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53334cc8-0655-40f0-9c4c-13e959583d67 | Ex parte Patricia L. McCrary and Patricia Lynne Noack, as co-trustees of the Patricia L. McCrary Revocable Trust dated June 18, 2001. | N/A | 1190532 | 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
1190532
Ex parte Patricia L. McCrary and Patricia Lynne Noack, as co-trustees of the Patricia L.
McCrary Revocable Trust dated June 18, 2001. PETITION FOR WRIT OF CERTIORARI TO
THE c Ou RT o f c iv il APPEALS (In re: Patricia L. McCrary and Patricia Lynne Noack, as
co-trustees of the Patricia L. McCrary Revocable Trust dated June 18, 2001 v. Michael Cole
and Pamela Cole) (Autauga Circuit Court: CV-16-17; Civil Appeals :
2190082).
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.
Clerk, Supreme Court of Alabama | May 15, 2020 |
9f347091-8056-4fb9-b82b-860ddaf7ba1f | Ex parte Christopher Jay Knapp. | N/A | 1190536 | 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
1190536
Ex parte Christopher Jay Knapp. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Christopher Jay Knapp v. State of Alabama) (Mobile Circuit
Court: CC-15-5119; Criminal Appeals :
CR-17-0882).
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 |
0c541f8f-d196-45c7-8a9c-9c37243a334a | City of Montgomery v. Hunter | N/A | 1170959 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
August 28, 2020
1170959
The City of Montgomery and American Traffic Solutions, Inc. v. Charles Hunter
and Mike Henderson (Appeal from Montgomery Circuit Court: CV-15-901274).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on August 28, 2020:
Application Overruled. No Opinion. Bolin, J. - Parker, C.J., and Bryan, Sellers, Mendheim,
and Stewart, JJ., concur. Shaw, Wise, and Mitchell, JJ., recuse themselves.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on May 1, 2020:
Reversed And Remanded. Bolin, J. - Bryan, Sellers, and Stewart, JJ., concur. Parker, C.J.,
and Mendheim, J., concur in the result. Shaw, Wise, and Mitchell, JJ., recuse themselves.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 28th day of August, 2020.
Clerk, Supreme Court of Alabama | May 1, 2020 |
c67fadee-3f0a-4661-b4d8-3fcd4385f61a | Ex parte James L. Mizell, Jr. | N/A | 1190556 | 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
1190556
Ex parte James L. Mizell, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: James L. Mizell, Jr. v. State of Alabama) (Russell Circuit Court:
CC-16-178; CC-18-85; Criminal Appeals :
CR-18-0460).
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. 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 15th day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 15, 2020 |
2db4147f-bf55-4315-9930-ac614269ce83 | Ex parte Gregory Tavares Crews. | N/A | 1190359 | 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
1190359
Ex parte Gregory Tavares Crews. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Gregory Tavares Crews v. State of Alabama) (Etowah
Circuit Court: CC-16-135.61; Criminal Appeals :
CR-18-1252).
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 |
14ecf580-c49b-40de-a7f1-20fe112e3b09 | Russell Construction of Alabama, Inc. v. Peat | N/A | 1180979 | 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
_________________________
1180979
_________________________
Russell Construction of Alabama, Inc.
v.
Christopher Peat
Appeal from Montgomery Circuit Court
(CV-18-902291)
SHAW, Justice.
Russell Construction of Alabama, Inc. ("Russell"),
appeals from an order of the Montgomery Circuit Court vacating
a judgment entered on an arbitration award in favor of Russell
1180979
and against Christopher Peat. We affirm in part, reverse in
part, and remand.
Facts and Procedural History
In 2015, Russell and Peat entered into a contract
pursuant to which Russell agreed to construct a residence for
Peat on "a cost plus a fee basis." The documents executed in
connection with the contract provided, in the event of a
controversy or dispute, first for mediation and then for
arbitration in accordance with the rules of the American
Arbitration Association. The arbitration agreement further
provided that "[t]he award rendered by the arbitrator or
arbitrators shall be final, and judgment may be entered upon
it in accordance with applicable law in any court having
jurisdiction thereof."
Upon completion of the residence, a dispute arose between
Russell and Peat regarding Russell's performance and the
balance due Russell under the contract. In January 2018,
Russell filed a formal demand for arbitration, seeking
$295,408 allegedly due from Peat for the construction of the
residence. Peat counterclaimed, alleging breach of fiduciary
duty and breach of contract and disputing his consent to costs
2
1180979
incurred by Russell; Peat sought specific performance and an
award of $255,000 on his counterclaims. Thereafter, in May
2018, the parties reached, as a result of mediation, a
settlement agreement. In essence, the settlement agreement
required Russell to make certain repairs to the residence;
required Peat to pay Russell $245,408 on or before June 15,
2018, at which time Russell agreed to release its recorded
lien; and required Peat to deposit into escrow an additional
$50,000 to ensure completion, by the end of August 2018, of a
"punch-list"
to
the
satisfaction
of
a
third-party
"Construction Consultant."
In July 2018, Russell, on the ground that Peat had failed
to comply with the settlement agreement, moved that the
arbitrator enter an award based on the terms of the settlement
agreement. Peat moved either to reform or to rescind the
settlement agreement based on disagreement with some of
Russell's charged costs, on mistake and/or fraud, and on his
own purported "economic duress." On July 25, 2018, the
parties proceeded to an arbitration hearing to consider
whether Peat was entitled to rescind or reform the settlement
3
1180979
agreement, whether Peat had breached that agreement, and
damages, if any.
On August 22, 2018, subsequent to the parties' submission
of post-hearing filings, the arbitrator issued a "Partial
Final Award" in which he concluded:
"The [settlement agreement] is enforceable. Peat
breached the agreement by failing to pay Russell
$245,408.00 on June 15, 2018. Russell is entitled
to an award in that amount plus interest at the
agreed rate of 8%. While Peat also failed to pay
$50,000 into escrow, Russell is not damaged because
it has not performed the completion/punch list work
against which the $50,000 was to be escrowed."
Noting that Peat's arguments for either rescission or
reformation
of
the
settlement
agreement
were
legally
unsupportable, the arbitrator's award further provided that
"both parties, with advice of counsel, stipulated that they
wanted the remaining provisions of the settlement agreement to
remain in effect and binding on the parties" with the
extension of certain deadlines provided in the agreement.
That included Russell's completion of the remaining remedial
work identified on the punch list and the related distribution
of the funds to be placed in escrow. On September 5, 2018,
the arbitrator entered a "Modified Partial Final Award" in
which he identified a miscalculation in the Partial Final
4
1180979
Award and revised the amount awarded to Russell to
$258,959.89, which amount included interest.
On December 19, 2018 –- well over 30 days after the
issuance of the arbitrator's Modified Partial Final Award --
Russell filed in the Montgomery Circuit Court, pursuant to
Rule 71C, Ala. R. Civ. P.,1 a motion seeking entry of a
1Rule 71C provides, in pertinent part:
"(a) Who May Enforce. Any party to an
arbitration may seek enforcement of the award
entered as a result of the arbitration.
"(b) When Filed. If no appeal has been filed
pursuant to Rule 71B[, Ala. R. Civ. P.,] within
thirty (30) days of service of the notice of the
award, thereby resulting in a waiver of the right to
review, the party seeking enforcement of the award
may at any time thereafter seek enforcement of the
award in the appropriate circuit court as set forth
in paragraph (c) of this rule.
"(c) Where Filed. The motion for entry of
judgment shall be filed with the clerk of the
circuit court where the action underlying the
arbitration is pending or if no action is pending in
the circuit court, then in the office of the clerk
of the circuit court of the county where the award
is made.
"(d) What Filed. A party seeking enforcement of
an award shall file a motion for entry of judgment,
and shall attach to the motion a copy of the award,
signed by the arbitrator, if there is only one, or
by a majority of the arbitrators.
"....
5
1180979
judgment in the amount of $258,959.89 in accordance with the
arbitrator's
Modified
Partial
Final
Award
(case
no.
CV-18-902291). Russell submitted copies of the settlement
agreement, the Partial Final Award, and the Modified Partial
Final Award and further indicated that Peat had failed to pay
the
awarded
amount.
Russell
specifically
requested
enforcement of the Modified Partial Final Award.
In February 2019, the parties attended a second
arbitration hearing
at
which
the
arbitrator considered whether
the parties' failure to perform remaining obligations under
the settlement agreement amounted to another breach of the
agreement and, if so, whether another award of damages was
warranted. On March 7, 2019, the arbitrator entered what it
called a "Final Award." In it, the arbitrator found that
neither Russell nor Peat had performed their remaining
obligations under the settlement agreement and, accordingly,
"[made] an equitable allocation of the contract balance of
$50,000.00," which, based upon his findings as to the
"(f) Procedure After Filing. The clerk promptly
shall enter the award as the final judgment of the
court. After service pursuant to paragraph (e) of
this rule, the prevailing party may seek execution
on the judgment as in any other case."
6
1180979
respective fault of each, he awarded as follows: $33,500 to
Russell, which had been reduced by $7,000 based on Russell's
failure to make repairs to the concrete at Peat's residence,
and $16,500 to Peat. The Final Award "reaffirmed" the earlier
Modified Partial Final Award, resulting in a total monetary
judgment to Russell in the amount of $295,305.80, which amount
included interest.
On March 13, 2019, Peat filed an "answer" in the circuit
court to Russell's prior Rule 71C motion seeking a judgment on
the Modified Partial Final Award. In it, Peat both denied the
allegations in the motion and asserted various affirmative
defenses, including fraud. Peat's answer included no
attachments.
The circuit court set the matter for a "bench trial."
Russell then filed an "Amended Rule 71C Motion for Entry of
Judgment by Clerk on Arbitration Award," notifying the circuit
court of the arbitrator's Final Award, of Peat's failure to
pay the amount required by either the Modified Partial Final
Award or the Final Award, and of Peat's purported failure to
appeal from the Final Award within the 30-day time frame
7
1180979
provided in Rule 71B, Ala. R. Civ. P.2 Russell sought entry
of a judgment against Peat in the amount of $295,305.80. The
Final Award was included as an exhibit to the motion.
Thereafter, Russell filed a "Motion for Instructions to
the Clerk of Court to Enter Judgment on Arbitration Award" in
which it again cited Peat's alleged failure to pay or to
appeal the Final Award within 30 days and requested that the
circuit court "instruct the Clerk of the Court to immediately
enter judgment on the Final Award pursuant to [Rule] 71C in
the amount of $295,305.80." On April 30, 2019, the circuit
court granted that motion and instructed its clerk to enter
judgment accordingly. On that same date, the clerk entered a
"Final Judgment Pursuant to Rule 71C" in favor of Russell and
against Peat in the amount of $295,305.80.
On May 1, 2019, Peat filed, presumably pursuant to Rule
59, Ala. R. Civ. P., a "Motion to Set Aside and/or Vacate
Order Done on April 30, 2019." Although conceding, as Russell
2Rule 71B(b) provides that a notice of appeal from an
arbitration award "shall be filed within thirty (30) days
after service of notice of the arbitration award. Failure to
file within thirty (30) days shall constitute a waiver of the
right to review."
8
1180979
alleged in its amended Rule 71C motion, that the arbitrator
had, in fact, entered the Final Award on March 7, 2019,3 Peat
argued that his March 13 answer to Russell's Rule 71C motion
on the Modified Partial Final Award had asserted various
grounds as to why an award should not be enforced. More
specifically, Peat alleged:
"[I]t is a long-standing principle of this court
that substance shall prevail over form and that it
is the true intent of the Answer and the defenses
asserted to challenge the sufficiency of the
arbitration award.
"... That the Answer was filed on March 13, 2019
and it was within 30 days of the Arbitration award,
but it was not filed consistent with other sections
of Rule 71B of the Ala.R.Civ.P.
"... [That he] was served with [Russell's] Rule
71C petition the same day of the final arbitration
hearing, and thus ... was not given 30 days to
properly file his Rule 71B motion before [Russell]
filed its 71C petition to enforce the arbitration
award."
Based on the foregoing, Peat sought a hearing in the circuit
court "to determine if the arbitration award should be
upheld." As discussed below, Peat contends that the March 13,
3Peat did not claim below and does not argue on appeal
that he was not timely served with either the arbitrator's
Partial Final Award or the Modified Partial Final Award.
9
1180979
2019, answer was, in effect, a notice of appeal of the
arbitration award.
After a hearing, the circuit court entered an order, on
July 25, 2019, granting Peat's motion to set aside the April
30, 2019, judgment. In its order, the circuit court explained
that, pursuant to Peat's motion, it had been called on "to
determine if the arbitration award should be upheld, and/or
[whether to] allow [Peat] to cure defects in his answer and
properly submit a Rule 71B Notice of Appeal from the
arbitration award." On August 6, 2019, Peat filed a purported
notice of appeal in which he alleged that the Final Award was
"legally unjust" and requested that it be overturned. That
notice was assigned a separate case number in the trial court
(CV-19-901484); however, on Russell's motion, the two actions
were consolidated under case number CV-18-902291. Russell
filed its notice of appeal to this Court on August 27, 2019.
See Rule 71B(g) ("An appeal may be taken from the grant or
denial of any Rule 59[, Ala. R. Civ. P.,] motion challenging
[an arbitration] award by filing a notice of appeal to the
appropriate appellate court pursuant to Rule 4, Alabama Rules
of Appellate Procedure.").
10
1180979
Standard of Review
"'In R.P. Industries, Inc. v. S & M
Equipment Co., 896 So. 2d 460 (2004), this
Court reviewed the trial court's order
granting a motion to confirm an arbitration
award and denying the opposing party's
motion to vacate that award. We stated:
"'"'Where parties, as in
this
case, have
agreed
that
disputes
should
go
to
arbitration, the role of the
courts
in
reviewing
the
arbitration award is limited.
Transit Casualty Co. v. Trenwick
Reinsurance Co., 659 F. Supp.
1346 (S.D.N.Y. 1987), affirmed,
841 F.2d 1117 (2d Cir. 1988);
Saxis Steamship Co. v. Multifacs
International Traders, Inc., 375
F.2d 577 (2d Cir. 1967). On
motions to confirm or to vacate
an award, it is not the function
of courts to agree or disagree
with
the
reasoning
of
the
arbitrators.
Application
of
States Marine Corp. of Delaware,
127 F. Supp. 943 (S.D.N.Y. 1954).
Courts are only to ascertain
whether there exists one of the
specific grounds for vacation of
an award. Saxis Steamship Co. A
court
cannot
set
aside
the
arbitration award just because it
disagrees
with
it;
a
policy
allowing it to do so would
undermine the federal policy of
encouraging the settlement of
disputes by arbitration. United
Steelworkers
of
America
v.
Enterprise Wheel & Car Corp., 363
11
1180979
U.S. 593, 80 S. Ct. 1358, 4 L.
Ed.
2d
1424
(1960);
Virgin
Islands
Nursing
Association's
Bargaining Unit v. Schneider, 668
F.2d 221 (3d Cir. 1981). An
award should be vacated only
where the party attacking the
award clearly establishes one of
the
grounds
specified
[in 9
U.S.C. § 10]. Catz American Co.
v. Pearl Grange Fruit Exchange,
Inc., 292 F. Supp. 549 (S.D.N.Y.
1968).'"
"'896 So. 2d at 464 (quoting Maxus, Inc. v.
Sciacca, 598 So. 2d 1376, 1380–81 (Ala.
1992)). The standard by which an appellate
court reviews
a trial court's
order
confirming an arbitration award under the
Federal Arbitration Act is that questions
of law are reviewed de novo and findings of
fact are reviewed only for clear error.
See Riccard v. Prudential Ins. Co., 307
F.3d 1277, 1289 (11th Cir. 2002).'
"Hereford v. D.R. Horton, Inc., 13 So. 3d 375, 378
(Ala. 2009)."
Terminix Int'l Co., L.P. v. Scott, 142 So. 3d 512, 519–20
(Ala. 2013).
Discussion
On appeal, Russell maintains, as it argued below, that
the circuit court's order setting aside the clerk's entry of
judgment on the arbitrator's award contravenes Rule 71B and
is,
therefore, erroneous.
Specifically,
Russell
contends
that
12
1180979
Peat neither filed a notice of appeal nor, if his answer is
construed as one, filed a notice of appeal within 30 days of
service of the award as required by Rule 71B(b). Because,
Russell argues, Peat indisputably failed to timely file a
notice of appeal, it maintains that Peat has waived review of
any challenges to the arbitrator's awards. Peat, however,
contends that his answer was sufficient under Rule 71B to
constitute notice that he disputed the validity of the
arbitration awards.
Rule 71B, which became effective on February 1, 2009,4
establishes the procedure for appealing an arbitration award
to the circuit court. This Court has previously summarized
the procedure as follows:
"(1) A party must file a notice of appeal with the
appropriate circuit court within 30 days after
service of the notice of the arbitration award; (2)
the clerk of the circuit court shall promptly enter
the award as the final judgment of the circuit
court; (3) the aggrieved party may file a Rule 59,
Ala. R. Civ. P., motion to set aside or vacate the
4See Honea v. Raymond James Fin. Servs., Inc., 240 So. 3d
550, 557 (Ala. 2017) ("[The] rule ... provides the procedure
for appealing an arbitration award and supersedes the
procedures in § 6–6–15[, Ala. Code 1975]. See Committee
Comments to Rule 71B.").
13
1180979
judgment, and such filing is a condition precedent
to further review by any appellate court; (4) the
circuit court grants or denies the Rule 59 motion;
and (5) the aggrieved party may then appeal from the
circuit
court's
judgment
to
the
appropriate
appellate court."
Guardian Builders, LLC v. Uselton, 130 So. 3d 179, 181 (Ala.
2013).
To the extent that Peat argues that his March 13, 2019,
answer to Russell's Rule 71C motion was, in substance, a
notice of appeal, there is authority suggesting that the Court
may construe other pleadings "as a notice of appeal for
purposes of Rule 71B when the motion was in substance a notice
of appeal." Alabama Psychiatric Servs., P.C. v. Lazenby,
[Ms. 1170856, June 21, 2019] ___ So. 3d ___, ___ (Ala. 2019)
(citing Honea v. Raymond James Fin. Servs., Inc., 240 So. 3d
550, 559 (Ala. 2017), Uselton, 130 So. 3d at 182, and J.L.
Loper Constr. Co. v. Findout P'ship, LLP, 55 So. 3d 1152 (Ala.
2010)). As to this issue, we have explained:
"This Court 'treat[s] a pleading and any other
filing according to its substance, rather than its
form or its style.' Ex parte Bender Shipbuilding &
Repair Co., 879 So. 2d 577, 584 (Ala. 2003). A
notice of appeal, in the context of the Alabama
Rules of Appellate Procedure, 'shall specify the
party or parties taking the appeal; shall designate
the judgment, order or part thereof appealed from;
and shall name the court to which the appeal is
14
1180979
taken.' Rule 3(c), Ala. R. App. P. Honea's January
14,
2008,
motion
to
vacate
specifies
that
information. Further, we note that this Court has
construed a motion to vacate an arbitration award as
a notice of appeal for purposes of Rule 71B, which
superseded § 6–6–15. Guardian Builders, LLC v.
Uselton, 130 So. 3d 179, 182 (Ala. 2013). See also
J.L. Loper Constr. Co. v. Findout Partnership, LLP,
55 So. 3d 1152 (Ala. 2010). Thus, we conclude that,
in substance, Honea's January 14, 2008, motion to
vacate was a notice of appeal of the arbitration
award."
Honea, 240 So. 3d at 559 (footnote omitted). The Court has
nonetheless cautioned that "a party desiring appellate review
of an arbitration award should follow the explicit procedure
for appealing established by Rule 71B." Uselton, 130 So. 3d
at 182.
First, as to the Modified Partial Final Award, it is
unnecessary for us to determine whether Peat's answer "was in
substance a notice of appeal," see Lazenby, supra, because it
was, in any event, untimely. The Modified Partial Final Award
resolving the parties contract-balance dispute was issued on
September 5, 2018. As mentioned elsewhere, nothing before the
Court suggests –- and, in fact, Peat does not claim –- that
Peat was not promptly served with the award at that time.
Under Rule 71B, assuming Peat was dissatisfied with the
terms of the Modified Partial Final Award, he was required to
15
1180979
raise any challenge by timely filing his notice of appeal
within 30 days of the entry of the award. It is undisputed
that Peat did not do so; his answer was filed over six months
too late. Accordingly, he failed to follow the explicit
procedure for appealing the Modified Partial Final Award
outlined in Rule 71B. See J.L. Loper Constr. Co. and Uselton,
supra. We find no authority allowing a trial court to extend
the time for filing the notice of appeal from an arbitrator's
award beyond the deadline provided in Rule 71B or establishing
exceptions thereto.5 In consideration of the foregoing, we
conclude that the circuit court erred in setting aside the
judgment entered by the clerk in favor of Russell to the
5Peat contends that the circuit court could vacate the
award pursuant to Rule 60(b), Ala. R. Civ. P. However, Peat
raises no grounds that could not have been raised in a timely
appeal, and a Rule 60(b) motion cannot be used as a substitute
for an appeal. See, e.g., Washington Mut. Bank, F.A. v.
Campbell, 24 So. 3d 435, 442 (Ala. 2009) ("'[D]espite the
general discretion vested in trial courts to grant or deny
relief from a judgment, a Rule 60(b) motion is not a
substitute for appeal and "is not available to relieve a party
from his failure to exercise the right of appeal."'" (quoting
Wal-Mart Stores, Inc. v. Pitts, 900 So. 2d 1240, 1245 (Ala.
Civ. App. 2004), quoting in turn Morgan v. Estate of Morgan,
688 So. 2d 862, 864 (Ala. Civ. App. 1997))).
16
1180979
extent
that
that
judgment
reaffirmed the
arbitrator's
Modified
Partial Final Award.
As to the arbitrator's second, "Final Award" entered on
March 7, 2019, which addressed subsequent breaches of the
settlement agreement, we reach a different conclusion.
Within
one week of the entry of that award, Peat filed the answer to
Russell's Rule 71C motion, which pleading Peat maintains was
sufficient to have been deemed by the circuit court as
satisfying the requirements of Rule 71B. Further, Peat's
answer denied the enforceability of the award, sought a
hearing, and included as
stated defenses grounds for attacking
the finality of the award, including fraud, as contemplated by
§ 6-6-14, Ala. Code 1975.6 Thus, the circuit court could
properly have treated Peat's answer as a timely notice of
6Section 6-6-14 provides:
"An award made substantially in compliance with
the provisions of this division is conclusive
between the parties thereto and their privies as to
the matter submitted and cannot be inquired into or
impeached for want of form or for irregularity if
the award determines the matter or controversy
submitted, and such award is final, unless the
arbitrators are guilty of fraud, partiality, or
corruption in making it."
(Emphasis added).
17
1180979
appeal to the extent that it provided notice that Peat was
challenging the Final Award. See Honea, 240 So. 3d at 559.
Russell, on appeal, contends that Peat filed no notice of
appeal sufficient to satisfy Rule 71B; however, other than
quoting Rule 71B, Russell's brief includes no analysis or
authority explaining why Peat's answer was substantively
insufficient as a notice of appeal challenging the Final
Award.
"'Rule 28(a)(10), Ala. R.
App. P.,
requires that
arguments in an appellant's brief contain "citations
to the cases, statutes, other authorities, and parts
of the record relied on." Further, "it is well
settled
that
a
failure
to
comply
with
the
requirements of Rule 28(a)(10) requiring citation of
authority in support of the arguments presented
provides this Court with a basis for disregarding
those arguments." State Farm Mut. Auto. Ins. Co. v.
Motley, 909 So. 2d 806, 822 (Ala. 2005) (citing Ex
parte Showers, 812 So. 2d 277, 281 (Ala. 2001)).
This is so, because "'it is not the function of this
Court to do a party's legal research or to make and
address legal arguments for a party based on
undelineated general propositions not supported by
sufficient authority or argument.'" Butler v. Town
of Argo, 871 So. 2d 1, 20 (Ala. 2003)(quoting Dykes
v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala.
1994)).'"
Prattville Mem'l Chapel v. Parker, 10 So. 3d 546, 560 (Ala.
2008) (quoting Jimmy Day Plumbing & Heating, Inc. v. Smith,
964 So. 2d 1, 9 (Ala. 2007)).
18
1180979
Here, Peat's timely filed answer, in essence, challenges
the arbitrator's Final Award. Russell does not include
argument and authority establishing that, based on its
contents, Peat's answer was insufficient to be deemed a notice
of appeal. "It is the appellant's burden to refer this Court
to legal authority that supports [his] argument." Madaloni v.
City of Mobile, 37 So. 3d 739, 749 (Ala. 2009). Accordingly,
Russell has waived this claim for purposes of appellate
review. See City of Birmingham v. Business Realty Inv. Co.,
722 So. 2d 747, 752 (Ala. 1998) ("When an appellant fails to
cite any authority for an argument on a particular issue, this
Court may affirm the judgment as to that issue, for it is
neither this Court's duty nor its function to perform an
appellant's legal research.").
With no explanation as to how Peat's answer failed to
constitute sufficient notice of Peat's challenge below, we
hold that the circuit court did not err to the extent that it
set aside the judgment entered pursuant to the arbitrator's
Final Award. Accordingly, we affirm the trial court's July
25, 2019, order to the extent that it vacated any judgment on
the arbitrator's Final Award related to Russell's and Peat's
19
1180979
breach of the provisions of the settlement agreement that
remained in effect after the Modified Partial Final Award and
the distribution of the outstanding $50,000 at issue. We
reverse that same order to the extent it purported to vacate
any judgment on the Modified Partial Final Award of
$258,959.89 and remand this cause for further proceedings
consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ.,
concur.
20 | May 22, 2020 |
b3014b3c-cb9d-48db-9625-c1c19b5bdcf9 | Taylor English Duma LLP v. Ronald E. Mays and City Jets, Inc. | N/A | 1181022 | Alabama | Alabama Supreme Court | Rel: May 15, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1181022
Taylor English Duma LLP v. Ronald E. Mays and City Jets, Inc.
(Appeal from Montgomery Circuit Court: CV-19-900345).
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. | May 15, 2020 |
eed2b434-586f-49ec-ba23-e24067d80f69 | Ex parte Ronald Marquay Russell. | N/A | 1190488 | 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
1190488
Ex parte Ronald Marquay Russell. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPeAl S (In re: Ronald Marquay Russell v. State of Alabama) (Jefferson
Circuit Court: CC-07-2236.62; Criminal Appeals :
CR-18-0845).
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 May 15, 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 15th day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 15, 2020 |
39214c74-87a6-4d2d-809c-6dcdc0e5f853 | Alabama State Bar v. Steven John Giardini | N/A | 1180248 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
September 4, 2020
1180248
Alabama State Bar v. Steven John Giardini (Appeal from the Disciplinary Board of
the Alabama State Bar (ASB: 2018-821)).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on September 4, 2020:
Application Overruled. No Opinion. Shaw, J. - Parker, C.J., and Bolin, Wise, and Bryan, JJ.,
concur. Sellers, Mendheim, and Mitchell, JJ., dissent. Stewart, J., recuses herself.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on May 8, 2020:
Reversed And Remanded. Shaw, J. - Parker, C.J., and Wise, and Bryan, JJ., concur. Bolin
and Shaw, JJ., concur specially. Mitchell, J., concurs in the result. Sellers and Mendheim, JJ.,
dissent. Stewart, J., recuses herself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 4th day of September, 2020.
Clerk, Supreme Court of Alabama | May 8, 2020 |
6704bba4-e9fd-4e4e-82d9-49f771d16fd2 | Ex parte Darryl Anthony Dennis. | N/A | 1190501 | 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
1190501
Ex parte Darryl Anthony Dennis. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Darryl Anthony Dennis v. State of Alabama) (Mobile Circuit
Court: CC-95-3347.67; CC-95-3348.67; Criminal Appeals :
CR-17-0246).
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 Shaw, Wise, and Sellers, JJ.,
concur. Stewart, J., recuses herself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 15th day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 15, 2020 |
a7eedb88-ba04-4b0b-8440-eb2a4ff8af17 | Ex parte Christopher Eugene Wynne. | N/A | 1190515 | 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
1190515
Ex parte Christopher Eugene Wynne. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEa Ls (In re: Christopher Eugene Wynne v. State of Alabama)
(Madison Circuit Court: CC-19-481.70; Criminal Appeals :
CR-18-0907).
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. 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 15th day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 15, 2020 |
c1df9cd6-ce6a-4db7-acb0-1929f018677a | Charles Bryant and Clara Cottingham v. The Estate of Bertha Nixon, a protected person | N/A | 1190176 | Alabama | Alabama Supreme Court | Rel: May 15, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1190176
Charles Bryant and Clara Cottingham v. The Estate of Bertha
Nixon, a protected person (Appeal from Jefferson Probate
Court: 17-BHM-02333).
WISE, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Sellers, and Stewart, JJ.,
concur. | May 15, 2020 |
fd9fdc5b-2b00-436e-b570-5cce76337741 | Ex parte Victoria Haiden Defranco. | N/A | 1190528 | 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
1190528
Ex parte Victoria Haiden Defranco. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Victoria Haiden Defranco v. State of Alabama) (Covington
Circuit Court: CC-18-607; Criminal Appeals :
CR-18-1130).
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. 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 15th day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 15, 2020 |
e81da9e9-7fcd-4c2b-95a5-6b55bc334327 | Ex parte William N. Lucy. | N/A | 1190475 | 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
1190475
Ex parte William N. Lucy. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: William N. Lucy v. Estate of Annie D. Fox) (Mobile Probate Court:
2018-1703; Civil Appeals :
2190176).
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. 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.
l i t a
Clerk, Supreme Court of Alabama | May 15, 2020 |
2b44245b-fa39-4cc1-8588-f3afd0a68f19 | Susie B. Smith v. City of Tuscaloosa and Springbrook Investments LLC | N/A | 1190004 | Alabama | Alabama Supreme Court | Rel: May 22, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1190004
Susie B. Smith v. City of Tuscaloosa and Springbrook
Investments, LLC (Appeal from Tuscaloosa Circuit Court:
CV-18-900832).
SHAW, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, Bryan, Sellers, Mendheim,
Stewart, and Mitchell, JJ., concur. | May 22, 2020 |
946c1373-b4b8-4b42-bf7a-b316212a5835 | Robin Woodgett and Jerome Ruffin v. City of Midfield and American Traffic Solutions, Inc. | N/A | 1180051 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
August 28, 2020
1180051
Robin Woodgett and Jerome Ruffin v. City of Midfield and American Traffic
Solutions, Inc. (Appeal from Jefferson Circuit Court, Bessemer Division: CV-18-20).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on August 28, 2020:
Application Overruled. No Opinion. Bolin, J. - Parker, C.J., and Bryan, Sellers, Mendheim,
and Stewart, JJ., concur. Shaw, Wise, and Mitchell, JJ., recuse themselves.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on May 1, 2020:
Affirmed. Bolin, J. - Bryan, Sellers, and Stewart, JJ., concur. Parker, C.J., and Mendheim, J.,
concur in the result. Shaw, Wise, and Mitchell, JJ., recuse themselves.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 28th day of August, 2020.
Clerk, Supreme Court of Alabama | May 1, 2020 |
b5d0312d-dcb4-4ce4-825a-a427ec3f1b70 | Ex parte Anthony Jones. | N/A | 1190418 | 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
1190418
Ex parte Anthony Jones. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APp Ea LS (In re: Anthony Jones v. State of Alabama) (Mobile Circuit Court:
CC-00-2500.66; CC-00-2501.66; CC-00-2502.66; Criminal Appeals :
CR-18-0870).
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.
Clerk, Supreme Court of Alabama | May 15, 2020 |
3c5549f0-57ef-4c02-90a2-c85e3fa260e3 | Ex parte Greg Earnest. | N/A | 1190464 | 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
1190464
Ex parte Greg Earnest. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS (In re: Greg Earnest v. William Dutton) (Walker Circuit Court: CV-17-900371; Civil
Appeals :
2181063).
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. 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 15th day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 15, 2020 |
3fe0984e-757b-4d06-95cd-f8b6f0fe6943 | Ex parte Jermaine Lindell Hoston. | N/A | 1190322 | 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 1, 2020
1190322
Ex parte Jermaine Lindell Hoston. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Ex parte Jermaine Lindell Hoston (In re: State of Alabama v.
Jermaine Lindell Hoston)) (Montgomery Circuit Court: CC-18-1648; Criminal Appeals :
CR-19-0038).
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 1, 2020:
Writ Denied. No Opinion. (Special Writing) Bryan, J. - Shaw, Wise, Sellers,
Mendheim, and Mitchell, JJ., concur. Parker, C.J., and Bolin, and Stewart, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 1st day of May, 2020.
Clerk, Supreme Court of Alabama | May 1, 2020 |
d0ffe668-89b4-4f14-8c9a-ee4c56c7bdb7 | Pentagon Federal Credit Union v. McMahan | N/A | 1180804 | Alabama | Alabama Supreme Court | REL: May 8, 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
____________________
1180804
____________________
Pentagon Federal Credit Union
v.
Susan R. McMahan
Appeal from Baldwin Circuit Court
(CV-18-900160)
MENDHEIM, Justice.
Pentagon Federal Credit Union ("PenFed") appeals a
judgment entered by the Baldwin Circuit Court in favor of
Susan R. McMahan. We reverse the circuit court's judgment and
remand the cause for further proceedings.
1180804
Facts and Procedural History
PenFed and McMahan stipulated to the following facts:
"1. On or about June 16, 2005, Plaintiff Susan
R.
McMahan
and
her
now
deceased
husband
(collectively
'the
McMahans'),
purchased
the
property located at 23324 Cornerstone Drive, Loxley,
Alabama 36551 (the 'property'). ...
"2. Also on June 16, 2005, the McMahans
executed a mortgage on the property in favor of
Wells Fargo in the principal amount of $122,700.00
(the 'Wells Fargo mortgage'). ...
"3. The Wells Fargo mortgage identifies the
property encumbered by the [Wells Fargo] mortgage as
being located at '23324 Cornerstone Drive, Loxley,
Alabama 36551,' Id. at p. 3. The legal description
attached to the Wells Fargo mortgage does not
correctly describe the property.
"4. On or about September 14, 2007, the
McMahans obtained a loan and executed a promissory
note in favor of PenFed in the amount of $55,000.00
('PenFed note'). ...
"5. On or about September 14, 2007, the
McMahans executed a second mortgage on the property
in favor of PenFed (the 'PenFed mortgage'). ...
"6. PenFed was aware of the Wells Fargo
mortgage when PenFed made the loan to the McMahans
and
obtained
its
mortgage
on
the
McMahans'
property."
The PenFed mortgage states, in pertinent part:
"At no time shall this mortgage, not including sums
advanced to protect the security of this mortgage,
exceed $55,000.00.
2
1180804
"....
"... [PenFed] shall be subrogated to the rights
of the holder of any previous lien, security
interest, or encumbrance discharged with funds
advanced by [PenFed] regardless of whether these
liens, security interests or other encumbrances have
been released of record."
The parties' stipulation of facts further states:
"7. On or about September 27, 2014, the
McMahans filed for Chapter 13 bankruptcy protection
in the United States Bankruptcy Court for the
Southern District of Alabama, Case No. 14-03147.
...
"8. In Schedule D of their bankruptcy petition,
the McMahans acknowledged that Wells Fargo held a
$112,000.00 mortgage on the property ..., which was
incurred in June 2005 ....
"9. The McMahans also acknowledged in Schedule
D the second mortgage on the property held by PenFed
in the amount of $46,000.00. ...
"10. On or about March 31, 2015, PenFed sought
relief from the automatic bankruptcy stay in order
to foreclose the PenFed mortgage. ...
"11. On or about May 6, 2015, Wells Fargo
sought relief from the automatic bankruptcy stay in
order to foreclose the Wells Fargo mortgage. ...
"12. The bankruptcy court granted PenFed’s
motion to lift the stay on May 19, 2015. ...
"13.
The
bankruptcy court granted
Wells Fargo’s
motion for relief from the automatic stay on
June 22, 2015. ...
3
1180804
"14. On or about July 1, 2015, PenFed declared
the PenFed note and mortgage in default and
scheduled a foreclosure sale for August 7, 2015.
"15. At the duly noticed and conducted
foreclosure sale on August 7, 2015, PenFed purchased
the property for a credit bid of $36,000.00 (the
'foreclosure sale'). PenFed received a foreclosure
deed, taking title subject to the senior lien of
Wells Fargo. ...
"16. As of the date of the foreclosure sale,
the McMahans owed PenFed the total amount of
$47,714.16 under the PenFed note.
"17. The fees and costs incurred in association
with the foreclosure sale totaled $2,719.25.
"18. The McMahans' bankruptcy case was
dismissed on or about November 17, 2015. ... The
Wells Fargo debt/lien and the PenFed debt were not
discharged in the bankruptcy proceedings.
"19. On or about December 30, 2015, PenFed
brought suit against Wells Fargo in the Circuit
Court of Baldwin County, Alabama, Civil Action No.
05-CV-2015-901538, to quiet title as the first lien
holder and fee simple owner of the property by
virtue of the PenFed mortgage, the foreclosure deed,
and the erroneous legal description in the Wells
Fargo mortgage. PenFed did not notify or make
[McMahan] a party to that lawsuit.
"20. That lawsuit was never tried to conclusion
but was settled, and PenFed paid Wells Fargo
$91,256.54 to satisfy the [Wells Fargo] note and in
exchange for a cancellation and release of the Wells
Fargo mortgage. PenFed did not acquire the right to
enforce the Wells Fargo note and/or mortgage. ...
"21. On or about July 28, 2016, within one year
of the foreclosure, PenFed sold the property to
4
1180804
independent third-party purchasers for a sales price
of $157,525.00 (the 'post-foreclosure sale'). ...
"22. The costs and expenses associated with the
July 28, 2016, post-foreclosure sale of the property
totaled $12,350.39, which resulted in the net
proceeds from the post-foreclosure sale totaling
$145,174.61.
"23. The McMahans' deficiency balance of
$14,433.41 on the PenFed note was satisfied as a
result of the post-foreclosure sale.
"24. On or about December 5, 2017, counsel for
Susan McMahan wrote PenFed inquiring about how the
Wells Fargo mortgage was satisfied. ...
"25. On or about January 8, 2018, counsel for
PenFed responded to the December 5 letter, explained
PenFed's calculation of the surplus remaining after
the post-foreclosure sale, and offered to tender the
surplus in exchange for execution of a hold harmless
agreement. ..."
PenFed's calculation of the post-foreclosure-sale surplus
proceeds excluded the $91,256.54 that PenFed paid to Wells
Fargo to satisfy the Wells Fargo note and cancel the Wells
Fargo mortgage.
On February 7, 2018, McMahan sued PenFed, asserting
claims of breach of contract, "breach of quasi-fiduciary
(trustee) duty," money had and received, unjust enrichment,
constructive trust, and conversion. McMahan alleged that
PenFed's sale of the property to third-party purchasers for
5
1180804
$157,525 ("the post-foreclosure sale") "created excess
proceeds[] greater than the amount Pen[Fed] was entitled to
collect under the Pen[Fed] ... note." The gravamen of each of
McMahan's claims against PenFed is that the proceeds of the
post-foreclosure sale exceeded the amount McMahan owes on the
PenFed note, that McMahan is entitled to the proceeds of the
post-foreclosure sale that exceed the amount McMahan owes on
the PenFed note, and that PenFed has failed to remit to
McMahan the entirety of the surplus proceeds from the post-
foreclosure sale that she says she is entitled to. In
essence, McMahan asserted that PenFed should not
have excluded
from
the
post-foreclosure-sale
surplus
proceeds
the
$91,256.54
that PenFed paid to Wells Fargo to settle the Wells Fargo note
and the Wells Fargo mortgage.
On June 6, 2018, McMahan filed a motion for a partial
summary judgment as to her claims of breach of contract and
money had and received. On August 13, 2018, PenFed filed a
motion for a summary judgment as to all of McMahan's claims.
Both parties filed responses opposing the other's summary-
judgment motion. On April 9, 2019, the circuit court denied
the parties' summary-judgment motions.
6
1180804
On May 23, 2019, the parties submitted a joint motion
containing a stipulated statement of facts, which is set forth
above. The parties further stated in their joint motion that,
"[h]aving reached this stipulation, [the parties] further
stipulate that joint exhibits will be submitted and that
neither party will present testimony at the trial of this
matter." On May 31, 2019, the circuit court conducted a bench
trial. PenFed submitted a trial brief at the conclusion of
the bench trial. During arguments presented at the trial and
in its trial brief, PenFed argued that the doctrine of unjust
enrichment prohibited McMahan from recovering the $91,256.54
that PenFed paid to Wells Fargo to settle the Wells Fargo note
and the Wells Fargo mortgage; McMahan objected to PenFed's
raising the doctrine of unjust enrichment for the first time
at trial.
On June 7, 2019, the circuit court entered a judgment in
favor of McMahan. The circuit court concluded that,
"[a]t the time of the post[-]foreclosure sale,
[McMahan] was entitled to $94,741.20 in surplus,
which represents the [post-foreclosure] sale price
of $157,525.00 minus the amount owed on the PenFed
note of $47,714.16 minus the costs associated with
the foreclosure of $2,719.25 minus the costs
associated with the post[-]foreclosure sale of
7
1180804
$12,350.39. Prejudgment interest on $94,741.20 from
July 28, 2016, is calculated to be $15,632.30."
In other words, the circuit court concluded that PenFed could
not exclude from the post-foreclosure-sale surplus proceeds
the $91,256.54 that it paid to Wells Fargo to settle the Wells
Fargo note and the Wells Fargo mortgage. Further, concerning
PenFed's
unjust-enrichment
argument,
the
circuit
court
stated:
"PenFed did raise a defense at trial that
[McMahan] had been unjustly enriched by PenFed's
payment to Wells Fargo; however, PenFed did not
raise unjust enrichment as a defense in any of its
responsive pleadings, nor did PenFed claim unjust
enrichment as a counterclaim. Thus PenFed's defense
of unjust enrichment was waived, and this court need
not have an opinion as to its merit."
PenFed appealed.
Standard of Review
In Ivey v. Estate of Ivey, 261 So. 3d 198, 206 (Ala.
2017), this Court stated:
"'"[W]here the facts before the trial court
are
essentially
undisputed
and
the
controversy involves questions of law for
the court to consider, the court's judgment
carries no presumption of correctness."
Allstate Ins. Co. v. Skelton, 675 So. 2d
377, 379 (Ala. 1996). Questions of law are
reviewed de novo. BT Sec. Corp. v. W.R.
Huff Asset Mgmt. Co., 891 So. 2d 310 (Ala.
2004).'
8
1180804
"Alabama Republican Party v. McGinley, 893 So. 2d
337, 342 (Ala. 2004)."
Discussion
It is undisputed that McMahan is entitled to the entirety
of the surplus proceeds from the post-foreclosure sale; the
parties disagree, however, as to the amount of the surplus
proceeds. McMahan argues that the surplus proceeds equal
$94,741.20; PenFed argues that the surplus proceeds equal
$3,484.66. The difference in the amounts claimed by the
respective parties is $91,256.54, which is the amount PenFed
paid Wells Fargo to satisfy the Wells Fargo note and to cancel
the Wells Fargo mortgage. Thus, the more specific question
raised by this appeal is whether the $91,256.54 that PenFed
paid to settle the Wells Fargo note and the Wells Fargo
mortgage should be excluded from the post-foreclosure-sale
surplus proceeds.
As set forth above, the circuit court concluded that
PenFed could not exclude from the post-foreclosure-sale
surplus proceeds the $91,256.54 that PenFed paid to Wells
Fargo to settle the Wells Fargo note and the Wells Fargo
mortgage. PenFed argued below that the doctrine of unjust
enrichment prohibits McMahan from receiving and retaining the
9
1180804
benefit of PenFed's settlement of the Wells Fargo note and the
Wells Fargo mortgage while also recovering the
$91,256.54 that
PenFed paid to Wells Fargo to settle the Wells Fargo note and
the Wells Fargo mortgage. However, the circuit court refused
to consider PenFed's unjust-enrichment argument. The circuit
court
stated
that
PenFed
waived
its
unjust-enrichment argument
by failing to raise it as a defense in PenFed's responsive
pleadings and by failing to assert the argument as a
counterclaim.
On appeal, PenFed argues that the circuit court erred in
determining that PenFed's unjust-enrichment argument had been
waived. McMahan makes no effort to rebut PenFed's argument.
We agree with PenFed; the circuit court erred in refusing to
consider PenFed's unjust-enrichment argument.
The circuit court's conclusion that PenFed waived its
unjust-enrichment argument is based, in part, on its
characterization of the doctrine of unjust enrichment as an
affirmative defense, which PenFed undisputedly did not raise
in its responsive pleading. PenFed, however, argues that the
circuit court's characterization of the doctrine of unjust
enrichment as an affirmative defense was error. PenFed notes
10
1180804
that "there is no Alabama case law that recognizes unjust
enrichment as an affirmative defense." PenFed's brief, at
p. 17. PenFed appears to be correct; this Court cannot find
any
authority
characterizing the
doctrine
of
unjust
enrichment
as an affirmative defense. Accordingly, PenFed did not waive
the defense of unjust enrichment by failing to plead it in its
responsive pleadings. Instead, PenFed raised the argument to
the circuit court at trial and in its trial brief; the
argument was properly before the circuit court. Cf. Green
Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366, 1369 (Ala.
1988) (holding that a trial court may even consider an
argument raised for the first time in a postjudgment motion).
We note that the circuit court also stated that PenFed
failed to assert unjust enrichment as a counterclaim.
However, it does not appear that PenFed had reason to assert
a counterclaim of unjust enrichment because PenFed was not
seeking to recover any damages; PenFed had retained the
at-issue $91,256.54 and McMahan sought to recover it from
PenFed. Rather, PenFed appropriately raised the doctrine of
unjust enrichment as a defense to McMahan's claims. See Fox
v. Title Guar. & Abstract Co. of Mobile, Inc., 337 So. 2d 1300
11
1180804
(Ala. 1976) (noting that the doctrine of unjust enrichment was
raised as a defense); and Gulf Shores Plantation Condo. Ass'n
v. Resort Conference Centre Bd. of Directors, 184 So. 3d 1040
(Ala. Civ. App. 2015) (noting that a party initially raised
the doctrine of unjust enrichment as a defense in its response
to a summary-judgment motion). McMahan seeks to recover
$91,256.54 from PenFed even though she has already received
and
retains
the
approximately
$112,000
benefit
she
undisputedly received by PenFed's settlement of the Wells
Fargo note and the Wells Fargo mortgage; McMahan does not
dispute that she is seeking a windfall. The circuit court
erred in determining that PenFed waived its unjust-enrichment
argument.
Conclusion
Accordingly, we reverse the circuit court's judgment and
remand the cause, directing the circuit court to consider the
merits of PenFed's unjust-enrichment argument.1
1We note that PenFed raised several other arguments on
appeal concerning the merits of the case. However, our
decision to reverse the circuit court's judgment based on the
court's failure to consider PenFed's unjust-enrichment
argument pretermits discussion of those arguments.
12
1180804
REVERSED AND REMANDED WITH INSTRUCTIONS.
Bolin, Sellers, and Stewart, JJ., concur.
Shaw, Bryan, and Mitchell, JJ., concur in the result.
Parker, C.J., dissents.
Wise, J., recuses herself.
13
1180804
PARKER, Chief Justice (dissenting).
In my view, Pentagon Federal Credit Union ("PenFed") has
not sufficiently argued to this Court that it met the elements
of its unjust-enrichment defense at trial. Moreover, on the
merits, PenFed failed to meet those elements.
As a preliminary matter, I do not believe that PenFed has
sufficiently argued the elements of its unjust-enrichment
defense here. The entirety of PenFed's unjust-enrichment
discussion consists of the following:
"The trial court noted that PenFed argued at trial
that [Susan R.] McMahan had been unjustly enriched
by PenFed's payment to Wells Fargo. PenFed actually
argued that McMahan will be unjustly enriched if she
is awarded the $91,256.54 she now seeks. PenFed's
argument was raised in the context of whether
McMahan suffered any damage. The trial court noted
that an unjust enrichment defense was waived because
it was not raised in a responsive pleading. However,
the trial court cited no authority for that holding,
and there is no Alabama case law that recognizes
unjust enrichment as an affirmative defense, thus
making the trial court's holding in this regard
error and subject to reversal."
PenFed's brief, at pp. 16-17 n.6 (record citations omitted).
Thus, PenFed seems to argue only two things: (1) the trial
court misunderstood the unjust-enrichment defense as relating
to past enrichment rather than future enrichment and (2) the
court
incorrectly
ruled
that
the
unjust-enrichment defense
was
14
1180804
waived. PenFed does not argue that it established the
elements of unjust enrichment. Because PenFed fails to argue
that merits question, PenFed has not sufficiently shown that
the trial court's purported procedural errors were harmful, a
mandatory requirement for reversal. See Bucyrus-Erie Co. v.
Von Haden, 416 So. 2d 699, 702 (Ala. 1982) ("It is a
fundamental principle that the appellant ... has the burden of
proving prejudicial error.").
More importantly, PenFed failed to prove the elements of
unjust enrichment at trial. The doctrine of unjust enrichment
requires proof that "(1) [the recipient] knowingly accepted
and retained a benefit, (2) provided by [the donor], (3) who
ha[d] a reasonable expectation of compensation." Matador
Holdings, Inc. v. HoPo Realty Invs., L.L.C., 77 So. 3d 139,
145 (Ala. 2011). Additionally, the donor must show that the
enrichment was unjust, meaning that "'"(1) the donor of the
benefit ... acted under a mistake of fact or in misreliance on
a right or duty, or (2) the recipient of the benefit ...
engaged in some unconscionable conduct, such as fraud,
coercion, or abuse of a confidential relationship."'" Id. at
146 (quoting Welch v. Montgomery Eye Physicians, P.C., 891 So.
2d 837, 843 (Ala. 2004), quoting in turn Jordan v. Mitchell,
15
1180804
705 So. 2d 453, 458 (Ala. Civ. App. 1997)). "'"In the absence
of mistake or misreliance by the donor or wrongful conduct by
the recipient, the recipient may have been enriched, but he is
not deemed to have been unjustly enriched."'" Id.
The stipulated facts at trial did not establish these
elements. McMahan apparently had no contemporaneous notice of
PenFed's quiet-title action and thus did not knowingly accept
PenFed's payoff of the note secured by the Wells Fargo
mortgage. Furthermore, nothing in the stipulated facts
suggests that PenFed acted by mistake or that McMahan
fraudulently induced PenFed to pay off the note. Thus,
although McMahan benefited from the payoff, PenFed has not
shown that it was entitled to keep that portion of the surplus
under the doctrine of unjust enrichment. Accordingly, I
dissent from the majority's reversal on this issue.
16 | May 8, 2020 |
34bfaad0-5c9b-41dd-a51b-46a3cec74213 | Ex parte Raquel Marie Buchanan. | N/A | 1190530 | 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
1190530
Ex parte Raquel Marie Buchanan. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Raquel Marie Buchanan v. State of Alabama) (Mobile
Circuit Court: CC-16-1245.70; CC-16-1246.70; Criminal Appeals :
CR-18-1100).
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. 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 15th day of May, 2020.
Clerk, Supreme Court of Alabama | May 15, 2020 |
ececcb68-2996-4c7c-91f2-4cd881571faf | Ex parte A.W. | N/A | 1190590 | 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
1190590
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-17-213.02; Civil Appeals :
2181030).
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 |
94128688-ead8-4c33-9756-4cdec61ea343 | Ex parte Taskinnya Larandle Burt. | N/A | 1190562 | 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
1190562
Ex parte Taskinnya Larandle Burt. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL a Pp EALS (In re: Taskinnya Larandle Burt v. State of Alabama) (Madison
Circuit Court: CC-09-5806.60; CC-09-5807.60; Criminal Appeals :
CR-19-0093).
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. 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 15th day of May, 2020.
Clerk, Supreme Court of Alabama | May 15, 2020 |
f3abd63b-8194-4f08-9a45-b878e5dedc2f | Ex parte DeAundra Darnell Smith. | N/A | 1190527 | 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
1190527
Ex parte DeAundra Darnell Smith. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: DeAundra Darnell Smith v. State of Alabama) (Jefferson
Circuit Court: CC-17-2986; CC-17-3281; Criminal Appeals :
CR-18-0846).
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. 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 15th day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 15, 2020 |
14c1af52-a26d-460a-a338-35504877bad5 | Brad Dupree v. PeoplesSouth Bank | N/A | 1180095 | Alabama | Alabama Supreme Court | REL: May 8, 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
____________________
1180095
____________________
Brad Dupree
v.
PeoplesSouth Bank
Appeal from Houston Circuit Court
(CV-14-900757)
MITCHELL, Justice.
Brad Dupree sued PeoplesSouth Bank ("PeoplesSouth"),
alleging that PeoplesSouth wrongfully gave the proceeds of a
$100,000 certificate of deposit to his father, not him. The
Houston Circuit Court entered a judgment for PeoplesSouth
1180095
following a bench trial. Brad now appeals, arguing that he
should have won on his breach-of-contract claim and been
awarded damages in the amount of $100,000. We affirm the
judgment in favor of PeoplesSouth.
Facts and Procedural History
Jimmy Dupree is the father of Brad Dupree. On June 29,
1993, Jimmy deposited $100,000 with Peoples Community Bank,
now known as PeoplesSouth, and, in return, received a
nonnegotiable certificate of deposit issued in the names of
"Brad Dupree and Jimmy Dupree" ("the CD"). Handwritten edits
on the CD later reversed the order of the names to "Jimmy
Dupree and Brad Dupree" and also replaced Brad's taxpayer ID
number with Jimmy's taxpayer ID number. A handwritten note,
dated December 16, 1993, on the back of the CD stated "changed
order of names to report interest under Jimmy's SS#." No
evidence was offered as to who made the handwritten changes,
and they were not initialed by either Jimmy or Brad.
Brad was a minor at the time the CD was issued and did
not contribute any money to the purchase of the CD. He
testified that he did not recall ever seeing or signing the
CD. All interest derived from the CD was paid to Jimmy, and
2
1180095
he, not Brad, reported that interest as income on his tax
returns. After the CD was issued, it was immediately pledged
to PeoplesSouth by Jimmy as collateral, along with five other
$100,000 certificates of deposit, for a business loan.
PeoplesSouth maintained possession of the CD from its
issuance
until Jimmy withdrew the funds.
A. The 2010 Action
In November 2010, before filing this case against
PeoplesSouth, Brad, his mother, and his stepbrother sued Jimmy
in the Houston Circuit Court, alleging that Jimmy had
wrongfully converted certain personal property, including the
CD ("the 2010 action"). Both sides filed competing motions
for a summary judgment. Rather than ruling on the motions for
a summary judgment, however, it appears that the trial court
ordered the parties to mediate.
On November 20, 2012, while the 2010 action was pending,
Jimmy went to PeoplesSouth and cashed in the CD without
notifying Brad. PeoplesSouth issued a cashier's check payable
to the order of "Jimmy Dupree or Brad Dupree" for the amount
of the CD less amounts set off by PeoplesSouth related to
Jimmy's business loan. Jimmy cashed the check and then spent
3
1180095
the funds. Brad learned during mediation of the 2010 action
that Jimmy had cashed in the CD and was advised by the
mediator to sue PeoplesSouth.
An order from the 2010 action, dated November 21, 2014,
disposed of that case. That order stated: "The property
issues in this case were resolved by mediation. Motion for
summary judgment granted." It is not clear, however, which
party's summary-judgment motion was granted.
B. The PeoplesSouth Litigation
On December 1, 2014, nine days after the order was
entered in the 2010 action, Brad sued PeoplesSouth, asserting
claims for breach of the Uniform Commercial Code, breach of
contract, money had and received, negligence, and wantonness
and seeking restitution. PeoplesSouth answered the complaint
and added Jimmy as a third-party defendant. All parties filed
motions for a summary judgment, which were all denied. The
case then proceeded to a bench trial.
At trial, Brad testified that the CD was a gift to him
from Jimmy. Brad's mother and stepbrother also testified that
Jimmy told them that he added Brad's name to the CD to provide
for Brad in the event something happened to Jimmy or Brad’s
4
1180095
mother. Jimmy testified, however, that the only purpose of
adding Brad's name to the CD was to provide additional
protection for the investment under Federal Deposit Insurance
Corporation ("FDIC") regulations.
After hearing all the evidence, the trial court entered
a judgment in favor of PeoplesSouth and Jimmy, holding that
Brad's claims were barred by the doctrine of res judicata
based on the order entered in the 2010 action. The trial
court also held, as an alternative basis for its judgment in
favor of PeoplesSouth, that there was no breach of contract
because Jimmy never made an inter vivos gift of the CD to
Brad.
Brad does not appeal the judgment in favor of Jimmy.
Brad appeals only the judgment in favor of PeoplesSouth on his
breach-of-contract claim.
Standard of Review
We review final judgments where ore tenus evidence has
been taken by a court in a bench trial, not a jury trial,
based on the following rule, referred to as the ore tenus
rule:
"'[W]hen a trial court hears ore tenus
testimony, its findings on disputed facts are
5
1180095
presumed correct and its judgment based on those
findings will not be reversed unless the judgment
is palpably erroneous or manifestly unjust.'
Philpot v. State, 843 So. 2d 122, 125 (Ala. 2002).
'"The presumption of correctness, however, is
rebuttable and may be overcome where there is
insufficient evidence presented to the trial court
to sustain its judgment."' Waltman v. Rowell, 913
So. 2d 1083, 1086 (Ala. 2005) (quoting Dennis v.
Dobbs,
474
So.
2d
77,
79
(Ala.
1985)).
'Additionally, the ore tenus rule does not extend
to cloak with a presumption of correctness a trial
judge's conclusions of law or the incorrect
application of law to the facts.' Id."
Fadalla v. Fadalla, 929 So. 2d 429, 433 (Ala. 2005). See also
Hall v. Mazzone, 486 So. 2d 408, 410 (Ala. 1986) ("The ore
tenus rule is grounded upon the principle that when the trial
court hears oral testimony it has an opportunity to evaluate
the demeanor and credibility of witnesses."). Although we
must presume that the trial court's findings of fact here,
which are based on ore tenus evidence, are correct, to the
extent we are reviewing the trial court's conclusions of law
or its application of the law to the facts, our review is de
novo. Fadalla, 929 So. 2d at 433.
In reviewing the trial court's judgment, we are not
limited to the reasoning that the trial court applied but can
affirm its judgment for any legal, valid reason. Brannan v.
Smith, 784 So. 2d 293, 297 (Ala. 2000). Further, "a correct
6
1180095
decision will not be disturbed even if the court gives the
wrong reasons." Boykin v. Magnolia Bay, Inc., 570 So. 2d 639,
642 (Ala. 1990).
Analysis
We affirm the judgment in favor of PeoplesSouth, but do
so on different grounds than those upon which the trial court
principally relied in entering it. The trial court entered a
judgment for PeoplesSouth based on the doctrine of res
judicata, while also providing several alternative bases for
its judgment if the doctrine of res judicata proved to be
inapplicable. Having reviewed the law and the record in this
case, we cannot agree that the doctrine of res judicata barred
Brad's claims against PeoplesSouth. Nevertheless, as
discussed below, PeoplesSouth was entitled to prevail on
Brad's breach-of-contract claim because there was sufficient
evidence from which the trial court could conclude that Brad
is unable to prove any damages.
A. Res Judicata
PeoplesSouth asserted the doctrine of res judicata as an
affirmative defense and had the burden of proving all four
elements of that defense. See Stewart v. Brinley, 902 So. 2d
7
1180095
1, 11 (Ala. 2004); see also Batchelor-Robjohns v. United
States, 788 F.3d 1280, 1285 (11th Cir. 2015) ("The party
asserting res judicata bears the burden of showing that the
later-filed [claim] is barred."). "The essential elements of
res judicata are (1) a prior judgment on the merits, (2)
rendered by a court of competent jurisdiction, (3) with
substantial identity of the parties, and (4) with the same
cause of action presented in both actions." Equity Res.
Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala. 1998).
Brad argues that the first element of res judicata was
not met because no prior judgment on the merits was presented
to the trial court. We agree. "'A judgment is on the merits
when it amounts to a decision as to the respective rights and
liability of the parties ....'" Mars Hill Baptist Church of
Anniston, Alabama, Inc. v. Mars Hill Missionary Baptist
Church, 761 So. 2d 975, 978 (Ala. 1999) (quoting 50 C.J.S.
Judgment § 728 (1997)). PeoplesSouth submitted two documents
as evidence of a prior judgment on the merits. The first
document was a copy of the initial complaint in the 2010
action in which Brad alleged that Jimmy had wrongfully
converted the CD. The second document was an order entered in
8
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the 2010 action after competing summary-judgment motions were
filed in that action; the motions themselves, however, were
not provided to the trial court. Despite that omission,
PeoplesSouth argues that the order from the 2010 action had a
preclusive effect and served to bar Brad's claim in this case.
PeoplesSouth's res judicata argument is unavailing. The
order from the 2010 action merely states: "The property issues
in this case were resolved by mediation. Motion for summary
judgment granted." The order did not indicate the party or
parties for whom summary judgment was entered. Nor did the
order declare the respective rights and liabilities of the
parties or state upon what basis the judgment was entered.
The rights and liabilities of each party following the 2010
action are not clear from the evidence submitted to the trial
court; therefore, PeoplesSouth does not satisfy the first
element necessary to establish the defense of res judicata.
Accordingly, its res judicata defense fails.
B. Breach-of-Contract Claim
We now consider the merits of Brad's breach-of-contract
claim against PeoplesSouth. "'The elements of a breach-of-
contract claim under Alabama law are (1) a valid contract
9
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binding the parties; (2) the plaintiffs' performance under the
contract; (3) the defendant's nonperformance; and (4)
resulting damages.'" Shaffer v. Regions Fin. Corp., 29 So. 3d
872, 880 (Ala. 2009) (quoting Reynolds Metals Co. v. Hill, 825
So. 2d 100, 105 (Ala. 2002)). To obtain a reversal of the
trial court's judgment on his breach-of-contract claim, Brad
must demonstrate a degree of error by the trial court
sufficient to overcome the ore tenus rule. Fadalla, 929 So.
2d at 433 (noting that a trial court's judgment based on ore
tenus testimony will be reversed only if the judgment is
"palpably erroneous or manifestly unjust"). That is a high
bar, and Brad does not clear it here.
It is first necessary to determine whether the trial
court
properly
considered
extrinsic
evidence
when
adjudicating
Brad's breach-of-contract claim. Alabama law does not allow
courts to look beyond the four corners of an instrument unless
the instrument contains an ambiguity. Kershaw v. Kershaw, 848
So. 2d 942, 955 (Ala. 2002). Generally speaking, two types of
ambiguity may arise as to an instrument: patent or latent. A
patent ambiguity is apparent on the face of the instrument
when the language used is "defective, obscure or insensible."
10
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Jacoway v. Brittain, 360 So. 2d 306, 308 (Ala. 1978). A
latent ambiguity, by contrast, exists when the "writing
appears clear and unambiguous on its face, 'but there is some
collateral matter which makes the meaning uncertain.'"
Medical Clinic Bd. of City of Birmingham-Crestwood v. Smelley,
408 So. 2d 1203, 1206 (Ala. 1981) (quoting Ford v. Ward, 272
Ala. 235, 240, 130 So. 2d 380, 384 (1961)). In making the
threshold determination of whether there is a latent
ambiguity, a court may consider extrinsic evidence. Brown v.
Mechanical Constructors, Inc. v. Centennial Ins. Co, 431 So.
2d 932, 942 (Ala. 1983). If it determines that a latent
ambiguity exists, the court may then consider and rely upon
extrinsic evidence to determine the true intentions of the
parties to the contract. Mass Appraisal Servs., Inc. v.
Carmichael, 404 So. 2d 666, 672 (Ala. 1981).
It is clear in this case that the trial court properly
considered extrinsic evidence to determine whether there was
a latent ambiguity in the CD with respect to the ownership and
beneficiaries of the CD. Although Brad argues that the trial
court should not have considered any extrinsic evidence to
determine how to enforce the terms of the CD, Brad himself
11
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went beyond the four corners of the CD when he made the
allegation in his complaint that Jimmy made a gift to him of
the CD. Conversely, other extrinsic evidence, including
handwritten changes on the face of the CD that resulted in
attributing all interest income to Jimmy, Brad's testimony
that he did not recall signing the CD, and the lack of any
writings on or related to the CD regarding Jimmy's donative
intent, indicated that there had been no inter vivos gift of
the CD to Brad. With this body of conflicting extrinsic
evidence before it, the trial court had a sufficient basis
from which to find that the CD contained a latent ambiguity,
and, thus, the court was entitled to consider additional
extrinsic evidence in an effort to ascertain the true
intentions of the parties and to adjudicate the merits of
Brad's breach-of-contract claim.
The party asserting a breach-of-contract claim must prove
every element of that claim; the failure to prove any one
element necessarily results in a judgment for the opposing
party. Ex parte Steadman, 812 So. 2d 290, 295 (Ala. 2001).
Thus, even if there was undisputed evidence establishing a
valid contract between Brad and PeoplesSouth -– or even a
12
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valid contract between Jimmy and PeoplesSouth to which Brad
was a third-party beneficiary –- and that Brad and Jimmy
performed their obligations under that contract but that
PeoplesSouth failed to similarly do so, Brad still would not
be entitled to relief unless he also established that he was
damaged by PeoplesSouth's nonperformance.
See State Farm Fire
& Cas. Co. v. Williams, 926 So. 2d 1008, 1018 (Ala. 2005)
(explaining that the defendant was entitled to a judgment in
its favor because the plaintiffs had failed to prove "an
essential element of their breach-of-contract claims –-
damages").
As explained below, the trial court heard ore tenus
evidence from which it could have concluded that Brad suffered
no
damage
in
connection
with
PeoplesSouth's
alleged
nonperformance, and, for that reason, the judgment entered in
favor of PeoplesSouth is due to be affirmed. The issue of
whether Brad suffered damage turns on whether he had any
ownership interest in the CD or was otherwise entitled to any
of its proceeds. The amount of damages in a breach-of-
contract action is generally the "'sum which would place the
injured party in the same condition he would have occupied if
13
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the contract had not been breached.'" Steadman, 812 So. 2d at
295 (quoting Brendle Fire Equip., Inc. v. Electronic Eng'rs,
Inc., 454 So. 2d 1032, 1034 (Ala. Civ. App. 1984)). Brad
argues that he had rights to the proceeds of the CD, either as
an owner or as a third-party beneficiary, and that his damages
resulting from the alleged breach were $100,000, the full
amount on the face of the CD. PeoplesSouth argues, on the
other hand, that Brad is entitled to no damages because, it
says, Brad was neither an owner nor a third-party beneficiary
of the CD. Neither party asserts that Brad may have been
entitled to an intermediate amount of damages.
This Court analyzed similar circumstances in Messer v.
Kennedy, 574 So. 2d 788 (Ala. 1991). In Messer, several
certificates of deposit were issued in the name of an 84-year
old man ("the uncle") and his adult nephew. All the funds
used to purchase the certificates of deposit were provided by
the uncle or were intended for his benefit; the nephew put
nothing toward the purchase of the certificates. The nephew
kept possession of the certificates and had access to the
interest generated by the funds because it was deposited in a
joint account owned by him and the uncle. At some point, the
14
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uncle's adult children sought to wrest control of their
father's financial affairs from the nephew. When the nephew
resisted, the uncle filed suit seeking, among other remedies,
rescission or reformation of the certificates. The trial
court entered a partial summary judgment in favor of the
uncle, finding that he was the rightful owner and ordering the
nephew to return the certificates to the uncle.
This Court affirmed the judgment on appeal. In doing so,
it expressly carried forward a principle in Ex parte Lovett,
450 So. 2d 116, 118 (Ala. 1984), and held that "where two
parties' names appear on a CD and the funds used to purchase
the CD belonged to one of the parties, unless there is
evidence that the party whose funds were used to purchase the
CD intended to make a gift or create a trust, the other
party's claim to the funds must fail." 574 So. 2d at 790.
Although Messer and Lovett are factually distinguishable
from this case, the principle applied in Messer and
Lovett applies with equal force here. Because Brad
undisputedly did not furnish any of the funds used to purchase
the CD and because he is not a trustee over those funds, the
only way he could prevail is if he established that the CD was
15
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an inter vivos gift to him from Jimmy. To prove the existence
of such a gift, Brad was required to satisfy, by clear and
convincing evidence, the following three elements: "[a]n
intention to give and surrender title to, and dominion over,
the property; delivery of the property to the donee; and
acceptance by the donee." First Alabama Bank of Montgomery v.
Adams, 382 So. 2d 1104, 1110 (Ala. 1980) (quoting Garrison v.
Grayson, 284 Ala. 247, 249, 224 So. 2d 606, 608 (1969)).
The trial court properly found that Brad did not carry
his burden of proving that an inter vivos gift was made.
First, there was an absence of clear and convincing evidence
indicating that Jimmy intended to give and surrender title to,
and dominion over, the CD to Brad. If anything, the evidence
indicated the opposite. It is undisputed that, immediately
after purchasing the CD, Jimmy pledged the CD, along with five
other certificates of deposit, as collateral for a business
loan from PeoplesSouth. Once Jimmy pledged the CD as
collateral, he did not have the authority to surrender the
funds to Brad or the ability to deliver the CD to Brad. It is
also undisputed that Jimmy received all interest payments on
the CD and paid income tax on those financial gains. Further,
16
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Jimmy testified that putting Brad's name on the CD was not an
indication that he was making a gift to Brad; Jimmy testified
that it was merely an effort to ensure that there would be
additional coverage under FDIC regulations for the funds that
he had on deposit with PeoplesSouth.
Second, there is no evidence indicating that Jimmy ever
delivered the CD to Brad. And even if Jimmy had wanted to
make such a delivery, he was unable to do so because he had
pledged the CD as collateral to PeoplesSouth for his business
loan, and the bank had taken possession of the CD in
accordance with Jimmy's pledge.
Finally, without surrender or delivery of the CD, there
could be no acceptance by Brad. Thus, the trial court
properly held that Brad failed to meet his burden of proving
that the CD was an inter vivos gift.
Without any rights in the CD by virtue of an inter vivos
gift, Brad cannot show he was damaged by PeoplesSouth's
alleged nonperformance, and he is therefore unable to prevail
on his breach-of-contract claim. For that reason, the
judgment in favor of PeoplesSouth must be affirmed, and it is
unnecessary to address any other issue.
17
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AFFIRMED.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur
in the result.
18
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MENDHEIM, Justice (concurring in the result).
I agree with the main opinion that the trial court's
judgment in favor of PeoplesSouth Bank
("PeoplesSouth") is due
to be affirmed. I also agree that the trial court's
application of the doctrine of res judicata in this case was
not appropriate because there is no indication in the previous
judgment as to in whose favor the judgment was entered or as
to what claims were addressed. However, I disagree with the
main opinion's approval of the trial court's consideration of
extrinsic
evidence.
Specifically, the
main
opinion
highlights
the trial court's finding that there was a latent ambiguity in
the certificate of deposit ("CD") with respect to the
ownership and beneficiaries of the CD. I do not believe that
any alleged latent ambiguity in the CD is relevant to Brad
Dupree's claim of breach of contract against PeoplesSouth --
the bank -- as opposed to any claims he may have asserted
against Jimmy Dupree, which are not before us in this appeal.
