testimony,
and the accident report.
Berkstresser had not reviewed the statements of any other
witnesses. Berkstresser was asked:
”Q. Okay. What is a bus driver supposed to do
when a child is sitting there across a dangerous
road and, through no fault of the bus driver's, him-
or herself, they approach the child across a busy
road? What are they supposed to do? What should
Penny have done at that point?”
Berkstresser replied:
”A. At that point she should have had her
left-turn indicator on to make a left turn onto
Deatsville Highway. If she felt compelled to then
slow the bus down and pull over and activate her
lights, that would have been -- that would have been
1180801
10
1180801
acceptable; however, again, not according to policy
had she would have been following the procedure
[sic].
"However, what is missed here is the golden
opportunity: When this first happened[
3
]
and Raven's
mother was in -- was present, at that point Penny
Pearson should have again turned her left-turn
indicator on, made the left turn onto Deatsville
Highway, come to a stop, and addressed that with the
-- with
the parent
or,
better
yet,
made
the
left-hand turn onto Deatsville Highway and continued
on
to
school
and
then
report
that
to
her
supervisor.”
Berkstresser
testified
that
Pearson's
actions
in
attempting to pick up Raven at an undesignated stop and having
Raven cross the highway without the protection of the stop arm
and red light on the bus violated industry safe-loading
standards and the Elmore County School District's policy.
Edwards also submitted excerpts of deposition testimony
from
Dr.
Laux,
a
proffered
expert
in
human-factors
3
Berkstresser
testified
that
he
recalled
Edwards's
deposition testimony indicating that, on another occasion,
Edwards walked Raven to the bus stop after she had missed the
bus and Pearson stopped across the highway, walked across to
retrieve Raven, and held Raven's hand while they crossed the
highway to board the bus. Berkstresser testified that that
indicated that Pearson did not appreciate the danger that her
actions had put Raven in.
Edwards's deposition excerpt
attached to Pearson's first summary-judgment motion includes
testimony regarding that scenario having occurred previously.
Neither party emphasizes it, however, so we have included it
only for contextual purposes.
11
engineering. Dr. Laux testified that she determines how people
respond to various circumstances and that she considers all
the cognitive, perceptual, and learning capabilities of a
person in determining how that person would respond to
experiences. Dr. Laux testified that, when Pearson "pulled as
far forward as she did at the intersection and put her -- and
stopped and put her warning lights and all that on and started
to get out, that's when I
think she did something wrong." Dr.
Laux further testified: "Well,
basically,
I
think that
[Pearson] should not have stopped there. And when she did stop
and then open the door and came out, I
think that was an
invitation to Raven to come across the road. So, I
mean, I
think that was the precipitating factor for Raven's behavior."
Dr. Laux also testified that if the bus had stopped at the
stop sign long enough, Raven could have viewed that as an
invitation to run across the highway to board the bus.
Standard of Review
"'"We review a summary judgment de novo." Potter
v. First Real Estate Co.,
844 So. 2d 540, 545 (Ala.
2002) (citation
omitted).
"Summary judgment
is
appropriate only when 'there is no genuine issue as
to any material fact and ... the moving party is
entitled to a judgment as a matter of law.'" Ex
parte Rizk,
791
So.
2d
911,
912
(Ala.
2000)
(citations omitted).'"
1180801
12
Hollis v. City of Brighton,
950 So. 2d 300, 303-04 (Ala.
2006)(quoting Hollis v. City of Brighton,
885 So. 2d 135, 140
(Ala. 2004)).
Discussion
This Court has explained that "'[a] State agent shall be
immune from civil liability in his or her personal capacity
when the conduct made the basis of the claim against the agent
is based upon the agent's ... exercising judgment in the
discharge of duties imposed by statute, rule, or regulation in
... educating students.'" Ex parte Butts,
775 So. 2d 173, 177
78 (Ala. 2000)(quoting Ex parte Cranman,
792 So. 2d 392, 405
(Ala. 2000), and adopting the Cranman test for determining
State-agent immunity). We have also explained that "educating
students" encompasses "not only classroom teaching, but also
supervising and educating students in all aspects of the
educational process." Ex parte Trottman,
965 So. 2d 780, 783
(Ala. 2007). Exercising judgment in supervising students
extends
to bus
drivers
performing
official
duties
and
exercising discretion in supervising students. Ex parte Mason,
146 So. 3d 9, 14 (Ala. 2013).
1180801
13
Once a State agent meets his or her initial burden of
"demonstrating that the plaintiff's claims arise from a
function that would entitle the State agent to immunity" "the
burden then shifts to the plaintiff to show that the State
agent acted willfully, maliciously, fraudulently, in bad
faith, or beyond his or her authority." Ex parte Estate of
Reynolds,
946 So. 2d 450, 452 (Ala. 2006)(citing Giambrone v.
Douglas,
874 So. 2d 1046, 1052 (Ala. 2003), and Ex parte Wood,
852 So. 2d 705, 709 (Ala. 2002)). "'A State agent acts beyond
authority and is therefore not immune when he or she "fail[s]
to discharge duties pursuant to detailed rules or regulations,
such as those stated on a checklist."'" Reynolds,
946 So. 2d
at 452 (quoting Giambrone,
874 So. 2d at 1052, quoting in turn
Ex parte Butts,
775 So. 2d at 178).
Edwards first argues that Pearson did not meet her burden
of demonstrating that Edwards's claims arose from a function
that would entitle Pearson to immunity. Edwards, relying on
Holloman ex rel. Holloman v. Harland,
370 F.3d 1252, 1265
(11th Cir. 2004), asserts that this Court must first consider
the general nature of Pearson's action to determine whether
she was performing a legitimate job-related function that fell
1180801
14
within her job description. In Holloman,
the United States
Court of Appeals for the 11th Circuit explained: ”We ask
whether
the
government
employee
was
(a)
performing
a
legitimate
job-related
function
(that
is,
pursuing
a
job-related goal), (b) through means that were within his
power to utilize.”
370 F.3d at 1265.
Edwards argues that, at the time the accident occurred,
Pearson was not performing a "legitimate job-related function”
because, by making an unscheduled and unapproved bus stop to
pick up Raven, Pearson, in effect, created a new bus stop and,
in doing so, Edwards contends, exceeded her discretion and
authority.
Edwards
asserts
that
it
is
undisputed
that
Pearson's job function does not involve establishing bus
stops. Edwards points to deposition testimony from Pearson in
which she acknowledged that the bus-stop locations are the
responsibility of the local board of education and the
transportation
supervisor.
Edwards
further
asserts
that
Pearson had been instructed (via the Mullino letter) that, if
a student was not at his or her scheduled stop on time, she
was to continue the route, leaving the student behind.
1180801
15
As Pearson points out, however, Holloman involves an
analysis of qualified immunity under federal law; it does not
involve an analysis of State-agent immunity under Cranman or
Alabama law. This Court follows the analysis detailed in
Cranman and subsequently adopted in Ex parte Butts.
In Ex
parte Mason,
a similar case involving a bus driver, we
explained:
"The determination as to whether a bus driver is
entitled to State-agent immunity rests upon whether
the claims against the bus driver are based on acts
arising from the performance of official duties and
the exercise of discretion in the supervision of
students. ... [I]n this case, the claims arise from
Mason's conduct in supervising a student's getting
off the school bus. Because the conduct at issue in
this case involves the exercise of discretion in
supervising students, Mason has satisfied his burden
of demonstrating that [the plaintiff's] claims arise
from his exercise of discretion while performing his
duties as a bus driver in supervising students and
that he is entitled to State-agent immunity.”
146 So. 3d at 14.
The evidence indicated that Pearson, after turning the
bus around in a cul-de-sac, was traveling to a stop sign on
Sunset Drive at the intersection of Sunset Drive and the
highway across the
street from Raven's house with the
intention of making a left turn. Pearson saw Raven running
across her yard toward the highway. Pearson made the quick
1180801
16
decision to activate the warning lights on the bus, and she
began to exit the bus with the intention of escorting Raven
across the highway. Before Pearson was able to exit the bus,
Raven attempted to cross the highway and was struck by an
automobile. Pearson's actions were taken in contemplation of
supervising (and assisting) a student in boarding the school
bus. Based on this factual scenario, there can be no question
but that Pearson was performing her duties as a bus driver in
supervising students when she stopped the school bus and
exited the bus. Accordingly,
Pearson met her burden of
demonstrating that Edwards's claims arose from Pearson's
exercise of discretion while performing her official duties
and that she thus is entitled to State-agent immunity.
After Pearson met her burden of demonstrating she was
entitled to State-agent immunity,
the burden shifted to
Edwards to demonstrate that Pearson "act[ed] willfully,
maliciously, fraudulently, in bad faith, beyond his or her
authority, or under a mistaken interpretation of the law.”
Cranman,
792 So. 2d at 405. Edwards's argument in the trial
court and on appeal
is
that Pearson acted beyond her
authority. Edwards asserts that Pearson's responsibilities
1180801
17
regarding bus
stops were nondiscretionary and that,
by
creating an unauthorized and unscheduled bus stop, Pearson
violated rules in the State handbook,
the Elmore County
handbook, and the CDL manual.
Pearson asserts that, in Ex parte Mason,
this Court was
confronted with the argument that a bus driver did not follow
certain rules and procedures and held that the bus driver was
entitled to State-agent immunity. In Ex parte Mason,
a fifth-
grade student was riding a school bus being driven by Mason.
The student exited the school bus at a stop across a highway
from his house that was a designated stop but that was not his
designated stop. The student was struck by an automobile and
injured when crossing that highway. The student's grandfather
sued Mason and others, alleging that Mason failed to properly
supervise the student and failed to ensure that the student
exited the bus at the appropriate bus stop. The grandfather
alleged that Mason acted beyond his authority and violated,
among other rules, the following rules and regulations in the
State handbook and the CDL manual:
1180801
The driver should never change stops;
Students should load or unload only at their
school or designated stop;
Students should not cross a median or divided
highway;
”— Students should wait on the side of the road on
which they live ....”
Ex parte Mason,
146 So. 3d at 14. It was apparent in Ex parte
Mason that the above rules were not followed. We explained,
however, that the evidence indicated that Mason did not know
that the student exited the bus at the incorrect stop or that
he lived across the highway from the stop and would have to
cross
a busy highway.
Further,
there was
no
evidence
indicating that Mason "suggested, forced, or otherwise caused”
the student to exit the bus at the incorrect location. Id. at
15. Based on the evidence, this Court concluded that the
plaintiff in that case "did not satisfy his burden of
establishing that Mason acted beyond the scope of his
authority in supervising" the student. Id.
Pearson argues that the bus driver in Ex parte Mason
"arguably could have had some control over" his alleged
violation of rules and regulations because he should have
known the student's correct bus stop and where the student
lived. Pearson's situation, she asserts, is not covered by any
rules or regulations and requires the exercise of discretion
1180801
19
because, she says, she was "faced with an immediate and
dangerous situation, which literally required that a split-
second decision be made." (Pearson's brief, at 45.)
Edwards argues that Ex parte Mason is distinguishable
because, in Ex parte Mason,
the bus driver dropped a student
off at a designated bus stop, but, in this case, she asserts,
Pearson violated rules and regulations by creating a new bus
stop to pick up a student at a dangerous location. Edwards
also asserts that the bus driver in Ex parte Mason did not
encourage the child to cross the road. Edwards asserts that
Pearson created the dangerous situation by stopping the bus,
activating the warning system on the bus, and opening the
door, all of which, she contends, invited Raven to cross the
highway.
As
explained
above,
the
burden
is
on
Edwards
to
demonstrate that an exception to State-agent immunity applies.
Edwards has not demonstrated that Pearson acted beyond her
authority. Pearson did not change the location of a designated
bus stop, as Edwards contends. Instead, Pearson was faced with
an exigent circumstance that involved a child located across
a busy highway from the bus she usually boarded. Pearson and
1180801
20
Rauschenberger,
the
only
witnesses
who
observed
Raven
immediately before the accident, testified that Raven was
approaching the highway, and Rauschenberger stated that Raven
appeared to be "anxious" to cross the highway.
Pearson
established that she was justified to stop the school bus at
the intersection because she feared that Raven would cross the
highway; it is undisputed that this is precisely what happened
before Pearson could exit the bus. Nothing in the State
handbook or the Elmore County handbook addresses what course
of action a school-bus driver must take if the bus driver
observes a student approaching a busy highway and the driver
believes the student is in imminent danger. This is precisely
the type of situation that requires an exercise of discretion,
based on the circumstances as they are known to the school-bus
driver at that time.
As we have previously explained:
"State-agent immunity protects agents of the State in their
exercise
of
discretion
in
educating
[and
supervising]
students. We will not second-guess their decisions." Ex parte
Blankenship,
806 So. 2d 1186, 1190 (Ala. 2000).
We note that, in her initial brief on appeal, Edwards
does not cite any cases addressing situations in which a State
1180801
21
agent was held to have acted beyond his or her authority by
disregarding rules in a handbook.4
In her reply brief,
Pearson, for the first time, cites Ex parte Spivey,
846 So. 2d
322 (Ala. 2002), and Giambrone.
It is well settled, however,
that "'an argument may not be raised, nor may an argument be
supported by citations to authority, for the first time in an
appellant's reply brief.'”
Steele v. Rosenfeld, LLC, 936 So.
2d 488,
493
(Ala.
2005)
(quoting Improved Benevolent &
Protective Order of Elks v. Moss,
855 So. 2d 1107, 1111 (Ala.
Civ. App. 2003)). Even if Edwards had relied on Ex parte
Spivey in her principal brief, that case does not support her
position. In Ex parte Spivey,
a student asserted that a
teacher had violated a faculty handbook, OSHA regulations, and
an owner's manual for a ”shaper tool,”
which, he asserted,
resulted in his
injury.
This Court explained that the
regulations cited by the student were general statements
regarding safety that did not prevent the teacher from
1180801
4
In addition, Edwards did not submit with her response to
Pearson's
summary-judgment motion the
full text of the
handbooks, which would aid this Court in determining whether
the rules in the handbooks were intended to be mandatory and
whether they were applicable at the time of the accident.
22
exercising his judgment and did not remove the protections of
State-agent immunity. 846 So. 2d at 333.
Because Edwards failed to demonstrate that there were
detailed rules or regulations that Pearson was required to
follow in this circumstance, she failed to demonstrate that
Pearson acted beyond her authority; thus, Pearson was entitled
to State-agent immunity.
Conclusion
Pearson demonstrated that she was entitled to State-agent
immunity, and Edwards failed to demonstrate that an exception
to that immunity applied.
Accordingly,
the trial court
properly entered a summary judgment in Pearson's favor, and we
affirm the judgment.
AFFIRMED.
Bolin, Wise, and Sellers, JJ., concur.
Parker, C.J., concurs in the result.
1180801
23 | May 22, 2020 |
6b7f81eb-b9ba-41ad-b720-4584cbb5f760 | Walters v. De'Andrea | N/A | 1190062 | Alabama | Alabama Supreme Court | REL: June 5, 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
____________________
1190062
____________________
Clint Walters
v.
Jessica De'Andrea
and Progressive Casualty Insurance Company
Appeal from Montgomery Circuit Court
(CV-17-900388)
MENDHEIM, Justice.
Clint Walters appeals from a summary judgment entered by
the Montgomery Circuit Court in favor of Montgomery Police
Department ("MPD") patrol officer Jessica De'Andrea and
1190062
Progressive Casualty Insurance Company ("Progressive"). We
reverse and remand.
I. Facts
The basic facts of this case are not disputed. On
March 14, 2015, Walters was driving his motorcycle on the
Eastern Boulevard in Montgomery when he came to a complete
stop at a red light. De'Andrea was traveling on the Eastern
Boulevard in her MPD police vehicle when she came to a stop
directly behind Walters's motorcycle at the intersection of
the Eastern Boulevard and Monticello Drive. De'Andrea
testified in her deposition that she had completed her patrol
shift and that she was on her way to the MPD South Central
Headquarters on the Eastern Boulevard to
"[t]urn in paperwork for the day.
"Q. All right. So sign out basically?
"A. Yes.
"Q. Okay. When you say 'turn in paperwork,' what
does that entail?
"A. If I had any tickets, any kind of reports, my
daily activity sheet -- everything I did that day."
De'Andrea's MPD supervisor at that time, Lt. Alphonso Gumbs,
submitted an affidavit in which he explained:
2
1190062
"The policy implemented at the time required patrol
officers to meet and turn in their daily activity
logs at the end of their shift.
"2. As part of their daily duties, [p]atrol
[o]fficers would turn in their daily activity
sheets, and any paperwork completed on shift which
wasn't filed electronically.
"3. The officers would report to their precinct at
the end of their shift to turn the paperwork in."
Both Walters and De'Andrea sat at the red light, waiting
for it to turn green. In her deposition, De'Andrea described
what happened next:
"I noticed that the light turned green. The
cars ... I know the ones that were going straight on
the opposite lane, they were moving. The vehicles
in front of Mr. Walters [were] moving. I'm not sure
if his brake light was intact. I assumed that he
was moving. I proceeded to go, and I hit him from
behind.
"Q. Okay. Did you see him as you drove into him?
"A. Yes.
"Q. Okay. And -- but your testimony is that you
assumed he was going, is that right?
"A. Like, no brake light was on from what I recall.
"Q. Okay.
"A. So I'm assuming that the car -- his motorcycle
is moving. So I started moving.
"Q. And then you just hit him?
3
1190062
"A. I mean, he was in front of me.
"Q. All right. You weren't distracted? You
weren't looking in any other direction --
"A. No.
"Q. -- or anything?
"A. I was looking straight ahead."
De'Andrea openly admits that she was at fault for the
accident, stating in her appellate brief: "While she was
certainly at fault when she bumped the rear of [Walters's]
motorcycle, her actions were negligent at best." De'Andrea's
brief, p. 13.
Walters alleges that he suffered multiple injuries as a
result of the accident, and on March 13, 2017, Walters filed
an action in the Montgomery Circuit Court against De'Andrea,
Progressive, and State Farm Mutual Automobile Insurance
Company ("State Farm").
Walters asserted claims of negligence
and wantonness against De'Andrea in her individual capacity;
he asserted claims for uninsured-motorist benefits against
Progressive and State Farm.
On April 12, 2018, State Farm filed a summary-judgment
motion in which it contended that Walters did not have any
insurance policies with State Farm in force at the time of the
4
1190062
accident. Following a hearing, the circuit court subsequently
denied that motion.
On August 16, 2019, De'Andrea filed a summary-judgment
motion in which she asserted that she was entitled to State-
agent immunity from Walter's suit under Ex parte Cranman, 792
So. 2d 392 (Ala. 2000), and § 6-5-338, Ala. Code 1975. On
August 22, 2019, Progressive and State Farm filed summary-
judgment motions in which they contended that, if the claims
against De'Andrea were entitled to be dismissed based on the
doctrine of State-agent immunity, then Walters was not
entitled to uninsured-motorist coverage because Walters would
not be "legally entitled to recover damages" from De'Andrea.
See § 32-7-23(a), Ala. Code 1975. On September 5, 2019,
Walters filed a response in opposition to
the
summary-judgment
motions in which he contended that De'Andrea was not entitled
to State-Agent immunity because, he said, her actions did not
fall within any function that would entitle her to such
immunity. Walters did not dispute that if De'Andrea was
entitled to State-agent immunity, then Progressive and State
Farm would likewise be entitled to a summary judgment.
5
1190062
On September 10, 2019, the circuit court held a hearing
on the summary-judgment motions. On September 12, 2019, the
circuit court entered summary judgments in favor of
De'Andrea,
Progressive, and State Farm. The summary-judgment order did
not detail the circuit court's reasons for its decision. On
September 19, 2019, Walters filed a postjudgment motion
requesting that the circuit court alter, amend, or vacate its
summary-judgment order. The postjudgment motion was
denied on
September 25, 2019.
Walters appeals the judgment of the circuit court with
respect to De'Andrea and Progressive. Walters has not
included State Farm as a party to this appeal.1
II. Standard of Review
Our review of a summary judgment is well settled:
"If there is a genuine issue as to any material fact
on the question whether the movant is entitled to
immunity, then the moving party is not entitled to
a summary judgment. Rule 56, Ala. R. Civ. P. In
determining whether there is a [genuine issue of]
1Although Walters argues in his appellate brief that
"State Farm and
Progressive's Motions for Summary Judgment are
due to be denied," Walters's brief, p. 22, his notice of
appeal does not list State Farm as an appellee. Accordingly,
State Farm is not a party to the appeal. See Rule 3(c), Ala.
R. App. P. (stating that "[t]he notice of appeal shall specify
all parties taking the appeal and each adverse party against
whom the appeal is taken ....").
6
1190062
material fact on the question whether the movant is
entitled to immunity, courts, both trial and
appellate, must view the record in the light most
favorable to the nonmoving party, accord the
nonmoving party all reasonable favorable inferences
from the evidence, and resolve all reasonable doubts
against the moving party, considering only the
evidence before the trial court at the time it
denied the motion for a summary judgment. Ex parte
Rizk, 791 So. 2d 911, 912 (Ala. 2000)."
Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002).
III. Analysis
Walters contends that the circuit court erred in entering
a summary judgment in De'Andrea's favor on the basis of
immunity because, he says, she was not performing a function
that would entitle her to State-agent immunity at the time of
the accident. In Ex parte Cranman, 792 So. 2d 392 (Ala.
2000), this Court restated the rule for determining when a
State agent sued in his or her individual capacity is entitled
to State-agent immunity.2 In her summary-judgment motion,
De'Andrea argued that she
was entitled to State-agent immunity
under categories (3) and (4) of the restatement of State-agent
immunity as set out in Cranman, and as modified in Hollis v.
2Although
Cranman
was
a
plurality
decision,
the
restatement of law as it pertains to State-agent immunity set
forth in Cranman was subsequently adopted by this Court in
Ex parte Butts, 775 So. 2d 173 (Ala. 2000).
7
1190062
City of Brighton, 950 So. 2d 300 (Ala. 2006) (incorporating
the
peace-officer-immunity standard
in
§
6–5–338(a),
Ala.
Code
1975, into category (4) of the State-agent-immunity analysis
in Cranman). See, e.g., Howard v. City of Atmore, 887 So. 2d
201, 203 (Ala. 2003) (explaining that, "[b]y enacting [§ 6-5-
338, Ala. Code 1975], the Legislature intended to afford
municipal law-enforcement officials the immunity enjoyed by
their state counterparts. Sheth v. Webster, 145 F.3d 1231,
1237 (11th Cir.1998). Indeed, '[t]his statute, by its terms,
extends state-agent immunity to peace officers performing
discretionary functions within the line and scope of their
law-enforcement duties.' Moore v. Crocker, 852 So. 2d 89, 90
(Ala. 2002) (emphasis added).").
"'This
Court
has
established
a
"burden-shifting"
process when a party raises the defense of
State-agent immunity.' Ex parte Estate of Reynolds,
946 So. 2d 450, 452 (Ala. 2006). A State agent
asserting State-agent immunity 'bears the burden of
demonstrating that the plaintiff's claims arise from
a function that would entitle the State agent to
immunity.' 946 So. 2d at 452. Should the State
agent make such a showing, the burden then shifts to
the plaintiff to show that one of the two categories
of exceptions to State-agent immunity recognized in
Cranman is applicable."
Ex parte Kennedy, 992 So. 2d 1276, 1282–83 (Ala. 2008).
Walters in essence contends that De'Andrea never shifted the
8
1190062
burden such that he was required to show that one of the
exceptions to State-agent immunity applies. In pertinent
part, the Court in Cranman stated:
"A State agent shall be immune from civil
liability in his or her personal capacity when the
conduct made the basis of the claim against the
agent is based upon the agent's
"....
"(3) discharging duties imposed on a department
or agency by statute, rule, or regulation, insofar
as the statute, rule, or regulation prescribes the
manner for performing the duties and the State agent
performs the duties in that manner; or
"(4) exercising judgment in the enforcement of
the criminal laws of the State, including, but not
limited to, law enforcement officers' arresting or
attempting to arrest persons[, or serving as peace
officers under circumstances entitling such officers
to immunity pursuant to § 6–5–338(a), Ala. Code
1975]."
Cranman, 792 So. 2d at 405; bracketed modification added by
Hollis, 950 So. 2d at 309).
De'Andrea contends that she "was clearly within prong (3)
of Cranman" because "[o]ne of the daily duties of the patrol
officers was to report to their precinct at the end of their
shift to turn in daily activity logs." De'Andrea's brief,
pp. 9-10. De'Andrea also argues that her actions fit "under
category (4) of the Cranman test" because "she was still
9
1190062
working in her capacity as a patrol officer. The nature of
her duties as a patrol officer requires her to exercise her
judgment in the enforcement of the criminal laws of the State
of Alabama." Id. at pp. 10, 13. In support of this latter
contention, De'Andrea quotes from "The Standard Operating
Procedure for the Montgomery Police Department Patrol
Division":
"1. Standard Patrol Duties
"A. Purpose and Scope
"1. The purpose of this procedure
is to establish the baseline
responsibilities
of
patrol
officers assigned to the Patrol
Division.
"2.
Patrol
is
the
primary
activity of any law enforcement
agency that includes much more
t h a n
d r i v i n g
t h r o u g h
neighborhoods looking for signs
of criminal activities.
"B. Function
"-Patrol Officers shall provide, but are
not limited to, activities relating to:
"1. Preventive patrol directed at
prevention
of
criminal
acts,
vehicle related violations and
accident[s], the maintenance of
public order, and discovery of
hazardous situations.
10
1190062
"2. Crime prevention activities
to include proactive, aggressive
patrolling, visual inspection of
open businesses, and rigorous
patrols of residential areas.
"3. Calls for service, other
routine and emergency in nature
[sic].
4. Investigation of both criminal
and noncriminal activity.
"5.
The
arrest
of
criminal
offender[s].
"6.
Community
relations
activities
such
as
citizen
assists and individual contacts
of a positive nature.
"7. The sharing of information
between
divisions
within
the
Department.
"8. The application of community
policing philosophy to establish
a partnership with citizens to
improve the quality of life and
provide a sense of safety and
security
to
the
community
members.
"9.
Traffic
directions
and
control.
"C. Preventive or Aggressive Patrolling
"-Preventive and or aggressive patrolling
is designed to prevent crimes before they
occur through a number of strategies.
11
1190062
"1. Expending extra patrol time
at known 'hot spots' or locations
where
crime
patterns
are
occurring.
"2. Looking for known suspects
responsible for crime patterns.
"3. Interacting with community
members.
"4.
Watching
for
suspicious
activities."
However, as Walters observes, despite offering this
laundry list of patrol-officer duties, De'Andrea does not
point to a single patrol duty she was actually performing at
the time the accident occurred. In fact, De'Andrea admitted
in her own testimony that she had completed her patrol shift
and that she was simply returning to her precinct to turn in
paperwork, not performing any patrol duties. Moreover, with
respect to any duty De'Andrea may have had to turn in her
paperwork, the policy described by her commanding officer did
not "prescribe[] the manner for performing [that] dut[y]"
other than that it had to be done at the end of a shift.
Cranman, 792 So. 2d at 405. The policy in question had
nothing to do with how De'Andrea drove her police vehicle on
public roadways. De'Andrea admitted that as far as that duty
12
1190062
was concerned -- the duty to drive her vehicle in a safe
manner -- she mistakenly "assumed that [Walters] was moving.
I proceeded to go, and I hit him from behind." Indeed,
Walters argues that, at the time the accident occurred,
De'Andrea was performing what "can only be characterized as a
routine action requiring the exercise of due care," which is
not clothed with the protection of State-agent immunity.
Walters's brief, p. 10. In support of this proposition,
Walters relies upon Ex parte Venter, 251 So. 3d 778 (Ala.
2017).
Venter concerned a suit precipitated by a collision
between a vehicle driven by Aubrey Vick and a fire truck
driven by fireman Terence Venter. Vick was killed in the
accident. Venter testified by affidavit that at the time of
the accident he and two fellow firemen "'had been patrolling
areas around the City of Selma, learning streets and areas,
inspecting streets and layout of the City of Selma,'" and that
they were in the process of "'returning to Selma Fire Station
# 4 after riding around assigned territory within the City of
Selma.'" 251 So. 3d at 780. The collision occurred at a
stop-light intersection, and there was a factual dispute as to
13
1190062
whether the light was green when Venter drove the fire truck
into the intersection. Venter moved for a summary judgment,
contending that he was "entitled to State-agent immunity under
category (1) of the Cranman restatement[3] because ..., at the
time of the accident, Venter was formulating plans and
policies on behalf of the fire department by 'patrolling'
fire-rescue routes." Id. at 782. This Court rejected Venter's
argument, explaining:
"It is undisputed that, at the time of the
accident, Venter was not responding to an emergency
call. Rather, according to Venter's affidavit, he
was 'patrolling,' a term he describes as 'exploring
and identifying fire rescue routes' and/or 'looking
for people in need of help or waiting for an
emergency call.' Venter and the City have not
provided this Court with any caselaw from this State
or any other jurisdiction in which immunity has been
extended to a fireman who was engaged in routine
patrolling when an alleged tort occurred. And,
assuming, without deciding, that the act of
'patrolling'
could
somehow
be
equated
with
formulating policy or procedure, Venter, by his own
admission, was not engaged in the act of patrolling
when the accident occurred. Rather, Venter stated
in his affidavit that, at the time of the accident,
he was 'returning' to the fire department 'after
riding around assigned territory within the City of
Selma.' Furthermore, in the narrative summary of
undisputed facts in the summary-judgment motion,
3Cranman category (1) provides that a State-agent is
immune if the conduct underlying the claim is based upon the
agent's "(1) formulating plans, policies, or designs."
Cranman, 792 So. 2d at 405.
14
1190062
Venter and the City add that, in the process of
returning to the fire department, Venter had stopped
at a grocery store. Venter's action in returning to
the
fire
department
after
an
afternoon
of
patrolling, in conjunction with stopping at the
grocery store, cannot be equated with performing a
function that would entitle him to State-agent
immunity; rather, such action can be characterized
only as a routine action requiring the exercise of
due care. See, e.g., Ex parte Coleman, 145 So. 3d
751, 758 (Ala. 2013)('It is undisputed that Coleman
is a peace officer entitled to the immunity
established in § 6–5–338(a)[, Ala. Code 1975,] and
that at the time of the accident he was performing
a function -- responding to an emergency call --
that entitles Coleman to immunity.' (emphasis
added)); DeStafney v. University of Alabama, 413 So.
2d 391 (Ala. 1981)(rejecting immunity claim of
individual defendant, an aide at the University's
day-care
center
who
allegedly
allowed
the
plaintiff's child to fall off playground equipment,
on basis that defendant was engaged in a function
that clearly required the exercise of due care
rather than difficult decision-making); cf. Gill v.
Sewell, 356 So. 2d 1196 (Ala. 1978)(holding the
director of a work-release center sued for releasing
a convicted felon who then shot the plaintiff was
performing discretionary duties). Accordingly,
because Venter has failed to demonstrate that, at
the time of the accident, he was performing a
function that would entitle him to State-agent
immunity, he and the City are not entitled to the
relief requested."
Ex parte Venter, 251 So. 3d at 782–83 (footnote omitted and
some emphasis added).
Walters contends, correctly in our view, that this case
presents a very similar situation to the one presented in
15
1190062
Venter because De'Andrea, by her own admission, was not
responding to an emergency call or engaged in the act of
patrolling when the accident occurred. Rather, she was simply
returning to her precinct at the end of her shift to turn in
paperwork. As the Venter Court observed: "[S]uch action can
be characterized only as a routine action requiring the
exercise of due care."4 Ex parte Venter, 251 So. 3d at 783.
Walters observes that the Alabama Code prescribes that
"[n]o person shall start a vehicle which is stopped, standing,
or parked unless and until such movement can be made with
reasonable safety." § 32-5A-132, Ala. Code 1975. More
generally, the Alabama Code also states that "the driver of an
authorized emergency vehicle" has a "duty to drive with due
regard for the safety of all persons using the highway."
§ 32-5A-58.2(c)(2), Ala. Code 1975. This Court has noted that
"a government employee sued for a tortious act committed in
the line and scope of his employment may, in an appropriate
case (i.e., where the employee has breached a duty he owes
individually to a third party), be sued individually." Wright
v. Cleburne Cty. Hosp. Bd., Inc., 255 So. 3d 186, 191 (Ala.
4De'Andrea does not provide any discussion of Venter, let
alone request that we overrule it.
16
1190062
2017). The Wright Court provided as an example that "a driver
on an errand for his employer owes an individual duty of care
to third-party motorists whom he encounters on public
roadways." Id. The Cranman Court itself observed:
"As an example, there should be some recognizable
difference in legal consequence between, on the one
hand, a prison warden's decision not to fire or not
to sanction the entity contracting with the State
Department
of
Corrections
to
provide
medical
services and, on the other hand, a decision by the
driver of a pickup truck on how to drive through or
around potholes while transporting prisoners. Each
situation involves judgment or discretion. Under
our recent cases, the warden is immune [citing
Ex parte Davis, 721 So. 2d 685 (Ala. 1998),] and the
truck driver is not [citing Town of Loxley v.
Coleman, 720 So. 2d 907 (Ala. 1998)]."