Whether there is a latent ambiguity in the CD simply is not
relevant to Brad's claim against PeoplesSouth.
The main opinion views the appropriateness of examining
extrinsic evidence as
relevant to discussing whether Jimmy had
19
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intended the CD as an inter vivos gift to Brad, which, in
turn, allows for a discussion of the last element of a breach-
of-contract claim, i.e., whether Brad sustained any damage as
a result of PeoplesSouth's alleged breach. I write to express
my view that Brad's breach–of-contract claim must
fail because
Brad did not establish the first element of such a claim: the
existence of a contract between the relevant parties. See,
e.g., Avis Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111,
1118 (Ala. 2003) (noting that "[o]ne of the elements of a
breach-of-contract claim under Alabama law is
the
existence of
'a valid contract binding the parties'" (quoting Reynolds
Metals Co. v. Hill, 825 So. 2d 100, 105 (Ala. 2002)).
As both parties to this appeal have observed: "A
certificate of deposit represents a contractual relationship
between the issuer of the certificate and the purchaser of it.
Failure of the issuer to make good on its contractual duty to
pay is a breach of the contract." SouthTrust Bank v. Donely,
925 So. 2d 934, 942 (Ala. 2005) (emphasis added). See also
Montgomery v. Smith, 226 Ala. 91, 95, 145 So. 822, 826 (1933).
(explaining that "[a] certificate of deposit is defined to be
a written acknowledgment by a bank of the receipt of a sum of
20
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money on deposit which it promises to pay to the depositor, to
his order, or to some other person or his order, whereby the
relation of debtor and creditor between the bank and the
depositor is created"). It is undisputed that Jimmy purchased
the CD from PeoplesSouth solely with his own funds and that
Brad never possessed the CD or received any interest from it.
Therefore, a contract existed between Jimmy and PeoplesSouth
that Jimmy had a right to enforce. Brad argues that he is a
third-party beneficiary to that contract, but he does not cite
any Alabama law establishing that a payee on a CD is a third-
party beneficiary with a contractual right that is enforceable
against the issuer.1 Cf. Parke State Bank v. Akers, 659
N.E.2d 1031, 1034 (Ind. 1995) ("Certificates of deposit are
contracts, and can create third-party beneficiary rights in
those parties identified with rights of survivorship.");
1In the trial court, Brad noted that a portion of the
Uniform Commercial Code ("UCC") provides that "[i]f an
instrument
is
payable
to
two
or
more
persons
not
alternatively, it is payable to all of them and may be
negotiated, discharged, or enforced only by all of them." §
7-3-110(d), Ala. Code 1975. However, the trial court
concluded that, because the CD conspicuously stated that it
was "Non-Negotiable," "the CD is not a negotiable instrument
and [Brad's] claim for breach of § 7-3-110 fails as § 7-3-110
only applies to negotiable instruments." Brad does not
present an argument based on the UCC in this appeal.
21
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Peoples Bank v. Baxter, 41 Tenn. App. 710, 723, 298 S.W.2d
732, 738 (1956) ("A donee third-party beneficiary of a
certificate of deposit may enforce his rights in a
jurisdiction which holds that such contracts are valid.").
Likewise, the principle upon which the main opinion bases
its rationale -- that "where two parties' names appear on a CD
and the funds used to purchase the CD belonged to one of the
parties, unless there is evidence that the party whose funds
were used to purchase the CD intended to make a gift or create
a trust, the other party's claim to the funds must fail" --
addressed a dispute between parties claiming ownership of a CD
and its funds, not a dispute between an alleged beneficiary of
a CD and the issuer. Messer v. Kennedy, 574 So. 2d 788, 790
(Ala. 1991). This distinction is critical. Indeed, Messer
involved a dispute between the two named parties on a
certificate of deposit, and the other case the main opinion
cites for this proposition, Ex parte Lovett, 450 So. 2d 116,
118 (Ala. 1984), was a suit by a daughter against her mother's
estate alleging ownership of the funds from some certificates
of deposit. The principle applied in Lovett and Messer does
not establish a contractual duty by an issuer to pay
22
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certificate-of-deposit funds to a particular party named on
the certificate of deposit. Thus, as the trial court concluded
in one of its alternative rationales: "[Brad] has failed to
prove a contractual relationship between [PeoplesSouth] and
him and therefore has failed to prove that [PeoplesSouth]
breached a contract with him." Accordingly, I caution that I
do not believe the Court endorses the main opinion's expansion
of the Lovett/Messer principle to include the issuer of a
certificate of deposit, as opposed to the individuals named on
the certificate of deposit in question.
Furthermore, as the trial court also explained, it
appears that the Uniform Multiple Persons Account Act, §
5-24-1 et seq., Ala. Code 1975 ("the UMPAA"), dictated that
PeoplesSouth was not liable to Brad for paying the funds of
the CD to Jimmy upon Jimmy's request.2 The UMPAA is divided
2In his initial appellate brief, Brad argues that
PeoplesSouth waived this affirmative defense by not raising
the UMPAA in its answer. However, as PeoplesSouth notes, it
did raise the defense of the UMPAA in its summary-judgment
motion, and Brad did not object to this assertion on the
ground of waiver. In fact, Brad addressed PeoplesSouth's
UMPAA argument on the merits in his response to its summary-
judgment motion. Accordingly, the defense was revived, and
the trial court did not err in discussing it. See, e.g., Smith
v. Combustion Res. Eng'g, Inc., 431 So. 2d 1249, 1251 (Ala.
1983) ("'If an affirmative defense is not pleaded it is waived
to the extent that the party who should have pleaded the
23
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into four articles: Article 1, §§ 5-24-1 through 5-24-6;
Article 2, §§ 5-24-11 through 5-24-15; Article 3, §§ 5-24-21
through 5-24-27; and Article 4, §§ 5-24-31 through 5-24-34.
The UMPAA defines a "multiple party account" as "an account
payable on request to one or more of two or more parties,
whether or not a right of survivorship is mentioned," §
5-24-1(8), and it defines an "account" as "a contract of
deposit between a depositor and a financial institution, and
includes a checking account, savings account, time deposit,
certificate of deposit, and share account." § 5-24-1(1)
(emphasis added). Section 5-24-6 explains that
"[t]he provisions of Article 2 concerning
beneficial ownership as between parties or as
between parties and beneficiaries apply only to
controversies between those persons and their
creditors and other successors, and do not apply to
the right of those persons to payment as determined
by the terms of the account. Article 3 governs the
liability
and
set-off
rights
of
financial
institutions that make payments pursuant to it."
Thus, the UMPAA draws a clear distinction between claims
between parties as to ownership of the subject account,
affirmative defense may not introduce evidence in support
thereof, unless the adverse party makes no objection in which
case the issues are enlarged, or unless an amendment to set
forth the affirmative defense is properly made.'" (quoting 2A
J. Moore, Federal Practice § 8.27[3] at 8–251 (2d ed. 1948)
(emphasis added))).
24
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addressed in Article 2, and claims by parties against the
financial institution that makes payments pursuant to the
subject account, addressed in Article 3. Section 5-24-11(b),
in Article 2, echoes the principle enunciated in Lovett and
Messer: "During the lifetime of all parties, an account
belongs to the parties in proportion to the net contribution
of each to the sums on deposit, unless there is clear and
convincing evidence of a different intent." But § 5-24-11
does not speak to a financial institution's liability toward
a party on the subject account.
Section 5-24-21 authorizes a financial institution to
"enter into a contract of deposit for a multiple-party account
to the same extent it may enter into a contract of deposit for
a single-party account." Section 5-24-22 provides, in part:
"A financial institution, on request, may pay
sums on deposit in a multiple-party account to:
"(1) One or more of the parties,
whether or not another party is disabled,
incapacitated, or deceased when payment is
requested and whether or not the party
making the request survives another party
...."
The unofficial comment to this section notes that "[a]
financial institution that makes payment on proper request
25
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under this section [is] protected unless the financial
institution has received written notice not to."
Section 5-24-26 spells out a financial institution's
liability in detail:
"(a) Payment made pursuant to this chapter in
accordance with the type of account discharges the
financial institution from all claims for amounts so
paid, whether or not the payment is consistent with
the beneficial ownership of the account as between
parties, beneficiaries, or their successors. Payment
may be made whether or not a party, beneficiary, or
agent is disabled, incapacitated, or deceased when
payment is requested, received, or made.
"(b)
Protection
of
a
financial
institution
under
this section does not affect the rights of parties
in disputes between themselves or their successors
concerning the beneficial ownership of sums on
deposit in accounts or payments made from accounts."
(Emphasis added.) Section 5-24-26(b) once again emphasizes
that a distinction exists between the financial institution's
liability regarding payment on the account and the rights of
the parties in disputes between themselves concerning
ownership of the account, while § 5-24-26(a) makes it clear
that the financial institution is not liable for "payment made
pursuant to this chapter in accordance with the type of
account" at issue.
26
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In his reply brief, Brad argues that the UMPAA does not
apply because, he says, the payment to Jimmy was not made
pursuant to a proper "request." See § 5-24-22. Section 5-24-
1(15) defines a "request" in relevant part as "a request for
payment complying with all terms of the account, including
special requirements concerning necessary signatures and
regulations of
the
financial
institution."
Section
5-24-1(19)
states that "terms of the account" "includes the deposit
agreement and other terms and conditions, including the form,
of the contract of deposit." Brad contends that the request
for payment by Jimmy did not comply with the terms of the
account because "[a]ny 'request' for payment in the absence of
Brad Dupree was a faulty request." Brad's reply brief, p. 8.
This argument against the application of the UMPAA is
unavailing, however, because Brad did not raise it in the
trial court or in his initial appellate brief. In the trial
court, Brad argued that the UMPAA did not apply because it
"only applies to claims by third parties." (Emphasis
omitted.) In his initial appellate brief, Brad argued only
that PeoplesSouth had waived the affirmative defense of the
UMPAA. Therefore, Brad's new argument concerning the
27
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nonapplicability of the UMPAA is waived. 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").
Moreover,
deposition
testimony
from
PeoplesSouth
personnel indicated that the payment was made in accordance
with the terms of accounts at PeoplesSouth. Debbie Kirkland,
a customer-service representative who handled the payment,
testified that she was trained to treat all joint accounts as
"or" accounts rather than "and" accounts, meaning any party to
the account could withdraw funds, unless special written
instructions providing otherwise were given to PeoplesSouth.
There were no such instructions noted in the computer system
for the CD. PeoplesSouth assistant compliance officer Cindy
Worsley also testified that in 2009 PeoplesSouth changed its
computer systems such that they no longer recognized accounts
with the conjunction "and"; all joint accounts were treated as
not having conjunctions. In short, the payment to Jimmy was
made according to the terms of the account, which includes the
regulations of the financial institution. Therefore, under §
5-24-26, PeoplesSouth was discharged from any liability with
28
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respect to any party on the CD. This discharge did not affect
any claim to ownership of the CD funds Brad may have had
against Jimmy, but, as I have noted, Brad did not appeal the
trial court's judgment with respect to any of those claims.
In sum, because I believe rationales not addressed by the
main opinion better explain why the trial court's judgment
should be affirmed, I concur in the result of the main
opinion.
Parker, C.J., concurs.
29 | May 8, 2020 |
200427e3-0dfd-4cb0-bd70-4b6f419cf3c5 | Ex parte Rebecca Majors as personal representative of the Estate of Wanda Reuben, deceased. | N/A | 1180845 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 17, 2020
1180845
Ex parte Rebecca Majors as personal representative of the Estate of Wanda
Reuben, deceased. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Rebecca
Majors as personal representative of the Estate of Wanda Reuben, deceased. v.
East Glen LLC, et al.) (Jefferson Circuit Court: CV-19-900550).
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 17th day of April, 2020.
/ra | April 17, 2020 |
8f29e9e9-7463-4c72-b1e5-33f5605c5f09 | Ex parte Reginald Levon Anderson. | N/A | 1190495 | 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
1190495
Ex parte Reginald Levon Anderson. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Reginald Levon Anderson v. State of Alabama)
(Tuscaloosa Circuit Court: CC-18-2156; Criminal Appeals :
CR-18-0942).
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. Parker, C.J. - Bolin, Wise, Sellers, and Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 15th day of May, 2020.
Clerk, Supreme Court of Alabama | May 15, 2020 |
96f3a280-fdca-4109-a7e6-3fe8948032e3 | Michael Moore, Wesley Farmer, and Briana DeBose v. City of Center Point and Redflex Traffic Systems, Inc. | N/A | 1171151 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
August 28, 2020
1171151
Michael Moore, Wesley Farmer, and Briana DeBose v. City of Center Point and
Redflex Traffic Systems, Inc. (Appeal from Jefferson Circuit Court, Birmingham Division:
CV-18-900527).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on August 28, 2020:
Application Overruled. No Opinion. Bolin, J. - Parker, C.J., and Bryan, Sellers, Mendheim,
and Stewart, JJ., concur. Shaw, Wise, and Mitchell, JJ., recuse themselves.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on May 1, 2020:
Affirmed. Bolin, J. - Bryan, Sellers, and Stewart, JJ., concur. Parker, C.J., and Mendheim, J.,
concur in the result. Shaw, Wise, and Mitchell, JJ., recuse themselves.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 28th day of August, 2020.
Clerk, Supreme Court of Alabama | May 1, 2020 |
a2508449-0634-4693-bd17-fa8feb75594a | Ex parte Brenda K. Milne. | N/A | 1190397 | 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 1, 2020
1190397
Ex parte Brenda K. Milne. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: Tyler Montana Jul Prescott v. Brenda K. Milne) (Mobile Circuit Court:
CV-18-901458; Civil Appeals :
2180270).
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 1, 2020:
Writ Denied. No Opinion. (Special Writing) Bolin, J. - Shaw, Wise, Bryan, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur. Parker, C.J., concurs specially.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 1st day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 1, 2020 |
4c4eba9f-3dae-4de2-8974-fcfd374544e0 | The Alabama Great Southern Railroad Company v. Progress Rail Services Corporation | N/A | 1180259 | Alabama | Alabama Supreme Court | Rel: April 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1180259
The Alabama Great Southern Railroad Company v. Progress Rail
Services Corporation (Appeal from Jefferson Circuit Court:
CV-16-902075).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Bolin, Sellers, and Mitchell, JJ.,
concur.
Wise, J., recuses herself. | April 10, 2020 |
e97c525b-e070-4493-8934-c599fc2f6a76 | Ex parte Trista Lynn Rogers. | N/A | 1190166 | 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
April 10, 2020
1190166
Ex parte Trista Lynn Rogers. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: Trista Lynn Rogers v. Robert Rogers M
I) (Franklin Circuit Court:
DR-14-900007.01; Civil Appeals :
2170980).
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 April 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 April, 2020.
l i t a
Clerk, Supreme Court of Alabama | April 10, 2020 |
82e53eee-f14b-4871-a18f-004fede28661 | Ex parte Tristen Lloyd Thrasher. | N/A | 1190550 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 12, 2020
1190550
Ex parte Tristen Lloyd Thrasher. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Tristen Lloyd Thrasher v. State of Alabama) (Mobile Circuit
Court: CC-18-4497; Criminal Appeals : CR-18-1283).
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 |
f4c38fc8-6e68-40cf-8f75-cf9d6f960427 | 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 | REL: April 24, 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
____________________
1190092
____________________
Tamikia Everheart
v.
Rucker Place, LLC, and Savoie Catering, LLC
Appeal from Jefferson Circuit Court
(CV-16-903634)
____________________
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)
____________________
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)
____________________
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)
SELLERS, Justice.
2
1190092, 1190102, 1190110, 1190116
Tamikia Everheart; Cardell Coachman, a deceased minor, by
and through his mother and next friend Johnitia Coachman;
Michael Coleman, as administrator of the estate of Diane
McGlown, deceased; and Mary W. Weatherspoon and Elizabeth W.
McElroy, as administratrix of the estate of Jakobie E.
Johnson,
a
deceased
minor
(hereinafter
referred
to
collectively as
"the
plaintiffs"),
filed
four
separate
appeals
from summary judgments entered in their separate cases by the
Jefferson Circuit Court in favor of Rucker Place, LLC, and
Savoie Catering, LLC. We consolidated the appeals for review,
and we affirm the judgments.
While attending a Christmas party in December 2015 at the
residence of Bruce McKee and Dale McKee, Jason Bewley consumed
alcohol. Later, he was driving while allegedly intoxicated
and was involved in an accident with a vehicle occupied by
five individuals. As a result of the accident, two of those
individuals were injured and the other three were killed.
The plaintiffs filed four separate actions against
Bewley, alleging negligence and wantonness in the
operation of
his vehicle. The plaintiffs also asserted dram-shop claims
against Dale McKee; the estate of Bruce McKee, who died
3
1190092, 1190102, 1190110, 1190116
shortly after the Christmas party; Savoie Catering, LLC, which
had catered the McKees' party and had served guests alcohol
that had been provided by the McKees; and Rucker Place, LLC,
which operates a catering business with connections to Savoie
but which claims it had no involvement with the McKees'
party.1
The trial court consolidated the actions under Rule
42(a), Ala. R. Civ. P. Eventually, the plaintiffs voluntarily
dismissed their claims against the McKees and proceeded
against Bewley, Savoie, and Rucker Place. The plaintiffs
settled their claims against Bewley, and the trial court
entered summary judgments in favor of Savoie and Rucker Place.
These appeals followed.2
"We apply the same standard of review the trial
court used in determining whether the evidence
presented to the trial court created a genuine issue
1The alcohol served at the McKees' Christmas party had
been purchased by the McKees from a third party. Savoie's
employees allegedly served as bartenders. Only for purposes
of these appeals, we presume that Savoie's employees served
Bewley.
2The plaintiffs also asserted claims against companies
with which Bruce McKee had been associated. Those claims,
however, were voluntarily dismissed. One of the plaintiffs
also asserted claims against two companies owned by Bewley.
The trial court entered a default judgment against those
companies. That judgment is not at issue on appeal.
4
1190092, 1190102, 1190110, 1190116
of material fact. Jefferson County Comm'n v. ECO
Preservation Services, L.L.C., 788 So. 2d 121 (Ala.
2000) (quoting Bussey v. John Deere Co., 531 So. 2d
860, 862 (Ala. 1988)). Once a party moving for a
summary judgment establishes that no genuine issue
of material fact exists, the burden shifts to the
nonmovant to present substantial evidence creating
a genuine issue of material fact. Bass v. SouthTrust
Bank of Baldwin County, 538 So. 2d 794, 797–98 (Ala.
1989)."
Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792
So. 2d 369, 372 (Ala. 2000). Questions of law are reviewed de
novo. Van Hoof v. Van Hoof, 997 So. 2d 278, 286 (Ala. 2007).
The Dram Shop Act provides, in pertinent part:
"Every wife, child, parent, or other person who
shall be injured in person, property, or means of
support by any intoxicated person or in consequence
of the intoxication of any person shall have a right
of action against any person who shall, by selling,
giving, or otherwise disposing of to another,
contrary to the provisions of law, any liquors or
beverages, cause the intoxication of such person for
all damages actually sustained, as well as exemplary
damages."
§ 6-5-71(a), Ala. Code 1975 (emphasis added).
In arguing that the alcohol served at the McKees' party
was "giv[en], or otherwise dispos[ed] of to another, contrary
to the provisions of law," the plaintiffs have relied on a
regulation promulgated by the Alabama Beverage Control Board
("the ABC Board"), which provides: "No ABC Board on-premises
5
1190092, 1190102, 1190110, 1190116
licensee, employee or agent thereof shall serve any person
alcoholic beverages if such person appears, considering the
totality of the circumstances, to be intoxicated." Reg.
20-X-6-.02(4), Ala. Admin. Code (ABC Board) (emphasis added).
The plaintiffs have alleged that Bewley was visibly
intoxicated at the McKees' Christmas party and that Savoie's
employees continued to serve him alcohol. Savoie, however,
does not hold an ABC license. Thus, the trial court reasoned,
Savoie could not have violated Reg. 20-X-6-.02(4) and
therefore did not serve Bewley alcohol "contrary to the
provisions of law."
Rucker Place operates a catering business that has its
own venue for events in Birmingham. It is undisputed that
Rucker Place holds an ABC "on-premises" license to sell
alcohol at its venue. The trial court, however, concluded
that the plaintiffs had not presented substantial evidence
indicating that Rucker Place was involved in catering the
McKees' Christmas party. Thus, the trial court determined,
Rucker Place could not possibly have served Bewley alcohol in
violation of Reg. 20-X-6-.02(4).
6
1190092, 1190102, 1190110, 1190116
In their joint opening brief, the plaintiffs essentially
concede that an off-site caterer that does not hold an ABC on-
premises license generally cannot be held liable under Reg.
20-X-6-.02(4) and the Dram Shop Act for serving alcohol that
is provided by the hosts of an off-site private party to
guests who appear to be intoxicated. In the present cases,
however, the plaintiffs claim they presented evidence
indicating that Savoie and Rucker Place were involved in a
joint venture in catering the McKees' party. Thus, the
plaintiffs assert, Savoie was actually acting as the agent of
Rucker Place, which does hold an ABC on-premises license, when
it served Bewley alcohol. See generally Flowers v. Pope, 937
So. 2d 61, 66 (Ala. 2006) (indicating that the participants in
a joint venture are considered agents of one another). The
plaintiffs argue that, because Savoie was acting as Rucker
Place's agent, such agency as imputed to Savoie would mean
that Savoie violated Reg. 20-X-6-.02(4) by serving alcohol to
Bewley, who allegedly was visibly intoxicated, and, thus, that
Savoie served alcohol "contrary to the provisions of law" as
that phrase is used in the Dram Shop Act. The plaintiffs also
assert that Rucker Place is liable for the actions of Savoie,
7
1190092, 1190102, 1190110, 1190116
its alleged agent. The plaintiffs appear to argue that the
fact that Savoie and Rucker Place are separate business
entities should be disregarded and the entities should be
combined for the purposes of these actions to form a single
business operation in which Savoie and Rucker Place are
jointly and severally liable for the actions of the other.
In
support
of
their
joint-venture
argument,
the
plaintiffs point to various connections between Savoie and
Rucker Place. For example, the two owners of Rucker Place are
also part owners of Savoie. The other owner of Savoie is a
chef, who, as an independent contractor, has prepared food for
Rucker Place at its on-site venue in Birmingham. At the time
of the McKees' party, Savoie's base of operations was located
at Rucker Place's venue, and Savoie used Rucker Place's
kitchen and equipment to prepare for off-site catering events,
including the McKees' party.
For their part, Rucker Place and Savoie point to evidence
they contend establishes that the two entities conducted
separate businesses and were not engaged in a joint venture.
They assert, however, that this Court does not need to reach
that issue because, they say, even if the evidence established
8
1190092, 1190102, 1190110, 1190116
that they were involved in a joint venture, Reg. 20-X-6-.02(4)
should not be deemed to apply here, because the alcohol Savoie
served was provided by the host of an off-site private party.
We agree.
The ABC Board has the authority to issue licenses to
people and entities to, among other things, sell alcoholic
beverages. See § 28-3A-3, Ala. Code 1975. It is illegal for
a person or entity to sell, offer for sale, or possess for
sale alcoholic beverages without a proper license. §
28-3A-25, Ala. Code 1975. The ABC Board's licensing authority
includes the power to issue a license "[t]o sell any or all
alcoholic beverages at retail under special license issued
conditioned upon terms and conditions and for the period of
time prescribed by the board." § 28-3A-3(a)(15), Ala. Code
1975. See also § 28-3A-19, Ala. Code 1975 (authorizing the
ABC Board to issue a "special retail license" to an
organization to "sell at retail and dispense such alcoholic
beverages as are authorized by the [ABC Board] at such
locations authorized by the [ABC Board]"). At all pertinent
times, Rucker Place held an annual special retail license
9
1190092, 1190102, 1190110, 1190116
allowing it to sell and dispense alcohol only at its specific
venue in Birmingham.
The plaintiffs have not argued that any license from the
ABC Board is required for a caterer at an off-premises private
party to serve alcohol provided by the host of that party.
Thus, they have conceded that Rucker Place would not have
needed a license for its employees to serve the alcohol
provided by the McKees at their Christmas party. However,
because Rucker Place took the step of obtaining an on-premises
license to sell alcohol at its own venue in Birmingham, the
plaintiffs argue that Reg. 20-X-6-.02(4) was triggered and
that it governs Rucker Place's serving of alcohol everywhere
and
under
all
circumstances, including
Savoie's
alleged
action
of serving a visibly intoxicated Bewley at the McKees'
Christmas party.
We disagree. A more reasonable interpretation of Reg.
20-X-6-.02(4) is that it applies when the on-premises
licensee, either as an individual or through its agents, is
acting in its capacity as an on-premises licensee. In other
words, the regulation is limited and applies only when a
licensee is engaged in the activity contemplated by the on-
10
1190092, 1190102, 1190110, 1190116
premises license, i.e., selling and dispensing alcohol at the
premises covered by the license. It is noteworthy that other
subsections of Reg. 20-X-6-.02(4) suggest that the regulation
is concerned with governing activity occurring on
the
premises
covered by the license. For example, such licensees must have
restroom facilities that conform to applicable health-
department standards; are prohibited from holding contests on
the premises that require participants to drink alcohol; and
must provide tables and seating sufficient to accommodate at
least
16
people
"within
the
designated on-premises
consumption
area." Reg. 20-X-6-.02(7), Ala. Admin. Code (ABC Board). See
also Harrison v. PCI Gaming Auth., 251 So. 3d 24, 34 (Ala.
2017) (stating, although in what admittedly appears to be
dicta, that Reg. 20-X-6-.02(4) declares it unlawful to make
"'on-premises' sales to visibly intoxicated patrons").
The plaintiffs point to Gamble v. Neonatal Associates,
P.A., 688 So. 2d 878 (Ala. Civ. App. 1997), in which the Court
of Civil Appeals, like the trial court in the present case,
ruled that an off-site caterer could not have violated Reg.
20-X-6-.02(4) because the caterer did not hold an on-premises
ABC Board license. The plaintiffs suggest that, had the
11
1190092, 1190102, 1190110, 1190116
caterer held such a license, the Court of Civil Appeals would
have concluded that the caterer was subject to Reg. 20-X-6-
.02(4). The Court of Civil Appeals in Gamble, however, simply
did not consider the alternative argument that Reg. 20-X-6-
.02(4) does not apply when the on-premises licensee is not
engaged in actions in furtherance of the business activity for
which the license is required.3
Although the trial court concluded that there was not
sufficient evidence of a joint venture between Savoie and
Rucker Place, we need not decide that issue, and this Court
can affirm a trial court's judgment for any valid reason.
Smith v. Mark Dodge, Inc., 934 So. 2d 375, 380 (Ala. 2006).
We affirm the trial court's judgments based on the conclusion
that the plaintiffs have not demonstrated that Reg. 20-X-6-
.02(4) applies to the circumstances involved in the present
cases. We express no opinion as to whether the plaintiffs
3As noted, the plaintiffs have not preserved an argument
that Savoie or Rucker Place was required to hold a particular
license to serve the alcohol provided by the McKees at their
private party and that they therefore illegally served that
alcohol without a proper license. The only basis for the
argument that alcohol was served "contrary to the provisions
of law" is the plaintiffs' allegation that Savoie, as Rucker
Place's alleged agent, violated Reg. 20–X–6–.02(4) by serving
an allegedly visibly intoxicated Bewley.
12
1190092, 1190102, 1190110, 1190116
presented sufficient evidence that a joint venture between
Savoie and Rucker Place did in fact exist.
1190092 –- AFFIRMED.
1190102 –- AFFIRMED.
1190110 –- AFFIRMED.
1190116 -- AFFIRMED.
Bolin, Wise, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Parker, C.J., and Shaw and Bryan, JJ., dissent.
13
1190092; 1190102; 1190110; 1190116
SHAW, Justice (dissenting).
I believe that the main opinion has essentially rewritten
Reg. 20-X-6-.02(4), Ala. Admin. Code (Alcoholic Beverage
Control Board), to mean something other than what it actually
says. Our law governing the application of administrative
regulations requires us to follow the plain meaning of the
language
of
the
regulation;
therefore,
I
respectfully
dissent.
Reg. 20-X-6-.02 governs Alabama Alcoholic Beverage
Control Board ("ABC Board") "on-premises licensees." The
issue addressed in the main opinion is whether subsection (4)
of the regulation is restricted to governing a licensee's
activity only at the licensee's physical location or whether
it governs the licensee generally. The subsection states: "No
ABC Board on-premises licensee, employee or agent thereof
shall serve any person alcoholic beverages if such person
appears, considering the totality of the circumstances, to be
intoxicated." Reg. 20-X-6-.02(4).
"'[L]anguage used in an administrative regulation should
be given its natural, plain, ordinary, and
commonly understood
meaning, just as language in a statute.'" Ex parte Wilbanks
Health Care Servs., Inc., 986 So. 2d 422, 427 (Ala. 2007)
14
1190092; 1190102; 1190110; 1190116
(quoting Alabama Medicaid Agency v. Beverly Enters., 521 So.
2d 1329, 1332 (Ala. Civ. App. 1987)). Nothing in the plain
language of subsection (4) indicates that its prohibition
against serving alcohol to intoxicated persons is limited to
alcohol served at the licensee's physical location. My
analysis of subsection (4) would stop there.
The main opinion, however, suggests an alternate meaning:
subsection (4) can also mean that it applies only to serving
alcohol at the licensee's physical location. This meaning is
not found in the language of subsection (4), but the main
opinion notes that other subsections of Reg.
20-X-6-.02 govern
activity at the licensee's physical location and that this
suggests that all subsections of the regulation must be
similarly limited.
However, only some of the other subsections of Reg. 20-X-
6-.02 govern the licensee's physical location; this is
because, unlike subsection (4), the actual language of the
subsections indicate that such is the case. For example,
subsections (1), (2), (6), and (7) deal with the on-premises
licensee's physical facilities, retail spaces, and areas
provided for alcohol consumption.
15
1190092; 1190102; 1190110; 1190116
Subsections (3), (4), and (5), however, govern conduct.
Under subsection (3), a licensee is prohibited from allowing
drinking contests "on the licensed premises." Subsection (5)
prohibits licensees and its employees or agents from consuming
alcohol "during working hours" when "engaged in serving
customers," but it does not explicitly indicate that it is
restricted to a physical location. Finally, subsection (4),
the subsection at issue in these cases, simply prohibits a
licensee or its employees or agents from serving alcoholic
beverages to persons if they appear intoxicated. Nothing in
the language of that subsection restricts its application to
the licensee's physical location.
So, although some other subsections of Reg. 20-X-6-.02
relate to a physical location, subsection (4) conspicuously
does not. It is clear that the drafters of the regulation
knew how to specify when conduct governed in a subsection
should apply to a physical location: subsection (3)
explicitly
refers to what cannot be done "on the licensed premises." If
one subsection prohibiting certain conduct by the licensee --
like subsection (3) -- specifically limits itself to such
conduct occurring on the premises, but the next subsection --
16
1190092; 1190102; 1190110; 1190116
like subsection (4) -- also prohibits certain conduct but does
not limit itself to the premises, a clear distinction has been
made. Subsection (4) is not vague. Other subsections,
covering different subject matters and having different
language, do not change this meaning. In this case, the Court
has essentially rewritten subsection (4) to make it, in the
Court's opinion, "more reasonable." ___ So. 3d at ___. I
dissent: "[I]t is our job to say what the law is, not to say
what it should be." DeKalb Cty. LP Gas Co. v. Suburban Gas,
Inc., 729 So. 2d 270, 276 (Ala. 1998). Applying the plain
meaning of a regulation, as with a statute, is a requirement
of the separation-of-powers doctrine; it is not within the
power or role of the judicial branch to do otherwise. See
State v. $223,405.86, 203 So. 3d 816, 842 (Ala. 2016)
("'[D]eference to the ordinary and plain meaning of the
language of a statute is not merely a matter of an
accommodating judicial philosophy; it is a response to the
constitutional mandate of the doctrine of the separation of
powers set out in Art. III, § 43, Alabama Constitution of
1901.'" (quoting City of Bessemer v. McClain, 957 So. 2d 1061,
1082 (Ala. 2006) (Harwood, J., concurring in part and
dissenting in part))).
Parker, C.J., and Bryan, J., concur.
17 | April 24, 2020 |
d6ea1799-3944-4d35-99bb-55784f999d8b | Jostens, Inc. v. Herff Jones, LLC | N/A | 1180808 | Alabama | Alabama Supreme Court | Rel: April 24, 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
____________________
1180808
____________________
Jostens, Inc., John Wiggins, and Chris Urnis
v.
Herff Jones, LLC, and Brent Gilbert
Appeal from Mobile Circuit Court
(CV-16-901869)
MENDHEIM, Justice.
Jostens, Inc. ("Jostens"), John Wiggins, and Chris Urnis
(hereinafter referred to collectively as "the defendants")
appeal from the Mobile Circuit Court's denial of their renewed
motions for a judgment as a matter of law following the entry
1180808
of a judgment on a jury verdict in favor of Herff Jones, LLC
("Herff Jones"), and Brent Gilbert (hereinafter referred to
collectively as "the plaintiffs"). We affirm.
I. Facts
Herff Jones and Jostens are nationwide competitors that
manufacture scholastic-recognition products -- items such as
class rings, diplomas, caps, gowns, tassels, and graduation
announcements -- for high school students.1 As the plaintiffs
explain in their appellate brief:
"The scholastic achievement market is unlike most
other consumer markets because it is entirely
dependent on schools. That is, although students
and their parents are typically the end consumers,
it is the schools who decide which company's
products will be offered for sale to the students.
Each graduating class in most schools might be
offered products from either Herff Jones or Jostens,
but not both. School administrators are thus key
decision makers, deciding whether Herff Jones or
Jostens will have the opportunity to sell to its
students. Herff Jones and Jostens compete to 'win'
schools."
Plaintiffs'
brief,
pp.
5-6.
Decisions
about
which
manufacturer of scholastic-recognition products to choose are
1Herff Jones and Jostens agree that the other major
national competitor in this industry is Balfour, which is not
a party to this action.
2
1180808
typically made each year before the start of the upcoming
academic school year.
The competing manufacturers sell their products to
schools through independent-contractor small businesses that
are located in the schools' territories. These small
businesses purchase from a manufacturer of scholastic-
recognition products the exclusive right to sell that
manufacturer's
products
within
a
certain
geographic
territory.
For example, Brent Gilbert's business is GradPro Recognition
Products, Inc. ("GradPro"), and he has worked with Herff Jones
for over 30 years, both as a sales representative for his
father and as the current owner of GradPro. Gilbert's father
purchased from Herff Jones much of the territory in Alabama
when Gilbert was a child, and Gilbert purchased his father's
territory in July 2004, paying $400,000 over 10 years to
acquire it. Gilbert operates primarily out of Dothan for
servicing his Alabama territory.
All the parties agree that the scholastic-recognition-
products business is highly competitive and that sales
representatives
ostensibly
working
for
each
manufacturer
pitch
their products to schools in their territories every year in
3
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an effort to "win" schools for their respective manufacturer.
The parties also agree that the business is relationship-
driven: sales representatives strive to establish cordial and
lasting relationships with school administrators in an effort
to secure and maintain contracts. One method manufacturers
use to increase their market share of schools in a territory
is to entice a competitor's sales representatives to switch
employers. In order to discourage such switching of
employers, it is common practice in the scholastic-
recognition-products industry for sales representatives, as a
stipulation of employment, to sign noncompetition agreements,
agreeing not to compete against their former employers for a
specified period and/or in a specified location.
Wiggins worked for an independent distributor of Jostens
from 2000 to late 2003, selling Jostens products to schools in
southwest Alabama and in the Florida panhandle. Urnis worked
for an independent distributor of Jostens from 2001 to 2005,
selling Jostens products to schools in central Alabama. In
2004 and 2006, respectively, Gilbert hired Wiggins and Urnis
away from Jostens to be sales representatives for GradPro and,
ostensibly, for Herff Jones. Before joining Gilbert in
4
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working on behalf of Herff Jones, Wiggins and Urnis each spent
one year away from the industry to honor their noncompetition
agreements. Wiggins spent his year away fishing and
volunteering at his church, and he began selling Herff Jones
products to schools in southwest Alabama in August 2004.
Urnis spent his year away volunteering in youth sports
organizations, and he began selling Herff Jones products to
schools in central Alabama in June 2006. It is undisputed
that neither Wiggins nor Urnis violated his noncompetition
agreement during his respective year after leaving the
Jostens
distributor and coming to work for GradPro and Herff Jones.
Testimony at trial indicated that, during the respective year
that each did not work, one school account that had belonged
to Wiggins when he worked with Jostens switched to Herff Jones
and six school accounts that had belonged to Urnis when he
worked with Jostens switched to Herff Jones.
As part of their employment arrangement, Gilbert gave
Wiggins and Urnis each part ownership in GradPro and they, in
turn, each signed an employment agreement that contained a
section providing that they agreed not to compete in the
respective territory each was assigned to cover for a period
5
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of one year after leaving employment with GradPro. Those
noncompetition agreements provided, in part:
"Employee covenants and agrees that as long as
he is employed by [Gilbert] under the terms of this
Agreement and for a period of one year after
Employee's relationship with [Gilbert] is terminated
and after Employee ceases selling Herff Jones
Products, he shall not compete in the Territory,
directly or indirectly (nor receive, in any form,
benefits from a competitor of [Gilbert] or Herff
Jones), with [Gilbert's] Business of soliciting
orders for the Products and/or with Herff Jones's
business
of
manufacturing
and/or
selling
the
Products. To 'compete' as used herein shall
include, among other things, the servicing of
customer
accounts,
soliciting
of
sales
from
customers,
supervision
of
such
sales,
the
recommendation of a supplier of Products other than
[Gilbert] and/or Herff Jones or conducting himself
in such a manner that Representative's and/or Herff
Jones's goodwill with customers is diminished.
"Employee acknowledges that, by virtue of his
activities for [Gilbert] on behalf of Herff Jones,
regardless of any limitations in the assignment of
Products or coverage of Territory, he has had
contact with or otherwise gained valuable knowledge
of school decision makers and the requirements and
practices relating to the purchase of Products or
similar products by students of all schools within
the Territory through which Herff Jones has done or
had sought to do business. Employee, therefore,
acknowledges
that
the
foregoing
covenant
is
reasonable in time and area and that it is necessary
for the reasonable protection of the interests of
Herff Jones and [Gilbert].
"Employee further agrees, during his employment
and for one year after, not to use or disclose,
directly or indirectly, any of [Gilbert]'s and/or
6
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Herff Jones's price lists, records, customer lists,
statistics or other information acquired by him in
the course of his employment, nor to aid or be party
to any actions which would tend to divert, diminish
or prejudice the goodwill of [Gilbert] or Herff
Jones. ..."
At trial, the plaintiffs presented testimony and evidence
indicating that, before 2014, Jostens's nationwide sales had
been in a 10-year decline but that, beginning in that year,
under the direction of chief operating officer John Biebault,
Jostens engaged in
strategies aimed at reversing that decline.
The
plaintiffs introduced
into
evidence
a
Jostens
confidential
business
document
produced
in
December
2015
titled
"Scholastic
Strategic Plan Summary (2016-2019)." In that document,
Jostens listed one of its "Key Growth Initiatives" as being
"Rep Acquisition," which
included seeking to take advantage of
"[i]nterest from strong performing external independent rep
groups in joining Jostens (particularly from Herff Jones)."
(Emphasis added.) This initiative also noted that those
strategies "[m]ay provide access to reps with $20M and $15M
accounts" and that there was a "[n]eed to navigate two-year
non-compete reps have in their territories." Jostens
countered this evidence with testimony from Louis Kruger,
Jostens's national sales director at the time the document was
7
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produced, who stated that the "Key Growth Initiatives"
specifically mentioned Herff Jones representatives only
because several sales representatives from Herff Jones had
expressed interest in joining Jostens. He also testified that
the money figures referred to "two groups that were with
Balfour" in Atlanta and Louisiana and that those two groups
had two-year noncompetition agreements "that we have to
adhere
to."
Sometime in December 2015 or January 2016, Kruger began
communicating with Wiggins while Wiggins was still working for
GradPro. On January 4, 2016, Wiggins, using his wife's e-mail
address, sent an e-mail to Kruger's wife's e-mail address that
was intended for Kruger. In the e-mail, Wiggins sought to
provide Kruger with
"the 10 most important items ... I'd like to request
in the event of a transition. These are the things
that would make me feel as though Jostens is
committed to the long-term success and market
domination of my current territory. While I'm
asking Jostens for 10 essential items below, I'd
like to offer Jostens the assurance that I am highly
confident in my ability to transition all of my
current accounts as well as 4 new target accounts."
Those "essential items" included, among other things:
"1. Jostens to pay for office to open in Mobile in
June 2016 through May of 2017. ...
8
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"2. Jostens to pay salaries for 12 months beginning
June 2016 through May 2017 to my existing 3
employees that will make the transition immediately
and run the office for the 12-month non-compete
period. ...
"3. Jostens ... to pay me monthly beginning June of
2016 through May of 2017 the amount of $175,000.
June of 2017, we will adjust if necessary.
"4. Jostens ... to pay me $100,000 in June 2016
through May 2017 as a territory transition fee.
"5. Jostens to offer a territory (to be discussed
later) in central/south Alabama that would, at
minimum, include all counties where I have active
accounts. Said territory would include immediate
equity and at no point cost me to acquire. In short,
territory would be mine immediately, free and clear.
"....
"10. While it is my intent to fully comply and not
violate my existing 12 month 'covenant not to
compete' with my current company, I would ask that
Jostens indemnify me against any legal action taken
against me."
Jostens responded to Wiggins's demands by having one of
its lawyers send an e-mail to Wiggins's attorney on
January 21, 2016, that requested that Wiggins provide
"additional information and documentation." The requested
information included:
"1. Gross commissions earned in 2014 and 2015.
"2. Charges your client incurred in connection with
his employment in 2014 and 2015; and
9
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"3. Cash payments made by his employer and/or Herff
Jones in 2014 and 2015."
Kruger admitted at trial that gross commissions earned would
constitute confidential information.
In an e-mail to his attorney on January 26, 2016, Wiggins
provided his gross commissions earned. With respect to
charges incurred, Wiggins stated:
"2. I have no knowledge of these charges as I am
not a rep for [Herff Jones] but rather an employee
of GradPro. Obtaining the info requested would
require me to go to my partner and President of
GradPro, W. Brent Gilbert. I don't think they
[Jostens] want me to do this."
Wiggins also noted that he had never received cash payments
from either Herff Jones or GradPro. Gilbert testified that
the
underlying
commission
information could
have
been
obtained
only from Herff Jones's confidential "Commission County
Summary Report." Jostens used this information to generate a
model of what it believed Wiggins's territory was currently
worth, $1.2 million, and what it anticipated the territory
could be worth, $3.81 million. The model projection indicated
that it was based on Jostens's expectation of capturing
85 percent of Wiggins's school accounts in the first year
after he left Herff Jones.
10
1180808
On February 19, 2016, Jostens, through its attorney,
e-mailed Wiggins's attorney an offer of employment for
Wiggins
which was termed a "Transition Agreement."
Jostens acquiesced
to Wiggins's request that he be given a geographic territory
free and clear, which, Wiggins admitted, "[i]n my nineteen
years, I would say that's not standard at all." According to
Gilbert, when Wiggins met with Gilbert to inform him that
Wiggins was leaving to go to Jostens, Gilbert began to discuss
ways he could have another sales representative in Mobile for
the next year, but Wiggins cut him off, saying:
"[Brent,] there's not going to be a next year for
you in Mobile.
"And I said, 'What do you mean, John?'
"He said all the schools are going.
"I said, 'What do you mean they're going?'
"He said 'They're gone, Brent. All the schools are
already gone. They're going to go to Jostens.'
"I was, like, 'John, so you're saying that all the
schools have already made the decision that they're
going to Jostens?'
"He went, 'They're all going.'"
Wiggins resigned from GradPro on April 1, 2016. Wiggins
testified that he worked as a consultant for Jostens during
11
1180808
the year his noncompetition agreement was in effect and that
he became a sales associate for Jostens on July 1, 2017.
Urnis began communicating with Kruger by direct e-mail on
January 12, 2016. Subsequently, they also talked by telephone
and in person. In the course of this communication, Urnis
disclosed the general volume of his sales, as well as the
amount of his earned commissions. Jostens used this
information to generate a model of what it believed Urnis's
territory was currently worth, $950,000, and what it
anticipated the territory could be worth, $3 million. The
model projection indicated that it was based on the
expectation of capturing 100 percent of Urnis's school
accounts in the first year after he left Herff Jones.
Shortly after his conversation with Wiggins, Gilbert met
with Urnis, who told Gilbert: "Brent, I don't want to work
with you. I want out. I'm either going to go to Jostens, and
when I go I will take every school that you've got, or you can
give me the territory. I'll stay with Herff Jones." Both
Gilbert and Herff Jones refused to give Urnis the territory
free of charge. Gilbert and Urnis met a few more times, but
during their third meeting, on May 31, 2016, Urnis handed
12
1180808
Gilbert his resignation from GradPro, telling Gilbert: "I'm
leaving because I'm not going to pay for a territory."
Gilbert testified that Urnis also told him: "[Y]ou better not
sue me. And I went, 'Why would I sue you? Have you been
talking to schools?' And he says, 'They all know the deal and
you're losing all of them.'"
Urnis testified that, after he resigned from GradPro, he
worked as a consultant for Jostens during the year his
noncompetition agreement was effective and that he became a
sales associate for Jostens on July 1, 2017.
The parties agree that Jostens selected independent
distributor Scott Moore to spearhead its operations in the
territories Wiggins and Urnis had worked for GradPro/Herff
Jones. Moore had worked with Jostens for 16 years, and his
home territory was in the Tuscaloosa area. Some of Moore's
territory overlapped with the areas Urnis worked, and at one
time Moore had a second office located in Mobile -- Wiggins's
home territory -- but Moore closed that office in 2014 because
he had been unable to generate enough business to justify
keeping it open. Moore testified that, when Wiggins and Urnis
left GradPro (and Herff Jones), it presented an opportunity to
13
1180808
gain new school accounts the likes of which he had never seen
in all of his years in the scholastic-recognition-products
industry. Moore admitted that, before the 2016-2017 school
year, the most school accounts he had won in one year was
five. In 2016, before Wiggins and Urnis had officially
resigned from GradPro, Moore had convinced two schools to
switch from GradPro and Herff Jones to Jostens. Moore related
that in 2016 he had some members of his sales team take care
of his home-territory accounts so that he could concentrate on
winning accounts in Wiggins's and Urnis's territories. He
further testified that he worked extremely hard that year and
that he put over 75,000 miles on his automobile driving to
prospective schools.
The trial record indicates that, while he was still
working for GradPro and thus Herff Jones, Wiggins began to
tell administrators at schools with whom he had accounts that
he was leaving Herff Jones to go work for Jostens, and he told
at least one of those administrators to "keep quiet" about
this change because he had a noncompetition agreement with
GradPro and Herff Jones. In some instances, Wiggins put
school administrators in contact with Moore. In at least one
14
1180808
case, during the one-year period of his noncompetition
agreement, Wiggins made repeated telephone calls to an
administrator using his wife's and his daughter's cell phones
to introduce the administrator to Moore and then to relate
that he would be officially taking over for Moore once the
period of his noncompetition agreement had ended. There is
also record evidence indicating that Wiggins provided Jostens
with specific pricing on Herff Jones products during the
period of his noncompetition agreement. In at least one
instance, Wiggins gave Jostens pricing on a product and
Jostens's regional sales manager Duke Walker e-mailed Wiggins
asking him to clarify the price he had provided because Walker
"just want[ed] to give Scott [Moore] the best leg up going
into this." Wiggins also helped Moore in opening a new Mobile
office -- paid for by Jostens per its employment agreement
with Wiggins. For example, on May 9, 2016, Wiggins e-mailed
Kruger and Walker with a proposed budget for the Mobile office
and asked for prompt feedback because "our target open date is
June 1[, 2016]." In June 2016, Wiggins sent Walker a list of
schools that were doing business with Herff Jones that
included their order histories and their order preferences.
15
1180808
Walker admitted at trial that this was very useful information
that Jostens used to prepare their own products and forecast
sales volumes.2 Walker also admitted that Moore used the
information contained in the list "in the execution of sales
in his territory."
Gilbert testified that, after Wiggins and Urnis resigned,
he and the remainder of his sales team started contacting
schools in Wiggins's and Urnis's former assigned territories,
and several of those schools would not provide dates for
GradPro to make presentations of Herff Jones products, take
orders, and then make deliveries. Gilbert testified that if
a school principal or other administrative decision-maker
would not give a date, "[t]hat means you don't have business
in the school." Gilbert stated that, by the time school
started for the 2016-2017 school year, he and his sales team
had "a pretty good idea of what we had lost." He testified
that "[t]here were forty-seven schools" in the territories
formerly serviced by Wiggins and Urnis for GradPro and Herff
Jones that switched to Jostens in the 2016-2017 school year.
2In his deposition, Walker agreed that the list had come
from Wiggins. At trial, he contended that the list came from
one of Wiggins's employees, Lib Blossom.
16
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Gilbert stated that 47 schools constituted "a little over
half" of GradPro's entire scholastic-recognition-products
business (the parties refer to these 47 schools as the "blue
list" of schools). In a motion filed in the trial court, the
defendants acknowledged that the 47 schools made up
"80 [percent] of the sales volume of schools serviced by
Wiggins or Urnis while at GradPro." Gilbert testified that it
had taken "[t]en or twelve years" to build up the business in
those territories and that the business was lost in one cycle.
Donald Agin, the general manager of Herff Jones's scholastic
division in 2016, testified that Herff Jones "had never had
that type of transition" of school accounts going to a
competitor "in as short a period of time" "[i]n the thirty-
four years that [he had] been in [the] industry."
At trial, the defendants presented testimony from two
principals of schools on the "blue list" who stated that their
schools did not switch from Herff Jones to Jostens because of
any wrongdoing by Jostens, Wiggins, or Urnis. Principal Craig
Smith of Baldwin County High School testified that one reason
his school switched scholastic-recognition-products suppliers
was that there had been some "quality issues" with hoodies his
17
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school had gotten from Herff Jones that had cheap iron-on
patches. Smith also stated that he liked Moore and that
Jostens's prices were "pretty close" to those of Herff Jones.
Principal Alvin Dailey of LeFlore High School testified that
the school switched from Herff Jones to Jostens because
Jostens's prices were cheaper, particularly the class rings it
offered, and because there had been a problem with hoodie
orders from Herff Jones and a slight delay in diploma delivery
in the 2015-2016 school year.
As part of their presentation of testimony from the
principals, as well as through questioning of
other witnesses,
the defendants also sought to present evidence of other
reasons schools may have switched scholastic-recognition-
products providers from Herff Jones to Jostens. Those reasons
included: changes in administrators at some high schools;
problems with some products ordered from Herff Jones, such as
hoodies and tassel frames; delayed delivery of some diplomas;
and the open competition created by Wiggins's and Urnis's
vacating for one year the territories they had serviced. The
plaintiffs, in turn, sought to counter some of these proffered
reasons through testimony from Gilbert and Agin.
18
1180808
On September 7, 2016, the plaintiffs sued the defendants
in the Mobile Circuit Court.3 They asserted claims of breach
of contract against Wiggins and Urnis based on the
noncompetition agreements contained in their contracts with
GradPro;
tortious
interference
against
Jostens;
and
misappropriation of
trade
secrets
and
civil
conspiracy against
all the defendants. In general, the plaintiffs asserted that,
because of the defendants' alleged wrongful conduct, the
plaintiffs lost 47 school accounts in territories previously
serviced by Wiggins and Urnis.
During the motions-practice phase of the litigation,
Jostens filed two summary-judgment motions, the second of
which specifically contended, among other things, that the
plaintiffs had not presented evidence indicating that any
alleged wrongful conduct by the defendants had caused any of
the 47 school accounts to switch from Herff Jones to Jostens.
Wiggins and Urnis likewise filed separate summary-judgment
motions in which they contended that the plaintiffs lacked
evidence of causation. The trial court denied the defendants'
3The plaintiffs also named Moore as a defendant, but he
was voluntarily dismissed as a defendant before trial.
19
1180808
summary-judgment motions with respect to dismissal of claims
based on a lack of causation evidence.
As the case proceeded to trial, Jostens filed a motion in
limine in which it requested, among other things, that the
plaintiffs be prohibited from introducing "[a]ny evidence or
testimony related to ... the fact that Plaintiffs lost the
business of 47 schools in one year and that such loss in and
of itself is evidence that the Defendants committed wrongdoing
in this case." The trial court denied the motion.
The case proceeded to trial in April 2019, and the trial
lasted almost two weeks. The plaintiffs presented testimony
from Wiggins, Gilbert, Moore, Urnis, Jostens area sales
manager
Al
Bunge,
GradPro
operations
manager
Lawrence
Herring,
certified public accountant Jeffrey Windham, Walker, Mobile
attorney Ben Rowe, and Agin. The defendants presented
testimony from Smith, Kruger, and Dailey. At the close of the
plaintiffs' case, the defendants filed separate motions for a
judgment as a matter of law in which they again asserted,
among other things, that the plaintiffs had not presented
evidence that the alleged damages represented by the lost
school accounts was caused by the defendants' alleged wrongful
20
1180808
conduct. The trial court denied those motions. The
defendants likewise filed separate motions for a judgment as
a matter of law at the close of all the evidence; the trial
court denied those motions as well, and it submitted the case
to the jury.
The jury returned a verdict in favor of the plaintiffs,
finding the defendants jointly liable for the damages.
Specifically,
the
jury
awarded
compensatory
damages
to
Gilbert
in the amount of $579,620 and to Herff Jones in the amount of
$1,884,960. The jury assessed punitive damages against
Jostens in the amount of $650,000, against Wiggins in the
amount of $25,000, and against Urnis in the amount of $10,000.
The trial court entered a judgment based on the verdict. The
defendants filed a joint renewed motion for a judgment as a
matter of law in which their sole argument was that the
plaintiffs failed to present evidence of causation for the
damages claimed based on the defendants' allegedly wrongful
conduct, which the trial court denied. The defendants appeal.
II. Standard of Review
"The standard of review for a ruling on a motion
for a judgment as a matter of law ('JML') is as
follows:
21
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"'"When reviewing a ruling
on a motion for a JML, this Court
uses the same standard the trial
court used initially in deciding
whether to grant or deny the
motion for a JML. Palm Harbor
Homes, Inc. v. Crawford, 689 So.
2d 3 (Ala. 1997). Regarding
questions of fact, the ultimate
question is whether the nonmovant
has presented sufficient evidence
to allow the case to be submitted
to
the
jury
for
a
factual
resolution. Carter v. Henderson,
598 So. 2d 1350 (Ala. 1992). The
nonmovant must have presented
substantial evidence in order to
withstand a motion for a JML. See
§ 12–21–12, Ala. Code 1975; West
v. Founders Life Assurance Co. of
Florida, 547 So. 2d 870, 871
(Ala. 1989). A reviewing court
must determine whether the party
who bears the burden of proof has
produced
substantial
evidence
creating
a
factual
dispute
requiring resolution by the jury.
Carter, 598 So. 2d at 1353. In
reviewing a ruling on a motion
for a JML, 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. Regarding
a question of law, however, 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)."
22
1180808
"'Waddell & Reed, Inc. v. United Investors
Life Ins. Co., 875 So. 2d 1143, 1152 (Ala.
2003).'
"CSX Transp., Inc. v. Miller, 46 So. 3d 434, 450–51
(Ala. 2010)."
DISA Indus., Inc. v. Bell, 272 So. 3d 142, 148 (Ala. 2018).
III. Analysis
The defendants' sole contention in this appeal is that
the plaintiffs failed to present any evidence of proximate
causation and that, therefore, the case should not have been
submitted to the jury.4 Specifically, the defendants argue:
"Plaintiffs did not present any testimony at trial
establishing why those forty-seven schools took
their business elsewhere. Therefore, Plaintiffs did
not submit any evidence at trial to prove that any
one of the forty-seven schools on their blue list
chose to leave for a different competing supplier
because of Defendants' alleged wrongful conduct.
Plaintiffs did not call even one principal or school
official to the stand to testify at trial that the
reason for them switching suppliers was Defendants'
wrongful conduct."
4In their reply brief, the defendants attempt to argue
that the jury's damages calculation was based on "guesswork
and speculation." Defendants' reply brief, p. 6. However,
the defendants did not challenge the damages calculation in
their renewed motion for a judgment as a matter of law in the
trial court, nor did they raise the issue in their initial
appellate brief. The sole ground for appeal was a lack of
causation evidence. Therefore, we will not consider that
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").
23
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Defendants' brief, pp. 13-14. The defendants contend that,
instead
of
presenting
concrete
evidence
of
proximate
causation, the plaintiffs "elected to throw 47 schools in a
basket, wave around alleged bad conduct evidence with their
blue list of 'lost' schools and simply say that the bad
conduct obviously caused all 47 schools to select a different
scholastic products supplier." Defendants' reply brief, p.
1.
The defendants insist that, in lieu of causation
evidence, the plaintiffs merely "point to liability evidence
as their proof of causation." Defendants' brief, p. 36. The
defendants contend that it was incumbent upon the plaintiffs
to introduce testimony from decision-makers for each of the
47 schools stating that the school chose to switch scholastic-
recognition-products providers because of wrongful conduct by
the defendants. See, e.g., Defendants' brief, pp. 26, 29
(complaining that the plaintiffs "failed to introduce any
evidence from any customer that the loss was caused by any
improper conduct of Defendants" and stating that, "[i]n order
to prove causation and damages, Herff Jones and Gilbert were
required to prove why each school decided to use Jostens ...
as a supplier for the 2016-2017 school year").
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1180808
In support of their causation argument, the defendants
rely on Corson v. Universal Door Systems, Inc., 596 So. 2d 565
(Ala. 1991). Corson involved a former employee of Universal
Doors Systems, Inc. ("Universal"), Timothy Corson, whom
Universal had accused of violating a nonsolicitation covenant
contained in his employment contract with Universal. Corson
began working for Universal in August 1985. "At Universal,
Corson served as a service and installation technician. ...
While he was employed by Universal, the company's customers
included Handy Dan, Delchamps, Sam's Wholesale Club, Service
Merchandise, St. Vincent's Hospital, Druid City Hospital, and
the divisions of Bruno's." Corson, 596 So. 2d at 566–67. The
nonsolicitation covenant in the employment agreement Corson
signed
with
Universal
prohibited
him
from
soliciting
Universal
customers within a certain geographic territory for one year
following the termination of his employment. In April 1989,
Corson resigned from Universal and accepted comparable
employment with Alabama Door Systems, Inc. ("Alabama Door"),
one of Universal's competitors. Subsequently, "Universal sued
Corson, seeking a preliminary and permanent injunction, as
well as damages, for his alleged solicitation of Universal's
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1180808
customers in violation of the nonsolicitation covenant." 596
So. 2d at 567. The trial court ruled in favor of Universal,
granting
a
permanent
injunction and
awarding
Universal
damages
in the amount of $7,935, and $8,427 in attorney fees. Corson
appealed and argued, among other things, that Universal had
failed to introduce any evidence supporting a damages award
against him.
This Court agreed with the trial court that there was
evidence to support a finding that Corson had violated the
nonsolicitation covenant in his employment agreement with
Universal. However, it concluded that the trial court had
placed "the burden of proof as to damages" on Corson, the
defendant, rather than upon Universal, the plaintiff.
Corson,
596 So. 2d at 570.
"The covenant at issue prevented Corson only
from 'call[ing] upon any customer of [Universal] for
the purpose of soliciting sales to such customer
[of] any product or services associated [sic] or
provided
by
[the]
business
of
[Universal].'
Consequently, Corson was liable only for business
that he personally, directly or indirectly, diverted
from companies dealing with Universal during the
time of his employment. Corson was not liable for
business flowing to Alabama Door from Universal's
customers because of the efforts of others, or for
other reasons unrelated to Corson's efforts.
26
1180808
"Universal would be entitled to nominal damages
for breach of the nonsolicitation covenant upon mere
proof that Corson successfully solicited a Universal
customer. James S. Kemper & Co. v. Cox &
Associates, Inc., 434 So. 2d 1380, 1385 (Ala. 1983).
However, in order to collect more than nominal
damages, Universal must also prove that it actually
lost money because of Corson's breach, that is, that
it would have gotten the business that went to
Alabama Door. It follows that if Corson could
demonstrate other reasons that might have accounted
for Universal's alleged loss of business since
Corson's termination, Universal's burden of proof on
the issues of causation and damages would become
more substantial."
Corson, 596 So. 2d at 570 (emphasis added).
The Corson Court went on to explain that the evidence
indicated that Universal shared the market for its products
and services with several competitors. The Court noted that
when Corson's counsel "attempted to establish whether
Universal had an exclusive business relationship with any of
the companies on its customer list," the trial court prevented
the line of questioning. 596 So. 2d at 570. The Court
concluded that the trial court had erred in precluding such a
line of inquiry:
"The line of questioning pursued by Corson's
counsel was material and highly relevant on the
issues of causation and damages, that is, in
determining whether Universal actually lost revenue
because of Corson's breach of the nonsolicitation
covenant. Only if Universal had an exclusive
27
1180808
relationship with a customer is it reasonably
inferable, in the absence of other evidence, that
any revenue brought to Alabama Door by Corson would
have gone to Universal."
Corson, 596 So. 2d at 570–71 (emphasis added). The Court
further explained:
"Although the record supports a finding that
Corson successfully solicited jobs performed by
Alabama Door at Handy Dan, [Delchamps], Sam's
Wholesale Warehouse, and Foodworld [sic] number 13,
Universal produced no evidence that it would have
received the revenue for the work done at Handy Dan,
[Delchamps], or Sam's Wholesale Warehouse, but for
Corson's breach of contract. On the contrary,
testimony revealed that they, and nearly all the
companies on Universal's customer list, periodically
contracted for products and service with Alabama
Door and other competitors of Universal before,
during,
and
after
Corson's
employment
with
Universal. Indeed, the only company on Universal's
customer list whose business was not regularly
shared by Alabama Door or its affiliate was Bruno's,
of which Food World is a division. ... Because
Universal thus failed to meet its burden of proof on
the issues of causation and damage, the trial court
erred in awarding more than nominal damages for work
performed by Alabama Door at Handy Dan, [Delchamps],
and Sam's Wholesale Warehouse."
Corson, 596 So. 2d at 571.
The defendants contend that Corson is exactly on point
with the situation presented in this case. They say that,
even
though
the
plaintiffs
introduced
evidence
indicating that
Wiggins
and
Urnis
violated
their
noncompetition agreements
and
28
1180808
that Jostens tortiously interfered with business relations --
just as Universal demonstrated that Corson had violated the
nonsolicitation covenant in his employment agreement with
Universal -- the plaintiffs had to demonstrate that they would
have retained the accounts of all 47 schools on the blue list
absent the wrongful conduct. The defendants argue that
because Herff Jones/GradPro's contracts with those schools
were not exclusive, i.e., schools were free to switch
providers each school year, the only way the plaintiffs could
demonstrate proximate causation was to present testimony from
the decision-makers at each school as to why they switched
from Herff Jones to Jostens for the 2016-2017 school year.
See, e.g., Defendants' brief, p. 36 (contending that the
plaintiffs "were required to introduce evidence that the
decision-makers at each school would have chosen to use Herff
Jones/Gilbert as their vendor for 2016-2017 if the Defendants
had not committed the wrongful acts"). Additionally, the
defendants note that they presented evidence of other
potential reasons schools switched providers that year,
including changes in administrators at some high schools,
problems with some products and services provided by Herff
29
1180808
Jones, and the open competition created by Wiggins's and
Urnis's vacating for one year the territories they had
serviced. The defendants contend that the plaintiffs
"submitted
no
evidence
to
rebut/controvert"
their
"affirmative
evidence of actual and potential reasons the schools on
Plaintiffs' blue
list
switched
suppliers."
Defendants' brief,
p. 20.
The plaintiffs counter that
"the totality of the circumstances showed that
[defendants'] illegal actions caused Herff Jones'
and Gilbert's harm. Such evidence was more than
enough to warrant the circuit court's submission of
that fact dispute to the jury, and for the jury to
reasonably
infer
from
the
evidence
that
[defendants'] actions were the proximate cause."
Plaintiffs' brief, p. 24. The plaintiffs further assert, in
contravention of the defendants' reliance on Corson, that
"Alabama law is clear that a plaintiff need not produce
direct,
customer-by-customer evidence
of
causation in
order
to
prevail on a claim for lost profits." Id.
For support of their contention that direct customer-by-
customer evidence was not required to demonstrate proximate
causation, the plaintiffs rely upon Intergraph Corp. v.
Bentley Systems, Inc., 58 So. 3d 63 (Ala. 2010). Intergraph
30
1180808
concerned a complicated contractual arrangement between
Intergraph Corporation ("Intergraph") and Bentley Systems
Incorporated and Bentley Systems Europe B.V. (hereinafter
referred to collectively as "Bentley"). Intergraph and
Bentley were two software-design corporations that produced
software
products
for
architects
and
engineers,
which
products
were dependent upon one another. The contractual arrangement
between Intergraph and Bentley involved Bentley's purchasing
certain software products from Intergraph and Intergraph's
giving Bentley the right to service maintenance contracts
connected with those software products. The issue in
Intergraph
relevant
to
this
case
concerned
Bentley's
counterclaim against Intergraph alleging a breach of the
contractual arrangement. Specifically, Bentley alleged that,
because Intergraph provided Bentley with bad and late
maintenance-agreement data, Bentley was not able to renew a
large percentage of customer software-maintenance agreements
connected to the software it had purchased from Intergraph.
Bentley
further
alleged
that
Intergraph's
failure
had
resulted
in a large amount of lost profits Bentley had expected to gain
through its contractual arrangement with Intergraph. The
31
1180808
trial court -- following a recommendation from a special
master -- awarded Bentley over $2 million in lost profits
based on Intergraph's breach of its contract with Bentley.
On appeal, Intergraph contended that Bentley had failed
to present evidence that Intergraph's provision of bad and
late data had been the reason Bentley had lost customer
software-maintenance agreements. In assessing this issue,
this Court noted the standard for assessing damages in a lost-
profits case:
"'"[T]he loss of profits must be
the natural and proximate, or
direct
result
of
the
breach
complained of and they must also
be capable of ascertainment with
reasonable,
or
sufficient,
certainty, or there must be some
basis
on
which
a
reasonable
estimate of the amount of the
profit can be made; absolute
certainty is not called for or
required."'
"Mason & Dixon Lines[, Inc. v. Byrd,] 601 So. 2d
[68,] 70 [(Ala. 1992)] (quoting Paris v. Buckner
Feed Mill, Inc., 279 Ala. 148, 149–50, 182 So. 2d
880, 881 (1966))."
Intergraph, 58 So. 3d at 75. The Court further explained that
"cases applying the 'reasonable certainty' standard have
rejected imposing a burden on the plaintiff in the first
32
1180808
instance to prove negatives, i.e., to exclude every
conceivable cause for its lost profits." Intergraph, 58
So. 3d at 76. Instead, it is incumbent upon a defendant in
such a scenario "to go forward with evidence" of other reasons
for the lost profits, and then the plaintiff has to address
those reasons. 58 So. 3d at 77. The Intergraph Court quoted
and cited Corson in support of this principle.
The Intergraph Court also directly addressed the issue
whether
Bentley
had
established
a
connection
between
Intergraph's wrongful conduct and Bentley's loss of customer-
maintenance agreements. Discussing an argument presented by
Intergraph that echoes the defendants' assertion that the
plaintiffs simply assume damages as a result of "liability
evidence," the Court explained:
"Northcut[5] used a 'but for' theory in calculating
Bentley's damages, meaning that he assumed Bentley
would be able to renew the vast majority of the
[purchased software-]maintenance agreements 'but
for' Intergraph's breaches of the APA [asset-
purchase agreement] relating to the provision of
customer data and the renewal of customer contracts.
He calculated Bentley's losses during the APA year
and the ensuing four years based on Bentley's
5Dana Northcut was Bentley's accounting expert who
testified as to the calculation of damages that resulted from
Bentley's not gaining the renewal of multiple customer
software-maintenance agreements.
33
1180808
inability to renew those agreements during the APA
year.
Intergraph
essentially
complains
that
Northcut's methodology assumed damages without any
specific customer-by-customer evidence to support
such damages.
"We
find
Intergraph's
argument
unpersuasive.
The
fact
that
Northcut
testified
that
data
was
'fundamental' and that damages could be established
'by simple inference' does not mean that damages
were assumed. It simply means that damages were an
obvious result of Intergraph's behavior because
customer data was vital to retaining the [purchased
software-]maintenance agreements. As Northcut
testified, there is 'a direct link between the
information provided through this transaction and
Bentley's ability to transition these [purchased
software] seats to Bentley maintenance.' Moreover,
it is not surprising that Bentley did not base its
calculation on actual customer responses because
customers were not likely to know the reason behind
Bentley's failure to contact them. Furthermore,
Intergraph fails to provide any authority stating
t h a t
c u s t o m e r - b y - c u s t o m e r ,
o r
transaction-by-transaction, evidence is required to
establish damages in a situation involving lost
profits, especially on such a large scale. In fact,
several cases have held that it is not.
"....
"Greg Bentley, Bentley's president and chief
executive officer, specifically testified that
Bentley had every confidence that it would 'renew
virtually all of the Intergraph maintenance book of
business for [the purchased software] under our
Bentley Select program' in a seamless fashion but
that this did not happen because of the bad and late
data provided by Intergraph, as well as Intergraph's
improper renewal of some maintenance contracts. He
also testified that the delay in renewals was a
'natural consequence' of bad or late data because
34
1180808
one 'can only sell a maintenance contract for
[purchased] software to someone who is a due
licensee when I know who he is and where he is, and
if I don't know that I can't begin the process of
rolling over a maintenance contract.' He stated
that there was no other cause for the delay because
Bentley 'did not suffer any such problems with
renewing and continuing our maintenance coverage on
our other products, including those for which the
characteristics
of
the
products
and
the
characteristics of the users are as comparable as
can be to the [purchased software] products.'
Bentley's chief operating officer, Malcolm Walter,
testified that Bentley expected to convert all the
[purchased software-]maintenance contracts because
all the customers for the [purchased software]
products were already Bentley customers. He also
testified
that
renewal
rates
for
maintenance
contracts drop after the expiration date of the
contract, so it is vital to begin the renewal
process before the contract expires. He further
testified
that
Intergraph's
breaches
had
a
'significant impact' on Bentley's ability to timely
renew
the
[purchased
software-]maintenance
contracts. Even one of Intergraph's own witnesses
testified that 'it's very important that you not
have any interruption in the maintenance renewal
process.'
"Through this and other testimony, Bentley
established that its MicroStation product was
required to run most of the [purchased software]
products acquired from Intergraph, that it renewed
a high percentage of its own software-maintenance
agreements that are similar to the [purchased
software-]maintenance agreements, and that, as to
the [purchased software-]maintenance agreements
Bentley was able to renew in its name, it thereafter
retained them at about a 98% annual renewal rate.
Bentley also established that Intergraph's errors in
providing Bentley with information on the [purchased
software-]maintenance agreements were the most
35
1180808
likely cause of its initial lost profits because it
demonstrated that renewal delays were an unexpected
occurrence, given the products involved and the
history of renewals on such maintenance contracts.