Ex parte Cranman, 792 So. 2d at 404 (emphasis added). The
duty at issue here -- "the conduct made the basis of the claim
against [De'Andrea]" -- was nothing more or less than the duty
of due care that every driver on the roadway owes to other
motorists. Cranman, 792 So. 2d at 405. Under Venter and
other authorities, such an action is not clothed with State-
agent immunity.
17
1190062
IV. Conclusion
Based on the foregoing, we conclude that De'Andrea failed
to demonstrate that Walters's claims arise from a function
that would entitle her to State-agent immunity. Therefore,
the summary judgment in De'Andrea's favor is due to be
reversed. Because Progressive's summary-judgment motion was
predicated solely on the ground that Walters would not be
"legally entitled to recover" uninsured-motorist benefits if
De'Andrea was entitled to State-agent immunity, the summary
judgment in its favor also must be reversed. The cause is
remanded
for
further
proceedings
consistent with
this
opinion.
REVERSED AND REMANDED.
Parker,
C.J.,
and
Wise,
Sellers,
Stewart,
and
Mitchell, JJ., concur.
Bryan, J., concurs in the result.
Bolin and Shaw, JJ., dissent.
18
1190062
SHAW, Justice (dissenting).
At the time of the accident in this case, the defendant,
Jessica
De'Andrea,
was operating
a
Montgomery
Police
Department vehicle in her capacity as a Montgomery police
officer and as a patrol officer. One duty on patrol included
returning to the precinct to turn in completed paperwork.
Under Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000):
"A State agent shall be immune from civil
liability in his or her personal capacity when the
conduct made the basis of the claim against the
agent is based upon the agent's ...
"....
"(3) discharging duties imposed on a department
or agency by statute, rule, or regulation, insofar
as the statute, rule, or regulation prescribes the
manner for performing the duties and the State agent
performs the duties in that manner."
The Montgomery Police Department has a standard operating
procedure for patrols. I see nothing showing that, while
driving to her precinct, which is part of the patrol duty,
Officer De'Andrea was no longer operating under or bound by
the prescriptions of her duties. Therefore, I respectfully
dissent.
Bolin, J., concurs.
19 | June 5, 2020 |
dd8bc53e-69ba-4066-a9ac-3de527d917ef | Fannie M. Pollard, as personal representative of the Estate of Ed Young, deceased v. H.C. Partnership d/b/a Hill Crest Behavioral Health Services | N/A | 1180795 | 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
May 22, 2020
1180795
Fannie M. Pollard, as personal representative of the Estate of Ed Young,
deceased v. H.C. Partnership d/b/a Hill Crest Behavioral Health Services (Appeal from
Jefferson Circuit Court: CV-17-901873).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on May 22, 2020:
Application Overruled. No Opinion. Bolin, J. - Parker, C.J., and Wise, Bryan, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur. Shaw, 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 March 13, 2020:
Reversed And Remanded. Bolin, J. - Parker, C.J., and Wise, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur. Bolin, J., concurs specially. Bryan, J., concurs in the result. Shaw,
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 22nd day of May, 2020.
Clerk, Supreme Court of Alabama | May 22, 2020 |
c5aff948-93d5-4b3b-aef7-9e507b9ba3b2 | Ex parte Eddie Ford. | N/A | 1190462 | 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
May 15, 2020
1190462
Ex parte Eddie Ford. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Eddie Ford v. Alabama Board of Pardons and Paroles)
(Montgomery Circuit Court: CV-19-309; Criminal Appeals :
CR-18-1239).
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 May 15, 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 15th day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 15, 2020 |
0ca2a209-3bb7-40b7-a303-e695f9c0d947 | Mohr v. CSX Transportation, Inc. | N/A | 1180338 | Alabama | Alabama Supreme Court | REL: May 22, 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
____________________
1180338
____________________
Jerry Mohr
v.
CSX Transportation, Inc.
Appeal from Mobile Circuit Court
(CV-17-902900)
MITCHELL, Justice.
In April 2017, Jerry Mohr, a Mobile County resident and
an employee of CSX Transportation, Inc. ("CSX"), was injured
in an on-the-job accident while working on a crew that was
repairing a section of CSX railroad track near the Chef
1180338
Menteur Bridge in Louisiana. Mohr sued CSX in the Mobile
Circuit Court, asserting a negligence claim under the Federal
Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. The
trial court ultimately entered a summary judgment in favor of
CSX. Mohr appeals that judgment, arguing that there are
genuine issues of material fact that can only be resolved by
a jury. We affirm the judgment.
Facts and Procedural History
Mohr has been employed by CSX in various positions since
August 2000. Sometime in 2016, he began working as a
traveling bridge mechanic. On April 17, 2017, Mohr was
assigned to a crew making repairs to a section of railroad
track that had washed out near the Chef Menteur Bridge outside
New Orleans. The crew's specific job on this date involved
using a crane to load bundles of sheet piling –– narrow 25-
foot-long interlocking pieces of steel –– onto a flatbed
railcar, transporting that loaded railcar to the area where
the railroad track had washed out, and then using a crane to
unload the bundles. An outside contractor then installed the
sheet piling by driving it into the ground alongside the base
of the railbed, thus shielding the railbed from further
2
1180338
erosion caused by the adjacent water. Mohr and his crew
loaded and unloaded railcars throughout the day on April 17,
and again on April 18, without incident.
In accordance with CSX policy, each work day began with
a job briefing and safety meeting at which the crew members
discussed issues that might arise in connection with the tasks
they were performing that day. On April 19, Mohr's crew began
their day with such a meeting, which was conducted by
telephone with their supervisor Brian May, who was working in
Evergreen. The crew then proceeded to load, transport, and
unload two more railcars of sheet piling. After loading and
transporting a third railcar, they began unloading it in the
same manner they had unloaded the previous railcars that day
and over the two previous days. One crew member, operating a
crane mounted to the end of the railcar, maneuvered the boom
of the crane over a bundle of sheet piling while Mohr and
another bridge mechanic, William Laufhutte, stood on the
railcar at opposite ends of the bundle and attached crane
cables to the chains that bundled several pieces of sheet
piling together. Laufhutte also attached a "tag line" to his
end of the bundle, which was used to control the load once it
3
1180338
was lifted so that it could be guided to its destination
without uncontrolled rotation. CSX's safety rules required
employees working with suspended loads to use tag lines when
moving loads that were to be lifted higher than knee level,
but no rule dictated the number of tag lines that must be
used.
After Mohr and Laufhutte finished attaching the crane
cables and tag line to a bundle, they backed away and a signal
was given to the crane operator to lift the bundle
approximately two to three feet high. In accordance with CSX
safety rules, Mohr and Laufhutte then used their gloved hands
as needed to steady the bundle and to keep it parallel to the
railcar as the crane began swinging the bundle to the side.
Once Mohr and Laufhutte reached the edge of the railcar, they
removed their hands from the bundle and a crew member on the
ground, who took possession of the tag line after it was
attached by Laufhutte, assumed control over the bundle,
rotated it 90 degrees, and guided it as the crane placed it on
the riprap covering the sloped side of the elevated railbed.1
1During his deposition, Laufhutte described the riprap as
"football sized rocks" that were placed on the side of the
railbed for erosion control.
4
1180338
As the crew was unloading the third bundle from the third
railcar on April 19, Mohr and Laufhutte attached the crane
cables and tag line, and the bundle was lifted approximately
knee high. As the crane swung the bundle toward the unloading
site, Mohr steadied the bundle with his left hand and walked
it to the edge of the railcar. At some point, however, the
cuff of the leather work glove on Mohr's left hand became
caught in the bundle of sheet piling and, as the bundle swung
over the riprap covering the sloped side of the railbed, Mohr
was pulled off the railcar with it. While he was suspended
approximately 10 feet above the riprap, Mohr's glove tore and
he fell headfirst onto the rocks below; he was knocked
unconscious and his left arm was fractured. His coworkers
thereafter loaded him onto an airboat, which the contractor
installing the sheet piling had on-site, and he was taken to
shore and transported by ambulance to a hospital.
On November 6, 2017, Mohr sued CSX under the FELA,
alleging that his injuries were caused by CSX's negligent
failure to provide a safe workplace. Mohr specifically
alleged that CSX had acted negligently by (1) not providing
proper safety gloves; (2) not mandating the use of an
5
1180338
additional tag line to better control the suspended bundles;
(3) not having sufficient employees on-site to safely unload
the railcars; (4) not properly training its employees; and (5)
not properly supervising its employees. Following the
completion of discovery, CSX moved the trial court to enter a
summary judgment in its favor, arguing there was no evidence
to support Mohr's claims that CSX had breached its duty to
provide a safe workplace. Mohr filed a response opposing
CSX's summary-judgment motion, to which CSX filed a reply.
On December 14, 2018, the trial court heard oral
arguments on CSX's summary-judgment motion, and, four days
later, the trial court entered a summary judgment in favor of
CSX. In its order, the trial court noted that Mohr had
acknowledged during his deposition both that his crew was well
trained, experienced, and knew how to properly unload sheet
piling from the railcars and that they were not improperly
supervised on the day of the incident. The trial court
further noted that Mohr had apparently abandoned his claim
that CSX had failed to provide a sufficient number of
employees to safely unload the railcars because he failed to
address that claim in his response to CSX's summary-judgment
6
1180338
motion. Accordingly, the trial court held that CSX was
entitled to a summary judgment on Mohr's claims that CSX had
acted negligently by failing to provide proper training,
proper supervision, or a sufficient number of employees for
the crew to safely perform their job duties.
The trial court subjected Mohr's other two claims to
further analysis:
"As
for
Mohr's remaining claims ––
regarding the
number of tag lines and type of gloves provided for
the job –– Mohr has failed to submit evidence that
[CSX] breached its duty. The FELA imposes a duty on
employers to provide a reasonably safe workplace.
Tootle v. CSX Transp., Inc., 746 F. Supp. 2d 1333,
1337 (S.D. Ga. 2010). This does not mean that an
employer must eliminate all workplace dangers. Id.
It requires only that they eliminate dangers 'that
can reasonably be avoided in light of the normal
requirements of the job.' Id. (quoting Stevens v.
Baner & Aroostook R.R. Co., 97 F.3d 594, 598 (1st
Cir. 1996)). Reasonable foreseeability, i.e.,
notice of a potential hazard[,] is an essential
ingredient in FELA liability. Gallick v. Baltimore
& Ohio R.R. Co., 372 U.S. 108, 117 (1963). See
also Barger v. CSX Transp., Inc., 110 F. Supp. 2d
648, 653 (S.D. Ohio 2000). Thus, to establish FELA
negligence, Mohr was required to establish that
[CSX] 'knew or should have known of a potential
workplace hazard' and failed to remedy it. Tootle,
746 F. Supp. 2d at 1337.
"Mohr has failed to establish that [CSX's] use
of standard leather work gloves and use of one tag
line caused a potential hazard of which [CSX] either
knew or should have known. Mohr has, moreover, not
established a violation of any statute, regulation,
7
1180338
standard, or practice that required different gloves
or an additional tag line. Mohr was required to
establish not that some other equipment or method
was safer, but that the actual equipment or method
used was not reasonably safe. Tootle, 746 F. Supp.
2d at 1338 (quoting McKennon v. CSX Transp., Inc.,
897 F. Supp. 1024, 1027 (M.D. Tenn. 1995)). He has
failed to submit any such evidence. No jury could
reasonably find that [CSX] failed to provide a
reasonably safe place to work on these facts.
"Moreover, notice is the cornerstone of FELA
liability, and Mohr has submitted no evidence
whatsoever that [CSX] had notice of any potential
hazard related to the standard work gloves or the
use of one tag line for the job. See Gallick, 372
U.S. at 117."
Based on these conclusions of law, the trial court entered a
summary judgment in favor of CSX on all claims asserted by
Mohr. Mohr thereafter filed a timely appeal to this Court,
challenging the trial court's judgment only as it related to
his claims involving the type of work gloves provided by CSX
and CSX's policy for using tag lines.
Standard of Review
The FELA allows a railroad employee injured in a
workplace accident to sue his or her employer in either
federal or state court. Burlington Northern R.R. v. Warren,
574 So. 2d 758, 762 (Ala. 1990). In Glass v. Birmingham
Southern R.R., 905 So. 2d 789, 792-93 (Ala. 2004), this Court
8
1180338
explained the standard of review it applies in an appeal
challenging a summary judgment entered on a FELA claim:
"Although the FELA authorizes the filing of a
federal action for an employer's alleged failure to
provide
a
safe
workplace,
and
although
the
substantive law governing such cases is federal, St.
Louis Southwestern Ry. v. Dickerson, 470 U.S. 409,
411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985), '[a]s a
general matter, FELA cases adjudicated in a state
court are subject to the state's procedural rules.'
Alabama Great So. R.R. v. Jackson, 587 So. 2d 959,
962 (Ala. 1991). Thus our standard in Alabama for
reviewing a summary judgment applies.
"In performing such a review, we use the same
standard the trial court used in determining whether
to deny or to grant the summary-judgment motion. We
must determine whether the evidence presents a
genuine issue of material fact and whether ... the
movant[] was entitled to a judgment as a matter of
law. Rule 56(c), Ala. R. Civ. P. If [the movant]
makes a prima facie showing that no genuine issue of
material fact exists, the burden then shifts to [the
nonmovant] to present substantial evidence creating
such a genuine issue of material fact. Bass v.
SouthTrust Bank, 538 So. 2d 794, 798 (Ala. 1989).
Evidence is 'substantial' if it is of 'such weight
and quality that fair-minded persons in the exercise
of impartial judgment can reasonably infer the
existence of the fact sought to be proved.' West v.
Founders Life Assurance Co. of Florida, 547 So. 2d
870, 871 (Ala. 1989). This Court must review the
record in a light most favorable to the nonmovant
and must resolve all reasonable doubts against the
movant. Hanners v. Balfour Guthrie, Inc., 564 So.
2d [412,] 413 [(Ala. 1990)]."
9
1180338
Thus, we apply the same de novo standard of review in this
case that we would apply in the appeal of a summary judgment
deciding typical state-law claims.2
Analysis
In Glass, this Court explained that, although the FELA
does not define negligence, a plaintiff asserting a FELA claim
must prove the same elements that are at issue in any
negligence case: (1) a duty owed by the defendant; (2) a
breach of that duty; (3) causation; and (4) damage. 905 So.
2Mohr does not directly state that the substantial-
evidence rule, see § 12-21-12, Ala. Code 1975, does not apply
to summary judgments involving FELA claims, but, citing Pulley
v. Norfolk Southern Ry., 821 So. 2d 1008, 1013 (Ala. Civ. App.
2001), he argues that he can establish the existence of a
genuine issue of material fact and thus avoid summary judgment
by submitting only "minimal" or "slight" evidence as opposed
to "substantial" evidence. His argument is misguided. In
Pulley, the Court of Civil Appeals quoted an excerpt from
Hines v. Consolidated Rail Corp., 926 F.2d 262, 267-68 (3d
Cir. 1989), to provide a "historical backdrop" for the FELA.
Within that excerpt, the United States Court of Appeals for
the Third Circuit noted that it had previously held in Pehowic
v. Erie Lackawanna R.R., 430 F.2d 697, 699-700 (3d Cir. 1970),
"that a FELA plaintiff need only present a minimum amount of
evidence in order to defeat a summary judgment motion." 926
F.2d at 268. Mohr fails to recognize, however, that the
Pulley court, when setting forth the standard of review it was
applying,
specifically
explained
that
a
party
opposing
summary
judgment still has to meet its burden with substantial
evidence. 821 So. 2d at 1012. Because this action was filed
in an Alabama state court, we apply Alabama procedural rules,
and to the extent there is any conflict between those rules
and Hines and Pehowic, those cases have no application.
10
1180338
2d at 793-94. See also Cottles v. Norfolk Southern Ry., 224
So. 3d 572, 581-82 (Ala. 2016) (same).3
Mohr and CSX agree that, "[u]nder the FELA, a railroad
employer owes its employees a duty to provide a safe place to
work." Glass, 905 So. 2d at 794 (citing Blair v. Baltimore &
Ohio R.R., 323 U.S. 600, 601 (1945); Bailey v. Central Vermont
Ry., 319 U.S. 350, 352 (1943); Yawn v. Southern Ry., 591 F.2d
312, 315 (5th Cir. 1979)). Additionally, although CSX asserts
that Mohr's accident was at least partly caused by his own
carelessness in where he placed his hand, it is not disputed
that there is substantial evidence indicating that the
immediate cause of Mohr's accident and injuries was the loose
cuff of his glove getting caught in a bundle of sheet pile.
3We recognize that at times and even in other FELA cases
this Court has described the elements of a negligence claim as
being (1) a duty; (2) a breach of that duty; (3)
forseeability; and (4) causation. See Norfolk Southern Ry. v.