... [T]hese facts concerning past performance and
the likelihood of similar future results established
with sufficient certainty that [the purchased
software-]maintenance agreements would have been
renewed but for Intergraph's breaches of the APA,
which in turn established the fact of lost profits
for Bentley."
Intergraph, 58 So. 3d at 74–75 (emphasis added).
The plaintiffs contend Intergraph demonstrates that
customer-by-customer evidence is not required to establish
proximate causation in large-scale lost-profits cases such as
this one. The plaintiffs emphasize that they presented
evidence that usually only a few schools elect to change
scholastic-recognition-products providers in a given year and
that, during the noncompetition years in which Wiggins and
Urnis left Jostens to join Herff Jones, a total of only seven
schools switched from Jostens to Herff Jones. They argue that
this evidence indicated that the plaintiffs had a strong
likelihood of retaining the vast majority of the school
accounts formerly serviced by Wiggins and Urnis in their
former territories but for wrongful actions taken by Wiggins,
Urnis, and Jostens, just as Bentley had demonstrated that it
36
1180808
had a strong likelihood of renewing customer software-
maintenance agreements but for Intergraph's wrongful conduct.
The plaintiffs add that they did refute the other
potential reasons for switching scholastic-recognition-
products providers given by the defendants. Gilbert admitted
that Herff Jones had had some problems with hoodies it
supplied, but he testified that he offered complete refunds
and replacement of the product to customers who were not
satisfied. Through cross-examination of Wiggins and Urnis,
the plaintiffs showed that some schools were not made aware of
Herff Jones's accommodations for the poorly manufactured
hoodies because Wiggins and Urnis failed to inform those
schools about those accommodations while they were still
employed by GradPro and Herff Jones. Gilbert also testified
that the diploma issue did not result in any school receiving
its diplomas too late for graduation and that no school that
he was aware of expressed grave disappointment about the
delays in delivery. The plaintiffs also observe that the
defendants did not provide a single specific example of a
school-administrator change between the 2015-2016 school year
and the 2016-2017 school year for any of the 47 schools on the
37
1180808
blue list. They also argued that they presented sufficient
evidence to demonstrate that ordinary competition could not
have produced such a drastic shift of school accounts in one
year.
"The question of proximate causation is ordinarily one
for the jury, if reasonable inferences from the evidence
support the plaintiff's theory." Garner v. Covington Cty.,
624 So. 2d 1346, 1349 (Ala. 1993). Nonetheless, according to
the defendants, because there were other potential reasons for
the schools to have switched from Herff Jones to Jostens, in
order for the plaintiffs to satisfy their burden and to
warrant submission of the issue of causation to the jury, the
plaintiffs had to introduce evidence from decision-makers at
each of the 47 schools on the blue list demonstrating that
they would have stayed with Herff Jones but for the wrongful
acts committed by the defendants. The plaintiffs failed to
provide such direct evidence, and, therefore, the defendants
insist, no causal link was made between the defendants'
conduct and the plaintiffs' loss of the 47 school accounts.
This argument contains at least two underlying assumptions:
(1) that the only competent evidence of causation is from
38
1180808
school
administrative decision-makers and
(2)
that
a
plaintiff
must provide customer-by-customer evidence to demonstrate
damages. Neither of those assumptions is correct.
There are several problems with the first assumption.
First, it deprives the jury of its role to determine the
veracity of witness testimony. See, e.g., Scott v. Farnell,
775 So. 2d 789, 793 (Ala. 2000) (observing that "it is within
the province of the jury ... to weigh the credibility of
witnesses"). As the defendants have noted, they presented
testimony from principals at two of the high schools on the
blue list that switched from Herff Jones to Jostens during the
year Wiggins and Urnis were supposed to be honoring their
noncompetition agreements. Those two principals testified
that their schools did not switch scholastic-recognition-
products providers because of wrongful conduct by the
defendants. Under the defendants' argument, their testimony
settled the issue with respect to those two schools. However,
the jury was free to believe or disbelieve, or assign whatever
weight and credibility it chose, to the testimony of those two
principals, and the same would have been true for any of the
decision-makers at the other 45 schools if they had been
39
1180808
called to testify. For example, it could be inferred from the
evidence that at least some school administrators actually
switched their schools' accounts from Herff Jones to Jostens
because Wiggins gave those administrators a heads-up that he
was leaving Herff Jones to go to Jostens and that Wiggins had
promised the administrators that he would be the one taking
care of their school's account at Jostens. But a reasonable
jury could surmise why a school administrator might hesitate
to testify that this was the case because of his or her
relationship with Wiggins. In short, because direct evidence
could not have settled the issue of causation for the jury any
more than circumstantial evidence would do so, it is difficult
to conclude that the plaintiffs were required to submit direct
evidence in order to meet their burden and that the
circumstantial evidence should be disregarded.
Second, the defendants' assumption that only school
administrative
decision-makers
could
present
competent
causation testimony presumes that those administrators would
have been aware of that the defendants' conduct was wrongful.
In Intergraph, the Court noted: "[I]t is not surprising that
Bentley did not base its calculation on actual customer
40
1180808
responses because customers were not likely to know the reason
behind Bentley's failure to contact them." Intergraph, 58
So. 3d at 74. The same observation holds in this case: much
of the wrongful conduct the plaintiffs accused the defendants
of committing was "behind the scenes," secretly carried out
between Wiggins, Urnis, and Jostens. Because of this, it is
quite conceivable, for example, that some schools switched
because of product prices offered by Jostens without being
aware that Jostens's pricing models were based on
confidential
information concerning Herff Jones's prices that had been
provided by Wiggins and/or Urnis. Thus, testimony from school
administrative decision-makers would not necessarily shed
light on the causal connection between the defendants'
wrongful conduct and the schools switching their scholastic-
recognition-products providers. Again, if direct testimony
may or may not be helpful in establishing whether there was a
causal
connection
between
the
defendants' wrongful
conduct
and
the plaintiffs' loss of school accounts, it is difficult to
understand why the defendants would be required to present
such evidence to meet their burden.
41
1180808
Third, and perhaps most importantly, the defendants'
position presumes that causation may be proved only by direct
evidence; this is simply not the case.
"There is nothing wrong with a case built around
sufficient circumstantial evidence, provided the
circumstances are proved and not merely presumed.
Richards v. Eaves, 273 Ala. 120, 135 So. 2d 384
(1961). Any judgment in such a case must
necessarily involve some amount of speculation or
inference by the jury. There is conjecture only
where there are two or more plausible explanations
of causation, and the evidence does not logically
point to one any more than the other. Where the
evidence does logically point in one direction more
than another, then a jury can reasonably infer that
things occurred in that way."
Folmar v. Montgomery Fair Co., 293 Ala. 686, 690, 309 So. 2d
818, 821 (1975). As this Court has repeatedly emphasized:
"'"'Circumstantial evidence is in nowise considered inferior
evidence and is entitled to the same weight as direct evidence
provided it points to the guilt of the accused.'"'" Wiggins
v. Mobile Greyhound Park, LLP, [Ms. 1170874, May 3, 2019] ___
So. 3d ___, ___ (Ala. 2019) (quoting Edwards v. State, 139 So.
3d 827, 836-37 (Ala. Crim. App. 2013), quoting in turn
Hollaway v. State, 979 So. 2d 839, 843 (Ala. Crim. App. 2007),
quoting in turn White v. State, 546 So. 2d 1014, 1017 (Ala.
Crim. App. 1989)). As long as the circumstantial evidence
42
1180808
presented by the plaintiffs was sufficient to allow the jury
to reasonably infer that wrongful acts by the defendants led
to the plaintiffs' loss of the 47 school accounts, direct
evidence was not required to submit the issue of causation to
the jury. See Bell v. Colony Apartments Co., 568 So. 2d 805,
810–11 (Ala. 1990) ("A fact is established by circumstantial
evidence if it can be reasonably inferred from the facts and
circumstances adduced.").
It is true that the defendants presented several other
potential reasons schools switched their accounts from Herff
Jones to Jostens, but, in evaluating the trial court's ruling
on a motion for a judgment as a matter of law, we must view
the evidence in the light most favorable to the plaintiffs as
the nonmovants and entertain any reasonable inferences the
jury would be free to draw. See DISA Industries, 272 So. 3d
at 148. There was overwhelming evidence that Wiggins and
Urnis
violated
their
noncompetition agreements.
Evidence
also
strongly
indicated
that
Jostens
used
Herff
Jones's
confidential information that it had obtained from Wiggins
and/or Urnis to win school accounts in Wiggins's and Urnis's
former territories. There was also evidence indicating that
43
1180808
Wiggins and Urnis knew before they had left their employment
with GradPro and Herff Jones that most of the schools they
serviced would switch to Jostens during the year of their
noncompetition agreements. Internal Jostens documents
likewise indicated that Jostens was under the impression it
would win the vast majority of Wiggins's and Urnis's former
school accounts during Wiggins's and Urnis's noncompetition-
agreement year. Finally, there was the undeniable fact that
the number of school accounts lost by Herff Jones and acquired
by Jostens in one school-year cycle was unprecedented.
Normally, only a few schools changed providers in a given
territory each year, and the most school accounts Moore had
ever previously won for Jostens from another provider in a
single year was five. In the years of Wiggins's and Urnis's
noncompetition
agreements
when
they
left
Jostens
for
employment at Herff Jones, a total of seven schools switched
providers. But before the 2016-2017 school year -- the year
Wiggins and Urnis were supposed to be honoring their
noncompetition agreements with GradPro and Herff Jones before
starting to work for Jostens -- Moore won 47 schools for
Jostens in the territories formerly serviced by Wiggins and
44
1180808
Urnis for GradPro and Herff Jones, which constituted 80
percent of GradPro's school accounts. Given all the
foregoing, we conclude that the evidence was sufficient for a
jury to reasonably infer that the defendants' wrongful conduct
was the actual reason the schools on the blue list changed
scholastic-recognition-products providers.
The defendants second assumption -- that the plaintiffs
had to provide customer-by-customer evidence of causation to
prove damages -- is also flawed. As we explained earlier, the
parties' positions on this issue are framed by their reliance
on different cases from this Court: the defendants rely on
Corson and the plaintiffs rely on Intergraph. The portions of
those cases relied upon by the parties address causation for
lost-profits damages. In Corson, the Court faulted Universal
for failing to establish that Universal would have received
the business of each of the lost customers but for Corson's
violation of his nonsolicitation covenant with Universal. In
Intergraph, this Court did not require Bentley to introduce
evidence demonstrating that each lost customer chose not to
renew its software-maintenance contracts with Bentley because
of the bad and late data Intergraph provided to Bentley to
45
1180808
establish
a
causal
connection between
Intergraph's
conduct
and
the damages requested by Bentley.
Corson is superficially similar to this case in that it
involved a former employee's violation of a nonsolicitation
covenant. But with respect to the issue whether customer-by-
customer evidence is necessary to establish causation,
Intergraph presents a closer parallel. It involved customer
loss on a large scale, whereas Corson involved the alleged
loss of four customers by Universal to Alabama Door as a
result of Corson's breach of his nonsolicitation covenant. As
the difference in the evidentiary requirements in the two
cases no doubt reflects, whether presenting customer-by-
customer evidence is practical and feasible plays a role in
determining whether it should be part of the plaintiff's
burden
in
establishing
damages
for
lost
profits.6
Furthermore,
in
Intergraph
Bentley
presented
evidence
indicating that it had a high confidence that it would have
obtained the software-maintenance contracts that had belonged
6In
this
regard,
the
plaintiffs assert
that
putting
school
administrative decision-makers on the stand from each school
potentially could have put more strain on Herff Jones's
relationships with those schools, further diminishing any
chance the plaintiffs might have in the future of convincing
those schools to switch back to Herff Jones.
46
1180808
to Intergraph upon their expiration, just as the plaintiffs
presented evidence indicating that most schools did not
routinely change scholastic-recognition-products providers
after each year and the volume of school accounts lost by
Herff Jones in the 2016-2017 school year was disproportionate
to the typical number of annual lost accounts. In contrast,
in Corson, Universal failed to present any
evidence indicating
that it would have retained three of the four customers in
question. See Corson, 596 So. 2d at 571 (observing that
"testimony revealed that [the three customers], and
nearly all
the companies on Universal's customer list, periodically
contracted for products and service with Alabama Door and
other competitors of Universal before, during, and after
Corson's employment with Universal"). Given the parallels
between Intergraph and this case in contrast to Corson in the
context of customer-by-customer evidence and the facts that
Intergraph is the more recent of the two precedents and that
the Intergraph Court acknowledged Corson for a
different legal
principle, we find the analysis in Intergraph to be more
persuasive for the situation presented here. Accordingly, we
conclude that the plaintiffs were not required to present
47
1180808
customer-by-customer evidence as to why each of the 47 schools
on the blue list switched scholastic-recognition-products
providers from Herff Jones to Jostens to establish a causal
connection between the defendants' wrongful conduct and the
plaintiffs' loss of school accounts before the 2016-2017
school year.
IV. Conclusion
The plaintiffs were not required to present direct,
customer-by-customer evidence of the reasons each of the 47
blue-list schools switched from Herff Jones to Jostens in
order for the issue of causation to be submitted to the jury.
The plaintiffs presented ample circumstantial evidence that
would allow the jury to infer that the defendants' wrongful
conduct led to the plaintiffs' loss of the school accounts at
issue. Accordingly, we affirm the trial court's order denying
the defendants' renewed motion for a judgment as a matter of
law.
AFFIRMED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers,
Stewart, and Mitchell, JJ., concur.
48 | April 24, 2020 |
25664484-647b-479c-a94d-617323a7640c | Everheart et al. v. Rucker Place, LLC et al. | N/A | 1190092, 1190116, 1190110, 1190102 | Alabama | Alabama Supreme Court | REL: April 24, 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
____________________
1190092
____________________
Tamikia Everheart
v.
Rucker Place, LLC, and Savoie Catering, LLC
Appeal from Jefferson Circuit Court
(CV-16-903634)
____________________
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)
____________________
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)
____________________
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)
SELLERS, Justice.
2
1190092, 1190102, 1190110, 1190116
Tamikia Everheart; Cardell Coachman, a deceased minor, by
and through his mother and next friend Johnitia Coachman;
Michael Coleman, as administrator of the estate of Diane
McGlown, deceased; and Mary W. Weatherspoon and Elizabeth W.
McElroy, as administratrix of the estate of Jakobie E.
Johnson,
a
deceased
minor
(hereinafter
referred
to
collectively as
"the
plaintiffs"),
filed
four
separate
appeals
from summary judgments entered in their separate cases by the
Jefferson Circuit Court in favor of Rucker Place, LLC, and
Savoie Catering, LLC. We consolidated the appeals for review,
and we affirm the judgments.
While attending a Christmas party in December 2015 at the
residence of Bruce McKee and Dale McKee, Jason Bewley consumed
alcohol. Later, he was driving while allegedly intoxicated
and was involved in an accident with a vehicle occupied by
five individuals. As a result of the accident, two of those
individuals were injured and the other three were killed.
The plaintiffs filed four separate actions against
Bewley, alleging negligence and wantonness in the
operation of
his vehicle. The plaintiffs also asserted dram-shop claims
against Dale McKee; the estate of Bruce McKee, who died
3
1190092, 1190102, 1190110, 1190116
shortly after the Christmas party; Savoie Catering, LLC, which
had catered the McKees' party and had served guests alcohol
that had been provided by the McKees; and Rucker Place, LLC,
which operates a catering business with connections to Savoie
but which claims it had no involvement with the McKees'
party.1
The trial court consolidated the actions under Rule
42(a), Ala. R. Civ. P. Eventually, the plaintiffs voluntarily
dismissed their claims against the McKees and proceeded
against Bewley, Savoie, and Rucker Place. The plaintiffs
settled their claims against Bewley, and the trial court
entered summary judgments in favor of Savoie and Rucker Place.
These appeals followed.2
"We apply the same standard of review the trial
court used in determining whether the evidence
presented to the trial court created a genuine issue
1The alcohol served at the McKees' Christmas party had
been purchased by the McKees from a third party. Savoie's
employees allegedly served as bartenders. Only for purposes
of these appeals, we presume that Savoie's employees served
Bewley.
2The plaintiffs also asserted claims against companies
with which Bruce McKee had been associated. Those claims,
however, were voluntarily dismissed. One of the plaintiffs
also asserted claims against two companies owned by Bewley.
The trial court entered a default judgment against those
companies. That judgment is not at issue on appeal.
4
1190092, 1190102, 1190110, 1190116
of material fact. Jefferson County Comm'n v. ECO
Preservation Services, L.L.C., 788 So. 2d 121 (Ala.
2000) (quoting Bussey v. John Deere Co., 531 So. 2d
860, 862 (Ala. 1988)). Once a party moving for a
summary judgment establishes that no genuine issue
of material fact exists, the burden shifts to the
nonmovant to present substantial evidence creating
a genuine issue of material fact. Bass v. SouthTrust
Bank of Baldwin County, 538 So. 2d 794, 797–98 (Ala.
1989)."
Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792
So. 2d 369, 372 (Ala. 2000). Questions of law are reviewed de
novo. Van Hoof v. Van Hoof, 997 So. 2d 278, 286 (Ala. 2007).
The Dram Shop Act provides, in pertinent part:
"Every wife, child, parent, or other person who
shall be injured in person, property, or means of
support by any intoxicated person or in consequence
of the intoxication of any person shall have a right
of action against any person who shall, by selling,
giving, or otherwise disposing of to another,
contrary to the provisions of law, any liquors or
beverages, cause the intoxication of such person for
all damages actually sustained, as well as exemplary
damages."
§ 6-5-71(a), Ala. Code 1975 (emphasis added).
In arguing that the alcohol served at the McKees' party
was "giv[en], or otherwise dispos[ed] of to another, contrary
to the provisions of law," the plaintiffs have relied on a
regulation promulgated by the Alabama Beverage Control Board
("the ABC Board"), which provides: "No ABC Board on-premises
5
1190092, 1190102, 1190110, 1190116
licensee, employee or agent thereof shall serve any person
alcoholic beverages if such person appears, considering the
totality of the circumstances, to be intoxicated." Reg.
20-X-6-.02(4), Ala. Admin. Code (ABC Board) (emphasis added).
The plaintiffs have alleged that Bewley was visibly
intoxicated at the McKees' Christmas party and that Savoie's
employees continued to serve him alcohol. Savoie, however,
does not hold an ABC license. Thus, the trial court reasoned,
Savoie could not have violated Reg. 20-X-6-.02(4) and
therefore did not serve Bewley alcohol "contrary to the
provisions of law."
Rucker Place operates a catering business that has its
own venue for events in Birmingham. It is undisputed that
Rucker Place holds an ABC "on-premises" license to sell
alcohol at its venue. The trial court, however, concluded
that the plaintiffs had not presented substantial evidence
indicating that Rucker Place was involved in catering the
McKees' Christmas party. Thus, the trial court determined,
Rucker Place could not possibly have served Bewley alcohol in
violation of Reg. 20-X-6-.02(4).
6
1190092, 1190102, 1190110, 1190116
In their joint opening brief, the plaintiffs essentially
concede that an off-site caterer that does not hold an ABC on-
premises license generally cannot be held liable under Reg.
20-X-6-.02(4) and the Dram Shop Act for serving alcohol that
is provided by the hosts of an off-site private party to
guests who appear to be intoxicated. In the present cases,
however, the plaintiffs claim they presented evidence
indicating that Savoie and Rucker Place were involved in a
joint venture in catering the McKees' party. Thus, the
plaintiffs assert, Savoie was actually acting as the agent of
Rucker Place, which does hold an ABC on-premises license, when
it served Bewley alcohol. See generally Flowers v. Pope, 937
So. 2d 61, 66 (Ala. 2006) (indicating that the participants in
a joint venture are considered agents of one another). The
plaintiffs argue that, because Savoie was acting as Rucker
Place's agent, such agency as imputed to Savoie would mean
that Savoie violated Reg. 20-X-6-.02(4) by serving alcohol to
Bewley, who allegedly was visibly intoxicated, and, thus, that
Savoie served alcohol "contrary to the provisions of law" as
that phrase is used in the Dram Shop Act. The plaintiffs also
assert that Rucker Place is liable for the actions of Savoie,
7
1190092, 1190102, 1190110, 1190116
its alleged agent. The plaintiffs appear to argue that the
fact that Savoie and Rucker Place are separate business
entities should be disregarded and the entities should be
combined for the purposes of these actions to form a single
business operation in which Savoie and Rucker Place are
jointly and severally liable for the actions of the other.
In
support
of
their
joint-venture
argument,
the
plaintiffs point to various connections between Savoie and
Rucker Place. For example, the two owners of Rucker Place are
also part owners of Savoie. The other owner of Savoie is a
chef, who, as an independent contractor, has prepared food for
Rucker Place at its on-site venue in Birmingham. At the time
of the McKees' party, Savoie's base of operations was located
at Rucker Place's venue, and Savoie used Rucker Place's
kitchen and equipment to prepare for off-site catering events,
including the McKees' party.
For their part, Rucker Place and Savoie point to evidence
they contend establishes that the two entities conducted
separate businesses and were not engaged in a joint venture.
They assert, however, that this Court does not need to reach
that issue because, they say, even if the evidence established
8
1190092, 1190102, 1190110, 1190116
that they were involved in a joint venture, Reg. 20-X-6-.02(4)
should not be deemed to apply here, because the alcohol Savoie
served was provided by the host of an off-site private party.
We agree.
The ABC Board has the authority to issue licenses to
people and entities to, among other things, sell alcoholic
beverages. See § 28-3A-3, Ala. Code 1975. It is illegal for
a person or entity to sell, offer for sale, or possess for
sale alcoholic beverages without a proper license. §
28-3A-25, Ala. Code 1975. The ABC Board's licensing authority
includes the power to issue a license "[t]o sell any or all
alcoholic beverages at retail under special license issued
conditioned upon terms and conditions and for the period of
time prescribed by the board." § 28-3A-3(a)(15), Ala. Code
1975. See also § 28-3A-19, Ala. Code 1975 (authorizing the
ABC Board to issue a "special retail license" to an
organization to "sell at retail and dispense such alcoholic
beverages as are authorized by the [ABC Board] at such
locations authorized by the [ABC Board]"). At all pertinent
times, Rucker Place held an annual special retail license
9
1190092, 1190102, 1190110, 1190116
allowing it to sell and dispense alcohol only at its specific
venue in Birmingham.
The plaintiffs have not argued that any license from the
ABC Board is required for a caterer at an off-premises private
party to serve alcohol provided by the host of that party.
Thus, they have conceded that Rucker Place would not have
needed a license for its employees to serve the alcohol
provided by the McKees at their Christmas party. However,
because Rucker Place took the step of obtaining an on-premises
license to sell alcohol at its own venue in Birmingham, the
plaintiffs argue that Reg. 20-X-6-.02(4) was triggered and
that it governs Rucker Place's serving of alcohol everywhere
and
under
all
circumstances, including
Savoie's
alleged
action
of serving a visibly intoxicated Bewley at the McKees'
Christmas party.
We disagree. A more reasonable interpretation of Reg.
20-X-6-.02(4) is that it applies when the on-premises
licensee, either as an individual or through its agents, is
acting in its capacity as an on-premises licensee. In other
words, the regulation is limited and applies only when a
licensee is engaged in the activity contemplated by the on-
10
1190092, 1190102, 1190110, 1190116
premises license, i.e., selling and dispensing alcohol at the
premises covered by the license. It is noteworthy that other
subsections of Reg. 20-X-6-.02(4) suggest that the regulation
is concerned with governing activity occurring on
the
premises
covered by the license. For example, such licensees must have
restroom facilities that conform to applicable health-
department standards; are prohibited from holding contests on
the premises that require participants to drink alcohol; and
must provide tables and seating sufficient to accommodate at
least
16
people
"within
the
designated on-premises
consumption
area." Reg. 20-X-6-.02(7), Ala. Admin. Code (ABC Board). See
also Harrison v. PCI Gaming Auth., 251 So. 3d 24, 34 (Ala.
2017) (stating, although in what admittedly appears to be
dicta, that Reg. 20-X-6-.02(4) declares it unlawful to make
"'on-premises' sales to visibly intoxicated patrons").
The plaintiffs point to Gamble v. Neonatal Associates,
P.A., 688 So. 2d 878 (Ala. Civ. App. 1997), in which the Court
of Civil Appeals, like the trial court in the present case,
ruled that an off-site caterer could not have violated Reg.
20-X-6-.02(4) because the caterer did not hold an on-premises
ABC Board license. The plaintiffs suggest that, had the
11
1190092, 1190102, 1190110, 1190116
caterer held such a license, the Court of Civil Appeals would
have concluded that the caterer was subject to Reg. 20-X-6-
.02(4). The Court of Civil Appeals in Gamble, however, simply
did not consider the alternative argument that Reg. 20-X-6-
.02(4) does not apply when the on-premises licensee is not
engaged in actions in furtherance of the business activity for
which the license is required.3
Although the trial court concluded that there was not
sufficient evidence of a joint venture between Savoie and
Rucker Place, we need not decide that issue, and this Court
can affirm a trial court's judgment for any valid reason.
Smith v. Mark Dodge, Inc., 934 So. 2d 375, 380 (Ala. 2006).
We affirm the trial court's judgments based on the conclusion
that the plaintiffs have not demonstrated that Reg. 20-X-6-
.02(4) applies to the circumstances involved in the present
cases. We express no opinion as to whether the plaintiffs
3As noted, the plaintiffs have not preserved an argument
that Savoie or Rucker Place was required to hold a particular
license to serve the alcohol provided by the McKees at their
private party and that they therefore illegally served that
alcohol without a proper license. The only basis for the
argument that alcohol was served "contrary to the provisions
of law" is the plaintiffs' allegation that Savoie, as Rucker
Place's alleged agent, violated Reg. 20–X–6–.02(4) by serving
an allegedly visibly intoxicated Bewley.
12
1190092, 1190102, 1190110, 1190116
presented sufficient evidence that a joint venture between
Savoie and Rucker Place did in fact exist.
1190092 –- AFFIRMED.
1190102 –- AFFIRMED.
1190110 –- AFFIRMED.
1190116 -- AFFIRMED.
Bolin, Wise, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Parker, C.J., and Shaw and Bryan, JJ., dissent.
13
1190092; 1190102; 1190110; 1190116
SHAW, Justice (dissenting).
I believe that the main opinion has essentially rewritten
Reg. 20-X-6-.02(4), Ala. Admin. Code (Alcoholic Beverage
Control Board), to mean something other than what it actually
says. Our law governing the application of administrative
regulations requires us to follow the plain meaning of the
language
of
the
regulation;
therefore,
I
respectfully
dissent.
Reg. 20-X-6-.02 governs Alabama Alcoholic Beverage
Control Board ("ABC Board") "on-premises licensees." The
issue addressed in the main opinion is whether subsection (4)
of the regulation is restricted to governing a licensee's
activity only at the licensee's physical location or whether
it governs the licensee generally. The subsection states: "No
ABC Board on-premises licensee, employee or agent thereof
shall serve any person alcoholic beverages if such person
appears, considering the totality of the circumstances, to be
intoxicated." Reg. 20-X-6-.02(4).
"'[L]anguage used in an administrative regulation should
be given its natural, plain, ordinary, and
commonly understood
meaning, just as language in a statute.'" Ex parte Wilbanks
Health Care Servs., Inc., 986 So. 2d 422, 427 (Ala. 2007)
14
1190092; 1190102; 1190110; 1190116
(quoting Alabama Medicaid Agency v. Beverly Enters., 521 So.
2d 1329, 1332 (Ala. Civ. App. 1987)). Nothing in the plain
language of subsection (4) indicates that its prohibition
against serving alcohol to intoxicated persons is limited to
alcohol served at the licensee's physical location. My
analysis of subsection (4) would stop there.
The main opinion, however, suggests an alternate meaning:
subsection (4) can also mean that it applies only to serving
alcohol at the licensee's physical location. This meaning is
not found in the language of subsection (4), but the main
opinion notes that other subsections of Reg.
20-X-6-.02 govern
activity at the licensee's physical location and that this
suggests that all subsections of the regulation must be
similarly limited.
However, only some of the other subsections of Reg. 20-X-
6-.02 govern the licensee's physical location; this is
because, unlike subsection (4), the actual language of the
subsections indicate that such is the case. For example,
subsections (1), (2), (6), and (7) deal with the on-premises
licensee's physical facilities, retail spaces, and areas
provided for alcohol consumption.
15
1190092; 1190102; 1190110; 1190116
Subsections (3), (4), and (5), however, govern conduct.
Under subsection (3), a licensee is prohibited from allowing
drinking contests "on the licensed premises." Subsection (5)
prohibits licensees and its employees or agents from consuming
alcohol "during working hours" when "engaged in serving
customers," but it does not explicitly indicate that it is
restricted to a physical location. Finally, subsection (4),
the subsection at issue in these cases, simply prohibits a
licensee or its employees or agents from serving alcoholic
beverages to persons if they appear intoxicated. Nothing in
the language of that subsection restricts its application to
the licensee's physical location.
So, although some other subsections of Reg. 20-X-6-.02
relate to a physical location, subsection (4) conspicuously
does not. It is clear that the drafters of the regulation
knew how to specify when conduct governed in a subsection
should apply to a physical location: subsection (3)
explicitly
refers to what cannot be done "on the licensed premises." If
one subsection prohibiting certain conduct by the licensee --
like subsection (3) -- specifically limits itself to such
conduct occurring on the premises, but the next subsection --
16
1190092; 1190102; 1190110; 1190116
like subsection (4) -- also prohibits certain conduct but does
not limit itself to the premises, a clear distinction has been
made. Subsection (4) is not vague. Other subsections,
covering different subject matters and having different
language, do not change this meaning. In this case, the Court
has essentially rewritten subsection (4) to make it, in the
Court's opinion, "more reasonable." ___ So. 3d at ___. I
dissent: "[I]t is our job to say what the law is, not to say
what it should be." DeKalb Cty. LP Gas Co. v. Suburban Gas,
Inc., 729 So. 2d 270, 276 (Ala. 1998). Applying the plain
meaning of a regulation, as with a statute, is a requirement
of the separation-of-powers doctrine; it is not within the
power or role of the judicial branch to do otherwise. See
State v. $223,405.86, 203 So. 3d 816, 842 (Ala. 2016)
("'[D]eference to the ordinary and plain meaning of the
language of a statute is not merely a matter of an
accommodating judicial philosophy; it is a response to the
constitutional mandate of the doctrine of the separation of
powers set out in Art. III, § 43, Alabama Constitution of
1901.'" (quoting City of Bessemer v. McClain, 957 So. 2d 1061,
1082 (Ala. 2006) (Harwood, J., concurring in part and
dissenting in part))).
Parker, C.J., and Bryan, J., concur.
17 | April 24, 2020 |
733f5eea-dd90-4251-a46c-32b658bb9b48 | Andrew Adams v. Dane Adams | N/A | 1180418 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 10, 2020
1180418 Andrew Adams v. Dane Adams (Appeal from Covington Circuit Court:
CV-15-900104).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on April 10, 2020:
Application Overruled. No Opinion. Wise, J. - Parker, C.J., and Bolin, Sellers, and Stewart,
JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on February 14, 2020:
Affirmed. No Opinion. Wise, J. - Parker, C.J., and Bolin, Sellers, and Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 10th day of April, 2020.
Clerk, Supreme Court of Alabama | April 10, 2020 |
4a052f57-1f30-4efb-9e87-f9366d2ee39d | Ex parte Jennifer Naomi Bowden. | N/A | 1190414 | 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
1190414
Ex parte Jennifer Naomi Bowden. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: Jennifer Naomi Bowden v. State of Alabama) (Monroe
Circuit Court: CC-16-98; Criminal Appeals :
CR-18-0586).
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 |
b530393e-ef40-4cb7-a10d-cacbddf0ce35 | 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 | rel: April 10, 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
_________________________
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)
WISE, Justice.
AFFIRMED. NO OPINION.
Parker, C.J., and Shaw, Bryan, Mendheim, Stewart, and
Mitchell, JJ., concur.
Bolin and Sellers, JJ., dissent.
1180308
SELLERS, Justice (dissenting).
Robert Snell and Tabitha Snell sued AMMC, P.C., d/b/a
Alabama Men's Clinic ("AMMC"), and Dr. John Justin Caulfield,
alleging medical malpractice. After a trial in 2018, a jury
returned a verdict in favor of the defendants, and the Snells
filed a motion for a new trial. The trial court granted that
motion, and the defendants appealed. I respectfully dissent
from the Court's decision to affirm the trial court's
judgment.
In their motion for a new trial, the Snells asserted
that, after the trial, they discovered evidence of juror
misconduct. Specifically, they alleged that several jurors
had failed to give complete and truthful answers to questions
asked during voir dire.
The trial court held two hearings on the motion for a new
trial, during which it heard testimony from the jurors. After
the hearings, the trial court entered an order granting the
motion for a new trial based on the failure of three
particular jurors to reveal during voir dire that they or
their family members had been defendants in lawsuits. Dr.
Caulfield and AMMC appealed.
2
1180308
The applicable standard of review calls for this Court to
determine whether the trial court exceeded its discretion in
granting the Snells' motion for a new trial. Hood v. McElroy,
127 So. 3d 325, 328 (Ala. 2011). "[T]he proper inquiry for
the trial court on [a] motion for new trial, grounded on
allegedly improper responses or lack of responses by
prospective jurors on voir dire, is whether this has resulted
in probable prejudice to the movant." Freeman v. Hall, 286
Ala. 161, 166, 238 So. 2d 330, 335 (1970). "[N]ot every
failure of a venireman to respond correctly to a voir dire
question will entitle the losing party to a new trial."
Wallace v. Campbell, 475 So. 2d 521, 522 (Ala. 1985).
The following occurred during voir dire:
"[SNELLS' COUNSEL:] ... [W]hen I ask a question
about you, what I'm talking about is you and members
of your immediate family. Members of your immediate
family would be your husband, wife, father, mother,
brother, sister, children. So if you know if I ask
a question and you know that somebody in your
immediate family might be affected by it or might
have an answer to that question, if you will hold up
your hand, we will see where we go with that.
"....
"[SNELLS' COUNSEL:] Have any of you ever been
defendants in a lawsuit? That is someone sued you or
a member of your immediate family? And what I'm
talking about, I'm not talking about divorce or
3
1180308
anything like that, I'm talking about somebody sues
you for personal injuries or damages or anything
like that.
"....
"[SNELLS' COUNSEL]: Now, anyone else been a
defendant? Not divorces or anything like that, just
personal injuries for money, something that involves
damages.
"....
"[SNELLS' COUNSEL]: Now, let me take that back
a step. Have any of you been in a situation where
it didn't go to a lawsuit but somebody made a claim
against you for damages? Car wreck, a bill,
anything like that that was upsetting to you?"
In its order granting the Snells' motion for a new trial, the
trial court stated that the Snells were probably prejudiced by
the failure of jurors C.D.C., M.H., and R.G.H. to properly
respond to voir dire questioning.
Juror C.D.C. had three small-claims default judgments
entered against her in collections actions from January 2015
to May 2016. She testified during one of the hearings on the
motion for a new trial that she did not remember being asked
during voir dire if she or her family members had been a
defendant in a lawsuit. She also testified that she was not
even aware of the default judgments and that she was not
trying to deceive anyone by not disclosing their existence.
4
1180308
The Snells, however, introduced evidence indicating that D.C.
had been personally served with garnishment papers with
respect to one of the small-claims judgments.
Juror M.H. and her mother were sued in an eviction action
in October 2015 and had a judgment entered against them in
that action. M.H. testified during one of the hearings on the
motion for a new trial that she did not remember the question
being asked during voir dire regarding whether she or her
family members had been a defendant in a lawsuit. When asked
if she had, in fact, been a defendant in a lawsuit, she
responded that she and her mother had lived at an apartment
and that both their names were on the lease. She testified
that she did not mean to deceive anyone and that the existence
of the eviction judgment did not influence her deliberations.
Juror R.G.H. and his wife had multiple small-claims
judgments entered against them in collections actions.
During
one of the hearings on the motion for a new trial, R.G.H.
claimed that he was unaware of some of the judgments. As for
the ones he did remember, he testified that he never attended
court proceedings and that he did not consider the voir dire
questions in the present case to be aimed at collections
5
1180308
actions. He testified that he did not intend to deceive
anyone and that the fact that he had been a defendant in the
collections actions did not influence his deliberations.
After R.G.H. testified, an investigator employed by the
Snells' attorney testified that, when he served R.G.H. with a
subpoena to appear at the new-trial hearing, R.G.H. told the
investigator that lawyers are "greedy," that R.G.H. had
discussed his opinion on that matter with the other jurors at
some unknown point during or after the trial, and that R.G.H.
had decided early in the proceedings that he was not going to
award the Snells anything. R.G.H. denied those allegations.
Defense counsel moved to strike the investigator's testimony
as hearsay and as an improper attempt to impeach the jury's
verdict under Rule 606(b), Ala. R. Evid. The trial court did
not rule on the motion to strike, but its order granting the
Snells a new trial expressly referenced the investigator's
testimony. Even assuming the investigator's testimony was
admissible for one reason or another, I am still of the
opinion that the trial court exceeded its discretion in
granting the motion for a new trial.
6
1180308
Although voir dire questions may be very simple to
practicing lawyers, they can be confusing for average jurors.
Many members of the general public are unfamiliar with even
the legal meanings of the terms "plaintiff," "defendant," and
"judgment." Asking someone whether he or she has ever been a
plaintiff or a defendant can, at times, require an
explanation. Many people do not appreciate what a judgment
is, why it is entered against them, or that it was the result
of a court action involving litigation. Our legal system and
process can be confusing to jurors who have had limited
interaction with it.
But jurors take their duty very seriously and give their
best efforts to understand their role. They appreciate that,
from all the questions asked during voir dire, it comes down
to whether they can be fair-minded. Can they set aside
prejudices and preconceived notions, listen to the evidence,
and make a fair decision? While the makeup of a jury results
from seasoned trial counsel's careful study of background,
body language, and answers to probing questions resulting in
strikes, the jury is basically an amalgam of solid ordinary
7
1180308
citizens trying to fulfill their civic duty to the best of
their ability.
Although I believe the vast majority of jurors take their
responsibilities seriously and put forth their best effort, I
doubt that many people actually enjoy jury duty. For 10
dollars per day and 15 cents per mile they are absent from
work and juggle child-care and other family responsibilities.
But they serve because they are summoned and they believe this
infrequent tax on their time is a responsibility akin to
voting. We should be thankful for their service. The last
time I myself served as a juror, the presiding judge told
everyone
how
invaluable
their
service
was
to
the
administration of justice. I think that is right; jurors'
services are invaluable and critical.
That is why it troubles me when, after a jury has reached
a verdict and has been dismissed, the jurors are subjected to
investigation to determine if they were truthful during voir
dire. The idea that an investigator would use public records
after an unfavorable verdict to attempt to nullify that
verdict strikes me as a challenge to the entire system. How
humiliating must it be for a juror to be hauled back into
8
1180308
court, cross-examined, treated like a criminal, and made to
feel that his or her service was illegitimate.
The allegations of misconduct in the present case revolve
around whether the jurors understood questions during voir
dire, the truthfulness of their answers, and what information
regarding their prejudices they failed to disclose. Some of
the information used to "impeach" each juror was not newly
discovered information, but consisted of information anyone
could have obtained before trial by a simple search of
courthouse records. Why was this information not obtained
earlier in the proceedings and used to consider whether to
strike the jurors before wasting time trying the case? To
cross-examine jurors after a verdict is rendered using
information that was in the public domain and readily
available before voir dire is unfair to all parties. Trial
counsel bears a burden to be properly prepared for voir dire
and should be prohibited from using public information
obtainable before trial to engage in post-trial juror
examination to support a motion for a new trial.
After the trial in Ankor Energy, LLC v. Kelly, 271 So. 3d
798 (Ala. 2018), counsel for the losing party made numerous
9
1180308
telephone calls to a juror in an effort to obtain an affidavit
to assert juror misconduct as a reason for a new trial. The
juror, failing to understand what an affidavit was, signed
three different statements. On appeal, we held that the
"trial court exceeded its discretion in granting the
new-trial
motion alleging juror misconduct absent ... admissible
[evidence] indicating that
[the]
misconduct
was
prejudicial."
271 So. 3d at 809. Thus, juror misconduct alone is not
enough; the misconduct must have caused prejudice.
In the seminal case of Freeman v. Hall, 286 Ala. 161,
238 So. 2d 330 (1970), the Court noted that the movant for a
new trial based on incorrect or nonexistent responses to voir
dire questions must demonstrate that the responses or lack
thereof resulted in probable prejudice to the movant. The
Court identified five relevant factors in determining whether
prejudice has been established: 1) the temporal remoteness of
the matter inquired about; 2) the ambiguity of the question
propounded; 3) the prospective juror's inadvertence or
willfulness in falsifying or failing to answer; 4)the failure
of the prospective juror to recollect; and 5) the materiality
of the matter inquired about.
10
1180308
In my view, the jurors in the present case simply did not
understand vague voir dire questioning and legal jargon,
forgot about judgments that had been entered against them, or
neglected to disclose minor personal information. I see no
attempt by a juror to be misleading or evasive during voir
dire. It is one thing to knowingly tell a falsehood or fail
to disclose a critical disqualifying factor when prompted.
But it is quite another to forget a small-claims judgment
resulting from a debt or to fail to remember a less than
material issue about a relative, coworker, or neighbor. I
would conclude that the failure of the prospective jurors to
fully and correctly respond to voir dire questions did not
influence the jury's deliberations and had no
material adverse
effect on the jury's verdict. There may have been juror
misconduct in the strict sense of the word, but the misconduct
was not remotely prejudicial enough to taint the jury's
verdict. Accordingly, I dissent.
11 | April 10, 2020 |
d6a71332-d52d-47aa-ab78-f17c5e5b584f | Larry Pace v. Laura Louallen Briley | N/A | 1180838 | Alabama | Alabama Supreme Court | Rel: April 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1180838
Larry Pace v. Laura Louallen Briley (Appeal from Lawrence
Circuit Court: CV-17-900041).
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. | April 10, 2020 |
afd4b50b-a28b-4e3c-8faf-27ba97d0ec73 | Jordan Mills and Bradley Braswell v. City of Opelika and American Traffic Solutions, Inc. | N/A | 1180268 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
August 28, 2020
1180268
Jordan Mills and Bradley Braswell v. City of Opelika and American Traffic
Solutions, Inc. (Appeal from Lee Circuit Court: CV-17-900507).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on August 28, 2020:
Application Overruled. No Opinion. Bolin, J. - Parker, C.J., and Bryan, Sellers, Mendheim,
and Stewart, JJ., concur. Shaw, Wise, and Mitchell, JJ., recuse themselves.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on May 1, 2020:
Affirmed. Bolin, J. - Bryan, Sellers, and Stewart, JJ., concur. Parker, C.J., and Mendheim, J.,
concur in the result. Shaw, Wise, and Mitchell, JJ., recuse themselves.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 28th day of August, 2020.
Clerk, Supreme Court of Alabama | May 1, 2020 |
77957a7e-b74d-412e-b6c4-8ca26c671eff | Ex parte Marvin Gray. | N/A | 1180999 | Alabama | Alabama Supreme Court | rel: April 24, 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
____________________
1180999
____________________
Ex parte Marvin Gray
PETITION FOR WRIT OF MANDAMUS
(In re: Ruthie Thomas
v.
Marco Trevino, State Farm Mutual Automobile Insurance
Company, and Marvin Gray)
(Montgomery Circuit Court, CV-19-900114)
STEWART, Justice.
Marvin Gray petitions this Court for a writ of mandamus
directing the Montgomery Circuit Court ("the trial court") to
1180999
dismiss an amended complaint filed by Ruthie Thomas naming him
as a defendant on the ground that the claims asserted against
him in the amended complaint are barred by the applicable
statute of limitations. Because we conclude that the amended
complaint relates back to the filing of the original complaint
under Rule 15, Ala. R. Civ. P., we deny the petition.
Facts and Procedural History
On January 19, 2017, Thomas was involved in two-vehicle
automobile accident with Gray in a parking lot in Montgomery.
On January 18, 2019, Thomas filed a complaint alleging
negligence and wantonness and naming Marco Trevino as a
defendant.1 According to the parties, Trevino was not involved
in the accident and was, instead, the law-enforcement officer
who responded to and investigated the accident.
On April 17, 2019, 89 days after she filed the original
complaint, Thomas filed a motion for leave to amend her
complaint pursuant to Rule 15(a), Ala. R. Civ. P. In the
motion, she asserted that she had made "scrivener's errors"
resulting in the incorrect identification of one of the
1Thomas also asserted a claim for uninsured-motorist
coverage against State Farm Mutual Automobile Insurance
Company and included fictitiously named defendants A, B, and
C as defendants.
2
1180999
defendants in the original complaint. That same day, Thomas
filed an amended complaint naming Gray as the defendant in
place of Trevino.2 On April 29, 2019, the trial court granted
Thomas's motion for leave to amend the complaint.
Gray filed a motion to dismiss the claims against him,
asserting that he was not added as a defendant until after the
statute of limitations had expired. Gray argued that the
amended complaint did not relate back to the filing of the
original complaint because, he argued, it did not satisfy the
requirements of Rule 9(h), Ala. R. Civ. P., regarding
fictitiously named defendants. In particular, Gray asserted
that Thomas was aware of Gray's name 12 days following the
accident and well before the expiration of the statute of
limitations. In support of his motion, Gray attached as
exhibits a January 2017 letter from Gray's insurance company
addressed to Thomas that identified Gray as the policyholder
and an envelope from Thomas addressed to Gray's insurance
company postmarked January 31, 2017.
Thomas filed a response to Gray's motion to dismiss in
which she asserted that "due to a mere clerical error,
2Gray does not dispute that he was served with the amended
complaint.
3
1180999
[Thomas] named an incorrect party in the style and body of the
Complaint." Thomas argued that her amendment was timely under
Rule 15 and that she was permitted to correct a clerical error
under Rule 60(a), Ala. R. Civ. P. Thomas also asserted that
the amended complaint related back to the filing of the
original complaint under Rule 15(c)(3).
Gray filed a reply to Thomas's response in which he
asserted, among other things, that Thomas had failed to
establish an "identity of interests" between him and Trevino
and that, accordingly, the amended complaint could not relate
back to the original complaint. The trial court denied Gray's
motion to dismiss, which we treat as a motion for a summary
judgment.3 Gray timely filed a petition for a writ of mandamus
to this Court.
Standard of Review
"'"'A
writ
of
mandamus
is
an
extraordinary remedy, and it "will be
issued only when there is: 1) a clear legal
right in the petitioner to the order
sought; 2) an imperative duty upon the
respondent to perform, accompanied by a
3Because the trial court had before it materials outside
the pleadings that it did not expressly decline to consider,
Gray's motion to dismiss was converted into a motion for a
summary judgment. Ex parte Novus Utils., Inc., 85 So. 3d 988,
995 (Ala. 2011).
4
1180999
refusal to do so; 3) the lack of another
adequate remedy; and 4) properly invoked
jurisdiction of the court."'" Ex parte
Monsanto Co., 862 So. 2d 595, 604 (Ala.
2003) (quoting Ex parte Butts, 775 So. 2d
173, 176 (Ala. 2000), quoting in turn Ex
parte United Serv. Stations, Inc., 628 So.
2d 501, 503 (Ala. 1993)). ... A petition
for a writ of mandamus ... is the proper
means to seek review of an order denying a
motion to dismiss or for a summary judgment
filed by a defendant added after the
statute of limitations has run, under Rule
15(c)(3), Ala. R. Civ. P., which governs
the relation back of amended complaints
when the defendant has received notice of
the action so that the defendant will not
be prejudiced in maintaining a defense on
the merits and the defendant knew or should
have known that, but for a mistake
concerning the identity of the proper
party, the action would have been brought
against the defendant. See, e.g., Ex parte
Empire Gas Corp., 559 So. 2d 1072 (Ala.
1990) ....'
"Ex parte Novus Utilities, Inc., 85 So. 3d 988, 995
(Ala. 2011)."
Ex parte Profit Boost Mktg., Inc., 254 So. 3d 862, 866 (Ala.
2017).
Discussion
Gray contends that Thomas's amended complaint naming him
as a defendant in lieu of Trevino was barred by the two-year
5
1180999
limitations period prescribed in § 6-2-38(l), Ala. Code 1975.4
Gray contends that the amended complaint did not relate back
to the filing of the original complaint under Rule 15(c).
Thus, he argues, the statute of limitations was not tolled and
he is entitled to a writ of mandamus directing the trial court
to dismiss the claims against him as being filed outside the
statute of limitations. Thomas argues that the failure to name
Gray in the original complaint was a clerical error, that the
trial court was permitted to allow the correction pursuant to
Rule 60(a), and that the amended complaint relates back to the
original complaint under Rule 15(c)(3).5 Accordingly, Thomas
contends, the filing of the original complaint tolled the
statute of limitations for asserting claims against Gray.
4Section 6-2-38(l) provides that "[a]ll actions for an
injury to the person or rights of another not arising from
contract and not
specifically enumerated in this section shall
be brought within two years."
5Thomas also argues that Gray did not meet the burden
required for a dismissal under Rule 12(b)(6), Ala. R. Civ. P.
We note that, generally, "the denial of a motion to dismiss
based upon Rule 12(b)(6) is not reviewable by a petition for
a writ of mandamus." Ex parte Nautilus Ins. Co., 260 So. 3d
823, 831 (Ala. 2018) (citing Ex parte Kohlberg Kravis Roberts
& Co., L.P., 78 So. 3d 959 (Ala. 2011)).
6
1180999
We first examine the parties' contentions concerning the
relation-back doctrine in Rule 15(c)(3). Generally, a party
may amend a pleading pursuant to Rule 15 without leave of
court "at any time more than forty-two (42) days before the
first setting of the case for trial, and such amendment shall
be freely allowed when justice so requires." Rule 15(a).
Under Rule 15(c),
"[a]n amendment of a pleading relates back to the
date of the original pleading when
"(1) relation back is permitted by the law that
provides the statute of limitations applicable to
the action, or
"(2) the claim or defense asserted in the
amended
pleading
arose
out
of
the
conduct,
transaction, or occurrence set forth or attempted to
be set forth in the original pleading, except as may
be
otherwise
provided
in
Rule
13(c)
for
counterclaims maturing or acquired after pleading,
or
"(3) the amendment, other than one naming a
party under the party's true name after having been
initially sued under a fictitious name, changes the
party or the naming of the party against whom a
claim is asserted if the foregoing provision (2) is
satisfied and, within the applicable period of
limitations or one hundred twenty (120) days of the
commencement of the action, whichever comes later,
the party to be brought in by amendment (A) has
received such notice of the institution of the
action that the party will not be prejudiced in
maintaining a defense on the merits, and (B) knew or
should have known that, but for a mistake concerning
7
1180999
the identity of the proper party, the action would
have been brought against the party, or
"(4) relation back is permitted by principles
applicable to fictitious party practice pursuant to
Rule 9(h)."
Rule 15(c)(3) "applies to a plaintiff's attempt to amend in
order to correctly identify a defendant included in or
contemplated by the plaintiffs' original complaint." Profit
Boost Mktg., 254 So. 3d at 870. Because Thomas amended the
complaint to correct the name of a defendant, we apply this
subsection to our relation-back analysis.
Rule 15(c)(3) provides three criteria that must be met
before an amended complaint can relate back to the original
complaint. First, the claim asserted in the amended complaint
must meet the criteria specified in Rule 15(c)(2), i.e., the
claim in the amended complaint "arose out of the conduct,
transaction, or occurrence set forth or attempted to be set
forth in the original pleading." Second, "within the
applicable period of limitations or one hundred twenty (120)
days of the commencement of the action, whichever comes later,
the party to be brought in by amendment" must have "received
such notice of the institution of the action that the party
will not be prejudiced in maintaining a defense on the
8
1180999
merits." Finally, within that same time frame, the party to be
added must know or should have known "that, but for a mistake
concerning the identity of the proper party, the action would
have been brought against the party."
Gray does not dispute that Thomas's claims against Gray
arose out of the conduct, transaction, or occurrence set forth
in the original complaint, thus satisfying the first Rule
15(c)(3) criterion. Moreover, Gray does not assert that he did
not know that, but for Thomas's mistake naming Trevino as the
defendant, the action would have been brought against him. As
a result, the third Rule 15(c)(3) criterion has also been
satisfied. Gray's argument focuses on the second criterion of
Rule 15(c)(3), and Gray contends that he did not receive
notice within 120 days of its commencement that the action had
been commenced, because, he argues, Thomas failed to
establish
an "identity of interest" between him and Trevino.
In support of his identity-of-interest argument, Gray
relies on Bank of Red Bay v. King, 482 So. 2d 274, 280 (Ala.
1985), Ex parte Novus Utilities, Inc., 85 So. 3d 988, 995
(Ala. 2011), and Profit Boost Marketing, supra. However,
although those cases address the application of the relation-
9
1180999
back doctrine to amended complaints under Rule 15(c)(3), they
are procedurally inapposite to the present case.
In Bank of Red Bay, the plaintiffs asserting fraud claims
against a bank filed an amended complaint nearly one year
after the filing of the initial complaint to add additional
plaintiffs. The bank alleged that the added plaintiffs learned
of the purported misrepresentations underlying the fraud
claims 16 months before the filing of the amended complaint
and that, therefore, the claims were barred by the statute of
limitations. Citing Manning v. Zapata, 350 So. 2d 1045 (Ala.
Civ. App. 1977), this Court examined three elements of a test
established by the Court of Civil Appeals to determine whether
the amended complaint related back:
"(1) [That] there was the requisite 'identity of
interest,' (2) [that] the claim arose out of the
same conduct, transaction, or occurrence as set
forth in the original complaint, and (3) [that] the
defendant was given notice when the initial
complaint was filed ...."
Bank of Red Bay, 482 So. 2d at 280. In concluding that the
amendment adding the additional plaintiffs satisfied those
three elements, this Court held that there was an identity of
interest between the initial plaintiffs and the added
10
1180999
plaintiffs sufficient for the doctrine of relation back to
apply. Id.
In his petition, Gray seeks to apply the three elements
referenced in Bank of Red Bay to Thomas's amended complaint in
the
present
case.
Bank
of
Red
Bay,
however,
is
distinguishable. Bank of Red Bay addressed the addition of
plaintiffs –- not defendants –- to an action, and this Court
noted that "Rule 15(c) can be applied by analogy to amendments
changing plaintiffs." Bank of Red Bay, 482 So. 2d at 279-80.
In addition, the amended pleading in Bank of Red Bay was filed
nearly a year after the original complaint and well outside
the 120-day time frame in Rule 15(c)(3). An examination of the
identity-of-interest between the initial plaintiffs and the
new plaintiffs was necessary to determine whether the new
plaintiffs had implicit notice of the proceedings within 120
days of the commencement of the action.
Gray's reliance on Novus Utilities, supra, and Profit
Boost Marketing, supra, in support of his contention that
there is no identity of interest between him and Trevino is
equally misplaced. In Profit Boost, the amended complaint was
filed, and the subsequent defendant served, more than 120 days
11
1180999
after the action was commenced, and the issue was whether the
notice of the suit had been imputed to the new defendant
within 120 days of the commencement of the action. In Novus
Utilities, the plaintiffs sought to amend their complaint
almost three years after the commencement of the action to
name Novus Utilities, a subsidiary of the original defendant,
as a defendant. The question presented in that case was
whether Novus Utilities received notice of the
commencement of
the action by virtue of the suit being brought, initially,
against its parent company. This Court held that Novus
Utilities had notice of the commencement of the action, that
Novus Utilities would not be prejudiced in defending the
action, and that the amended complaint related back to the
original complaint naming the parent company as a defendant.
In the present case, an inquiry regarding an identity of
interest between Trevino and Gray is not necessary. Gray, who,
as the petitioner, has the burden to establish a clear legal
right to the relief he seeks, does not dispute that he
received notice of the commencement of the action within the
120-day period prescribed by Rule 15(c)(3). The identity-of-
interest
inquiry
is
relevant
only
to
determine
the
12
1180999
relationship between the original defendant and the new
defendant when the plaintiff is trying to establish, by virtue
of that relationship, that notice of the action was imputed to
the new defendant within 120 days of its commencement. As this
Court stated in Novus Utilities:
"The party added must have received notice of the
institution of the action within the applicable
limitations period or within 120 days of the filing
of the original complaint (whichever comes later) so
that it is not prejudiced in maintaining a defense
on the merits. Rule 15(c)(3). A court may impute
notice of the institution of an action against the
original defendant to a subsequently named defendant
if there is an 'identity of interests.' See Bank of
Red Bay v. King, 482 So. 2d 274, 280 (Ala. 1985)."
85 So. 3d at 1001.
It is evident from the materials presented to the trial
court, and to this Court on mandamus review, that Thomas made
a mistake concerning the identity of the defendant in the
original complaint. Thomas filed the amended complaint naming
Gray as a defendant 89 days after she filed the original
complaint, which was within the 120-day period prescribed by
Rule 15(c)(3). As explained above, Gray does not dispute that
he was served with the amended complaint or that he otherwise
received notice of the commencement of the action before the
expiration of the 120-day period. In addition, Gray does not
13
1180999
assert that he will suffer any prejudice from defending the
action on the merits. Because Gray has failed to establish
that he did not have proper notice of the complaint within 120
days of the commencement of the action and because Gray has
not alleged the existence of any prejudice resulting from
maintaining a defense on the merits, Gray has not demonstrated
that Thomas's amendment should not relate back to the filing
of the original complaint under Rule 15(c)(3).
Because we conclude that the amendment of the complaint
to add Gray as a defendant was proper and because Gray has not
satisfied his burden for mandamus relief, we need not address
the parties' contentions concerning the purported application
of Rule 60(a), Ala. R. Civ. P., to a plaintiff's mistake in
identifying
a
defendant
in
an
original
complaint.
Furthermore, it is undisputed that Thomas did not substitute
Gray for a fictitiously named defendant and that she was aware
of Gray's identity before she filed the original complaint;
therefore, Rule 15(c)(4) is not applicable, despite the
parties' discussion of that subsection in their arguments
before this Court.
Conclusion
14
1180999
A petitioner carries a heavy burden in securing mandamus
relief. See Ex parte McWilliams, 812 So. 2d 318, 321 (Ala.
2001). Based on the materials before this Court, Gray has not
demonstrated a clear legal right to have the claims against
him dismissed, and the trial court correctly denied the motion
for a summary judgment. Accordingly, his petition is denied.
PETITION DENIED.
Parker, C.J., and Shaw, Wise, Bryan, Mendheim, and
Mitchell, JJ., concur.
Sellers, J., concurs in the result.
15 | April 24, 2020 |
741edb7e-2e57-4700-8dec-e042f4c28c35 | Ex parte VRP Transportation, Inc. | N/A | 1181056 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 17, 2020
1181056
Ex parte VRP Transportation, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL
(In re: Piard Shamarr and Tabatha Arnold v. VRP Transportation, Inc., and Geico
Casualty Company) (Macon Circuit Court: CV-18-900127).
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 17th day of April, 2020.
/ra | April 17, 2020 |
b17aac7d-fd63-4d69-9737-71a46a693120 | Warner W. Wiggins v. Warren Averett, LLC | N/A | 1170943 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 24, 2020
1170943 Warner W. Wiggins v. Warren Averett, LLC (Appeal from Baldwin Circuit Court:
CV-17-901246).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on April 24, 2020:
Application Overruled. No Opinion. Shaw, J. - Bolin, Bryan, and Mitchell, JJ., and
Donaldson, Special Justice, concur. Parker, C.J., and Wise, Sellers, and Mendheim, JJ.,
dissent. Stewart, J., recuses herself.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on February 7, 2020:
Affirmed. Shaw, J. - Bolin, Bryan, and Mitchell, JJ., concur. Shaw, J., and Donaldson,
Special Justice, concur specially. Parker, C.J., and Wise, Sellers, and Mendheim, JJ., dissent.
Stewart, J., recuses herself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 24th day of April, 2020.
Clerk, Supreme Court of Alabama | April 24, 2020 |
0ea43634-9591-4238-8831-30a31cc86b54 | Ex parte Shanta Phillips. | N/A | 1190571 | 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
1190571
Ex parte Shanta Phillips. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Shanta Phillips v. State of Alabama) (Mobile Circuit Court:
CC-03-411.62; CC-03-412.62; CC-03-413.62;CC-03-414.62; CC-03-415.62; Criminal Appeals :
CR-19-0030).
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.
Clerk, Supreme Court of Alabama | May 15, 2020 |
55c0bd24-b42c-48c6-b33c-eaa7ae01c373 | Ex parte M.C.A. | N/A | 1210041 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 30, 2021
1210041
Ex parte M.C.A. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: M.C.A. v. Etowah County Department of Human
Resources) (Etowah Juvenile Court: JU-21-9.01; Civil Appeals : 2200372).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 30, 2021:
Writ Denied. No Opinion. (Special Writing) Bolin, J. - Shaw, Bryan,
Sellers, Mendheim, and Mitchell, JJ., concur. Parker, C.J., and Wise, and
Stewart, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 30th day of December, 2021.
Clerk, Supreme Court of Alabama | December 30, 2021 |
10f58e28-3771-49f0-a605-fd65599bec1f | Ex parte Ora Caldwell. | N/A | 1190082 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 17, 2020
1190082
Ex parte Ora Caldwell. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
William K. Echols, as personal representative of the Estate of Sarah Katherine
Barnes Echols, deceased v. Ora Caldwell, in her individual capacity) (Baldwin
Circuit Court: CV-18-900045).
ORDER
The petition for writ of mandamus in this cause is denied.
BOLIN, J. - Parker, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim, and
Mitchell, JJ., concur. Stewart, J., recuses herself.
Witness my hand this 17th day of April, 2020.
/ra | April 17, 2020 |
14b8a780-809a-43a5-b21a-2ce808d81bf4 | John and Ruthann Essinger v. Allstate Indemnity Company | N/A | 1181000 | Alabama | Alabama Supreme Court | Rel: April 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1181000
John and Ruthann Essinger v. Allstate Indemnity Company
(Appeal from Jefferson Circuit Court: CV-18-904117).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ.,
concur. | April 10, 2020 |
4a11dd92-210e-49c5-9913-940243c93af2 | Ex parte State Farm Fire & Casualty Co. | N/A | 1180451 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
August 28, 2020
1180451
Ex parte State Farm Fire and Casualty Company. PETITION FOR WRIT OF
MANDAMUS: CIVIL (In re: Elizabeth Byars v. State Farm Fire and Casualty Company et al.)
(Madison Circuit Court: CV-16-900396).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on August 28, 2020:
Application Overruled. No Opinion. Mitchell, J. - Parker, C.J., and Bolin, Shaw, Wise,
Bryan, Mendheim, and Stewart, JJ., concur. Sellers, J., dissents.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on April 24, 2020:
Petition Denied. Mitchell, J. - Parker, C.J., and Bolin, Wise, Mendheim, and Stewart, JJ.,
concur. Shaw and Bryan, JJ., concur in the result. Sellers, J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 28th day of August, 2020.
Clerk, Supreme Court of Alabama | April 24, 2020 |
f2f3d422-915c-499a-ad2a-602ba2accf4d | Ex parte Walmart Stores, Inc. | N/A | 1200643 | Alabama | Alabama Supreme Court | 1200643
Ex parte Walmart Stores, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
Stephen W. Thibodeaux, as personal representative of the Estate of Joy B.
Thibodeaux v. Wal-Mart Stores, Inc., et al.) (Mobile Circuit Court: CV-19-902378).
ORDER
December 17, 2021
IN THE SUPREME COURT OF ALABAMA
The petition for writ of mandamus in this cause is denied.
BOLIN, J. - Parker, C.J., and Shaw, Wise, Bryan, Mendheim, and Stewart, JJ.,
concur. Sellers and Mitchell, JJ., dissent.
Witness my hand this 17th day of December, 2021.
Clerk, Supreme Court of Alabama
/tw | December 17, 2021 |
90161564-be26-4ebc-b831-7ed13172c068 | Deutsche Bank National Trust Company v. Karr | N/A | 1190036 | Alabama | Alabama Supreme Court | Rel: April 17, 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
____________________
1190036
____________________
Deutsche Bank National Trust Company
v.
Dortha Karr and Randy Karr
Appeal from Marshall Circuit Court
(CV-16-900016)
BRYAN, Justice.
Deutsche Bank National Trust Company ("Deutsche Bank")
seeks appellate review of an order entered by the Marshall
Circuit Court ("the circuit court"). Because we conclude that
the order appealed from is not a final judgment, we dismiss
1190036
the appeal.
Background
In January 2016, Deutsche Bank filed a complaint seeking
possession of certain property ("the property") to which it
claimed title by virtue of purchase at a foreclosure sale.
According to Deutsche Bank, Dortha Karr granted a mortgage in
the property to Ameriquest Mortgage Company ("the mortgage"),
which thereafter "transferred and assigned" the mortgage to
Deutsche Bank, as trustee, under the terms of a "Pooling and
Servicing Agreement." Deutsche Bank alleged that, after the
foreclosure sale, it served a written demand for possession of
the property on Dortha, but she refused to vacate the
property.
Dortha
answered
Deutsche
Bank's complaint, denying, among
other things, that Deutsche Bank possessed a valid mortgage
interest in the property and enumerating several "affirmative
defenses," including the doctrine of res judicata. In
addition, Dortha asserted two counterclaims against Deutsche
Bank: the tort of outrage and slander of title. Deutsche Bank
answered Dortha's counterclaims, denying several allegations
and asserting a number of "affirmative defenses."
2
1190036
Deutsche
Bank
thereafter
amended
its
complaint,
referencing Randy Karr as an additional defendant and
including allegations that Randy had "initialed every page of
the mortgage and signed it immediately after the signature of"
Dortha. Deutsche Bank's amended complaint also asserted
specific counts for ejectment, "default under promissory
note," and "equitable relief." In relevant part, the amended
complaint also set forth additional allegations regarding the
creation of a promissory note that was secured by the mortgage
("the promissory note"), including an allegation that the
promissory note had been "properly" assigned to Deutsche Bank
and that Deutsche Bank was the holder of the promissory note
and was entitled to the debt owed under the terms of the
promissory note. Dortha answered the amended complaint,
denying Deutsche Bank's material allegations.
Deutsche Bank later filed an amended answer in response
to
Dortha's
counterclaims,
asserting
that
she
lacked
"standing" to "attack" the mortgage and that the mortgage
should not be vacated because Dortha and Randy (hereinafter
collectively referred to as "the Karrs") had not "offered to
do equity by restoring the $317,625.00 of value they received
3
1190036
under the" promissory note.
Deutsche Bank thereafter moved for leave to file a second
amended complaint, seeking to formally add Randy as a
defendant to the action, to assert additional allegations
pertaining to him, and to assert a specific count seeking also
his ejectment from the property. The Karrs moved to "strike
[Deutsche Bank]'s motion for leave to file the second amended
complaint and a claim against Randy," contending that the
second amended complaint was "too late" because it was filed
three years after the complaint was filed and was filed after
discovery was "substantially complete." They also asserted
that Randy was not a proper party to the action, that Randy's
"right to possession" of the property had already been
adjudicated in a separate action -- case no. CV-2012-900434 --
and that Deutsche Bank lacked "standing to prosecute an
ejectment action against Randy." Deutsche Bank filed a
response to the Karrs' motion, arguing, among other things,
that Dortha lacked "standing to prosecute her" counterclaims.
On April 11, 2019, the circuit court entered an order
that provided, in its entirety:
"Motion to Strike is hereby GRANTED for Mr.
Randy Karr.
4
1190036
"The Court notes that all claims in this case
were previously litigated in case number CV-
2012-900434 between Dortha Karr, Shane Wilks, and
Susan Wilks.[1] Said case was heard by [another
judge in this circuit court], and it involved the
same real estate.
"Costs taxed to [Deutsche Bank]."
(Capitalization in original; emphasis added.)
The case-action summary in the State Judicial Information
System ("SJIS") contains five entries on April 15, 2019, that
respectively reflect the following:
"Case Assigned Status of Disposed
"Court Action Judge: Tim Riley
"Disposed on 04/11/2019 by (Other)
"C001 Disposed by (Other) on 04/11/2019
"D001 Disposed by (Other) on 04/11/2019."
Earlier case-action-summary entries indicate that "C001"
referred to Deutsche Bank and that and "D001" referred to
Dortha. The "(Other)" noted in the foregoing entries appears
to be a reference to the circuit court's April 11, 2019,
order, which is the only action taken by the circuit court on
that date that is reflected on the case-action summary.
1Case no. CV-2012-900434 was styled Ocwen Loan Servicing
LLC v. Dortha Karr, Randy Karr, Shane Wilks, and Susan Wilks.
5
1190036
On April 17, 2019, Deutsche Bank filed a "motion to
reconsider" the April 11, 2019, order, arguing, among other
things, that it had shown good cause for amending its
complaint and that the judgment entered in case no. CV-2012-
900434 did not preclude Deutsche Bank, under the doctrine of
res judicata, from maintaining the instant action. The Karrs
filed a response to Deutsche Bank's motion, and Deutsche Bank
later filed a "supplement" to its motion.
On September 4, 2019, the circuit court entered an order
denying Deutsche Bank's motion that provided, in relevant
part:
"The
Court,
after
duly
considering
the
arguments
of the parties, both written and oral, pertaining to
[Deutsche Bank]'s Motion to Reconsider this Court's
Order of April 11, 2019, wherein [Deutsche Bank]'s
Motion for Leave to Amend the Complaint was denied,
and this action was dismissed by operation of res
judicata, this Court finds as follows:
"....
"With regard to [Deutsche Bank]'s Motion to
Reconsider the dismissal of this action, this Court
has reviewed all pleadings and orders in Ocwen Loan
Servicing,
LLC
v.
Dortha
Karr,
[case
no.]
CV-2012-900434, and determines that the Plaintiff in
said action [is the party] from whom [Deutsche Bank]
derives its standing by virtue of assignment. It is
noted that Ocwen Loan Servicing, LLC, represented
itself to the Court in the afore-referenced action
to be the ultimate assignee of the mortgage which is
6
1190036
the subject matter of the instant action.[2] Upon
its sua sponte review of [case no.] CV-2012-900434,
the Court recognizes that the asserted claims of
Ocwen Loan Servicing, LLC, are of such degree of
similarity against ... Dortha ... as the claims
asserted herein by [Deutsche Bank], that [Deutsche
Bank]'s claims against [Dortha] are hereby barred by
operation of res judicata. This Court finds that
despite dismissal of the substantially similar
claims without prejudice, there exists a judgment on
the merits [in case no.] CV-2012-900434, in which
rights under the subject mortgage were represented
as belonging to the ultimate assignee, Ocwen Loan
Servicing, LLC. As the currently plead[ed] claims
were presented in the previous action, and could
have been adjudicated in said action, said claims
are now barred. Accordingly, [Deutsche Bank]'s
Motion to Reconsider this Court's Order dismissing
this action, is hereby DENIED."
(Capitalization in original.) Deutsche Bank thereafter filed
a document entitled "Supplement to Record," attaching
pleadings and orders from case no. CV-2012-900434.
On October 16, 2019, Deutsche Bank filed a notice of
appeal to this Court, naming the Karrs as appellees. On the
same day, Deutsche Bank filed, in the alternative, a petition
for the writ of mandamus in this Court, noting that the
circuit court's September 4, 2019, order did not address
Dortha's counterclaims (no. 1190033). On October 31, 2019,
2The record indicates that, in case no. CV-2012-900434,
Ocwen Loan Servicing, LLC, alleged that it was "the ultimate
assignee of Ameriquest" Mortgage Company.
7
1190036
this Court issued an order denying Deutsche Bank's mandamus
petition.
Analysis
The Karrs have filed a motion to dismiss Deutsche Bank's
appeal, arguing that it was not timely filed under Rule
4(a)(1), Ala. R. App. P. Rule 4(a)(1) provides, in pertinent
part:
"[I]n all cases in which an appeal is permitted by
law as of right to the supreme court or to a court
of appeals, the notice of appeal required by Rule 3
shall be filed with the clerk of the trial court
within 42 days (6 weeks) of the date of the entry of
the judgment or order appealed from ...."
(Emphasis added.) The Karrs contend that the circuit court's
April 11, 2019, order constituted a final judgment and that
Deutsche Bank's October 16, 2019, notice of appeal was,
therefore, untimely.
The Karrs acknowledge that, following the entry of the
circuit court's April 11, 2019, order, Deutsche Bank filed a
"motion to reconsider" on April 17, 2019, and that, if the
circuit court's April 11, 2019, order was a final judgment,
Deutsche Bank's "motion to reconsider" could be construed as
a postjudgment motion filed pursuant to Rule 59(e), Ala. R.
Civ. P. See Evans v. Waddell, 689 So. 2d 23, 26-27 (Ala.
8
1190036
1997)("While the Alabama Rules of Civil Procedure do not speak
of a 'motion to reconsider,' this Court has repeatedly
construed motions so styled, when they have been filed within
30 days after the entry of a final judgment, to be Rule 59(e)
motions.").
Postjudgment motions filed pursuant to Rule 59(e) within
30 days of the entry of a final judgment "suspend the running
of the time for filing a notice of appeal." Rule 4(a)(3),
Ala. R. App. P. However, the Karrs note that, if not ruled
upon, such motions generally remain pending for only 90 days,
after which time they are deemed denied by operation of law.
Rule 59.1, Ala. R. Civ. P.3 Under such circumstances, "the
3In pertinent part, Rule 59.1 provides:
"No postjudgment motion filed pursuant to Rules
50, 52, 55, or 59 shall remain pending in the trial
court for more than ninety (90) days, unless with
the express consent of all the parties, which
consent shall appear of record, or unless extended
by the appellate court to which an appeal of the
judgment would lie, and such time may be further
extended for good cause shown. A failure by the
trial court to render an order disposing of any
pending
postjudgment
motion
within
the
time
permitted hereunder, or any extension thereof, shall
constitute a denial of such motion as of the date of
the expiration of the period."
(Emphasis added.) In this case, the parties did not expressly
consent to extending the 90-day period provided by Rule 59.1,
9
1190036
time for filing a notice of appeal shall be computed from the
date of denial of such motion by operation of law, as provided
for in Rule 59.1." Rule 4(a)(3).
The Karrs note that, if Deutsche Bank's April 17, 2019,
"motion to reconsider" is construed as a postjudgment motion
filed pursuant to Rule 59(e), it was deemed denied by
operation of law 90 days later, on July 16, 2019, and Deutsche
Bank filed its notice of appeal on October 16, 2019, which was
more than 42 days after July 16, 2019. Therefore, the Karrs
argue, Deutsche Bank's notice of appeal was untimely if
Deutsche Bank's April 17, 2019, "motion to reconsider" is
construed as a postjudgment motion filed pursuant to Rule
59(e).
The Karrs also argue that, insofar as Deutsche Bank's
"motion to reconsider" can alternatively be construed as a
postjudgment motion filed pursuant to Rule 60, Ala. R. Civ.
P., as opposed to a postjudgment motion filed pursuant to Rule
59(e), Deutsche Bank's notice of appeal was untimely. In
support of their argument, they cite Coosa Marble Co. v.
Whetstone, 294 Ala. 408, 411, 318 So. 2d 271, 273 (1975)("[A
and this Court did not order such an extension. Therefore,
those provisions of Rule 59.1 are not at issue here.
10
1190036
Rule 60(b)] motion neither affects the finality of a judgment
nor tolls the time for appeal."). See also Graves v. Golthy,
21 So. 3d 720, 722 (Ala. 2009)("[A] Rule 60 motion is not
included in Rule 4(a)(3) ... as one of the motions that toll
the time in which to file an appeal.").
Thus, in order to decide whether the Karrs' motion to
dismiss Deutsche Bank's appeal should be granted, we must
determine whether the circuit court's April 11, 2019, order
constituted a final judgment, such that Deutsche Bank's time
for filing a notice of appeal began to run on that date,
unless otherwise tolled.
I. The April 11, 2019, Order
As noted above, the circuit court's April 11, 2019, order
provided, in its entirety:
"Motion to Strike is hereby GRANTED for Mr.
Randy Karr.
"The Court notes that all claims in this case
were previously litigated in case number CV-
2012-900434 between Dortha Karr, Shane Wilks, and
Susan Wilks. Said case was heard by [another judge
in this circuit court], and it involved the same
real estate.
"Costs taxed to [Deutsche Bank]."
(Capitalization in original.)
11
1190036
The Karrs argue that the foregoing sufficiently reflects
entry of a final judgment by the circuit court on April 11,
2019. We disagree.
"A final judgment that will support an appeal is
one that puts an end to the proceedings between the
parties to a case and leaves nothing for further
adjudication. See City of Birmingham v. City of
Fairfield, 396 So. 2d 692 (Ala. 1981). ... Without
a final judgment, this Court is without jurisdiction
to hear an appeal. Cates v. Bush, 293 Ala. 535, 307
So. 2d 6 (1975)."
Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So. 2d 316,
320 (Ala. 2001). Moreover, "[i]n order to terminate a civil
action filed in an Alabama court, the [circuit] court must
enter a final judgment in that action," i.e., one that
complies with the requirements of Rule 58(b), Ala. R. Civ. P.
Ex parte Wharfhouse, 796 So. 2d at 320.
In pertinent part, Rule 58(b) provides:
"(b) Sufficiency of Order or Judgment. An order
or a judgment need not be phrased in formal language
nor bear particular words of adjudication. A
written order or a judgment will be sufficient if it
is signed or initialed by the judge ... and
indicates an intention to adjudicate, considering
the whole record, and if it indicates the substance
of the adjudication."
Because the circuit-court judge signed the written April 11,
2019, order, only two of the requirements of Rule 58(b) are at
12
1190036
issue concerning the order: (1) whether the record indicates
that the circuit court intended for the April 11, 2019, order
to adjudicate all the claims and counterclaims pending in this
action and, if so, (2) whether the April 11, 2019, order
indicated the substance of the circuit court's adjudication.
Regarding the first requirement, we note that Rule 58(b)
directs consideration of "the whole record" in determining
whether a particular order or judgment indicates an intention
to adjudicate. See also Hayden v. Harris, 437 So. 2d 1283,
1286 (Ala. 1983). In addition to the April 11, 2019, order
itself, we again note that the record contains five April 15,
2019, SJIS case-action-summary entries that respectively
reflected the following:
"Case Assigned Status of Disposed
"Court Action Judge: Tim Riley
"Disposed on 04/11/2019 by (Other)
"C001 Disposed by (Other) on 04/11/2019
"D001 Disposed by (Other) on 04/11/2019."
As previously noted, earlier case-action-summary entries
indicate that "C001" referred to Deutsche Bank and that and
"D001" referred to Dortha. The "(Other)" noted in the
13
1190036
foregoing entries appears to be a reference to the circuit
court's April 11, 2019, order, which is the only action taken
by the circuit court on that date that is reflected on the
case-action summary. The foregoing entries sufficiently
indicate that the circuit court intended for the April 11,
2019, order to terminate the action –- both Deutsche Bank's
claims and Dortha's counterclaims.
Therefore, we turn to the second requirement of Rule
58(b) noted above, i.e., whether the April 11, 2019, order
indicated the substance of the circuit court's adjudication.
In Hayden, 437 So. 2d at 1285, this Court stated:
"'[U]nder the doctrines of our cases the test of
finality of a judgment to support an appeal is not
whether the cause remains in fieri awaiting further
proceedings to entitle the parties to their acquired
rights, but whether the judgment ascertains and
declares such rights embracing the substantial
merits of the controversy and the material issues
litigated are necessarily involved. If these rights
are ascertained, the decree is final and will
support an appeal.'"
(Quoting Alabama Pub. Serv. Comm'n v. Redwing, Inc., 281 Ala.
111, 116, 199 So. 2d 653, 657 (1967)(emphasis added).)
In interpreting the substance of the April 11, 2019,
order, we must examine the language used in that order.
"Judgments and decrees are to be construed like other written
14
1190036
instruments. Schwab v. Schwab, 255 Ala. 218, 50 So. 2d 435
[(1951)]; Johnson v. Harrison, 272 Ala. 210, 130 So. 2d 35
[(1961)]. The legal effect must be declared in the light of
the literal meaning of the language used." Wise v. Watson,
286 Ala. 22, 27, 236 So. 2d 681, 686 (1970).
When the literal meaning of the language used in the
April 11, 2019, order is considered, it is apparent that the
reason for the order was to dispose of the Karrs' pending
motion to "strike [Deutsche Bank]'s motion for leave to file
the second amended complaint and a claim against Randy," which
motion the April 11, 2019, order clearly granted. As the
Karrs' note in their appellate brief, they "had not filed a
motion to dismiss [or] a motion for summary judgment." Karrs'
brief, at 9 (emphasis added). In its response to a show-cause
order issued by this Court regarding the Karrs' motion to
dismiss Deutsche Bank's appeal, Deutsche Bank also states that
"[n]o party had filed a dispositive motion." Deutsche Bank's
response to show-cause order, at 5 (emphasis added).
The April 11, 2019, order went on to "note[] that all
claims in this case were previously litigated in case number
CV-2012-900434." (Emphasis added.) In relevant part,
15
1190036
Merriam-Webster's Collegiate Dictionary 848 (11th ed. 2003)
defines "note" as "to make special mention of or remark on."
Thus, the literal meaning of the language set out in the April
11, 2019, order clearly reflected a desire by the circuit-
court judge to make special mention of or remark on the fact
that a judge in the same circuit court had presided over case
no. CV-2012-900434 and to express his view that all the claims
pending in the underlying action had been previously litigated
in case no. CV-2012-900434. Although Rule 58(b) does not
require a circuit court to use "particular words of
adjudication," the words used must nevertheless adequately
ascertain and declare the substance of the circuit court's
adjudication, and the parties' respective rights must be
clear
from the language used. See Hayden, 437 So. 2d at 1285.
Simply "not[ing]" facts that the circuit-court judge
believes are legally significant does not amount to a
declaration by the circuit court regarding how the existence
of those facts results in a particular disposition, such that
the
parties'
respective
rights
could
be
adequately
ascertained, especially in the absence of any pending motion
to dismiss filed by either party. Morever, although the April
16
1190036
15, 2019, SJIS case-action-summary entries evinced an intent
to terminate the action, those entries simply stated
"disposed" and, like the April 11, 2019, order, did not
adequately declare the substance of the circuit court's
adjudication regarding Deutsche Bank's claims and Dortha's
counterclaims, such that the parties' respective rights could
be adequately ascertained.
Admittedly, the circuit court's September 4, 2019, order
finally clarified its view that Deutsche Bank's claims were
due to be "dismissed by operation of res judicata." However,
we conclude that the explanation set out in the circuit
court's September 4, 2019, order should not
be
retrospectively
considered to determine the substance of the April 11, 2019,
order. Because neither the literal meaning of the language of
the April 11, 2019, order itself nor the SJIS case-action-
summary entries made four days later reflected the substance
of the circuit court's adjudication regarding Deutsche Bank's
claims and Dortha's counterclaims, we conclude that the April
11, 2019, order did not constitute a sufficient final judgment
within the meaning of Rule 58(b), such that the time for
filing a notice of appeal began to run. Therefore, the Karrs'
17
1190036
motion to dismiss Deutsche Bank's appeal as untimely filed is
denied.
II. The September 4, 2019, Order
Because the April 11, 2019, order was not a sufficient
final judgment, the claims and counterclaims asserted by the
parties in this action were still pending when the circuit
court entered the September 4, 2019, order clarifying the
substance of its adjudication. If the September 4, 2019,
order was a sufficient final judgment, Deutsche Bank's October
16, 2019, notice of appeal was timely filed. Thus, we must
determine whether the September 4, 2019, order constituted a
sufficient final judgment capable of supporting Deutsche
Bank's appeal.
The circuit-court judge signed the September 4, 2019,
order, and, as explained above, unlike the April 11, 2019,
order, the September 4, 2019, order clearly communicated the
circuit
court's
determination
that
Deutsche
Bank's
claims
were
barred by the doctrine of res judicata and were dismissed.4
Thus, once the September 4, 2019, order was entered, the
4As noted above, the September 4, 2019, order indicates
that the circuit court reached this conclusion after a sua
sponte review of the record in case no. CV-2012-900434.
18
1190036
pertinent requirements of Rule 58(b) were satisfied regarding
Deutsche Bank's claims.
However, as Deutsche Bank notes in its brief, the
September
4,
2019,
order
did
not
address
Dortha's
counterclaims against Deutsche Bank alleging the tort of
outrage and slander of title. Deutsche Bank's brief, at 3
n.2. Although certain parts of the September 4, 2019, order
appear to indicate that the circuit court concluded that the
entire "action" was due to be dismissed, the substantive
language of the order reflects only a determination that
Deutsche Bank's claims were barred by the doctrine of res
judicata; it did not adequately ascertain and
declare Deutsche
Bank's rights as they pertained to Dortha's counterclaims.
See Hayden, 437 So. 2d at 1285. Thus, the September 4, 2019,
order did not meet the requirements of Rule 58(b) as to
Dortha's counterclaims.
As explained above, "[a] final judgment that will support
an appeal is one that puts an end to the proceedings between
the parties to a case and leaves nothing for further
adjudication." Ex parte Wharfhouse, 796 So. 2d at 320.
Because Dortha's counterclaims have not been sufficiently
19
1190036
adjudicated, a final judgment has not been entered in this
action.5
"When it is determined that an order appealed from is not
a final judgment, it is the duty of the Court to dismiss the
appeal ex mero motu." Powell v. Republic Nat'l Life Ins. Co.,
293 Ala. 101, 102, 300 So. 2d 359, 360 (1974). Therefore,
although we deny the Karrs' motion to dismiss Deutsche Bank's
appeal as untimely filed, we must nevertheless dismiss
Deutsche Bank's appeal because it was taken from a nonfinal
judgment.6 Because we dismiss Deutsche Bank's appeal, we do
not consider the merits of the parties' substantive arguments,
and we express no opinion concerning those issues.
5We note that the circuit court did not certify its
September 4, 2019, order as final pursuant to Rule 54(b), Ala.
R Civ. P.
6As noted above, on the same day Deutsche Bank filed its
notice of appeal, it also filed a petition for the writ of
mandamus, in the alternative, which this Court denied on
October 31, 2019. Put simply, mandamus relief is not
warranted in this case because Deutsche Bank has failed to
demonstrate that an appeal taken from a final judgment, once
entered by the circuit court, will not provide an adequate
remedy for review of the errors alleged by Deutsche Bank. See
Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 814 (Ala.
2003)("The burden rests on the petitioner to demonstrate that
its petition presents such an exceptional case –- that is, one
in which an appeal is not an adequate remedy.").
20
1190036
APPEAL DISMISSED.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ.,
concur.
21 | April 17, 2020 |
f4db6a9a-7ff1-4350-9af2-b2ea585614f2 | Ilka Porter v. Alexis Campbell Porter, as administratrix of the Estate of Sean M. Porter | N/A | 1200683 | Alabama | Alabama Supreme Court | Rel: December 10, 2021
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, 2021-2022
_________________________
1200682
_________________________
Lina Louise Porter, a minor, through her mother and next
friend, Ilka Porter
v.
Alexis Campbell Porter, as administratrix of the Estate of Sean
M. Porter, deceased
_________________________
1200683
_________________________
Ilka Porter
v.
Alexis Campbell Porter, as administratrix of the Estate of Sean
M. Porter, deceased
Appeals from Baldwin Probate Court
(No. 38863)
STEWART, Justice.
Ilka Porter and Lina Louise Porter, through her mother and next
friend, Ilka Porter, appeal from an order of the Baldwin Probate Court
concluding that Sean M. Porter was married to Alexis Campbell Porter at
the time of his death and appointing Alexis Campbell Porter as
administratrix of his estate. The question presented by these appeals is
one of first impression in Alabama: Whether the death of a party to a
marriage, after a marriage document is executed but before the marriage
document is recorded, invalidates the marriage for failure to comply with
the registration requirements of § 22-9A-17, Ala. Code 1975. For the
reasons discussed below, we conclude that it does not, and we affirm the
probate court's order.
Facts and Procedural History
The facts underlying these appeals are undisputed. On March 3,
2011, Sean M. Porter ("Sean") executed a will designating Ilka Porter
("Ilka"), his then wife, as executrix and naming both Ilka and Lina Louise
2
1200682, 1200683
Porter ("Lina"), Sean's daughter with Ilka, as beneficiaries. The will
designated a successor executrix who predeceased Sean.
Section 22-9A-17, which sets forth the requirements for registering
a marriage in Alabama, became effective on August 29, 2019. On October
10, 2019, Sean and Ilka were divorced. On August 14, 2020, Sean had a
second child, Emma Lauren Porter, through his relationship with Alexis
Campbell, now Alexis Campbell Porter ("Alexis").
On September 26, 2020, Sean and Alexis duly executed a marriage
certificate before a notary public. On October 19, 2020, Sean died
unexpectedly. On October 20, 2020, the previously executed marriage
certificate was recorded with the Baldwin Probate Court ("the probate
court") pursuant to § 22-9A-17.
On January 6, 2021, Ilka filed a petition to have letters
testamentary issued to her, but, on March 4, 2021, she amended her
petition to ask that letters of administration with the will annexed be
issued to the county administrator instead. On March 4, 2021, Alexis filed
her own petition for letters of administration with the will annexed, and
she requested that the letters be issued to her, as Sean's surviving spouse.
3
1200682, 1200683
Ilka subsequently moved for the probate court to enter a summary
judgment finding that Sean's death had abated the marriage process and,
consequently, that Alexis was not a surviving spouse entitled to serve as
the administratrix of or to inherit from Sean's estate. Alexis
simultaneously moved for the probate court to confirm her marriage to
Sean, i.e., to confirm that the registration requirements of § 22-9A-17 had
been complied with, and to conclude that Sean's death was immaterial to
the validity of their marriage.
On May 25, 2021, the probate court issued an order finding that the
marriage between Sean and Alexis was "not abated by the intervening
death between execution of a certificate of marriage and filing of same"
and that, as Sean's surviving spouse, Alexis had priority to serve as the
administratrix of his estate pursuant to § 43-2-42(a)(1), Ala. Code 1975.
Lina and Ilka (hereinafter referred to collectively as "the appellants")
appeal.
Standard of Review
" 'This Court reviews de novo [a probate] court's interpretation of a
statute, because only a question of law is presented.' " Pickens v. Estate
4
1200682, 1200683
of Fenn, 251 So. 3d 34, 36 (Ala. 2017) (quoting Scott Bridge Co. v. Wright,
883 So. 2d 1221, 1223 (Ala. 2003)).
Discussion
The appellants argue that, because Sean's death occurred before the
appropriate marriage documents were filed with the probate court within
the 30-day period prescribed by § 22-9A-17(a), his death abated his
marriage to Alexis. They contend that the probate court incorrectly
concluded that a valid marriage existed between Alexis and Sean and that
the probate court should not have appointed Alexis as the administratrix
of his estate.
Section 22-9A-17 was substantially revised by Act No. 2019-340, Ala.
Acts 2019, to abolish the requirement that marriage licenses be issued by
probate-court judges. Section 22-9A-17 now provides as follows:
"(a) Two persons desiring to unite in marriage may do so
by submitting the affidavits, forms, and data specified in
Section 30-1-5[, Ala. Code 1975,] and Section 30-1-9.1[, Ala.
Code 1975,] for recording with the office of the judge of
probate. The recording of the affidavits, forms, and data
establishes legal recognition of the marriage as of the date the
affidavits and forms were properly signed by the two parties
so long as the documentation was provided to the probate
office within 30 days of the signatures of the parties. Each
5
1200682, 1200683
marriage filed with the probate office shall be filed and
registered with the Office of Vital Statistics.
"(b) The office of the judge of probate shall record, in a
permanent record, each marriage presented to the probate
office for filing so long as the affidavits, forms, and data are
submitted as required by Act 2019-340, and shall forward each
marriage filed with the probate office during the preceding
calendar month to the Office of Vital Statistics on or before the
fifth day of the following calendar month."
(Emphasis added.)
Rules of statutory construction guide our interpretation of statutes
like the one at issue in these appeals. This Court has previously
recognized that
"[t]he fundamental rule of statutory construction is to
ascertain and give effect to the intent of the legislature in
enacting the statute. Words used in a statute must be given
their natural, plain, ordinary, and commonly understood
meaning, and where plain language is used a court is bound to
interpret that language to mean exactly what it says."
IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.
1992). In Water Works & Sewer Board of Selma v. Randolph, 833 So. 2d
604, 607 (Ala. 2002), this Court further cautioned that, "[w]hen
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
6
1200682, 1200683
statute," and that, "[w]hen the language is clear, there is no room for
judicial construction."
The statutory language of § 22-9A-17 is clear. It outlines the process
for filing marriage documents, states that two persons seeking to marry
"may do so" by observing that process, provides that compliance with that
process establishes legal recognition of the marriage, and defines the
probate office's duties with respect to recording and forwarding the
marriage documents to the Office of Vital Statistics.
Section 30-1-9.1, Ala. Code 1975, which is entitled "Requirements for
marriage; validity; construction with other laws," and which is referenced
in § 22-9A-17, provides:
"A marriage conforming to the requirements of this section
shall be valid on the date the marriage is executed by both
parties, provided the affidavits, forms, and data are recorded
in the office of the judge of probate within 30 days of the date
of the last party's signature in accordance with Section
22-9A-17."
§ 30-1-9.1(c) (emphasis added). Notably, neither § 22-9A-17 nor § 30-1-9.1
mentions or addresses the effect of the death of a party on the registration
process or a duly executed marriage. In applying the above-mentioned
7
1200682, 1200683
rules of statutory construction to § 22-9A-17, we conclude that the
statutory text does not support a conclusion that the legislature intended
for the death of a party to a marriage that occurs after the execution of the
marriage but before the recordation of the marriage documents to have
any legal effect on the validity of that marriage.
Here, the undisputed facts establish that the marriage between Sean
and Alexis conformed with the requirements of § 30-1-9.1, that both
parties signed the requisite marriage documents on September 26, 2020,
and that those documents were submitted to the probate court for
recording on October 20, 2020, which was 24 days after the parties signed
the documents. Accordingly, the marriage between Sean and Alexis was
entitled to legal recognition consistent with the plain and unambiguous
terms of § 22-9A-17.
Although the appellants concede that § 22-9A-17 does not address
the impact of an intervening death on the marriage process, they
nevertheless contend that this omission is inconsequential. According to
the appellants, "[i]t is commonly understood that a dead person cannot
8
1200682, 1200683
marry and as unfortunate and as unexpected as [Sean's] death was, the
result is no different than if [Sean] had died in an unforeseen automobile
accident on the day before his ceremonial wedding was to occur." The
appellants' brief at p. 10.
In support of this proposition, the appellants assert that "death's
impact on various proceedings has been thoroughly addressed by this and
other courts," id. at 8, and direct us to look to purportedly analogous
caselaw in resolving this question of first impression. Specifically, they
cite several decisions from this Court, the Court of Civil Appeals, and
federal courts that, according to the appellants, indicate that Sean's death
in this case rendered the marriage certificate filed in the probate court
following his death a nullity.
In particular, the appellants cite Ex parte Thomas, 54 So. 3d 356
(Ala. 2010), Ex parte Parish, 808 So. 2d 30 (Ala. 2001), and Ex parte Riley,
10 So. 3d 585 (Ala. Civ. App. 2008), as illustrative of the principle that
death terminates divorce and marriage proceedings in Alabama. Those
decisions, however, are inapposite to the issue raised by these appeals. In
9
1200682, 1200683
Ex parte Thomas, this Court concluded that a divorce action between a
husband and wife abated upon the death of the husband. 54 So. 3d at 359.
In Ex parte Parish, this Court held that a court's interlocutory orders
dividing marital property in a divorce action were abated by the death of
a spouse. 808 So. 2d at 33. In Ex parte Riley, the Court of Civil Appeals
likewise affirmed that a husband's death abated the divorce action
between the husband and his wife. 10 So. 3d at 587. Significantly, all
three decisions applied common-law abatement rules to pending divorce
proceedings.
The appellants further rely on Ex parte Estate of Cook, 848 So. 2d
916 (Ala. 2002) (concluding that criminal defendant's death pending
appeal abated both appeal and underlying conviction), Price v. Southern
Ry., 470 So. 2d 1125 (Ala. 1985) (stating that plaintiff's personal-injury
action did not survive the plaintiff's death), United States v. Volpendesto,
746 F.3d 273 (7th Cir. 2014) (holding that criminal defendant's death
pending appeal of conviction abated entire course of the proceedings
against him and invalidated previously issued restitution order), and
10
1200682, 1200683
United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004)
(concluding that criminal defendant's death pending appeal of his case
abated the entire criminal proceeding), to buttress their claim that settled
caselaw supports their view that Sean's death foreclosed the formation of
a valid marital union under § 22-9A-17. Those cases, however, again
involve the application of statutory and common-law abatement rules to
pending legal actions, and there is no such action at issue in this case.
Indeed, Alabama's abatement doctrine narrowly provides that
certain actions, or causes of action, do not survive the death of one of the
parties. See Wynn v. Tallapoosa Cnty. Bank, 168 Ala. 469, 490, 53 So. 228,
237 (1910) ("At common law not only the cause of action, but the action
itself died with the person."). In Wynn, this Court noted that the term
"action" was alternatively defined as " 'a civil proceeding taken in a court
of law to enforce a right' " or " 'the means by which men litigate with each
other.' " Id. at 491 (citations omitted); see also Meek v. Centre Cnty.
Banking Co., 268 U.S. 426, 429 (1925) (concluding that an administrative
bankruptcy proceeding, "not being in the nature of a common-law action,
11
1200682, 1200683
is not abated by any rule of the common law"); Shelton v. Green, 261 So.
3d 295, 296-97 (Ala. 2017) (defining "action," in the context of our state's
survival statute, as a " 'proceeding pending in court to determine the
parties' rights and liabilities with respect to a legal wrong or cause of
action' ") (quoting McDowell v. Henderson Mining Co., 276 Ala. 202, 204,
160 So. 2d 486, 488 (1963))).
Here, the appellants fail to allege, much less demonstrate, that the
submission of marriage documents to a probate office for recording should
properly be considered within the class of actions or causes of action
subject to Alabama's common-law or statutory abatement rules.
Importantly, persons who register previously executed marriage
documents pursuant to § 22-9A-17 are not engaging in a court proceeding,
litigating with another party, or seeking the probate court's determination
of their rights and liabilities.
Indeed, according to the title of Act No. 2019-340, which amended
§ 22-9A-17, the stated purposes of the act include "abolish[ing] the
requirement that a marriage license be issued by the judge of probate"
12
1200682, 1200683
and "provid[ing] that the judge of probate would record each marriage
presented to the probate court for recording," effectively limiting the
probate court's role in the marriage process to that of record keeper. In
fact, § 22-9A-17, when read in conjunction with § 30-1-9.1, affords the
probate court seemingly no discretionary authority with respect to
recording otherwise compliant marriage documents submitted to the
probate office within the designated period. See § 22-9A-17 ("The office of
the judge of probate shall record … each marriage presented to the
probate office for filing so long as the affidavits, forms, and data are
submitted as required." (emphasis added)); § 30-1-9.1(c) ("A marriage
conforming to the requirements of this section shall be valid on the date
the marriage is executed by both parties, provided the affidavits, forms,
and data are recorded in the office of the judge of probate within 30 days
of the date of the last party's signature …. " (emphasis added)).
In light of this language commanding the probate court to record any
marriage documents properly filed with the probate office, there is no
basis for concluding that the registration process outlined in § 22-9A-17
13
1200682, 1200683
meaningfully invokes the adjudicatory power of a court of law. Therefore,
neither the authorities cited by the appellants nor the statutory text
reflect that the submission of marriage documents pursuant to § 22-9A-17
qualifies as the kind of action that, under Alabama's governing common-
law or statutory rules, would be abated by the death of a party.1
1The appellants also rely on Hays v. Hays, 946 So. 2d 867 (Ala. Civ.
App. 2006), a decision that does not invoke the abatement doctrine but
that, according to the appellants, supports their claim that death will
terminate a legal relationship. Hays, however, is readily distinguishable
from the present case. In Hays, the Court of Civil Appeals determined
that a trial court had erred in granting a stepmother's petition to adopt
her adult stepdaughter because, at the time the stepmother filed her
adoption petition, her husband, the prospective adoptee's biological father,
was dead. Id. The Court of Civil Appeals explained that the purely
statutory right of adoption in Alabama permits adoption of an adult when
the adult " 'consents in writing to be adopted and ... is a stepchild by
marriage.' " Id. at 868 (quoting § 26-10A-6(2)c., Ala. Code 1975 (emphasis
omitted)). The Court of Civil Appeals concluded that, because the
stepmother had lost her "stepparent" status upon the death of her
husband, her petition failed to adhere to the express requirements of the
adoption statute. However, as discussed above, and in contrast to the
not-yet-adjudicated adoption proceeding in Hays, the marriage-
registration process set forth in § 22-9A-17 does not require that both
parties to a validly executed marriage be alive when the marriage
documents are provided to the probate office. Thus, a spouse's death does
not preclude adherence to the statutory requirements of § 22-9A-17.
14
1200682, 1200683
Accordingly, Sean's death in this case did not abate the marriage-
registration process set forth in § 22-9A-17.
Conclusion
Applying the plain language of § 22-9A-17, we conclude that the
legislature did not intend for the death of a party to a marriage that
occurs after a marriage document is executed but before the marriage
document is recorded to void a marriage for failure to comply with
§ 22-9A-17. We further hold that there is no basis in existing law for
overriding the plain meaning of § 22-9A-17. Accordingly, the probate court
did not err in recognizing Sean's marriage to Alexis as valid, and we
affirm the probate court's order.
1200682 -- AFFIRMED.
1200683 -- AFFIRMED.
Bolin and Sellers, JJ., concur.
Parker, C.J., concurs specially.
Wise, J., concurs in the result.
15
1200682, 1200683
PARKER, Chief Justice (concurring specially).
Fully concurring in the main opinion, I write to emphasize the sea
change that recent amendments to the marriage statutes have worked in
Alabama law regarding legal recognition of marriages.
To understand the nature of this change, it is important to first
clarify in what sense the State of Alabama, or any civil government, has
power to "redefine" marriage. The relationship of marriage was designed
by the Creator; it both predates and transcends civil societies. See
Campbell's Adm'r v. Gullatt, 43 Ala. 57, 67 (1869) ("Marriage is a divine
institution, and, although in some respects it may partake of the nature
and character of ordinary contracts, it has, with few exceptions, always
been considered as standing upon higher and holier grounds ...."). See
generally Ex parte State ex rel. Alabama Pol'y Inst., 200 So. 3d 495,
504-05 (Ala. 2015) ("API") (expounding meaning of marriage). No civil
government was its originator, so none has power to define its essence.
Rather, the nature and outer boundaries of marriage are defined only by
its Supreme Architect, in His written word and in the natural order. See
16
1200682, 1200683
API, 200 So. 3d at 613 (Murdock, J., concurring specially with order issued
March 4, 2016) ("Governments did not and do not create the institution of
marriage. A civil government can choose to recognize that institution; it
can choose to affirm it; and it can even take steps to encourage it.
Governments throughout history have done so. But governments cannot
change its essential nature. Marriage is what it is."). That nature and
those boundaries include the original creation of marriage as a covenant
relationship by mutual consent between two human beings of opposite
sexes -- i.e., one man and one woman. See generally API, 200 So. 3d at
505-06 (recognizing nature of marriage).
Although governments are without power to change this institution
of marriage, they are nevertheless obligated to recognize it in their laws.
Thus, as long as they act consistently with the divinely established nature
and boundaries of the institution, governments have power to determine
the methods by which particular marriages receive legal recognition. See
Wilkes v. Wilkes, 245 Ala. 54, 55, 16 So. 2d 15, 16 (1943) ("Every state has
the ... power to regulate and define by law the marital status of its citizens
17
1200682, 1200683
...."). In this limited sense, governments have power to "define" and
"redefine" who is and is not married in the eyes of the law.
Like other American states, Alabama has done exactly that. Before
2017, Alabama law recognized two methods of obtaining legal recognition
of a marriage: ceremonial marriage and common-law marriage. The first
method I refer to as "ceremonial" marriage because its essential feature
was a ceremony by which the marriage was initiated. The ceremony could
take many forms and could be officiated at by a variety of religious or civil
officials, see § 30-1-7, Ala. Code 1975, but some kind of marriage ceremony
was required. A marriage license was ostensibly a condition precedent to
a valid ceremony, see former § 30-1-9 (repealed); Ashley v. State, 109 Ala.
48, 49, 19 So. 917, 918 (1896); Herd v. Herd, 194 Ala. 613, 615, 69 So. 885,
886 (1915), but sometimes defects in the licensing process were overlooked
by this Court in favor of holding a ceremony sufficient, see Ely v. Gammel,
52 Ala. 584, 586 (1875); Smith v. Smith, 205 Ala. 502, 88 So. 577 (1921);
Wallace v. Screws, 227 Ala. 183, 149 So. 226 (1923).
18
1200682, 1200683
The other method, common-law marriage, allowed recognition of a
marriage without having to prove the occurrence of a ceremony. Instead,
establishing the existence of a common-law marriage required proving
that the parties had capacity to marry; that they mutually agreed to
permanently enter the marriage relationship to the exclusion of all other
such relationships; that they cohabited or publicly assumed marital
duties; and that the public recognized their relationship as a marriage.
See Harbin v. Estess, 267 So. 3d 300, 307 (Ala. 2018); Creel v. Creel, 763
So. 2d 943, 946 (Ala. 2000).
In 2017 and 2019, however, the Legislature prospectively abolished
each of those methods of obtaining legal recognition of a marriage. The
Legislature did so in two steps. First, the enactment of § 30-1-20 expressly
did away with common-law marriage as to marriages entered into in 2017
or later. See § 30-1-20(a) ("No common-law marriage may be entered into
in this state on or after January 1, 2017."). Thus, after that amendment
to our marriage statutes, the only remaining method was ceremonial
marriage.
19
1200682, 1200683
Then, in 2019, further amendments removed ceremonial marriage
as a method of legal recognition, as to marriages entered into on or after
August 29, 2019. That is, a ceremony is no longer a necessary condition or
a sufficient condition to establish a statutorily recognized marriage. The
amendments provided: "The requirement of a ceremony of marriage to
solemnize the marriage is abolished," § 30-1-9.1(g), and "[t]he state shall
have no requirement for any ceremony or proceeding and whether or not
a ceremony or proceeding is performed or not performed shall have no
legal effect on the validity of the marriage," § 30-1-9.1(d). The
amendments also removed the license requirement that had been a
prerequisite for a ceremony. See Act No. 2019-340, § 3, Ala. Acts. 2019,
repealing § 30-1-9.
In place of a ceremony, the 2019 amendments substituted a
registration method of recognition. The marriage-requirements statute
now provides: "[T]he only requirement for a marriage in this state shall
be for parties who are otherwise legally authorized to be married to enter
into a marriage as provided in this section." § 30-1-9.1(a). The statute then
20
1200682, 1200683
sets forth the registration procedure discussed in the main opinion,
primarily execution and recording of a marriage document. § 30-1-9.1(b),
(c), (e); see also § 22-9A-17(a) (cross-referencing, and similarly stating,
registration procedure). In this way, the 2017 and 2019 amendments
collectively
abolished
ceremonial
and
common-law
marriage
(prospectively) in favor of a single administrative method of recognition,
registration.
The above understanding of the effect of the amendments has
important implications for, among many other things, interpreting the
seemingly
permissive
language
of
the
marriage-registration
record-keeping statute, § 22-9A-17. That statute provides: "Two persons
desiring to unite in marriage may do so by submitting the affidavits,
forms,
and
data
specified
in
[certain
parental-consent
and
marriage-registration statutes] for recording with the office of the judge
of probate." § 22-9A-17(a) (emphasis added). In light of the above
explanation of Alabama marriage law pre- and post-amendments, the
word "may" in that statute cannot be read as permissive in the sense there
21
1200682, 1200683
is some other way to establish a legally recognized marriage. The only
other methods, ceremonial marriage and common-law marriage, have
been expressly abolished, and the statute's use of "may" cannot be read in
a manner that would resurrect those methods. Rather, it must be read in
an exclusive-permissive sense: The marriage-registration statutes do not
require anyone to get married, but if people do decide to marry, these
statutes provide the exclusive method by which to obtain legal recognition
of the marriage. Cf. Celtic Life Ins. Co. v. McLendon, 814 So. 2d 222, 225
(Ala. 2001) (interpreting contractual arbitration provision's use of "may"
in this exclusive-permissive sense; " '[T]he use of the word "may" in an
arbitration agreement does not imply that the parties to the agreement
have the option of invoking some remedy other than arbitration.' "
(quoting Held v. National R.R. Passenger Corp., 101 F.R.D. 420, 424
(D.D.C. 1984))); Hanover Ins. Co. v. Kiva Lodge Condo. Owners' Ass'n, 221
So. 3d 446, 450-56 (Ala. 2016) (same; " '[M]ay' ... 'merely means that
neither party is obliged to initiate ... arbitration.' " (quoting with approval
22
1200682, 1200683
Benihana of Tokyo, LLC v. Benihana Inc., 73 F. Supp. 3d 238, 249
(S.D.N.Y 2014))).
Finally, in pointing out that Alabama has obviated ceremony as a
method for legal recognition of marriage, I am in no way discounting the
societal significance of a marriage ceremony. This practice commonly has
a multitude of salutary features, including encouraging the couple to
appreciate the solemnity of the commitment into which they are entering.
See Campbell's Adm'r, 43 Ala. at 67 ("There is, no doubt, much wisdom in
... seek[ing] to throw around the marriage relation safeguards to prevent
its being entered into hastily[] or unadvisedly ...."). A ceremony also often
provides an opportunity for witnesses to observe the event, including
family and friends who may provide important support and accountability
for the success of the marriage in years to come. In addition, when
sufficiently public, the ceremony functions as a reminder that marriage
is not merely a private, isolated arrangement between two individuals. It
is an institution for the collective good, and each marriage forms a crucial
thread in the tapestry of a flourishing society. In that vein, a wedding
23
1200682, 1200683
often provides an occasion for celebration and merriment, as guests
joyously commemorate the formation of a new family unit. Indeed,
although the relationship of marriage is temporal -- good for this life only,
see Matthew 22:23-30; Mark 12:18-25 -- there may be something about a
wedding and its feast that reflects eternal realities, see Revelation 19:6-9.
Perhaps something about those realities underlies the ubiquity of this
custom in cultures around the world. Whatever the case, the societal
benefits of a marriage ceremony abound. And the new legal reality that
a marriage ceremony is not required in Alabama ought not to discourage
the continuation of this important tradition.
24 | December 10, 2021 |
12df682f-c645-4ca2-ac0d-e5c41033296f | Ex parte Elbert Melton, Jr. | N/A | 1190573 | 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
1190573
Ex parte Elbert Melton, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Elbert Melton, Jr. v. State of Alabama) (Houston Circuit Court:
CC-17-1469; CC-17-1470; Criminal Appeals :
CR-18-0498).
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. Parker, C.J. - Bolin, Wise, Sellers, and Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 12th day of June, 2020.
Clerk, Supreme Court of Alabama | June 12, 2020 |
ab092bb4-3382-494b-9317-46a85db9a267 | Ex parte Calvin Massey. | N/A | 1190561 | 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
1190561
Ex parte Calvin Massey. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS (In re: Calvin Massey v. State of Alabama) (Montgomery Circuit Court:
CC-11-737.64; Criminal Appeals :
CR-19-0117).
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. 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 15th day of May, 2020.
l i t a
Clerk, Supreme Court of Alabama | May 15, 2020 |
62b28822-9091-4ba6-87e6-711e5ada1d8b | Ex parte Jamison Tyler McClurg. | N/A | 1210050 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1210050
Ex parte Jamison Tyler McClurg. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Jamison Tyler McClurg
v. State of Alabama) (St. Clair Circuit Court: CC19-72; Criminal Appeals :
CR-19-1012).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 3, 2021:
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 3rd day of December, 2021.
Clerk, Supreme Court of Alabama | December 3, 2021 |
e0b272dd-2299-40ab-a0e2-53d050822fe0 | Tamela S. Savage v. P.B. Surf, LTD | N/A | 1180903 | Alabama | Alabama Supreme Court | rel: April 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1180903
Tamela S. Savage v. P.B. Surf, LTD. (Appeal from Jefferson
Circuit Court: CV-11-904034).
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. | April 10, 2020 |
42539050-64ce-456c-8851-ceffd70c58d8 | Ex parte Michael Gregory Hubbard. | N/A | 1180047 | Alabama | Alabama Supreme Court | I N T H E S U P R E M
E C O U R T O F A L A B A M
A
August 28, 2020
1180047
Ex parte Michael Gregory Hubbard. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Michael Gregory Hubbard v. State of Alabama)
(Lee Circuit Court: CC-14-565; Criminal Appeals :
CR-16-0012).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on August 28, 2020:
Application Overruled. No Opinion. Parker, C.J. - Bolin, Wise, Bryan, Mendheim, and
Stewart, JJ., concur. Sellers, J., dissents. Shaw and Mitchell, JJ., recuse themselves.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on April 10, 2020:
Affirmed In Part; Reversed In Part; Remanded. Parker, C.J. - Mendheim and Stewart, JJ.,
concur. Parker, C.J., concurs specially. Bolin, Wise, and Bryan, JJ., concur in part and concur
in the result in part. Sellers, J., concurs in part and dissents in part. Shaw and Mitchell, JJ.,
recuse themselves.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 28th day of August, 2020.
i i
/
a
Clerk, Supreme Court of Alabama | April 10, 2020 |
0f65369e-da0d-4f3b-9cd4-edb97d846ade | Sandra Penney v. Michael Shay Penney and Emily Penney | N/A | 1200086 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1200086 Sandra Penney v. Michael Shay Penney and Emily Penney
(Appeal from Marshall Circuit Court: CV-19-900053).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on December 3, 2021:
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 August 27, 2021:
Affirmed. Stewart, J. - Parker, C.J., concurs. Bolin, Wise, and Sellers, JJ.,
concur in the result.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 3rd day of December, 2021.
Clerk, Supreme Court of Alabama | December 3, 2021 |
c1c90351-ca32-4022-bdf7-6c6e198a8227 | Jo F. Eyer and Craig L. Eyer v. Crestwood Healthcare, L.P.,d/b/a Crestwood Medical Center | N/A | 1180927 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 10, 2020
1180927 Jo F. Eyer and Craig L. Eyer v. Crestwood Healthcare, L.P.,d/b/a Crestwood
Medical Center (Appeal from Madison Circuit Court: CV-17-901429).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on April 10, 2020:
Application Overruled. No Opinion. Shaw, J. - Parker, C.J., and Bryan, Mendheim, and
Mitchell, JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the judgment indicated below was entered
in this cause on February 14, 2020:
Affirmed. No Opinion. Shaw, J. - Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ.,
concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED
that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED
that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this
cause are hereby taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is
a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said
Court.
Witness my hand this 10th day of April, 2020.
Clerk, Supreme Court of Alabama | April 10, 2020 |
2a4d03cf-3e1c-4265-907e-cc135249876a | Nettles v. Pettway d/b/a Pettway's Paint, Body & Wrecker Service | N/A | 1181015 | Alabama | Alabama Supreme Court | REL: April 10, 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
____________________
1181015
____________________
Cedrick D. Nettles
v.
Ryan Pettway d/b/a Pettway's Paint, Body and Wrecker Service
Appeal from Wilcox Circuit Court
(CV-18-900039)
SELLERS, Justice.
Cedrick D. Nettles was struck by a wheel that detached
from an automobile owned and operated by Antwon Aaron.
Nettles sued Ryan Pettway, doing business as Pettway's Paint,
Body and Wrecker Service ("Pettway"), in the Wilcox Circuit
1181015
Court, alleging that Pettway had negligently and/or wantonly
installed the wheel on the automobile and that Pettway's
negligence and/or wantonness resulted in Nettles's injury.1
The trial court entered a summary judgment in favor of
Pettway. We affirm.
I. Undisputed Facts
Aaron engaged Pettway to install "after market" wheel
rims and tires on his automobile. The wheel rims and tires
required the use of wheel adapters containing studs. Aaron
purchased used adapters containing the studs from a discount
tire store. He thereafter provided the wheel adapters, rims,
and tires to Pettway for installation. Pettway inspected the
used adapters and determined that the studs on the adapters
looked "good." Likewise, Aaron averred in an affidavit that
the wheel-assembly parts did not appear to him to be deformed
or worn. Nettles does not direct this Court to any testimony
from any witness averring that there was a visible defect in
1Nettles also sued Aaron, but subsequently dismissed him
from the action with prejudice; accordingly, Aaron is not a
party to this appeal. Nettles has also asserted no argument
on appeal with regard to his wantonness claim; that claim is,
thus, deemed waived. Pardue v. Potter, 632 So. 2d 470, 473
(Ala. 1994)("Issues not argued in the appellant's brief are
waived.").
2
1181015
the parts used to complete the wheel assembly and mount the
tires.
After Aaron picked up his automobile from Pettway, he
test drove it and determined that there were no problems with
its overall operation. On the same day, Aaron drove the
automobile extensively during the "May Day" festivities in his
community. Aaron explained that, approximately 10 to 12 hours
after picking up the automobile from Pettway and driving it,
the left rear tire of the automobile suddenly, unexpectedly,
and without warning came off, injuring Nettles, who had been
standing in a yard adjacent to the street on which Aaron was
driving. The next day, Aaron returned the automobile to
Pettway, who determined that three of the five studs on the
left rear adapter were completely sheared off and that the
other two were broken. Pettway replaced the adapter
containing the broken studs with a new adapter that, he said,
Aaron supplied. Pettway discarded the used adapter in the
normal course of business. Accordingly, there was no physical
evidence to indicate why the studs on the adapter had broken,
and there was no allegation of spoliation of evidence.
3
1181015
Nettles's suit alleged that Pettway had negligently
installed the wheel assembly and tire that detached from
Aaron's automobile and that Pettway's negligence was the
proximate cause of Nettles's injuries. Pettway moved for a
summary judgment pursuant to Rule 56(c), Ala. R. Civ. P.
During the summary-judgment proceedings, Nettles presented no
specific act of negligence on Pettway's part. Rather, he
sought to demonstrate Pettway's negligence by inference under
the doctrine of res ipsa loquitur. Following a hearing, the
trial court entered a summary judgment in favor of Pettway,
finding the doctrine of res ipsa loquitur inapplicable.
Nettles filed a motion to alter, amend, or vacate that
judgment, which the trial court denied. This appeal followed.
II. Standard of Review
"We review the trial court's grant or denial of
a summary-judgment motion de novo, and we use the
same standard used by the trial court to determine
whether the evidence presented to the trial court
presents a genuine issue of material fact. Bockman
v. WCH, L.L.C., 943 So. 2d 789 (Ala. 2006). Once the
summary-judgment movant shows there is no genuine
issue of material fact, the nonmovant must then
present substantial evidence creating a genuine
issue of material fact. Id. 'We view the evidence in
the light most favorable to the nonmovant.' 943 So.
2d at 795. We review questions of law de novo."
4
1181015
Smith v. State Farm Mut. Auto. Ins. Co., 952 So. 2d 342, 346
(Ala. 2006).
III. Discussion
This appeal asks us to determine (1) whether the trial
court erred in finding as a matter of law that the doctrine of
res ipsa loquitur was inapplicable and (2) if the trial court
did not err in finding the doctrine inapplicable, whether
Nettles met his burden of
demonstrating negligence by ordinary
means. "Proof of negligence requires the establishment of a
duty and a breach thereof that proximately caused damage to
the plaintiff." South Coast Props., Inc. v. Shuster, 583 So.
2d 215, 217 (Ala. 1991). "Mere proof that an accident and an
injury occurred is generally insufficient to establish
negligence." Id. However, negligence may be inferred under
certain circumstances if the doctrine of res ipsa loquitur is
applicable.
"The res ipsa loquitur doctrine allows 'an
inference of negligence where there is no direct
evidence
of
negligence.'
Ex
parte
Crabtree
Industrial Waste, Inc., 728 So. 2d 155, 156 (Ala.
1998). For the doctrine to apply, a plaintiff must
show that:
"'(1) the defendant ... had full management
and control of the instrumentality which
caused the injury; (2) the circumstances
[are] such that according
to common
5
1181015
knowledge and the experience of mankind the
accident could not have happened if those
having
control
of
the
[instrumentality] had
not
been
negligent;
[and]
(3)
the
plaintiff's injury ... resulted from the
accident.'
"Crabtree Industrial Waste, 728 So. 2d at 156
(quoting Alabama Power Co. v. Berry, 254 Ala. 228,
236, 48 So. 2d 231, 238 (1950), and citing Ward v.
Forrester Day Care, Inc., 547 So. 2d 410, 411 (Ala.
1989), and Khirieh v. State Farm Mut. Auto. Ins.
Co., 594 So. 2d 1220, 1223 (Ala. 1992)). However,
'[i]f one can reasonably conclude that the accident
could have happened without any negligence on the
part of the defendant[], then the res ipsa loquitur
presumption does not apply.' Crabtree Industrial
Waste, Inc., 728 So. 2d at 158."
Kmart Corp. v. Bassett, 769 So. 2d 282, 286 (Ala. 2000).
"Whether a fact is a matter of common knowledge is an issue to
be determined by the court." Id.
The trial court determined that Nettles failed to satisfy
the second element of the res ipsa loquitur doctrine because
he failed to offer substantial evidence to foreclose other
possibilities for the detachment of the wheel from the
automobile. The
only person who provided testimony concerning
the installation of the wheel was Pettway, whom Nettles
himself has referred to as an auto-collision expert. Pettway
stated in his deposition that it was common for customers to
provide their own parts, new or used, for repairs or
6
1181015
installation, and that he never installed used parts on an
automobile if the parts did not look right and/or were
cracked. Pettway further stated that he could tell that the
studs on the adapters provided by Aaron were in used condition
but that he did not change them out because they looked
"good." Pettway also provided, without contradiction, a
step-
by-step analysis of how he installed the wheel adapters and
tires. Pettway noted that, after he installed the wheel
adapters and tires, he double-checked all the lug nuts. When
asked by Nettles's attorney what could cause a stud to break,
Pettway explained:
"A. Well, actually, you know, certain ruts in the
road, when you [have] that thin wheel on there like
that, [the studs] get in a jam. Also when the
[automobile] shift[s] to one side, it will break the
studs on it. Like if you [were] turning hard and
[the automobile shifts], it will break the studs on
it.
"....
"Q. How many studs broke on [the left rear
adapter]?
"....
"A. Okay. You [have] five studs on it. It cut
three of them off real flat, but it cut two of them
off where you could at least get another turn just
to sit the rim back on the [automobile].
7
1181015
"Q. Okay. So three of them were cut in half,
basically.
"A. Well, [they] were cut flush.
"Q. Right. So cut in two–-not in half but cut in
two.
"A. Yes. Well, all of them–-you know, like the lug
came off of one, and you could tell it like shifted.
Like
I
say,
if
a
car
shift[s]
like
this
(demonstrating), if you drive it a certain way and
it hit[s] in a certain way and it hit[s] in a
certain rut in the road, it will shift the wheel.
Those kind of cars, called a G-body, that the rear
end is just like this, so [it will] shift."
Pettway presented prima face evidence that he properly
inspected and installed the adapter containing the studs and
that the detachment of the wheel could have been attributable
to the manner in which Aaron had operated the automobile
during the 10 to 12 hours before the accident. Pettway also
pointed out that common sense dictates that there could have
been internal structural defects in the studs that caused them
to break and that those defects would not have been detected
upon inspection.
In his motion in opposition, Nettles asserted that
Pettway installed the used adapters on Aaron's automobile
without asking how old they were, where they came from, or how
used they were. He asserted that Pettway knew the studs were
8
1181015
used, yet he decided not to replace them with new ones.
Nettles also points out that the accident occurred less than
12 hours after Aaron picked up the automobile from Pettway's
shop. Nettles claims that this evidence supports an inference
that Pettway negligently failed to properly inspect and
verify
the integrity of the studs. Nettles, however, provided no
evidence to foreclose the possibility that the detachment of
the wheel could have occurred as a result of the manner in
which Aaron had operated the automobile during the 10 to 12
hours before the accident or as a result of internal latent
defects in the wheel-assembly parts. Because Nettles offered
no evidence to foreclose such possibilities, he did not
satisfy the second element of the res ipsa loquitur doctrine.
Simply put, one could reasonably conclude that the tire
detached from the automobile without any negligence on
Pettway's part. See, e.g., Ex parte Crabtree Indus. Waste,
Inc., 728 So. 2d 155, 158 (Ala. 1998) (holding that, despite
plaintiff's res ipsa loquitur argument, the defendants were
entitled to a summary judgment because one could reasonably
conclude that the wheel detached from the moving vehicle as a
result of a failure of the materials or third-party
9
1181015
negligence, rather than the defendant's negligent inspection
of the wheel).
Nettles argues that he was not required to exclude all
other explanations for the detachment of the wheel to prove
Pettway's negligence under the doctrine of res ipsa loquitur.
See George v. Alabama Power Co., 13 So. 3d 360, 365 (Ala.
2008)("'"The plaintiff need not ... conclusively exclude all
other possible explanations.... It is enough that the facts
proved reasonably permit the conclusion that negligence is
the
more probable explanation. ..."'" (quoting Kmart Corp. v.
Bassett, 769 So. 2d at 289, 365 (Hooper, C.J., dissenting and
quoting Restatement (Second) of Torts § 328D cmt. e (1965)
(emphasis added))). However, Nettles fails to appreciate
that, once Pettway offered evidence of other plausible
explanations for the accident, he was required to offer
substantial evidence demonstrating that his theory of
negligence attributable to Pettway was the more probable
explanation for the detachment of the wheel. In this case,
such a proffer would be difficult, given the number of
potential intervening causes that could explain the shearing
of the studs. To show substantial evidence in this case,
10
1181015
Nettles was required to preclude all other rational
explanations such that the only plausible explanation was
Pettway's negligent installation of the wheel. The
circumstances surrounding this accident, however, show that,
after the automobile was released to Aaron, Pettway no longer
had exclusive control over the automobile, the wheel assembly,
or the tires. And, given the time lapse between the time
Aaron took possession of his automobile and the accident, any
number of other significant factors could have proximately
caused the accident. Pettway's work on the automobile was too
remote to infer his exclusive negligence.
Because the res ipsa loquitur doctrine did not supply an
inference of negligence in this case, Nettles was required to
show negligence through the ordinary means, i.e., by adducing
substantial evidence of a duty, breach of duty, and proximate
cause. Nettles argues that Pettway's negligence can be
established completely through circumstantial evidence.
Although circumstantial evidence may establish negligence,
reliance on inferences based on
conjecture and speculation are
not sufficient to overcome a properly supported summary-
judgment motion. In this case, there were other plausible
11
1181015
theories for the detachment of the wheel from the automobile.
Nettles bases his theory of negligence, i.e., that Pettway was
negligent in his installation of the wheel, solely on
conjecture, without any corroborating substantial evidence.
See Hurst v. Alabama Power Co., 675 So. 2d 397, 400 (Ala.
1996)(noting that "mere conclusory allegations or speculation
that fact issues exist will not defeat a properly supported
summary judgment motion, and bare argument or conjecture does
not satisfy the nonmoving party's burden to offer facts to
defeat the motion"). See also Southern Ry. v. Dickson, 211
Ala. 481, 486, 100 So. 665, 669 (1924) (noting that "[t]here
may be two or more plausible explanations as to how an event
happened or what produced it; yet, if the evidence is without
selective application to any one of them, they remain
conjectures only").
IV. Conclusion
Nettles failed to produce substantial evidence by
inference or ordinary means to establish that Pettway
negligently installed the wheel that caused Nettles's
injuries. Accordingly, the summary judgment in favor of
Pettway is affirmed.
12
1181015
AFFIRMED.
Bolin, Shaw, Wise, Bryan, Mendheim, Stewart, and
Mitchell, JJ., concur.
Parker, C.J., dissents.
13
1181015
PARKER, Chief Justice (dissenting).
I disagree with both major conclusions of the main
opinion. First, Cedrick D. Nettles met the ordinary-
occurrence element of the doctrine of res ipsa loquitur, as
that element is currently understood by this Court. Second,
drawing all reasonable inferences in Nettles's favor, I
believe he produced substantial evidence that Ryan Pettway was
negligent.
I. Res Ipsa Loquitur
Under the facts of this case, Nettles met the second
element of the doctrine of res ipsa loquitur. To create an
inference of negligence sufficient to overcome a summary-
judgment motion, this element requires the plaintiff to
produce evidence that "'the circumstances [of the accident
were] such that[,] according to common knowledge and the
experience of mankind[,] the accident could not have happened
if those having control of the [instrumentality] had not been
negligent.'" Ex parte Crabtree Indus. Waste, Inc., 728 So. 2d
155, 156 (Ala. 1998) (quoting Alabama Power Co. v. Berry, 254
Ala. 228, 236, 48 So. 2d 231, 238 (1950) (final bracketed
language added in Crabtree)). As currently understood by this
14
1181015
Court, this ordinary-occurrence element requires merely that
the plaintiff produce evidence from which it can reasonably be
inferred that the defendant's negligence was the
most probable
cause of the accident. See George v. Alabama Power Co., 13
So. 3d 360, 365 (Ala. 2008). The plaintiff is no longer
required, as the main opinion incorrectly asserts, to show
that the defendant's negligence was the only possible cause.2
In Crabtree, this Court held that a plaintiff failed to
meet the ordinary-occurrence element because "the plaintiff
failed to present substantial evidence to foreclose [the]
possibilities" that the subject accident may have been caused
by events or factors other than negligence by the defendant.
2See ___ So. 3d at ___, ___, ___, ___ ("'"[I]f one can
reasonably conclude that the accident could have happened
without any negligence on the part of the defendant[], then
the res ipsa loquitur presumption does not apply."'" (quoting
Kmart Corp. v. Bassett, 769 So. 2d 282, 286 (Ala. 2000),
quoting in turn Crabtree, 728 So. 2d at 158); "[Nettles]
failed to offer substantial evidence to foreclose other
possibilities ...."; "Nettles ... provided no evidence to
foreclose the possibility that" the accident could have been
caused by problems other than Pettway's negligence; "Nettles
offered no evidence to foreclose such possibilities ....";
"[O]ne could reasonably conclude that the tire detached from
the automobile without any negligence on Pettway's part.";
"Nettles was required to preclude all other rational
explanations such that the only plausible explanation was
Pettway's negligent installation
of
the
wheel.";
"[A]ny
number
of other significant factors could have proximately caused the
accident.").
15
1181015
728 So. 2d at 157-58. We understood this element to mean that
res ipsa loquitur does not apply "[i]f one can reasonably
conclude that the accident could have happened without any
negligence on the part of the defendants." Id. at 158.
Crabtree's interpretation of the ordinary-occurrence
element was most recently relied on by this Court in Kmart
Corp. v. Bassett, 769 So. 2d 282 (Ala. 2000). There, a
malfunctioning automatic door injured a store patron.
Relying
on Crabtree, we discussed possible causes of the malfunction
other than the store owner's negligence, and we concluded that
the plaintiff failed to satisfy the ordinary-occurrence
element. We reasoned that the plaintiff
"did not 'foreclose the possibility that [the
company that installed the door or another company
that sometimes serviced the door] was negligent,
that the safety mat itself was inherently defective,
or ... that the alleged malfunction could have
occurred even in the absence of any negligence.' ...
"... '[I]f one can reasonably conclude that the
accident could have happened without any negligence
on the part of the defendant[], then the res ipsa
loquitur presumption does not apply.' Crabtree[],
728 So. 2d at 158.
"....
"... [Here,] 'one can reasonably conclude that
the accident could have happened without any
16
1181015
negligence on the part of the defendant[].'
Crabtree[], 728 So. 2d at 158."
Id. at 286-87.
Chief Justice Hooper dissented, arguing that Crabtree's
interpretation of the ordinary-occurrence element was wrong.
Relying on the Restatement (Second) of Torts, he posited that
"'[t]he plaintiff need not ... conclusively exclude all other
possible explanations.... It is enough that the facts proved
reasonably permit the conclusion that negligence is the more
probable explanation....'" Id. at 289 (Hooper, C.J.,
dissenting) (quoting Restatement (Second) of Torts § 328D,
cmt. e (Am. Law. Inst. 1965)). As to the facts in Kmart,
Chief Justice Hooper contended that "[the plaintiff] should
not have to prove that automatic doors cannot malfunction in
the absence of negligence; she should have only to present
facts that would permit the jury to conclude that negligence
was the more probable explanation." Id. In other words,
"[the plaintiff] should not be required to disprove all other
possible reasons for the malfunction, as the majority
suggests." Id. Chief Justice Hooper agreed with the Supreme
Court of Nebraska:
17
1181015
"'"The plaintiff is not required to eliminate with
certainty all other possible causes or inferences,
which would mean that the plaintiff must prove a
civil case beyond a reasonable doubt. All that is
needed is evidence from which reasonable persons can
say that[,] on the whole[,] it is more likely that
there was negligence associated with the cause of
the event than that there was not. It is enough that
the court cannot say that the jury could not
reasonably come to that conclusion."'"
Id. (quoting Brown v. Scrivner, Inc., 241 Neb. 286, 289, 488
N.W.2d 17, 19 (1992), quoting in turn Anderson v. Service
Merchandise Co., 240 Neb. 873, 880, 485 N.W.2d 170, 176
(1992)).
Chief Justice Hooper's interpretation was adopted
unanimously by this Court in George v. Alabama Power Co., 13
So. 3d 360 (Ala. 2008). After reciting the ordinary-
occurrence element, we specifically stated: "'"The plaintiff
need not ... conclusively exclude all other possible
explanations.... It is
enough that the facts proved reasonably
permit the conclusion that negligence is the more probable
explanation...."' Kmart Corp. v. Bassett, 769 So. 2d 282, 289
(Ala. 2000) (Hooper, C.J., dissenting ... ) (emphasis added)."
13 So. 3d at 365.
The difference between the Crabtree standard and the
George standard is more than semantics. Under Crabtree, the
18
1181015
plaintiff must affirmatively exclude all other potential
causes of the accident, whereas under George, the plaintiff
must merely produce evidence from which a jury could
reasonably conclude that the defendant's negligence was the
most probable cause of the accident. Under the George
standard, as explained by the Restatement:
"The plaintiff need not ... conclusively exclude all
other possible explanations, and so prove his case
beyond a reasonable doubt. Such proof is not
required in civil actions, in contrast to criminal
cases. It is enough that the facts proved reasonably
permit the conclusion that negligence is the more
probable explanation. This conclusion is not for the
court to draw, or to refuse to draw, in any case
where either conclusion is reasonable; and even
though the court would not itself find negligence,
it must still leave the question to the jury if
reasonable men might do so."
Restatement (Second) of Torts § 328D cmt. e. See also
Restatement (Third) of Torts: Physical & Emotional Harm § 17
cmt. j (Am. Law. Inst. 2010) ("[T]he court determines whether
the plaintiff's evidence is sufficient for a reasonable jury
to find that res ipsa loquitur is appropriate; that is,
whether reasonable minds can infer that the accident is of the
type that usually happens because of the negligence of the
class of actors to which the defendant belongs."). Indeed,
the Crabtree standard would place a virtually insurmountable
19
1181015
burden on plaintiffs who have been injured by a probable but
unobserved negligence to conclusively disprove all other
possible causes of their injuries. Thus, it is with good
reason that in George we rejected that draconian standard in
favor of the Restatement approach embraced by Chief Justice
Hooper's Kmart dissent.
Consequently, since George, the Crabtree standard is no
longer good law. Yet, as detailed in footnote 2 above, the
main opinion relies almost exclusively on the Crabtree
standard in concluding that Nettles failed to meet the
ordinary-occurrence element of res ipsa loquitur. And
although the main opinion refers to this Court's current
George standard, ___ So. 3d at ___, the main opinion fails to
follow it. Instead, after a two-sentence discussion noting
that the George standard would be "difficult" to meet in this
case, the main opinion immediately reverts to the superseded
Crabtree standard. ___ So. 3d at ___.
Moreover, contrary to the main opinion's conclusion,
Nettles did meet the George standard. The accident occurred
10 to 12 hours after Pettway installed the wheel equipment;
three of the five studs were "sheared off"; and Pettway
20
1181015
admitted that he did not closely inspect the wheel adapters.
From this evidence, a reasonable jury could conclude that the
most probable cause of the wheel's detachment was negligence
on Pettway's part. That is all that is required by George.
While other causes were possible, such as negligent driving by
Antwon Aaron, a rut in the road, or a hidden defect in the
equipment, there was no concrete evidence to support any of
those causes. And under George, their mere possibility does
not preclude the application of res ipsa loquitur.
In summary, Nettles presented substantial evidence from
which a jury could reasonably conclude that Pettway's
negligence was the most probable cause of the accident.
Accordingly, Nettles met the ordinary-occurrence element of
the doctrine of res ipsa loquitur.
II. Substantial Evidence of Negligence
Even if res ipsa loquitur did not apply, Nettles still
presented substantial evidence of negligence by Pettway. As
previously noted, the wheel flew off less than 12 hours after
Pettway installed it without having inquired about the age or
history of the used adapters. This evidence supported an
inference that Pettway negligently installed the wheel
21
1181015
equipment or negligently failed to inspect it before
installing it. That is, this was "evidence of such weight and
quality that fair-minded persons in the exercise of impartial
judgment [could] reasonably infer" that Pettway negligently
caused Nettles's injury. West v. Founders Life Assur. Co. of
Fla., 547 So. 2d 870, 871 (Ala. 1989).
The main opinion dismisses this inference as "conjecture
and speculation." ___ So. 3d at ___. But this Court did not
think so, in a still valid part of Crabtree. There, under
very similar facts, we specifically said: "The evidence
presented would support an inference that the wheel came off
as a result of negligence on the part of the third party ...
who repaired the tire three days before this [accident] ...."
728 So. 2d at 157. If three days supported an inference of
repairman negligence in Crabtree, I cannot see how 12 hours
support only "conjecture and speculation" here.
Further, the main opinion finds Nettles's evidence
insufficient because "there were other plausible theories for
the detachment of the wheel." ___ So. 3d at ___. But on a
motion for summary judgment, the existence of other plausible
theories is irrelevant. Rather, the question is whether,
22
1181015
viewing the evidence in the light most favorable to Nettles
(not least favorable to him) and drawing all inferences in his
favor (not against him), the evidence supported a conclusion
of negligence by Pettway. See Dow v. Alabama Democratic
Party, 897 So. 2d 1035, 1038–39 (Ala. 2004).
Therefore, Nettles presented substantial evidence of
negligence sufficient to rebut Pettway's motion for summary
judgment.
III. Conclusion
Under George, the "most probable" standard has superseded
Crabtree's exclusivity standard for applying the ordinary-
occurrence element of the doctrine of res ipsa loquitur.
Although the main opinion fails to recognize this development
in our jurisprudence, in this case application of the George
standard means that Nettles satisfied this element. And even
if res ipsa loquitur were not applicable, Nettles's evidence
would still be sufficient to create a genuine issue of
material fact as to whether negligence on Pettway's part
caused
the
wheel
detachment
that
injured
Nettles.
Accordingly, I would reverse the summary judgment.
23 | April 10, 2020 |
74696b28-328f-4571-92fc-ca2625571d90 | Ex parte Brandon D. Cox. | N/A | 1200785 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1200785
Ex parte Brandon D. Cox. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Brandon D. Cox v. State of
Alabama) (Elmore Circuit Court: CC-15-281.60; Criminal Appeals :
CR-19-0226).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 3, 2021:
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 3rd day of December, 2021.
Clerk, Supreme Court of Alabama | December 3, 2021 |
65a2342e-0218-47ef-ac00-e2965b87d694 | Ex parte J.D. | N/A | 1210067 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1210067
Ex parte J.D. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: J.D. v. DeKalb County Department of Human
Resources) (DeKalb Juvenile Court: JU-17-352.03; Civil Appeals : 2200480).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 3, 2021:
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 3rd day of December, 2021.
Clerk, Supreme Court of Alabama | December 3, 2021 |
38631ca6-f3b6-451a-8444-73fa730085cf | Allstate Insurance Company v. Hicks | N/A | 1170632 | 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 |
1ee8e5a5-5c0d-480a-bef8-375a98eea4b5 | Bert S. Nettles v. Rumberger, Kirk & Caldwell, P.C.; J. Michael Rediker; Jesse P. Evans; Meredith Jowers Lees; and Michael B. Odom | N/A | 1180554 | Alabama | Alabama Supreme Court | REL: 04/17/2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1180554
Bert S. Nettles v. Rumberger, Kirk & Caldwell, P.C.; J.
Michael Rediker; Jesse P. Evans; Meredith Jowers Lees; and
Michael B. Odom (Appeal from Jefferson Circuit Court:
CV-15-901420).
PARKER, Chief Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, Stewart, and
Mitchell, JJ., concur. | April 17, 2020 |
b63fda72-5e3a-4c4f-882c-73754cfb9d53 | Ex parte M.C.A. | N/A | 1210042 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 30, 2021
1210042
Ex parte M.C.A. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: M.C.A. v. Etowah County Department of Human
Resources) (Etowah Juvenile Court: JU-21-10.01; Civil Appeals : 2200373).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 30, 2021:
Writ Denied. No Opinion. (Special Writing) Bolin, J. - Shaw, Bryan,
Sellers, Mendheim, and Mitchell, JJ., concur. Parker, C.J., and Wise, and
Stewart, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 30th day of December, 2021.
Clerk, Supreme Court of Alabama | December 30, 2021 |
0112b5b0-c762-43d8-bf2a-7993a51ab252 | WM Mobile Bay Environmental Center, Inc. v. City of Mobile Solid Waste Authority | N/A | 1190978 | Alabama | Alabama Supreme Court | Rel: December 17, 2021
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, 2021-2022
____________________
1190978
____________________
WM Mobile Bay Environmental Center, Inc.
v.
City of Mobile Solid Waste Authority
Certified Questions from the United States Court of Appeals for
the Eleventh Circuit
(No. 19-10239)
STEWART, Justice.