Denson, 774 So. 2d 549, 552 (Ala. 2000) ("'To prevail on an
FELA negligence claim, the plaintiff must prove the
traditional common law elements of negligence: duty, breach of
that duty, foreseeability, and causation.' CSX Transp., Inc.
v. Dansby, 659 So. 2d 35, 37 (Ala. 1995)."). Although our
present formulation of the negligence elements does not
explicitly
include
foreseeability,
that
concept
is
encompassed
in a proper analysis of the other elements. CSX Transp., Inc.
v. Miller, 46 So. 3d 434, 464 (Ala. 2010). See also Gallick
v. Baltimore & Ohio R.R., 372 U.S. 108, 118 (1963)
(recognizing that a defendant's duty is measured by what is
reasonably foreseeable under the circumstances).
11
1180338
The focus of our review is therefore on the second element of
the negligence inquiry –– whether CSX breached its duty to
Mohr to provide him a safe workplace by failing to equip him
with proper safety gloves and by failing to mandate the use of
a second tag line. We first examine Mohr's claim relating to
the work gloves provided by CSX.
A. The Leather Work Gloves Provided By CSX
Mohr alleges that the standard leather work gloves
provided by CSX were not suitable for the task he was
performing when he was injured because, he alleges, the cuffs
on the gloves were loose and susceptible to getting snagged on
items. He asserts that CSX should have instead provided him
with tighter-fitting mechanic-style gloves that have a Velcro
strap around the cuff, which, Mohr argues, are less likely to
get caught on items like the bundles of sheet piling he was
unloading when he was injured. Mohr argues that his and
Laufhutte's deposition testimony constitutes substantial
evidence indicating (1) that the standard leather work gloves
he was issued were not reasonably safe and (2) that CSX had
knowledge of the danger posed by the gloves. See McKennon v.
CSX Transp., Inc., 897 F. Supp. 1024, 1027 (M.D. Tenn. 1995)
12
1180338
(explaining that a FELA plaintiff must establish that the
employer's practice was not "reasonably safe"); see also
Tootle v. CSX Transp., Inc., 746 F. Supp. 2d 1333, 1337 (S.D.
Ga. 2010) ("A railroad breaches its duty to provide a safe
workplace if it 'knew or should have known of a potential
hazard in the workplace, and yet failed to exercise reasonable
care to inform and protect its employees.'" (quoting Ulfik v.
Metro–North Commuter R.R., 77 F.3d 54, 58 (2d Cir. 1996))).
Thus, Mohr argues, he submitted substantial evidence to
create
a genuine issue of material fact regarding his claim that CSX
breached its duty to provide him with a safe workplace by not
providing him with proper gloves.
CSX argues that Mohr's argument fails on both accounts.
First, it disputes that the leather work gloves it provided
Mohr were not reasonably safe for the task he was performing
when he was injured; and, second, it argues that, even if the
leather work gloves did present a safety issue, CSX had no
knowledge of that fact before Mohr's accident. For the
reasons that follow, we agree that Mohr failed to put forth
substantial evidence creating a genuine issue of
material fact
as to whether CSX knew or should have known that the standard
13
1180338
leather work gloves it provided Mohr were not reasonably
safe.4
In Carlew v. Burlington Northern R.R., 514 So. 2d 899,
901 (Ala. 1987), this Court recognized that reasonable
foreseeability is an essential component of a FELA negligence
claim. See also Gallick v. Baltimore & Ohio R.R., 372 U.S.
108, 117 (1963) ("We agree with respondent that reasonable
foreseeability of harm is an essential ingredient of [FELA]
negligence."); Van Gorder v. Grand Trunk Western R.R., 509
F.3d 265, 269 (6th Cir. 2007) (explaining that a railroad
breaches its duty to provide a safe workplace when it knows or
should have known that its practices were inadequate to
protect its employees). CSX argues that there is no evidence
in the record indicating that there had ever been a previous
injury caused by the standard-issue leather work gloves and
that, regardless of whether Mohr and Laufhutte presently
believe that the leather work gloves are a safety hazard, they
never raised that concern with their supervisors or other
management before Mohr's accident.
4Our resolution of this issue makes it unnecessary to
consider
whether
Mohr
submitted
substantial
evidence
indicating that the leather work gloves were, in fact, not
reasonably safe, and we express no opinion on that issue.
14
1180338
Mohr does not dispute the absence of evidence about any
previous accidents caused by the leather work gloves, but he
argues
that
his and
Laufhutte's
deposition
testimony
established that they put CSX on notice of their safety
concerns well before Mohr's accident. Because Mohr's argument
hinges on his and Laufhutte's deposition testimony, we
examine
those transcripts in detail below. Before doing so, however,
we reiterate that this Court has cautioned against the
practice of relying on isolated excerpts of deposition
testimony to argue in favor of a proposition the testimony as
a whole does not support:
"Even if portions of her expert's testimony could be
said to be sufficient to defeat a summary-judgment
motion when viewed 'abstractly, independently, and
separately from the balance of his testimony,' 'we
are not to view testimony so abstractly.' Hines v.
Armbrester, 477 So. 2d 302, 304 (Ala. 1985)."
Giles v. Brookwood Health Servs., Inc., 5 So. 3d 533, 550
(Ala. 2008). See also Riverstone Dev. Co. v. Garrett &
Assocs. Appraisals, Inc., 195 So. 3d 251, 257-58 (Ala. 2015)
(explaining that this Court's standard of review when
reviewing a trial court's ruling on a motion for a judgment as
a matter of law requires us to consider a witness's testimony
as a whole, not just isolated excerpts).
15
1180338
During his deposition, Mohr was asked multiple times by
the attorney for CSX to describe any specific complaints he
had made about the leather work gloves before his accident:
"Q.
At any point in time before the accident, did
you request a different set of gloves?
"A.
We had –– we had talked about it before. We
had heard other people [were] getting gloves
that strap over. And we [were] talking about,
wondering, you know, if we could get some, but
nothing ever happened about it.
"Q.
Did you ever complain to anyone that it was
unsafe to do the job you were doing with the
gloves you were wearing?
"A.
No, sir, never reported it.
"Q.
Okay. Did anyone?
"A.
No, sir.
"....
"Q.
Are you aware of anyone ever having a glove get
caught on a sheet pile before your incident?
"A.
Not as I know of.
"Q.
Are you aware of anyone ever complaining that
these gloves, the ones you were wearing, were
unsafe to use to unload sheet piling before the
incident?
"A.
Not as I know of.
"....
16
1180338
"Q.
Did you at any point in time before the
accident ask anyone for a different type of
gloves for this job?
"A.
We've –– we've –– like I said earlier, we
mentioned it about getting some because we
heard other guys were getting [the mechanic-
style gloves] and we [were] wondering why we
weren't getting them.
"Q.
Okay.
"A.
But I never got an answer from that.
"Q.
That was a discussion amongst your crew, is
what you told ––
"A.
Right.
"Q.
–– me, right? Did you ever –– did you ever
complain to anyone that the gloves you were
using were unsafe for that job?
"A.
Yeah, I told them these glov- –– these gloves
were loose.
"Q.
Who did you tell that to?
"A.
My foreman, Jeremy Davis, at the time.
"Q.
Okay. All right. Did you ever tell anyone
that using those gloves was unsafe to use?
"A.
No, I never told anyone.
"Q.
Okay.
"A.
Because that's what they furnished us with, so
I figured they knew what they were doing.
17
1180338
"Q.
Okay. Did anyone, to your knowledge, before
your accident complain that using those gloves
to do this job was unsafe?
"A.
I never heard any- -- never heard anyone.
"....
"Q.
What did you say to Jeremy Davis about gloves?
"A.
I li– –– I told him that, you know, had
mentioned to him that we were –– that other
people were getting these [mechanic-style]
gloves, you know –- you know, why –– why
couldn't we get them.
"....
"Q.
Why did you say that to him? What prompted it?
"A.
It was a –– like I said, I heard other people
were getting them and –– and I think they were
more safe and that –– that we should have got
them, too.
"Q.
And what did he say to you?
"A.
He would check into it.
"Q.
Was that the first time you ever mentioned it
to him?
"A.
Uh-huh.
"Q.
Okay. Did you tell him you didn't want to
perform the job you were performing without
those gloves?
"A.
No.
18
1180338
"Q.
Did you tell him you didn't want to perform the
job you were performing with the gloves you
had?
"A.
No.
"Q.
Okay. Did anyone tell Jeremy Davis or anyone
else, to your knowledge, these gloves that you
were using are unsafe for this job?
"A.
Not to my knowledge.
"Q.
Okay. Did you say anything else to Jeremy
Davis other than mentioning to him that other
people are getting these Velcro-strap gloves
... can you get them?
"A.
We talked amongst ourselves.
"Q.
And by that you mean you and Bill and ––
"A.
Our –– our gang.
"....
"Q.
And what did y'all –– when you talked amongst
yourself, what did y'all say?
"A.
That –– that was –– we –– it was –– we just
stopped after that, after we, you know,
mentioned it.
"....
"Q.
Just so I'm clear, was it only the one time
that you asked Jeremy or mentioned to Jeremy
about those gloves?
"A.
Yes.
"Q.
Just the one time?
19
1180338
"A.
Just the one time.
"Q.
Okay. Have you ever mentioned it to anybody
else before the accident?
"A.
No, sir."
Thus, Mohr repeatedly testified both that he had never told
any supervisor that the leather work gloves issued by CSX were
unsafe and that he was unaware of any other CSX employee
making that complaint. Mohr emphasizes the one time in his
testimony when he told his supervisor the leather work gloves
"were loose," but, when considering Mohr's testimony as a
whole, the only conclusion one can reasonably draw is that he
never complained to CSX that the leather work gloves he had
been provided were not reasonably safe. At best, Mohr might
have made an inquiry to his supervisor about receiving some
mechanic-style gloves, but the record does not contain any
evidence indicating that Mohr told his supervisor that his
request was motivated by safety concerns about the leather
work gloves CSX had provided.
Our inquiry does not end here, however, because Mohr
argues that Laufhutte's deposition testimony also showed that
CSX had notice that the leather work gloves it provided were
not reasonably safe. When Laufhutte was asked by CSX's
20
1180338
attorney about the leather work gloves, he testified as
follows:
"Q.
Did you ever complain to anyone about ... the
equipment that you were using or anything about
the job that you felt affected safety?
"A.
I've been saying it personally for years. The
gloves we use aren't –– they're not worth
having.
"Q.
The what?
"A.
They're not worth having. They're terrible.
"Q.
The gloves?
"A.
The loose cuff gloves are just useless.
"Q.
Did you –- did you complain that the leather
gloves were unsafe?
"A.
I –– well, I mean, they weren't –– I don't
think I ever said they were unsafe.
"Q.
Okay. What was your complaint about the
leather gloves.
"A.
The cuff's loose. It has a tendency to get
caught on things. There's –– we've seen some
in the –– in the system, I guess you'd call it.
We've seen some of the bigger production gangs
–– system production gangs have a knot on them.
It's like a Velcro, like a mechanic's glove.
"Q.
Uh-huh.
"A.
And we've seen those and I know we've asked for
them.
21
1180338
"Q.
Let me ask you, with regard to this job did you
ever tell anyone that it's unsafe to use these
leather gloves on this job?
"A.
No.
"Q.
Okay. Did anybody to your knowledge?
"A.
I don't –– I don't know.
"Q.
Did you ever complain to anyone with regard to
the job that y'all were doing the day of the
accident that anything about that job was
unsafe?
"A.
Me personally, no.
"Q.
Do you know anyone that did?
"A.
I don't know.
"Q.
And the gloves that you're talking about, the
standard leather gloves, who did you complain
to about those?
"A.
Just about every supervisor I've worked with ––
worked for.
"Q.
And Bill, what was the nature
of your
complaint?
"A.
That first off, when you get them, when they
come to you out of the package, they have a
tendency to be dry rotted. The first time you
put them on, they split. It doesn't take long
for them to wear out. The fingers are real ––
the material is thin. They're just not –- not
a good –– not a good glove in my opinion.
"Q.
Are there any other complaints that you had
about the glove other than what you've just
said ––
22
1180338
"A.
I don't think so.
"Q.
–– about being dry rotted?
"A.
No. Like I said, the cuff is just –– the cuff
is loose.
"Q.
Okay.
"A.
... I normally wear a size large in gloves.
But I take the smallest one because they're
tighter. And if you get a smaller glove,
they'll actually fit like a –– it doesn't help.
The cuff is still big. But the glove itself
will fit like a –- like a batting glove.
"Q.
Yeah.
"A.
But you need, in my opinion, I've been telling
them you need that Velcro piece on the side to
tighten the glove.
"Q.
For –– why?
"A.
That cuff. It leaves your wrist exposed and
has a tendency to get hung up on stuff.
[The next page of the deposition transcript was not
included in the record.]
"A.
... I never actually thought about [the gloves]
being an actual –– saying they were a safety
hazard, but looking back, that's what it was.
"Q.
Okay. But you never said that to anyone.
Isn't that right?
"A.
No. No. I never said these gloves present a
safety hazard.
"Q.
Okay.
23
1180338
"A.
I never –– I've always said these gloves –– the
other gloves would be better to have.
"Q.
Okay. Who have you said that to? What
supervisor specifically?
"A.
I know I told –– Zack Amna. ... He no longer
works for CSX. Brian May.
"Q.
Zack Amna and Brian May?
"A.
Yes.
"Q. Any other supervisors, Bill?
"A.
No.[5]
"Q.
When did you tell Zack Amna?
"A.
Probably maybe a year before. Probably a ––
two years ago maybe.
"....
"Q.
Okay. And what specifically did you say to
Zack Amna?
"A.
Oh, I just –– in a safety overlap, I said I'd
like to have the Velcro cuffed gloves, the
mechanic-style gloves.
"Q.
Did you say anything other than that?
"A.
No.
"....
5Later in his deposition, Laufhutte testified that he had
also told another supervisor, Chad Coker, that he'd "like to
have the mechanic's gloves, the mechanic-style gloves."
24
1180338
"Q.
Other than telling them you'd like to have the
Velcro strapped glove, did you say anything
else about the glove to Zack Amna?
"A.
No, just that.
"....
"Q.
What did you say to Brian May?
"A.
Same thing. I think we need to have the Velcro
mechanic-style gloves if we can get them.
"Q.
What did Brian May say in response?
"A.
He'd send it up the chain. It would be a pass-
up item.
"Q.
Okay. When did you say that to Brian May?
"A.
The exact day, I don't remember. One of our
safety overlaps. ... Maybe a couple of months
before [Mohr's accident]."
It is evident from Laufhutte's testimony that, even before
Mohr's accident, he did not like the leather work gloves for
a variety of reasons and that he would have preferred the
mechanic-style gloves. But Laufhutte's testimony that he
told
unspecified individuals that the leather work gloves were "not
worth having," "terrible," and "useless" and his testimony
that he told his supervisors that mechanic-style gloves were
preferable and "would be better to have" is insufficient to
have put CSX on notice that the leather work gloves CSX
25
1180338
provided were not reasonably safe. Every time Laufhutte was
asked if he had ever specifically complained that the leather
work gloves were unsafe he admitted that he had not –– "I
don't think I ever said they were unsafe"; "I never said these
gloves present a safety hazard."
We acknowledge Laufhutte's testimony about the cuff on
the leather work gloves being loose and having a tendency to
get caught on things. This testimony might be relevant to the
question of whether the gloves were reasonably safe, but
because Laufhutte could not identify even a single instance
when he complained to a supervisor about the loose cuff posing
a safety hazard, that testimony does not support the
conclusion that CSX knew or should have known about that
safety concern. In sum, a fair-minded person in the exercise
of impartial judgment could not conclude on the basis of
Laufhutte's deposition testimony that CSX had notice of the
alleged safety hazard presented by the leather work gloves.
In reviewing a trial court's summary judgment, the role
of this Court is to determine whether the nonmovant met his
burden of establishing that a genuine issue of material fact
exists. Glass, 905 So. 2d at 793. Even when we consider all
26
1180338
the evidence in the record in the light most favorable to
Mohr, as our standard of review requires, we cannot conclude
that Mohr has met that burden in this case because he has
failed
to
present
substantial
evidence
indicating that,
before
Mohr's accident, CSX knew or should have known that the
leather work gloves it provided to its employees were not
reasonably safe. Accordingly, the trial court did not err by
entering a summary judgment in favor of CSX on that claim.
B. CSX's Safety Rules For Using Tag Lines
We reach the same conclusion with regard to Mohr's claim
that CSX was negligent by not requiring his crew to use a
second tag line to secure the bundle of pilings. The CSX
safety rule governing the use of tag lines, Safe Way Rule
2405.1, provides that employees working with cranes and
hoisting equipment must "use tag lines when necessary to
control loads that are being moved higher than knee level."