1190978
The United States Court of Appeals for the Eleventh Circuit has
certified to this Court, pursuant to Rule 18, Ala. R. App. P., five questions:
"(1) Can property owned by a solid waste disposal
authority 'belong[] to' a county or municipality for purposes of
section 6-10-10[, Ala. Code 1975]?
"(2) If so, what factors should courts consider when
making such a determination?
"(3) If section 6-10-10 can apply to property owned by a
solid waste disposal authority, is such property 'used for
county or municipal purposes' when the authority has not used
the property but is holding it for a future use?
"(4) Does Alabama continue to recognize a common law
exemption from execution for property used for public purposes
as described in Gardner v. Mobile & N.W.R. Co., 102 Ala. 635,
15 So. 271 (1894)?
"(5) If so, does that exemption apply to public
corporations like [the City of Mobile Solid Waste] Authority,
and what standards should courts employ in applying this
common law exemption?"
WM Mobile Bay Env't Ctr., Inc. v. City of Mobile Solid Waste Auth., 972
F.3d 1240, 1251 (11th Cir. 2020).
Facts and Procedural History
This case concerns whether Alabama law permits WM Mobile Bay
Environmental Center, Inc. ("WM Mobile"), a judgment creditor, to
2
1190978
execute on certain real property owned by the City of Mobile Solid Waste
Authority ("the Authority"), a public solid-waste-disposal authority
established pursuant to the Alabama Solid Waste Disposal Authorities Act
("the Act"), § 11-89A-1 et seq., Ala. Code 1975. In its certification to this
Court, the Eleventh Circuit Court of Appeals provided the following
pertinent facts and procedural background:
"WM Mobile brought this action in federal court against
the Authority, alleging that the Authority breached various
provisions of a contract between WM Mobile and the Authority
for the operation of a landfill (the 'Landfill') owned by the
Authority. After a jury trial, WM Mobile obtained a judgment
against the Authority totaling $6,034,045.50. This Court
affirmed that judgment in WM Mobile Bay Environmental
Center, Inc. v. City of Mobile Solid Waste Authority, 672 F.
App'x 931 (11th Cir. 2016).
"To partially satisfy its judgment,1 WM Mobile applied to
the district court for a writ of execution against a 104-acre
parcel of land (the 'West Tract') owned by the Authority that
sits adjacent to the Landfill. The Authority purchased the
West Tract in 1994 and it 'has been held by the [Authority] for
expansion of the Chastang Landfill if needed. The expansion
has been discussed but has not been needed to date.'
"The Authority moved to quash WM Mobile's request for
a writ of execution, asserting, among other things, that
Alabama law prohibits execution on the West Tract because
that land is owned by the Authority for public use. The
Authority emphasized its role as a public corporation, its
3
1190978
purpose and limited rights under the statutes authorizing its
creation, and its relationship with the City of Mobile (the
'City'). The Authority argued that its property is held for public
use and should be considered, for debt collection purposes, that
of the City. Thus, the Authority argued, the West Tract was
exempt from execution under Alabama common law and
section 6-10-10 of the Alabama Code, which prohibits
execution on property 'belonging to the several counties or
municipal corporations in this state and used for county or
municipal purposes.'
"The district court agreed with the Authority and
granted its motion to quash. After first rejecting the
Authority's other arguments, the district court found that the
West Tract 'belongs' to the City and is used for municipal
purposes, as required by section 6-10-10. The district court
relied on the 'longstanding principle [in Alabama] that public
property is exempt' and discussed cases describing the role of,
and certain protections afforded to, certain public corporations.
The district court found that these principles are codified in
section 6-10-10 and held that the West Tract is protected from
execution under that provision. This appeal ensued.
__________
"1At the time it moved for the writ of execution, WM
Mobile claimed $5,308,640.23 outstanding on its judgment,
having recovered about $725,000 by withholding royalty
payments otherwise due to the Authority under their contract.
The Authority disputes the amount withheld by WM Mobile
and claims that WM Mobile has underreported its revenue."
WM Mobile Bay, 972 F.3d at 1242-43.
Analysis
4
1190978
The initial question posed by the Eleventh Circuit Court of Appeals
concerns whether property owned by a solid-waste-disposal authority is
exempt from execution under § 6-10-10, Ala. Code 1975. That section, the
language of which has not been altered since 1886, provides that "[a]ll
property, real or personal, belonging to the several counties or municipal
corporations in this state and used for county or municipal purposes shall
be exempt from levy and sale under any process or judgment whatsoever."
In answering this first question, we initially explore the relationship
between a solid-waste-disposal authority created under the Act and its
"determining municipality." See § 11-89A-2(9), Ala. Code 1975. That
relationship was aptly summarized by the Eleventh Circuit Court of
Appeals as follows:
"The Authority is a public corporation created by the City [of
Mobile] and authorized by Chapter 89A of the Alabama Code.
The Alabama Legislature, through Chapter 89A, declared the
'need for planning, research, development, and innovation in
the design, management, and operation of facilities for solid
waste management' and concluded with the need for the
creation of 'authorities which will have the power to issue and
sell bonds and notes ... to acquire and construct such facilities.'
Ala. Code § 11-89A-1. These authorities are organized as
public corporations. Id. §§ 11-89A-3, 11-89A-4(d).
5
1190978
"To incorporate a solid waste disposal authority, at least
three qualified electors of a county or municipality must file an
application with the governing body of their county or
municipality. Id. § 11-89A-3. The governing body of the
county or municipality must then review the electors'
application and adopt a resolution either denying the
application or declaring the need for the requested authority
and authorizing the electors to file incorporation documents for
the authority. Id. Once incorporated, the authority can
acquire facilities for waste disposal and enter into contracts to
accomplish its statutory purpose. See id. § 11-89A-8(a)(5),
(12). It can also 'borrow money,' 'assume obligations secured
by a lien' on its facilities, and 'sue and be sued in its own
name.' See id. § 11-89A-8(a)(2), (6), (11).
"The Authority's ability to borrow money and issue bonds
is significant. The Alabama constitution prohibits the
legislature from authorizing '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, ... by issuing bonds or
otherwise.' Ala. Const. art. IV, § 94(a), Statutorily authorized
public corporations, however, are not subject to this
constitutional restriction because they are '[s]eparate,
independent public corporations[,] ... not subdivisions of the
State within the meaning of Section 94 of the [Alabama]
Constitution.' Knight v. W. Ala. Envtl. Improvement Auth.,
[287 Ala. 15, 21,] 246 So. 2d 903, 907 (Ala. 1971). As
recognized by the Alabama Supreme Court:
" 'Public corporations were initially authorized by
the Legislature as a means for municipalities to
finance
improvements
to
their
utilities
infrastructure
without
running
afoul
of
constitutional and statutory debt limitations, as
6
1190978
well as to shield municipalities from the large
financial obligations that often accompany such
utilities projects.'
"Water Works & Sewer Bd. of [the City of] Talladega v. Consol.
Publ'g, Inc., 892 So. 2d 859, 861 (Ala. 2004).
"Nonetheless, a public corporation is not completely
[independent of] the county or municipality that authorizes it,
and, in some ways, the role played by the local government is
analogous to a shareholder of a public corporation. For
example, the City is the Authority's 'determining municipality'
because it authorized the creation of the Authority. See Ala.
Code §§ 11-89A-2(9), 11-89A-3. The Authority's board of
directors is elected by the City's governing body, and the City
must approve any amendments to the Authority's articles of
incorporation. See id. §§ 11-89A-5, 11-89A-6. In the event the
Authority is dissolved, title to its property will vest in the City.
See id. § 11-89A-21. Moreover, any net earnings generated by
the Authority, if any, are paid over to the City because the
Authority must operate as a nonprofit corporation. See id.
§ 11-89A-19. Additionally, by statute, the Authority shares
certain characteristics with the City. For example, the
Authority has the power of eminent domain, see id. § 11-89A-
14, its directors can be removed only via the same
impeachment process used to remove municipal officials, see
id. § 11-89A-6(d), and the Authority is required to include 'City
of Mobile' in its corporate name, see id. § 11-89A-4(b)(4)."
WM Mobile Bay, 972 F.3d at 1243-44.
The term "municipal corporations" generally refers to incorporated
villages, towns, and cities but not public corporations like the Authority.
7
1190978
See, e.g., Dunn v. Court of Cnty. Revenues of Wilcox, 85 Ala. 144, 146, 4
So. 661, 662 (1888), and Dillard v. Webb, 55 Ala. 468, 473-74 (1876). We
note that, in this case, the parties have apparently stipulated that the
Authority is not a municipal corporation for the purposes of § 6-10-10.
WM Mobile Bay, 972 F.3d at 1245 ("The parties agree that ... the
Authority is a public corporation -- not a municipal corporation -- separate
from the City."). Therefore, the question whether a solid-waste-disposal
authority or other public corporation is encompassed within the definition
of "municipal corporation" as that term is used in § 6-10-10 is not before
this Court, and we do not endeavor to address it. But see, e.g., Dunn, 85
Ala. at 146, 4 So. at 662 (noting that the phrase "municipal corporation"
may also include "public corporations created by government for political
purposes"). Nevertheless, the question whether the property of a solid-
waste-disposal authority may be said to be that of an associated municipal
corporation for the purposes of § 6-10-10 remains.
Under well-established Alabama law, a public corporation is a
distinct entity that is separate from the state, county, or municipality.
8
1190978
"A public corporation is a separate entity from a county, city,
or town, and is not a subdivision of the state. Smith v. Indus.
Dev. Bd. of the City of Andalusia, 455 So. 2d 839 (Ala. 1984).
Moreover, a public corporation is not the alter ego or agent of
the county or the municipality in which it is organized. Id."
Dobbs v. Shelby Cnty. Econ. & Indus. Dev. Auth., 749 So. 2d 425, 430
(Ala. 1999); see also Health Care Auth. for Baptist Health v. Davis, 158
So. 3d 397, 402 (Ala. 2013) (noting that a public corporation "is an entity
separate from the State and from the persons and entities who
participated in its creation"); Alabama Hosp. Ass'n v. Dillard, 388 So. 2d
903, 905 (Ala. 1980) (quoting Opinion of the Justices No. 120, 254 Ala.
506, 511, 49 So. 2d 175, 180 (1950)) ("We simply hold, as we have so often,
'that a public corporation is a separate entity from the state and from any
local political subdivision, including a city or county within which it is
organized.' "); George A. Fuller Co., v. Vulcan Materials Co., Se. Div., 293
Ala. 199, 202, 301 So. 2d 74, 76 (1974). This separate-entity doctrine has
long been applied for the purpose of exempting public corporations from
certain constitutional and statutory prohibitions applicable to the state,
9
1190978
counties, and municipalities.1 See, e.g., Limestone Cnty. Water & Sewer
Auth. v. City of Athens, 896 So. 2d 531 (Ala. Civ. App. 2004) (holding that
water-works authority was a separate entity and thus was not subject to
reimbursement requirements of § 22-25-16, Ala. Code 1975, applicable to
"the State of Alabama, any county, municipality, or [a] municipal utility
board"); Dillard, 388 So. 2d at 905-06 (holding that public-hospital
corporations were separate entities from the State and, therefore, not
bound by §§ 68 and 94 of the Alabama Constitution of 1901); Knight v.
West Alabama Env't Improvement Auth., 287 Ala. 15, 21, 246 So. 2d 903,
907 (1971) (concluding that public corporations are not subject to
constitutional restriction on local governments borrowing because they are
"[s]eparate, independent public corporations .... They are not subdivisions
of the State within the meaning of Section 94 of the Constitution....");
Opinion of the Justices No. 169, 270 Ala. 147, 148, 116 So. 2d 588, 589-90
(1959) ("It has been repeatedly held that a public corporation is an entity
1Whether a public corporation as a separate entity is immune from
suit is another question. See Armory Comm'n of Alabama v. Staudt, 388
So. 2d 991 (Ala. 1980), and Vandenberg v. Aramark Educ. Servs., Inc., 81
So. 3d 326, 339 (Ala. 2011).
10
1190978
separate and distinct from the State, and that debts of such corporation
are not the debts of the State, within the purview of Section 213[, Ala.
Const. 1901]."); Opinion of the Justices No. 120, 254 Ala. at 512-13, 49 So.
2d at 181-82 (holding that act that permitted bonds to be issued by public
corporations organized by municipal governments did not violate
constitutional provision restricting the State or local governments from
incurring debt, lending credit, or issuing bonds when such public
corporations were separate entities from the State or local government).
Furthermore, the individuality of corporate entities, including public
corporate entities, was well established at the time the predecessor to § 6-
10-10 was originally enacted in 1886. See, e.g., Fitzpatrick v. Dispatch
Publ'g Co., 83 Ala. 604, 606, 2 So. 727, 728-29 (1887); Paschall v. Whitsett,
11 Ala. 472 (1847); and John F. Dillon, Commentaries on the Law of
Municipal Corporations § 18 (3d ed. 1881).
Notwithstanding Alabama's established precedent requiring
treatment of public corporations as separate entities, there is some basis
for treating the property of a public corporation as that of its associated
municipality. Most notably, in Opinion of the Justices No. 45, 235 Ala.
11
1190978
485, 179 So. 535 (1938), six Justices concluded that property owned by a
public-housing authority was exempt from ad valorem taxation pursuant
to Art. IV, § 91, Ala. Const. 1901, which provides, in pertinent part, that
"[t]he legislature shall not tax the property, real or personal, of the state,
counties, or other municipal corporations ...." The Justices in that case
characterized the public-housing authority as "a corporation brought into
existence upon the order of a city government, public in nature, and
charged with the duty of performing an important element of the police
power of the city under whose sanction it shall come into existence." 235
Ala. at 486, 179 So. at 536. Upon that reasoning, the Justices concluded
that the public-housing authority was "an administrative agency of a city,
and its property is therefore for certain purposes that of a municipal
corporation and is entitled to the tax exemption of section 91,
Constitution." Id.
In Thomas v. Alabama Municipal Electric Authority, 432 So. 2d 470
(Ala. 1983), however, this Court declined to extend the reasoning of
Opinion of the Justices No. 45. In Thomas, a municipal electric authority
organized under the provisions of § 11-50A-1 et seq., Ala. Code 1975,
12
1190978
citing Opinion of the Justices No. 45, asserted that its property was
likewise protected from taxation pursuant to § 91. In concluding that the
municipal electric authority was not entitled to the exemption from
property taxes accorded state, county, or municipal property under § 91,
the Thomas Court distinguished Opinion of the Justices No. 45, stating
that, unlike the public-housing authority at issue in that case, the
municipal electric authority was "a public corporation of the State,
organized at the direction of the Legislature, and [did] not act as the agent
of municipalities in the exercise of their police powers." 432 So. 2d at 480.
Furthermore, the Thomas Court reiterated the doctrine that "[a] public
corporation is a separate entity from the State and from any local political
subdivision thereof." Id. at 481. Indeed, in the wake of Thomas, this
Court has continued to conclude that public corporations established by
cities for the purpose of supplying their inhabitants with important
municipal services -- water service, for example -- are separate and
independent entities from the cities they serve. See, e.g., Williams v.
Water Works & Gas Bd. of Ashville, 519 So. 2d 470, 471-72 (Ala. 1987),
13
1190978
and Water Works Bd. of Leeds v. Huffstutler, 292 Ala. 669, 299 So. 2d 268
(1974).
Nor do we find the cases of Hamrick Construction Corp. v. Rainsville
Housing Authority, 447 So. 2d 1295 (Ala. 1984) ("Hamrick I"), and
Rainsville Housing Authority v. Hamrick Construction Corp., 456 So. 2d
38 (Ala. 1984) ("Hamrick II"), particularly instructive in addressing the
first question presented. In Hamrick I we affirmed the judgment of a
trial court quashing garnishments and executions against a housing
authority organized pursuant to Alabama's Housing Authorities Law,
§ 24-1-20 et seq., Ala. Code 1975. Section 24-1-40 of the Housing
Authorities Law, however, expressly exempts all property of a housing
authority "from levy and sale by virtue of an execution, or other process,
to the same extent as now enjoyed by the properties of towns, cities and
counties of Alabama," and, therefore, the direct application of § 6-10-10
was not at issue. Furthermore, Hamrick II concerned whether housing-
authority officers were subject to a writ of mandamus to compel payment
of the judgment entered against the housing authority -- a question not
now before this Court.
14
1190978
In light of the foregoing, we conclude that the initial question
presented to us is best answered by applying the well-established
separate-entity doctrine to the plain language of § 6-10-10. See City of
Prichard v. Balzer, 95 So. 3d 1, 3-4 (Ala. 2012) (noting that, if the
language of a statute is clear, there is no room for judicial construction).
We note that the phrase "belonging to" as used in § 6-10-10 plainly refers
to ownership of property. See Black's Law Dictionary 190 (11th ed. 2019)
(defining "belong" as "[t]o be the property of a person or thing").
Accordingly, we conclude that the exemptions provided by § 6-10-10 apply
to property owned by counties and municipal corporations, and not to
property legal ownership of which is vested in a separate public
corporation not otherwise qualifying as a municipal corporation,
notwithstanding the fact that such an entity may be a public or quasi-
public corporation incorporated for the purposes of assisting a
municipality in providing important public services. We, therefore,
answer the first question -- "Can a property owned by a solid waste
disposal authority 'belong to' a county or municipality for purposes of
section 6-10-10?" -- in the negative. In light of our answer to the first
15
1190978
question, the second and third questions certified to this Court require no
answer, and we, therefore, decline to answer them.
We next turn the fourth and fifth questions propounded by the
Eleventh Circuit Court of Appeals, which seek clarification as to whether
Alabama continues to recognize the common-law doctrine exempting
property owned by public or quasi-public corporations and used for public
purposes from execution. The common-law doctrine generally prohibiting
execution on property used for public purposes was stated in Gardner v.
Mobile & Northwestern R.R., 102 Ala. 635, 15 So. 271 (1894), as follows:
"As a general rule, the property of all private
corporations is as subject to legal process for the satisfaction
of debt as is the property of natural persons. An exception
obtains, however, when the corporation is created to serve
public purposes, charged with public duties, and is in the
exercise of its franchise and in the performance of its duties.
Then, on considerations of public policy, without regard to the
nature or quality of the estate or interest of the corporation,
according to the weight of authority, such property as is
necessary to enable it to discharge its duties to the public and
effectuate the objects of its incorporation is not subject to
execution at law. The only remedy of a judgment creditor is to
obtain the appointment of a receiver, and the sequestration of
its income or earnings."
102 Ala. at 645, 15 So. at 273-74.
16
1190978
Although the statement in Gardner was made with regard to a
quasi-public corporation, the doctrine likewise applies to property held by
public corporations. See Martin v. Holtville High Sch. Bldg., 226 Ala. 45,
145 So. 491 (1933) (holding that public-school building was not subject to
sale under mechanic's and materialmen's lien statute); McNeal Pipe &
Foundry Co. v. Bullock, 38 F. 565, 565-66 (S.D. Ala. 1889) (holding that
property of waterworks company, operating as a public or quasi-public
corporation, was not subject to seizure and sale). Indeed, commentators
have recognized similar iterations of the rule expressed in Gardner:
"Ordinarily, the property of a public or quasi-public
corporation devoted to public or governmental purposes, as
distinguished from private or quasi-private purposes, is not
subject to seizure under an execution.
"It is considered general doctrine needing no statutory
sanction that the land and property of the state or its agencies
or political subdivisions is not subject to seizure under general
execution in the absence of a statute expressly granting such
a right .... As a matter of public policy, general statutory
provisions making property subject to execution have been
construed to apply only to the property of private persons and
corporations, and not to that of public corporations or bodies
politic."
17
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33 C.J.S. Executions § 42 (2009); see also 53 Am. Jur. 2d Mechanics' Liens
§ 36 (2017) ("The general view has been that a mechanic's lien cannot be
acquired against a public service or quasi-public corporation whose
purposes and objects are distinctively public."); 10 Carol A. Jones, Fletcher
Cyclopedia of Corporations § 4776 (2019 rev. ed.) ("The rights of individual
creditors of [public-service corporations] must yield to the paramount
interest of the whole public. And so where there are no statutory
provisions to the contrary, a creditor of such a corporation cannot subject
to attachment, execution or other legal process such of its property as it
needs in the performance of its corporate functions and in carrying out of
its franchise obligations towards the public." (footnotes omitted)).
We further note that no statute has abrogated, either expressly or
implicitly, the common-law rule prohibiting execution on property owned
by a public or quasi-public corporation and used for a public purpose.
"The common law is the law of Alabama unless it is repealed by statute."
Borden v. Malone, [Ms. 1190327, Nov. 25, 2020] __ So. 3d __, __ (Ala.
2020); see also § 1-3-1, Ala. Code 1975 ("The common law of England, so
far as it is not inconsistent with the Constitution, laws and institutions of
18
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this state, shall, together which such institutions and laws, be the rule of
decisions, and shall continue in force, except as from time to time it may
be altered or repealed by the Legislature."). Indeed, this Court has
declared that the common-law doctrine exists "independently of [current
code section § 6-10-10]," Russell & Johnson v. Town of Oneonta, 199 Ala.
64, 65, 73 So. 986, 986 (1917), and our decisions have continued to
reference the common-law exemption to execution, see ,e.g., Safeco Ins.
Co. of Am. v. Graybar Elec. Co., 59 So. 3d 649, 655 (Ala. 2010) (citing
Martin, supra, and noting that the mechanic's and materialmen's lien
statute does not apply to property used for a public purpose), and Hamrick
I, 447 So. 2d at 1299 (noting the "long-standing principle of exemption of
public property" from execution).
Accordingly, based on the foregoing, we conclude that the common-
law doctrine prohibiting execution on property used for public purposes
remains the law of Alabama; that the doctrine coexists with statutes
adopting similar principles, such as § 6-10-10 and § 24-1-40; and that the
doctrine applies to public corporations, including public corporations
19
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organized under the Act. On the basis of these conclusions, we answer the
fourth and fifth questions in the affirmative.
Finally, in addressing the question as to what standards are to be
employed in applying the common-law exemption set forth above to the
property of a public corporation, we note that the key inquiry is whether
the property at issue is owned or used for public purposes, see Mayor and
Aldermen of Birmingham v. Rumsey & Co., 63 Ala. 352, 356 (1879)
(stating that "property, owned or used by the corporation for public
purposes ... can not be taken in execution for debts of the city"), and 33
C.J.S. Executions § 42, or, more specifically, "is necessary to enable [the
public corporation] to discharge its duties to the public." Gardner, 102
Ala. at 645, 15 So. at 273-74. We note that the term "public purpose" is
generally afforded "a broad expansive definition" and that " '[g]enerally
speaking ... it has for its objective the promotion of public health, safety,
morals, security, prosperity, contentment, and the general welfare of the
community.' " Opinion of the Justices No. 269, 384 So. 2d 1051, 1053 (Ala.
1980) (quoting Clifford v. City of Cheyenne, 487 P.2d 1325, 1329 (Wyo.
1971)).
20
1190978
QUESTIONS 1, 4, AND 5 ANSWERED; QUESTIONS 2 AND 3
DECLINED.
Parker, C.J., and Bolin and Mendheim, JJ., concur.
Shaw, Wise, Bryan, and Sellers, JJ., concur in the result.
Mitchell, J., recuses himself.
21 | December 17, 2021 |
713338d5-48db-4389-a383-1b348497728c | Ex parte Jeff Renda and Leigh Renda. | N/A | 1190519 | 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
1190519
Ex parte Jeff Renda and Leigh Renda. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Jeff Renda and Leigh Renda v. KLG Enterprises, LLC)
(Jefferson Circuit Court, Bessemer Division: CV-16-900503; Civil Appeals :
2180262).
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. 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 15th day of May, 2020.
Clerk, Supreme Court of Alabama | May 15, 2020 |
799b8b15-cf5b-4d8f-b37e-75610e0f3c96 | Network Cabling Services, Inc. v. Huawei Technologies USA, Inc.; Joel Erdmann, Ph.D.; Robert M. Brown; Dr. John Smith; G. Scott Weldon; Victor Cohen; Chris Cannon; Margaret Murray Sullivan; Buckley Kelley; Lynne U. Chronister; James H. Shumock; Tony G. Wal | N/A | 1200331 | Alabama | Alabama Supreme Court | Rel: December 10, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200331
Network Cabling Services, Inc. v. Huawei Technologies USA, Inc.; Joel
Erdmann, Ph.D.; Robert M. Brown; Dr. John Smith; G. Scott Weldon;
Victor Cohen; Chris Cannon; Margaret Murray Sullivan; Buckley Kelley;
Lynne U. Chronister; James H. Shumock; Tony G. Waldrop; and Robert
K. Davis (Appeal from Mobile Circuit Court: CV-19-901186).
MENDHEIM, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur. | December 10, 2021 |
ef340bf7-e8cf-4c60-ba04-11a07900e948 | Ex parte J.H.F., Jr. | N/A | 1210049 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1210049
Ex parte J.H.F., Jr. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: J.H.F., Jr. v. State of Alabama)
(Cullman Circuit Court: CC-10-191.60; Criminal Appeals : CR-19-1043).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 3, 2021:
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 3rd day of December, 2021.
Clerk, Supreme Court of Alabama | December 3, 2021 |
caa5f0ef-d05b-4ff0-a48f-d563bf77a26e | Dr. Matthew Quin and Cardiology Associates of Mobile, Inc. v. Tana Elizabeth Mizell, as personal representative of the Estate of Wendy G. Cameron | N/A | 1190945 | Alabama | Alabama Supreme Court | Rel: December 03, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1190945
Dr. Matthew Quin and Cardiology Associates of Mobile, Inc. v. Tana
Elizabeth Mizell, as personal representative of the Estate of Wendy G.
Cameron (Appeal from Mobile Circuit Court: CV-16-901501).
WISE, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Sellers, and Mendheim, JJ., concur.
Stewart, J., recuses herself. | December 3, 2021 |
164a9f60-b886-40eb-bd0a-fed3a78c7828 | 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 | REL: April 24, 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
____________________
1190092
____________________
Tamikia Everheart
v.
Rucker Place, LLC, and Savoie Catering, LLC
Appeal from Jefferson Circuit Court
(CV-16-903634)
____________________
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)
____________________
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)
____________________
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)
SELLERS, Justice.
2
1190092, 1190102, 1190110, 1190116
Tamikia Everheart; Cardell Coachman, a deceased minor, by
and through his mother and next friend Johnitia Coachman;
Michael Coleman, as administrator of the estate of Diane
McGlown, deceased; and Mary W. Weatherspoon and Elizabeth W.
McElroy, as administratrix of the estate of Jakobie E.
Johnson,
a
deceased
minor
(hereinafter
referred
to
collectively as
"the
plaintiffs"),
filed
four
separate
appeals
from summary judgments entered in their separate cases by the
Jefferson Circuit Court in favor of Rucker Place, LLC, and
Savoie Catering, LLC. We consolidated the appeals for review,
and we affirm the judgments.
While attending a Christmas party in December 2015 at the
residence of Bruce McKee and Dale McKee, Jason Bewley consumed
alcohol. Later, he was driving while allegedly intoxicated
and was involved in an accident with a vehicle occupied by
five individuals. As a result of the accident, two of those
individuals were injured and the other three were killed.
The plaintiffs filed four separate actions against
Bewley, alleging negligence and wantonness in the
operation of
his vehicle. The plaintiffs also asserted dram-shop claims
against Dale McKee; the estate of Bruce McKee, who died
3
1190092, 1190102, 1190110, 1190116
shortly after the Christmas party; Savoie Catering, LLC, which
had catered the McKees' party and had served guests alcohol
that had been provided by the McKees; and Rucker Place, LLC,
which operates a catering business with connections to Savoie
but which claims it had no involvement with the McKees'
party.1
The trial court consolidated the actions under Rule
42(a), Ala. R. Civ. P. Eventually, the plaintiffs voluntarily
dismissed their claims against the McKees and proceeded
against Bewley, Savoie, and Rucker Place. The plaintiffs
settled their claims against Bewley, and the trial court
entered summary judgments in favor of Savoie and Rucker Place.
These appeals followed.2
"We apply the same standard of review the trial
court used in determining whether the evidence
presented to the trial court created a genuine issue
1The alcohol served at the McKees' Christmas party had
been purchased by the McKees from a third party. Savoie's
employees allegedly served as bartenders. Only for purposes
of these appeals, we presume that Savoie's employees served
Bewley.
2The plaintiffs also asserted claims against companies
with which Bruce McKee had been associated. Those claims,
however, were voluntarily dismissed. One of the plaintiffs
also asserted claims against two companies owned by Bewley.
The trial court entered a default judgment against those
companies. That judgment is not at issue on appeal.
4
1190092, 1190102, 1190110, 1190116
of material fact. Jefferson County Comm'n v. ECO
Preservation Services, L.L.C., 788 So. 2d 121 (Ala.
2000) (quoting Bussey v. John Deere Co., 531 So. 2d
860, 862 (Ala. 1988)). Once a party moving for a
summary judgment establishes that no genuine issue
of material fact exists, the burden shifts to the
nonmovant to present substantial evidence creating
a genuine issue of material fact. Bass v. SouthTrust
Bank of Baldwin County, 538 So. 2d 794, 797–98 (Ala.
1989)."
Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792
So. 2d 369, 372 (Ala. 2000). Questions of law are reviewed de
novo. Van Hoof v. Van Hoof, 997 So. 2d 278, 286 (Ala. 2007).
The Dram Shop Act provides, in pertinent part:
"Every wife, child, parent, or other person who
shall be injured in person, property, or means of
support by any intoxicated person or in consequence
of the intoxication of any person shall have a right
of action against any person who shall, by selling,
giving, or otherwise disposing of to another,
contrary to the provisions of law, any liquors or
beverages, cause the intoxication of such person for
all damages actually sustained, as well as exemplary
damages."
§ 6-5-71(a), Ala. Code 1975 (emphasis added).
In arguing that the alcohol served at the McKees' party
was "giv[en], or otherwise dispos[ed] of to another, contrary
to the provisions of law," the plaintiffs have relied on a
regulation promulgated by the Alabama Beverage Control Board
("the ABC Board"), which provides: "No ABC Board on-premises
5
1190092, 1190102, 1190110, 1190116
licensee, employee or agent thereof shall serve any person
alcoholic beverages if such person appears, considering the
totality of the circumstances, to be intoxicated." Reg.
20-X-6-.02(4), Ala. Admin. Code (ABC Board) (emphasis added).
The plaintiffs have alleged that Bewley was visibly
intoxicated at the McKees' Christmas party and that Savoie's
employees continued to serve him alcohol. Savoie, however,
does not hold an ABC license. Thus, the trial court reasoned,
Savoie could not have violated Reg. 20-X-6-.02(4) and
therefore did not serve Bewley alcohol "contrary to the
provisions of law."
Rucker Place operates a catering business that has its
own venue for events in Birmingham. It is undisputed that
Rucker Place holds an ABC "on-premises" license to sell
alcohol at its venue. The trial court, however, concluded
that the plaintiffs had not presented substantial evidence
indicating that Rucker Place was involved in catering the
McKees' Christmas party. Thus, the trial court determined,
Rucker Place could not possibly have served Bewley alcohol in
violation of Reg. 20-X-6-.02(4).
6
1190092, 1190102, 1190110, 1190116
In their joint opening brief, the plaintiffs essentially
concede that an off-site caterer that does not hold an ABC on-
premises license generally cannot be held liable under Reg.
20-X-6-.02(4) and the Dram Shop Act for serving alcohol that
is provided by the hosts of an off-site private party to
guests who appear to be intoxicated. In the present cases,
however, the plaintiffs claim they presented evidence
indicating that Savoie and Rucker Place were involved in a
joint venture in catering the McKees' party. Thus, the
plaintiffs assert, Savoie was actually acting as the agent of
Rucker Place, which does hold an ABC on-premises license, when
it served Bewley alcohol. See generally Flowers v. Pope, 937
So. 2d 61, 66 (Ala. 2006) (indicating that the participants in
a joint venture are considered agents of one another). The
plaintiffs argue that, because Savoie was acting as Rucker
Place's agent, such agency as imputed to Savoie would mean
that Savoie violated Reg. 20-X-6-.02(4) by serving alcohol to
Bewley, who allegedly was visibly intoxicated, and, thus, that
Savoie served alcohol "contrary to the provisions of law" as
that phrase is used in the Dram Shop Act. The plaintiffs also
assert that Rucker Place is liable for the actions of Savoie,
7
1190092, 1190102, 1190110, 1190116
its alleged agent. The plaintiffs appear to argue that the
fact that Savoie and Rucker Place are separate business
entities should be disregarded and the entities should be
combined for the purposes of these actions to form a single
business operation in which Savoie and Rucker Place are
jointly and severally liable for the actions of the other.
In
support
of
their
joint-venture
argument,
the
plaintiffs point to various connections between Savoie and
Rucker Place. For example, the two owners of Rucker Place are
also part owners of Savoie. The other owner of Savoie is a
chef, who, as an independent contractor, has prepared food for
Rucker Place at its on-site venue in Birmingham. At the time
of the McKees' party, Savoie's base of operations was located
at Rucker Place's venue, and Savoie used Rucker Place's
kitchen and equipment to prepare for off-site catering events,
including the McKees' party.
For their part, Rucker Place and Savoie point to evidence
they contend establishes that the two entities conducted
separate businesses and were not engaged in a joint venture.
They assert, however, that this Court does not need to reach
that issue because, they say, even if the evidence established
8
1190092, 1190102, 1190110, 1190116
that they were involved in a joint venture, Reg. 20-X-6-.02(4)
should not be deemed to apply here, because the alcohol Savoie
served was provided by the host of an off-site private party.
We agree.
The ABC Board has the authority to issue licenses to
people and entities to, among other things, sell alcoholic
beverages. See § 28-3A-3, Ala. Code 1975. It is illegal for
a person or entity to sell, offer for sale, or possess for
sale alcoholic beverages without a proper license. §
28-3A-25, Ala. Code 1975. The ABC Board's licensing authority
includes the power to issue a license "[t]o sell any or all
alcoholic beverages at retail under special license issued
conditioned upon terms and conditions and for the period of
time prescribed by the board." § 28-3A-3(a)(15), Ala. Code
1975. See also § 28-3A-19, Ala. Code 1975 (authorizing the
ABC Board to issue a "special retail license" to an
organization to "sell at retail and dispense such alcoholic
beverages as are authorized by the [ABC Board] at such
locations authorized by the [ABC Board]"). At all pertinent
times, Rucker Place held an annual special retail license
9
1190092, 1190102, 1190110, 1190116
allowing it to sell and dispense alcohol only at its specific
venue in Birmingham.
The plaintiffs have not argued that any license from the
ABC Board is required for a caterer at an off-premises private
party to serve alcohol provided by the host of that party.
Thus, they have conceded that Rucker Place would not have
needed a license for its employees to serve the alcohol
provided by the McKees at their Christmas party. However,
because Rucker Place took the step of obtaining an on-premises
license to sell alcohol at its own venue in Birmingham, the
plaintiffs argue that Reg. 20-X-6-.02(4) was triggered and
that it governs Rucker Place's serving of alcohol everywhere
and
under
all
circumstances, including
Savoie's
alleged
action
of serving a visibly intoxicated Bewley at the McKees'
Christmas party.
We disagree. A more reasonable interpretation of Reg.
20-X-6-.02(4) is that it applies when the on-premises
licensee, either as an individual or through its agents, is
acting in its capacity as an on-premises licensee. In other
words, the regulation is limited and applies only when a
licensee is engaged in the activity contemplated by the on-
10
1190092, 1190102, 1190110, 1190116
premises license, i.e., selling and dispensing alcohol at the
premises covered by the license. It is noteworthy that other
subsections of Reg. 20-X-6-.02(4) suggest that the regulation
is concerned with governing activity occurring on
the
premises
covered by the license. For example, such licensees must have
restroom facilities that conform to applicable health-
department standards; are prohibited from holding contests on
the premises that require participants to drink alcohol; and
must provide tables and seating sufficient to accommodate at
least
16
people
"within
the
designated on-premises
consumption
area." Reg. 20-X-6-.02(7), Ala. Admin. Code (ABC Board). See
also Harrison v. PCI Gaming Auth., 251 So. 3d 24, 34 (Ala.
2017) (stating, although in what admittedly appears to be
dicta, that Reg. 20-X-6-.02(4) declares it unlawful to make
"'on-premises' sales to visibly intoxicated patrons").
The plaintiffs point to Gamble v. Neonatal Associates,
P.A., 688 So. 2d 878 (Ala. Civ. App. 1997), in which the Court
of Civil Appeals, like the trial court in the present case,
ruled that an off-site caterer could not have violated Reg.
20-X-6-.02(4) because the caterer did not hold an on-premises
ABC Board license. The plaintiffs suggest that, had the
11
1190092, 1190102, 1190110, 1190116
caterer held such a license, the Court of Civil Appeals would
have concluded that the caterer was subject to Reg. 20-X-6-
.02(4). The Court of Civil Appeals in Gamble, however, simply
did not consider the alternative argument that Reg. 20-X-6-
.02(4) does not apply when the on-premises licensee is not
engaged in actions in furtherance of the business activity for
which the license is required.3
Although the trial court concluded that there was not
sufficient evidence of a joint venture between Savoie and
Rucker Place, we need not decide that issue, and this Court
can affirm a trial court's judgment for any valid reason.
Smith v. Mark Dodge, Inc., 934 So. 2d 375, 380 (Ala. 2006).
We affirm the trial court's judgments based on the conclusion
that the plaintiffs have not demonstrated that Reg. 20-X-6-
.02(4) applies to the circumstances involved in the present
cases. We express no opinion as to whether the plaintiffs
3As noted, the plaintiffs have not preserved an argument
that Savoie or Rucker Place was required to hold a particular
license to serve the alcohol provided by the McKees at their
private party and that they therefore illegally served that
alcohol without a proper license. The only basis for the
argument that alcohol was served "contrary to the provisions
of law" is the plaintiffs' allegation that Savoie, as Rucker
Place's alleged agent, violated Reg. 20–X–6–.02(4) by serving
an allegedly visibly intoxicated Bewley.
12
1190092, 1190102, 1190110, 1190116
presented sufficient evidence that a joint venture between
Savoie and Rucker Place did in fact exist.
1190092 –- AFFIRMED.
1190102 –- AFFIRMED.
1190110 –- AFFIRMED.
1190116 -- AFFIRMED.
Bolin, Wise, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Parker, C.J., and Shaw and Bryan, JJ., dissent.
13
1190092; 1190102; 1190110; 1190116
SHAW, Justice (dissenting).
I believe that the main opinion has essentially rewritten
Reg. 20-X-6-.02(4), Ala. Admin. Code (Alcoholic Beverage
Control Board), to mean something other than what it actually
says. Our law governing the application of administrative
regulations requires us to follow the plain meaning of the
language
of
the
regulation;
therefore,
I
respectfully
dissent.
Reg. 20-X-6-.02 governs Alabama Alcoholic Beverage
Control Board ("ABC Board") "on-premises licensees." The
issue addressed in the main opinion is whether subsection (4)
of the regulation is restricted to governing a licensee's
activity only at the licensee's physical location or whether
it governs the licensee generally. The subsection states: "No
ABC Board on-premises licensee, employee or agent thereof
shall serve any person alcoholic beverages if such person
appears, considering the totality of the circumstances, to be
intoxicated." Reg. 20-X-6-.02(4).
"'[L]anguage used in an administrative regulation should
be given its natural, plain, ordinary, and
commonly understood
meaning, just as language in a statute.'" Ex parte Wilbanks
Health Care Servs., Inc., 986 So. 2d 422, 427 (Ala. 2007)
14
1190092; 1190102; 1190110; 1190116
(quoting Alabama Medicaid Agency v. Beverly Enters., 521 So.
2d 1329, 1332 (Ala. Civ. App. 1987)). Nothing in the plain
language of subsection (4) indicates that its prohibition
against serving alcohol to intoxicated persons is limited to
alcohol served at the licensee's physical location. My
analysis of subsection (4) would stop there.
The main opinion, however, suggests an alternate meaning:
subsection (4) can also mean that it applies only to serving
alcohol at the licensee's physical location. This meaning is
not found in the language of subsection (4), but the main
opinion notes that other subsections of Reg.
20-X-6-.02 govern
activity at the licensee's physical location and that this
suggests that all subsections of the regulation must be
similarly limited.
However, only some of the other subsections of Reg. 20-X-
6-.02 govern the licensee's physical location; this is
because, unlike subsection (4), the actual language of the
subsections indicate that such is the case. For example,
subsections (1), (2), (6), and (7) deal with the on-premises
licensee's physical facilities, retail spaces, and areas
provided for alcohol consumption.
15
1190092; 1190102; 1190110; 1190116
Subsections (3), (4), and (5), however, govern conduct.
Under subsection (3), a licensee is prohibited from allowing
drinking contests "on the licensed premises." Subsection (5)
prohibits licensees and its employees or agents from consuming
alcohol "during working hours" when "engaged in serving
customers," but it does not explicitly indicate that it is
restricted to a physical location. Finally, subsection (4),
the subsection at issue in these cases, simply prohibits a
licensee or its employees or agents from serving alcoholic
beverages to persons if they appear intoxicated. Nothing in
the language of that subsection restricts its application to
the licensee's physical location.
So, although some other subsections of Reg. 20-X-6-.02
relate to a physical location, subsection (4) conspicuously
does not. It is clear that the drafters of the regulation
knew how to specify when conduct governed in a subsection
should apply to a physical location: subsection (3)
explicitly
refers to what cannot be done "on the licensed premises." If
one subsection prohibiting certain conduct by the licensee --
like subsection (3) -- specifically limits itself to such
conduct occurring on the premises, but the next subsection --
16
1190092; 1190102; 1190110; 1190116
like subsection (4) -- also prohibits certain conduct but does
not limit itself to the premises, a clear distinction has been
made. Subsection (4) is not vague. Other subsections,
covering different subject matters and having different
language, do not change this meaning. In this case, the Court
has essentially rewritten subsection (4) to make it, in the
Court's opinion, "more reasonable." ___ So. 3d at ___. I
dissent: "[I]t is our job to say what the law is, not to say
what it should be." DeKalb Cty. LP Gas Co. v. Suburban Gas,
Inc., 729 So. 2d 270, 276 (Ala. 1998). Applying the plain
meaning of a regulation, as with a statute, is a requirement
of the separation-of-powers doctrine; it is not within the
power or role of the judicial branch to do otherwise. See
State v. $223,405.86, 203 So. 3d 816, 842 (Ala. 2016)
("'[D]eference to the ordinary and plain meaning of the
language of a statute is not merely a matter of an
accommodating judicial philosophy; it is a response to the
constitutional mandate of the doctrine of the separation of
powers set out in Art. III, § 43, Alabama Constitution of
1901.'" (quoting City of Bessemer v. McClain, 957 So. 2d 1061,
1082 (Ala. 2006) (Harwood, J., concurring in part and
dissenting in part))).
Parker, C.J., and Bryan, J., concur.
17 | April 24, 2020 |
f1c8e25b-b393-4055-a59a-2a68432fa91d | Michael D. Anderson v. State of Alabama | N/A | 1200588 | Alabama | Alabama Supreme Court | Rel: December 3, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200588
Michael D. Anderson v. State of Alabama (Appeal from Montgomery
Circuit Court: CV-20-406).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | December 3, 2021 |
211fe8d3-370c-4d40-a897-dc0763ef8ef7 | Ex parte Larry Green. | N/A | 1210082 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1210082
Ex parte Larry Green. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Larry Green v. State of Alabama)
(Montgomery Circuit Court: CC-90-1668.61; Criminal Appeals : CR-20-0534).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 3, 2021:
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 3rd day of December, 2021.
Clerk, Supreme Court of Alabama | December 3, 2021 |
2a55d94d-562b-475c-8452-3c84692442dd | Porter v. Estate of Porter | N/A | 1200682, 1200683 | Alabama | Alabama Supreme Court | Rel: December 10, 2021
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, 2021-2022
_________________________
1200682
_________________________
Lina Louise Porter, a minor, through her mother and next
friend, Ilka Porter
v.
Alexis Campbell Porter, as administratrix of the Estate of Sean
M. Porter, deceased
_________________________
1200683
_________________________
Ilka Porter
v.
Alexis Campbell Porter, as administratrix of the Estate of Sean
M. Porter, deceased
Appeals from Baldwin Probate Court
(No. 38863)
STEWART, Justice.
Ilka Porter and Lina Louise Porter, through her mother and next
friend, Ilka Porter, appeal from an order of the Baldwin Probate Court
concluding that Sean M. Porter was married to Alexis Campbell Porter at
the time of his death and appointing Alexis Campbell Porter as
administratrix of his estate. The question presented by these appeals is
one of first impression in Alabama: Whether the death of a party to a
marriage, after a marriage document is executed but before the marriage
document is recorded, invalidates the marriage for failure to comply with
the registration requirements of § 22-9A-17, Ala. Code 1975. For the
reasons discussed below, we conclude that it does not, and we affirm the
probate court's order.
Facts and Procedural History
The facts underlying these appeals are undisputed. On March 3,
2011, Sean M. Porter ("Sean") executed a will designating Ilka Porter
("Ilka"), his then wife, as executrix and naming both Ilka and Lina Louise
2
1200682, 1200683
Porter ("Lina"), Sean's daughter with Ilka, as beneficiaries. The will
designated a successor executrix who predeceased Sean.
Section 22-9A-17, which sets forth the requirements for registering
a marriage in Alabama, became effective on August 29, 2019. On October
10, 2019, Sean and Ilka were divorced. On August 14, 2020, Sean had a
second child, Emma Lauren Porter, through his relationship with Alexis
Campbell, now Alexis Campbell Porter ("Alexis").
On September 26, 2020, Sean and Alexis duly executed a marriage
certificate before a notary public. On October 19, 2020, Sean died
unexpectedly. On October 20, 2020, the previously executed marriage
certificate was recorded with the Baldwin Probate Court ("the probate
court") pursuant to § 22-9A-17.
On January 6, 2021, Ilka filed a petition to have letters
testamentary issued to her, but, on March 4, 2021, she amended her
petition to ask that letters of administration with the will annexed be
issued to the county administrator instead. On March 4, 2021, Alexis filed
her own petition for letters of administration with the will annexed, and
she requested that the letters be issued to her, as Sean's surviving spouse.
3
1200682, 1200683
Ilka subsequently moved for the probate court to enter a summary
judgment finding that Sean's death had abated the marriage process and,
consequently, that Alexis was not a surviving spouse entitled to serve as
the administratrix of or to inherit from Sean's estate. Alexis
simultaneously moved for the probate court to confirm her marriage to
Sean, i.e., to confirm that the registration requirements of § 22-9A-17 had
been complied with, and to conclude that Sean's death was immaterial to
the validity of their marriage.
On May 25, 2021, the probate court issued an order finding that the
marriage between Sean and Alexis was "not abated by the intervening
death between execution of a certificate of marriage and filing of same"
and that, as Sean's surviving spouse, Alexis had priority to serve as the
administratrix of his estate pursuant to § 43-2-42(a)(1), Ala. Code 1975.
Lina and Ilka (hereinafter referred to collectively as "the appellants")
appeal.
Standard of Review
" 'This Court reviews de novo [a probate] court's interpretation of a
statute, because only a question of law is presented.' " Pickens v. Estate
4
1200682, 1200683
of Fenn, 251 So. 3d 34, 36 (Ala. 2017) (quoting Scott Bridge Co. v. Wright,
883 So. 2d 1221, 1223 (Ala. 2003)).
Discussion
The appellants argue that, because Sean's death occurred before the
appropriate marriage documents were filed with the probate court within
the 30-day period prescribed by § 22-9A-17(a), his death abated his
marriage to Alexis. They contend that the probate court incorrectly
concluded that a valid marriage existed between Alexis and Sean and that
the probate court should not have appointed Alexis as the administratrix
of his estate.
Section 22-9A-17 was substantially revised by Act No. 2019-340, Ala.
Acts 2019, to abolish the requirement that marriage licenses be issued by
probate-court judges. Section 22-9A-17 now provides as follows:
"(a) Two persons desiring to unite in marriage may do so
by submitting the affidavits, forms, and data specified in
Section 30-1-5[, Ala. Code 1975,] and Section 30-1-9.1[, Ala.
Code 1975,] for recording with the office of the judge of
probate. The recording of the affidavits, forms, and data
establishes legal recognition of the marriage as of the date the
affidavits and forms were properly signed by the two parties
so long as the documentation was provided to the probate
office within 30 days of the signatures of the parties. Each
5
1200682, 1200683
marriage filed with the probate office shall be filed and
registered with the Office of Vital Statistics.
"(b) The office of the judge of probate shall record, in a
permanent record, each marriage presented to the probate
office for filing so long as the affidavits, forms, and data are
submitted as required by Act 2019-340, and shall forward each
marriage filed with the probate office during the preceding
calendar month to the Office of Vital Statistics on or before the
fifth day of the following calendar month."
(Emphasis added.)
Rules of statutory construction guide our interpretation of statutes
like the one at issue in these appeals. This Court has previously
recognized that
"[t]he fundamental rule of statutory construction is to
ascertain and give effect to the intent of the legislature in
enacting the statute. Words used in a statute must be given
their natural, plain, ordinary, and commonly understood
meaning, and where plain language is used a court is bound to
interpret that language to mean exactly what it says."
IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.
1992). In Water Works & Sewer Board of Selma v. Randolph, 833 So. 2d
604, 607 (Ala. 2002), this Court further cautioned that, "[w]hen
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
6
1200682, 1200683
statute," and that, "[w]hen the language is clear, there is no room for
judicial construction."
The statutory language of § 22-9A-17 is clear. It outlines the process
for filing marriage documents, states that two persons seeking to marry
"may do so" by observing that process, provides that compliance with that
process establishes legal recognition of the marriage, and defines the
probate office's duties with respect to recording and forwarding the
marriage documents to the Office of Vital Statistics.
Section 30-1-9.1, Ala. Code 1975, which is entitled "Requirements for
marriage; validity; construction with other laws," and which is referenced
in § 22-9A-17, provides:
"A marriage conforming to the requirements of this section
shall be valid on the date the marriage is executed by both
parties, provided the affidavits, forms, and data are recorded
in the office of the judge of probate within 30 days of the date
of the last party's signature in accordance with Section
22-9A-17."
§ 30-1-9.1(c) (emphasis added). Notably, neither § 22-9A-17 nor § 30-1-9.1
mentions or addresses the effect of the death of a party on the registration
process or a duly executed marriage. In applying the above-mentioned
7
1200682, 1200683
rules of statutory construction to § 22-9A-17, we conclude that the
statutory text does not support a conclusion that the legislature intended
for the death of a party to a marriage that occurs after the execution of the
marriage but before the recordation of the marriage documents to have
any legal effect on the validity of that marriage.
Here, the undisputed facts establish that the marriage between Sean
and Alexis conformed with the requirements of § 30-1-9.1, that both
parties signed the requisite marriage documents on September 26, 2020,
and that those documents were submitted to the probate court for
recording on October 20, 2020, which was 24 days after the parties signed
the documents. Accordingly, the marriage between Sean and Alexis was
entitled to legal recognition consistent with the plain and unambiguous
terms of § 22-9A-17.
Although the appellants concede that § 22-9A-17 does not address
the impact of an intervening death on the marriage process, they
nevertheless contend that this omission is inconsequential. According to
the appellants, "[i]t is commonly understood that a dead person cannot
8
1200682, 1200683
marry and as unfortunate and as unexpected as [Sean's] death was, the
result is no different than if [Sean] had died in an unforeseen automobile
accident on the day before his ceremonial wedding was to occur." The
appellants' brief at p. 10.
In support of this proposition, the appellants assert that "death's
impact on various proceedings has been thoroughly addressed by this and
other courts," id. at 8, and direct us to look to purportedly analogous
caselaw in resolving this question of first impression. Specifically, they
cite several decisions from this Court, the Court of Civil Appeals, and
federal courts that, according to the appellants, indicate that Sean's death
in this case rendered the marriage certificate filed in the probate court
following his death a nullity.
In particular, the appellants cite Ex parte Thomas, 54 So. 3d 356
(Ala. 2010), Ex parte Parish, 808 So. 2d 30 (Ala. 2001), and Ex parte Riley,
10 So. 3d 585 (Ala. Civ. App. 2008), as illustrative of the principle that
death terminates divorce and marriage proceedings in Alabama. Those
decisions, however, are inapposite to the issue raised by these appeals. In
9
1200682, 1200683
Ex parte Thomas, this Court concluded that a divorce action between a
husband and wife abated upon the death of the husband. 54 So. 3d at 359.
In Ex parte Parish, this Court held that a court's interlocutory orders
dividing marital property in a divorce action were abated by the death of
a spouse. 808 So. 2d at 33. In Ex parte Riley, the Court of Civil Appeals
likewise affirmed that a husband's death abated the divorce action
between the husband and his wife. 10 So. 3d at 587. Significantly, all
three decisions applied common-law abatement rules to pending divorce
proceedings.
The appellants further rely on Ex parte Estate of Cook, 848 So. 2d
916 (Ala. 2002) (concluding that criminal defendant's death pending
appeal abated both appeal and underlying conviction), Price v. Southern
Ry., 470 So. 2d 1125 (Ala. 1985) (stating that plaintiff's personal-injury
action did not survive the plaintiff's death), United States v. Volpendesto,
746 F.3d 273 (7th Cir. 2014) (holding that criminal defendant's death
pending appeal of conviction abated entire course of the proceedings
against him and invalidated previously issued restitution order), and
10
1200682, 1200683
United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004)
(concluding that criminal defendant's death pending appeal of his case
abated the entire criminal proceeding), to buttress their claim that settled
caselaw supports their view that Sean's death foreclosed the formation of
a valid marital union under § 22-9A-17. Those cases, however, again
involve the application of statutory and common-law abatement rules to
pending legal actions, and there is no such action at issue in this case.
Indeed, Alabama's abatement doctrine narrowly provides that
certain actions, or causes of action, do not survive the death of one of the
parties. See Wynn v. Tallapoosa Cnty. Bank, 168 Ala. 469, 490, 53 So. 228,
237 (1910) ("At common law not only the cause of action, but the action
itself died with the person."). In Wynn, this Court noted that the term
"action" was alternatively defined as " 'a civil proceeding taken in a court
of law to enforce a right' " or " 'the means by which men litigate with each
other.' " Id. at 491 (citations omitted); see also Meek v. Centre Cnty.
Banking Co., 268 U.S. 426, 429 (1925) (concluding that an administrative
bankruptcy proceeding, "not being in the nature of a common-law action,
11
1200682, 1200683
is not abated by any rule of the common law"); Shelton v. Green, 261 So.
3d 295, 296-97 (Ala. 2017) (defining "action," in the context of our state's
survival statute, as a " 'proceeding pending in court to determine the
parties' rights and liabilities with respect to a legal wrong or cause of
action' ") (quoting McDowell v. Henderson Mining Co., 276 Ala. 202, 204,
160 So. 2d 486, 488 (1963))).
Here, the appellants fail to allege, much less demonstrate, that the
submission of marriage documents to a probate office for recording should
properly be considered within the class of actions or causes of action
subject to Alabama's common-law or statutory abatement rules.
Importantly, persons who register previously executed marriage
documents pursuant to § 22-9A-17 are not engaging in a court proceeding,
litigating with another party, or seeking the probate court's determination
of their rights and liabilities.
Indeed, according to the title of Act No. 2019-340, which amended
§ 22-9A-17, the stated purposes of the act include "abolish[ing] the
requirement that a marriage license be issued by the judge of probate"
12
1200682, 1200683
and "provid[ing] that the judge of probate would record each marriage
presented to the probate court for recording," effectively limiting the
probate court's role in the marriage process to that of record keeper. In
fact, § 22-9A-17, when read in conjunction with § 30-1-9.1, affords the
probate court seemingly no discretionary authority with respect to
recording otherwise compliant marriage documents submitted to the
probate office within the designated period. See § 22-9A-17 ("The office of
the judge of probate shall record … each marriage presented to the
probate office for filing so long as the affidavits, forms, and data are
submitted as required." (emphasis added)); § 30-1-9.1(c) ("A marriage
conforming to the requirements of this section shall be valid on the date
the marriage is executed by both parties, provided the affidavits, forms,
and data are recorded in the office of the judge of probate within 30 days
of the date of the last party's signature …. " (emphasis added)).
In light of this language commanding the probate court to record any
marriage documents properly filed with the probate office, there is no
basis for concluding that the registration process outlined in § 22-9A-17
13
1200682, 1200683
meaningfully invokes the adjudicatory power of a court of law. Therefore,
neither the authorities cited by the appellants nor the statutory text
reflect that the submission of marriage documents pursuant to § 22-9A-17
qualifies as the kind of action that, under Alabama's governing common-
law or statutory rules, would be abated by the death of a party.1
1The appellants also rely on Hays v. Hays, 946 So. 2d 867 (Ala. Civ.
App. 2006), a decision that does not invoke the abatement doctrine but
that, according to the appellants, supports their claim that death will
terminate a legal relationship. Hays, however, is readily distinguishable
from the present case. In Hays, the Court of Civil Appeals determined
that a trial court had erred in granting a stepmother's petition to adopt
her adult stepdaughter because, at the time the stepmother filed her
adoption petition, her husband, the prospective adoptee's biological father,
was dead. Id. The Court of Civil Appeals explained that the purely
statutory right of adoption in Alabama permits adoption of an adult when
the adult " 'consents in writing to be adopted and ... is a stepchild by
marriage.' " Id. at 868 (quoting § 26-10A-6(2)c., Ala. Code 1975 (emphasis
omitted)). The Court of Civil Appeals concluded that, because the
stepmother had lost her "stepparent" status upon the death of her
husband, her petition failed to adhere to the express requirements of the
adoption statute. However, as discussed above, and in contrast to the
not-yet-adjudicated adoption proceeding in Hays, the marriage-
registration process set forth in § 22-9A-17 does not require that both
parties to a validly executed marriage be alive when the marriage
documents are provided to the probate office. Thus, a spouse's death does
not preclude adherence to the statutory requirements of § 22-9A-17.
14
1200682, 1200683
Accordingly, Sean's death in this case did not abate the marriage-
registration process set forth in § 22-9A-17.
Conclusion
Applying the plain language of § 22-9A-17, we conclude that the
legislature did not intend for the death of a party to a marriage that
occurs after a marriage document is executed but before the marriage
document is recorded to void a marriage for failure to comply with
§ 22-9A-17. We further hold that there is no basis in existing law for
overriding the plain meaning of § 22-9A-17. Accordingly, the probate court
did not err in recognizing Sean's marriage to Alexis as valid, and we
affirm the probate court's order.
1200682 -- AFFIRMED.
1200683 -- AFFIRMED.
Bolin and Sellers, JJ., concur.
Parker, C.J., concurs specially.
Wise, J., concurs in the result.
15
1200682, 1200683
PARKER, Chief Justice (concurring specially).
Fully concurring in the main opinion, I write to emphasize the sea
change that recent amendments to the marriage statutes have worked in
Alabama law regarding legal recognition of marriages.
To understand the nature of this change, it is important to first
clarify in what sense the State of Alabama, or any civil government, has
power to "redefine" marriage. The relationship of marriage was designed
by the Creator; it both predates and transcends civil societies. See
Campbell's Adm'r v. Gullatt, 43 Ala. 57, 67 (1869) ("Marriage is a divine
institution, and, although in some respects it may partake of the nature
and character of ordinary contracts, it has, with few exceptions, always
been considered as standing upon higher and holier grounds ...."). See
generally Ex parte State ex rel. Alabama Pol'y Inst., 200 So. 3d 495,
504-05 (Ala. 2015) ("API") (expounding meaning of marriage). No civil
government was its originator, so none has power to define its essence.
Rather, the nature and outer boundaries of marriage are defined only by
its Supreme Architect, in His written word and in the natural order. See
16
1200682, 1200683
API, 200 So. 3d at 613 (Murdock, J., concurring specially with order issued
March 4, 2016) ("Governments did not and do not create the institution of
marriage. A civil government can choose to recognize that institution; it
can choose to affirm it; and it can even take steps to encourage it.
Governments throughout history have done so. But governments cannot
change its essential nature. Marriage is what it is."). That nature and
those boundaries include the original creation of marriage as a covenant
relationship by mutual consent between two human beings of opposite
sexes -- i.e., one man and one woman. See generally API, 200 So. 3d at
505-06 (recognizing nature of marriage).
Although governments are without power to change this institution
of marriage, they are nevertheless obligated to recognize it in their laws.
Thus, as long as they act consistently with the divinely established nature
and boundaries of the institution, governments have power to determine
the methods by which particular marriages receive legal recognition. See
Wilkes v. Wilkes, 245 Ala. 54, 55, 16 So. 2d 15, 16 (1943) ("Every state has
the ... power to regulate and define by law the marital status of its citizens
17
1200682, 1200683
...."). In this limited sense, governments have power to "define" and
"redefine" who is and is not married in the eyes of the law.
Like other American states, Alabama has done exactly that. Before
2017, Alabama law recognized two methods of obtaining legal recognition
of a marriage: ceremonial marriage and common-law marriage. The first
method I refer to as "ceremonial" marriage because its essential feature
was a ceremony by which the marriage was initiated. The ceremony could
take many forms and could be officiated at by a variety of religious or civil
officials, see § 30-1-7, Ala. Code 1975, but some kind of marriage ceremony
was required. A marriage license was ostensibly a condition precedent to
a valid ceremony, see former § 30-1-9 (repealed); Ashley v. State, 109 Ala.
48, 49, 19 So. 917, 918 (1896); Herd v. Herd, 194 Ala. 613, 615, 69 So. 885,
886 (1915), but sometimes defects in the licensing process were overlooked
by this Court in favor of holding a ceremony sufficient, see Ely v. Gammel,
52 Ala. 584, 586 (1875); Smith v. Smith, 205 Ala. 502, 88 So. 577 (1921);
Wallace v. Screws, 227 Ala. 183, 149 So. 226 (1923).
18
1200682, 1200683
The other method, common-law marriage, allowed recognition of a
marriage without having to prove the occurrence of a ceremony. Instead,
establishing the existence of a common-law marriage required proving
that the parties had capacity to marry; that they mutually agreed to
permanently enter the marriage relationship to the exclusion of all other
such relationships; that they cohabited or publicly assumed marital
duties; and that the public recognized their relationship as a marriage.
See Harbin v. Estess, 267 So. 3d 300, 307 (Ala. 2018); Creel v. Creel, 763
So. 2d 943, 946 (Ala. 2000).
In 2017 and 2019, however, the Legislature prospectively abolished
each of those methods of obtaining legal recognition of a marriage. The
Legislature did so in two steps. First, the enactment of § 30-1-20 expressly
did away with common-law marriage as to marriages entered into in 2017
or later. See § 30-1-20(a) ("No common-law marriage may be entered into
in this state on or after January 1, 2017."). Thus, after that amendment
to our marriage statutes, the only remaining method was ceremonial
marriage.
19
1200682, 1200683
Then, in 2019, further amendments removed ceremonial marriage
as a method of legal recognition, as to marriages entered into on or after
August 29, 2019. That is, a ceremony is no longer a necessary condition or
a sufficient condition to establish a statutorily recognized marriage. The
amendments provided: "The requirement of a ceremony of marriage to
solemnize the marriage is abolished," § 30-1-9.1(g), and "[t]he state shall
have no requirement for any ceremony or proceeding and whether or not
a ceremony or proceeding is performed or not performed shall have no
legal effect on the validity of the marriage," § 30-1-9.1(d). The
amendments also removed the license requirement that had been a
prerequisite for a ceremony. See Act No. 2019-340, § 3, Ala. Acts. 2019,
repealing § 30-1-9.
In place of a ceremony, the 2019 amendments substituted a
registration method of recognition. The marriage-requirements statute
now provides: "[T]he only requirement for a marriage in this state shall
be for parties who are otherwise legally authorized to be married to enter
into a marriage as provided in this section." § 30-1-9.1(a). The statute then
20
1200682, 1200683
sets forth the registration procedure discussed in the main opinion,
primarily execution and recording of a marriage document. § 30-1-9.1(b),
(c), (e); see also § 22-9A-17(a) (cross-referencing, and similarly stating,
registration procedure). In this way, the 2017 and 2019 amendments
collectively
abolished
ceremonial
and
common-law
marriage
(prospectively) in favor of a single administrative method of recognition,
registration.
The above understanding of the effect of the amendments has
important implications for, among many other things, interpreting the
seemingly
permissive
language
of
the
marriage-registration
record-keeping statute, § 22-9A-17. That statute provides: "Two persons
desiring to unite in marriage may do so by submitting the affidavits,
forms,
and
data
specified
in
[certain
parental-consent
and
marriage-registration statutes] for recording with the office of the judge
of probate." § 22-9A-17(a) (emphasis added). In light of the above
explanation of Alabama marriage law pre- and post-amendments, the
word "may" in that statute cannot be read as permissive in the sense there
21
1200682, 1200683
is some other way to establish a legally recognized marriage. The only
other methods, ceremonial marriage and common-law marriage, have
been expressly abolished, and the statute's use of "may" cannot be read in
a manner that would resurrect those methods. Rather, it must be read in
an exclusive-permissive sense: The marriage-registration statutes do not
require anyone to get married, but if people do decide to marry, these
statutes provide the exclusive method by which to obtain legal recognition
of the marriage. Cf. Celtic Life Ins. Co. v. McLendon, 814 So. 2d 222, 225
(Ala. 2001) (interpreting contractual arbitration provision's use of "may"
in this exclusive-permissive sense; " '[T]he use of the word "may" in an
arbitration agreement does not imply that the parties to the agreement
have the option of invoking some remedy other than arbitration.' "
(quoting Held v. National R.R. Passenger Corp., 101 F.R.D. 420, 424
(D.D.C. 1984))); Hanover Ins. Co. v. Kiva Lodge Condo. Owners' Ass'n, 221
So. 3d 446, 450-56 (Ala. 2016) (same; " '[M]ay' ... 'merely means that
neither party is obliged to initiate ... arbitration.' " (quoting with approval
22
1200682, 1200683
Benihana of Tokyo, LLC v. Benihana Inc., 73 F. Supp. 3d 238, 249
(S.D.N.Y 2014))).
Finally, in pointing out that Alabama has obviated ceremony as a
method for legal recognition of marriage, I am in no way discounting the
societal significance of a marriage ceremony. This practice commonly has
a multitude of salutary features, including encouraging the couple to
appreciate the solemnity of the commitment into which they are entering.
See Campbell's Adm'r, 43 Ala. at 67 ("There is, no doubt, much wisdom in
... seek[ing] to throw around the marriage relation safeguards to prevent
its being entered into hastily[] or unadvisedly ...."). A ceremony also often
provides an opportunity for witnesses to observe the event, including
family and friends who may provide important support and accountability
for the success of the marriage in years to come. In addition, when
sufficiently public, the ceremony functions as a reminder that marriage
is not merely a private, isolated arrangement between two individuals. It
is an institution for the collective good, and each marriage forms a crucial
thread in the tapestry of a flourishing society. In that vein, a wedding
23
1200682, 1200683
often provides an occasion for celebration and merriment, as guests
joyously commemorate the formation of a new family unit. Indeed,
although the relationship of marriage is temporal -- good for this life only,
see Matthew 22:23-30; Mark 12:18-25 -- there may be something about a
wedding and its feast that reflects eternal realities, see Revelation 19:6-9.
Perhaps something about those realities underlies the ubiquity of this
custom in cultures around the world. Whatever the case, the societal
benefits of a marriage ceremony abound. And the new legal reality that
a marriage ceremony is not required in Alabama ought not to discourage
the continuation of this important tradition.
24 | December 10, 2021 |
9c85c8a4-1e59-447c-ac0f-30b188029fbe | Ex parte George William Barton. | N/A | 1210051 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1210051
Ex parte George William Barton. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: George William Barton v.
State of Alabama) (Lee Circuit Court: CC-16-36.60; Criminal Appeals :
CR-19-0911).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 3, 2021:
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 3rd day of December, 2021.
Clerk, Supreme Court of Alabama | December 3, 2021 |
cbf0fed0-fd7d-4935-a6a5-9db6357849bb | Ex parte Space Race, LLC. | N/A | 1200685 | Alabama | Alabama Supreme Court | Rel: December 30, 2021
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, 2021-2022
_________________________
1200685
_________________________
Ex parte Space Race, LLC
PETITION FOR WRIT OF MANDAMUS
(In re: Alabama Space Science Exhibit Commission d/b/a U.S.
Space & Rocket Center
v.
Space Race, LLC)
(Madison Circuit Court, CV-19-900316)
SELLERS, Justice.
The Alabama Space Science Exhibit Commission d/b/a U.S. Space &
Rocket Center ("ASSEC") commenced an action in the Madison Circuit
1200685
Court ("the trial court") against Space Race, LLC ("Space Race"), seeking
to avoid an arbitration award entered in favor of Space Race and against
ASSEC by an arbitration panel in New York. Space Race filed a motion
to dismiss ASSEC's action, asserting that a New York court had already
entered a final judgment confirming the arbitration award. The trial
court denied Space Race's motion to dismiss, and Space Race petitioned
this Court for a writ of mandamus directing the trial court to dismiss
ASSEC's action. We grant the petition and issue the writ.
In July 2016, Space Race agreed to produce an animated series for
ASSEC aimed at promoting the interest of children in space exploration
and science. The series was to be created and released to the public over
a three-year period. In exchange, ASSEC agreed to compensate Space
Race with funds ASSEC would receive from a grant from the National
Aeronautics and Space Administration ("NASA"), which had contracted
with ASSEC to provide funding for the series. The compensation was to
be paid to Space Race annually as the series episodes were created during
the three-year contract term. The parties' agreement provides that it
"shall be governed" by Alabama law.
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After the first season of animated shows proved to be a success,
Space Race agreed to produce the remainder of the three-year series on an
expedited basis. ASSEC, however, would not be required to pay the full
amount owed to Space Race until the end of the three-year contract term.
Space Race produced the rest of the series before the contract term
expired, but ASSEC failed to pay the amount owed for the last year of the
series. Space Race claims that ASSEC still owed Space Race
approximately $1.3 million when the contract term expired.
The parties' agreement contains an arbitration provision.
Accordingly, in December 2017, after being notified by ASSEC that it
would no longer make payments to Space Race because the grant from
NASA had been terminated, Space Race commenced arbitration
proceedings against ASSEC in New York. During the arbitration hearing,
one of the arbitrators asked counsel for ASSEC if it was asserting a
sovereign-immunity defense against Space Race's claims. Counsel
responded that ASSEC was not.
Instead, ASSEC asserted that its agreement with Space Race
required ASSEC to pay Space Race only to the extent that ASSEC
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received grant funds from NASA and that NASA had terminated its
agreement with ASSEC and had stopped providing those funds.
According to Space Race, however, NASA had terminated its agreement
with ASSEC because ASSEC, in bad faith, had failed to provide NASA
with documentation required to continue funding the project.
The arbitrators ruled in favor of Space Race. They suggested that
ASSEC had intentionally breached its agreement with NASA and had
therefore breached its agreement with Space Race. The arbitrators
awarded Space Race the balance due under the parties' agreement, plus
prejudgment interest. They also noted that ASSEC had waived any
argument based on sovereign immunity.
In December 2018, Space Race filed a petition in the Supreme Court
of New York County, New York ("the New York trial court"), requesting
that court to confirm the arbitration award. In February 2019, while
Space Race's action to confirm the arbitration award was pending in New
York, ASSEC commenced the present action in the trial court, seeking to
vacate the arbitration award. The trial court, however, stayed the matter
pending resolution of the New York action.
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At a hearing before the New York trial court, in contrast to the
representation made during the arbitration hearing, counsel for ASSEC
stated that ASSEC was indeed asserting sovereign immunity in defense
of Space Race's efforts to confirm the arbitration award. The court,
however, noted that ASSEC had waived that defense during the
arbitration proceedings. In any event, the court ruled that ASSEC is not
the equivalent of the State of Alabama for purposes of sovereign
immunity. Accordingly, the court confirmed the arbitration award in
favor of Space Race. ASSEC appealed that ruling to the appellate division
of the New York Supreme Court, which affirmed the New York trial
court's decision. The New York Court of Appeals, that state's highest
court, declined to consider ASSEC's final appeal.
In the trial court, Space Race filed a motion to dismiss ASSEC's
action to vacate the arbitration award. Space Race argued that a New
York state court had rendered a final judgment that was entitled to res
judicata effect under the Full Faith and Credit Clause of the United
States Constitution. In response, ASSEC argued that it enjoys sovereign
immunity, that it cannot waive that immunity, and that its alleged
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immunity deprived the New York trial court of subject-matter jurisdiction
over the action to confirm the arbitration award. The trial court denied
Space Race's motion to dismiss; this mandamus petition followed.
" 'The standard governing our review of an
issue presented in a petition for the writ of
mandamus is well established:
" ' "[M]andamus
is
a
drastic
and
extraordinary writ to be issued only
where there is (1) a clear legal right in
the petitioner to the order sought; (2)
an
imperative
duty
upon
the
respondent to perform, accompanied by
a refusal to do so; (3) the lack of another
adequate remedy; and (4) properly
invoked jurisdiction of the court." '
"Ex parte Cupps, 782 So. 2d 772, 774-75 (Ala. 2000) (quoting
Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989))."
Ex parte Webber, 157 So. 3d 887, 891 (Ala. 2014). There appears to be no
dispute that mandamus is an appropriate avenue for reviewing the trial
court's ruling. Id. ("A petition for a writ of mandamus is an appropriate
method by which to seek this Court's review of the denial of a motion to
dismiss or for a summary judgment predicated on the doctrine of res
judicata."). As Space Race points out in its mandamus petition, "the whole
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point of the Full Faith and Credit Clause and res judicata is that, having
litigated a matter to final judgment in the courts of one State, the
victorious party should not have to litigate the same case to a final
judgment again in the courts of a second State."
The United States Constitution requires courts in Alabama to give
full faith and credit to the judicial proceedings of every other State. U.S.
Const. art. IV, § 1.
"Regarding judgments ... the full faith and credit obligation is
exacting. A final judgment in one State, if rendered by a court
with adjudicatory authority over the subject matter and
persons governed by the judgment, qualifies for recognition
throughout the land. For claim and issue preclusion (res
judicata) purposes, in other words, the judgment of the
rendering State gains nationwide force."
Baker v. General Motors Corp., 522 U.S. 222, 233 (1998) (footnote
omitted). " 'Full faith and credit ... generally requires every State to give
to the judgment at least the res judicata effect which the judgment would
be accorded in the State which rendered it.' " Omega Leasing Corp. v.
Movie Gallery, Inc., 859 So. 2d 421, 422 (Ala. 2003) (quoting Durfee v.
Duke, 375 U.S. 106, 109 (1963)). In New York, a judgment confirming an
7
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arbitration award is entitled to res judicata effect. See In re Aetna Cas.
& Sur. Co. v. Mantovani, 240 A.D.2d 566, 569, 658 N.Y.S.2d 926 (1997).
ASSEC, however, asserts that the New York trial court's judgment
confirming the arbitration award is not entitled to full faith and credit and
res judicata effect because, ASSEC asserts, that court did not have
"adjudicatory authority over the subject matter." Baker, 522 U.S. at 233.
See also Pirtek USA, LLC v. Whitehead, 51 So. 3d 291, 295 (Ala. 2010)
(acknowledging that, " '[w]hile Alabama courts are generally required to
give a judgment entitled to full faith and credit at least the res judicata
effect accorded in the rendering court's jurisdiction, Alabama courts are
permitted to inquire into the jurisdiction of the rendering court' " (quoting
Menendez v. COLSA, Inc., 852 So. 2d 768, 771 (Ala. Civ. App. 2002))).
According to ASSEC, the New York trial court did not have subject-
matter jurisdiction over Space Race's action to confirm the arbitration
award because, ASSEC claims, ASSEC is immune from suit in New York
state courts. ASSEC points to Franchise Tax Board of California v. Hyatt,
587 U.S. ___, ___ 139 S. Ct. 1485, 1497 (2019), in which the United States
Supreme Court held that states are immune from private suits in the
8
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courts of sister states, noting that "[t]he Constitution does not merely
allow States to afford each other immunity as a matter of comity; it
embeds interstate sovereign immunity within the constitutional design."
ASSEC argues that it should be equated with the State of Alabama
for purposes of interstate sovereign immunity. In support of that
assertion, ASSEC relies on Barnhart v. Ingalls, 275 So. 3d 1112 (Ala.
2018), in which this Court held that employees of ASSEC were entitled to
State immunity under Article I, § 14, Ala. Const. 1901 (Off. Recomp.). The
Court in Barnhart said:
"[ASSEC] was created as a State agency in 1965 by the
Alabama Legislature to provide for and manage 'facilities to
house and display such visual exhibits of space exploration and
hardware used therefor as may be made available by the
National Aeronautics and Space Administration.' § 41-9-430,
Ala. Code 1975. In accordance with that purpose, [ASSEC]
opened the U.S. Space & Rocket Center ('the Rocket Center')
in March 1970 and, since that time, has continued to operate
the popular museum and learning center in Huntsville. At the
time
this
action
was
initiated,
[ASSEC]
employed
approximately 120 individuals at the Rocket Center."
275 So. 3d at 1116 (emphasis added).
Whether the New York trial court's judgment is entitled to full faith
and credit does not necessarily turn on whether this Court agrees with the
9
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New York trial court's conclusion that ASSEC should not be considered
the equivalent of the State of Alabama for purposes of interstate sovereign
immunity. Rather, the judgment is entitled to full faith and credit if the
immunity issue was fully and fairly litigated in New York.
"[T]he [United States Supreme] Court made it clear that
whether a state extends full faith and credit to a judgment of
another state depends only upon the existence of a full and fair
litigation in the foreign state of the issues resolved by that
judgment:
" '[A] judgment is entitled to full faith and credit --
even as to questions of jurisdiction -- when the
second court's inquiry discloses that those
questions have been fully and fairly litigated and
finally decided in the court which rendered the
original judgment.' "
Omega Leasing Corp., 859 So. 2d at 422 (quoting Durfee, 375 U.S. at 111)
(emphasis added). See also Pirtek USA, LLC, 51 So. 3d at 295 (indicating
that, in deciding whether a foreign court's judgment should not be given
full faith and credit because of a lack of jurisdiction, the inquiry is limited
to determining whether the jurisdictional issues were fully and fairly
litigated by the foreign court and whether those issues were finally
decided by the foreign court).
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It is clear that the jurisdictional issue was indeed fully and fairly
litigated in the New York trial court. In considering whether ASSEC is
entitled to interstate sovereign immunity, the New York trial court first
noted that some federal district courts have ruled that ASSEC is not an
"arm of the state" for purposes of immunity under the Eleventh
Amendment to the United States Constitution and federal diversity
jurisdiction. See Parker v. Alabama Space Sci. Exhibit Comm'n, No. 5:15-
cv-02261-AKK, June 16, 2016 (N.D. Ala. 2016) (not reported in Federal
Supplement); Alabama Space Sci. Exhibit Comm'n v. Odysseia Co., No.
5:14-CV-00413-MHH, Aug. 19, 2016 (N.D. Ala. 2016) (not reported in
Federal Supplement); Alabama Space Sci. Exhibit Comm'n v. Odysseia
Co., No. 5:14-CV-00413-MHH, Apr. 26, 2017 (N.D. Ala. 2017) (not reported
in Federal Supplement). See also Alabama Space Sci. Exhibit Comm'n v.
Merkel Am. Ins. Co., 400 F. Supp. 3d 1259 (N.D. Ala. 2019) (decided after
the New York trial court issued its judgment confirming the arbitration
award). But see Ingalls v. U.S. Space & Rocket Ctr., No.
2:14-CV-699-WKW, July 27, 2015 (M.D. Ala. 2015) (not reported in
Federal Supplement) (concluding that "Alabama courts would determine
11
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that [ASSEC] functions as an arm of the state and is, therefore, entitled
to Eleventh Amendment immunity").1
The New York trial court acknowledged that the issue whether
ASSEC is an agency of Alabama for purposes of State immunity under §
14 of the Alabama Constitution is relevant to the interstate-sovereign-
immunity analysis. But the court ultimately concluded that ASSEC is not
a State agency for purposes of § 14. In doing so, the court pointed to
Rodgers v. Hopper, 768 So. 2d 963 (Ala. 2000), in which this Court said:
1ASSEC asserts that whether an entity is considered an arm of the
state for purposes of Eleventh Amendment immunity and diversity
jurisdiction is not necessarily determinative of whether that entity is
entitled to State immunity under § 14 of the Alabama Constitution. See
Ex parte Alabama Dep't of Youth Servs., 880 So. 2d 393, 404 (Ala. 2003)
(" '[T]he Alabama Constitution provides sovereign immunity to entities
that do not possess Eleventh Amendment immunity.' ") (quoting Powers
v. CSX Transp., Inc., 105 F. Supp. 2d 1295, 1299 n.2 (S.D. Ala. 2000))).
But, even taking into account the fact that the parties' agreement states
that it "shall be governed as to all matters ... by the laws of the State of
Alabama," the Court is not convinced that the analysis employed in
determining whether ASSEC is an arm of the state for purposes of
Eleventh Amendment immunity and diversity jurisdiction is completely
irrelevant to whether it enjoys interstate sovereign immunity under
Franchise Tax Board of California v. Hyatt, 587 U.S. ___, 139 S. Ct. 1485
(2019). In any event, independent of that analysis, the New York trial
court fairly and fully considered whether ASSEC should be considered a
State agency for purposes of State immunity under § 14.
12
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"The test for determining whether a legislatively created body
is an immediate and strictly governmental agency for purposes
of a [§ 14] sovereign-immunity analysis involves an assessment
of (1) the character of the power delegated to the body; (2) the
relation of the body to the State; and (3) the nature of the
function performed by the body."
768 So. 2d at 966. Some common characteristics of entities that are not
entitled to § 14 immunity include the "(1) the power to sue and be sued;
(2) the power to enter into contracts; (3) the power to sell and dispose of
property; (4) the power to issue bonds; and (5) exclusive responsibility for
[the entity's] financial obligations." Id.
In confirming the arbitration award, the New York trial court stated:
"Now [ASSEC] is saying that it can't waive [interstate
sovereign immunity], but that brings me back to the finding
that they are not a government agency.
"And let me just go through the factors for that. So
[ASSEC] hires its own personnel, it raises and spends money,
it owns property, including the space center, it can sue and be
sued, it can have its own counsel, it's not limited to
representation by the State Attorney General's Office,
although I understand you are standing in the shoes of the
attorney general today. So I would say it operates more like a
private public corporation.
"And, in fact, this transaction couldn't be more of a
commercial transaction where [ASSEC] was paying the cost of
making a children's program about space and NASA and the
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parties designated [the American Arbitration Association for
dispute resolution].
"....
"Under Rodgers v. Hopper, which is 768 So. 2d 963, an
Alabama case, the Supreme Court of Alabama held that the
qualities to determine whether it's a state agency or not are
whether the entity had the power to [sue] or be sued, the
power to enter into contracts. Clearly, [ASSEC] has sued and
been sued. They have entered into contracts; precisely the
contract here. They have the power to sell and dispose of
property. They own the property -- their property in Alabama.
The fourth thing is the power to raise and issue bonds, and it
has responsibility for its financial obligations."
The New York trial court took the relevant considerations into account in
determining that ASSEC is not a State agency for purposes of State
immunity under § 14. The court acknowledged Barnhart, but correctly
pointed out that the parties and this Court had simply assumed in that
case that ASSEC was a State agency for purposes of § 14 immunity.
Regardless of whether this Court agrees or disagrees with the New York
trial court, it is clear that the parties and the court fully and fairly
litigated the immunity issue.2
2In Barnhart, former employees of ASSEC sued ASSEC officers,
seeking in part to recover tort damages from the officers based on theories
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In response to the proposition that even jurisdictional adjudications
are entitled to full faith and credit, ASSEC asserts that an exception
applies when the court issuing the judgment lacked jurisdiction
specifically because of a party's sovereign immunity. In other words,
alleging negligence and breach of fiduciary duty in failing to pay
compensation allegedly owed to the former employees. The former
employees alleged the tort claims against the ASSEC officers in their
individual capacities and sought to recover from the officers' personal
funds. The former employees also asserted claims against the ASSEC
officers in their official capacities, seeking the backpay allegedly owed.
This Court held that the officers were not entitled to State immunity
under § 14 with respect to the claims against them in their official
capacities because payment of the allegedly owed funds was merely a
"ministerial act" not involving discretion. 275 So. 3d at 1125. With
respect to the tort claims, however, this Court determined that the officers
were entitled to State immunity because, even though the employees
sought to recover from the officers' personal funds, the tort claims were in
essence brought against the officers in their official capacities because the
duties allegedly breached were owed "only because of the positions the ...
officers held." Id. at 1126. But, there was no express determination in
Barnhart that ASSEC is indeed a State agency for purposes of State
immunity. There was no discussion of the factors courts consider in
determining whether an entity is a State agency for purposes of § 14
immunity. The parties and the Court simply assumed that ASSEC was
a State agency for purposes of considering the officers' immunity. We also
note that the present case does not involve tort-based claims against
ASSEC or its officers. It involves the confirmation of an arbitration award
entered after ASSEC breached its contract with Space Race by failing to
pay the final amount due under that contract.
15
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according to ASSEC, "sovereign immunity presents an exception to the
finality of jurisdictional determinations."
ASSEC relies primarily on United States v. United States Fidelity
& Guaranty Co., 309 U.S. 506 (1940). In that case, the United States
Supreme Court held that a judgment entered against the United States,
which was acting on behalf of the Choctaw and Chickasaw Nations, was
not entitled to res judicata effect. The Court's decision was based on its
conclusion that the court that had entered the judgment at issue, a federal
district court in Missouri, had lacked subject-matter jurisdiction because
the United States and the Choctaw and Chickasaw Nations enjoyed
sovereign immunity. However, unlike the New York trial court in the
present case, the court in Missouri never considered sovereign immunity
because the United States never raised it as a defense. In contrast, the
New York trial court fully and fairly considered ASSEC's claim of
immunity.
We acknowledge that the United States Supreme Court in Durfee,
supra, noted that "the general rule of finality of jurisdictional
determinations is not without exceptions" and that "[d]octrines of federal
16
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pre-emption or sovereign immunity may in some contexts be controlling."
375 U.S. at 114. As an example, the Court pointed to United States
Fidelity & Guaranty Co. But the Court in Durfee made sure to note that
the immunity issue had not been litigated by the trial court in United
States Fidelity & Guaranty Co. 375 U.S. at 114 n.12. Thereafter, the
Court pointed to factors set out in the Restatement of Conflict of Laws
that courts have considered in deciding whether a judgment involving
jurisdictional issues may be collaterally attacked, one of which is whether
the jurisdictional questions were actually litigated before the court that
issued the judgment. Id. The jurisdictional issue in the present case
undoubtedly was litigated in the New York trial court.3
3The New York trial court also noted that ASSEC had purported to
expressly waive reliance on sovereign immunity during the arbitration
proceedings. According to ASSEC, however, it was incapable of waiving
immunity. In support of that assertion, ASSEC relies on precedent
indicating that State immunity under § 14 of the Alabama Constitution
cannot be waived. See, e.g., Atkinson v. State, 986 So. 2d 408, 410 (Ala.
2007). ASSEC asserts that "[t]he New York court's conclusion regarding
waiver directly contravenes Alabama law and cannot bind Alabama
courts." But ASSEC does not point to legal authority indicating that our
decisions holding that State immunity under § 14 cannot be waived should
apply to the type of interstate sovereign immunity recognized in Franchise
Tax Board of California v. Hyatt, 587 U.S. ___, 139 S. Ct. 1485 (2019). For
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Finally, ASSEC relies on the Restatement (Second) of Judgments §
12 (Am. L. Inst. 1982), which provides:
"When a court has rendered a judgment in a contested
action, the judgment precludes the parties from litigating the
question of the court's subject matter jurisdiction in
subsequent litigation except if:
"(1) The subject matter of the action was so
plainly beyond the court's jurisdiction that its
entertaining the action was a manifest abuse of
authority; or
"(2) Allowing the judgment to stand would
substantially infringe the authority of another
tribunal or agency of government; or
"(3) The judgment was rendered by a court
lacking capability to make an adequately informed
determination of a question concerning its own
jurisdiction and as a matter of procedural fairness
the party seeking to avoid the judgment should
its part, Space Race describes waiver as a "matter of procedure" and
asserts that the New York trial court was free to apply its own rules
regarding waiver. See generally Belfand v. Petosa, 196 A.D.3d 60, 148
N.Y.S.3d 457 (2021) (holding that a New Jersey agency had waived Hyatt
interstate sovereign immunity in a New York court by participating in
litigation in that court). In any event, it is not necessary to opine on that
question, because it is clear that, independent of waiver, the New York
trial court fully and fairly litigated the substantive merits of ASSEC's
immunity defense.
18
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have opportunity belatedly to attack the court's
subject matter jurisdiction."
The comments to this section of the Restatement indicate that, when
the issue implicating subject-matter jurisdiction was actually raised and
considered by the court that issued the judgment under attack, that
judgment is typically entitled to res judicata effect. Comment a provides,
in relevant part, as follows:
"The modern rule on conclusiveness of determinations of
subject matter jurisdiction gives finality substantially greater
weight than validity .... It gives different weight to finality
when the tribunal is one of limited legal capacity ... and when
the parties have not contested the action, i.e., in the case of a
default judgment."
Restatement (Second) of Judgments § 12 cmt. a. Comment c further
provides:
"When the question of the tribunal's jurisdiction is raised in
the original action, in a modern procedural regime there is no
reason why the determination of the issue should not
thereafter be conclusive under the usual rules of issue
preclusion. The force of the considerations supporting
preclusion is at least as great concerning determinations of the
issue of jurisdiction as it is with respect to other issues. ...
Beyond this, there is virtually always available a procedure by
which to obtain review of the original tribunal's determination
of the issue, either by appeal or by injunction or extraordinary
writ. Thus, the opportunity for an independent determination
19
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of the issue of subject matter jurisdiction that was protected in
traditional doctrine remains available under the rule that the
tribunal's determination of its own competency is res judicata.
At the same time, applying the rule of preclusion considerably
reduces the vulnerability of the judgment to subsequent attack
and thus furthers the policy of finality."
Restatement (Second) of Judgments § 12 cmt. c.
Even if the Restatement were somehow binding on this Court, we
are not convinced that any of the three circumstances justifying
relitigation of a court's jurisdiction apply here. The New York trial court
provided the parties with a full and fair opportunity to litigate the
sovereign-immunity issue, and the court fully and fairly considered the
parties' arguments and relevant law. Its determination that ASSEC
should not be considered the equivalent of the State of Alabama for
purposes of interstate sovereign immunity is, at the very least, defensible.
We simply cannot conclude that the New York trial court was "so plainly"
without subject-matter jurisdiction that it committed a "manifest abuse
of authority," that its judgment substantially infringes on the authority
of another tribunal or agency of government, or that it lacked the
20
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capability to make an informed determination regarding the sovereign-
immunity issue. Restatement (Second) of Judgments § 12.
Because the New York judgment confirming the arbitration award
against ASSEC is entitled to full faith and credit and res judicata effect,
we grant Space Race's mandamus petition. The trial court is directed to
vacate its order denying Space Race's motion to dismiss and to enter an
order granting that motion.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Wise, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Shaw and Bryan, JJ., concur in the result.
21
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SHAW, Justice (concurring in the result).
I concur in the result and write specially to note the following.
In this matter, a New York trial court entered and confirmed as a
judgment an arbitration award rendered in favor of Space Race, LLC
("Space Race"), against the Alabama Space Science Exhibit Commission
("the ASSEC") in a contract dispute. The ASSEC maintains that it is a
State agency and thus is afforded State immunity under Article I, § 14,
Ala. Const. 1901 (Off. Recomp.), which provides "[t]hat the State of
Alabama shall never be made a defendant in any court of law or equity."
"Under § 14, the State and its agencies are absolutely immune from suit."
Lyons v. River Rd. Constr., Inc., 858 So. 2d 257, 261 (Ala. 2003) (emphasis
added). "[T]he use of the word 'State' in Section 14 was intended to
protect from suit only immediate and strictly governmental agencies of
the State." Thomas v. Alabama Mun. Elec. Auth., 432 So. 2d 470, 480
(Ala. 1983). Although the immunity provided in § 14, which is referred to
as "State immunity," has at times been labeled as providing "sovereign
immunity," Lyons, 858 So. 2d at 259 n.2, it is not a waivable, affirmative
defense like certain forms of common-law sovereign immunity. Instead,
22
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" '[§ 14] immunity may not be waived.' Patterson [v.
Gladwin Corp.], 835 So. 2d [137,] 142 [(Ala. 2002)]. [State]
immunity is, therefore, not an affirmative defense, but a
'jurisdictional bar.' Ex parte Alabama Dep't of Transp., 985 So.
2d 892, 894 (Ala. 2007). The jurisdictional bar of § 14 simply
'preclud[es] a court from exercising subject-matter jurisdiction'
over the State or a State agency. Lyons v. River Road Constr.,
Inc., 858 So. 2d 257, 261 (Ala. 2003). Thus, a complaint filed
solely against the State or one of its agencies is a nullity and
is void ab initio. Ex parte Alabama Dep't of Transp. (In re
Russell Petroleum, Inc. v. Alabama Dep't of Transp.), 6 So. 3d
1126 (Ala. 2008)."
Alabama Dep't of Corr. v. Montgomery Cnty. Comm'n, 11 So. 3d 189, 191-
92 (Ala. 2008).
This Court has stated that the ASSEC "was created as a State
agency in 1965 by the Alabama Legislature." Barnhart v. Ingalls, 275 So.
3d 1112, 1116 (Ala. 2018). In Barnhart, this Court unambiguously held
that claims raised against certain ASSEC officers were barred by § 14
because "not only do the State and its agencies have absolute immunity
from suit in any court, but State officers and employees, in their official
capacities and individually, also are immune from suit when the action
against them is, in effect, one against the State." 275 So. 3d at 1122.
However, whether the ASSEC is an "immediate and strictly
23
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governmental" agency of the State to which § 14 immunity would apply,
Thomas, 432 So. 2d at 480, was not specifically addressed in that case.4
See Rodgers v. Hopper, 768 So. 2d 963, 966 (Ala. 2000) (providing a test
to determine whether a legislatively created body is an immediate and
strictly governmental agency). Although I believe that a strong argument
can be made that the ASSEC is a State agency,5 ultimately, as discussed
4The trial court in Barnhart dismissed the ASSEC as immune under
§ 14. 275 So. 3d at 1118 n.3. It appears that this Court proceeded under
the assumption that § 14 immunity applied to the ASSEC. Although this
Court on its own motion will confirm that a court had subject-matter
jurisdiction, it is not required to examine a lower court's holding that it
lacked jurisdiction unless the issue is properly raised on appeal. Crutcher
v. Williams, 12 So. 3d 631, 635 (Ala. 2008) ("[T]his Court is not obligated
to embark on its own expedition beyond the parties' arguments in pursuit
of a reason to exercise jurisdiction.").
5I note that Ala. Code 1975, § 41-9-430, which created the ASSEC,
provides: "There is hereby created and established a state agency to be
known as the Alabama Space Science Exhibit Commission ...." (Emphasis
added.) Further, various Code sections governing the ASSEC indicate a
close relationship to the State, including that its commissioners are
appointed by the Governor, Ala. Code 1975, § 41-9-431; that it has the
power to issue general obligation bonds that are obligations of the State,
Ala. Code 1975, § 41-9-432(5); that its personnel are provided certain
benefits of state employees, § 41-9-432(13); and that its records and books
are subject to audit by the Alabama Department of Examiners of Public
Accounts. Ala. Code 1975, § 41-9-437.
24
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below, whether it is a State agency entitled to State immunity is not
material to this Court's decision in this case.
According to the materials before us, the New York trial court held
that, under Alabama law, the ASSEC was not entitled to "sovereign
immunity" because it was not a State agency. It further held that the
ASSEC had waived any "sovereign immunity," and that holding was
upheld by a New York appellate court, which, because of the purported
waiver, pretermitted discussion of whether the ASSEC was a State
agency. In re Space Race LLC v. Alabama Space Sci. Exhibit Comm'n,
185 A.D.3d 403, 126 N.Y.S.3d 465 (2020). Thus, the arbitration award
was confirmed.
Space Race contends that the New York judgment is entitled to res
judicata effect; if so, it would essentially bar ASSEC's action in the
Madison Circuit Court challenging the award. Generally, under the Full
Faith and Credit Clause of the United States Constitution, art. IV, § 1, a
court must give res judicata effect to a prior judgment of a court of
another state. Pirtek USA, LLC v. Whitehead, 51 So. 3d 291, 295 (Ala.
2010). However, the second court may generally determine whether the
25
1200685
original court lacked jurisdiction, and, if the second court in fact
determines that the original court lacked jurisdiction, res judicata does
not apply to the original court's judgment. That said, according to the
United States Supreme Court, such an inquiry into the original court's
jurisdiction is not permitted if the issue of that court's jurisdiction was
already decided by the original court:
"[W]hile it is established that a court in one State, when asked
to give effect to the judgment of a court in another State, may
constitutionally inquire into the foreign court's jurisdiction to
render that judgment, the modern decisions of this Court have
carefully delineated the permissible scope of such an inquiry.
From these decisions there emerges the general rule that a
judgment is entitled to full faith and credit -- even as to
questions of jurisdiction -- when the second court's inquiry
discloses that those questions have been fully and fairly
litigated and finally decided in the court which rendered the
original judgment."
Durfee v. Duke, 375 U.S. 106, 111 (1963) (emphasis added). The Court
noted that, absent fraud, there is no reason a court should reexamine
another court's earlier determination of a jurisdictional issue; that there
is a need to end litigation; and that, after a party has had the ability to
present its case, a collateral attack on the prior jurisdictional holding
" 'merely retries the issue previously determined. There is no reason to
26
1200685
expect that the second decision will be more satisfactory than the first.' "
Durfee, 375 U.S. at 114 (quoting Stoll v. Gottlieb, 305 U.S. 165, 172
(1938)).
However, the Supreme Court in Durfree indicated that this rule was
not absolute: "To be sure, the general rule of finality of jurisdictional
determinations is not without exceptions. Doctrines of federal pre-emption
or sovereign immunity may in some contexts be controlling." 375 U.S. at
114 (emphasis added). This appears to suggest that an exception applies
to cases involving sovereign immunity; that is, when sovereign immunity
is at issue, the original court's judgment is not final and may be inquired
into by another court. However, in support of this proposition, the
Supreme Court cited Kalb v. Feuerstein, 308 U.S. 433 (1940), and United
States v. United States Fidelity & Guaranty Co., 309 U.S. 506 (1940), in
which, as the Supreme Court noted, the jurisdictional issues had not
actually been litigated by the original court rendering judgment. 375 U.S.
at 115 n.12. I read this to mean that an exception to the finality rule
allowing a court to inquire into the original court's jurisdiction when
sovereign immunity is involved exists only when the issue was not
27
1200685
litigated in the original court. See also Sterling v. United States, 85 F.3d
1225, 1231 n.7 (7th Cir. 1996) (Flaum, J., concurring in the judgment) ("If
the question of sovereign immunity was actually litigated in the original
suit, the parties may be precluded from relitigating the issue in a
subsequent proceeding."). No authority has been provided to this Court
that would avoid that result here; thus, because the New York courts held
that the ASSEC was not entitled to immunity, we cannot reexamine that
issue now, and I must reluctantly concur in the result.
28 | December 30, 2021 |
bf5aeb71-3081-48d6-890a-c0036816d469 | Deslonde v. Nationstar Mortgage, LLC, d/b/a Mr. Cooper et al. | N/A | 1200483 | Alabama | Alabama Supreme Court | Rel: December 10, 2021
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, 2021-2022
____________________
1200483
____________________
Brett A. Deslonde
v.
Nationstar Mortgage, LLC, d/b/a Mr. Cooper, and The Bank of
New York Mellon, as Trustee for Nationstar Home Equity Loan
Trust 2007-C
Appeal from Baldwin Circuit Court
(CV-18-900849)
SELLERS, Justice.
1200483
Brett A. Deslonde appeals from a summary judgment entered in
favor of Nationstar Mortgage, LLC, doing business as Mr. Cooper
("Nationstar"), and The Bank of New York Mellon, as trustee for
Nationstar Home Equity Loan Trust 2007-C ("BNYM"), on Deslonde's
claim seeking reformation of a loan-modification agreement on the ground
of mutual mistake. We affirm.
I. Facts
In December 2006, Deslonde purchased real property in Fairhope
with a loan from Nationstar in the amount of $348,386.50; the mortgage
securing the loan was recorded in the Baldwin Probate Office.1 Deslonde
subsequently defaulted on his mortgage payments and applied for a loan
modification through Nationstar's loss-mitigation program. By a letter
dated February 14, 2014, Nationstar notified Deslonde that he had been
approved for a "trial period plan" under the federal Home Affordable
1The property was initially purchased jointly by Deslonde and his
wife, Barbara Lynn Thies Deslonde. Deslonde and Barbara subsequently
divorced, and Barbara executed a quitclaim deed conveying her interest
in the property to Deslonde. Barbara is not a party to this appeal.
2
1200483
Modification Program ("the federal program").2 Under the federal
program, Deslonde was required to make three monthly trial payments in
the amount of $1,767.38 and to submit all required documentation for
participation in the program, including an executed loan-modification
agreement. The letter also stated that, "[i]f each payment is not received
by [Nationstar] in the month in which it is due, this offer will end and
your loan will not be modified under the [the federal program]."
By a letter dated July 3, 2014, Nationstar informed Deslonde that
his request for a loan modification under the federal program had been
denied because he had not returned an executed loan-modification
agreement or made the trial payments. That letter informed Deslonde
that there were other possible alternatives that might be available to him
if he was unable to make his regular loan payments. After further
2See JP Morgan Chase Bank, N.A. v. Ilardo, 940 N.Y.S.2d 829, 835,
36 Misc. 3d 359, 366 (Sup. Ct. 2012) (noting that the Home Affordable
Modification Program is a federal program that aims "to provide relief to
borrowers who have defaulted on their mortgage payments or who are
likely to default by reducing mortgage payments to sustainable reduced
levels, without discharging any of the underlying debt").
3
1200483
conversations with representatives of Nationstar, Deslonde submitted a
second application package for loss mitigation in October 2014.
By a letter dated October 9, 2014, Nationstar informed Deslonde
that it had received his second application package for loss mitigation but
that the documents he had submitted were incomplete. That letter
specifically explained:
"A complete package must be received by Nationstar in order
for us to begin the evaluation process. Prior to our receipt of
the missing/completed documents, a foreclosure process may
be initiated or if the foreclosure has already been initiated, the
foreclosure process will continue until all documents are
received.
"Once all of the documentation requested above is provided, we
will process the information and provide you a written
determination of which loss mitigation options may be
available to you and, if applicable, of the steps to be taken to
accept our offer. If you qualify for loan modification, you will
have 14 days from the date of the offer to accept it. There is no
guarantee that you will qualify or receive any loss mitigation
options.
"It is critical that you return a complete set of documents to us
no later than 11/8/2014. If all documents are not received by
that date, your application will be denied."
(Emphasis and italicized emphasis in original.)
4
1200483
As required, Deslonde submitted a complete set of documents.
Nationstar thereafter sent Deslonde a letter of acknowledgment, dated
November 11, 2014, as well as a loan-modification agreement that, it
claims, was its standard loan-modification agreement:
"Attached for execution is the Modification Agreement for
your loan serviced by [Nationstar]. The Modification
Agreement sets forth the future terms of repayment of your
loan. ... The specific terms are identified in the Modification
Agreement ....
"By executing the Letter of Acknowledgment and the
Modification Agreement, you are agreeing to make a
qualifying payment of $7,804.04 ('Qualifying Payment') for
your Modification Agreement to become effective ...."
(Emphasis added.)
Deslonde signed both the loan-modification agreement and the
acknowledgment letter and returned them to Nationstar with the
qualifying payment. A representative of Nationstar countersigned the
loan-modification agreement (hereinafter referred to as "the executed
modification agreement"). Shortly after Deslonde and Nationstar entered
into the executed modification agreement, Nationstar assigned the
5
1200483
mortgage to the property to BNYM, but Nationstar remained the servicer
on the mortgage.
Under the executed modification agreement, Deslonde made
monthly payments sufficient to cover only interest and escrow charges on
the loan. The loan-modification period, however, expired in November
2016, at which time the monthly payments reverted to the premodification
amount so as to include principal on the loan. After the loan-modification
period expired, Deslonde made three additional monthly payments, but he
then ceased making payments altogether.
In an attempt to avoid foreclosure, Deslonde filed a complaint
against Nationstar and BNYM in the Baldwin Circuit Court ("the trial
court"), requesting a temporary restraining order enjoining foreclosure of
the mortgage, a judgment declaring the parties' rights under the executed
modification agreement, and reformation of the executed modification
agreement on the ground of mutual mistake. Deslonde specifically alleged
in his complaint that a representative from Nationstar had confirmed that
the terms of the executed modification agreement would be the same
terms previously offered under the federal program.
6
1200483
In July 2018, the trial court entered a temporary restraining order
enjoining foreclosure of the mortgage pending further order of the court.
Nationstar and BNYM thereafter filed a motion for a summary judgment
pursuant to Rule 56(c), Ala. R. Civ. P., arguing that the plain language of
the executed modification agreement controls and that it should be
enforced as written. Nationstar and BNYM supported their motion for a
summary judgment with, among other things, copies of the executed
modification agreement, the acknowledgment letter, and numerous call
logs between the parties. There is no dispute that those documents were
properly executed, authenticated, and accepted into evidence. In response,
Deslonde submitted, pursuant to Rule 56(f), Ala. R. Civ. P., the affidavit
of his attorney, representing that, to oppose the motion for a summary
judgment, it was essential that discovery be conducted to ascertain the
identity of the Nationstar representative who had confirmed that the
terms of the executed modification agreement would be the same as the
terms previously offered under the federal program.3 The trial court
3Rule 56(f), Ala. R. Civ. P., allows a party opposing a
summary-judgment motion to file an affidavit notifying the trial court that
7
1200483
denied the motion for a summary judgment to allow Deslonde the
opportunity to conduct discovery to adequately respond to the summary-
judgment motion. Following the completion of that discovery, Nationstar
and BNYM filed a renewed motion for a summary judgment, which the
trial court granted. Deslonde filed a motion to alter, amend, or vacate that
judgment, which the trial court denied. This appeal followed.
II. Standard of Review
This Court reviews a summary judgment de novo, and we use the
same standard used by the trial court to determine whether the evidence
presented to the trial court presents a genuine issue of material fact. Rule
56(c), Ala. R. Civ. P.; Nettles v. Pettway, 306 So. 3d 873 (Ala. 2020). The
movant for a summary judgment has the initial burden of producing
evidence indicating that there is no genuine issue of material fact and that
the movant is entitled to a judgment as a matter of law. Once the movant
it is presently unable to present "facts essential to justify the party's
opposition." It is within the trial court's discretion to either "deny the
motion for summary judgment or ... order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to be had
...." Id.
8
1200483
produces evidence establishing a right to a summary judgment, the
burden shifts to the nonmovant to present substantial evidence creating
a genuine issue of material fact. We consider all the evidence in the light
most favorable to the nonmovant, indulging every reasonable inference
and resolving any doubts in the nonmovant's favor. Id.
III. Discussion
On appeal, Deslonde argues that the trial court erred in entering a
summary judgment in favor of Nationstar and BNYM because, he says,
the executed modification agreement does not reflect the actual, mutual
intentions of the parties at the time that modification agreement was
executed and, thus, should be reformed. It is well settled in property law
that a trial court may exercise its equitable powers to reform a written
instrument that, through mutual mistake, does not truly express the
intention of the parties. See § 35-4-153, Ala. Code 1975. In Fadalla v.
Fadalla, 929 So. 2d 429, 434 (Ala. 2005), this Court explained:
" 'The general rule in Alabama is that a court may
exercise its equitable powers to reform [an instrument] to
make it conform to the intention of the parties.' Powell v.
Evans, 496 So. 2d 723, 725 (Ala. 1986); Clemons v. Mallett,
445 So. 2d 276, 278 (Ala. 1984). One of the grounds for
9
1200483
reformation of [an instrument] is mutual mistake of the
parties. Long v. Vielle, 549 So. 2d 968, 970-71 (Ala. 1989). A
mutual mistake exists when the parties have entered into an
agreement, but the [instrument] does not express what the
parties intended under the agreement. Daniels v. Johnson, 539
So. 2d 259, 260 (Ala. 1989). In determining whether a mutual
mistake exists, '[t]he initial factual question is, of course, what
the parties intended the instruments to express at the time
they were executed.' Jim Walter Homes, Inc. v. Phifer, 432 So.
2d 1241, 1242 (Ala. 1983) (citing Behan v. Friedman, 218 Ala.
513, 119 So. 20 (1928)). However, the trial court ' "cannot make
a new [instrument] for the parties, nor establish that as a[n]
[instrument] between them, which it is supposed they would
have made, if they had understood the facts." ' 432 So. 2d at
1242 (quoting Holland Blow Stave Co. v. Barclay, 193 Ala. 200,
206, 69 So. 118, 120 (1915))."
Additionally, the party seeking to reform an instrument on the basis
of a mutual mistake bears the burden of proving by "clear, convincing, and
satisfactory evidence that the intention he seeks to substitute was that of
both parties." Beasley v. Mellon Fin. Servs. Corp., 569 So. 2d 389, 394
(Ala. 1990). In other words, reformation of an instrument requires a
showing that both parties negotiated terms that are not reflected in the
actual instrument and that the instrument should, thus, be changed to
properly detail the mutual agreement of the parties.
10
1200483
In support of the summary judgment, Nationstar and BNYM argue
that the terms of the current executed agreement are unambiguous and,
thus, that it should be enforced as written. We agree. Deslonde does not
dispute that the terms expressed in the executed modification agreement
are unambiguous; rather, he contends that he "mistakenly" signed that
agreement after a representative from Nationstar confirmed that the
terms therein were the same as the terms previously offered under the
federal program. As indicated, the trial court afforded Deslonde an
opportunity to discover the identity of any Nationstar representative that
Deslonde claimed was essential to oppose the summary-judgment motion.
Deslonde, however, failed to identify the name of any Nationstar
representative and, instead, submitted his own affidavit, stating:
"At the time [Nationstar] requested me to resubmit the loan
modification paperwork, we had been working together to
negotiate modification terms for several months. No
representative of [Nationstar] told me, nor did they suggest,
that the second set of loan documents I was submitting
differed from the modification documents I had previously
submitted. To the contrary, at the time I submitted the second
set of loan documents in 2014, one or more representatives of
[Nationstar] confirmed to me that the modification terms
would be those I expected and had negotiated previously [i.e.,
the terms of the federal program].
11
1200483
"In November 2014, [Nationstar] informed me that I 'was
approved' for the modification. After learning this, I paid a
qualification payment, which [Nationstar] represented would
be a component of the modification on the terms set forth
[under the federal program]. For these reasons, I was
confident that I successfully modified the Loan under the
terms I expected and intended."
(Emphasis added.)
Deslonde has failed to satisfy his burden of opposing Nationstar and
BNYM's properly supported summary-judgment motion. His affidavit is
not only self-serving, but also does not amount to clear and convincing
evidence demonstrating that "the intention [Deslonde] seeks to substitute
was that of both parties," Beasley, 569 So. 2d at 394 -- i.e., that, by
entering into the executed modification agreement, the parties mutually
agreed to be bound by the terms originally offered under the federal
program. Specifically, the affidavit fails to state any essential facts that
would present a genuine issue of material fact necessitating a trial; for
example, it does not state the name of the representative who allegedly
confirmed that the terms of the executed modification agreement would
be the same as the terms under the federal program, it does not provide
12
1200483
the dates or times that Deslonde spoke with any Nationstar
representative, and it does not cite to any of the numerous call logs to
indicate that such a conversation ever occurred. In short, Deslonde has
failed to show that Nationstar intended any agreement other than the one
expressed in the executed modification agreement. The terms expressed
in the executed modification agreement were clearly different from those
offered under the federal program; for example, among other things, the
monthly payment amounts were different and, unlike the terms offered
under the federal program, the executed modification agreement required
a qualifying payment of $7,804.04.4 Simply put, it appears that the terms
offered under the federal program were merely part of a trial plan, not an
agreement binding the parties going forward. Deslonde acknowledged
that much by signing the second application for loss mitigation, which
stated that Nationstar "will use the information I provide to evaluate my
eligibility for available relief options and foreclosure alternatives."
(Emphasis added.) Nationstar and BNYM's properly supported summary-
4The executed modification agreement included in the record is, for
the most part, illegible.
13
1200483
judgment motion clearly refuted Deslonde's assertions and established
that any misunderstanding in this case resulted solely from Deslonde's
mistake in failing to read the executed modification agreement, which
clearly outlined the "future terms" for repayment of his loan. A unilateral
mistake, however, is legally insufficient to invoke a court's equitable
powers to reform an instrument. Therefore, rewriting the executed
modification agreement to reflect the terms that Deslonde "expected and
intended" cannot be deemed a mutually agreeable resolution to this
matter. Accordingly, the trial court did not err in entering a summary
judgment in favor of Nationstar and BNYM.
IV. Conclusion
The summary judgment entered in favor of Nationstar and BNYM
is affirmed.
AFFIRMED.
Bolin, Wise, and Stewart, JJ., concur.
Parker, C.J., concurs in the result.
14 | December 10, 2021 |
62fa22f8-d8ec-4ef2-97c2-f0ce91944d35 | Resurrection of Life, Inc. v. Dailey | N/A | 1180154 | 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
____________________
1180154
____________________
Resurrection of Life, Inc., d/b/a Perfect Place Christian
Academy, and Latoya Mitchell Dawkins
v.
Mark Dailey and Valerie Dailey, as parents and next friends
of Christian Dailey, a minor
Appeal from Jefferson Circuit Court
(CV-15-904652)
MITCHELL, Justice.
Christian Dailey, a minor, suffered a catastrophic
personal injury at a day-care facility run by Resurrection of
Life,
Inc.,
d/b/a
Perfect
Place
Christian
Academy
("Resurrection of Life"). Christian's parents, Mark and
1180154
Valerie Dailey, sued Resurrection of Life and its employee
Latoya
Mitchell
Dawkins
(hereinafter
"the
day-care
defendants") on his behalf and, following a jury trial,
obtained a sizable compensatory-damages award. The day-care
defendants do not challenge the size of that award, likely
because their lack of insurance and the discharge of the award
through bankruptcy make it uncollectible. But they do
challenge the trial court’s refusal to grant them a new trial
on the ground of juror misconduct. Because the day-care
defendants are not entitled to a new trial, we affirm.
Facts and Procedural History
On September 25, 2015, an unsecured television fell onto
Christian while he was sleeping at Perfect Place Christian
Academy, a church-based day-care facility operated by
Resurrection of Life. Christian was not yet two years old at
the time of the incident. Parts of his skull were crushed
from the impact, and he was put on a ventilator for nine days.
He suffered developmental issues as a result of the incident.
On December 3, 2015, Mark and Valerie Dailey, as parents
and next friends of Christian, sued Resurrection of Life, its
owner Sharon Jones, and Dawkins, the employee directly
2
1180154
responsible for Christian's care, asserting claims of
negligence, wantonness, and premises liability.1 The Daileys
demanded a trial by jury.
As the operator of an unlicensed church-exempt facility,
Resurrection of Life was not required to have -- and did not
have -- general liability insurance, nor was it subject to
inspection or oversight by the Jefferson County Department of
Human Resources ("Jefferson County DHR"). After Christian was
injured, Jefferson County DHR conducted an investigation of
the day-care defendants and, on November 29, 2016, filed a
confidential report under seal with the trial court. Based
primarily on Jefferson County DHR's confidential report, the
Daileys moved for a summary judgment. On December 11, 2017,
the trial court entered a partial summary judgment in the
Daileys' favor on their negligence claim, leaving only the
question of damages for the jury to decide.2
1Jones was dismissed as a defendant by the trial court on
May 14, 2018. Mark Dailey and Valerie Dailey also asserted,
in their individual capacities, claims against the day-care
defendants for
loss
of
Christian's
services
and
companionship.
2It appears that, before trial, the Daileys abandoned all
other claims they asserted against the day-care defendants.
3
1180154
The trial began on May 14, 2018, with Judge Jim Hughey
III presiding. On the second day of trial, the day-care
defendants filed Chapter 7 bankruptcy petitions in the United
States Bankruptcy Court for the Northern District of Alabama
("the Bankruptcy Court"), which automatically stayed the
proceedings in the trial court. The Daileys immediately
sought and obtained approval from the Bankruptcy Court to
continue the trial on the condition that any judgment obtained
would be subject to the jurisdiction of the Bankruptcy Court.
The jury was then called back and the trial continued. The
jury was not told about the day-care defendants' bankruptcies
or that any damages awarded would likely be discharged.
The Daileys presented expert testimony regarding the
extent of Christian's injuries, his continuing developmental
problems, and the potential future costs of his care as a
result of the injuries. At the time of trial, Christian was
five years old. He could not talk or control his bowel
movements and was subject to daily mood swings, fits, and
outbursts. The Daileys' expert testified that Christian had
a normal life expectancy but that the injuries resulting from
the incident had caused developmental issues that would
4
1180154
necessitate 24-hour care for the rest of his life. The
Daileys' expert estimated that the inflation-adjusted total
cost of Christian's care after the age of 25 and continuing
for the remainder of his life was between $18-20 million. The
Daileys also asked the jury to consider in its verdict costs
of medical care, the loss of earning potential for Christian,
and compensation for Christian's pain and suffering. In their
closing argument, the Daileys asked the jury to award them at
least $50 million in compensatory damages.
After closing arguments, the trial court instructed the
jury. In doing so, the trial court instructed the jury that
no outside research, including Internet searches, should take
place or be used by the jury in reaching a verdict. The jury
began deliberations at 2:50 p.m. on May 17, 2018, and sent two
notes to the trial court by the end of that afternoon. The
first note stated: "We are unable to come to an agreement.
Can we reconvene tomorrow morning or at your earliest
convenience?" The second note stated: "What if we cannot come
to an agreement on the amount ever?" The trial court shared
both notes with the parties and their counsel. Believing that
the jurors were merely tired, the trial court responded by
5
1180154
giving them the choice either to continue deliberating into
the evening or to go home and continue deliberations the next
day. The jury chose to go home and return the next day.
Because Judge Hughey was unavailable to preside over jury
deliberations the next day, he arranged instead for Presiding
Judge
Joseph
Boohaker
to
preside
over
the
jury's
deliberations.
After deliberations restarted the next morning, the jury
foreman conducted an Internet search for the definition of a
word. The specific word is not disclosed in the record.
Shortly after the Internet search, another juror sent a note
to the trial court stating that "[i]n jury deliberations [the]
internet was used to 'Google' terms and ways to calculate
compensation." The trial court promptly discussed the note
with the parties' counsel and offered both sides the
opportunity to question the juror responsible for the alleged
misconduct. Neither side agreed with that approach. Instead,
the day-care defendants' attorney moved for a mistrial. The
trial court thereafter immediately halted deliberations and
brought the jury into the courtroom to investigate the alleged
misconduct before ruling on the day-care defendants' motion.
6
1180154
The trial court first asked the jury whether "access
[was] made to the internet for some information about how to
calculate compensation." Juror R.L. volunteered that "there
was a word that came up and they Googled the meaning of the
word, what that word means, I remember that happening. It was
a word. That's the only thing I know. That was it." No
juror disputed Juror R.L.'s statement. The trial court then
admonished the jury that its verdict must be based strictly on
the law and the evidence presented, not on any outside
information. At that point, the Daileys' counsel asked the
trial court to ask the jurors if they were able to "decide
this case without being influenced by one definition." With
no objection by the day-care defendants' counsel, the trial
court agreed and asked each individual juror two questions:
(1) if he or she remembered the word or definition searched
and (2) if the juror remembered, whether he or she would be
able
to
disregard
that
extraneous information when
determining
the verdict. In response, 5 of the 12 jurors remembered the
searched word, 2 remembered only that the searched word was a
medical term, and the remaining 5 were unaware of an Internet
search at all. Each juror, regardless of whether he or she
7
1180154
heard the definition, affirmed that he or she could and would
disregard the definition in determining the verdict. The day-
care defendants made no requests to the trial court to ask the
jurors additional questions based upon the jurors' responses
at that time. Following its questioning of the jurors, the
trial court sent the jury back to the jury room to await
further instructions.
The trial court and the parties' counsel then discussed
the results of the investigation outside the presence of the
jury. Judge Boohaker first noted that compensation
calculations were not specifically mentioned by the jurors
even though that issue was referenced in the note. Judge
Boohaker indicated that he believed this was because the
writer of the note was not privy to the Internet search. In
response, counsel for the day-care defendants asserted his
belief that the jurors were not being forthcoming about the
extent of the Internet search and renewed the day-care
defendants' motion for a mistrial or, in the alternative,
asked if he could question the jurors directly about the
contents of the note. Judge Boohaker disagreed with the day-
care defendants and stated that he believed, based on his
8
1180154
evaluation of the jurors' demeanor and statements, that the
jurors were able to reach a verdict based strictly on the law
and evidence. Judge Boohaker then commented on the jury's
ability to disregard the extraneous information, stating:
"I've got to look at demeanor, body language, and what they
say and how they say it. Yes, they can. Maybe that's a
difficult thing to do, but they said they can. So I'm going
to take them at their word that they can do that and let them
continue on deliberating." At that point, the trial court
denied the day-care defendants' motion for a
mistrial, stating
that it believed that its actions had cured any prejudice
generated by the extraneous information and that it did not
want to create further prejudice by highlighting the Internet
search. The jury resumed deliberating and returned a verdict
later that morning, awarding the Daileys $30.3 million in
compensatory damages.
The next day, Juror P.W. telephoned the day-care
defendants' counsel and discussed the case, including the
Internet search. Following that phone call, the day-care
defendants filed a motion for a new trial. The day-care
defendants attached an affidavit from Juror R.L. to their
9
1180154
motion, which included a single paragraph about the Internet
search:
"On Friday morning, May 18, 2018, one of the jurors,
the only male in the room who was also the
foreperson of the jury, stated that 'based on my
research, after looking further into this case our
numbers are way off.' Prior to making this
statement, this same guy had been on his laptop
computer looking up a medical term. Additionally,
he was on the computer for an extended amount of
time while we were discussing damages and the cost
of college tuition."
Juror R.L. did not assert in her affidavit that the verdict
was influenced by the definition of the medical term or by any
other extraneous information that was introduced into the jury
room. The day-care defendants' counsel also submitted his own
affidavit with the
day-care defendants' motion. His affidavit
stated that he had spoken to five jurors about the note
discussing juror misconduct.
The Daileys opposed the day-care defendants' motion for
a new trial and attached affidavits from Jury Foreman D.E.,
Juror P.W., and Juror S.T. Jury Foreman D.E.'s affidavit
stated: "During our deliberations I used my computer to look
up one medical term. While I don't remember the term it was
just another word for head injury." Jury Foreman D.E.'s
affidavit further stated that the jury verdict was "based only
10
1180154
on the evidence presented at trial and no internet search
influenced or factored into our decision in any manner."
Juror P.W., the juror who contacted the day-care defendants'
counsel after the trial, also provided an
affidavit suggesting
that the Internet search was not a factor in the jury's
deliberations. Juror P.W. stated:
"Shortly after the trial I was able to speak with
all of the attorneys in the courtroom except for
[the day-care defendants' attorney] because he was
already gone. I then contacted him by telephone
since I was unable to speak with him at the
courthouse.
"My intention with the telephone call to [the day-
care defendants' attorney] was not to indicate any
misconduct
regarding
our
deliberations
or
to
indicate
that
internet
searches
in
any
way
influence[d] our decision because those searches
[were] never considered in assessing this case."
(Paragraph numbering deleted.) The relevant portions of
Juror
S.T.'s affidavit, also submitted by the Daileys, stated:
"During deliberations we came across an unfamiliar
term in the medical records. The foreman googled
this term. Soon after he googled the term I told him
we were not supposed to be doing any searches and he
stopped.
"I do not remember the term searched and we never
discussed or used the searched information in our
deliberations. This information did not factor into
our decision making or verdict.
11
1180154
"All our discussions and our verdict were based upon
the evidence presented during the trial and not on
any internet search or outside source.
"There were no internet searche[s] performed after
Judge Boohaker questioned us individually and as a
group."
(Paragraph numbering deleted.)
After considering the materials filed by the parties,
Judge Hughey, who was again presiding over the case, conducted
a hearing on the day-care defendants' motion for a new trial.
That motion was subsequently denied by operation of law under
Rule 59.1, Ala. R. Civ. P., after the passage of 90 days, and
the day-care defendants appealed. The Daileys state that the
compensatory damages awarded have been discharged by the
Bankruptcy Court.3
3No judicial record of the Bankruptcy Court's discharge
has been provided, but both sides acknowledge that any damages
are subject to discharge by the Bankruptcy Court. Although
the Daileys are unable to recover the damages because of the
Bankruptcy
Court's
discharge,
the
discharge
does
not
extinguish the underlying debt. Easterling v. Progressive
Specialty Ins. Co., 251 So. 3d 767 (Ala. 2017) ("'Although
entry of a Chapter 7 debtor's discharge does not extinguish
the debts, once the discharge is entered, the debtor is no
longer personally liable for any of the discharged debts.'"
(quoting In re Patterson, 297 B.R. 110, 112-13 (Bankr. E.D.
Tenn. 2003))).
12
1180154
Standard of Review
The day-care defendants ask us to reverse the trial
court's order denying their motion for a new trial. A ruling
on such a motion rests within the sound discretion of the
trial court and will not be reversed by this Court unless the
trial court exceeded its discretion and the record shows plain
and palpable error. Coots v. Isbell, 552 So. 2d 139, 142
(Ala. 1989). The sole ground on which the day-care defendants
seek a new trial is juror misconduct. We will reverse a trial
court's ruling on a motion for a new trial on the basis of
juror misconduct only "when [the misconduct] indicates bias or
corruption, or when the misconduct affected the verdict, or
when from the extraneous facts prejudice may be presumed as a
matter of law." Whitten v. Allstate Ins. Co., 447 So. 2d 655,
658 (Ala. 1984).
Analysis
Although the Bankruptcy Court has apparently discharged
the $30.3 million damages award, the day-care defendants
continue to challenge the judgment entered against them. The
day-care defendants argue that the extraneous information to
which certain jurors were exposed tainted the jury's verdict,
13
1180154
despite the trial court's curative actions before the jury
delivered its verdict and despite the lack of evidence
indicating that the extraneous information influenced that
verdict.
Not every instance of juror misconduct requires a new
trial. Dawson v. State, 710 So. 2d 472, 474 (Ala. 1997); Reed
v. State., 547 So. 2d 596, 597 (Ala. 1989). Juror misconduct
involving
the
introduction
of
extraneous
information
necessitates a new trial only when: "1) the jury verdict is
shown to have been actually prejudiced by the extraneous
material; or 2) the extraneous material is of such a nature as
to constitute prejudice as a matter of law." Ex parte
Apicella, 809 So. 2d 865, 870 (Ala. 2001) (abrogated on other
grounds, Betterman v. Montana, __ U.S. __, 136 S. Ct. 1609
(2016)). But no single fact or circumstance determines
whether a verdict is unlawfully influenced by a juror's
misconduct. 809 So. 2d at 871. Instead, the unique facts
and circumstances of each case determine whether juror
misconduct resulted in prejudice requiring a new trial. See
Reed, 547 So. 2d at 598.
14
1180154
A. Actual Prejudice
We begin by examining whether the introduction of the
extraneous information "actually motivated the jury or any
individual juror to decide in any particular way." Pearson v.
Fomby, 688 So. 2d 239, 242 (Ala. 1997). Mere exposure to
extraneous information does not, by itself, create actual
prejudice. Id. When faced with an allegation of juror
misconduct involving extraneous information, if the "trial
court investigate[s] the misconduct and finds, based on
competent evidence, the alleged prejudice to be lacking, this
Court will not reverse." Reed, 547 So. 2d at 597. We
therefore first determine whether the trial court adequately
investigated the alleged juror misconduct before considering
the evidence discovered in that investigation.
1. Adequacy of Investigation
Once a trial court is alerted to the possibility that
jurors have been exposed to extraneous information, the court
must
reasonably
investigate
the
circumstances and
substance
of
the alleged exposure to determine whether the rights of a
party have been prejudiced by the misconduct and whether the
misconduct may be cured. Holland v. State, 588 So. 2d 543,
15
1180154
546 (Ala. Crim. App. 1991). What constitutes a reasonable
investigation differs with each case -- the scope of
investigation is dictated by the circumstances and is within
the discretion of the trial court. Sistrunk v. State, 596
So. 2d. 644, 648-9 (Ala. Crim. App. 1992). If the
investigation undertaken by the trial court is reasonable
under the circumstances, this Court will not reverse its
judgment simply because this Court might have conducted a
different or more extensive inquiry. Id.
It is clear that the trial court in this case conducted
a timely and reasonable investigation of the alleged
misconduct and took appropriate steps to cure it. As soon as
it received the note alleging juror misconduct, the court
immediately contacted the parties and their counsel. Then,
the court promptly stopped juror deliberations and
brought the
jury before it to investigate the content of the note. Once
before the court, the entire jury panel was asked if the
Internet had been used "for some information about how to
calculate compensation." After Juror R.L. responded that the
definition of one word was searched, the court then determined
whether other jury members had been exposed to that
16
1180154
definition. The court did so by asking each individual juror
whether he or she was aware of the Internet search and its
substance. The court's investigation revealed that five
jurors knew both the word searched and its definition found on
the Internet, two jurors knew only that the searched word was
a medical term, and five jurors were unaware that any Internet
search had taken place. No juror stated that Internet
research was used for compensation calculations or gave
statements that conflicted with Juror R.L.'s statements.
Once
the scope of the misconduct was clear, the trial court
assessed the demeanor and statements of each juror to
determine if the jury was able to disregard the extraneous
information to come to a verdict, and it admonished the entire
jury panel that the jury's verdict should be based solely on
the law and the evidence presented at trial.
Our conclusion that the trial court's investigation and
curative
instructions
were
adequate
is
bolstered by
persuasive
authority from a federal appellate court. The parties have
not cited, and we have not found, another Alabama case
involving
extraneous
information
accessed
during
jury
deliberations and discovered by the trial court before a
17
1180154
verdict was rendered. But similar circumstances arose in
United States v. Wheaton, 517 F.3d 350 (6th Cir. 2008), and we
find the analysis in that case persuasive. In Wheaton, the
defendant moved for a new trial after it was discovered in the
middle of jury deliberations that jurors had been exposed to
extraneous information through a juror's personal laptop
computer. On appeal, the defendant argued that the district
court failed to thoroughly investigate the misconduct and
that
the extraneous information had influenced the jury's verdict.
The United States Court of Appeals for the Sixth Circuit held
that the district court acted appropriately when it promptly
investigated the alleged misconduct by addressing the entire
jury in open court and asking the jurors if the extraneous
information accessed on the laptop computer would influence
their decision and by "admonishing the jury for its outside
investigation ... and giving a curative instruction to remind
them that the verdict must be based solely on the evidence
p+resented at trial." Id. at 361. Because the district court
made
an
appropriate
investigation
and
took
appropriate actions
to cure any defect resulting from the juror's misconduct, and
because the defendant could not show any connection between
18
1180154
the extraneous information and the ultimate verdict, the
Sixth
Circuit Court of Appeals concluded that the defendant had not
carried his burden of proving actual prejudice, and it
affirmed the judgment. Here, the trial court's investigation
and curative action was at least as thorough as that in
Wheaton. We therefore hold that the trial court took proper
steps to investigate the juror misconduct and to cure any
prejudice that may have resulted from that misconduct.
The day-care defendants argue that the trial court should
have investigated further to determine the identity of the
writer of the note informing the trial court of the misconduct
and the exact medical term searched. But a trial court
investigating juror
misconduct
must
"balance
the
probable
harm
resulting from the emphasis such action would place upon the
misconduct" with the "likely extent and gravity of the
prejudice generated by that misconduct." United States v.
Chiantese, 582 F.2d 974, 980 (5th Cir. 1978). The trial court
in this case weighed those opposing interests and concluded
that additional questioning would "highlight the matter
further," exacerbating the problem of the juror misconduct.
19
1180154
Under these circumstances, the trial court was justified in
stopping its investigation when it did.
2. Evidence of Actual Prejudice
Next, we examine whether the introduction of the
extraneous
information
created
actual
prejudice
by
influencing
the jury's verdict. "[A]ctual prejudice may not be inferred
from the exposure [to extraneous information] itself."
Pearson, 688 So. 2d at 243. The day-care defendants were
required to show that at least one juror had been motivated by
the extraneous information to decide the case in a particular
manner or that there was evidence proving that juror
misconduct continued to occur and that the new misconduct
affected the verdict. Ankor Energy, LLC v. Kelly, 271 So. 3d
798, 809 (Ala. 2018); Dawson, 710 So. 2d at 475; Bascom v.
State, 344 So. 2d 218, 222 (Ala. Crim. App. 1977). The day-
care defendants failed to make this showing.
Not a single juror affidavit submitted in connection with
the day-care defendants' motion for a new trial stated that
any juror's verdict was influenced by the extraneous
information or that the improper jury conduct continued after
the trial court's curative instruction. Although a juror is
20
1180154
generally prohibited from impeaching his or her own verdict,
an exception is made where an affidavit presents evidence
indicating that a juror was exposed to extraneous information
and that such information influenced the juror's verdict.
Ankor Energy, 271 So. 3d at 806. The juror affidavits
submitted by both sides in this case confirm that juror
misconduct occurred, but none indicates that the extraneous
information affected the jury's verdict or attempt to impeach
the validity of the verdict. Juror R.L.'s affidavit,
submitted by the day-care defendants, stated that she saw the
jury foreman using his laptop computer during deliberations
and that he looked up the definition of a medical term. But
her affidavit did not state that the verdict was affected by
his misconduct. The foreman admitted in his affidavit that he
conducted the Internet search during jury deliberations, but
he stated that he could no longer remember the term that he
searched, only that the term meant "head injury." His
affidavit supports the trial court's denial of the day-care
defendants' motion for a mistrial, because, as the foreman and
as the person who conducted the improper Internet search, the
fact that he could not remember the searched term indicates
21
1180154
that the term did not factor into the jury's determination of
compensatory damages. The other two juror affidavits
similarly stated that the verdict was rendered solely on the
basis of the evidence presented at trial.
The trial court took adequate steps to investigate and
cure the jury's initial misconduct, and there is no evidence
indicating that the misconduct influenced the verdict or that
any further misconduct took place after the trial court's
admonishment of the jurors. The day-care defendants are thus
not entitled to a new trial on the basis of actual prejudice.
B. Prejudice as a Matter of Law
A new trial may also be warranted on the basis of juror
exposure to extraneous material when "the extraneous material
is of such a nature as to constitute prejudice as a matter of
law." Ex parte Apicella, 809 So. 2d at 870. This Court has
presumed prejudice in some cases involving extraneous
definitions. See, e.g., Ex parte Arthur, 835 So. 2d 981, 985
(Ala. 2002). But presumed prejudice is restricted to cases
where the extraneous information considered by the jury was
"'crucial in resolving a key material issue in the case.'"
Dawson, 710 So. 2d at 475 (quoting Hallmark v. Allison, 451
22
1180154
So. 2d 270, 271 (Ala. 1984)). See also Ex parte Arthur, 835
So. 2d at 985; Ex parte Thomas, 666 So. 2d 855, 858 (Ala.
1995); Hallmark v. Allison, 451 So. 2d at 271. The day-care
defendants do not explain how the definition of an unknown
word for "head injury" could have had any impact on the
compensatory damages awarded when the existence of a head
injury was undisputed and was not even at issue in the case.
Thus, because there is no evidence indicating that the
extraneous information was crucial in resolving a material
issue, there can be no presumed prejudice here.4
Conclusion
The extraneous information improperly accessed by a juror
during deliberations did not taint the jury's verdict because
the trial court made an adequate investigation following the
discovery of the misconduct and took appropriate curative
measures, and there is no evidence indicating that the
extraneous information actually prejudiced the verdict.
4This Court expresses no opinion regarding the amount of
damages awarded or whether such damages were supported by the
evidence admitted at trial. The day-care defendants did not
raise those issues with the trial court after the jury's
verdict was announced or after the judgment was entered, nor
have the day-care defendants raised those issues on appeal.
23
1180154
Further, the day-care defendants are not entitled to a new
trial based on presumed prejudice because there is no evidence
indicating that the extraneous information was crucial in
resolving a key material issue in the case. We therefore
affirm the trial court's judgment.
AFFIRMED.
Parker, C.J., and Wise, Mendheim, and Stewart, JJ.,
concur.
Bolin, Shaw, Bryan, and Sellers, JJ., concur in the
result.
24 | June 5, 2020 |
bfe321b7-5620-4e48-a3b4-fea2eb623323 | Jordan Mills and Bradley Braswell v. City of Opelika and American Traffic Solutions, Inc. | N/A | 1180268 | Alabama | Alabama Supreme Court | Released: May 1, 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
____________________
1170959
____________________
The City of Montgomery and American Traffic Solutions, Inc.
v.
Charles Hunter and Mike Henderson
Appeal from Montgomery Circuit Court
(CV-15-901274)
BOLIN, Justice.
The City of Montgomery ("the City") and American Traffic
Solutions, Inc. ("ATS") (hereinafter referred to collectively
as "the defendants"), were granted a permissive appeal from an
order of the Montgomery Circuit Court denying their motion to
1170959
dismiss a complaint, seeking, among other things, a
declaratory judgment, filed by Charles Hunter and Mike
Henderson (hereinafter referred to collectively as "the
plaintiffs"),
individuals
who
were
cited
for
traffic
violations. In their complaint, the plaintiffs challenged a
local municipal ordinance authorizing the use of cameras for
issuing traffic citations. The plaintiffs claimed that Act
No.
2009-740, Ala. Acts 2009, and sections of the Montgomery
Municipal Code allowing for the ticketing of drivers who are
photographed proceeding through red lights violate §§
89,
104,
and 105, Ala. Const. 1901.
Facts and Procedural History
On April 27, 2015, Hunter ran a red light at an
intersection within the corporate limits of the City. At some
point "within the past two years," Henderson also ran a red
light at another intersection within the corporate limits of
the City. The automated-camera equipment at
the
intersections
detected
and
photographed
the
plaintiffs' vehicles
running
the
red lights. ATS installed and currently maintains, pursuant
to an agreement with the City, the equipment that photographed
2
1170959
both plaintiffs' vehicles. As a result, both Hunter and
Henderson received civil citations.
On August 7, 2015, Hunter, individually and on behalf of
a putative class of individuals who had received notice of
violation pursuant to the local Act, sued the City and ATS,
challenging sections
of
the
Montgomery
Municipal
Code
allowing
ticketing of drivers by cameras and alleging that the City's
issuance of citations pursuant to those sections violated his
constitutional and statutory rights. Hunter sought to
represent those persons who had been ticketed and had paid the
fine. The defendants removed the case from state court to
federal court. On February 3, 2016, Hunter filed an amended
complaint, which added Henderson as a plaintiff and omitted
any federal constitutional claims against the defendants.
Henderson sought to represent those persons who had been
ticketed but who had not paid the fine.
Upon determining that there were no federal claims
remaining and that the Class Action Fairness Act was
inapplicable, the United States District Court for the Middle
District of Alabama remanded the case to the Montgomery
Circuit Court. The defendants appealed that decision to the
3
1170959
United States Court of Appeals for the Eleventh Circuit. The
Montgomery Circuit Court stayed the case during the pendency
of that appeal. On June 14, 2017, the Eleventh Circuit
affirmed the district court's decision to remand the case,
specifically holding that ATS was not a primary defendant and
that, therefore, the home-state exception to the Class Action
Fairness Act, 28 U.S.C. § 1332(d)(4)(B), was applicable.
Hunter v. City of Montgomery, 859 F.3d 1329 (11th Cir. 2017).
On July 6, 2017, the plaintiffs filed a third amended
complaint in the Montgomery Circuit Court. On July 20, 2017,
the defendants filed a joint motion to dismiss. The plaintiffs
filed a response, and the circuit court conducted a hearing on
the motion to dismiss. Shortly after the hearing, the
plaintiffs filed a fourth amended complaint. On June 7, 2018,
the circuit court entered an order denying the defendants'
motion to dismiss.
On July 3, 2018, the circuit court entered an order
granting a joint petition for a permissive appeal. On October
4
1170959
1, 2018, this Court granted in part the petition for
permission to appeal.1
Standard of Review
"'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). We must also view the allegations
of the complaint most strongly in the
1We allowed the permissive interlocutory appeal of the
first four certified questions of law presented in the joint
petition as follows:
"I.
Whether Alabama Act No. 2009-740 and the
Montgomery Ordinance implementing it do or
do not violate Article IV § 105 of the
Alabama Constitution?
"II.
Whether Alabama Act No. 2009-740 and the
Montgomery Ordinance implementing it do or
do not violate Article IV § 89 of the
Alabama Constitution?
"III.
Whether Alabama Act No. 2009-740 and the
Montgomery Ordinance implementing it do or
do not violate Article IV § 104 of the
Alabama Constitution?
"IV.
Whether Alabama Act No. 2009-740 and the
Montgomery Ordinance implementing it do or
do not violate any provisions of Ala. Code
§ 11-45-1, et seq., and/or Ala. Code 1975,
§ 32-5-1, et seq.?"
5
1170959
pleader's favor to determine whether it
appears the pleader could prove any set of
circumstances
that
would
entitle
the
pleader [to] relief. Nance, 622 So. 2d at
299. Furthermore, we will not consider
whether
the
pleader
will
ultimately
prevail
on the complaint but whether the pleader
may possibly prevail. Id.
"'For
a
declaratory-judgment action to
withstand a motion to dismiss there must be
a bona fide justiciable controversy that
should be settled. Anonymous v. Anonymous,
472 So. 2d 640, 641 (Ala. Civ. App. 1984);
Smith v. Alabama Dry Dock & Shipbuilding
Co., 293 Ala. 644, 309 So. 2d 424, 427
(1975). The test for the sufficiency of a
complaint
seeking
a
declaratory
judgment
is
whether the pleader is entitled to a
declaration of rights at all, not whether
the
pleader
will
prevail
in
the
declaratory-judgment action. Anonymous,
472 So. 2d at 641.
"'The
lack
of
a
justiciable
controversy may be raised by either a
motion to dismiss or a motion for a summary
judgment. Smith, [293 Ala. at 649,] 309
So. 2d at 427. See also Rule 12, Ala. R.