The rule, however, does not dictate the number of tag lines
that must be used. Mohr acknowledged in his deposition that
each member of his crew was well trained and experienced and
that he had no criticism of them "with regard to [the]
accident." Each of those crew members was deposed in the
27
1180338
course of this litigation, and they unanimously testified that
they believed one tag line was sufficient to safely perform
the task the crew had been assigned. In sum, no member of the
undisputedly well trained and experienced crew –– including
Mohr –– thought a second tag line was needed, much less
complained about the crew's failure to use one. Even still,
had one of the crew members decided a second tag line was
needed, it is undisputed that additional tag lines were
available on-site for the crew to use.
"A railroad breaches its duty to provide a safe workplace
if it 'knew or should have known of a potential hazard in the
workplace, and yet failed to exercise reasonable care to
inform and protect its employees.'" Tootle, 746 F. Supp. 2d
at 1337 (quoting Ulfik, 77 F.3d at 58). It is undisputed that
CSX had appropriately recognized that a load suspended by a
crane presents a potential hazard because it might begin to
rotate. CSX therefore had a safety rule in place requiring
its employees to use tag lines to control such loads. That
safety rule left it to the discretion of the employees to
determine how many tag lines are necessary, and all four
members of Mohr's crew, as well as their supervisor May,
28
1180338
testified that it was reasonable to use one tag line for the
task the crew was performing when Mohr was injured. There is
no testimony in the record indicating otherwise, and "'the
mere fact that the injury occurred'" is insufficient to show
that CSX's safety rules were not adequate. Glass, 905 So. 2d
at 793 (quoting Atlantic Coast Line R.R. v. Dixon, 189 F.2d
525, 527 (5th Cir. 1951)). See also Durso v. Grand Trunk
Western R.R., 603 F. App'x 458, 460 (6th Cir. 2015) ("To be
actionable, the railroad must have known or should have known
that the standards of conduct were not adequate to protect its
employees."). In the absence of any evidence indicating that
CSX should have known that one tag line was insufficient to
protect its employees at the time Mohr was injured, CSX was
entitled to a judgment as a matter of law on Mohr's claim.
The trial court therefore acted properly in entering a summary
judgment in favor of CSX on Mohr's claim regarding the tag
line.
Conclusion
Mohr was injured when his leather work glove became
caught in a bundle of sheet piling that was being unloaded by
crane from a railcar, causing him to be dragged off the
29
1180338
railcar with the suspended load before falling onto the rocks
below. Mohr sued his employer CSX under the FELA, alleging
that his injuries were caused by multiple negligent acts
committed by CSX. The trial court ultimately entered a
summary judgment in favor of CSX on Mohr's claims, and Mohr
appealed, challenging the summary judgment on two of those
claims. Having reviewed the record, we agree that the summary
judgment was warranted on both claims Mohr presented on
appeal. The trial court's summary judgment is therefore
affirmed.
AFFIRMED.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur.
30 | May 22, 2020 |
737b7a01-9ad7-4d64-b414-6b9f53ba61f3 | Turner v. State Farm Mutual Insurance Company | N/A | 1181076 | Alabama | Alabama Supreme Court | Rel: May 29, 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
____________________
1181076
____________________
David R. Turner
v.
State Farm Mutual Insurance Company
Appeal from Baldwin Circuit Court
(CV-17-901256)
BRYAN, Justice.
David R. Turner appeals from a summary judgment entered
by the Baldwin Circuit Court ("the circuit court") in favor of
State Farm Mutual Insurance Company ("State Farm"). We
affirm.
1181076
Background
In August 2017, Turner was on duty as a paramedic and was
riding in the passenger seat of an ambulance while responding
to an emergency call. While traversing an intersection, the
ambulance collided with a vehicle being driven by Michael
Norris. Turner suffered multiple injuries, including a
broken
leg. In November 2017, Turner sued Norris, asserting claims
of negligence and "recklessness." Norris answered the
complaint, denying that he had been negligent or reckless.
In January 2018, Norris filed in the circuit court a
suggestion of bankruptcy, asserting that he had named Turner
as a creditor in the bankruptcy proceeding. The circuit court
thereafter entered an order dismissing Turner's action,
without prejudice. Turner later moved the circuit court to
reinstate the action, asserting that he had obtained relief
from the relevant bankruptcy court to proceed with his action
against Norris. The circuit court granted Turner's motion.
Once the action was reinstated, Turner filed an amended
complaint, naming his insurance carrier, State Farm, as an
additional defendant and including a claim for "underinsured-
motorist coverage" against State Farm. State Farm answered
2
1181076
the amended complaint.
In September 2018, Norris and Norris's insurance carrier
offered to settle Turner's claims against Norris for $25,000,
the liability limits of Norris's insurance policy. Turner's
attorney sent a letter notifying State Farm of the settlement
offer and stating: "We would like State Farm to investigate
the claim and determine if State Farm will waive subrogation
and allow us to accept the $25,000 offered by [Norris's
insurance carrier] or if State Farm intends to tender $25,000
and force us to pursue our claims against ... Norris."
In November 2018, State Farm's attorney sent a letter to
Turner's attorney, stating:
"Please find enclosed herewith a check from
State Farm ..., in the amount of $25,000 ... which
represents the 'buy out' of ... Norris'[s] policy
limits offer. Please hold the proceeds in trust
pending satisfaction of any liens and subrogation
claims.
All
subrogation
rights
of
the
[underinsured-motorist] carriers against ... Norris
are reserved pursuant to Lambert v. State Farm, 576
So. 2d 160 (Ala. 1991), and its progeny."
State Farm enclosed with its letter a check for $25,000.
In January 2019, State Farm filed a motion to "opt out"
of the action pursuant to the procedure described by this
Court in Lowe v. Nationwide Insurance Co., 521 So. 2d 1309,
3
1181076
1310 (Ala. 1988), in which this Court stated, in relevant
part:
"A plaintiff is allowed either to join as a party
defendant his own liability insurer in a suit
against the underinsured motorist or merely to give
it notice of the filing of the action against the
motorist and of the possibility of a claim under the
underinsured motorist coverage at the conclusion of
the trial. If the insurer is named as a party, it
would have the right, within a reasonable time after
service of process, to elect either to participate
in the trial (in which case its identity and the
reason for its being involved are proper information
for the jury), or not to participate in the trial
(in which case no mention of it or its potential
involvement is permitted by the trial court). Under
either election, the insurer would be bound by the
factfinder's decisions on the issues of liability
and damages."
The circuit court granted State Farm's motion to opt out of
the action.
Turner's attorney sent a letter in response to State
Farm's November 2018 letter, in which Turner's attorney
requested an explanation regarding State Farm's decision to
decline consent to the settlement offered by Norris and
Norris's insurance carrier, explaining his opinions that
Norris's liability was clear, that Turner's damages clearly
exceeded $25,000, and that no recovery could be had against
Norris
personally in
light
of
Norris's
bankruptcy
proceedings.
4
1181076
State Farm's attorney responded in a letter stating his belief
that
Turner's
attorney
had
"mischaracterized liability
in
this
matter" and insisting that State Farm had properly exercised
its rights under Lowe and Lambert v. State Farm Mutual
Automobile Insurance Co., 576 So. 2d 160 (Ala. 1991).
In February 2019, Turner's attorney sent a letter to
State Farm stating his belief that, in light of information
learned in discovery regarding Norris's alleged liability and
Norris's bankruptcy proceedings, Turner should accept the
settlement offered by Norris and Norris's insurance carrier,
release Norris and Norris's insurance carrier from further
liability, return the $25,000 previously advanced by State
Farm, and pursue a direct action against State Farm. Turner's
attorney also asserted that he believed State Farm had not
conducted a good-faith investigation regarding the merits of
Turner's claims against Norris and that, "[a]t the very least,
State Farm should disclose the findings of
its
investigation."
State Farm's attorney responded in a letter, stating that
State
Farm's
investigation
of
Turner's
claim
was
substantially
conducted by him and was, therefore, privileged. He also
stated his belief that "liability [wa]s clearly disputed based
5
1181076
on the answer filed by Norris" and that he was aware of no
authority supporting the proposition that, by declining to
accept Norris's settlement offer, Turner would be violating
the relevant bankruptcy court's order granting Turner relief
from an automatic bankruptcy stay to proceed in his action
against Norris.
Turner thereafter entered into a settlement agreement
with Norris and Norris's insurance carrier, whereby Turner
released them from all liability related to this action and
agreed to a dismissal of Turner's claims against Norris, with
prejudice, in exchange for $25,000. Turner's attorney sent a
letter informing State Farm of the settlement agreement,
returning the $25,000 previously advanced by State Farm, and
expressing Turner's intent to pursue a direct action against
State Farm. The circuit court entered an order dismissing
Norris from the action.
After amending its answer with the circuit court's
permission, State Farm moved for a summary judgment in July
2019 regarding Turner's claim for underinsured-motorist
("UIM") benefits, arguing that Turner had forfeited his right
to UIM coverage by entering into the settlement agreement with
6
1181076
Norris and Norris's insurance carrier without State Farm's
consent. Turner filed a response in opposition to State
Farm's summary-judgment motion. On August 23, 2019, the
circuit court entered an order stating, in relevant part:
"[T]he Court finds that there is no genuine issue as to any
material fact and State Farm is entitled to a judgment as a
matter of law."1 Turner appealed.
Standard of Review
"'An order granting or denying a summary
judgment is reviewed de novo, applying the same
standard as the trial court applied. American Gen.
Life & Accident Ins. Co. v. Underwood, 886 So. 2d
807, 811 (Ala. 2004). ... Where, as here, the facts
of a case are essentially undisputed, this Court
must determine whether the trial court misapplied
the law to the undisputed facts, applying a de novo
standard of review. Carter v. City of Haleyville,
669 So. 2d 812, 815 (Ala. 1995).'"
McKinney v. Nationwide Mut. Fire Ins. Co., 33 So. 3d 1203,
1206 (Ala. 2009)(quoting Continental Nat'l Indem. Co. v.
Fields, 926 So. 2d 1033, 1034–35 (Ala. 2005)).
Analysis
In relevant part, § 32–7–23, Ala. Code 1975, defines an
1The circuit court certified the August 23, 2019, order
as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.,
because the order did not dispose of a claim for workers'
compensation benefits that Turner has asserted against his
employer.
7
1181076
"uninsured motor vehicle" to include
"motor vehicles with respect to which ... [t]he sum
of the limits of liability under all bodily injury
liability bonds and insurance policies available to
an injured person after an accident is less than the
damages which the injured person is legally entitled
to recover."
§ 32–7–23(b)(4).
As noted above, Turner settled his claims against Norris
for $25,000, the liability limits of Norris's policy with his
insurance carrier. On appeal, Turner does not clearly state
what he believes his total damages to be, but he contends that
they "exceed" $25,000. Turner's brief, at 16.2 Similarly,
the parties' briefs do not clearly state the limits of the UIM
coverage provided by Turner's policy with State Farm. The
record indicates, however, that the bodily injury limits of
Turner's UIM coverage under his policy, which appears to have
included another named insured, were $50,000 per person and
$100,000 per accident.3
2Turner's position is also that the amount of a lien
asserted
by
his
workers'
compensation carrier
exceeds
$25,000,
the amount of Turner's settlement with Norris. Turner's
brief, at 23. The record indicates that, in July 2018, the
amount of the lien asserted by the workers' compensation
carrier was $29,109.18.
3Turner does not contend that his damages exceed the
limits of the UIM coverage under his policy with State Farm.
8
1181076
On appeal, Turner does not challenge the validity of the
pertinent provision in his insurance policy with State Farm
that required Turner to obtain State Farm's consent before
entering into a settlement agreement with Norris and Norris's
insurance carrier, i.e., the "consent-to-settle" provision.
Instead, Turner argues that the circuit court erred by
entering a summary judgment for State Farm regarding his claim
for UIM benefits because, he says, State Farm's purported
reasons for refusing to consent to Turner's settlement of his
claims with Norris and Norris's insurance carrier were not
legitimate. Turner also alternatively argues that he should
have been permitted to accept Norris's offer without
forfeiting UIM benefits because State Farm did not provide
additional explanation for its decision to withhold consent to
the settlement agreement. Turner asserts that his arguments
raise questions of first impression for this Court. Turner's
brief, at ii.
We begin by considering the pertinent language of
Turner's policy with State Farm. "'An insurer may contract
with its insured upon conditions expressed in its policy,
limited only by statute and public policy. The insured, by
9
1181076
acceptance of a policy, is deemed to have approved it with all
conditions and limitations expressed therein which are
reasonable and not contrary to public policy.'" Gulf American
Fire & Cas. Co. v. Gowan, 283 Ala. 480, 486, 218 So. 2d 688,
693 (1969)(quoting MFA Mut. Ins. Co. v. Bradshaw, 245 Ark. 95,
99-100, 431 S.W.2d 252, 254 (1968)).
In Hardy v. Progressive Insurance Co., 531 So. 2d 885,
887 (Ala. 1988), this Court explained:
"Underinsured motorist coverage applies where
the negligent or wanton tort-feasor has some
liability insurance but does not have enough to
fully compensate the victims of his negligence or
wantonness. Underinsured motorist coverage provides
compensation to the extent of the insured's injury,
subject to the insured's policy limits. It is an
umbrella coverage that does not require the insurer
to
pay
to
its
insured
the
amount
of
the
tort-feasor's bodily injury liability limits, as
those limits pertain to the insured. Therefore, the
insurer has no right to subrogation insofar as the
tort-feasor's limits of liability are concerned.
Its right of subrogation would be for sums paid by
the insurer in excess of the tort-feasor's limits of
liability."
As noted above, Turner's policy with State Farm included
a consent-to-settle provision. In particular, the policy
provided, in pertinent part: "There is no coverage ... for an
insured who, without our written consent, settles with any
person or organization who may be liable for the bodily injury
10
1181076
and thereby impairs our right to recover our payments."
"[T]he purpose of consent-to-settle clauses in the
uninsured/underinsured motorist
insurance
context
is
to protect the underinsured motorist insurance
carrier's
subrogation
rights
against
the
tort-feasor, as well as to protect the carrier
against the possibility of collusion between its
insured and the tortfeasor's liability insurer at
the carrier's expense."
Lambert, 576 So. 2d at 167.
Thus, to retain his entitlement to UIM benefits under the
terms of his policy, Turner agreed to obtain State Farm's
consent before entering into a settlement agreement with
Norris and Norris's insurance carrier and releasing them from
liability for Turner's injuries. See Gowan, 283 Ala. at 486,
218 So. 2d at 693. As explained above, Turner ultimately
entered into a settlement agreement with Norris and Norris's
insurance carrier and granted them a release. It is
undisputed that State Farm did not consent to the settlement
agreement and that, by nonetheless entering into the
settlement agreement, Turner violated the consent-to-settle
provision of his policy with State Farm. Moreover, by
releasing
Norris
and
Norris's
insurance carrier
from
liability
for Turner's injuries, any
subrogation interest State Farm may
have otherwise had against either of those parties was
11
1181076
extinguished.
"'A repudiation is a manifestation by one party to the
other that the first cannot or will not perform at least some
of his obligations under the contract.' E. Allan Farnsworth,
Contracts, § 8.21, at 633–34 (1982)." Congress Life Ins. Co.
v. Barstow, 799 So. 2d 931, 938 (Ala. 2001). "The general
rule with respect to repudiation is that when one party
repudiates a contract, the nonrepudiating party is discharged
from its duty to perform." Beauchamp v. Coastal Boat Storage,
LLC, 4 So. 3d 443, 451 (Ala. 2008). Thus, under general
contract principles, by refusing to abide by the terms of the
consent-to-settle provision in his policy with State Farm,
Turner
repudiated their
agreement,
and
State
Farm's
obligation
to pay Turner UIM benefits was discharged.
However, as a matter of public policy, this Court has
held that an injured party's settlement with a tortfeasor
without the consent of the injured party's UIM insurance
carrier does not necessarily preclude the injured party from
recovering UIM benefits. See Lambert, 576 So. 2d at 166
("[W]e have not held that consent-to-settle and subrogation
clauses are void, but we have placed many restrictions on
12
1181076
their enforceability."). Among other "general rules"
pertaining to notice and other considerations not
contested by
the parties in this case, this Court's decision in Lambert
provided the following guidelines for UIM insurance carriers
that do not wish to consent to a settlement agreement between
their insureds and tortfeasors:
"If the uninsured motorist insurance carrier refuses
to consent to a settlement by its insured with the
tort-feasor, or if the carrier denies the claim of
its insured without a good faith investigation into
its merits, or if the carrier does not conduct its
investigation in a reasonable time, the carrier
would, by any of those actions, waive any right to
subrogation
against
the
tort-feasor
or
the
tortfeasor's insurer.