Civ. P.; Rule 56, Ala. R. Civ. P. However,
a motion to dismiss is rarely appropriate
in a declaratory-judgment action. Wallace
v. Burleson, 361 So. 2d 554, 555 (Ala.
1978).
If
there
is
a
justiciable
controversy at the commencement of the
declaratory-judgment action, the motion to
dismiss
should
be
overruled
and
a
declaration of rights made only after an
answer has been submitted and evidence has
been presented. Anonymous, 472 So. 2d at
641.
However,
if
there
is
not
a
justiciable
controversy,
a
motion
to
6
1170959
dismiss for failure to state a claim should
be granted. Curjel v. Ash, 263 Ala. 585,
83 So. 2d 293, 296 (1955).'
"Harper v. Brown, Stagner, Richardson, Inc., 873 So.
2d 220, 223 (Ala. 2003)."
Muhammad v. Ford, 986 So. 2d 1158, 1161-62 (Ala. 2007).
State and Local Law
A.
Statutory Law
Chapter 45, Title 11, Alabama Code 1975, sets forth
certain requirements for the adoption and enforcement of
municipal ordinances. Section 11-45-1, Ala. Code 1975,
provides:
"Municipal corporations may from time to time
adopt ordinances and resolutions not inconsistent
with the laws of the state to carry into effect or
discharge the powers and duties conferred by the
applicable provisions of this title and any other
applicable provisions of law and to provide for the
safety, preserve the health, promote the prosperity,
and improve the morals, order, comfort, and
convenience of the inhabitants of the municipality,
and may enforce obedience to such ordinances."
The Alabama Traffic Code, § 32-5A-1 et seq., Ala. Code
1975, governs the rules of the road throughout the State.
Section 32-5A-31, Ala. Code 1975,
provides, in pertinent part:
"The
driver
of
any
vehicle
shall
obey
the
instructions of any official traffic-control device
applicable thereto placed in accordance with law,
unless otherwise directed by a police officer,
7
1170959
subject to the exceptions granted the driver of an
authorized emergency vehicle in this chapter."
Section 32-5A-32, Ala. Code 1975, provides, in pertinent
part:
"(3) Steady red indication:
"a. Vehicular traffic facing a steady circular
red signal alone shall stop at a clearly marked stop
line, but if none, before entering the crosswalk on
either side of the intersection, or if none, then
before entering the intersection and shall remain
standing until an indication to proceed is shown
...."
Section 32-5A-8, Ala. Code 1975, provides:
"(a) It is a misdemeanor for any person to
violate any of the provisions of this chapter or of
Title 32, unless such violation is by this chapter
or other law of this state declared to be a felony.
"(b) Every
person convicted of
a
misdemeanor for
a violation of any of the provisions of this chapter
for which another penalty is not provided, shall for
a first conviction thereof be punished by a fine of
not more than $100 or by imprisonment for not more
than 10 days; for conviction of a second offense
committed within one year after the date of the
first offense, such person shall be punished by a
fine of not more than $200.00 or by imprisonment for
not more than 30 days or by both such fine and
imprisonment;
for
conviction
of
a
third
or
subsequent offense committed within one year after
the date of the first offense, such person shall be
punished by a fine of not more than $500.00 or by
imprisonment for not more than three months or by
both such fine and imprisonment."
8
1170959
In addition, § 32-5A-11, Ala. Code 1975, provides that
"[t]his chapter shall be so interpreted and construed as to
effectuate its general purpose to make uniform the law of
various jurisdictions."
The uniform procedure for traffic citations issued by a
law-enforcement agency or any other person is set forth in §
12-12-53, Ala. Code 1975, which provides:
"(a) Every law enforcement agency in the state
shall use traffic citations of the form known as the
uniform traffic ticket and complaint, which shall be
substantially uniform throughout the state and which
shall be issued, except for an electronic traffic
ticket or e-ticket, as defined in Section 32-1-4, in
books with citations in no less than quadruplicate.
"(b) The uniform traffic ticket and complaint
shall be used in traffic cases where a complaint is
made by a law enforcement officer or by any other
person or an information is filed by the district
attorney."
B.
Local Law: The Local Act and the Ordinance
On February 6, 2007, the Montgomery City Council passed
Ordinance No. 10-2007 ("the ordinance"), which allows for
automated
photographic
enforcement
of
traffic-control
devices.
In 2009, the Alabama Legislature enacted the Montgomery Red
Light Safety Act, Act No. 2009-740, Ala. Acts 2009 ("the local
Act"), a local act applicable to the City, which became
9
1170959
effective on May 22, 2009. Section 4(a) of the local Act
"ratified and validated" the ordinance "ab initio."
No purpose would be served by setting out the provisions
of the ordinance or the local Act in their entirety. We point
out a few pertinent sections of the local Act for the purpose
of showing how it differs from the Alabama Traffic Code.
Although there are some variations between the local Act and
the ordinance, most of the pertinent provisions are similar.
Section 3 of the local Act defines the following terms:
"(3) CIVIL VIOLATION. There is hereby created
a non-criminal category of state law called a civil
violation created and existing for the sole purpose
of carrying out the terms of this act. The penalty
for violation of a civil violation shall be the
payment of a civil fine, the enforceability of which
shall be accomplished through civil action. The
prosecution of a civil violation created hereby
shall carry reduced evidentiary requirements and
burden of proof as set out in Section 6, and in no
event shall an adjudication of liability for a civil
violation be punishable by a criminal fine or
imprisonment.
"....
"(7) TRAFFIC SIGNAL VIOLATION. Any violation of
Section 32-5A-31, Section 32-5A-32, or Section 32-
5A-35, Code of Alabama 1975, or of any combination
thereof,
wherein
a
vehicle
proceeds
into
a
signalized intersection at a time while the traffic-
control signal for that vehicle's lane of travel is
emitting a steady red signal. A traffic signal
10
1170959
violation shall be a civil violation as defined in
this act."
Section 4 of the local Act further provides, in pertinent
part:
"(a) The City of Montgomery is empowered to
utilize an automated photographic traffic signal
enforcement system to detect and record traffic
signal violations, to issue notices of civil
violations
by
mail,
and
to
prosecute
civil
violations
for
the
recorded
traffic
signal
violations which may occur within the corporate
limits of the City of Montgomery as provided in this
act. A civil fine assessed under this act shall not
exceed one hundred dollars ($100), and municipal
court costs may be assessed in the same manner and
in the same amounts prescribed for a municipal
criminal
traffic-control
device
violation
prosecuted
as a misdemeanor under Sections 32-5A-31, 32-5A-32,
32-5A-35, or any combination thereof. An additional
fee of ten dollars ($10) shall be added to the
Montgomery Municipal Court costs authorized to be
collected in connection with notices issued under
this act. Court costs collected pursuant to this act
shall be distributed in the same manner as
prescribed by law for the distribution of municipal
court costs for misdemeanor violations...."
In general, § 6(a) of the local Act provides that the
Montgomery Municipal Court is vested with the "power and
jurisdiction to hear and adjudicate the civil violations
provided for in this act." In addition, § 6(b) provides that
a person cited with the civil violation may contest the civil
fine in municipal court by submitting a written request for a
11
1170959
hearing on the adjudication of the civil violation within 15
days after the 10th day after the date the notice of violation
is mailed. Section 6(c) provides that the failure to pay a
civil penalty or to contest liability in a timely manner is an
admission of liability under the local Act.
Section 6(e) provides:
"If an adjudicative hearing is requested, the city
shall have the burden of proving the traffic signal
violation by a preponderance of the evidence. The
reliability of the photographic traffic signal
enforcement system used to produce the recorded
image of the violation may be attested to by
affidavit of a trained technician. An affidavit of
a trained technician that alleges a violation based
on an inspection of the pertinent recorded image is
admissible in a proceeding under this act and is
evidence of the facts contained in the affidavit."
Section 6(j) lists several affirmative defenses to be
proven by a preponderance of the evidence.
Section 7(c) provides:
"A person who is found liable after an adjudicative
hearing may appeal that finding of civil liability
to the Circuit Court of Montgomery County, Alabama,
by filing a notice of appeal with the clerk of the
municipal court. The notice of appeal must be filed
not later than the 14th day after the date on which
the municipal court judge entered the finding of
civil liability. The filing of a notice of appeal
shall stay the enforcement of the civil fine
penalty. An appeal shall be determined by the
circuit court by trial de novo."
12
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Section 8 provides:
"(a) The circuit court hearing an appeal shall
use
the
procedures
that
apply
to
criminal
convictions in municipal court with the following
qualifications:
"(1) The proceedings shall retain their civil
nature on appeal with the circuit court applying the
preponderance of the evidence standard.
"(2) If the person is adjudicated by the circuit
court to be responsible for payment of the civil
fine, circuit court costs shall be owed by the
person adjudicated responsible, with 100 percent of
those court costs retained by the circuit court.
Court costs in the circuit court shall be calculated
as are court costs for criminal appeals from the
municipal court, and in the event the circuit court
finds the person appealing to not be responsible, no
municipal court costs shall be owed to the city.
"(3) Regardless of the civil nature of the
proceedings, the circuit court, in its discretion
and for its administrative convenience, may assign
case numbers as for criminal appeals and place the
appeals on criminal dockets in the same manner as
criminal appeals from municipal court.
"(4) The circuit court shall sit as trier of
both fact and law in the civil proceedings in the
circuit court.
"(5) The
city shall
be
responsible for
providing
an attorney to represent the city and to prosecute
the civil proceedings in the circuit court."
Section 10 provides, in pertinent part:
"No person may be arrested or incarcerated for
nonpayment of a civil fine or late fee. No record
of an adjudication of civil violation made under
13
1170959
this act shall be listed, entered, or reported on
any criminal record or driving record, whether the
record is maintained by the city or an outside
agency. An adjudication of civil violation provided
for in this act shall not be considered a conviction
for any purpose, shall not be used to increase or
enhance punishment for any subsequent offense of a
criminal nature, shall not be considered a moving
violation, and shall not be used by any insurance
company to determine or affect premiums or rates
unless an accident occurred due to the violation.
The fact that a person is held liable or responsible
for a civil fine for a red light violation shall not
be used as evidence that the person was guilty of
negligence or other culpable conduct, and any
evidence generated by a photographic traffic signal
enforcement system may only be used as evidence in
other proceedings if it is or becomes admissible
under the rules of evidence applicable herein."
Section 13 provides:
"No civil penalty may be imposed and no adjudication
of liability for a civil violation may [be] made
under this act if the operator of the vehicle was
arrested or was issued a citation and notice to
appear by a sworn police officer for a criminal
violation of any portion of Article II, Chapter 5A,
Title 32 including, but not limited to, Sections 32-
5A-31, 32-5A-34, and 32-5-35 of the Code of Alabama
1975, or any other municipal ordinance which
embraces and incorporates the statutes contained in
that article, and which occurred simultaneously with
and under the same set of circumstances which were
recorded
by
the
photographic
traffic
signal
enforcement system."
In addition, § 14 provides:
"Any person against whom an adjudication
of
liability for a civil violation is made under this
act, or the ordinance passed pursuant hereto, and
14
1170959
who actually pays the civil fine imposed thereby
shall have a cause of action against any person who
may be shown to have been operating the vehicle
recorded at the time of the violation for the amount
of
the
civil
fine
actually
paid
plus
any
consequential
or
compensatory
damages
and
a
reasonable attorney fee, without regard to the rules
regarding joint and several liability, contribution,
or indemnity. ..."
Section 15 provides that the provisions of the local Act
are severable and that, therefore, if any part of the local
Act is declared invalid or unconstitutional, the remaining
parts will not be affected by the declaration.
The ordinance differs slightly from the local Act in that
the ordinance provides for an administrative adjudicative
process at the municipal level rather than in the municipal
court. Section 27-603(a) of the ordinance provides that the
municipal court administrator for the City is responsible for
administering the ordinance. Section 27-604(a) provides that
a person who receives a notice of violation may contest the
imposition of the civil penalty by submitting a written
request for a hearing on the adjudication of the civil
violation within 15 days of the 10th day after the date the
notice
of
violation
is
mailed.
The
administrative adjudication
hearing would be held before a hearing officer appointed by
15
1170959
the mayor. Section 27-604(b) provides that the failure to pay
the civil penalty or to contest the liability in a timely
manner is an admission of liability under the ordinance.
Section 27-604(i) provides as follows:
"A
person
who
is
found
liable
after
an
administrative adjudication hearing may appeal that
finding of civil liability to the Circuit Court of
Montgomery County, Alabama by filing a notice of
appeal with the clerk of the municipal court. The
notice of appeal must be filed not later than the
14th day after the date on which the administrative
adjudication hearing officer entered the finding of
civil liability. Unless the person, on or before the
filing of the notice of appeal, posts a bond in the
amount of the civil penalty and any late fees, an
appeal does not stay the enforcement of the civil
penalty. An appeal shall be determined by the
circuit court by trial de novo."
C.
Alabama Constitution
Section 89, Ala. Const. 1901, provides: "The legislature
shall not have power to authorize any municipal corporation to
pass any laws inconsistent with the general laws of this
state."
Section 104, Ala. Const. 1901, provides, in pertinent
part:
"The legislature shall not pass a special,
private, or local law in any of the following cases:
"....
16
1170959
"(14)
Fixing the punishment of crime;
"....
"(19)
Creating, extending, or impairing any
lien ...."
Section 105, Ala. Const. 1901, provides:
"No special, private, or local law, except a law
fixing the time of holding courts, shall be enacted
in any case which is provided for by a general law,
or when the relief sought can be given by any court
of this state; and the courts, and not the
legislature, shall judge as to whether the matter of
said law is provided for by a general law, and as to
whether the relief sought can be given by any court;
nor shall the legislature indirectly enact any such
special, private, or local law by the partial repeal
of a general law."
Analysis
Before addressing the substantive issues raised in this
appeal, we must first address the threshold issue of subject-
matter jurisdiction. This Court has explained:
"'This Court has often said that, as
a general rule, it will not decide
questions after a decision has become
useless or moot. Ex parte McFry, 219 Ala.
492, 122 So. 641 (1929); Byrd v. Sorrells,
265 Ala. 589, 93 So. 2d 146 (1957); Chisolm
v. Crook, 272 Ala. 192, 130 So. 2d 191
(1961);
Jacobs
Banking
Company
v.
Campbell,
406 So. 2d 834 (Ala. 1981). Alabama courts
do not give opinions in which there is no
longer a justiciable controversy; yet,
Alabama has recognized two exceptions to
the mootness doctrine: questions of great
17
1170959
public interest and questions that are
likely of repetition of the situation. Byrd
v. Sorrells, supra, State ex rel. Eagerton
v. Corwin, 359 So. 2d 767 (Ala. 1977).
...'
"Arrington v. State ex rel. Parsons, 422 So. 2d 759,
760 (Ala. 1982).
"'"'A moot case or question is a case
or question in or on which there is no real
controversy;
a
case
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, County &
Mun. Employees v. Dawkins, 268 Ala. 13, 18,
104 So. 2d 827, 830–31 (1958)). "The test
for mootness is commonly stated as whether
the court's action on the merits would
affect the rights of the parties." Crawford
v. State, 153 S.W.3d 497, 501 (Tex. App.
2004) (citing VE Corp. v. Ernst & Young,
860 S.W.2d 83, 84 (Tex. 1993)). "A case
becomes moot if at any stage there ceases
to be an actual controversy between the
parties." Id. (emphasis added) (citing
National Collegiate Athletic Ass'n v.
Jones, 1 S.W.3d 83, 86 (Tex. 1999)).
"'"There must be a bona fide existing
controversy of a justiciable character to
confer upon the court jurisdiction to grant
declaratory relief under the declaratory
judgment statutes, and if there was no
justiciable controversy existing when the
suit was commenced the trial court had no
jurisdiction." State ex rel. Baxley v.
Johnson, 293 Ala. 69, 73, 300 So. 2d 106,
110 (1974). "'"Unless the trial court has
18
1170959
before it a justiciable controversy, it
lacks subject matter jurisdiction and any
judgment
entered
by
it
is
void
ab
initio."'" Sustainable Forests, L.L.C. v.
Alabama Power Co., 805 So. 2d 681, 683
(Ala. 2001) (quoting Hunt Transition &
Inaugural Fund, Inc. v. Grenier, 782 So. 2d
270, 272 (Ala. 2000), quoting in turn Ex
parte State ex rel. James, 711 So. 2d 952,
960 n. 2 (Ala. 1998)). "A moot case lacks
justiciability." Crawford, 153 S.W.3d at
501. Thus, "[a]n action that originally was
based
upon
a
justiciable
controversy
cannot
be maintained on appeal if the questions
raised in it have become moot by subsequent
acts or events." Case, 939 So. 2d at 884
(citing Employees of Montgomery County
Sheriff's Dep't v. Marshall, 893 So. 2d
326, 330 (Ala. 2004)).
"'"'The
lack
of
a
justiciable
controversy may be raised either by a
motion to dismiss, Rule 12, [Ala. R. Civ.
P.], or a motion for summary judgment.'"
Hornsby v. Sessions, 703 So. 2d 932, 937
(Ala. 1997)(quoting Smith v. Alabama Dry
Dock & Shipbuilding Co., 293 Ala. 644, 649,
309 So. 2d 424, 427 (1975)). Indeed, "[i]t
is well settled that lack of subject-matter
jurisdiction can be raised at any time by
the parties or by the court ex mero motu."
Ex parte V.S., 918 So. 2d 908, 912 (Ala.
2005). "'"[I]f there is an absence of
jurisdiction over ... the subject matter,
a
court
has
no
power
to
act,
and
jurisdiction
over
the
subject
matter
cannot
be created by waiver or consent."'" Id.
(quoting Flannigan v. Jordan, 871 So. 2d
767, 768 (Ala. 2003), quoting in turn
Norton v. Liddell, 280 Ala. 353, 356, 194
So. 2d 514, 517 (1967)). A court without
subject-matter jurisdiction "'may take no
19
1170959
action other than to exercise its power to
dismiss the action .... Any other action
... is null and void.'" State v. Property
at 2018 Rainbow Drive, 740 So. 2d 1025,
1029 (Ala. 1999) (quoting Beach v. Director
of Revenue, 934 S.W.2d 315, 318 (Mo. Ct.
App. 1996))....'
"Chapman v. Gooden, 974 So. 2d 972, 983–84 (Ala.
2007). ...
"A declaratory-judgment action may be rendered
moot.
"'Declaratory-judgment
actions
in
Alabama are governed by the Declaratory
Judgment Act, codified at §§ 6–6–220
through –232, Ala. Code 1975 ("the Act").
The Act does not "'empower courts to decide
moot questions, abstract propositions, or
to
give
advisory
opinions,
however
convenient it might be to have these
questions decided for the government of
future cases.'" Stamps v. Jefferson County
Bd. of Educ., 642 So. 2d 941, 944 (Ala.
1994) (quoting Town of Warrior v. Blaylock,
275 Ala. 113, 114, 152 So. 2d 661, 662
(1963))(emphasis
added
in
Stamps).
Pursuant
to § 6–6–226, declaratory relief may be
afforded in cases "in which a judgment will
terminate the controversy or remove the
uncertainty," but § 6–6–229 emphasizes the
corollary that "[t]he court may refuse to
enter a declaratory judgment where such
judgment, if entered, would not terminate
the uncertainty or controversy giving rise
to the proceeding."'
"Bruner v. Geneva County Forestry Dep't, 865 So. 2d
1167, 1175 (Ala. 2003). See also Hunt Transition &
Inaugural Fund, Inc. v. Grenier, 782 So. 2d 270, 272
(Ala. 2000) ('For a court to grant declaratory
20
1170959
relief, it must have before it a bona fide,
presently existing justiciable controversy that
affects the legal rights or obligations of the
parties.'); VanLoock v. Curran, 489 So. 2d 525, 531
(Ala. 1986) ('Indeed, moot questions are not
properly
the
subject
of
declaratory
judgment
actions.' (citing City of Mobile v. Scott, 278 Ala.
388, 178 So. 2d 545 (1965)))."
Underwood v. Alabama State Bd. of Educ., 39 So. 3d 120, 127–28
(Ala.
2009).
The
parties
have
not
addressed
the
justiciability of the issues presented. Because a trial court
lacks subject-matter jurisdiction if there is no justiciable
controversy, we address the issue ex mero motu.
In Woodgett v. City of Midfield, [Ms. 1180051, May 1,
2020] ___ So. 3d ___ (Ala. 2020) -- a case involving a
virtually identical act and ordinance, the opinion in which is
being released simultaneously with this opinion -- this Court
concluded that the acceptance of liability under an automated
camera-enforcement act and ordinance by payment of the civil
violation, without raising a challenge to the act and
ordinance within the time or in the manner provided for in the
act and ordinance, settled the matter of the civil violation
and mooted the controversy between the parties, which could
not then be revived by filing a declaratory-judgment action
challenging the act and ordinance. Because a justiciable
21
1170959
controversy no longer existed between the parties, the trial
court had no jurisdiction over the plaintiffs' subsequently
filed declaratory-judgment action challenging the act and
ordinance. City of Midfield, supra.
In this case, the plaintiffs each received notices of
civil violations under the local Act and the ordinance after
being photographed running a red traffic light in Montgomery.
It appears that Hunter paid the fine and that Henderson did
not pay the fine. It does not appear from the record that
either challenged the legality of the civil violation issued
pursuant to the local Act and the ordinance within the time
and in the manner provided for in the local Act and the
ordinance. Subsequently, the plaintiffs filed a declaratory-
judgment action challenging the local Act and the ordinance.
Based on this Court's reasoning in City of Midfield, supra, we
conclude that no justiciable controversy existed between the
parties at the time the plaintiffs filed their declaratory-
judgment action and, therefore, that the circuit court lacked
subject-matter jurisdiction over the matter. Hunter accepted
liability under the local Act and the ordinance by paying the
fine. Henderson, although he did not accept liability under
22
1170959
the local Act and the ordinance by paying the fine,
nonetheless accepted liability by taking no action to
challenge the local Act and the ordinance within the time and
in the manner provided for in the local Act and the ordinance.
See § 6(c) of the local Act and § 27-604(b) of the ordinance
quoted above. As was the case in City of Midfield, the
plaintiffs' acceptance of liability under the local Act and
the ordinance settled the matter and mooted the controversy
between the parties. Because there was no justiciable
controversy between the parties at the time the declaratory-
judgment action was filed, the circuit court lacked subject-
matter jurisdiction over the action, and it should have
dismissed the action. City of Midfield, supra; Ex parte
Blankenship, 893 So. 2d 303, 307 (Ala. 2004) ("'"Lacking
subject matter jurisdiction [a court] may take no action other
than to exercise its power to dismiss the action .... Any
other action taken by a court lacking subject matter
jurisdiction is null and void."'" (quoting State v. Property
at 2018 Rainbow Drive, 740 So. 2d 1025, 1029 (Ala. 1999),
quoting in turn Beach v. Director of Revenue, 934 S.W.2d 315,
318 (Mo. Ct. App. 1996))).
23
1170959
Conclusion
Accordingly, we reverse the circuit court's order denying
the motion to dismiss, and we remand the case to that court
for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Bryan, Sellers, and Stewart, JJ., concur.
Parker, C.J., and Mendheim, J., concur in the result.
Shaw, Wise, and Mitchell, JJ., recuse themselves.
24 | May 1, 2020 |
d947c6ff-9a2d-4dcd-b9bd-63331231d7f1 | Gleason v. Halsey | N/A | 1200678 | Alabama | Alabama Supreme Court | REL: December 3, 2021
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, 2021-2022
____________________
1200678
____________________
Sandra Gleason
v.
Charles Halsey
Appeal from Baldwin Circuit Court
(CV-19-901205)
MENDHEIM, Justice.
Sandra Gleason commenced an action in the Mobile Circuit Court,
which was subsequently transferred to the Baldwin Circuit Court ("the
1200678
circuit court"), against Charles Halsey and Jim McDonough d/b/a Jim
McDonough Home Inspection ("McDonough"), seeking to recover for
damage that Gleason allegedly incurred as a result of the defendants'
allegedly negligent and/or fraudulent conduct associated with Gleason's
purchase of a house ("the house") from Halsey and McDonough's
inspection of the house. The circuit court entered a summary judgment
in favor of Halsey and certified the judgment as final pursuant to
Rule 54(b), Ala. R. Civ. P. Gleason appealed. We dismiss the appeal.
Facts and Procedural History
In 2005, Halsey, who resided in Las Vegas, Nevada, purchased the
house. Halsey's parents and his niece lived in the house. In the spring of
2014, there was an intrusion of water into the house; the amount of water
that intruded into the house and the extent of the damage caused thereby
is in dispute.
In July 2017, Halsey listed the house for sale with Kathy Fuller, a
realtor with Coldwell Banker, Reehl Properties, Inc. A "Seller's
Disclosure" form dated November 5, 2017, and signed by Halsey and
Gleason on February 7, 2018, indicates that Halsey had never lived in the
2
1200678
house, that he was not aware of the house ever having mold inside of it,
and that he was not aware of the house having any "[f]looding, drainage,
grading, or erosion problems."
On January 25, 2018, Jennifer Hudson entered into a purchase
agreement with Halsey to purchase the house. On January 30, 2018,
Hudson hired McDonough to inspect the house. After conducting the
inspection, McDonough prepared an inspection report, which did not
indicate that the house had any previous instances of water intrusion
and/or flooding. Hudson ultimately decided not to purchase the house; her
reason for seeking a release from the purchase agreement with Halsey is
not evident from the record.
On February 6, 2018, the day before Gleason entered into a purchase
agreement with Halsey to purchase the house, Gleason signed a "buyer's
disclosure statement" concerning the house. The buyer's disclosure
statement states that the "[b]uyer should either personally or through
others of [b]uyer's choosing, inspect the property, verify material facts
including but not limited to those addressed below and not rely on any
verbal, printed or written description of the property by any [r]eal [e]state
3
1200678
[b]roker or [s]alesperson." The buyer's disclosure statement further states
that "[a] [p]rofessional home inspection is recommended to help determine
the condition of the property" and that "[a] [h]ome [w]arranty is
recommended but not in lieu of a professional home inspection."
(Emphasis in original.)
On February 7, 2018, Gleason entered into a purchase agreement
with Halsey to purchase the house ("the purchase agreement"). The
purchase agreement states that "[t]his contract constitutes the sole
agreement between the parties hereto and any modifications of this
contract shall be signed by all parties to this agreement. No
representation, promise, or inducement not included in this contract shall
be binding upon any party hereto." The purchase agreement also states
that Gleason "accepts this property in its as is, whereis [sic] condition."
Addendum B to the purchase agreement further states that the "[h]ome
[is being] sold as is with no repairs." The purchase agreement also
indicates that the "only contingency is inspection," and Addendum B to
the purchase agreement provides that the January 30, 2018, inspection
report prepared by McDonough on behalf of Hudson would be sent to
4
1200678
Gleason. Neither the seller's disclosure form nor the buyer's disclosure
statement were incorporated into the purchase agreement.
Gleason, having received the inspection report, decided not to have
her own professional inspection of the house conducted based on the fact
that her realtor, Ron Lattrell, had told her that McDonough is the
inspector that he would have recommended Gleason use if she were to
obtain her own professional inspection and on the fact that she and
Lattrell agreed to walk through the house themselves and discuss any
issues she might have concerning the condition of the house directly with
McDonough. On February 9, 2018, Gleason and Lattrell discussed the
inspection report with McDonough via telephone while walking through
and personally inspecting the house. Gleason's deposition testimony
indicates that, during her personal inspection of the house, she noticed
and asked McDonough about "what looked like bore holes into the mortar
between bricks spaced so far apart." Gleason's deposition testimony
further indicates that Lattrell "asked [McDonough] about an area of the
roof that looked darker around the chimney" and that, in response to
Lattrell's question, McDonough indicated that there were "[n]o apparent
5
1200678
leaks" in the roof based on his inspection. Gleason indicated in her
deposition testimony that, despite McDonough's opinion, Lattrell entered
the attic of the house to try to determine if any water had leaked into the
attic from the "darker" portion of the roof "around the chimney"; according
to Gleason, Lattrell indicated that there was no evidence of a leak.
Gleason did not discover any issues with the house as a result of her
personal inspection.
On February 16, 2018, Gleason and Halsey closed on the sale of the
house, and Gleason moved into the house on the same day. Gleason's
deposition testimony indicates that, shortly after she moved into the
house, she began having "coughing episodes." According to Gleason's
deposition testimony, the heating, ventilation, and air-conditioning
("HVAC") system for the house "failed" in the summer of 2018. Gleason
stated in her deposition testimony that she had the HVAC system
inspected by an HVAC technician, who discovered that there was mold
"[i]n the coils and in the blower" of the system. Gleason's deposition
testimony indicates that the HVAC technician "was pulling out the coils
and blower, that were chockablock full of mold." Gleason stated in her
6
1200678
deposition testimony that it took the HVAC technician six and a half
hours to clean the coils and blower and that he had stated that "it was the
worst he's ever seen in his life."
In August 2018, Gleason's deposition testimony indicates, Gleason
personally removed the carpet from the house due to mold. Gleason's
deposition testimony indicates that "the carpet tacks ... were black and
rusted, the nails were rusted," and that she discovered "like red clay dirt
had washed into the home on all of those areas" and there was "black
growth" on some of "the very bottom of the ... sheetrock." Gleason's
deposition testimony also indicates that, after she removed the carpet
from the house, she began to experience "chronic coughing and asthma,"
"fatigue, insomnia, anxiety, headaches," and "[c]hronic ... malaise."
On April 9, 2019, Gleason filed a complaint against Halsey and
McDonough. Gleason asserted claims of fraudulent suppression and
misrepresentation against Halsey, on the basis that Halsey had allegedly
failed to inform Gleason that "the [h]ouse had previously flooded and that
the [h]ouse was infested with mold," and a claim of negligence against
McDonough, based on McDonough's inspection of the house. On March 1,
7
1200678
2021, Gleason filed an amended complaint asserting a claim of negligent
misrepresentation against McDonough, on the basis that "McDonough
negligently represented to Gleason that he had inspected the air
conditioning system and that it was in good working order."
On April 9, 2021, McDonough filed a motion for a summary
judgment. On April 15, 2021, Halsey also filed a motion for a summary
judgment. On June 18, 2021, Gleason filed a response to Halsey's and
McDonough's motions for a summary judgment. The contents of the
defendants' respective summary-judgment motions and Gleason's
response are discussed below.
On June 23, 2021, following oral argument on the summary-
judgment motions, the circuit court entered an order denying
McDonough's summary-judgment motion and a separate order granting
Halsey's summary-judgment motion. In its order granting Halsey's
summary-judgment motion, the circuit court stated that it "expressly
determines that there is no just reason for delay and expressly directs an
entry of judgment consistent with this order, in accordance with ...
8
1200678
[Rule] 54(b)[, Ala. R. Civ. P.]." Gleason timely appealed the circuit court's
order granting Halsey's summary-judgment motion.
Analysis
As noted, the circuit court certified as final, pursuant to Rule 54(b),
its June 23, 2021, order granting Halsey's summary-judgment motion.
Although neither party challenges on appeal the appropriateness of the
circuit court's Rule 54(b) certification, "this Court may consider that issue
ex mero motu because the issue whether a judgment or order is
sufficiently final to support an appeal is a jurisdictional one." Barrett v.
Roman, 143 So. 3d 144, 148 (Ala. 2013) (citing Robinson v. Computer
Servicenters, Inc., 360 So. 2d 299, 302 (Ala. 1978)).
Rule 54(b) states, in pertinent part:
"When more than one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party
claim, or when multiple parties are involved, the court may
direct the entry of a final judgment as to one or more but fewer
than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon
an express direction for the entry of judgment."
9
1200678
In Lighting Fair, Inc. v. Rosenberg, 63 So. 3d 1256, 1263-64 (Ala.
2010), this Court provided the following explanation of the standard for
reviewing Rule 54(b) certifications:
" ' "If a trial court certifies a judgment as final
pursuant to Rule 54(b), an appeal will generally lie
from that judgment." Baugus v. City of Florence,
968 So. 2d 529, 531 (Ala. 2007).
" 'Although the order made the basis of the
Rule 54(b) certification disposes of the entire claim
against [the defendant in this case], thus satisfying
the requirements of Rule 54(b) dealing with
eligibility for consideration as a final judgment,
there remains the additional requirement that
there be no just reason for delay. A trial court's
conclusion to that effect is subject to review by this
Court to determine whether the trial court
exceeded its discretion in so concluding.'
"Centennial Assocs. v. Guthrie, 20 So. 3d 1277, 1279 (Ala.
2009). Reviewing the trial court's finding in Schlarb v. Lee, 955
So. 2d 418, 419-20 (Ala. 2006), that there was no just reason
for delay, this Court explained that certifications under
Rule 54(b) are disfavored:
" 'This Court looks with some disfavor upon
certifications under Rule 54(b).
" ' "It bears repeating, here, that
' "[c]ertifications under Rule 54(b)
should be entered only in exceptional
cases and should not be entered
10
1200678
routinely." ' State v. Lawhorn, 830
So. 2d 720, 725 (Ala. 2002) (quoting
Baker v. Bennett, 644 So. 2d 901, 903
(Ala. 1994), citing in turn Branch v.
SouthTrust Bank of Dothan, N.A., 514
So. 2d 1373 (Ala. 1987)). ' " 'Appellate
review in a piecemeal fashion is not
favored.' " ' Goldome Credit Corp. [v.
Player, 869 So. 2d 1146, 1148 (Ala. Civ.
App. 2003) ] (quoting Harper Sales Co.
v. Brown, Stagner, Richardson, Inc.,
742 So. 2d 190, 192 (Ala. Civ. App.
1999), quoting in turn Brown v.
Whitaker Contracting Corp., 681 So. 2d
226, 229 (Ala. Civ. App. 1996)) ..."
" 'Dzwonkowski v. Sonitrol of Mobile, Inc., 892
So. 2d 354, 363 (Ala. 2004).'
"In considering whether a trial court has exceeded its
discretion in determining that there is no just reason for delay
in entering a judgment, this Court has considered whether 'the
issues in the claim being certified and a claim that will remain
pending in the trial court " 'are so closely intertwined that
separate adjudication would pose an unreasonable risk of
inconsistent results.' " ' Schlarb, 955 So. 2d at 419-20 (quoting
Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834
So. 2d 88, 95 (Ala. 2002), quoting in turn Branch v. SouthTrust
Bank of Dothan, N.A., 514 So. 2d 1373, 1374 (Ala. 1987), and
concluding that conversion and fraud claims were too
intertwined with a pending breach-of-contract claim for
Rule 54(b) certification when the propositions on which the
appellant relied to support the claims were identical). See also
Centennial Assocs., 20 So. 3d at 1281 (concluding that claims
against an attorney certified as final under Rule 54(b) were too
11
1200678
closely intertwined with pending claims against other
defendants when the pending claims required 'resolution of the
same issue' as issue pending on appeal); and Howard v.
Allstate Ins. Co., 9 So. 3d 1213, 1215 (Ala. 2008) (concluding
that the judgments on the claims against certain of the
defendants had been improperly certified as final under
Rule 54(b) because the pending claims against the remaining
defendants depended upon the resolution of common issues)."
(Emphasis omitted.)
In the present case, Gleason asserted claims of fraudulent
suppression and misrepresentation against Halsey, arguing that Halsey
had allegedly suppressed and/or misrepresented the alleged facts that "the
[h]ouse had previously flooded and that the [h]ouse was infested with
mold." In his summary-judgment motion, Halsey argued that the doctrine
of caveat emptor and the fact that the purchase agreement included an "as
is" clause protects him from liability based on theories of fraud and
misrepresentation. See Clay Kilgore Constr., Inc. v. Buchalter/Grant,
L.L.C., 949 So. 2d 893, 897-98 (Ala. 2006). In response, Gleason argued
that, although the doctrine of caveat emptor generally applies to a sale of
used property, the health or safety exception to the doctrine of caveat
12
1200678
emptor1 allows her to pursue her claims against Halsey. Halsey, however,
argued that, based on Gleason's alleged failure to inspect the house,
Gleason cannot avail herself of the health or safety exception to the
doctrine of caveat emptor. See Nesbitt v. Frederick, 941 So. 2d 950, 957-
59 (Ala. 2006) (discussing Hope v. Brannon, 557 So. 2d 1208 (Ala. 1989),
and holding that the buyer of used property involving an "as is" clause in
the purchase contract cannot take advantage of an exception to the
doctrine of caveat emptor if the buyer failed to thoroughly inspect the
property). Gleason argued that McDonough's inspection of the house,
which was conducted on behalf of Hudson, is an inspection that should be
credited to her because she was given the inspection report and inspected
1The health or safety exception to the doctrine of caveat emptor was
explained in Nesbitt v. Frederick, 941 So. 2d 950, 956 (Ala. 2006), as
follows:
"If the seller ' "has knowledge of a material defect or condition
that affects health or safety and the defect is not known to or
readily observable by the buyer," ' then the seller has a duty to
disclose the defect. Moore [v. Prudential Residential Servs.
Ltd. P'ship], 849 So. 2d [914,] 923 [(Ala. 2002)] (quoting
Fennell Realty Co. v. Martin, 529 So. 2d 1003, 1005 (Ala.
1988))."
13
1200678
the house herself in consultation with McDonough. Gleason further
argued that, based on the inspection conducted by McDonough, she should
be permitted to take advantage of the health or safety exception to the
doctrine of caveat emptor. The parties raise those same arguments on
appeal. Central to the arguments raised by the parties is whether
Gleason inspected the house, which necessarily involves consideration of
whether McDonough's inspection of the house may be credited to Gleason.
According to Halsey's argument, assuming that Gleason did inspect the
house, Gleason's argument under the health or safety exception to the
doctrine of caveat emptor may be considered.
Gleason's claims against McDonough raise essentially the same
issue. Gleason asserted claims of negligence and negligent
misrepresentation against McDonough, based on McDonough's inspection
of the house, which was performed on behalf of Hudson when she was
under contract to purchase the house. In his summary-judgment motion,
McDonough argued that he owed no duty to Gleason because he had
conducted the inspection of the house on behalf of Hudson; McDonough
argued that Gleason was "a stranger to the [h]ome [i]nspection
14
1200678
[a]greement and [r]eport of the subject property dated January 30, 2018."
McDonough further argued that, "should [the circuit] court find that ...
McDonough assumed a legal duty by discussing his written report with
[Gleason], [Gleason's] damages are subject to the limitation of liability
provision contained in the ... inspection agreement." In response, Gleason
argued that McDonough owed her a duty because he "voluntarily
undertook to explain his report to Gleason and to answer her questions
about his inspection." Based on the arguments raised by the parties, the
issue to be decided in considering Gleason's claims against McDonough is
whether McDonough owed Gleason a duty; in other words, the issue is
whether McDonough inspected the house on behalf of Gleason.
Although Gleason's claims against Halsey and McDonough involve
different legal theories, the issue underlying the claims is essentially the
same. Pertinent to the claims against both Halsey and McDonough is
whether the house was inspected. The issue underlying Gleason's claims
against Halsey is whether McDonough's inspection of the house may be
credited to Gleason for purposes of determining whether Gleason may
assert an argument under the health or safety exception to the doctrine
15
1200678
of caveat emptor; the issue underlying Gleason's claims against
McDonough appears to be whether McDonough owed Gleason a duty in
inspecting the house or in consulting with Gleason as she personally
inspected the house. Even viewing the issue through the lens of different
legal theories, the issue to be decided concerning the claims against both
Halsey and McDonough is whether Gleason inspected the house.
Conclusion
Accordingly, Gleason's claims against Halsey, the judgment on which
was certified as final under Rule 54(b), and Gleason's claims against
McDonough that remain pending in the circuit court "are so closely
intertwined that separate adjudication would pose an unreasonable risk
of inconsistent results." Branch v. SouthTrust Bank of Dothan, N.A., 514
So. 2d 1373, 1374 (Ala. 1987). As a result, we conclude that the circuit
court exceeded its discretion in certifying the June 23, 2021, order
granting Halsey's summary-judgment motion as final. We therefore
dismiss the appeal.
16
1200678
APPEAL DISMISSED.
Bolin, Shaw, Wise, Bryan, Sellers, Stewart, and Mitchell, JJ.,
concur.
Parker, C.J., concurs in the result.
17 | December 3, 2021 |
b84cea17-eb35-43e6-be56-b9872e51f605 | Steven C. Smith, as conservator of the Estate of B.J., a minor v. Elizabeth Alexander, Amanda Buchanan, and Michael Key | N/A | 1200215 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 19, 2021
1200215
Steven C
. Smith, as conservator of the Estate of B.J., a minor v.
Elizabeth Alexander, Amanda Buchanan, and Michael Key (Appeal from
Cullman Circuit Court: CV-15-900394).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 19, 2021:
Application Overruled. No Opinion. Bolin, J. -
Parker, C.J., and Shaw,
W
ise, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
W
HEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 30, 2021:
Affirmed. Bolin, J. -
Shaw, W
ise, Mendheim, Stewart, and Mitchell, JJ.,
concur. Parker, C.J., concurs in part and concurs in the result. Bryan and
Sellers, JJ., concur in the result.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 19th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 19, 2021 |
8656d174-16d4-49fc-9f14-af2ee28c2df5 | Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins. | N/A | 1200102 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
Novem ber 19, 2021
1200102
Ex parte Michael Todd Scoggins and M atthew Tyler-Crimson Scoggins.
PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Michael Todd
Scoggins and M atthew Tyler-Crimson Scoggins v. Stephen J. Bailey et al.)
(Calhoun Circuit Court: CV-19-900730).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 19, 2021:
A pplication Overruled. No Opinion. Mendheim, J. - Parker, C.J., and
Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J.,
recuses himself.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 3, 2021:
Petition Granted; Writ Issued. Mendheim, J. - Parker, C.J., and Bolin,
Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J., recuses
himself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as sam e appear(s)
of record in said Court.
W itness my hand this 19th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 19, 2021 |
1f2e5c5a-6c4d-45e7-a66d-ff63741a68fd | Elizabeth Burton, David A. Burton, and Deirdre A. Burton v. City of Opelika, Mike Hilyer, Derrick Askew, and ESG Operations, Inc. | N/A | 1180710 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 10, 2020
1180710 Elizabeth Burton, David A. Burton, and Deirdre A. Burton v. City of Opelika, Mike
Hilyer, Derrick Askew, and ESG Operations, Inc. (Appeal from Lee Circuit Court:
CV-16-900407).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case and indicated
below was entered in this cause on April 10, 2020:
Application Overruled. No Opinion. Sellers, J. - Parker, C.J., and Bolin, Wise, 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 February 14, 2020:
Affirmed. 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 April, 2020.
Clerk, Supreme Court of Alabama | April 10, 2020 |
cb276beb-8603-4027-8952-f944fb3cea9c | Capitol Farmers Market, Inc. v. Ingram | N/A | 1200688 | Alabama | Alabama Supreme Court | Rel: December 3, 2021
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, 2021-2022
____________________
1200688
____________________
Capitol Farmers Market, Inc.
v.
Angie Ingram and Russell Ingram
Appeal from Montgomery Circuit Court
(CV-17-901470)
BOLIN, Justice.
Capitol Farmers Market, Inc., appeals from a judgment entered by
the Montgomery Circuit Court in favor of Angie Ingram and Russell
1200688
Ingram, enforcing certain restrictive covenants on property owned by
Capitol Farmers Market that abuts property owned by the Ingrams. This
case has previously been before this Court. See Capitol Farmers Market,
Inc. v. Delongchamp, 320 So. 3d 574 (Ala. 2020).1
Facts and Procedural History
The following was set forth in Capitol Farmers Market:
"John Huddleston and Judith B. Huddleston owned
certain real property located in Montgomery County, certain
parcels of which they conveyed to other persons. In July 1982,
the Huddlestons executed and recorded in the Montgomery
Probate Court ('the probate court') a 'Declaration of
Restrictive Covenants' ('the 1982 Declaration'). The 1982
Declaration particularly described certain of the Huddlestons'
property and specifically excepted from that description those
portions of the property that had been conveyed to other
persons before the 1982 Declaration.
"In pertinent part, the 1982 Declaration provided the
following regarding the Huddlestons' property:
1Cindy C. Warren Delongchamp was the original plaintiff in this
case. This case previously came before this Court on appeal, and we
reversed the trial court's judgment and remanded the cause. In the
intervening period between the remand and this appeal, the Ingrams
acquired the property owned by Delongchamp and were substituted as
plaintiffs in this action. All events giving rise to this action occurred while
Delongchamp was the owner of one of the subject properties, and the
Ingrams are Delongchamp's successors in interest.
2
1200688
" '1. The Subject Property shall not be
subdivided into or sold in parcels of less than five
(5) acres.
" '2. Only one single-family dwelling of not
less than 2,500 square feet heated and cooled shall
be erected on each five-acre parcel, which dwelling
shall be used solely for residential purposes. In
addition:
" '....
" ' B. No dwelling or accessory
building or structure shall be located
within 100 feet of the property line ....
" '5. The Owners herein reserve unto
themselves, their heirs and assigns, and in
unanimous concert with the Grantees of other
platted tracts, within this subdivision, their heirs
or assigns, the right, by appropriate written
instrument, to waive, release, amend or annul any
one or more of the foregoing provisions.'
"In 2003, [Cindy C. Warren] Delongchamp[, the Ingrams'
predecessor in interest, see note 1, supra] acquired two
adjacent parcels of property ('the Delongchamp property'). The
parties agree that the Delongchamp property is included
within the property described by the 1982 Declaration and is,
therefore, burdened by the restrictive covenants noted above.
In 2015, Capitol Farmers Market acquired two parcels of
property that are adjacent to one another. The parties agree
that one of the parcels ('the Capitol Farmers Market property')
is included within the property described by the 1982
Declaration. The Capitol Farmers Market property abuts the
3
1200688
Delongchamp property. It is undisputed that the other parcel
acquired by Capitol Farmers Market is not subject to the
restrictive covenants set out in the 1982 Declaration.
"Near the Delongchamp property and the Capitol
Farmers Market property is certain property purchased by
Southern Boulevard Corporation, which, the record indicates,
is now known as Alfa Properties, Inc. ('Alfa'). It is undisputed
that certain of the property owned by Alfa ('the Alfa property')
is also burdened by the restrictive covenants set out in the
1982 Declaration.
"In September 2017, Delongchamp filed a complaint in
the circuit court that, as amended, sought a declaratory
judgment and injunctive relief regarding the Capitol Farmers
Market property. Delongchamp alleged that Capitol Farmers
Market was planning to 'subdivide the Capitol [Farmers
Market p]roperty into a high density residential subdivision
with proposed lots being substantially less than the required
five (5) acre minimum.' Delongchamp sought a judgment
declaring that the Capitol Farmers Market property was
encumbered by the restrictive covenants set out in the 1982
Declaration and that Capitol Farmers Market was required to
abide by the restrictive covenants on the Capitol Farmers
Market property. Delongchamp also sought an injunction
restraining Capitol Farmers Market from 'violating' the
restrictive covenants set out in the 1982 Declaration 'to
include, but not limited to, subdividing the Capitol [Farmers
Market] property into lots less than five (5) acres.' Capitol
Farmers Market answered Delongchamp's complaint and
amended complaint and asserted a separate counterclaim; the
counterclaim is not pertinent to this appeal.
"The circuit court entered an order appointing a special
master 'to recommend a resolution of all issues.' Capitol
4
1200688
Farmers Market later moved for a summary judgment
regarding the relief requested in Delongchamp's amended
complaint. In January 2019, the special master conducted
what he called 'the final hearing.' He stated: 'I will take into
account the motion for summary judgment and all the
arguments there. But when I rule, it will be final.' The parties
presented arguments and evidence, including ore tenus
testimony, to the special master at the hearing. In August
2019, the special master filed a report of his findings and his
recommendation in the circuit court.
"The circuit court thereafter entered an order, providing,
in pertinent part:
" 'Based
upon
the
report
and
recommendations of the Special Master the Court
makes the following findings and enters the Orders
as set forth herein:
" ' The relevant facts obtained through these
proceedings conclude that the property in question
belonging to [Delongchamp], and the property in
question belonging to [Capitol Farmers Market], as
well as additional property were all subject to a set
of restrictions pursuant to the [1982 Declaration]
and recorded on July 7, 1982, in the [probate
court].
" ' Delongchamp purchased her property by
deed recorded on June 23, 200[3], in the [probate
court]. At the time the Delongchamp [property] was
encumbered by the [1982] Declaration and remains
so encumbered to this date.
5
1200688
" ' Capitol Farmers [Market] purchased its
property by deed recorded in the [probate court] on
July 2, 2015 .... Prior to the date of the recording of
the Capitol Farmers [Market] deed, Judith B.
Huddleston, as one of the original Declarants
under the [1982] Declaration unilaterally executed
a document purporting to be a revocation of the
[1982] Declaration. Said document is recorded in
the [probate court] ("the Revocation"). At the time
of the Revocation, Mrs. Huddleston owned no
interest in any of the properties subject to the
[1982] Declaration, including but not limited to the
Delongchamp [property] and the Capitol Farmers
[Market property]. In fact, no property that was
originally subject to the [1982] Declaration has
ever been released from the encumbrance of the
[1982] Declaration prior to, nor since the date of
the purported Revocation. ...
" ' Since the time of the execution and
recording of the [1982] Declaration, substantial
growth has occurred in East Montgomery and in
particular along Taylor Road and Vaughn Road in
the vicinity of the property in question. However,
there has been no change in the use of the
restricted properties. ...
" ' The operative portions of the [1982]
Declaration applicable to the Capitol Farmers
[Market property], the Delongchamp [property],
and [a] parcel ... belonging to [Alfa] provide, among
other things, as follows: (i) "No dwelling or
accessory building or structure shall be located
within 100 feet of the property line ..."; (ii) no
parcel "shall be subdivided into or sold in parcels of
6
1200688
less than five (5) acres"; and (iii) any dwelling shall
not be less than 2,500 square feet on the property.
Section 5 of the [1982] Declaration provided that
"the Owners herein reserve unto themselves their
heirs and [a]ssigns, and in unanimous concert with
the Grantees of other platted tracts with[in] this
subdivision, their heirs and assigns, the right, by
appropriate written instrument, to waive, release
amend or annul any one or more of the foregoing
provisions."
" ' Capitol Farmers [Market] proposes to
develop the Capitol Farmers [Market property] into
more than twenty (20) lots with most of those lots
being fifty (50) feet wide and approximately one
hundred (100) feet deep. The total number of lots
proposed by Capitol Farmers [Market] on the
restricted parcel and the adjacent unrestricted
parcel is 57....'
"The circuit court's order included lengthy analyses
addressing the issues presented. Based on its analyses, the
circuit court's order concluded, in relevant part:
" '1. The [1982] Declaration and the terms and
restrictions contained therein are not ambiguous,
or if ambiguous, the requirements to waive, amend,
release or annul such restrictions require the
consent of all parties burdened and benefitted by
the [1982] Declaration;
" '2. The present owners and properties
benefitted and burdened by the [1982] Declaration
are [Delongchamp], [Capitol Farmers Market,] and
[Alfa] and the Delongchamp [property], the Capitol
7
1200688
Farmers [Market property,] and the properties
belonging to [Alfa];
" '3. The attempted waiver of the [1982]
Declaration by [Capitol Farmers Market] and ...
one of the original "Grantors" was insufficient to
waive the application of the restrictions contained
in the [1982] Declaration;
" '4.
[Delongchamp]
purchased
the
Delongchamp [property] in reliance upon the
benefits and burdens of the restrictions contained
in the [1982] Declaration;
" '5. There exists no change in condition or use
of any of the properties encumbered by the [1982]
Declaration which would prohibit or preclude the
enforcement of the restrictions against the Capitol
Farmers [Market property] or any of the other
properties encumbered by the [1982] Declaration;
" '6. The [1982] Declaration continues to
encumber the Capitol Farmers [Market property]
and the Delongchamp [property] and may be
enforced by either party against the property of the
other described in the [1982] Declaration ....'
"Capitol Farmers Market thereafter filed a motion,
asserting that the circuit court had improperly entered its
order without affording Capitol Farmers Market sufficient
time and a hearing to object to the special master's
recommendation, as contemplated by Rule 53(e)(2), Ala. R. Civ.
P. The circuit court granted Capitol Farmers Market's motion
and set the matter for a hearing. Capitol Farmers Market
thereafter filed objections to the special master's findings and
8
1200688
recommendations. In September 2019, the circuit court
modified its earlier order to dispose of Capitol Farmers
Market's counterclaim, which, as noted above, is not pertinent
to this appeal. Capitol Farmers Market appeals from the
circuit court's final judgment."
320 So. 3d at 575-78. In this opinion, we use the same defined terms and
designations we used in this excerpt from Capitol Farmers Market.
This Court held in Capitol Farmers Market that Alfa was a
necessary party to the action because it owned property located near the
properties owned by Capitol Farmers Market and Delongchamp that was
also burdened by the restrictive covenants set out in the 1982 Declaration.
Accordingly, this Court reversed the judgment of the circuit court and
remanded the case with directions to join Alfa as a necessary party to this
action, if feasible, in accordance with Rule 19, Ala. R. Civ. P. Capitol
Farmers Market, 320 So. 3d at 583.
On remand, Capitol Farmers Market, on January 5, 2021, moved the
circuit court to join Alfa as a party to this action. On January 19, 2021,
the circuit court entered an order joining Alfa as a defendant to this
action. On March 17, 2021, the Ingrams amended the complaint to add
Alfa as a defendant. See note 1, supra. On May 17, 2021, Alfa filed a
9
1200688
notice of consent to be bound by the circuit court's amended final order of
September 23, 2019, so that an appeal of that order could be perfected.
On May 18, 2021, the circuit court entered an order reinstating the
amended final order of September 23, 2019. This appeal followed.
Standard of Review
In an action tried before a special master "without a jury the [circuit]
court shall accept the master's findings of fact unless clearly erroneous."
Rule 53(e)(2), Ala. R. Civ. P.
"[A] court accepts a master's findings of fact in non-jury actions
unless clearly erroneous; and to the extent the trial court has
adopted the findings of a master, this same standard applies
to an appellate review of these findings. ... In essence, a
master's report is accorded the same weight as a jury verdict
and, therefore, is not to be disturbed unless it is palpably and
plainly wrong."
Burgess Mining & Constr. Corp. v. Lees, 440 So. 2d 321, 327 (Ala. 1983).
Discussion
I. Whether the Restrictive Covenants are Ambiguous
As stated in the circuit court's final order, Judith Huddleston, one
of the original declarants under the 1982 Declaration, unilaterally
executed a document purporting to be a revocation of the 1982
10
1200688
Declaration. However, the circuit court determined that, at the time of
the purported revocation, Huddleston owned no interest in any of the
properties subject to the 1982 Declaration, including the Delongchamp
property and the Capitol Farmers Market property.
Capitol Farmers Market initially argues that the revocation
provision contained in the 1982 Declaration is ambiguous. Capitol
Farmers Market contends that because the revocation provision contained
in the 1982 Declaration is ambiguous, the entire 1982 Declaration is void
and unenforceable and Judith Huddleston's purported revocation of the
1982 Declaration must be enforced.
The revocation provision contained in the 1982 Declaration provides
as follows:
"The Owners herein reserve unto themselves, their heirs and
assigns, and in unanimous concert with the Grantees of other
platted tracts within this subdivision, their heirs or assigns,
the right, by appropriate written instrument, to waive, release,
amend or annul any one or more of the foregoing provisions."
Capitol Farmers Market argues that the use of the capitalized term
"Grantees" creates an ambiguity. Capitol Farmers Market argues that
the Huddlestons, the original grantors who executed the 1982 Declaration,
11
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went to great lengths to use capitalized first letters when referring to
defined terms in the 1982 Declaration, such as, for example, "Owners,"
"Subject Property," and "Bank." Capitol Farmers Market states that the
absence of a definition for the term "Grantees" is inconsistent with the
remainder of the 1982 Declaration and creates an ambiguity.
Capitol Farmers Market has provided this Court with no authority
demonstrating that the failure to define in a legal instrument a term
beginning with a capitalized first letter creates an ambiguity. In fact, the
use of an undefined term in a restrictive covenant has been held not to
create an ambiguity. Grove Hill Homeowners' Ass'n v. Rice, 43 So. 3d 609,
614 (Ala. Civ. App. 2010). Further, "when the language of a restrictive
covenant is not 'of doubtful meaning and ambiguous,' the language of that
covenant 'is entitled to be given the effect of its plain and manifest
meaning.' " Maxwell v. Boyd, 66 So. 3d 257, 261 (Ala. Civ. App.
2010)(quoting Laney v. Early, 292 Ala. 227, 231-32, 292 So. 2d 103, 107
(1974)). Giving the word "Grantees" its plain and ordinary meaning, it
is clear that the word refers to persons to whom the Huddlestons or their
successors conveyed parcels of property from the Huddlestons' original
12
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tract of property. Thus, we conclude that no ambiguity is created by the
use of the undefined term "Grantees" in the revocation provision of the
1982 Declaration.
Capitol Farmers Market next argues that the phrase "Grantees of
other platted tracts within this subdivision" creates an ambiguity because,
at the time the 1982 Declaration was executed, there were no platted
tracts within a subdivision. The circuit court addressed the issue as
follows:
"It is without question that the property in question was not
at the time platted or subject to a recorded plat. Further,
Capitol Farmers [Market] further argues that the reference to
the word 'subdivision' is ambiguous as the property has not
been subdivided, at least not in terms of filing a plat or map
that takes the total restricted property and divides it into
various parcels. However, it is without question that the
property covered by the [1982] Declaration has been
subdivided into various parcels and various owners. Capitol
Farmers Market does not consider alternate meanings that
could give all the words application within the context of the
paragraph. Capitol Farmers [Market] then concludes that the
language is therefore ambiguous and should be totally
disregarded. In place of the language Capitol Farmers
[Market] concludes that the restrictions can be amended with
the sole consent of the Declarant and the particular property
owner of the parcel seeking to be released from the
restrictions. The more consistent interpretation is that the
language is not ambiguous but has meaning within the context
13
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of the paragraph in question. The words 'subdivision' and 'plat'
are clearly referring to all of the property restricted by the
Declaration. The requirement that the Declarant have the
unanimous approval of all the owners in the subdivision then
would require the consent of the owners of each and every
parcel within the restriction."
We agree with the circuit court's analysis and assessment of this issue.
Although the property subject to the 1982 Declaration had no "platted
tracts within [a] subdivision" when the 1982 Declaration was executed,
the Huddlestons' property had been subdivided into various parcels and
conveyed to other owners. "[W]here there is a choice between a valid
construction and an invalid construction the court has a duty to accept the
construction that will uphold, rather than destroy, the contract and that
will give effect and meaning to all of its terms." Homes of Legend, Inc. v.
McCollough, 776 So. 2d 741, 746 (Ala. 2000). Accordingly, we construe the
phrase "Grantees of other platted tracts within this subdivision" to include
those owners who had been conveyed parcels of property that are
burdened by the restrictive covenants contained in the 1982 Declaration.
Based on the foregoing, we conclude that the revocation provision
contained in the 1982 Declaration is not ambiguous and does not render
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the 1982 Declaration, in its entirety, void and unenforceable. Assuming
that Judith Huddleston was a proper party to attempt to revoke the
restrictive covenants contained in the 1982 Declaration, even though she
no longer had an interest in the properties in question, it is clear from the
revocation provision contained in the 1982 Declaration that Huddleston
would have had to have obtained the approval or consent of the owners of
each and every parcel of property burdened by the restrictive covenants.
It is undisputed that Huddleston unilaterally purported to revoke the
restrictive covenants without the approval or consent of each owner of a
parcel of property burdened by the restrictive covenants. Accordingly, the
circuit court did not err in finding Huddleston's purported revocation of
the restrictive covenants ineffective.
II. The Applicability of the Change-In-The-Neighborhood Test
Capitol Farmers Market next argues that it should be relieved from
the burdens of the restrictive covenants based on the "change-in-the-
neighborhood" test, because the area in the immediate vicinity of the
properties encumbered by the restrictive covenants has changed
15
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drastically over the years due to high-density residential and commercial
development.
We initially note that "restrictive covenants are not favored in the
law and will therefore be strictly construed by this Court. All doubts must
be resolved against the restriction and in favor of free and unrestricted
use of the property." Lange v. Scofield, 567 So. 2d 1299, 1301 (Ala. 1990).
Under the change-in-the-neighborhood test, "a restrictive covenant will
not be enforced if the character of the neighborhood has changed so
radically that the original purpose of the covenant can no longer be
accomplished." AmSouth Bank, N.A. v. British W. Florida, L.L.C., 988
So. 2d 545, 550 (Ala. Civ. App. 2007). See also Lange, 567 So. 2d at 1301.
" 'A change in character of the neighborhood sufficient to defeat a
restrictive covenant must have been so great as to clearly neutralize the
benefits of the restriction to the point of defeating the object and purpose
of the covenant.' " Laney, 292 Ala. at 233, 292 So. 2d at 108 (quoting
Thompson on Real Property § 3174, p. 20 (1972 Supp.)). Such a change in
the nature and condition of the neighborhood "must be determined based
on a comparison of its present character with its character when the
16
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restrictive covenants were created ...." AmSouth Bank, 988 So. 2d at 551.
When the original purposes of the covenants can be effectuated, changes
outside the restricted area should not be allowed to defeat the purposes
of the restriction. Laney, 292 Ala. at 233, 292 So. 2d at 108 (citing
Centers, Inc. v. Gilliland, 285 Ala. 593, 596, 234 So. 2d 883, 886 (1970).
The burden of proof is on the party seeking to remove the restrictive
covenants pursuant to the "change-in-the-neighborhood" test. Laney,
supra.
In reaching its conclusion that the restrictive covenants continue to
encumber the properties in question and may be enforced by either party
against the property of the other, the circuit court reasoned as follows:
"[I]n Maxwell v. Boyd, 66 So. 3d 257, 258 (Ala. Civ. App. 2010),
a property owner sought injunctive relief against an adjacent
property owner with respect to construction of a garage based
on a setback in a restrictive covenant. The restriction did not
apply to other lots but rather only to the Maxwell's and the
Boyd's lots -- the lots in question at trial. In addressing the
claim that the restrictive covenant should be equitably
removed based on the changes to the lots across from the
property at issue, the court held that 'the homes across the
street from the [lots at issue] are not subject to the restrictions
contained in the covenant document, and, thus, under Laney,
are not material to the change-in-conditions inquiry.' Id. (citing
Laney v. Early, [292 Ala. 227,] 292 So. 2d 103 (Ala. 1974)).
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Even though the property across the street had changed its
character, it was irrelevant to how the character of the
Maxwell's and the Boyd's lots had changed. Id. The court also
noted that, '[t]o the extent that Laney may conflict with
AmSouth Bank[, N.A. v. British W. Florida, L.L.C., 988 So. 2d
545 (Ala. Civ. App. 2007),] or any other case decided by this
court as to the pertinent geographic scope of the changed
conditions to be considered, we are, of course, bound by Laney.'
Id. at 263, n.5.
"To contrast, in AmSouth Bank v. British West Florida,
L.L.C., the bank sought to enforce the restrictions applied to
nine single dwelling beach front lots which had become
surrounded by hotels, condominiums, and other commercial
structures. 988 So. 2d at 548. When the restrictions were
applied between 1955 and 1967, the area surrounding the nine
lots was bare, with no commercial structures within a few
miles of the lots. Id. Such structures were built in the
surrounding area on unrestricted lots after 1979. Id. Because
the defendants failed to argue to the contrary, the court
defined the neighborhood as a two mile stretch of road where
the nine lots were situated somewhere in the middle as
opposed to strictly the restricted properties. Id. at 551. In
arguing that the character of the neighborhood had not
changed, the defendants failed to cite 'any legal authority
holding that a change in the use of the property subject to the
restrictive covenants must have occurred in order to satisfy the
requirements of the change-in-the-neighborhood test.' Id. at
552. As a result, because of the court's definition of [the]
neighborhood as a two mile strip along a busy highway, and
because the defendants cited no proposition of law stating that
the change must have occurred within the restricted area, the
court held that the restrictions were no longer enforceable. Id.
at 554.
18
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"In the case at hand, the Delongchamp and Capitol
Farmers [Market] Parcels abut one another with both
properties abutted by high density residential areas to their
North and South. The Capitol Farmers [Market] and
Delongchamp Parcels have a restrictive covenant placed
against them forbidding the sale or splitting up of the property
into parcels of less than five acres, among other restrictions.
Under Lange [v. Scofield, 567 So. 2d 1299 (Ala. 1990),] and its
progeny, in order to terminate the restrictive covenant for a
change in the neighborhood’s condition, the neighborhood must
have changed so radically that the original purpose of the
covenant can no longer be accomplished. Moreover, any
changes outside the restricted area are immaterial in
defeating the purpose of the restriction. The present restriction
encumbered both the Delongchamp Parcel and the Capitol
Farmers [Market] Parcel and the Southern Guaranty property
dating back to 1982. The changes to the property nearby are
primarily the addition of high-density residential subdivisions
to the North and South of the properties in question, but not
on the properties themselves. Under Laney and Centers[, Inc.
v. Gilliland , 285 Ala. 593, 234 So. 2d 883 (1970),] any changes
to the surrounding property (i.e., the high-density residential
subdivisions) cannot serve as a basis for assessing any change
in character of the encumbered properties. The character of
both restricted properties has not changed since the
restriction was placed on the properties in 1982. Given that
the character of the restricted properties has not changed, it
cannot be said that the conditions of the property have
changed to such a significant degree that enforcing the
restriction
defeats
the
purpose
of
the
restrictions.
Furthermore, Cindy Delongchamp stated in her affidavit that
she relied upon the restrictive covenant and the benefits it
brought when purchasing the property in 200[3]. Because
Delongchamp was led to buy the property, at least in part, by
reason of the restrictive covenant, she should be entitled to
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have her property 'preserved for the purpose for which [she]
purchased it.' Gilliland, [285 Ala. at 596,] 234 So. 2d at 886.
"Although the Capitol Farmers [Market] Parcel holders
have relied on AmSouth Bank, their reliance is misplaced. As
stated in Maxwell, 'to the extent that Laney may conflict with
AmSouth Bank or any other case decided by this court as to
the pertinent geographic scope of the changed conditions to be
considered, we are, of course, bound by Laney.' 66 So. 3d at
262, n.5. Because Laney is the controlling law rather than
AmSouth, only changes to the restricted properties can serve
as a basis for changes in the neighborhood. Therefore, the
changes in the use of properties in the vicinity of the
Delongchamp Parcel and Capitol Farmers [Market] Parcel
cannot serve as a basis for changing conditions to the
neighborhood.
"For a restrictive covenant to be unenforceable, the
character of the property must have changed so much that the
purpose of the covenant is rendered ineffective. Additionally,
surrounding property which is not subject to the restriction
cannot serve as a basis for a change in character. Furthermore,
if an individual purchased the property based on the
restriction then they are entitled to enjoy the property
maintained in the manner in which it was purchased.
Presently, the property within a one mile radius has changed,
but the restricted property itself has not changed in character
since the restriction was placed on the property. As such, the
changes to the surrounding area will not serve as a basis for
changes to the restricted property. Finally, Delongchamp
stated that she purchased the property relying on the
restrictive covenant. Delongchamp is entitled to keep her
property in the manner and subject to the terms, conditions
and restrictions burdening and benefitting the Delongchamp
Parcel.
20
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"Because the conditions of the restricted properties in
question have not changed so drastically that the benefits of
the restriction are neutralized; because the changes to the
surrounding area have no basis in defeating the purpose for a
restriction; and because Delongchamp relied on the benefits of
the restrictive covenant and is entitled to enjoyment of those
benefits, this court finds that the terms and restrictive
covenants contained in the [1982] Declaration remain effective
against the Capitol Farmers [Market] Parcel and the
Delongchamp Parcel."
Capitol Farmers Market again relies on AmSouth Bank and argues
that, because there have been "drastic" changes to the area within a one-
mile radius of the restricted properties at issue, the restrictive covenants
are unenforceable and it should be relieved from the burdens of the
restrictive covenants. At issue in AmSouth Bank were nine contiguous
beachfront lots that were restricted in use to only single-family dwellings.
The westernmost lot abutted a parcel of property on which British West
Florida, L.L.C. ("BWF"), was building a condominium complex. The
easternmost lot abutted a parcel of property on which a hotel was located.
The evidence indicated that, since 1979, the area within a one-mile radius
of the nine lots had become a major resort and tourist area and over 2,000
hotel and condominium units had been constructed within that one-mile
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radius. The beachfront within that one-mile radius was dominated by
multistory hotels and condominiums, and very few single-family dwellings
remained in the area. Two of the owners of the burdened beachfront lots
testified at trial that the influx of people and traffic since 1979 had
adversely affected their ability to enjoy their property. Those owners
stated that strangers frequently trespassed on their property and that
they had to deal with the increased traffic in the area resulting from the
construction of the 2,000 hotel and condominium units nearby. Another
owner of one of the burdened beachfront lots testified that the
construction of condominiums on the beachfront and the influx of large
numbers of people had drastically changed the beachfront in the area,
although he admitted that the changes had not made it physically
impossible to use the nine beachfront lots for single-family dwellings.
All the owners of the burdened beachfront lots entered into contracts
with BWF to sell the nine lots to BWF, which planned to build two
multistory condominiums on the lots. BWF's obligation to purchase the
nine lots was contingent on an adjudication that the restrictive covenants
limiting the use of the lots to single-family dwellings were unenforceable.
22
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The owners of the burdened beachfront lots and BWF sued a number of
defendants that had an ownership interest in the surrounding properties
that benefited from the restrictive covenants, seeking a judgment
declaring the restrictive covenants unenforceable. The trial court
concluded that the restrictive covenants should be declared unenforceable
on the basis that there had been a change in neighborhood.
In affirming the trial court's judgment, the Court of Civil Appeals
stated:
"The defendants first argue that the trial judge erred in
concluding that the evidence met the requirements of the
change-in-the-neighborhood test because, they say, the
evidence indicated that there has been very little change in the
neighborhood. In support of that argument, the defendants
point out that the Island House Hotel immediately east of the
nine lots; the commercial marina, boat-storage facility, and
small shopping center directly across Highway 182 from the
Island House Hotel; and the church and gas station directly
across Highway 182 from the nine lots have all been in their
present locations since 1992 and that the subdivision has been
in its location north of the church and the gas station 'for
decades.' However, this argument ignores the fact that the
Island House Hotel, the commercial marina, the boat-storage
facility, the small shopping center, the church, and the gas
station themselves constitute a change in the neighborhood
that has occurred since the restrictive covenants were created
in the 1950s and the 1960s -- the parcels of land now occupied
by the Island House Hotel, the commercial marina, the
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boat-storage facility, the small shopping center, the church,
and the gas station were either vacant or devoted to
single-family dwellings when the restrictive covenants were
created. The change in the character of the neighborhood must
be determined based on a comparison of its present character
with its character when the restrictive covenants were created
in the 1950s and the 1960s rather than its character in 1992.
See Johnson v. H.J. Realty, 698 So. 2d 781, 784 (Ala. Civ. App.
1997) ('[W]e conclude that the trial court did not err in finding
that fundamental and substantial changes had occurred since
the restrictive covenants were originally imposed on the
property.' (emphasis added)).
"Moreover, the defendants' argument ignores the drastic
changes in the use of the other land located within a one-mile
radius of the nine lots, such as the construction of over 2,000
hotel and condominium units on the beachfront and the
establishment of numerous commercial establishments along
Highway 182. In Johnson v. H.J. Realty, this court affirmed
a trial court's judgment declaring restrictive covenants
unenforceable under the change-in-the-neighborhood test
when the trial court considered changes within a one-mile
radius of the property that was subject to the restrictive
covenants. 698 So. 2d at 784. Accordingly, we find no merit in
the defendants' first argument.
"The defendants also argue that the trial judge erred in
concluding
that
the
evidence
satisfied
the
change-in-the-neighborhood test because, they say, there has
been no change in the use of the nine lots themselves since the
restrict[ive] covenants were created. However, the defendants
have not cited any legal authority holding that a change in the
use of the property subject to the restrictive covenants must
have occurred in order to satisfy the requirements of the
change-in-the-neighborhood test. In Johnson v. H.J. Realty,
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this court affirmed a judgment declaring restrictive covenants
unenforceable under the change-in-the-neighborhood test in
the absence of any change in the use of the property subject to
the restrictive covenants. Moreover, to hold that such a
change
is
necessary
in
order
to
satisfy
the
change-in-the-neighborhood test would give the owners of land
subject to restrictive covenants an incentive to violate the
restrictive covenants."
AmSouth Bank, 988 So. 2d at 551-52.
Capitol Farmers Market argues that it is clear that since the
execution of the 1982 Declaration containing the restrictive covenants at
issue in this case, there have been drastic changes to the area within a
one-mile radius of the subject properties. When the restrictive covenants
were first implemented, the surrounding neighborhood consisted of
farmland or large estate lots. Although the original developers sought to
preserve the complexion of the lots by requiring lots of five or more acres,
the rapid growth in the area forced a change in the neighborhood. Capitol
Farmers Market points to evidence contained in the record indicating that
at least 910 single-family residential lots comprising substantially less
than five acres have been built in the surrounding area since the
implementation of the covenants in 1982. There have also been numerous
25
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commercial lots, retail developments, office parks, malls, and high-density
apartments constructed in the area since the implementation of the
restrictive covenants. Capitol Farmers Market states that the subdivision
containing less than five-acre lots that it proposes would be more
consistent with the character of the surrounding area than the current use
of its property as a large undeveloped tract of land. Capitol Farmers
Market argues that, because of the dramatic change in the surrounding
area, the circuit court erred in failing to find the restrictive covenants
unenforceable in this case. We disagree.
The evidence indicates that substantial residential and commercial
growth has taken place within a one-mile radius of the subject properties,
causing the character of the area to change considerably since 1982. The
changes to nearby properties consist primarily of the addition of
high-density residential subdivisions and commercial properties to the
north of the subject properties. Frank Garrett, Capitol Farmers Market's
own expert, testified that the properties located to the west, south, and
east of the subject properties had not changed in character since 1982.
Evidence was presented indicating that single-family dwellings on lots of
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five acres or more still existed less than a half mile from the subject
properties. No evidence was presented indicating that the Delongchamp
or Capitol Farmers Market properties themselves had changed in
character. Garrett further testified that nothing had changed in the area
that would prevent the requirement that lots contain a minimum of five
acres from being complied with.
James Monk, a licensed land surveyor, completed a survey of the
subject properties. Monk testified that there had been no changes to the
subject properties since 1982. Monk further testified that the purpose of
the restrictive covenants can be complied with on the subject properties.
Because the properties to the west, south, and east of the subject
properties, and the subject properties themselves, have remained
unchanged since 1982, we cannot say that the change in the character of
the property to the north of the subject properties is " 'so great as to
clearly neutralize the benefits of the restriction to the point of defeating
the object and purpose of the covenant.' " Laney, 292 Ala. at 233, 292 So.
2d at 108 (quoting Thompson on Real Property § 3174). Further, because
the evidence in the record indicates that the character of the subject
27
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properties themselves has not changed and that the purpose of the
restrictive covenants, including the five-acre minimum requirement, can
still be complied with on the subject properties, changes outside the
restricted area should not be allowed to defeat the purposes of the
restrictions. Laney, 292 Ala. at 233, 292 So. 2d at 108 (citing Gilliland,
285 Ala. at 596, 234 So. 2d at 886). Accordingly, we affirm the circuit
court's determination that the restrictive covenants contained in the 1982
Declaration remain effective against the Capitol Farmers property and the
Delongchamp property.
Conclusion
Based on the foregoing, we affirm the circuit court's judgment
upholding the restrictive covenants found in the 1982 Declaration.
AFFIRMED.
Parker, C.J., and Wise, Bryan, Sellers, Mendheim, Stewart, and
Mitchell, JJ., concur.
Shaw, J., concurs in the result.
28 | December 3, 2021 |
4557a85f-8281-4276-9ede-ebe28f18813f | Ex parte Joy Vick Graham. | N/A | 1200467 | Alabama | Alabama Supreme Court | 1200467
Ex parte Joy Vick Graham. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
Joy Vick Graham v. Barry Austin Graham; Barry Graham Oil Service, LLC; and
ServisFirst Bank) (Mobile Circuit Court: CV-18-900691).
ORDER
December 10, 2021
IN THE SUPREME COURT OF ALABAMA
The petition for writ of mandamus in this cause is denied.
BRYAN, J. - Parker, C.J., and Bolin, Shaw, Wise, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 10th day of December, 2021.
Clerk, Supreme Court of Alabama
/ra | December 10, 2021 |
f1548311-e44a-4e40-8771-8d2b123de5d0 | Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins. | N/A | 1200106 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 19, 2021
1200106
Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins.
PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Stratcap
Investments, Inc. v. Michael Thomas Scoggins, as special Conservator for
the estates of Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins,
minors) (Calhoun Circuit Court: CV-12-900101).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 19, 2021:
Application Overruled. No Opinion. Mendheim, J. - Parker, C.J., and
Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J.,
recuses himself.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 3, 2021:
Petition Denied. Mendheim, J. - Parker, C.J., and Bolin, Shaw, Wise,
Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J., recuses himself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 19th day of November, 2021.
Clerk, Supreme Court of Alabama | November 19, 2021 |
4c6d2317-864a-4149-af9c-7e83b372c5c9 | Tipp v. JPMC Specialty Mortgage, LLC | N/A | 1200600 | Alabama | Alabama Supreme Court | REL: December 3, 2021
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, 2021-2022
____________________
1200600
____________________
Marian S.A. Tipp
v.
JPMC Specialty Mortgage, LLC
Appeal from Mobile Circuit Court
(CV-20-901417)
MITCHELL, Justice.
In July 2009, JPMC Specialty Mortgage, LLC ("JPMC"), foreclosed
on a property in Grand Bay that had once been owned by the parents of
1200600
Marian S.A. Tipp. Since that time, Tipp has filed one lawsuit after
another seeking to unravel that foreclosure and gain ownership of the
property. Tipp's most recent lawsuit against JPMC -- the action
underlying this appeal -- was filed in the Mobile Circuit Court in June
2020. After concluding that Tipp's claims were barred by the doctrine of
res judicata, the applicable statutes of limitations, and Alabama's
abatement statute, § 6-5-440, Ala. Code 1975, the trial court entered
summary judgment in favor of JPMC. Because of Tipp's history of
litigation against JPMC, the trial court also entered a permanent
injunction that prohibits her from initiating any further proceedings
related to the foreclosure of the Grand Bay property without first
obtaining permission from that court. Tipp appeals. We affirm the
judgment.
Facts and Procedural History
When Tipp's mother died in February 2002, Tipp's sister, Carolyn E.
Sims, became the sole owner of the Grand Bay property.1 Later that year,
1Before her death, Tipp's mother conveyed the Grand Bay property
to Sims while reserving a life estate for herself in a portion of the
2
1200600
Sims obtained a loan secured by a mortgage on the property. That
mortgage was eventually obtained by JPMC after the previous mortgage
holder went into receivership. By July 2009 Sims had defaulted on the
mortgage. At a foreclosure sale that month, JPMC entered the highest bid
and was awarded a foreclosure deed. The litigation then began.
A. The 2009 Action
On July 24, 2009, JPMC filed an ejectment action against Sims in
the Mobile Circuit Court. A month later, Sims executed a quitclaim deed
purporting to convey the Grand Bay property to Tipp, who then
intervened in the ejectment action and asserted wrongful-foreclosure,
slander-of-title, and trespass claims against JPMC.
JPMC moved the trial court to dismiss Tipp's claims, arguing that
she had no real interest in the Grand Bay property because the quitclaim
deed on which she based her claims was executed after the foreclosure
deed. The trial court granted that motion in July 2010. Tipp did not
appeal the dismissal of her claims. One month later, the trial court
property.
3
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granted JPMC's motion to dismiss its own ejectment claim after JPMC
filed notice that Sims had voluntarily vacated the Grand Bay property.
JPMC then took possession of the property.
B. The 2011 Action
On February 9, 2011, Tipp brought a new action in the Mobile
Circuit Court asserting wrongful-foreclosure, slander-of-title, trespass,
and fraud claims against JPMC and other defendants.
JPMC moved for
summary judgment, arguing that Tipp had no real interest in the Grand
Bay property that would allow her to pursue her claims and that, in any
event, her claims were barred by the doctrine of res judicata because she
had asserted similar claims in the 2009 action and those claims had been
dismissed. See generally Ex parte Chestnut, 208 So. 3d 624, 635 (Ala.
2016) (explaining that the doctrine of res judicata bars the relitigation of
a matter when a court of competent jurisdiction has already entered a
judgment on the merits deciding the same cause of action in a proceeding
involving substantially identical parties). The trial court granted the
motion in September 2011 and entered summary judgment in favor of
JPMC. Tipp appealed that judgment to this Court, and we affirmed it
4
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without an opinion. Tipp v. JPMorgan Chase Bank, N.A., (No. 1110677,
Oct. 12, 2012) 156 So. 3d 997 (Ala. 2012) (table).2
C. The 2013 Action
On February 26, 2013, Sims -- represented by the same attorneys
who had represented Tipp in the 2009 and 2011 actions -- filed a new
lawsuit in the Mobile Circuit Court making trespass and conversion
claims against JPMC. Sims alleged that JPMC had wrongfully entered
the Grand Bay property following the 2009 ejectment action and had
damaged or destroyed personal property belonging to her. She sought
compensatory and punitive damages for those alleged wrongful acts, as
well as a judgment declaring (1) JPMC's foreclosure deed void for various
alleged procedural deficiencies and (2) her to be the rightful owner of the
Grand Bay property. Tipp was not a party to this action.
JPMC moved for summary judgment, arguing among other things
that Sims's claims were barred by the doctrine of res judicata. In
2Tipp's appeal of the judgment entered against her in the 2011 action
appears to be the last proceeding in which she was represented by counsel.
She has since proceeded pro se.
5
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September 2015, the trial court granted JPMC's motion, explaining that
Sims was in privity with Tipp and that the claims she was asserting were
essentially the same claims that Tipp had asserted and that had been
adjudicated in the 2009 and 2011 actions. But, on appeal, the Court of
Civil Appeals reversed that judgment, holding that there were genuine
issues of material fact about (1) whether Sims and Tipp were substantially
identical parties for res judicata purposes; (2) whether there had been a
prior adjudication on the merits of Sims's claims; and (3) whether the
claims Sims was asserting had been presented in the 2009 or 2011 actions.
See Sims v. JPMC Specialty Mortg., LLC, 218 So. 3d 376, 386-87 (Ala. Civ.
App. 2016).
After Sims's case was remanded to the trial court, she and JPMC
reached a settlement resolving her claims. The exact terms of that
settlement are not before this Court, but Tipp states that JPMC deeded
the Grand Bay property back to Sims as part of the settlement. In July
2018, the trial court dismissed the 2013 action at the request of the
parties. Tipp filed a postjudgment motion trying to set aside the
settlement agreement between Sims and JPMC, but the trial court denied
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that motion less than a week later, explaining to Tipp that she was "not
a party to this action."
D. The 2018 Action
After learning in June 2018 that Sims and JPMC had reached a
settlement, Tipp initiated a new action against JPMC. In her complaint,
she again asserted claims for slander of title and trespass while adding an
additional claim for conversion. Tipp also challenged the validity of the
2009 foreclosure sale, the judgment entered against her in the 2011
action, and the settlement agreement that Sims and JPMC had executed,
arguing that she was entitled to a declaratory judgment naming her the
owner of the Grand Bay property.
JPMC moved the trial court to dismiss Tipp's claims on res judicata
and statute-of-limitations grounds, and, in August 2018, the court
dismissed the action with prejudice. Tipp then filed an appeal with this
Court, and, in August 2019, we affirmed the trial court's judgment
without an opinion. Tipp v. JPMC Specialty Mortg., LLC, (No. 1180108,
Aug. 9, 2019) 312 So. 3d 2 (Ala. 2019) (table). Tipp's petition asking the
United States Supreme Court to review her case was likewise
7
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unsuccessful. Tipp v. JPMC Specialty Mortg., LLC, 589 U.S. ___,140 S.Ct.
1124 (2020).
E. Early 2020 Attempts to Reopen Previous Actions
Even though final judgments had now been entered in all the
previous cases, Tipp, in early 2020, filed a series of motions and appeals
attempting to resurrect those actions. Those filings included:
(1) A January 2020 motion filed in the 2013 action again
asking the trial court to set aside the settlement agreement
between Sims and JPMC (denied 02/02/2020);
(2) A February 2020 motion seeking to vacate the judgment
entered against her in the 2011 action (denied 02/21/2020);
(3) A March 2020 motion filed in the 2018 action asking the
trial court to vacate the judgment entered against her in that
action as well as the judgment entered against her in the 2011
action (denied 03/08/2020);
(4) A May 2020 appeal filed with the Court of Civil Appeals
challenging the judgment in the 2018 action (appeal
transferred to this Court, docketed as appeal no. 1190634, and
dismissed by order on 06/08/2020); and
(5) A May 2020 appeal filed with the Court of Civil Appeals
challenging the judgment in the 2011 action (appeal
transferred to this Court, docketed as appeal no. 1190663, and
dismissed by order on 06/30/2020).
8
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F. The 2020 Federal-Court Action
Undeterred by her lack of success in the state courts, Tipp decided
to try her hand in federal court. On June 12, 2020, she filed an action in
the United States District Court for the Southern District of Alabama
asserting various claims against JPMC and requesting a judgment
declaring her the lawful owner of the Grand Bay property. JPMC moved
for summary judgment, arguing that Tipp's claims were barred by the
doctrine of res judicata, the applicable statutes of limitations, and the
Rooker-Feldman doctrine, which provides that federal district courts
cannot review state-court final judgments because that task is reserved
for state appellate courts or, as a last resort, the United States Supreme
Court. See generally District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-
16 (1923). JPMC also asked the federal district court to sanction Tipp.
In February 2021, the federal district court dismissed Tipp's claims,
citing the Rooker-Feldman doctrine. Tipp v. JPMC Specialty Mortg., LLC,
No. 1:20-cv-317-TFM-N, Feb. 19, 2021 (S.D. Ala. 2021) (not selected for
publication in Federal Supplement). JPMC states in its brief to this Court
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that its motion for sanctions remains pending before the federal district
court.
G. The 2020 Action
We finally come to the action underlying this appeal. On June 30,
2020 -- two weeks after filing the 2020 federal-court action and on the
same day this Court dismissed her most recent appeal -- Tipp filed a new
complaint asserting forgery, fraud, trespass, and negligence claims
against JPMC. Tipp alleged that JPMC had wrongfully taken possession
of the Grand Bay property and then had colluded with Sims to keep the
property away from Tipp -- even though, Tipp claims, she is its rightful
owner.
JPMC denied Tipp's claims and filed counterclaims asking the trial
court (1) to enter a permanent injunction enjoining Tipp from taking
further action against JPMC or any related companies without first
obtaining leave from the trial court and (2) to award JPMC attorney fees
and costs under the Alabama Litigation Accountability Act ("the ALAA"),
§ 12-19-270 et seq., Ala. Code 1975. JPMC later moved the trial court to
enter summary judgment in its favor on the claims asserted by Tipp based
10
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on the doctrine of res judicata, the applicable statutes of limitations, and --
because there was a pending action between the parties in federal district
court involving the same facts -- the abatement statute, § 6-5-440.3
Tipp filed a response opposing JPMC's summary-judgment motion,
but her response failed to directly address any of the grounds set forth by
JPMC in its motion. Instead, Tipp simply restated her position that
JPMC had wrongfully taken the Grand Bay property. On November 13,
2020, the trial court granted JPMC's motion in a reasoned order in which
it explained that JPMC was entitled to summary judgment on the basis
of all three grounds it had argued.
One week later, JPMC moved for summary judgment on its
counterclaim for injunctive relief. The trial court granted that motion as
well, entering a final judgment that permanently enjoined Tipp or "anyone
acting on her behalf" from filing any "complaint, action, claim for relief,
3Section 6-5-440 provides that "[n]o plaintiff is entitled to prosecute
two actions in the courts of this state at the same time for the same cause
and against the same party." See also Ex parte Compass Bank, 77 So. 3d
578, 587 (Ala. 2011) (explaining that an action pending in federal court
abated the "subsequently filed state-court action ... arising out of the same
facts").
11
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cause of action, lawsuit, petition, accusation, charge, writ, affidavit, deed,
or any other similar filing or instrument" against JPMC or related entities
that was in any way based on the claims asserted in her previous actions
against JPMC, or that implicated her claimed ownership of the Grand Bay
property, unless she first obtained permission from the trial court.4 Tipp
then filed this appeal.
Analysis
Tipp challenges both the summary judgment entered on her claims
against JPMC and the permanent injunction entered against her. We
address each in turn.
A. Summary Judgment Disposing of Tipp's Claims
When a party "appeals from a summary judgment, our review is de
novo." Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.
4JPMC never moved for summary judgment on the ALAA claim that
it asserted, and neither of the trial court's orders entering summary
judgment for JPMC addressed that claim. "[W]hen a trial court enters an
otherwise final judgment on the merits of a case but fails to address a
pending ALAA claim or to reserve jurisdiction to later consider that claim,
the ALAA claim is implicitly denied by the judgment on the merits."
Klinger v. Ros, 33 So. 3d 1258, 1260 (Ala. Civ. App. 2009) (citing Gonzalez,
LLC v. DiVincenti, 844 So. 2d 1196, 1202 (Ala. 2002)).
12
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2d 369, 372 (Ala. 2000). Thus, we apply the same standard the trial court
used, reviewing the record in the light most favorable to the nonmovant
to determine whether there is substantial evidence establishing the
existence of a genuine issue of material fact that must be resolved by the
fact-finder. Id. We further note that in a case like this, where the trial
court has set forth multiple grounds supporting the entry of summary
judgment, we will affirm that judgment if any of those grounds provides
a basis for the judgment. Norvell v. Norvell, 275 So. 3d 497, 506 (Ala.
2018). Here, the trial court's judgment can be affirmed based on the
abatement statute.
Section 6-5-440 bars a party from "prosecut[ing] two actions in the
courts of this state at the same time for the same cause and against the
same party." This Court has held that "[t]he phrase 'courts of this state,'
as used in § 6-5-440, includes all federal courts located in Alabama."
Weaver v. Hood, 577 So. 2d 440, 442 (Ala. 1991). The Weaver Court
further stated that this Court will not "allow a person to prosecute an
action in a state court while another action on the same cause and against
13
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the same parties is pending in a federal court in this State." 577 So. 2d
at 442.
JPMC argued in its summary-judgment motion that the claims
asserted by Tipp in the federal-court action were based on the same issues
and the same underlying allegations asserted in this action -- that JPMC
had wrongfully obtained possession of the Grand Bay property through an
invalid foreclosure sale and then had later conspired with Sims to
fraudulently transfer the property back to her as part of a settlement
agreement ending the 2013 action. JPMC supported this argument by
submitting a copy of the complaint Tipp had filed in federal court. JPMC
thus made a prima facie showing that the abatement statute barred Tipp
from pursuing the claims asserted in this action.
At that point, the burden shifted to Tipp to rebut that showing.
Nationwide, 792 So. 2d at 372. She failed to meet her burden. Charitably
viewed, Tipp's response opposing JPMC's summary-judgment motion
tangentially addressed the doctrine of res judicata and the applicable
statutes of limitations, but she made no attempt to refute JPMC's
argument that the abatement statute barred her action. Indeed, she
14
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acknowledged neither the statute nor the existence of the federal-court
action. Her failure to make any argument about the abatement statute
below precludes her from making any such argument on appeal. See Ex
parte Ryals, 773 So. 2d 1011, 1013 (Ala. 2000) (explaining that an
appellate court may consider an argument against the validity of a
summary judgment "only to the extent that the record on appeal contains
material from the trial court record presenting that argument to the trial
court before or at the time of submission of the motion for summary
judgment").5 We therefore affirm the judgment entered in favor of JPMC
on Tipp's claims based on the abatement statute. That makes it
unnecessary to consider the doctrine of res judicata or the statutes of
limitations.
5Even if Tipp had not waived her ability to challenge the trial court's
application of the abatement statute on appeal, the only argument she
makes to this Court is that JPMC waived its right to invoke § 6-5-440 by
raising it for the first time in its summary-judgment motion. See Regions
Bank v. Reed, 60 So.3d 868, 884 (Ala. 2010) (explaining that abatement
is an affirmative defense that can be waived if not timely pleaded). But
Tipp misrepresents the record. In truth, JPMC asserted in its answer to
Tipp's complaint that her action was "barred by the abatement statute."
15
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B. Permanent Injunction Against Tipp
Tipp next argues that the permanent injunction -- which the trial
court entered to halt her legal filings about the Grand Bay property -- was
not supported by the evidence. We disagree.
This Court has explained that a permanent injunction is appropriate
if the party seeking it can " 'demonstrate success on the merits, a
substantial threat of irreparable injury if the injunction is not granted,
that the threatened injury to the [party seeking the injunction] outweighs
the harm the injunction may cause the [other party], and that granting
the injunction will not disserve the public interest.' " Sycamore Mgmt.
Grp., LLC v. Coosa Cable Co., 42 So. 3d 90, 93 (Ala. 2010) (citation
omitted). All of those requirements have been met here.
First, JPMC has demonstrated success on the merits. When JPMC
moved for summary judgment on its claim for injunctive relief, it recited
Tipp's litigation history and incorporated all the materials it had
previously submitted to support its motion for summary judgment
concerning Tipp's claims. Those materials were sufficient to establish the
success-on-the-merits requirement, because they demonstrated that
16
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JPMC had already successfully defended itself against Tipp's claims
stemming from the July 2009 foreclosure of the Grand Bay property.
Second, JPMC has demonstrated that it faces a substantial threat
of irreparable injury. In making that showing, JPMC submitted Tipp's
affidavit in one of her previous actions in which she expressly stated that
she would continue her fight against JPMC "until the day [she] die[s] or
Jesus comes." If Tipp's litigation history was not enough, her affidavit
clearly shows that there is a substantial likelihood that Tipp will continue
to pursue frivolous litigation against JPMC -- and that JPMC will have to
continue expending time and money responding to that litigation -- unless
a permanent injunction is entered against her.
Third, the permanent injunction poses no harm to Tipp because the
claims she repeatedly asserts against JPMC have already been
conclusively decided against her, and the doctrine of res judicata
forecloses any possibility that she might one day prevail on them.
Moreover, in the event she ever does have a claim involving the Grand
Bay property or against JPMC that truly is not precluded, the permanent
17
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injunction does not prevent her from pursuing that claim -- it only
requires her to first obtain leave from the trial court before doing so.
Finally, in light of Tipp's history of litigation and stated intent to
continue litigating this case regardless of the many judgments that have
been entered against her, the permanent injunction is reasonable and
serves the public interest by helping to conserve precious judicial
resources. See generally Walden v. ES Capital, LLC, 89 So. 3d 90, 108-09
(Ala. 2011) (explaining that injunctions to halt harassing and vexatious
litigation of matters that have already been litigated support the interests
of justice and are favored by courts). We therefore uphold the permanent
injunction entered by the trial court.
Conclusion
Tipp has pursued litigation against JPMC related to the foreclosure
of the Grand Bay property almost continuously since 2009. The trial
courts considering her claims have consistently entered judgments against
her and have repeatedly explained that her claims have no merit. On
multiple occasions, this Court has affirmed those judgments. As we have
done before, we now affirm the judgment entered in favor of JPMC on the
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claims Tipp has asserted against it. We also uphold the permanent
injunction entered by the trial court barring Tipp from reasserting the
same or similar claims in the future.
This is the fifth time this Court has considered an appeal filed by
Tipp concerning the Grand Bay property; none of those appeals has
presented a winning argument. Should she continue to pursue frivolous
litigation against JPMC, either directly or indirectly, and those matters
end up back before this Court, we will strongly consider an order requiring
her to pay JPMC's attorney fees and costs. See Guthrie v. Fanning, [Ms.
1190852, Dec. 11, 2020] ___ So. 3d ___ (Ala. 2020) (emphasizing this
Court's authority to sanction, either on the motion of the appellee or on
the Court's own initiative, an appellant whose appeal is determined to be
frivolous or without substantial justification).
AFFIRMED.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur.
19 | December 3, 2021 |
5982ae56-bf58-4ccb-aad5-0ec519151b5c | Johnnie Will Harris, Jr. v. Johnson's Giant Foods, Inc. | N/A | 1200732 | Alabama | Alabama Supreme Court | REL: December 3, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200732
Johnnie Will Harris, Jr. v. Johnson's Giant Foods, Inc. (Appeal from
Etowah Circuit Court: CV-18-210).
MENDHEIM, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur. | December 3, 2021 |
c62c2735-3abb-4e99-9ba5-eb92cc45a939 | Ex parte J.M. | N/A | 1210076 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1210076
Ex parte J.M. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: J.M. v. D.K. and P.K.) (Limestone Juvenile Court:
JU-20-170.01; Civil Appeals : 2200598).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 3, 2021:
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 3rd day of December, 2021.
Clerk, Supreme Court of Alabama | December 3, 2021 |
527a717f-ec8f-4ddb-a1f0-fe74a278906c | Ex parte Marvell A. Davis, Jr. | N/A | 1210071 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1210071
Ex parte Marvell A. Davis, Jr. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: Marvell A. Davis, Jr. v. Sentrae A.
Davis) (Madison Circuit Court: DR-14-430.02; Civil Appeals : 2200559).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 3, 2021:
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 3rd day of December, 2021.
Clerk, Supreme Court of Alabama | December 3, 2021 |
49b2bf4b-5c48-409f-bdb5-57fdb266884c | Ex parte Tramaris Deangelo Bryant. | N/A | 1210048 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1210048
Ex parte Tramaris Deangelo Bryant. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Tramaris
Deangelo Bryant v. State of Alabama) (Lee Circuit Court: CC12-342.61;
Criminal Appeals : CR-20-0239).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
December 3, 2021:
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 3rd day of December, 2021.
Clerk, Supreme Court of Alabama | December 3, 2021 |
fa2a0477-7682-4689-a45d-3f76bc385433 | Ex parte S.C. | N/A | 1200819 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200819
Ex parte S.C. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: S.C. v. Cullman County Department of Human
Resources) (Cullman Juvenile Court: JU-19-116.02; Civil Appeals :
2200345).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
November 12, 2021:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
e953e1e3-3871-48ae-b3df-d8c81290f930 | Reagan Henderson v. Sunny King of Birmingham, Inc., a/k/a King Acura | N/A | 1200459 | Alabama | Alabama Supreme Court | REL: December 3, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200459
Reagan Henderson v. Sunny King of Birmingham, Inc., a/k/a King Acura
(Appeal from Jefferson Circuit Court: CV-20-120).
MITCHELL, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur. | December 3, 2021 |
6d735324-f269-45e5-988a-d0071b94e544 | Tracy Blackwell and Walter Blackwell v. Estate of Mildred Blackwell, Cecil Richard Blackwell, Jr., and Shannon Blackwell Longcrier | N/A | 1200569 | Alabama | Alabama Supreme Court | Rel: December 3, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200569
Tracy Blackwell and Walter Blackwell v. Estate of Mildred Blackwell,
Cecil Richard Blackwell, Jr., and Shannon Blackwell Longcrier (Appeal
from Baldwin Circuit Court: CV-20-901079).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | December 3, 2021 |
c8f10780-0f2d-4655-9431-4a2fe2982e7f | Michelle Swindle v. Christina Walker, Regina Lee, Tina O'Shell, and Thomas B. Prickett II, as administrator of the Estate of Joseph C. Owens, deceased | N/A | 1200334 | Alabama | Alabama Supreme Court | Rel: November 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200334
Michelle Swindle v. Christina Walker, Regina Lee, Tina O'Shell, and
Thomas B. Prickett II, as administrator of the Estate of Joseph C. Owens,
deceased (Appeal from Blount Probate Court: 20-199).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur. | November 12, 2021 |
7ab40191-5e03-4ad1-9420-3589b431e4c1 | Robbie Dellinger, Joe S. Kimbrough, and Steve Kimbrough, LLC v. Bryant Bank, Audrey Flemming, and Michael Francis Flemming III | N/A | 1190430 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1190430 Robbie Dellinger, Joe S. Kimbrough, and Steve Kimbrough, LLC
v. Bryant Bank, Audrey Flemming, and Michael Francis Flemming III
(Appeal from Jefferson Circuit Court: CV-18-903544).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 12, 2021:
Application Overruled. No Opinion. Mitchell, J. - Parker, C.J., and
Shaw, Bryan, and Mendheim, 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 August 13, 2021:
Appeal Dismissed. 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 November, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
e3e726af-9296-4b17-adac-7fa24894ab1f | Roginski v. Estate of Tarvaris Jackson | N/A | 1200305 | Alabama | Alabama Supreme Court | REL: November 12, 2021
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, 2021-2022
____________________
1200305
____________________
Jessa Roginski, on behalf of Jaya Jackson, a minor
v.
Estate of Tarvaris Jackson
Appeal from Montgomery Circuit Court
(CV-20-900791)
MITCHELL, Justice.
When former NFL quarterback Tarvaris Jackson passed away last
year, he left behind a young daughter named Jaya, to whom he owed child
1200305
support under the terms of a Minnesota court order. Jaya's mother and
legal representative, Jessa Roginski, commenced an action in the
Montgomery Circuit Court to domesticate the Minnesota support order.
In response to a motion filed by Jackson's estate, the circuit court entered
an order to strike Roginski's filings, from which she appealed to this
Court. Because the Court of Civil Appeals has exclusive appellate
jurisdiction of appeals in domestic-relations cases, we transfer this appeal
to that court.
Facts and Procedural History1
In February 2017, a district court in Hennepin County, Minnesota,
entered an order requiring Jackson to pay $2,112 in child support each
month until Jaya turns 18 years old or graduates high school (whichever
comes later), becomes self-supporting or emancipated, marries, serves in
the military, or dies. The order also required Jackson to maintain a life-
1In this section, we relate the facts and procedural history that are
necessary to explain our determination that this appeal belongs with the
Court of Civil Appeals. We omit, as immaterial to that determination,
discussion of events and filings occurring between the filing of the motion
to dismiss by Jackson's estate and the circuit court's ruling on that
motion.
2
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insurance policy for Jaya's benefit covering the predicted amount of his
total child-support obligation.
Jackson passed away in April 2020, and his widow opened an estate
("the estate") for him in Montgomery County, where he resided at the time
of his death. On June 17, 2020, Roginski filed a document titled "Notice
of Filing Foreign Judgment" in the circuit court, which stated in relevant
part:
"COMES NOW, Jessa Roginski, on behalf of Jaya Jackson, a
minor, and pursuant to Ala. Code § 30-3D-602, files a certified
copy of an authenticated foreign judgment from the District
Court of Hennepin County in the State of Minnesota. That on
February 21, 2017, a judgment was entered by the District
Court of Hennepin County against Tarvaris D'Andre Jackson,
deceased, awarding child support payments to Jessa Roginski
for the support of their child, Jaya Jackson, in the amount of
$367,488.00."2
Attached to the notice were a copy of the Minnesota court's child-
support order and an affidavit by Roginski's counsel, which said that
Roginski was seeking "to domesticate the foreign judgment ... in
2According to Roginski, the figure of $367,488 represents Jackson's
monthly child-support obligation of $2,112 multiplied by the 174 months
between his last payment (February 2020) and Jaya's 18th birthday
(August 2034).
3
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accordance with Ala. Code § 30-3D-602." Section 30-3D-602, Ala. Code
1975, is part of Alabama's enacted version of the Uniform Interstate
Family Support Act ("the UIFSA"), § 30-3D-101 et seq., Ala. Code 1975.
The circuit clerk issued a "Certificate of Judgment" stating that
Roginski had recovered a judgment against the estate in the circuit court
for the sum of $367,488 plus court costs of $246. The following month, the
estate filed a document titled "Motion to Dismiss, or In the Alternative,
Motion to Strike Filings and Stay Enforcement," in which it argued:
(1) that there was no foreign judgment in the amount of $367,488; (2) that
Roginski's filings did not meet the requirements to domesticate a foreign
judgment under Alabama's enacted version of the Uniform Enforcement
of Foreign Judgments Act ("the UEFJA"), § 6-9-230 et seq., Ala. Code
1975; (3) that Roginski's filings did not meet the requirements to register
a support order under the UIFSA; and (4) that, in the alternative to
dismissal, the court should strike Roginski's filings and stay enforcement
of the child-support order.
In November 2020, the circuit court ruled on the estate's motion. Its
order stated that Roginski's filings were "stricken" and that enforcement
4
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of the child-support order was "dismissed without prejudice." Roginski
moved to alter, amend, or vacate the circuit court's order. The court
denied that motion, and Roginski filed a timely notice of appeal to this
Court.
Analysis
This appeal must be transferred to the Court of Civil Appeals under
§ 12-1-4, Ala. Code 1975, which provides in relevant part that, "[w]hen
any case is submitted to the Supreme Court which should have gone to
one of the courts of appeals," the case "must not be dismissed but shall be
transferred to the proper court." The Court of Civil Appeals has "exclusive
appellate jurisdiction" of "all appeals in domestic relations cases." § 12-3-
10, Ala. Code 1975. Because this case is about Roginski's attempt to
enforce the Minnesota child-support order in Alabama, it is a domestic-
relations case, and this appeal falls within the Court of Civil Appeals'
exclusive appellate jurisdiction.
The UIFSA provides a statutory framework for registering out-of-
state family-law support orders for enforcement in Alabama. See §§ 30-
3D-601 through 604. Once registered under the UIFSA, an out-of-state
5
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support order "is enforceable in the same manner and is subject to the
same procedures as an order issued by a tribunal of this state," § 30-3D-
603(b), and may be modified by an Alabama court under certain
circumstances, see §§ 30-3D-609 through 614. Because UIFSA
proceedings concern family-law support orders, they fall within the
category of "domestic relations cases" for purposes of § 12-3-10. Indeed,
the Court of Civil Appeals has long taken exclusive appellate jurisdiction
of appeals in UIFSA cases. See, e.g., Davis v. Davis, 317 So. 3d 47 (Ala.
Civ. App. 2020); Hummer v. Loftis, 276 So. 3d 215 (Ala. Civ. App. 2018);
Ex parte Reynolds, 209 So. 3d 1122 (Ala. Civ. App. 2016); Williams v.
Williams, 91 So. 3d 56 (Ala. Civ. App. 2012); C.K. v. J.M.S., 931 So. 2d 724
(Ala. Civ. App. 2005); McCarthy v. McCarthy, 785 So. 2d 1138 (Ala. Civ.
App. 2000).
Roginski's original filings in the circuit court expressly invoked § 30-
3D-602, the UIFSA section that sets forth the procedures for registering
an out-of-state support order. And on appeal, Roginski argues that she
properly registered the Minnesota support order by complying with the
requirements of § 30-3D-602. To that extent, this appears to be a UIFSA
6
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case, placing it squarely within the exclusive appellate jurisdiction of the
Court of Civil Appeals.
The analysis is complicated slightly by the parties' references to the
UEFJA, a separate statute that provides a general framework for the
filing and enforcement of foreign judgments. See § 6-9-230 et seq.; see
also Pope v. Gordon, 922 So. 2d 893, 897 (Ala. 2005) (explaining that "the
purpose of the UEFJA 'is to give the holder of a foreign judgment the same
rights and remedies as the holders of domestic judgments' " (quoting 30
Am. Jur. 2d Executions and Enforcements of Judgments § 778 (2005)).
Unlike the UIFSA, the UEFJA is not exclusively or primarily concerned
with domestic-relations orders or any other specialized subject matter.
Rather, it provides generally for the filing and enforcement of "any
judgment, decree, or order of a court of the United States or of any other
court which is entitled to full faith and credit in this state." § 6-9-231.
Under the UEFJA, an authenticated foreign judgment "may be filed in the
office of the clerk of any circuit court of this state," § 6-9-232, subject to
certain procedural requirements set forth in § 6-9-233. "A judgment so
filed has the same effect and is subject to the same procedures, defenses
7
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and proceedings for reopening, vacating, or staying as a judgment of a
circuit court of this state and may be enforced or satisfied in like manner."
§ 6-9-232.
Here, we have no occasion to consider the overall relationship
between the UEFJA and the UIFSA, or even the substantive applicability
of the UEFJA to this case. Even if we were to ignore the UIFSA, regard
the Minnesota order as a "foreign judgment" under § 6-9-231, and consider
this case solely as a UEFJA proceeding, the fact would remain that the
foreign judgment Roginski sought to domesticate is a domestic-relations
order. Thus, any proceeding to reopen, vacate, stay, enforce, or satisfy
that judgment, as contemplated by § 6-9-232, would be a proceeding to
reopen, vacate, stay, enforce, or satisfy a domestic-relations judgment. By
the same token, any appeal in the case must be an appeal in a domestic-
relations case.
Cases interpreting the division of appellate jurisdiction between this
Court and the Court of Civil Appeals have generally looked to substance
over mere form. See Kimberley-Clark Corp. v. Eagleton, 433 So. 2d 452,
454 (Ala. 1983); Ex parte Barnett, 248 So. 3d 981, 985 (Ala. Civ. App.
8
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2017). In substance, this case is about the enforcement of the Minnesota
child-support order, and that is true no matter which statutory lens we
apply. We conclude that this is a domestic-relations case, that Roginski's
appeal is within the exclusive appellate jurisdiction of the Court of Civil
Appeals, and that it must be transferred to that court under § 12-1-4.
Conclusion
For the foregoing reasons, we order this appeal to be transferred to
the Court of Civil Appeals. Consistent with our conclusion that we lack
appellate jurisdiction in this case, we emphasize that nothing in this
opinion should be read to prejudice any of the parties' procedural or
substantive arguments.
APPEAL TRANSFERRED TO COURT OF CIVIL APPEALS.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur.
9 | November 12, 2021 |
353c02c2-7eb7-4baa-97eb-0117124d4f2d | Alabama Department of Revenue v. Panama City Wholesale, Inc. | N/A | 1190321 | 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
____________________
1190321
____________________
Vernon Barnett, in his official capacity as Commissioner of
the Alabama Department of Revenue
v.
Panama City Wholesale, Inc.
Appeal from Jefferson Circuit Court
(CV-19-134)
PARKER, Chief Justice.
Vernon Barnett, as Commissioner of the Alabama Department
of Revenue ("the
Department"), appeals from a summary judgment
entered in favor of Panama City Wholesale, Inc. ("PCW"). We
reverse.
1190321
I. Facts
The State of Alabama imposes a license or privilege tax
on tobacco products stored or received for
distribution within
the State ("the tobacco tax"). See § 40-25-1 et seq., Ala.
Code 1975. Under § 40-25-8 ("the confiscation statute"), the
Department may confiscate certain tobacco products on which
the tobacco tax has not been paid.
PCW was a wholesale tobacco-products distributor located
in Panama City, Florida, and owned by Ehad Ahmed. One of
PCW's customers, Yafa Wholesale, LLC ("Yafa"), was an Alabama
tobacco distributor owned by Sayeneddin Thiab ("Thiab").
In March 2018, agents of the Department began conducting
surveillance of Thiab's residence, Yafa's business location,
and storage units at Extra Space Storage ("Extra Space") in
Vestavia Hills. One of the units had been leased in 2010 by
Sami Berriri, a driver for Yafa. The agents observed Thiab's
son, Saed Sayeneddin Thiab ("Saed"), making multiple trips to
PCW's warehouse in Florida, where he loaded tobacco products
into delivery vehicles owned by Yafa. After Saed returned to
Alabama, Thiab, Saed, and other individuals unloaded the
products into the storage units. The agents also observed
2
1190321
Thiab and Saed retrieving tobacco products from the units and
delivering them to more than 80 convenience stores across
Alabama.
On October 10, 2018, Hurricane Michael destroyed the roof
on PCW's warehouse. Over the next few days, Thiab's daughter,
Ghadir Sayeneddin Thiab ("Ghadir"), and Saed leased three
additional units from Extra Space. On October 19, the agents
observed two of Thiab's vehicles and a rented moving truck
traveling to Pensacola, Florida. The vehicles were loaded
with tobacco products at Southeastern Freight Company and
were
observed at Yafa's business location that night. The next
day, agents observed one of Thiab's vehicles being unloaded at
two of the recently rented storage units. The day after that,
agents observed one of Thiab's delivery vehicles being loaded
with tobacco products from the other recently rented unit.
On October 23, 2018, the Department confiscated 1,431,819
cigars from four storage units leased by persons connected to
Yafa and Thiab. It is undisputed that the tobacco tax had not
been paid on the cigars. Ahmed filed an action in the
Montgomery Circuit Court against Barnett, as Commissioner of
the Department, seeking a judgment declaring that the cigars
3
1190321
were Ahmed's and that they were not subject to confiscation.
The case was transferred to the Jefferson Circuit Court, PCW
was substituted for Ahmed, and the parties were realigned to
make the Commissioner of the Department the plaintiff and PCW
the defendant in a civil forfeiture action. On PCW's motion,
the circuit court entered a summary judgment in PCW's favor,
ruling that the Commissioner failed to present substantial
evidence that the cigars were in the possession of a retailer
or semijobber, as the court believed was required by the
confiscation statute. The Commissioner appeals.
II. Standard of Review
"This Court reviews a summary judgment de novo. Turner
v. Westhampton Court, L.L.C., 903 So. 2d 82, 87 (Ala. 2004).
... [T]his Court reviews the evidence in the light most
favorable to the nonmovant. Turner, supra." Muller v. Seeds,
919 So. 2d 1174, 1176 (Ala. 2005).
III. Analysis
This is the first time this Court has interpreted the
confiscation statute in its current form. The confiscation
statute permits the Department to confiscate certain untaxed
tobacco products, as follows:
4
1190321
"Any ... cigars ... or other products taxable
under this article found at any point within the
State of Alabama, which ... cigars ... shall have
been within the State of Alabama for a period of two
hours, or longer, in possession of any retailer or
semijobber not having affixed to the package the
stamps as provided in this article, or in the case
of products not requiring a stamp to be affixed
where
purchase
invoices
do
not
itemize
the
applicable tobacco taxes, are declared to be
contraband goods and may be seized by the Department
.... Any of the goods, wares, or merchandise, when
offered for sale, either at wholesale or retail
without the stamps having been first affixed, or in
the case of products not requiring a stamp to be
affixed where purchase invoices do not itemize the
applicable tobacco taxes, shall be subject to
confiscation as hereinabove provided. Any untaxed
... cigars ... or other products taxable under this
article found at any location within the State of
Alabama, other than the primary location of the
permitted
wholesaler
or
jobber,
registered
semijobber, registered retailer or tobacco products
manufacturer who stores tobacco products at a bonded
warehouse in this state for resale, are declared to
be contraband goods, and those goods may be seized
by the Department ...."
§ 40-25-8, Ala. Code 1975.
In its summary judgment, the circuit court ruled that the
Commissioner "failed to present substantial evidence that the
tobacco products that [the Department] seized from [PCW]
[were] in the possession of a retailer or semi-jobber as
defined by [the confiscation statute]." The court apparently
interpreted the statute as allowing the Department to
5
1190321
confiscate only products that are in the possession of a
retailer or semijobber.
"'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 Rodgers, 141 So. 3d 1038,
1041 (Ala. 2013) (quoting Ex parte Berryhill, 801 So. 2d 7, 10
(Ala. 2001)). Further, "we must examine the statute as a
whole and, if possible, give effect to each [provision]." Ex
parte Exxon Mobil Corp., 926 So. 2d 303, 309 (Ala. 2005).
"'"There is a presumption that every word, sentence, or
provision [of a statute] ... has some force and effect and ...
that no superfluous words or provisions were used."'"
Richardson v. Stanford Props., LLC, 897 So. 2d 1052, 1058
(Ala. 2004) (quoting Sheffield v. State, 708 So. 2d 899, 909
(Ala. Crim. App. 1997)).
As an initial matter, the confiscation statute, by its
own terms, applies only to "products taxable under this
article." § 40-25-8. Taxable products under Article 1 of
Chapter 25 of Title 40 are tobacco products that are in
6
1190321
Alabama "for the purpose of distribution ... within the
State." § 40-25-2(a).
Within the structure of the confiscation statute, our
first analytical point of reference is the general language of
the third sentence: "Any untaxed ... cigars ... or other
products taxable under this article found at any location
within the State of Alabama ... are declared to be contraband
goods, and those goods may be seized by the Department ...."
This language generally allows the Department to confiscate
any untaxed tobacco product found at any location within the
State. The third sentence also contains a "primary-location"
exception to this general authorization: the Department may
not confiscate tobacco products that are found at "the primary
location of the permitted wholesaler or jobber, registered
semijobber,
registered
retailer
or
tobacco
products
manufacturer who
stores tobacco products at a bonded warehouse
in this state for resale." (Emphasis added.)1
1"Wholesale dealer and jobber" is defined as "[p]ersons,
firms, or corporations who buy tobacco products direct from
the manufacturer or an affiliate of the manufacturer and sell
at wholesale only ... to licensed wholesale dealers, jobbers,
semijobbers, and retail dealers for the purpose of resale
only." § 40-25-1(1). "Semijobber" is defined as "[p]ersons,
firms, or corporations who
buy tobacco products from permitted
7
1190321
To give effect to each provision of the statute, its
first and second sentences must then be read as exceptions to
the primary-location exception. The first sentence provides:
"Any ... cigars ... or other products taxable
under this article found at any point within the
State of Alabama, which ... cigars ... shall have
been within the State of Alabama for a period of two
hours, or longer, in possession of any retailer or
semijobber not having [paid the tobacco tax on them]
are declared to be contraband goods and may be
seized by the Department ...."
(Emphasis added.) This two-hour "exception to the exception"
allows the Department to confiscate any untaxed tobacco
products that have been in Alabama, in the possession of a
retailer or semijobber, for two hours or longer. Under this
provision, retailers and semijobbers who store tobacco
products at their primary locations must still pay the tobacco
tax within two hours of their possession of the products in
Alabama.
wholesalers or obtain tobacco from any other source and sell
at wholesale ... to licensed retail dealers for the purpose of
resale only." § 40-25-1(3). "Retailer dealer" is defined as
"[e]very person, firm, or corporation, other than a wholesale
dealer or jobber, who shall sell or offer for sale any one or
more of the [tobacco products] taxed herein ...; and all
persons operating under a retail dealer's license." § 40-25-
1(2).
8
1190321
Similarly, the second sentence of the statute provides:
"Any of the [tobacco products], when offered for sale, either
at wholesale or retail without the [tobacco tax having been
paid on them] shall be subject to confiscation ...."
(Emphasis added.) This sale "exception to the exception"
allows the Department to confiscate any untaxed tobacco
products that are offered for sale, at either wholesale or
retail. Under this provision, dealers who store tobacco
products at their primary locations must still pay the tobacco
tax before the products are offered for sale. Our
interpretation of how each of these provisions in the statute
relates to the others is summarized in the diagram attached as
an appendix.
PCW argues that the circuit court's interpretation of the
confiscation statute -- as applying only to products in the
possession of a retailer or semijobber -- was correct. But
the problem with that interpretation is that it fails to give
effect to each provision of the statute. By limiting the
Department's confiscation power to tobacco products in the
possession of retailers and semijobbers, that interpretation
would
render
superfluous
the
third
sentence's
primary-location
9
1190321
exception
as
to
permitted
wholesalers,
jobbers,
and
manufacturers, because products in the possession of those
types of dealers would not be subject to confiscation in the
first place. Rather, as explained above, the first sentence's
reference to a retailer or semijobber functions as an
exception to the primary-location exception, not as a limit on
the third sentence's general rule of confiscation. The
circuit
court's
interpretation would
turn
the
first
sentence's
reference on its head, incorrectly reading an exception to an
exception as a restriction on the general rule. In contrast,
the interpretation of the
confiscation statute set forth above
is the only reasonable way to ascribe meaning to each
provision
without
rendering
any
provision
logically
superfluous. See Exxon, 926 So. 2d at 309 (holding that we
give effect to each provision of a statute); Deutsche Bank
Nat'l Tr. Co. v. Walker Cty., [Ms. 1160926, June 28, 2019] ___
So. 3d at ___ (Ala. 2019) (stating that we presume that every
provision of a statute has some effect and that no provision
is superfluous).
We now apply this interpretation of the confiscation
statute to the facts here. In response to PCW's motion for a
10
1190321
summary judgment, the Commissioner presented substantial
evidence that the cigars were subject to confiscation. It is
undisputed that the tobacco tax had not been paid on the
confiscated cigars. Moreover, the Commissioner presented
substantial evidence that the cigars were in Alabama for the
purpose of distribution. As noted above, on multiple
occasions, Department agents observed Thiab, Saed, and other
individuals loading boxes of tobacco products from
the storage
units, including units leased after Hurricane Michael, into
Yafa's delivery vehicles. Thiab or Saed then transported the
products first to Yafa's business location, then to more than
80 convenience stores across Alabama. From this evidence, a
reasonable finder of fact could conclude that the cigars
confiscated from the storage units were in Alabama for the
purpose of distribution and thus subject to the tobacco tax.
Thus, there was a genuine issue of material fact as to whether
the cigars fell within the general scope of the confiscation
statute.
PCW argues that the cigars were not in Alabama for the
purpose of distribution, pointing to evidence that Saed
brought the cigars to Alabama to store them as a personal
11
1190321
favor to Ahmed after PCW's warehouse was damaged by Hurricane
Michael. However, this evidence merely conflicted with the
contrary evidence summarized above, creating a genuine issue
of material fact.
Further, the
statute's primary-location exception did
not
apply. It is undisputed that the storage units from which the
cigars were confiscated were leased by Saed, Ghadir, and
Berriri, none of whom were permitted wholesalers or jobbers,
registered
semijobbers,
registered
retailers,
or
manufacturers. The only registered tobacco dealer that
arguably could have had possession of the storage units was
Yafa, but Extra Space was not Yafa's primary location.
Because the primary-location exception did not apply, we need
not address whether the two-hour and sale "exceptions to the
exception" applied.
IV. Conclusion
Because the circuit court erred in interpreting the
confiscation statute to
apply only to untaxed tobacco products
in the possession of retailers and semijobbers, and because
the Commissioner presented substantial evidence that the
cigars were subject to confiscation under a correct
12
1190321
interpretation of the statute, we reverse the summary judgment
and remand the cause for further proceedings.
REVERSED AND REMANDED.
Bolin, Shaw, Wise, Bryan, Stewart, and Mitchell, JJ.,
concur.
Mendheim, J., concurs in the result.
Sellers, J., dissents.
13
1190321
SELLERS, Justice (dissenting).
I do not believe the Alabama Department of Revenue ("the
Department")
has
presented
sufficient
evidence
indicating
that
the tobacco products at issue in this case are contraband that
can be confiscated. Therefore, I respectfully dissent from
the Court's decision to reverse the trial court's summary
judgment against the Department.
Panama City Wholesale, Inc. ("PCW"), is a tobacco-
products supplier located in Panama City, Florida. Chapter 25
of Title 40 of the Alabama Code of 1975 imposes a "license or
privilege tax" on tobacco products sold in Alabama or held for
sale in Alabama, which the main opinion refers to as "the
tobacco tax." See § 40-25-2(a), Ala. Code 1975. It is
undisputed that the State of Florida does not impose a similar
tax on tobacco products.2
In October 2018, the Department executed search warrants
at a storage facility in Jefferson County. Pursuant to those
warrants, the Department seized approximately 1.4 million
small cigars from four individual units in the storage
2I note that Alabama also has a statutory scheme that
imposes a tax on the storage, use, or consumption of tobacco
products, purchased at retail, if those products are not
subject to the tobacco tax. See § 40-25-41, Ala. Code 1975.
14
1190321
facility. PCW claims that the seizure was unlawful and that
it owns those cigars. According to the Department, however,
the cigars are contraband because the tobacco tax has not been
paid on them.
With respect to some tobacco products, the payment of the
tobacco tax is evidenced by the presence of stamps affixed to
the packaging of the products. See § 40-25-4 and § 40-25-4.1,
Ala. Code 1975. Apparently, however, cigars like the ones at
issue here are sold individually in packaging that varies so
much that it is impractical to use mechanical stampers to
affix stamps to the individual packages. According to the
Department, the payment of the tobacco tax on this type of
cigar, rather than evidenced by stamps, is self-reported and
evidenced by documents submitted to the Department along with
payment of the tax. See § 40-25-2(e), Ala. Code 1975
(authorizing the Commissioner of Revenue to "require a
monthly
report without use of a stamp to report the amount of taxes
due"). The Department asserts that Alabama has a "tobacco
smuggling problem" with respect to this type of cigar.
According to the Department, unscrupulous tobacco-product
sellers "are buying the product in states like Florida that do
15
1190321
not tax little cigars and smuggling them back to Alabama for
resale."3
The Department has alleged that a business run by an
individual named Sayeneddin Thiab ("Thiab"), which sells
tobacco products to retailers in Alabama, is a customer of
PCW. According to an affidavit submitted by the Department,
computer records seized from PCW show that, from October 2013
through May 2017, Thiab's business purchased more than $5
million worth of tobacco products from PCW in Florida. The
Department asserts that representatives of Thiab's business
transported those cigars into Alabama for sale to retailers in
Alabama without paying the tobacco tax. The affidavit
submitted by the Department states additionally that, from
March 2018 until October 2018 when the particular cigars at
issue were confiscated, agents of the Department observed
representatives of Thiab's business make multiple trips to
PCW's location in Florida and back to Thiab's office and to
the storage facility in Jefferson County.
3The Department suggests that the boxes in which cigars
like the ones at issue here are distributed to retailers in
Alabama are stamped when the tobacco tax is paid, but that
tobacco retailers often simply refill those boxes
with untaxed
individual cigars after selling the taxed cigars.
16
1190321
The
Department's affidavit suggests
that
Thiab's business
has used some of the units in the storage facility in
Jefferson County to temporarily store tobacco products before
they are sold to Alabama retailers. It appears undisputed,
however, that the particular storage units from which the
cigars at issue in this case were confiscated were not rented
in the name of Thiab or his business. Rather, they were
rented by three other individuals –- Saed Sayeneddin Thiab,
Ghadir Sayeneddin Thiab, and Sami Berriri. The record
indicates that Saed is Thiab's son and that he has been
involved in Thiab's tobacco-sales business. Although the
Department avers that Ghadir is Thiab's daughter and that Sami
was a vehicle driver for Thiab's business, the portions of the
record the Department cites do not support those averments.
It is undisputed that the storage units were rented and
the cigars in question were moved from PCW's warehouse in
Florida shortly after that warehouse was severely damaged by
Hurricane Michael in October 2018. It also appears that some
of the cigars confiscated by the Department had been damaged.
PCW alleges that the cigars were moved to Alabama for
temporary storage until permanent storage in Florida could be
17
1190321
secured. PCW also claims that the individuals who rented the
storage units in Jefferson County are friends of PCW's owner,
Ehad Ahmed. As noted, there is evidence indicating that
Thiab's business has purchased cigars from PCW in the past,
but we have not been directed to any evidence indicating that
PCW was paid for the particular cigars confiscated here.
Nothing before us suggests that title to or ownership of the
cigars was transferred from PCW to any other individual or
entity.
The Department relies on § 40-25-8, Ala. Code 1975, which
allows for the seizure of tobacco products when the tobacco
tax has not been paid. That statute provides:
"Any cigarettes, smoking tobacco, cigars,
stogies, cheroots, chewing tobacco, snuff, or other
products taxable under this article found at any
point within the State of Alabama, which the
cigarettes,
smoking
tobacco,
cigars,
stogies,
cheroots, chewing tobacco, snuff, or other products
taxable under this article shall have been within
the State of Alabama for a period of two hours, or
longer, in possession of any retailer or semijobber
not having affixed to the package the stamps as
provided in this article, or in the case of products
not requiring a stamp to be affixed where purchase
invoices do not itemize the applicable tobacco
taxes, are declared to be contraband goods and may
be seized by the Department of Revenue, or its
agents or by any peace officer of the State of
Alabama, without a warrant and the goods shall be
delivered
to
the
Department
of
Revenue
for
18
1190321
destruction. Any of the goods, wares, or merchandise
when offered for sale, either at wholesale or retail
without the stamps having been first affixed, or in
the case of products not requiring a stamp to be
affixed where purchase invoices do not itemize the
applicable tobacco taxes, shall be subject to
confiscation as hereinabove provided. Any untaxed
cigarettes,
smoking
tobacco,
cigars,
stogies,
cheroots, chewing tobacco, snuff, or other products
taxable under this article found at any location
within the State of Alabama, other than the primary
location of the permitted wholesaler or jobber,
registered
semijobber,
registered
retailer
or
tobacco products manufacturer who stores tobacco
products at a bonded warehouse in this state for
resale, are declared to be contraband goods, and
those goods may be seized by the Department of
Revenue, or its agents or by any peace officer of
the State of Alabama, without a warrant and the
goods shall be delivered to the Department of
Revenue for destruction. Any vehicle, not a common
carrier, used for the transportation for the purpose
of sale of unstamped articles as hereinabove
enumerated shall likewise be subject to confiscation
and sale at public auction to the highest bidder
after due advertisement and notice to the title
owner of the vehicle. The proceeds of sale for any
vehicle sold hereunder shall be deposited into the
State Treasury by the Department of Revenue to be
credited in the same manner as the tax otherwise due
on the tobacco products being transported. The cost
of confiscation and sale shall be paid out of the
proceeds derived from the sale before making
remittance to the Treasurer. Should any unstamped
tobaccos be found in any vehicle which is engaged in
the sale, distribution, or delivery of taxable
tobaccos, the same shall be prima facie evidence
that it was there for sale."
(Emphasis added.)
19
1190321
PCW argued in its summary-judgment motion that the
Department's confiscation power under § 40-25-8 is limited to
tobacco products in the possession of retailers or
semijobbers
and that the cigars confiscated here were not in the
possession of a retailer or semijobber. In response to PCW's
motion, the Department pointed to the provision in the latter
part of § 40-25-8 stating that
"[a]ny untaxed ... cigars ... or other products
taxable under this article found at any location
within the State of Alabama, other than the primary
location of the permitted wholesaler or jobber,
registered
semijobber,
registered
retailer
or
tobacco products manufacturer who stores tobacco
products at a bonded warehouse in this state for
resale, are declared to be contraband goods."
The Department appears to suggest to this Court that, pursuant
to the above-quoted portion of § 40-25-8, nearly all untaxed
tobacco products in Alabama are contraband unless they are
kept in a bonded warehouse, regardless of who possesses the
products.4 According to the Department, the clause is
"designed to allow the storage of the product in a bonded
warehouse by people that might need to use a bonded warehouse
4The Department does appear to acknowledge the two-hour
"window" afforded retailers and semijobbers under the initial
portion of § 40-25-8 but argues that it does not apply in this
case.
20
1190321
without paying the tobacco tax until they are pulled from the
bonded warehouse for sale in Alabama." It is not clear,
however, why the clause uses the term "the primary location"
if it is simply aimed at allowing untaxed tobacco products to
be stored in bonded warehouses. It also is not clear that the
reference to "a bonded warehouse" applies to tobacco products
stored by someone other than a tobacco-products manufacturer.
Indeed, in its response to PCW's summary-judgment motion, the
Department argued to the trial court that, "if the product is
stored in Alabama in a bonded warehouse of a manufacturer then
it is not contraband." (Emphasis added.)
I cannot escape the conclusion that, when considered with
the rest of § 40-25-8, the meaning of the portion upon which
the Department relies is simply not clear. If statutory
language is ambiguous, this Court must endeavor to determine
legislative intent. Deutsche Bank Nat'l Tr. Co. v. Walker
Cty., [Ms. 1160926, June 28, 2019] ___ So. 3d ___, ___ (Ala.
2019). In doing so, it is helpful to consider other statutes
set out in Chapter 25 of Title 40. See Long v. Bryant, 992
So. 2d 673, 684 (Ala. 2008) ("Courts do not interpret
statutory provisions in isolation, but consider them in the
21
1190321
context of the entire statutory scheme."); James v. McKinney,
729 So. 2d 264, 267 (Ala. 1998) ("In determining legislative
intent, a court should examine related statutes."). I also
note that "taxing statutes should be strictly construed
against the taxing power." Alabama Farm Bureau Mut. Cas. Ins.
Co. v. City of Hartselle, 460 So. 2d 1219, 1223 (Ala. 1984).
Because the provision here is not clear, we must strictly
construe it against the Department.
Chapter 25 of Title 40 is not aimed at taxing all tobacco
products that are located within Alabama. Rather, the tobacco
tax is levied on tobacco products that are going to be sold in
Alabama.
See
§
40-25-2(a)
("[E]very
person,
firm,
corporation, club, or association, within the State of
Alabama, who sells or stores or receives for the purpose of
distribution to any person, firm, corporation, club, or
association within the State of Alabama, [tobacco products]
shall pay ... a license or privilege tax which shall be
measured by and graduated in accordance with the volume of
sales of such person, firm, corporation, club, or association
in Alabama." (emphasis added)); Snow v. State, 259 Ala. 579,
582, 67 So. 2d 822, 824 (1953) (considering a prior version of
22
1190321
§ 40-25-2 and concluding that, "when that statute imposes a
license or privilege tax on a person who 'sells or stores or
receives for the purpose of distribution,' it means as to the
storage as well as to the receipt of the cigarettes, that it
must be for distribution, such as a sale" (emphasis added)).
In light of that purpose, I read the confiscation power
acknowledged in the latter portion of § 40-25-8, upon which
the Department relies, as limited to untaxed tobacco products
possessed by the persons or entities referenced in the statute
who sell tobacco products in Alabama, i.e., wholesalers,
jobbers, semijobbers, retailers, and manufacturers. The
existence of an alternative statutory scheme imposing a tax on
the storage, use, or consumption of tobacco products, as
opposed to their sale, buttresses that conclusion. See § 40-
25-41, Ala. Code 1975 (imposing a tax on "the storage, use or
other consumption in this state of tobacco products purchased
at retail" unless the tax imposed by § 40-25-2 has been paid).
The Court in Snow held that a person possessing a large amount
of cigarettes he intended to sell in Alabama was subject to
the tobacco tax, that the cigarettes in his possession were
contraband because that tax had not been paid, and that the
23
1190321
cigarettes would have been subject to the tax currently
imposed by § 40-25-41 and not the tobacco tax if they had been
held for personal use. 259 Ala. at 582, 67 So. 2d at 824-25.5
The latter portion of § 40-25-8 uses the term "the
primary location." Although the statute is not a model of
clarity, I believe that, in using that term, the legislature
was concerned with the Department's ability to inspect stored
tobacco products and to ensure that the tobacco tax has been
paid. After all, because the Department is charged with
enforcing the tobacco-tax statutes, it must have knowledge of,
and ready access to, locations where tobacco products are
kept. See, e.g., § 40-25-12, Ala. Code 1975 (acknowledging
the Department's authority to conduct inspections to enforce
the taxing statutes and making it a crime to improperly
interfere with inspections); § 40-25-26, Ala. Code 1975
(stating that the Department has the duty to enforce the
tobacco-tax statutes and has "the power to enter upon the
premises of any taxpayer and to examine, or cause to be
examined, ... any books, papers, records, or memoranda, etc.,
bearing upon the amount of taxes payable, and to secure other
5The
Department does
not
argue
that
the
cigars
confiscated
in this case were subject to a tax other than the tobacco tax.
24
1190321
information
directly
or
indirectly
concerned
in
the
enforcement of this article"). Thus, I would interpret the
clause at issue to mean that, if a wholesaler, jobber,
semijobber, or retailer stores untaxed tobacco products
somewhere other than their "primary location," the products
immediately become contraband.6
Accordingly, I cannot agree with the Department's
apparent assertion that the latter portion of § 40-25-8 is
aimed at declaring nearly all untaxed tobacco products in
Alabama, regardless of who possesses them, to be contraband.
As an alternative to that argument, the Department suggests
6It is not necessary to decide in this case whether
untaxed tobacco products stored by a tobacco-products
manufacturer somewhere other than the manufacturer's "primary
location" are contraband, because it is undisputed that the
cigars confiscated here were not in the possession of a
manufacturer. I also note that § 40-25-8 appears to exempt
from the Department's confiscation power some untaxed tobacco
products that are stored in a bonded warehouse, at least by
tobacco-products manufacturers. Black's Law Dictionary
defines "bonded warehouse" as "[a] special type of private
warehouse used to store products subject to customs duties."
Black's Law Dictionary 1898 (11th ed. 2019). See also
Webster's Third New International Dictionary 250 (1961)
(defining "bonded warehouse" as "a warehouse under bond to the
government for payment of customs duties and taxes on goods
stored or processed there"). It is not necessary, however, to
construe that portion of the statute, because it is undisputed
that the cigars at issue in this case were not stored in a
bonded warehouse.
25
1190321
that it submitted substantial evidence that the cigars at
issue were indeed possessed by one of the entities referenced
in § 40-25-8. Specifically, the Department asserts that it
presented sufficient evidence indicating that the cigars were
in the possession of Thiab's business, which the Department
suggests is a semijobber under the definition of that term in
§ 40-25-1, Ala. Code 1975. It appears the main opinion agrees
with that assertion.7
As noted, the storage units from which the cigars were
confiscated were not rented in the name of Thiab or his
business; they were rented by Saed, Ghadir, and Sami. The
Department does not argue that those individuals are
themselves tobacco-products sellers who intended to sell the
cigars. Rather, the Department asserts that they were acting
as agents of Thiab's business and that they were holding the
cigars "in furtherance of the tobacco wholesale business of
the Thiab family." According to the Department, Thiab's
business was "in constructive or apparent physical control of
7For purposes of this opinion, I assume that Thiab's
business fits within the definition of a "semijobber" under §
40-25-1, Ala. Code 1975, and that the storage units where the
cigars were stored do not constitute "the primary location" of
Thiab's business.
26
1190321
the cigars." Respectfully, I do not believe the Department
has met its burden on appeal.
First, I note that the Department does not point to any
evidence
indicating
exactly
what
Ghadir's
or
Sami's
relationship is to Thiab or his business. The assertions in
the Department's brief to this Court that Ghadir is Thiab's
daughter and that Sami was a driver for Thiab's business are
simply not supported by the portions of the record referenced
in the Department's brief. Likewise, the Department's
assertions that Ghadir and Sami "had been observed performing
the critical functions of the business under investigation at
this storage facility for several months before the
confiscation" and that Ghadir "was known to be utilizing the
storage units to further the tax evasion of the Thiab tobacco
wholesale business" are not supported by the portions of the
record the Department cites.
As for Saed, the record does contain evidence indicating
that he is Thiab's son and that he has been involved in trips
to PCW's location in Florida and in deliveries of untaxed
tobacco products by Thiab's business to various sellers in
Alabama. However, we have not been directed to any evidence
27
1190321
indicating that Thiab's business or anyone else actually
purchased from PCW the particular cigars at issue here. For
all that appears, PCW still owns them. As noted, it is
undisputed that the cigars were moved from PCW's warehouse in
Florida shortly after it was damaged by Hurricane Michael.
Finally, the Department's conclusory assertion that, simply
because Saed assisted with aspects of Thiab's business, that
business was in "constructive or apparent physical control" of
the particular cigars at issue in this case is not supported
by legal authority. See Dykes v. Lane Trucking, Inc., 652 So.
2d 248, 251 (Ala. 1994) (indicating that this Court will
disregard arguments that are based on undelineated general
propositions not supported by sufficient authority).
The Department bears the burden on appeal. Johnson v.
Life Ins. Co. of Alabama, 581 So. 2d 438, 444 (Ala. 1991). It
has failed to point to evidence indicating that Ghadir, Sami,
or Saed were acting on behalf of Thiab's business in renting
the storage units and storing the cigars at issue. Thus, the
Department
has not
demonstrated
that
evidence
exists
indicating that the cigars were in the possession of Thiab's
business for purposes of § 40-25-8. The Department's
28
1190321
purported justification for exercising its confiscation power
is based on speculation. I would affirm the trial court's
judgment.8
8The Department does not argue that the cigars were in the
possession of PCW for purposes of § 40-25-8 and were, for that
reason, subject to seizure under the statute.
29
1190321
Appendix
30 | June 5, 2020 |
2c77b455-3929-498b-a030-31c946bf0db8 | SuVicMon Development, Inc.; Gardendale Housing, Inc.; and Patriarch Enterprises, Inc. v. Bradley Morrison and Charles M. Morrison, Jr. | N/A | 1190236 | Alabama | Alabama Supreme Court | REL: November 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1190236
SuVicMon Development, Inc.; Gardendale Housing, Inc.; and Patriarch
Enterprises, Inc. v. Bradley Morrison and Charles M. Morrison, Jr.
(Appeal from Jefferson Circuit Court: CV-06-7082).
MENDHEIM, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur. | November 12, 2021 |
51368d15-66b0-45c9-b9ea-78b14c19b5d3 | Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins. | N/A | 1200107 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 19, 2021
1200107
Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins.
PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Michael Thomas
Scoggins, as administrator of the estate of George Thomas Scoggins,
deceased v. Bobby Blankenship et al.) (Calhoun Circuit Court: CV-98-996).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on November 19, 2021:
Application Overruled. No Opinion. Mendheim, J. - Parker, C.J., and
Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J.,
recuses himself.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 3, 2021:
Petition Granted; Writ Issued. Mendheim, J. - Parker, C.J., and Bolin,
Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur. Mitchell, J., recuses
himself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 19th day of November, 2021.
Clerk, Supreme Court of Alabama | November 19, 2021 |
10a1836e-3915-4170-933b-806055f46ab2 | Ex parte Laura Peterman Wells, as guardian ad litem for L.V., a minor. | N/A | 1200394 | Alabama | Alabama Supreme Court | REL: November 12, 2021
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, 2021-2022
____________________
1200394
____________________
Ex parte Laura Peterman Wells, as guardian ad litem for L.V., a
minor
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: A.V.
v.
Houston County Department of Human Resources)
(Houston Juvenile Court, JU-18-101.01;
Court of Civil Appeals, 2190464)
1200394
MITCHELL, Justice.
The writ of certiorari is quashed.
In quashing the writ of certiorari, this Court does not wish to be
understood as approving all the language, reasons, or statements of law
in the Court of Civil Appeals' opinion. Horsley v. Horsley, 291 Ala. 782,
280 So. 2d 155 (1973).
WRIT QUASHED.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur.
2 | November 12, 2021 |
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