"... If the underinsured motorist insurance
carrier wants to protect its subrogation rights, it
must, within a reasonable time, and, in any event
before the tort-feasor is released by the carrier's
insured, advance to its insured an amount equal to
the tort-feasor's settlement offer.
"....
"This Court stated in Lowe v. Nationwide Ins.
Co., 521 So. 2d 1309 (Ala. 1988), that there are
three primary concerns in an insurance claim
involving underinsured motorist insurance coverage:
"'1) that of protecting the right of the
[underinsured motorist insurance carrier]
to know of, and participate in, the suit;
2) that of protecting the right of the
insured to litigate all aspects of his
claim in a single suit ... and 3) that of
13
1181076
protecting the liability phase of the trial
from the introduction of extraneous and
corrupting influences, namely, evidence of
insurance ....'"
576 So. 2d at 167-68 (emphasis added).
The Lambert Court applied the guidelines it had
articulated as follows:
"We hold that the trial court erred, and we
reverse its judgment. We have studied the record
and we find that State Farm's refusal to consent to
the proposed settlement offer, based on these facts,
was unreasonable. If, in fact, as the record
suggests, State Farm was convinced that its
insureds' damages did not exceed $25,000, then its
rights under the policy would be protected, because
it ostensibly could prove to a factfinder that there
was no liability under the underinsured motorist
insurance policy. Applying the guidelines we have
adopted, we believe that when State Farm evaluated
the [insureds]' claim for damages, it should have
paid them $25,000, the amount offered by [the
tortfeasor's insurance carrier], if it wanted to
retain its right of subrogation against [the
tortfeasor]
and
[the
tortfeasor's
insurance
carrier]. Although State Farm did ultimately offer
to pay the [insureds] $25,000, we find that, under
the facts of this case, the offer was 'belated,'
especially in view of the position State Farm was
taking -- that if the [insureds] settled, State Farm
would refuse to pay any benefits under its
underinsured motorist policy. In short, the record
suggests that State Farm took the legal position
that it had a right to insist on refusing to give
its consent to the settlement.
"Based on the foregoing, we conclude that State
Farm, by its refusal to consent to the settlement or
to timely advance the amount of the settlement
14
1181076
offer,
effectively
waived
its
right
to
be
subrogated, and that the [insureds]' acceptance of
the settlement, under the facts of this case, does
not
affect
their
rights
under
State
Farm's
underinsured motorist insurance policy."
576 So. 2d at 168-69 (emphasis added.)
Unlike in Lambert, in this case, upon learning of the
$25,000 policy-limits settlement offer that Turner received
from Norris and Norris's insurance carrier, State Farm
declined to consent to the settlement agreement and instead
sent Turner a check for $25,000 before the settlement
agreement was consummated, citing the Lambert guidelines as
its basis for doing so. With the circuit court's approval,
State Farm also opted out of the action, pursuant to the
procedure provided by Lowe. Turner, however, sent the check
back to State Farm and entered into the settlement agreement
with Norris and Norris's insurance carrier anyway, in
violation of the consent-to-settle provision in Turner's
policy with State Farm.
In Ex parte Allstate Property & Casualty Insurance Co.,
237 So. 3d 199, 205 (Ala. 2017), this Court discussed whether
trial courts could properly enforce settlement agreements
between tortfeasors and injured parties when the injured
15
1181076
parties' respective UIM insurance carriers, Allstate Property
and Casualty Insurance Company ("Allstate") and GEICO
Indemnity Company ("GEICO"), did not consent to
the
settlement
agreements and chose instead to avail themselves of the
procedures provided by this Court in Lowe and Lambert. When
Allstate and GEICO petitioned this Court for a writ of
mandamus seeking vacatur of the trial courts' orders enforcing
the respective settlement agreements, this Court held that the
petitioners had a clear legal right to the relief they sought.
Ex parte Allstate, 237 So. 3d at 208.
Specifically, we reasoned:
"It is undisputed that, at all times pertinent
hereto, the insurers complied, to the very 'letter
of the law,' with the Court's dictates in Lowe and
Lambert, as set out above. Specifically, Allstate
and GEICO, after receiving notice of a settlement
offer but declining to consent, which right was
secured by the respective contracts between the
insurers and their insureds, properly advanced an
amount
equal
to
the
tortfeasor's
respective
settlement offer. Further, Allstate ultimately
exercised the available option of opting out of
further participation in the litigation in order to
prevent mention of 'its potential involvement.'
Despite that compliance, the actions of the trial
courts in attempting to order that the settlements
be effected and the tortfeasors dismissed have
essentially nullified the insurers' legal right both
to withhold consent to settlement and to opt out of
further proceedings. In essence, despite the
insurers' payment of the funds necessary to enjoin
16
1181076
the insureds' consummation of the tortfeasors'
offered settlements, the insurers were, nonetheless,
ultimately forced to accept the exact settlement to
which they had previously declined to consent.
Further, as a result of the trial courts' attempted
dismissal of the tortfeasors, the insurers -- each
of which would be the sole remaining defendant in
each case -- are being denied the right to opt out
of further proceedings and to avoid mention of their
involvement in the case."
Ex parte Allstate, 237 So. 3d at 207 (footnotes omitted). We
concluded:
"Because the insurers, in following the express
directives of this Court, have been deprived of
their contractual rights as well as the benefit of
the procedures set forth in Lowe and Lambert, we
conclude that they have demonstrated a clear legal
right to the requested relief. We, therefore, in
case no. 1150511 and case no. 1151266, direct the
applicable circuit court to vacate its respective
order purporting both to 'enforce' the pro tanto
settlement agreements against the insurer's consent
and to dismiss the tortfeasors."
Ex parte Allstate, 237 So. 3d at 208.
This Court's decision in Ex parte Allstate indicates
that, by complying with the guidelines set out by this Court
in Lowe and Lambert, State Farm, as a matter of public policy,
was justified in standing on its contractual right to withhold
its consent to the settlement agreement between Turner and
Norris and Norris's insurance carrier. On appeal, however,
Turner argues that State Farm's refusal to consent to his
17
1181076
settlement agreement with Norris was not reasonable or
legitimate, an argument not raised by the respondents in Ex
parte Allstate. See Ex parte Allstate, 237 So. 3d at 207 n.2
("There appears to be no suggestion that, in any of the three
cases, the consent of the respective insurer was unreasonably
withheld ....").
Specifically, Turner argues: (1) that State Farm was
precluded from asserting any subrogation interest against
Norris by virtue of Norris's bankruptcy proceedings4 and (2)
that "disputing liability or damages is not a legitimate
reason to refuse consent." Turner's brief, at 22. Thus,
Turner argues, State Farm had no legitimate reason for
refusing to consent to Turner's settlement agreement with
Norris. In essence, Turner appears to argue that, under the
circumstances of this case, State Farm should have consented
to his settlement agreement with Norris and
Norris's insurance
carrier and that, by refusing to do so, State Farm did not act
4Turner's
argument
regarding
Norris's
bankruptcy
proceedings is based on the automatic-stay provisions imposed
by federal bankruptcy law. Turner does not assert that Norris
obtained a discharge injunction in bankruptcy and that State
Farm could, therefore, have never recovered against Norris.
See Turner's reply brief, at 12 ("Whether [State Farm] could
ever pursue subrogation is speculative.").
18
1181076
in good faith and wrongfully deprived Turner of UIM benefits.
Turner's reply brief, at 3-5.
In LeFevre v. Westberry, 590 So. 2d 154 (Ala. 1991), an
insured sued his UIM insurance carrier alleging bad-faith
failure to pay his claim for UIM benefits. 590 So. 2d at 156.
This Court explained:
"Uninsured motorist coverage in Alabama is a
hybrid in that it blends the features of both
first-party
and
third-party
coverage.
The
first-party aspect is evident in that the insured
makes a claim under his own contract. At the same
time, however, third-party liability principles also
are operating in that the coverage requires the
insured to be 'legally entitled' to collect -- that
is, the insured must be able to establish fault on
the part of the uninsured motorist and must be able
to prove the extent of the damages to which he or
she would be entitled. The question arises: when is
a carrier of uninsured motorist coverage under a
duty to pay its insured's damages?
"There is no universally definitive answer to
this question or to the question when an action
alleging bad faith may be maintained for the
improper handling of an uninsured or underinsured
motorist claim; the answer is, of course, dependent
upon the facts of each case. Clearly, there is a
covenant of good faith and fair dealing between the
insurer and the insured, as with direct insurance,
but the insurer and the insured occupy adverse
positions until the uninsured motorist's liability
is fixed; therefore, there can be no action based on
the tort of bad faith based on conduct arising prior
to that time, only for subsequent bad faith
conduct."
19
1181076
590 So. 2d at 159.
Although Turner does not rely on LeFevre on appeal, we
note that the LeFevre Court provided the following standards
that were intended to "allow the [UIM] insurer to aggressively
defend the claim and attempt to defeat the claim, or at least
to minimize the size of the award, while concomitantly
fulfilling the duties imposed on it by law and the obligations
imposed on it by its contract with the insured." 590 So. 2d
at 160-61. Specifically, the LeFevre Court held:
"1. When a claim is filed by its insured, the
uninsured motorist carrier has an obligation to
diligently investigate the facts, fairly evaluate
the claim, and act promptly and reasonably.
"2. The uninsured motorist carrier should
conclude its investigation within a reasonable time
and should notify its insured of the action it
proposes with regard to the claim for uninsured
motorist benefits.
"3. Mere delay does not constitute vexatious or
unreasonable delay in the investigation of a claim
if there is a bona fide dispute on the issue of
liability.
"4. Likewise, mere delay in payment does not
rise to the level of bad faith if there is a bona
fide dispute on the issue of damages.
"5.
If
the
uninsured motorist carrier refuses to
settle with its insured, its refusal to settle must
be reasonable."
20
1181076
LeFevre, 590 So. 2d at 161 (footnotes omitted). The foregoing
standards were set out to better define the duties owed by a
UIM insurance carrier to its insured regarding the payment of
UIM benefits for the purposes of establishing the UIM
insurance carrier's tort liability for acting in bad faith.
See LeFevre, 590 So. 2d at 160-61 (expounding upon principles
set out in Quick v. State Farm Mutual Automobile Insurance
Co., 429 So. 2d 1033, 1034 (Ala. 1983), which had discussed
"whether the tort of bad faith should be extended to the
uninsured motorist claim in th[at] case").
In this case, however, the question presented is not
whether State Farm is liable in tort for damages to Turner for
acting in bad faith by refusing to pay Turner's claim for UIM
benefits. Turner did not assert such a tort claim against
State Farm in the circuit court and, as noted above, does not
cite or discuss LeFevre on appeal. See Smiths Water Auth. v.
City of Phenix City, 436 So. 2d 827, 830-31 (Ala. 1983)("It is
well-established that this Court will not consider a theory or
issue where it was not pleaded or raised in the trial
court."). Instead, the question presented in this appeal is
whether State Farm could be compelled to pay Turner's claim
21
1181076
for UIM benefits as a matter of contract law and public
policy.
As explained above, under general contract principles,
Turner repudiated his policy with State Farm by violating the
consent-to-settle provision, and State Farm's obligation to
pay Turner UIM benefits was discharged. Moreover, pursuant to
the public-policy guidelines imposed by this Court in
Lambert,
State Farm advanced Turner $25,000, the amount of the
settlement offered by Norris and Norris's insurance carrier,
before the settlement agreement was consummated. In Ex parte
Allstate, 237 So. 3d at 207, this Court explained that a UIM
insurance carrier's payment of a Lambert advance "enjoin[s]
the insureds' consummation of the tortfeasors' offered
settlements." Turner, however, settled with Norris and
Norris's insurance carrier notwithstanding State Farm's
refusal to consent to the settlement agreement and State
Farm's payment of a Lambert advance.
In essence, Turner is arguing that he should have been
permitted to unilaterally decide that State Farm's decision to
avail itself of the Lambert procedure was unreasonable, to
release Norris from all further liability, and still to retain
22
1181076
his entitlement to UIM benefits in contravention of the
consent-to-settle provision in his policy with State Farm.
Turner presents no compelling reason for such a rule.
In his reply brief, Turner cites this Court's decision in
United Services Automobile Ass'n v. Allen, 519 So. 2d 506
(Ala. 1988), a decision the LeFevre Court cited for the
proposition that "a refusal of a carrier of underinsured
motorist coverage to consent to settle must be reasonable."
LeFevre, 590 So. 2d at 161 n.4; see also Lambert, 576 So. 2d
at 164 (noting that, in Allen, "[t]his Court did hold, of
course, that the refusal of an underinsured motorist insurance
carrier to consent to settle must be reasonable"). We
reaffirm that principle here.
Turner ignores, however, that he did not avail himself of
the procedure employed by the insured in Allen. In pertinent
part, the insured in Allen sought injunctive relief compelling
his UIM insurance carrier to consent to the tortfeasor's
proposed settlement before entering into the settlement
agreement and releasing the tortfeasor from liability. On
appeal from the trial court's order "restraining" the UIM
insurance carrier
"from
withholding
its
permission
and
consent
23
1181076
for" the insured to receive the tortfeasor's settlement offer,
519 So. 2d at 507, this Court stated: "[T]here is nothing in
the record before us to show that [the UIM insurance carrier]
has a reasonable basis for withholding such consent ....
Enough is enough. We refuse to hold that the trial court
abused its legal or judicial discretion in granting the
injunction, and we affirm." 519 So. 2d at 508.
Allen was decided before Lambert. However, in light of
this Court's explanation that a Lambert advance "enjoin[s] the
insured['s] consummation of the tortfeasor['s] offered
settlements," Ex parte Allstate, 237 So. 3d at 207, the
decision of the insured in Allen to seek judicial intervention
regarding his UIM insurance carrier's refusal to consent to a
settlement agreement with a tortfeasor -- in lieu of
repudiating his policy altogether by accepting the settlement
offer -- appears all the more prudent under the current state
of the law, which actually requires UIM insurance carriers to
pay their insureds the amount of the settlement offered as a
prerequisite for withholding consent to the settlement. See,
e.g., Ex parte Allstate, 237 So. 3d at 201-03 (reviewing
interlocutory orders entered by circuit courts regarding
24
1181076
whether
settlement
agreements
between
insureds
and
tortfeasors
should be effectuated).
As noted above, one of the primary concerns in an action
seeking UIM benefits is "protecting the right of the insured
to litigate all aspects of his claim in a single suit." Lowe,
521 So. 2d at 1309. The communications between Turner's
attorney and State Farm's attorney regarding this case
indicate that Turner's attorney understood that, pursuant to
Lambert, State Farm had the option of paying Turner the amount
of the settlement offered by Norris and Norris's insurance
carrier and declining to consent to the settlement agreement.
Turner could have sought the circuit court's intervention
regarding the reasonableness of State Farm's refusal to
consent to his settlement agreement before accepting the
settlement offer. If Turner had obtained a determination from
the circuit court concerning that question and whether State
Farm should have been compelled to consent to the settlement
agreement, those issues might have been before us. However,
Turner did not request such a decision from the circuit court.
Therefore, we need not decide whether the circuit court could
have properly compelled State Farm to consent to the
25
1181076
settlement agreement based on Turner's assertion that State
Farm's decision was unreasonable, and we express no opinion
concerning that issue at this time.
As explained above, in this appeal, we are faced with an
unambiguous consent-to-settle provision, State Farm's payment
of a Lambert advance, Turner's unilateral decision to release
Norris and Norris's insurance carrier from all liability
pertaining to this action, and the circuit court's judgment
enforcing the exclusionary aspects of the consent-to-settle
provision. Turner has failed to demonstrate that, under
principles of contract law or the public-policy principles
articulated by the this Court in Lambert and its progeny, the
circuit court's judgment should be reversed based on the
undisputed facts presented. See McKinney, 33 So. 3d at 1206.
Conclusion
The circuit court's summary judgment in favor of State
Farm is affirmed. Because we hold that State Farm was
discharged from its obligation to pay Turner UIM benefits
based on State Farm's payment of a Lambert advance and
Turner's repudiation of his policy with State Farm, we
pretermit consideration of Turner's alternative argument
26
1181076
regarding State Farm's failure to disclose the substance of
its investigation of Turner's claim for UIM benefits, and we
express no opinion concerning that issue. We also express no
opinion regarding any potential liability State Farm may or
may not have to Turner in tort because, as explained above,
Turner has not asserted such a claim in this action.
AFFIRMED.
Parker, C.J., and Bolin, Shaw, Wise, Sellers, Stewart,
and Mitchell, JJ., concur.
Mendheim, J., concurs in part and concurs in the result.
27
1181076
MENDHEIM, Justice (concurring in part and concurring in the
result).
I entirely agree with the main opinion's conclusion that
David R. Turner repudiated his insurance policy with State
Farm Mutual Insurance Company ("State Farm") by violating the
consent-to-settle provision in that policy and that therefore
State Farm's obligation to pay Turner uninsured- or
underinsured-motorist
("UIM")
benefits
was
discharged.
Accordingly, the trial court's judgment is due to be affirmed.
I write separately to note my misgivings about the main
opinion's discussion of United Services Automobile Ass'n v.
Allen, 519 So. 2d 506 (Ala. 1988), a discussion that is
clearly dictum, given that the opinion states that "we express
no opinion concerning th[e] issue" raised by Allen, but that
could lead to uncertainty in this area of the law. ___ So. 3d
at ___.
In Allen, a plaintiff-insured filed an action for
injunctive relief against his UIM insurer, United Services
Automobile Association ("USAA"), seeking an order requiring
USAA to consent to a settlement between the insured and the
tortfeasor. The trial court entered the injunction, and this
Court affirmed the trial court's judgment because "[t]here is
28
1181076
nothing in the record before us to show that USAA had a
reasonable basis for withholding such consent." Allen, 519
So. 2d at 508.
The main opinion correctly notes that Allen was decided
before Lambert v. State Farm Mutual Automobile Insurance Co.,
576 So. 2d 160 (Ala. 1991), the case that sought to provide a
"bright-line" procedure for UIM insurance carriers, their
insureds, and tortfeasors in the context of settlement
negotiations between the insured and the
tortfeasor. Lambert,
576 So. 2d at 165. However, the main opinion then goes on to
observe:
"[T]he decision of the insured in Allen to seek
judicial intervention regarding his UIM insurance
carrier's refusal to consent to a settlement
agreement
with
a
tortfeasor
--
in
lieu
of
repudiating his policy altogether by accepting the
settlement offer -- appears all the more prudent
under the current state of the law, which actually
requires UIM insurance carriers to pay their
insureds the amount of the settlement offered as a
prerequisite
for
withholding
consent
to
the
settlement."
___ So. 3d at ___ (emphasis added). The main opinion later
adds that "Turner could have sought the circuit court's
intervention regarding the reasonableness of State Farm's
29
1181076
refusal to consent to his settlement agreement before
accepting the settlement offer." ___ So. 3d at ___.
The above-quoted portions of the main opinion appear to
suggest that the injunction remedy approved in Allen may be
available to a plaintiff-insured who believes that his or her
UIM insurer has unreasonably refused to consent to a
settlement between the insured and the tortfeasor even when --
under the Lambert procedure -- the UIM insurer has advanced to
the insured the amount of the offered settlement, thereby
preserving its subrogation interests. Such speculation seems
unnecessary given that, as the main opinion observes, Turner
did not seek such relief from the circuit court. We also have
no clear idea as to the ramifications of allowing such an
injunctive remedy given that we do not have the benefit of any
commentary about Allen from State Farm because Turner cited
Allen for the first time in his reply brief.
I express no opinion on the continued viability of the
remedy approved in Allen, but I would consider the issue if it
is presented in a proper case. This is not such a case
because Turner failed to pursue an injunction from the trial
court. My concern is the main opinion's suggestion in this
30
1181076
case that an Allen injunction "appears all the more prudent
under the current state of the law." ___ So. 3d at ___.
Accordingly, I cannot fully concur with the main opinion.
31 | May 29, 2020 |
ff60d1e0-0e79-4b9e-8ed2-acd85be087bc | James Robert Morrow v. Mark A. Palmer and GLM Services, LLC. | N/A | 1180729 | Alabama | Alabama Supreme Court | Rel: May 22, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1180729
James Robert Morrow v. Mark A. Palmer and GLM Services, LLC.
(Appeal from Lauderdale Circuit Court: CV-19-6).
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. | May 22, 2020 |
ccc1a977-3bdf-4f1c-8d68-697245bcbc85 | Ex parte A.M.M. | N/A | 1190521 | 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
June 5, 2020
1190521
Ex parte A.M.M. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: A.M.M. v. S.E. and M.E.) (Blount Juvenile Court: JU-17-287.05; Civil
Appeals :
2180495).
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 June 5, 2020:
Writ Denied. No Opinion. (Special Writing) Wise, J. - Shaw, Bryan, Sellers,
Mendheim, and Stewart, JJ., concur. Parker, C.J., and Bolin, and Mitchell, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 5th day of June, 2020.
l i t a
Clerk, Supreme Court of Alabama | June 5, 2020 |
efc4796c-e1cd-4401-b80b-554379ae48a5 | Muhammad Wasim Sadiq Ali v. Mike Williamson | N/A | 1170896 | 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
May 15, 2020
1170896
Muhammad Wasim Sadiq Ali v. Mike Williamson (Appeal from Jefferson Circuit
Court: CV-14-900197).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on May 15, 2020:
Application Overruled. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and Sellers,
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 November 22, 2019:
Reversed And Remanded. 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 15th day of May, 2020.
Clerk, Supreme Court of Alabama | May 15, 2020 |
d14cc0ad-feda-4ac8-bf91-1418d1e5678d | Ex parte Calvin Barnes. | N/A | 1180802 | Alabama | Alabama Supreme Court | Rel: June 5, 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
____________________
1180802
____________________
Ex parte Calvin Barnes
PETITION FOR WRIT OF HABEAS CORPUS
(In re: State of Alabama
v.
Calvin Cornelius Barnes)
(Mobile Circuit Court, CC-17-2125)
PER CURIAM.
Calvin Barnes petitions this Court for a writ of habeas
corpus directing the Mobile Circuit Court ("the circuit
1180802
court"), Judge Jim Patterson presiding, to vacate its orders
revoking his bail and denying his motion to reinstate his
bail. Because the circuit court acted beyond its authority, we
grant the petition and issue the writ.
Facts and Procedural History
Barnes was arrested in September 2016 and was charged
with murder under § 13A-6-2(a)(1), Ala. Code 1975. The Mobile
District Court set Barnes's bail at $150,000 with a $10,000
cash component. The district court held a preliminary hearing
in October 2016, and Barnes's case was bound over to the grand
jury. In May 2017, the grand jury returned an indictment
against Barnes for murder. Barnes's bail obligation was
transferred to the circuit court pursuant to Rule 7.6(a), Ala.
R. Crim. P. Barnes was arraigned before the circuit court on
July 21, 2017. The circuit court set the case for trial on
February 26, 2018.
In November 2017, Barnes moved for an evidentiary hearing
seeking to establish immunity from prosecution on the basis
that he was acting in defense of others under § 13A-3-23(d),
Ala. Code 1975, at the time of the killing.1 Barnes alleged
1Section 13A-3-23(d) entitles a defendant to a pretrial
hearing on immunity and provides: "A person who uses force,
2
1180802
that he shot the victim, who was his wife's brother, when the
victim was attempting to break into Barnes's house. The
circuit court held a hearing on January 31, 2018, on the issue
of Barnes's immunity, and, following that hearing, the
circuit
court entered an order finding that Barnes had not proven by
a preponderance of the evidence that the use of lethal force
was
justified.
Shortly
thereafter,
the circuit
court
rescheduled the case for trial on August 20, 2018. After
granting two continuances -- one on a motion filed by the
State and the other on a motion filed by Barnes -- the circuit
court set the trial for May 13, 2019.
On May 10, 2019, Barnes's attorney moved for leave to
withdraw from representation of Barnes on the grounds that he
was having difficulty communicating with Barnes and that
Barnes had retained a new attorney. The circuit court granted
the motion to withdraw.
On May 13, 2019, Barnes appeared for trial with his new
attorney, and the circuit court questioned Barnes about his
former attorney's withdrawal. Barnes's new attorney stated
including deadly physical force, as justified and
permitted in
this section is immune from criminal prosecution and civil
action for the use of such force, unless the force was
determined to be unlawful."
3
1180802
that he and Barnes had discussed everything and that the
circuit court "won't have anymore problems with Mr. Barnes."
Before allowing additional explanation, the circuit court
announced that it would revoke Barnes's bond, stating:
"THE COURT: Well, let me tell you what pops into
my mind: A sua sponte the Court [sic]. This has the
feel of the purpose to delay the inevitable. That's
what it feels like to me.
"And so, frankly, I'm going to revoke his bond
because I think -- we are too broke. This Circuit is
too broke to let another precious trial setting go
past. And I have other people in here trying to get
speedy trial motions and all that stuff so I'm
taking him in. I'm revoking his bond."
Barnes's attorney objected to the circuit court's decision,
citing Rule 7.5, Ala. R. Crim. P. The circuit court responded:
"THE COURT: It may be an issue of first
impression, but when we have an excellent lawyer
with an excellent reputation -- and [Barnes's former
attorney] has that. He works in Federal Court. He
works in State Court. And then we swap horses right
before trial, the Court can only come to one
conclusion.
"And the gravity of the charge is one of the
factors that I can consider. And maybe this is an
issue of first impression that we'll have to test
out, but I've made my ruling.
"....
"[ATTORNEY FOR BARNES]: ... Judge, I would ask
you to consider one thing: The State of Alabama has
not moved -- and there's been no allegations
4
1180802
whatsoever that he has violated the terms and
conditions of his bond. And --
"THE COURT: This Court, like I said, sua sponte
of its own initiative is going to take this action
because this Court looked very strongly at the
record that we've done. And if I'm wrong, y'all can
show me, but I've made my ruling. So I'm going to go
ahead and take him in. ... You can go ahead and file
the motion to reconsider and give me the law. And
if I'm wrong, I will undo it."
Despite the circuit court's ruling, Barnes's attorney
announced that Barnes was ready for trial, and he asserted
that he had met with Barnes's former attorney and had reviewed
the evidence in detail. The circuit court replied that it
could not "make the State do that because on Friday both of
you were told that we're not [going to trial]."2 After the
hearing, the circuit court entered an order in which it stated
that Barnes had been taken into custody, set a hearing to
revoke Barnes's bail for the morning of the following day, and
directed Barnes's former attorney to appear at the revocation
hearing.
Later that day, the State filed what it styled "State's
Filing on Court's Order Revoking Defendant's Bond" in which it
requested a hearing regarding the conditions of Barnes's bail
2The circuit court had not entered an order continuing the
May 13, 2019, trial date.
5
1180802
based on its belief that Barnes's "actions may solely be an
attempt to delay his trial." The State did not move to have
Barnes's bail revoked, and it did not assert that Barnes had
violated any conditions of his release.
On May 14, 2019, Barnes's attorney filed a motion
requesting the circuit court to release Barnes and asking for
a continuance of the revocation hearing set for that day. At
the beginning of the hearing, the circuit court stated that it
would not continue the hearing, noting that the hearing had to
be held within 72 hours after Barnes was taken into custody.
Barnes requested a delay until at least the afternoon to have
time to prepare a response. The circuit court denied Barnes's
request and proceeded to hold the hearing. The circuit court
stated:
"And I will tell you on the record that I did
some research yesterday, and I don't know that
there's any precedent for what I did. This may be an
issue of first impression.
"I stand on the record that I made yesterday
about how this case proceeded. I stand on the record
yesterday about [Barnes] terminating [his former
attorney,] who has an excellent reputation as
attorney on the eve of trial."
The circuit court then asked Barnes's former attorney,
over Barnes's objections, whether Barnes had met his financial
6
1180802
obligations to the attorney. When his former attorney replied
that Barnes had not met his financial obligations, the circuit
court stated: "Okay. That's all I need to know." The
proceedings continued, with the circuit court asking:
"THE
COURT: Is
there anything else anybody needs
to add?
"[ATTORNEY FOR BARNES]: I just have argument.
"THE COURT: Okay.
"[ATTORNEY FOR BARNES]: The State has no
argument?
"[ATTORNEY FOR THE STATE]: Well, I agree with
the Court's statement in that I was unable to locate
any precedent for this particular sequence of
events. It does seem to be in a gray area of Rule
7.5. The question is, is revoking the bond until the
next trial date is set the only remedy that is
possible. That Rule 7.5 is full of several
discretionary statements what the Court may do.
"THE COURT: What sentence would he be looking
for [if] he was convicted of what ... he's charged
with? He's charged with murder.
"[ATTORNEY FOR THE STATE]: He's charged with a
Class A Felony, committed with a gun. And is a
minimum 20, maximum of life. His one prior
conviction does not alter that sentence range.
"THE COURT: So the minimum he would face would
be 20 years?
"[ATTORNEY FOR THE STATE]: If he were found
guilty as charged.
7
1180802
"THE COURT: If he were found guilty. If he were
found guilty.
"Well, in this highly unusual situation, I will
say on the record again, I pondered it over the
weekend that it strikes me odd that he'd fire an
extremely competent counsel on the eve of a trial
that set back in -- I think it was January --
February 18th I think was the order setting the
trial for yesterday.
"And I will tell you on the record that
[Barnes's new attorney] whispered to me yesterday
morning before we started that he had not entered
that appearance that the Court had asked for because
he was want[ing] to make sure he got his money to be
paid.
"And so with the financial obligation that
remains outstanding to [Barnes's former attorney],
and the fact that [Barnes's new attorney] was paid
by his admission, then the Court finds it all highly
unusual. And so I would like appellate guidance
because I personally think the man is a flight risk.
And if I'm wrong, I'm sure mandamus petition will
fly and they will tell me very shortly that I am
wrong and I will put you back out on bond.
"But the problem is with 13th Circuit so
sever[e]ly underfunded and the fact that we have had
to schedule this murder trial -- and both of you are
busy with such trials that feeding this case in has
been a problem for the Court. It has to be
reschedule[d]. It will be delayed for eight or nine
months longer.
"Now, the Court's done. If [Barnes's attorney]
wants to make his record -- make his argument.
"[ATTORNEY FOR BARNES]: I'd like to note that
the Court just announced he's done and I have not
8
1180802
even had a chance to present my argument. And so
this is just a record.
"First off, I have not been able to even present
an argument on behalf of [Barnes's] half [sic]. And
what we've heard here today is that even the Court
and the State ... admit that they can't find a
single statutory -- anything in the rules or the
statutes that justified taking this man's freedom.
However, the Court has stated that he's going to do
it anyway until somebody tells him differently. It
is all based upon what the Judge believes, not based
on any evidence put before the Court.
"And in addition to the other pleadings that I
have that there is not any condition in Rule 7.3[,
Ala. R. Crim. P.,] or 7.5 that allows for what's
taken place today.
"So essentially what has taken place is the
Court is saying that we're not going to follow the
law. That I'm going to make you go to Montgomery to
find justice. And I believe that that is just not
right, Judge. And I ask that you release him on his
bond and follow the law which is Rule 7.[5]. Have
the Prosecutor file a motion before ruling on it,
and then set the case for a hearing.
"Thank you.
"THE
COURT:
All
right.
This
matter
is
concluded."
After the hearing, the circuit court entered an order
denying Barnes's motion for release. Barnes filed a petition
for writ of habeas corpus in the Alabama Court of Criminal
Appeals. That court, citing § 15-21-6(a), Ala. Code 1975,
dismissed Barnes's petition because Barnes had not first
9
1180802
addressed his petition to the nearest circuit-court judge.
Thereafter, Barnes filed a habeas petition in this Court. On
October 10, 2019, in response to Barnes's motion to stay
enforcement of the circuit court's order revoking his bail,
this Court stayed the order and ordered Barnes released from
custody on his original bond.
Discussion
Barnes argues that the circuit court's revocation of his
bail violated his procedural due-process rights because, he
says, the circuit court did not comply with Rule 7.5, Ala. R.
Crim. P. Specifically, Barnes asserts, the circuit court
revoked Barnes's bail without a motion having been made by the
State, without holding a hearing, and without any evidence to
support revocation. Barnes further argues that the State's
belated "Filing on Court's Order Revoking Defendant's Bond"
does not cure the circuit court's wrongful revocation.
Judge Patterson filed a response brief in opposition to
Barnes's petition.3 In his brief, Judge Patterson asserts
that, in light of the testimony from the immunity hearing, the
gravity of the charge, the fact that Barnes could be sentenced
3This Court ordered all respondents, including Judge
Patterson, to file an answer to Barnes's petition.
10
1180802
to a minimum of 20 years, and Barnes's refusal to work with
his former attorney, he determined that Barnes was attempting
to delay his trial. Judge Patterson contends that, after
holding a 72-hour hearing, he revoked Barnes's bail because he
considered Barnes to be a flight risk. Judge Patterson does
not cite any authority in support of his reasoning.
The State does not dispute Barnes's arguments concerning
the circuit court's revocation order. Instead, the State
asserts that, pursuant to § 15–21–6(a), Ala. Code 1975, Barnes
was required to first file a habeas petition in the circuit
court rather than filing the petition directly with the Court
of Criminal Appeals. Section 15-21-6(a) states: "When the
person is confined in a county jail or any other place on a
charge of felony or under a commitment or an indictment for
felony, the petition for a writ of habeas corpus must be
addressed to the nearest circuit court judge."
We first address whether Barnes correctly filed his
petition in the appellate courts, or whether he should have
first filed his petition in the circuit court pursuant to §
15–21–6(a). This Court has stated that § 15–21–6, upon which
the Court of Criminal Appeals relied in dismissing the
11
1180802
petition, "implicates not jurisdiction, but venue." Ex parte
Culbreth, 966 So. 2d 910, 912 (Ala. 2006). Moreover, § 141(d),
Ala. Const. 1901, authorizes the Court of Criminal Appeals to
issue writs of habeas corpus:
"The court of criminal appeals shall have and
exercise original jurisdiction in the issuance and
determination of writs of quo warranto and mandamus
in relation to matters in which said court has
appellate jurisdiction. Said court shall have
authority to issue writs of injunction, habeas
corpus and such other remedial and original writs as
are necessary to give it a general superintendence
and control of jurisdiction inferior to it and in
matters over which it has exclusive appellate
jurisdiction; to punish for contempts by the
infliction of a fine as high as one hundred dollars,
and imprisonment not exceeding ten days, one or
both, and to exercise such other powers as may be
given to said court by law."
(Emphasis added.) In addition, § 12-3-11, Ala. Code 1975,
provides that the courts of appeals "shall have authority to
... issue writs of habeas corpus and such other remedial and
original writs as are necessary to give it a general
superintendence and control of jurisdiction inferior to it."
Similarly, this Court has the authority to issue writs of
habeas corpus and to review petitions for habeas corpus that
have been denied by the intermediate appellate courts.
Section 140(b), Ala. Const. 1901, provides that "[t]he supreme
12
1180802
court shall have original jurisdiction ... to issue such
remedial writs or orders as may be necessary to give it
general supervision and control of courts of inferior
jurisdiction ...." See also § 12-2-7(3), Ala. Code 1975
(granting this Court the authority "[t]o issue writs of
injunction, habeas corpus, and such other remedial and
original writs as are necessary to give to it a general
superintendence
and
control
of
courts
of
inferior
jurisdiction"). Rule 21(e)(1), Ala. R. App. P., authorizes
this Court to review petitions for the writ of habeas corpus
that have been denied by an intermediate appellate courts.
That rule states:
"A decision of a court of appeals on an original
petition for writ of mandamus or prohibition or
other extraordinary writ (i.e., a decision on a
petition filed in the court of appeals) may be
reviewed de novo in the supreme court, and an
application for rehearing in the court of appeals is
not a prerequisite for such review. If an original
petition for extraordinary relief has been denied by
the court of appeals, review may be had by filing a
similar petition in the supreme court (and, in such
a case, in the supreme court the petition shall seek
a writ directed to the trial judge)."
In Ex parte Stokes, 990 So. 2d 852, 856 (Ala. 2008), this
Court reviewed a decision of the Court of Criminal Appeals
denying a defendant's petition for habeas relief. We explained
13
1180802
that "[a] petition for a writ of habeas corpus is the proper
vehicle by which to challenge the setting of allegedly
excessive bail." 990 So. 2d at 856 (citing Ex parte Colbert,
717 So. 2d 868, 870 (Ala. Crim. App. 1998)). In Ex parte
Colbert, the district court initially set the
defendant's bail
at $1 million and then reduced it to $500,000. The defendant
filed a petition for the writ of habeas corpus in the circuit
court requesting that bail be further reduced, but the circuit
court instead revoked the defendant's bail. The defendant
filed a petition for a writ of habeas corpus in the Court of
Criminal Appeals. The State contended that the defendant
should have first filed a direct appeal from the circuit
court's denial of the petition rather than seeking habeas
relief in the Court of Criminal Appeals. That court held that,
under § 141, it "will entertain original petitions for a writ
of habeas corpus arising out of a circuit court's denial of,
or the setting of excessive, pretrial bail." Ex parte Colbert,
717 So. 2d at 870 (overruling Clay v. State, 561 So. 2d 1116
(Ala. Crim. App. 1990)). The Court of Criminal Appeals stated:
"The purpose of a habeas corpus petition is
defined in Black's Law Dictionary 709 (6th ed.
1990),
as
'to
[seek]
release
from
unlawful
imprisonment.' Indeed, attacking the denial of
14
1180802
pretrial bail would be a futile exercise if a party
was forced to file a direct appeal and await the
result of the appellate process, rather than to
obtain immediate relief by filing an original habeas
corpus petition with this Court. In Ex parte Lee,
275 Ala. [343] at 344, 155 So. 2d 296 [at 297
(1963)], the Alabama Supreme Court stated, '[t]his
court in the absence of unusual circumstances will
not entertain an original petition for writ of
habeas corpus.' Certainly, a circuit court's denial
of bail in a case where bail is constitutionally
required is the 'unusual circumstance' envisioned in
Lee."
717 So. 2d at 870 (emphasis added). Likewise, in Ex parte
Patterson, 70 So. 3d 435, 436 (Ala. Crim. App. 2011), the
Court of Criminal Appeals granted an original habeas corpus
petition filed in that court challenging a trial court's
refusal to reinstate a defendant's pretrial bail after
revocation.
As discussed in further detail below, Barnes's case
presents not just an unusual circumstance, but a circumstance
involving a questionable sua sponte decision by the circuit
court revoking a defendant's bail after the defendant changed
attorneys and after the defendant appeared in court on the
trial date. Under § 141 and § 12-3-11, Barnes's petition was
ripe for review by the Court of Criminal Appeals, and that
court, under the particular circumstances of this case, was
15
1180802
incorrect in dismissing Barnes's petition pursuant to
§
15-21-
6. We further recognize the futility created by requiring a
defendant to file a petition for the writ of habeas corpus in
the first instance with the same court that ordered the
revocation of release.
We now turn to our de novo review of the merits of
Barnes's petition for habeas relief. See Rule 21(e)(1). It is
well settled that, unless charged with a capital offense, an
accused has an absolute right to pretrial bail and that the
bail imposed shall not be excessive. See Art. I, § 16, Ala.
Const. 1901; § 15-13-2, Ala. Code 1975. "'The purposes of bail
are to secure the accused's attendance [at trial], and avoid
the imprisonment of persons still entitled to a presumption of
innocence, among others.'" Ex parte Patterson, 70 So. 3d at
437 (quoting 8 C.J.S. Bail § 6 (2010)). See also § 15-13-102,
Ala. Code 1975 ("The primary purpose of bail is to procure the
release of a person charged with an offense upon obtaining
assurance, with or without security, of the
defendant's future
appearance in court."). As the Court of Criminal Appeals
explained in Ex parte Fleming, 814 So. 2d 302, 303 (Ala. Crim.
16
1180802
App. 2001), "a defendant may forfeit his constitutional right
to pretrial bail by his conduct while out on bail."
Rule 7.5, Ala. R. Crim. P., establishes the procedure for
bail-revocation proceedings.4 Pursuant to that rule, the State
4Rule 7.5 states:
"(a) Issuance of Warrant. Upon motion of the
prosecutor stating with particularity the facts or
circumstances constituting a material breach of the
conditions of release or stating with particularity
that material misrepresentations or omissions of
fact were made in securing the defendant's release,
the court having jurisdiction ever the defendant
released shall issue an arrest warrant under Rule
3.1 to secure the defendant's presence in court. A
copy of the motion shall be served with the warrant,
and a hearing shall be held on the motion without
undue delay, except in no event later than
seventy-two (72) hours after the arrest of the
defendant released, as provided in Rule 4.3(a).
"(b) Hearing; Review of Conditions; Revocation
of Release. If, after a hearing on the matters set
forth in the motion, the court finds that the
defendant released has not complied with or has
violated the conditions of release, or that material
misrepresentations or omissions of fact were made in
securing the defendant's release, the court may
modify the conditions or revoke the release. If a
ground alleged for revocation of the release is that
the defendant released has violated the condition
under Rule 7.3(a)(2) by committing a criminal
offense, or that there was a misrepresentation or
omission concerning other charges pending against
the defendant released, the court may modify the
conditions of release or revoke the release after a
hearing, if the court finds that there is probable
cause (or if there has already been a finding of
17
1180802
is required to file a motion "stating with particularity the
facts or circumstances constituting a material breach of the
conditions of release or stating with particularity that
material misrepresentations or omissions of fact were made in
securing the defendant's release." Rule 7.5(a). After the
filing of the State's motion, the trial court "shall issue an
arrest warrant under Rule 3.1[, Ala. R. Crim. P.,] to secure
the defendant's presence in court," and the motion and the
warrant must be served on the defendant. Within 72 hours of
the defendant's arrest on the revocation warrant, the trial
court must hold a hearing on the motion and must, thereafter,
determine whether the defendant has "complied with or has
violated the conditions of release" or whether "material
misrepresentations or omissions of fact were made in securing
the defendant's release." Rule 7.5(b).
The revocation procedure used by the circuit court was in
complete disregard of Rule 7.5. The circuit court revoked
Barnes's bail and ordered Barnes to be taken into custody
immediately without the State having filed a motion, without
probable cause) to believe that the defendant
released committed the other offense or offenses
charged."
18
1180802
issuing a warrant for Barnes's arrest, and without holding a
hearing on matters asserted in a motion by the State. The
circuit court received no evidence indicating that Barnes had
violated the conditions of release set forth under Rule 7.3,
Ala. R. Crim P.,5 or that revocation was otherwise warranted
5Rule 7.3 states:
"(a) Mandatory Conditions. Every order of
release under this rule shall contain the conditions
that the defendant:
"(1) Appear to answer and to submit to
the orders and process of the court having
jurisdiction of the case;
"(2) Refrain from committing any
criminal offense;
"(3) Not depart from the state without
leave of court; and
"(4) Promptly notify the court of any
change of address.
"(b) Additional Conditions. An order of release
may include any one or more of the following
conditions
reasonably
necessary
to
secure
a
defendant's appearance:
"(1) Execution of an appearance bond
in an amount specified by the court, either
with
or
without
requiring
that
the
defendant deposit with the clerk security
in an amount as required by the court;
"(2) Execution of a secured appearance
bond;
19
1180802
under Rule 7.5. Although the circuit court held a hearing the
day after it announced it was revoking Barnes's bail and
ordered that Barnes be taken into custody, the circuit court
did not receive evidence supporting revocation at that
hearing. Moreover, before providing Barnes an opportunity to
present his argument, the circuit court announced that it was
"done." Despite continued objections by Barnes's attorney and
the circuit court's acknowledgment that there was "no
precedent for what [it] did," the circuit court doubled down
on its decision and refused to reinstate Barnes's bail. The
May 14, 2019, hearing was in no way the meaningful hearing
that due process requires.
Additionally, the circuit court's decision to revoke
Barnes's release is not supported by the materials submitted
"(3) Placing the defendant in the
custody
of
a
designated
person
or
organization agreeing to supervise the
defendant;
"(4) Restrictions on the defendant's
travel, associations, or place of abode
during the period of release;
"(5) Return to custody after specified
hours; or
"(6) Any other conditions which the
court deems reasonably necessary."
20
1180802
to this Court. None of the reasons given by the circuit court
indicate that Barnes had failed to comply with or had violated
his conditions of release or that Barnes had made material
misrepresentations or omissions of fact to the district court
when bail was initially granted. To the extent the circuit
court now contends that it based its decision on evidence
presented at the immunity hearing, that hearing was held in
January 2019 -- four months before the circuit court decided
to revoke Barnes's bail -- and cannot serve as a basis for
revocation.
A
defendant's
decision
to
change
his
representation, even at the last minute, is not a justifiable
reason to revoke bail, nor is a defendant's failure to pay his
attorney a reason to revoke a defendant's bail. A defendant's
request to continue a trial setting, likewise, is not a
permissible reason to revoke bail. Moreover, a perceived lack
of funding of the court system is not a relevant consideration
in determining whether to revoke a defendant's bail.
In addition, nothing in the record supports the circuit
court's determination that Barnes had become a flight risk. No
evidence was produced showing that Barnes had failed to appear
at any hearing or that Barnes's appearance at trial would not
21
1180802
be reasonably assured by the conditions of release initially
imposed. To the contrary, Barnes appeared in court on May 13,
2019, the trial date, and announced that he was ready to
proceed with the trial. This fact alone underscores the
imprudence of the circuit court's deeming Barnes to be a
flight risk. How can a defendant who has appeared on the date
of trial be found to be at risk of fleeing from his obligation
to attend the trial? Given the totality of the circumstances,
the circuit court's revocation order appears to be an
impermissible, vexatious
measure
designed
to
punish
Barnes
for
what the circuit court thought were attempts to delay trial,
rather than a legitimate attempt to secure Barnes's presence
at trial. See § 15-13-102.
The circuit court erred by basing the revocation on an
unsupported
and
unsubstantiated belief
that
Barnes
intended
to
delay his trial setting and had become a flight risk, rather
than on evidence satisfying the requirements for
revocation in
Rule 7.5. Furthermore, the circuit court erred in denying
Barnes's request to reinstate his pretrial bail -- a right to
which he was entitled under the law, regardless of the
heinousness of the crime he is accused of committing. See Art.
22
1180802
I, § 16, Ala. Const. 1901. Accordingly, Barnes has
demonstrated that he has been illegally detained and that he
is entitled to relief.6 See Ex parte Boykins, 862 So. 2d 587,
591 (Ala. 2002)(quoting Heflin v. United States, 358 U.S. 415,
421 (1959))(explaining that the purpose of a writ of habeas
corpus "'is to inquire into the legality of the detention of
one in custody'" (emphasis omitted)).
Conclusion
We grant Barnes's petition and direct the circuit court
to vacate its order revoking Barnes's bail and to reinstate
Barnes's original bail.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur.
6But for this Court's granting Barnes's motion to stay
enforcement of the revocation, Barnes would still be
illegally
detained.
23 | June 5, 2020 |
4b81f363-7728-4701-bb8c-a42c82151cee | AMMC, P.C., d/b/a Alabama Men's Clinic, and John Justin Caulfield, M.D. v. Robert Snell and Tabitha Snell | N/A | 1180308 | 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
May 22, 2020
1180308
AMMC, P.C., d/b/a Alabama Men's Clinic, and John Justin Caulfield, M.D. v.
Robert Snell and Tabitha Snell (Appeal from Jefferson Circuit Court: CV-16-901166).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on May 22, 2020:
Application Overruled. No Opinion. Wise, J. - Parker, C.J., and Shaw, Bryan, Mendheim,
Stewart, and Mitchell, JJ., concur. Bolin and Sellers, JJ., dissent.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on April 10, 2020:
Affirmed. No Opinion. Wise, J. - Parker, C.J., and Shaw, Bryan, Mendheim, Stewart, and
Mitchell, JJ., concur. Bolin and Sellers, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 22nd day of May, 2020.
Clerk, Supreme Court of Alabama | May 22, 2020 |
a0f0faca-6e2d-416d-ac44-a614cda1159f | Butler Precision Components, Inc. v. PMI Technologies, Inc.; Roy Patterson, Jr.; and Roy Patterson III | N/A | 1180406 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 15, 2020
1180406 Butler Precision Components, Inc. v. PMI Technologies, Inc.; Roy Patterson, Jr.;
and Roy Patterson III (Appeal from Marshall Circuit Court: CV-15-900400).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on May 15, 2020:
Application Overruled. No Opinion. Parker, C.J. - Shaw, 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 March 13, 2020:
Affirmed. No Opinion. Parker, C.J. - Shaw, Bryan, Mendheim, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 15th day of May, 2020.
Clerk, Supreme Court of Alabama | May 15, 2020 |
4895c4aa-909f-4f15-8e38-017cd2fca6dd | Ex parte Devin Darnell Thompson. | N/A | 1190426 | 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
May 22, 2020
1190426
Ex parte Devin Darnell Thompson. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Devin Darnell Thompson v. State of Alabama) (Fayette
Circuit Court: CC-03-62.60; Criminal Appeals :
CR-16-1311).
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 May 22, 2020:
Writ Denied. No Opinion. Bryan, J. - Parker, C.J., and Bolin, Shaw, Wise, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 22nd day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 22, 2020 |
bad320db-d8ca-40e0-91a4-2a59ded157f6 | Ex parte Davon Lashon Davis. | N/A | 1190512 | 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
May 15, 2020
1190512
Ex parte Davon Lashon Davis. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Davon Lashon Davis v. State of Alabama) (Houston Circuit
Court: CC-13-337.62; Criminal Appeals :
CR-18-1018).
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 May 15, 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 15th day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 15, 2020 |
609c9d8b-1ed8-434b-b153-ec4a0d74ad2e | Ex parte A.W. | N/A | 1190591 | 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
May 15, 2020
1190591
Ex parte A.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: A.W. v. Tuscaloosa County Department of Human Resources) (Tuscaloosa Juvenile
Court: JU-17-214.02; Civil Appeals :
2181031).
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 May 15, 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 15th day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 15, 2020 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.